Uber goes to court to set aside CCMA ruling

Are Uber drivers employees or contractors? The Commission for Conciliation, Mediation and Arbitration (CCMA) and Uber don’t agree on the matter so Uber is going to court to challenge this week’s CCMA ruling that seven of its deactivated “driver partners” are in fact workers.

The ruling was welcomed by a drivers’ lobby group called The Movement, but Uber said yesterday it would seek a review of the ruling in the Labour Court.

It added that in the meantime the finding would only apply to the seven individuals in question. The group of Uber drivers want to be recognised as employees, as they are battling with safety issues due to the constant tension within the metered taxi industry.

The drivers told The Citizen they felt unsafe as they are not able to identify the rider they are fetching – and vehicle hijacking is a concern.

Uber said: “There is a long legal challenge ahead before this ruling can be considered a win, or a loss for any side.

“This provides an important opportunity for all sides to examine the role of independent contractors in an increasingly digital age, and specifically where small, midsize and large business owners rely on technology-enabled services to grow their independently operated companies.

“Thousands of South Africans choose to use Uber and other similar apps to provide transport services to passengers because they are totally free to choose if, when and where they drive with no shifts or minimum hours.

“The vast majority of drivers who use Uber tell us it is because of this freedom and flexibility that they signed up to use the Uber app.”

But according to the CCMA ruling, the drivers are subject to Uber’s control. While they can choose their work hours and can accept, decline or ignore a request, Uber controls the manner in which they work by setting “clear standards and performance requirements”.

“This is contained in the deactivation policy. Uber has control in that it may suspend and deactivate access to the app, thereby depriving the driver of the opportunity to work and earn an income.

“Even though there is no direct or physical supervision, control is exercised through technology, to the point that even the movement of a cellphone can be detected, indicating reckless driving.”

Uber had argued that partners control their drivers, the CCMA said.

Accordingly, the constitution provides that everyone has the right to fair labour practices.

“Promotion of social justice involves the balancing of power between those with resources and those in a weaker position.

It involves protecting the rights of the weak and making it accessible to them to enforce their rights. An interpretation promoting social justice must favour the drivers, who are in a considerably weaker position compared to Uber.

“Uber retains control over the particular performance of each driver and it has the ultimate power to deactivate a driver, thereby depriving him or her of the opportunity to work.” – yadhanaj@citizen.co.za