South Africa has experienced an increased amount of loadshedding in the past year, which has resulted in high levels of frustration especially for business owners. Coffee Brew King is owned by Jackson. Jackson has been losing a significant amount of business due to the constant electricity interruptions. His coffee shop is well known for the free Wi-Fi and gourmet coffees. Jackson wishes to mitigate the problem by installing a high-powered generator which would allow his business to function at optimal capacity. He sources PowerTools Inc, a company operating within Cape Town to assist him with the process. PowerTools Inc is owned by 16 year old Jared Naidoo. Jared’s father Malcom passed away 3 years ago and has given the entire business to Jared. Jared currently resides with his mother.

QUESTION FIVE

Selena works at Jackson ’s coffee shop as a singer. She performs every day from 5 pm until 7 pm. Selena also received a uniform with Jackson’s shop information to wear during her performance. Selena was given a contract from Jackson for a period of 2 years, and she is often invited to join staff parties and social events which are hosted by Jackson. Selena submits invoices and charges VAT as she belongs to a closed corporation which has two (2) other people in it.

5.1 You are required to list the differences between an employee and an independent contractor.

5.2 Based on the set of facts above determine as to whether Selena is an employee or an independent contractor. Justify your answer fully. You are required to cite the applicable case law
 

Whether a person is an employee or an independent contract is further clarified by Unit 200A of the LRA (and Section 83 of the BCEA). Differences between a contract of employment and a contract of work: In the case of SA Broadcasting Corporation v McKenzie (1999) 20 ILJ 585 (LAC), the LAC set out the main differences between a contract of employment and contract of work. Below is a Table reflecting the essential characteristics and differences between an employee and an independent contractor. Essential Characteristics between Employee and Independent Contractor Employee (Contract of employment) Rendering of personal services by the employee to the employer. The employer may choose when to make use of the services of the employee. The employee is at the beck and call of the employer Not obliged to perform the work himself or to produce to render his personal services. the result himself, unless otherwise agreed. Employee is obliged to obey the lawful commands. orders or instructions of the employer. Contract of service is terminated by the death of the employee. Independent Contractor (Contract of work) Contract of service terminates on expiration of the period of service. The performance of a certain specified work or the production of a certain specified result. The independent contractor must perform the work within the period fixed by the contract. Is subservient to the contract, not under the supervision or control of the employer. Not obliged to obey the instructions regarding the manner in which the task is to be performed. The death of the parties to a contract of work does not necessarily terminate it. Contract of work terminates on completion of the specified work or on production of the specified result. Section 200A provides that if any one or more of the following factors are present, the person who works for or renders services to another person is presumed to be an employee, regardless of the form of contract. The onus is on the employer to prove the contrary.