What makes the class action lawsuit against Uber South Africa different

Law firms from the UK and South Africa have partnered to bring a class action lawsuit against Uber on behalf of drivers in South Africa.

The lawsuit is being prepared by Mbuyisa Moleele Attorneys with assistance from Leigh Day and argues that drivers entitled to the same rights as employees under South African legislation.

These rights include compensation for overtime and holiday pay.

Leigh Day was the law firm that won a similar case in the UK, with that country’s Supreme Court ruling that Uber drivers should be legally classified as workers rather than independent contractors.

Estimates suggest that there are between 12,000 to 20,000 drivers in South Africa using the Uber app who will be covered by the lawsuit.

In response to the announcement of a class action lawsuit in South Africa, Uber said the vast majority of the drivers who use the Uber app want to work independently.

It added that at a time when more jobs are needed, they believe Uber and other platforms can be a bridge to a sustainable economic recovery.

“Uber has already produced thousands of sustainable economic opportunities,” it said.

“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.”

Employees vs workers vs contractors

While the two law firms may pursue a similar argument to that which resulted in the UK Supreme Court ruling, this may not be as applicable to South Africa.

This is according to Webber Wentzel, which published a statement illustrating the potential effects of South Africa’s operating environment on the argument over drivers’ employment status.

“Uber classifies its drivers as independent contractors in their terms and conditions of service,” the law firm said.

“This means that Uber drivers typically are not entitled to the statutory protections afforded to employees in the various countries in which Uber operates.”

“In South Africa, this means that drivers may be terminated at will, are not entitled to paid leave and are not subject to restrictions on hours of work,” it added.

A number of other countries have ruled on this subject with varied results; France found that Uber drivers were classified as employees, while the UK classified them as “workers”.

In 2017, the CCMA found that seven Uber drivers who had referred an unfair dismissal dispute to the CCMA were employees of Uber South Africa, but this finding was later overturned by the Labour Court in 2018, which said drivers were not employees of Uber SA as they had failed to prove that they had an employment relationship with the company.

“However, the Labour Court explicitly stated that it was not answering the question whether or not drivers were employees of Uber BV, Uber’s parent company in the Netherlands,” Webber Wentzel noted.

What makes South Africa different

Webber Wentzel noted that while the UK had ruled that drivers were classified as employees, this did not mean that South Africa will follow suit.

“The UK Supreme Court’s findings were based on the reality of the relationship between Uber and its drivers,” the firm said.

“The tests used by the UK Supreme Court correspond to the tests traditionally used by the South African courts to determine whether an individual should be classified as an employee or independent contractor.”

South Africa’s operating environment is different, however, as drivers often do not own the vehicles they are using on the Uber platform.

“SA Uber drivers tend to be drivers rather than driver-partners. Driver-partners own the cars they use, but drivers use a car owned by someone else (i.e. a driver-partner),” Webber Wentzel said.

This means that the employment relationship between the Uber partner and the driver may jeopardise the argument to classify drivers as employees of Uber SA or Uber BV.

“Where partners give instructions to drivers and exert a degree of control over how they carry out their duties, such as by specifying where they operate, the relationship between drivers and partners starts to resemble one of employment, which could weaken a claim that SA Uber drivers are employed by Uber.”

No indication has yet been given as to when the class action lawsuit against Uber will be launched.

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What makes the class action lawsuit against Uber South Africa different