Whilst the exercise to determine if an employment relationship exists is dependent on the factual circumstances of each case, recent case law suggests that the legal tests to make this determination are now widely accepted. Recent case law has accordingly confirmed the legal tests as previously set out by our courts and it is not expected that the test(s) as set out above will be greatly changed in the near future. Authoritative cases include:
• State Information Technology Agency (SITA) (Pty) Ltd v CCMA & others (supra), in relation to the general tests and key factors in the determination of the true nature of the relationship;
• Phaka & 19 others v Commissioner Bracks & others (supra) in relation to owner-driver schemes and the nature of such relationships; and
• Denel (Pty) Ltd v Gerber in relation to assessing the effect of the use of an incorporated entity by an independent contractor.
Whether or not Uber’s relationship with its drivers is in the nature of an independent contractor or employment relationship is currently pending before South Africa’s main employment tribunal.
In 2016 the trade union movement and other activists continued their campaign against the use of labour brokers and outsourced managed services providers (i.e. independent contractors), with this issue being one of those in the spotlight during a wave of universi-ty student protests regarding high university fees and demands for an end to outsourcing of non-core services at universities. It seems likely that this demand will spill over into 2017 and perhaps into other industries.