GIG ECONOMY LITIGATION DATABASE
Uber South Africa Technology Services (Pty) Ltd v National Union of Public Service and Allied Workers (NUPSAW) (2018)
Citation/case number: [2018] ZALCCT 1
Country: South Africa
Year: 2018
Court: Labour Court (Cape Town)
Status: Determined
Topic/theme: Employment relationship
Issue: Unfair dismissal
Claimant type: Trade union
Respondent type: Corporation
Legislation considered: Labour Relations Act, 66 of 1995 (ZA), s 213
Factual background and procedural history
The claimants (and third to tenth respondents in this appeal) were individuals performing work as drivers for Uber. Each filed separate claims with the Commission for Conciliation, Mediation and Arbitration for unfair dismissal after their access to the Uber platform was deactivated. In response to these claims, Uber filed an application with the Commission challenging its jurisdiction to arbitrate the unfair dismissal disputes. The basis for this jurisdictional challenge was that the claimants were not properly considered employees of either Uber SA or its parent company, Uber BV, within the meaning of section 213 of the Labour Relations Act 66 of 1995 (ZA).
On 7 July 2017, following an earlier refusal to join Uber BV to the proceeding, the Commissioner ruled that the drivers were employees of Uber SA after applying what was referred to as the "realities of the relationship" test. As such, the Commissioner concluded that the Commission had jurisdiction to determine the unfair dismissal disputes referred by the claimants. Uber subsequently appealed to the Labour Court for review of the Commissioner's jurisdictional ruling.
Key issue for determination
(1) Were the claimants "employees" of Uber SA within the meaning of section 213 of the Labour Relations Act?
Finding
The court set aside the Commissioner's ruling, holding that it had disregarded the nature, extent and significance of the material distinction between Uber SA and Uber BV, its parent company, with the effect that the two entities had been improperly conflated. Having dismissed the claimants' application to join Uber BV to the proceeding, the Commissioner was required to distinguish between Uber SA and Uber BV as discrete legal entities and approach the determination by considering whether the claimants were employees of Uber SA only. This approach was not adopted, and therefore the Commissioner's decision was incorrect.
The court further found that, had this distinction between correctly maintained, the Commissioner would necessarily have reached the conclusion that the claimants had failed to discharge the onus they bore to establish the existence of an employment relationship with Uber SA. The facts before the Commissioner disclosed that Uber SA did no more than provide administrative and marketing support to Uber BV. In so finding, the court emphasised that it was making no determination as to whether the claimants were employees or independent contractors of Uber BV, as the question did not arise on the appeal nor before the Commissioner (at [98]).
Accordingly, the court elected to set aside the Commissioner's decision and substituted it with a finding that the claimants were not "employees" of Uber SA within the meaning of section 213 of the Labour Relations Act, and therefore the Commission had no jurisdiction to arbitrate disputes relating to their alleged unfair dismissal (at [99]-[102]).
Outcome
The court held that the claimants were not "employees" of Uber SA within the meaning of section 213 of the Labour Relations Act and were therefore not entitled to protection against unfair dismissal.
