False start for Uber drivers’ employee claim

A potential watershed case to recognise Uber drivers as employees got quashed in the labour court earlier this month, with none of the merits tested.

The drivers are now mulling an appeal – or a brand-new case via the Commission for Conciliation, Mediation and Arbitration (CCMA) for which the groundwork had already been laid.

Omar Parker, the drivers’ current representative from the National Union of Public Service and Allied Workers (Nupsaw), said they were “still weighing their options” and consulting their lawyers on the best way forward.

The case was the first local legal challenge to the “gig economy” model of work, which most unions and workers’ advocates consider just another way to erode labour rights.

In an unsparing judgment, labour court judge Andre van Niekerk lambasted the SA Transport and Allied Workers’ Union (Satawu), which initially represented the drivers before they jumped ship to Nupsaw.

The union’s apparent inattentiveness “materially contributed to the present outcome”, said the judge.

The crux of the judgment is that the drivers were wrong to press their claims against Uber’s local subsidiary, Uber SA Technologies (Uber SA), instead of Uber BV, the Dutch company that owns and operates the taxi app.

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Uber itself had told them as much as far back as 2016 when the original series of referrals landed at the CCMA. Satawu represented the drivers at the time and evidently ignored this, it turns out, correct assertion from Uber.

The drivers were all “deactivated” on the Uber app and wanted to be considered employees in order to pursue unfair dismissal claims.

CCMA commissioner Winnie Everett made a controversial ruling in July 2017 that Uber SA was in fact the employer of the drivers.

Employees or partners? 

Van Niekerk has mercilessly knocked this ruling down, saying Uber SA, the local subsidiary through which Uber screens “partners”, is obviously not the employer of the Uber drivers.

When Nupsaw got involved in March 2017, it tried to join Uber BV as a respondent, but the CCMA commissioner refused. “Each of the building blocks of the drivers’ case pertains to Uber BV and not Uber SA,” said Van Niekerk.

“While it might appear to the drivers this application ultimately turns on a technicality, it is a technicality which, given the history of this dispute, is of some significance and of which their representatives at the time were fully aware,” said Van Niekerk.

“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,” said the judge.

Van Niekerk made it clear that the question of Uber drivers being employees is still unanswered. “It warrants mention (and emphasis) that this judgment does no more than conclude that, on the facts, the drivers were not employees of Uber SA … Whether the drivers are employees of Uber BV, or whether they are independent contractors of Uber BV, is a matter that remains for decision,” he said.

According to Parker it is immaterial which part of the Uber group is the employer “as long as we can tie down an employer in a employment relationship with the guys in South Africa”.