By Amien Hoosain
Uber South Africa Technology Services (Pty) Ltd (Uber SA) v National Union of Public Service and Allied Workers, a judgment of the Labour Court, Cape Town on 12 January 2018, dealt with the perennial question whether a person is an employee or an independent contractor.
Uber BV, a company incorporated in the Netherlands, owns and operates a smart phone application (the Uber App). The Uber App connects drivers to ‘riders’. Uber BV pays drivers a fee per ride.
Uber SA provides (in South Africa), for remuneration, marketing and support services to Uber BV, including making its premises available for the compulsory training session drivers are required to attend, and assisting drivers with administrative matters such as making changes to their profiles, processing claims, and the like.
Uber BV deactivated six drivers’ access to the Uber App, and the drivers referred complaints of unfair dismissal against Uber SA to the CCMA. The CCMA only has jurisdiction to adjudicate claims by employees (not independent contractors). The Commissioner found that the drivers were employees of Uber SA. Uber SA appealed.
The Labour Court examined the relationship between Uber and the drivers. There is a distinction between drivers, partner drivers, and partners. Drivers are persons who drive the vehicles of authorised partners. Partners were persons who owned vehicles, but were not themselves registered with Uber as drivers. Partner drivers were persons who owned one or more vehicle, and were in addition drivers. Drivers are entitled to move between partners without reference to Uber.
There must be a contract between the person claiming to be an ’employee’ and the person alleged to be the ’employer’, and the contract must be one of employment. The Labour Court held that, in finding that the drivers were employed by Uber SA, the Commissioner had conflated Uber SA and Uber BV:
“… given the concession by the drivers that there was no contractual arrangement between them and Uber SA, the commissioner ought to have upheld Uber SA’s jurisdictional challenge.”
The Labour Court set aside the Commissioner’s finding that the drivers were employed by Uber SA. In conclusion, the Court stated that –
“Finally, it warrants mention (and emphasis) that this judgment does no more than conclude that on the facts, the drivers were not employees of Uber SA. … Whether the drivers are employees of Uber BV (either alone or in a co-employment relationship with another or other parties), or whether they are independent contractors of Uber BV, is a matter that remains for decision on another day.”
Uber will be well advised to disambiguate its position. Uber BV will be in for some nasty surprises if it is found to be the employer of Uber drivers in South Africa.