Daily Dispatch

Uber drivers case: Update

- Jonathan Goldberg Jonathan Goldberg – CEO of Global Business Solutions. In this weekly column, labour lawyer Goldberg looks at various aspects of labour law. Readers can e-mail questions to news@dispatch.co.za.

THE future of work creates different forms of employment. However, our law does not cater for such types of employment. Uber provides one such futuristic form of employment right now. In an attempt to gain protection under South African labour laws, Uber drivers – in the case of Uber South Africa Technology Services (Pty) Ltd v National Union of Public Service and Allied Workers (Nupsaw) and Others (C449/17) [2018] ZALCCT 1 (12 January 2018) – took the company to court. Here is an update on this matter. Background to the case:

● Eight Uber drivers claimed that they were dismissed after their accounts were deactivate­d on the Uber app. These individual­s referred a dispute to the Commission for Conciliati­on, Mediate and Arbitratio­n (CCMA).

● At the CCMA, a jurisdicti­onal point was raised that the drivers are not employees. The Commission­er found that the CCMA did have jurisdicti­on to deal with the matter and that the drivers are employees of Uber SA.

The effect of this ruling was that it opened the door for Uber drivers to institute unfair dismissal claims against Uber.

● Uber SA took the ruling on review to the Labour Court (LC). The LC held that the drivers should have aimed their case at the internatio­nal company, Uber BV. It stated that: “Each of the building blocks of the drivers’ case pertains to Uber BV and not Uber SA.”

● The LC found that, on the facts that were served before the Commission­er, the Commission­er made a mistake by failing to distinguis­h between Uber SA and Uber BV as distinct legal entities, as there was no dispute of fact on these issues between the parties.

● The LC was also critical of Satawu [SA Transport and Allied Workers Union] as the union was aware of the distinctio­n between Uber SA and Uber BV. Knowing this, it should have withdrawn the dispute and referred afresh against Uber BV.

The LC held that: “The fact that those representa­tives [and I refer specifical­ly to Satawu] conducted the matter in the way they did has materially contribute­d to the present outcome”, which was to dismiss the case. The court ultimately upheld Uber SA’s objection to the jurisdicti­onal ruling and dismissed the drivers’ case.

● While the ruling was overturned, the court noted that the judgment does no more than conclude that, on the facts, the drivers were not employees of Uber SA, and that they therefore have no right to refer an unfair dismissal dispute to the CCMA against Uber SA.

What the future will hold for Uber drivers and other forms of future work will be decided on at further forums. Legislatio­n frameworks must adapt.

A resignatio­n is a one-way act. The employer does not have to accept it and the employer can refuse to allow to withdraw such.

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