The Dichotomy between an Employee (Locatio operarum) and Independent Contractor (Conductio operis) for Purposes of Liability in Law of Delict: An Analysis

Abstract

It has been difficult in practice to distinguish between an employee (Locatio operarum) and an independent contractor (Conductio operis). It is important to know whether a person is an employer or independent contractor for the purposes of determining their entitlements such as liability issues (in this context) and other factors like (which do not have necessarily a bearing on this paper – for example, redundancy pay, notice period, health and safety and liability issues). In order to assist in the distinction between employee and independent contractor, the Courts have contrived four tests: (i) the supervision and control test; (ii) the organisation test; (iii) the multiple or dominant impression test; and (iv) the flexible test. These tests have each their merits and demerits and evoked proper analysis and application for the understanding of the dichotomy between employee and independent contractor as envisaged in case laws such as Colonial Mutual Life Assurance Society, R v AMCA Services, Smit v Workmen’s Compensation Commissioner and Motor Industry Bargaining Council.