An appraisal of the status of uber drivers in South African labour law

Abstract

The South African labour dispensation is straddling between the common law and the ever-changing employment relationships. The narrative is demonstrated by the emerging business model of Uber, which has changed the labour market globally and taps into the fabric of employment law. The major concern that came with the Uber business model was its implication in the labour market which makes it difficult to determine the existence of employment relationship between Uber and its drivers. It has been argued in various jurisdictions, including the UK and the US, that Uber does not employ its drivers or either owns any vehicles and this make its drivers independent contractors. This has been rejected and the courts have concluded that drivers render their services to Uber and not to themselves and this make Uber to be their employer. This dissertation seeks to asses an appraisal status of the Uber drivers in the South African labour law context. The definition of employee as provided for under section 213 of the Labour Relations Act, 1995 only applies to persons who are defined as “employees”. This definition is characterized by the common-law contract of employment despite the fact that there is a shift to employment relationships, which is guided by the facts, and not by the form given to it by the parties. The definition of “worker” as preferred in the UK and that of “employee” used in the US is broader to be inclusive to address the question of legal status of Uber drivers under this technological era. The classification and treatment of Uber drivers as employee should enable them to have access to other employment benefits and social security that will enable them to provide for their families.