Re-evaluating the employment status of uber drivers in South Africa : lessons from the United Kingdom and New Zealand

Abstract

South Africa (SA), like the United Kingdom (UK) and New Zealand (NZ), makes use of the services of Uber, which is a taxi or transportation service that connects the transport provider and passengers via a mobile application. Uber has defined itself as a technology company, as opposed to a transportation company, to avoid attracting employer status. In 2018 the Labour Court (LC) in SA was called upon to determine whether Uber drivers are independent contractors or employees. The definition is vital because employee status confers legislative protection, such as the right not to be unfairly dismissed. Somewhat surprisingly, the LC failed to come to the aid of the drivers, despite the Commission for Conciliation, Mediation and Arbitration (CCMA) affording them employee status. The UK and NZ similarly had to contend with disputes from Uber drivers. In the UK, the Supreme Court (SC) confirmed the findings of the Employment Tribunal, affording the drivers worker status. The Employment Court in NZ similarly declared drivers as employees. Considering the growth in the use of Uber and the growing traction of other forms of platform work, this article seeks to critically evaluate the South African position, considering the recent decisions in the UK and NZ.