• Drivers who work with the e-hailing app, Uber, are recognised as self-employed independent contractors and have limited rights.
  • A team of local lawyers, supported by a London firm which recently won a landmark case against Uber in the UK, has filed a class action lawsuit against Uber in South Africa.
  • They want Uber drivers to be identified as employees and be afforded rights through the Labour Relations Act and the Basic Conditions of Employment act.
  • While compensation for unpaid overtime and holiday pay form part of the suit, Uber drivers’ inability to access government-offered financial relief during the height of the pandemic has been listed as a major concern.
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Uber drivers in South Africa, supported by a team of human rights lawyers, are preparing a class action lawsuit to be heard in the Johannesburg Labour Court. The legal action, levelled against Uber SA and Uber Besloten Vennootschap (BV), the Netherlands-based company which owns and operates the e-hailing application, aims to have drivers recognised as employers: a classification which could have afforded them financial relief during the worst of the pandemic.
Emboldened by a recent ruling by the UK Supreme Court – which reclassified some Uber drivers as workers, not independent contractors – Mbuyisa Moleele Attorneys, based in Johannesburg, seek similar recourse for drivers in South Africa. The South African law firm will be supported by Leigh Day, the firm which successfully forced the recent reclassification ordered by the UK Supreme Court.
And while the UK’s case provides legal ammunition for drivers in South Africa, it’s important to note the differences in law, whereby “workers”, as identified by the UK Supreme Court, are not the same as “employees”. The local lawsuit wants drivers to be recognised as Uber employees and be entitled to rights afforded by the Labour Relations Act and the Basic Conditions of Employment act.
This means they will have rights like being paid for overtime and holiday work. Uber drivers in South Africa are currently listed as self-employed independent contractors.
This legal debate has raged across Europe and America, with the UK’s Supreme Court verdict being the latest in a string of labour law developments concerning Uber. In South Africa, this question has already been entertained by the Commission for Conciliation, Mediation and Arbitration and the Labour Court.
The former ruled that drivers were employees of Uber, while, on appeal, the Labour Court overturned this definition, albeit on a technicality, due to the applicants failing to file their complaints with Uber BV.
To date, the question of employee versus independent contractor still remains unanswered in South Africa.
Against the backdrop of the Covid-19 pandemic and its devastating economic impact, the definitive answer to this burning question has become more critical, says Mbuyisa Moleele partner, Zanele Mbuyisa.
In a report last year, the Competition Commission found in a report that some Uber drivers earned less than minimum wage, Mbuyisa points out, adding that drivers are forced to split their earnings with the owners of the vehicles they use to ferry passengers.
The pandemic and associated lockdowns drastically reduced the ability of Uber drivers to earn an income, and exposed another shortcoming of the independent contractor classification.
If Uber drivers were considered employees, they would have had access to the Temporary Employer/Employee Relief Scheme (TERS), Mbuyisa said. TERS paid close to R60 billion to more than 4.5 million workers.
“The TERS payments would’ve gone a long way for those drivers in the middle of a pandemic when there was no source of income. They were struggling pre-Covid, and now, even though tourism and travelling is back, it’s not at the capacity they were used to.”
It’s estimated that there are between 12,000 to 20,000 Uber drivers in South Africa, most of whom, Uber admits, use the mobile applications as a source of full-time work. In response to the class action lawsuit, Uber SA argues that most drivers prefer working as independent contractors.
“The vast majority of drivers who use the Uber app say they want to work independently,” says an Uber SA spokesperson when speaking to Business Insider South Africa.
“At a time when we need more jobs, not fewer, we believe Uber and other platforms can be a bridge to a sustainable economic recovery.”