The much-debated question of who is an employee is constantly being refined and tackled by the legislator, judges and our arbitrators. Last week, an interesting judgment came out in the UK, ordering that Uber drivers were Uber employees.
Uber is a computer platform and a well-known app and often the drivers feel they are being badly treated by someone. The real question is who is their employer, if at all. Are the drivers independent contractors with no employer, are they employed by an individual who possibly owns the motor vehicle they drive, or is it possible they are employed by the computer app (Uber)?
The questions have been tackled in South Africa and, as advised, Uber is not the employer. There are many circumstances where it can be shown that the motor vehicle owner is the employer. Often the motor vehicle owner demands specific types of service and specific hours. It is not too much of a hurdle to show that, under those circumstances, the owner of the vehicle would qualify as the employer.
Once the owner of the vehicle qualifies as an employer, they are obliged to follow all our labour laws and, in particular, the conditions as laid down by the Basic Conditions of Employment Act and the Labour Relations Act. Obviously, they are also obliged to follow the conditions of service as described by the app and Uber.
There is a move afoot among a group of Uber drivers to challenge the situation and to try to take that impossible leap from employment by the motor vehicle owner to employment by Uber. Who is the employer in those circumstances?
We could compare this application to the application used by people who are renting rooms, houses, cottages and so on. Many people use the application through the internet to rent out accommodation. Once such app is Airbnb which successfully infiltrated the market and has become a means of profit and possible employment.
The owner of the property would, in turn, engage the services of cleaners and other service providers to keep the property in decent condition for the next user. It could be argued the cleaning service is either outsourced to a third party who is the employer or directly engaged by the owner. It is successfully argued direct engagement would mean the cleaner or other service would be employed by the property owner. It is a far stretch of the imagination to argue a cleaner would be employed by Airbnb directly.
Despite this, there are those who argue Airbnb is the ultimate employer and therefore they would be responsible for things such as leave, sick leave, maternity leave and so on. All the rights under the Basic Conditions of Employment Act do create an extra cost for whoever the employer might be.
We are governed in South Africa by various pieces of legislation including the Labour Relations Act, Basic Conditions of Employment Act (BCEA) and the National Minimum Wage Act. The three are also read in conjunction with contracts of employment and other legislation and in certain circumstances with Sectoral Determinations.
It is important to first look at the Basic Conditions of Employment Act where there is a presumption about who is an employee. The presumption contained in Section 83A is vital and must be understood by anyone who engages another to perform work.
Under the BCEA, there are seven sub-sections under Section 1 which would deem a person to be an employee. The legislation talks about a person being subject to the control or direction of another; the person’s hours of work subject to the control or direction of another; the person is part of an organisation; the person works at least 40 hours a month over the past three months; the person is economically dependent on another person; the person is provided with tools of trade by the other person; or the person works or renders services to that person only. Anyone of the above would deem that individual to be an employee of the other.
* Michael Bagraim is a labour lawyer. He can be contacted at michael@bagraims.co.za.
** The views expressed here are not necessarily those of Independent Media.
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