E-hailing and delivery service workers : employees or independent contractors?

Abstract

South-African labour legislation provides comprehensive protection to employees in terms of, amongst others, the Basic Conditions of Employment Act 75 of 1997 and the Labour Relations Act 66 of 1995. Those workers who do not qualify as employees but rather as independent contractors in terms of this legislation are however not protected and can become subject to unfair labour practises. Currently, in terms of their terms of employment as well as the recent Labour Court matter, Uber drivers in South Africa are deemed independent contractors with relation to Uber BV and thus do not enjoy protection under South-African labour law. The Labour Court in this infamous Uber matter particularly stated that this form of work poses a serious challenge for employment conceptions worldwide. Other e-hailing services such as Bolt's employment status under South African labour law and their terms of employment is yet to be determined. The working conditions and employment status of these Bolt drivers have however become an issue of dispute and consequently strike outbreaks have been prevalent particularly in Cape Town this year. Furthermore, food delivery services in South Africa including Mr Delivery and Uber Eats' employment status are unclear and yet to be determined by the courts for it has not been placed under scrutiny to date. The aforementioned delivery service workers per se do not qualify as e-hailing services in terms of the definition - it should be examined whether these persons' nature of employment render them employees of the respective companies or on the other hand independent contractors working for themselves. Further, aside from Uber's position in terms of the recent CCMA (Commission for Conciliation, Mediation and Arbitration) and Labour Court cases, other e-hailing service companies and delivery companies' position of employment status under South African labour law remains uncertain and undetermined. The determination of a person's legal employment status is not a new phenomenon and the courts, over the years, had to determine the employment status of several individuals and groups. To aid in this determination, a number of tests have been developed - these tests are better known as the common law tests which considers several factors in the relationship between the alleged employee and alleged employer. Four common law tests exist but the courts seem to be all at one that none of these tests are to be used in isolation. Further, legislation which also try to aid in the determination have been developed and regulations have been issued in this regard. This research paper will investigate the various common law tests and the legislation available pertaining to the determination of a person's legal employment status in South Africa. The Code of Good Practice: Who is an employee? and the recommendation issued by the International Labour Organisation relating hereto will also be evaluated. The Uber cases in the CCMA and the Labour Court, as mentioned above, will then be discussed and evaluated in depth to demonstrate how the above instruments are implemented by the courts in practice. Further, the terms and conditions that persons agree to, to work under the e-hailing service Bolt and the food delivery service Uber Eats, will be discussed whereafter it will be applied to the various instruments in a bid to determine their true legal employment status.