Uber drivers case: Up­date

Daily Dispatch - - BUSINESS - 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 [email protected]­patch.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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