Uber drivers case: Update
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)  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 Knowing this, it should have withdrawn the dispute and referred afresh against Uber BV.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.