Uber’s chain of authority challenged

Uber drivers have accused the taxi giant of intentionally disguising its corporate structure to undermine their case to be considered “employees”.

This week, drivers filed answering papers in the Labour Court in Johannesburg against Uber’s application to review a potentially watershed ruling by the Commission for Conciliation, Mediation and Arbitration (CCMA), made in July.

The ruling declared “deactivated” Uber drivers to be employees who could pursue unfair dismissal complaints.

Omar Parker, the drivers’ representative from the National Union of Public Service and Allied Workers, claims that the company has flooded the court with mostly irrelevant papers.

Uber’s review application relies largely on a seemingly small point: that the drivers’ contracts are on paper with Uber BV, the company’s Netherlands-based holding company, and not with the local subsidiary, Uber SA Technological Services.

The drivers took the local subsidiary, which is the only part of the company they have ever interacted with, to the CCMA.

Even if the court found the drivers were employees, they would be employees of the Dutch company and the CCMA would not have jurisdiction, the taxi giant argued.

Parker accuses Uber of overstating the importance of the distinction and, in any case, making it impossible for the drivers and their representatives to actually understand the corporate structure of the company.

All the Uber companies worldwide were ultimately part of the US-based Uber Technologies anyway, said Parker, and “corporate arrangements should never be used cynically to deprive workers of protections”.

One of the union’s pleas to the court is to force Uber to reveal its full corporate structure.

“It matters not which part of the Uber corporate structure licenses the app or processes the credit cards,” said Parker.

“If the drivers are employees, then the applicant is their employer. This conclusion can be reached by a number of routes.”

Another Uber argument is that most drivers do not own cars but drive on behalf of Uber partners, which often own entire fleets. If anyone is the employer, it is these partners, the company argued.

The drivers say these partners would, at most, be co-employers with joint and severable liability – because Uber still set rates and held the power to “fire” them from the app.

“It cannot be argued that, because its business is not organised in accordance with a particular regulatory regime, such regime cannot be applied lest the consequences be ‘dire’,” said Parker.