The Dependent Contractor: A Missing Piece in the SITA Test and the Definition of Employee in the LRA
Author Tumo C Maloka & Chuks Okpaluba
Affiliations: Associate Professor, School of Law, University of Limpopo; Professor and Research Fellow, Centre for Human Rights, University of Free State
Source: Industrial Law Journal, Volume 42 Issue 2, 2021, p. 709 – 727
A missing piece of the puzzle in the three-fold SITA test for determining the existence of an employment relationship as well as a lacuna in the statutory definition of an ‘employee’ in s 213 of the Labour Relations Act 66 of 1995 (LRA) have arguably failed to receive sufficient scholarly, judicial and legislative attention. The three-fold SITA test refined by Benjamin and endorsed by judicial practitioners draws attention to the importance of distinguishing personal dependence from economic dependence. The absence of a dependent contractor category in the LRA renders the SITA test an imprecise tool for tackling the fine margins of self-employment. If the statutory definition of an ‘employee’ were amended to include a ‘dependent contractor’, protection would be extended to persons who have some of the trappings of the independent contractor, but, in reality, are in a position of economic dependence, analogous to that of a subordinate employee. The dependent contractor category accords well with the goals of labour regulation in terms of promoting countervailing power.