TIME TO RIDE
The question is whether Uber can, in relation to its drivers, be said to have a conventional corporate structure that renders the test useful. Given the absence of any formal reporting lines or managerial hierarchy in relation to drivers, an Uber driver does not, in this more meaningful sense, form a part of the corporate structure of Uber. This is particularly the case given that the driver may exit or enter the pool of drivers who render the service at will.
Are Uber drivers economically dependent on Uber? The Time survey study found that only a “small percentage” of home-sharing and ride app users derived 100% of their income from the app. For half of the respondents, the app only accounted for 20% of their income.
These statistics might, however, change for SA, as its economy is vastly different, and home-sharing apps are not prevalent in the country. Uber is used, at least abroad, as a means of supplementary income, and is rarely the main or sole source of income.
In this regard, Uber drivers func- tion much like traditional independent contractors, who are entitled to take more lucrative work when it is offered.
Should Uber drivers receive less than R205,433.30 per annum, they will be presumed to be employees should certain factors be present, such as that the driver works more than 40 hours per week or the driver is provided with a car by Uber.
It will also have to be proven that Uber is not an elaborate scheme to ensure that labour laws do not apply to its drivers. The judgment in Building Bargaining Council (Southern & Eastern Cape) v Melmons Cabinets CC (2001) 22 ILJ 120 (LC) indicated that in such circumstances, the person will be considered an employee.
From the above and particularly if the dominant impression test is applied, it seems that, on the face of it, Uber drivers will not be considered employees in terms of South African law. Uber does not have enough control over drivers and Uber drivers are, mostly, not solely economically dependent on Uber.
Uber drivers do not, in real terms, place their productive capacity at the “beck and call” of Uber. If Uber drivers are not considered to be employees, they will not receive unfair labour practice and dismissal protections, UIF and a number of other statutory benefits and protections.
However, those Uber drivers who are solely economically dependent on Uber for income may have a better chance of proving that they are employees of Uber. Those drivers would then not only be economically dependent on Uber, but arguably would also form a more permanent part of the organisation, meeting two of the three tests used in determining whether someone is an independent contractor or an employee.
It is ironic that, in a country where the labour laws are often criticised as being draconian and off-putting to investors, Uber drivers may be considered independent contractors, while the opposite view has been adopted in some states of a country such as the US, which is traditionally renowned for the flexibility of its labour markets and its lack of protection of individual employee rights. However, it cannot be assumed with certainty that there will never be a situation where some Uber drivers may be declared by a South African court or arbitrator to be employees.
The courts have developed the definition of employment with a bias towards the protection of employee rights and they may be inclined to do so again. The adoption of the principle is such that even an illegally employed individual is deserving of employment rights, as illustrated in Kylie v CCMA (2010) 31 ILJ 1600 (LAC), which highlights the bias that arises from the fact that the right to fair labour practices is constitutionally enshrined.
Each case will have to be determined on its merits, resulting in a situation where some Uber drivers may be considered employees and others independent contractors.
Uber does not prescribe to its drivers where or when to work. Uber drivers have the freedom to work where and when they want