According to the recent CCMA award handed down on 7 July 2017, the answer is YES.
Commissioner Everett in the Western Cape found the following in terms of the Labour Relation Act: Code of Good Practice, who is an employee?
“The real relationship between drivers in South Africa is that Uber SA is the employer. Uber SA appoints them and assists them to obtain the necessary license. Uber SA approves the vehicle they will drive. The relationship between drivers and Uber BV (the Company registered in the Netherlands) is distant and completely anonimised. Uber BV provides the legal contracts, the technology, the collection and payment of monies, but it is Uber SA, the subsidiary and local company, that appoints, approves and controls drivers, and Uber. It is at this point that drivers engage and occasionally negotiate.”
The Commissioner rejected Uber’s argument that the partner is the driver’s employer, or that the rider contracts the driver directly as an independent service provider.
The Commissioner concluded that “I am of the view that in applying the Code of Good Practice, in particular the realities of the relationship test, there is sufficient basis for finding that Uber drivers are employees of Uber SA.”
It is the writer’s view that we have not seen the end of the discussion as to whether Uber SA is the employer and that Uber SA would refer the matter to the Labour Court for review.
The importance of this case is that the form of contract does not necessarily dictate the relationship between the parties and that the CCMA or the Courts will look within the actual workings of the relationship to determine if the person is an independent contractor or employee.
For assistance in Labour Law related matters please contact Tracey Mouton: 041 501 9806 / 082 898 7841 / email@example.com