'The People v Uber' has a nice ring to it. Especially when a California judge ends up ordering Uber to start treating drivers as employees and not independent contractors. Uber has since threatened to shut down in California.
Our rival online publication, ahead by only a few more readers, Business Day, has started to explore what last week's Uber judgment in the United State means for South African drivers: https://www.businesslive.co.za/bd/companies/2020-08-12-ride-hailing-jobs-could-be-next-source-of-labour-unrest-in-sa/
Looking for indicators locally
Of course, legally, the California Uber judgment means nothing. A South African court may consider judgments from foreign courts, but is not bound by them.
We would say that it is more instructive to look to our own context, already rich with material to consider for a future Uber-employment battle.
(Sorry! If you are just here for the song, please scroll to the bottom of this post.)
A Labour Appeal Court case on owner-drivers
First, a case involving owner-drivers was decided by our Labour Appeal Court at the end of 2014, just as Uber was establishing itself. The case is called Phaka v Bracks NO. Mr Phaka was one of the drivers.
The circumstances of engagement in that case were slightly different from those of Uber drivers: Mr Phaka and the other drivers were once employed by a courier company that, in the 1980s, embarked on an empowerment programme in which drivers would resign from employment, the courier company would help them purchase their own cars, and they would continue performing the same duties. They became known as ‘owner-drivers’.
In alleging that they were still the courier company's employees, the drivers in Phaka v Bracks explained that the entire way in which they worked was regulated by the courier company, including their delivery times, having to wear uniforms, their vehicles requirements and the limitations on their vehicle use during office hours. The drivers even explained that because of the way their work was structured, they could only work for the courier company, and were therefore economically dependent on it.
In South African law, there is no single factor that decides if someone is an employee or not. Instead, the court decides the question based on the 'dominant impression' created by a range of factors. Two of those factors are whether the alleged employees are controlled by a company, and whether they are economically dependent on a company.
The Labour Appeal Court accepted that there was control, but it reasoned that this control was ‘intrinsic to the nature of the services to be performed by the [courier] company’ for its clients. As for economic dependence, the court emphasised that there was no express limitation on the owner-drivers taking on other work in their written contracts with the courier company.
We would characterise the court's emphasis on the contractual relationship as a 'common law' approach, and therefore not one that we agree with.
To explain: Most labour lawyers, shudder at a common law approach, which we believe is formalistic and often results in unfair outcomes. Supreme Court of Appeal judge, Malcolm Wallis noted as much when he said that 'being asked to speak to a group of labour lawyers on the common law is akin to being invited to sample the delights of a hornets' nest.' *
An actual Uber case!
Uber drivers did try to be declared employees of Uber between 2017 and 2018! The case was Uber SA v NUPSAW.
However, the workers were defeated by the complicated web of multinational corporate arrangements.
The workers' failure to understand the web (no-one would) led to them citing Uber SA (local Uber) as their alleged employer, when their vehicles were in fact registered with Uber BV (Netherlands Uber). They were kicked out of court because, in law, they should have brought their case against Uber BV.
Whether you agree with the judgments or not, they give an indication that there will be so much more to an Uber case in South Africa than one US judgment in favour of Uber drivers. A South African court will have to engage in the unpleasant act of trying to balance statutory law, contracts, economic development and fairness. ** And the workers will have a complex corporate web to untangle.
* Judge Wallis' lecture was published by UWC and we are working through it as we try to address our knee-jerk hostility towards the common law: http://www.saflii.org/za/journals/LDD/2005/13.pdf.
** We are not being conservative, this is what the law states: The Labour Relations Act explicitly lists 'advancing economic development' as its first purpose, before social justice, and so a judge does consider this among many other things when making a decision.
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