Uber has been in the news of late thanks to the UK’s Supreme Court ruling in February that Uber UK grant drivers basic employment protection. The win will give 70,000 drivers access to holiday pay, a pension scheme and will be entitled to be paid at least the national living wage. It was not however extended to Uber Eats drivers. And nor does the same apply at home.
Making a case
A large part of the ever-growing gig economy – which refers to those who choose to work as independent contractors rather than employees – local Uber drivers are caught between a rock and a hard place when it comes to labour disputes. While cases of drivers attempting to take their employers to court exist for circumstances such as being “deactivated” (Uber South Africa Technology Services (Pty) Ltd v NUPSAW and Others  4 BLLR 399 (LC)), the case went nowhere and few similar cases have been attempted since…..until now: London-based law firm Leigh Day and Johannesburg-based Mbuyisa Moleele recently announced plans to introduce a class action lawsuit against Uber Netherlands, or Uber BV as its otherwise known, and Uber SA. Leigh Day is the same lawyer who represented the UK Uber drivers.
“The collaboration between an international and local law firm is extremely welcome as South African Uber drivers have been hampered in getting the correct cases to court,” comments Justine Del Monte, Labour and Employment Law at Reynolds Attorneys, a boutique firm operating in Cape Town. “Class actions have started to become popular locally. It’s a US system typically and is welcome because litigation is so expensive,” says Del Monte. “But so far we do not have a precedent on which to base an Uber case.”
No contract and not being present in country
She says the reason for this is simple to explain but complex to implement. This as it is not always clear who the employer is: South African Uber drivers are contracted to Uber BV – the HQ of the Uber brand around the world – not Uber SA, which one would naturally assume, gig economy member or not.
“Uber drivers contract to Uber BV, but any physical contact is with Uber SA. There is no contract with Uber SA. Given this, if a case is brought to our local courts, as happened in 2017 with the NUPSAW case, it is Uber BV that needs to be a party and present in these proceedings as that is where the contractual relationship actually lies i.e. they are the “employer”. But, and here is the bizarre part, there may still be a jurisdictional challenge as to whether a South African court can make an order based on South African law when the contracting party is in the Netherlands and the contract concluded with the Uber driver states that disputes are subject to arbitration in the Netherlands. Of course, getting an Uber driver to travel to Amsterdam to instruct Dutch lawyers to bring a claim there is highly improbable, financially and practically, and so we find ourselves in a situation where our local courts cannot help, even if they want to, as there is yet to be a local precedent on which to base a case.
“Give us another 5 or so years, and we’ll have plenty of case precedents as courts get the facts through, and as we catch up to the growing gig economy,’ says Del Monte. “But for now there is nothing concrete to base this on.”
Uber SA doing their bit
Following the UK win for Uber drivers, Uber South Africa has responded to questions regarding local drivers’ rights saying, “We’ve made significant changes to our app to ensure we support [our drivers] including through Partner Injury Protection, new safety features and access to quality and affordable private healthcare cover for drivers and their families. This is testament to the appeal of the Uber business model which provides drivers with an independent status while allowing them to develop and expand their businesses following their needs and time schedules, as well as their business skills and plans, and pursue any economic activities of their choice.”
Who owns the car compounds the problem
While this is all commendable, and is absolutely the way the gig economy works, issues come in when the Uber car belongs to someone other than the driver. This as a contractual agreement is made between the car owner and the driver, not with Uber.
“In developing nations like ours, most Uber drivers do not own the vehicle. Somewhat paradoxically, this is a better position to be in, in some ways, as Uber drivers can more easily make a case against an “employer” who resides in South Africa, but then they do not access any benefits Uber SA offers drivers who own their own cars.
“Given the 30% unemployment rate in this country, the majority of drivers will take the job, sometimes out of desperation, despite the downsides just to earn some form of income. As we know they only get a percentage of the percentage of the ride’s fares, once the car owner and Uber BV has been paid. The tips may even not all go to the driver, it depends on what the contractual agreement is between car owner and driver,” says Del Monte.
Precedent needed for Uber drivers to receive more “employee” benefits
At the time of writing, this story does not have a happy ending. Our local Uber drivers are not tone deaf to what is going on across the pond, and many wonder why the same benefits cannot be given to local drivers, when they all – they assume – work for Uber, the brand. “If we refer back to the NUPSAW case, which was initiated by trade unions and was completed pro bono by the lawyers, it was ready to go to the CCMA, yet it went nowhere because the dispute had not been referred against the correct party. Only Uber SA was party to this dispute and not Uber BV, which is where the problem arose. Subsequent cases have resulted in similar outcomes with the result that we still do not have a decision from the Labour Court as to whether or not South African Uber drivers are employees or independent contractors.
“People need to bring more of these cases forward, like Leigh Day and Mbuyisa Moleele, in order to set a precedent. Until then, Uber drivers in this country have very little rights and are quite literally caught between the courts,” concludes Del Monte.