Law firms from the UK and South Africa have partnered to create a Class action 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 have the same rights as workers under South African law.
These rights include compensation for overtime and vacation pay.
Leigh Day was the law firm that won a similar case in the UK. That country’s Supreme Court ruled that Uber drivers should be legally classified as workers rather than independent contractors.
It is estimated that there are between 12,000 and 20,000 drivers using the Uber app in South Africa who will be affected by the lawsuit.
In response to the announcement of a class action lawsuit in South Africa, Uber said the vast majority of drivers using the Uber app want to work independently.
At a time when more jobs are needed, they believe Uber and other platforms can be a bridge to sustainable economic recovery.
“Uber has already created thousands of sustainable economic opportunities,” it said.
“This is a testament to the appeal of the Uber business model, which gives drivers an independent status and allows them to develop and expand their businesses according to their needs and schedules, as well as their business skills and plans, and to carry out all economic activities of their business Choice.”
Employees versus workers versus contractors
While the two law firms may make a similar argument to the UK Supreme Court ruling, South Africa may not.
This comes from the point of view of Webber Wentzel, who published a statement outlining the possible impact of the South African operating environment on the argument about the employment status of drivers.
“This means that Uber drivers are generally not entitled to any legal protection for employees in the different countries in which Uber operates.”
“In South Africa this means that drivers can be terminated at will, are not entitled to paid vacation and are not subject to any working time restrictions,” he added.
A number of other countries have made decisions on this issue with varying results. France noted that Uber drivers were classified as workers, while the UK classified them as “workers”.
In 2017, the CCMA found that seven Uber drivers who referred an unjustified layoff dispute to the CCMA were employees of Uber South Africa. However, that finding was later overturned by the Labor Court in 2018 that the drivers were not employees of Uber SA as they had not proven that they had an employment relationship with the company.
“However, the Labor Court specifically stated that it did not answer the question of whether or not drivers were employees of Uber BV, Uber’s parent company in the Netherlands,” noted Webber Wentzel.
What is South Africa doing differently?
Webber Wentzel noted that while the UK had decided that drivers should be classified as employees, this does not mean that South Africa will follow suit.
“The UK Supreme Court findings were based on the reality of the relationship between Uber and its drivers,” the company said.
“The tests used by the UK Supreme Court are the same as the tests traditionally used by the South African courts to determine whether a person should be classified as an employee or an independent contractor.”
However, the operating environment in South Africa is different as drivers often do not own the vehicles they use on the Uber platform.
“SA Uber drivers are more like drivers than driver-partners. Driver-partners own the cars they use, but drivers use a car that belongs to someone else (ie a driver-partner), ”said Webber Wentzel.
This means that the employment relationship between the Uber partner and the driver can jeopardize the argument to classify drivers as employees of Uber SA or Uber BV.
“When partners give instructions to drivers and have some control over how they do their jobs, e.g. For example, by indicating where they work, the relationship between drivers and partners resembles an employment relationship, which could undermine SA Uber’s claim that drivers are employed by Uber. “
No indication has yet been given of when the class action lawsuit against Uber will be initiated.