Employee… or Freelancer? How Your Job Status Could Shape Your Rights

When you start work in Botswana, whether you are labelled an employee or an independent contractor can completely change your rights, protections, and remedies under the law.

This is not just legal fine print, it determines which court has jurisdiction, whether the Employment Act [Cap 47:01] applies, and even if your employer can be held responsible for your actions through vicarious liability. It also decides whether you can claim benefits under the Workers’ Compensation Act or are limited to general contract law remedies.

Contract of Service (Employment Contract)

An employment contract exists where:

• Labour is hired (letting and hiring of labour).
• Work is done for the benefit of the employer.
• The worker is under the orders or control of the employer.

Contract for Services (Independent Contractor)

Here, you are running your own business, deciding how the work is done, and being paid for results, not hours worked. This relationship is governed by contract law, not the Employment Act.

How Courts Tell the Difference

1. Control Test
The more control an employer has over how you work, the more likely you are an employee. This test is less relevant for highly skilled professionals.

2. Organisational / Integration Test
Looks at whether the worker is an integral part of the employer’s operations.

3. Dominant or Multiple Impression Test
Weighs several factors, duties, hours, payment method, provision of tools, to form an overall picture.

A Case Study (Sigwele v. Botswana Life Insurance LTD 2000 (2) BLR 331 (IC))

In Sigwele v. Botswana Life Insurance Ltd (2000), Ms. Sigwele worked as a consultant under a written agreement that required her to solicit business exclusively for the company, maintain client accounts, and collect premiums. She was paid on commission only, with no salary. After her relationship with the company ended, she claimed unfair dismissal under the Trade Disputes Act. The legal question was whether she was an “employee” or an independent agent, because only employees can claim under that Act.

The court stressed that, under the Trade Disputes Act, an employee must perform labour under the orders of another. Applying both the supervision/control test and the broader multiple/dominant impression test, the court weighed key factors:

Indicators she was not an employee:

• Worked solely on commission, no salary.
• Had no fixed office hours and could choose when to work.
• Maintained independence in finding clients and managing her workload.

Indicators suggesting employment:

• Subject to performance reviews.
• Contract contained exclusivity clauses.

Ultimately, the court found the independence factors stronger, ruling she was an independent agent, and therefore outside the Industrial Court’s jurisdiction.

Why It Matters

Misclassification can lead to:

• Workers losing out on leave, minimum wage, and other protections.
• Employers facing back pay, tax liabilities, and penalties.
• Longer, costlier legal disputes.

Getting the classification right from day one protects everyone, and keeps Botswana in line with international labour standards.