This is a good question and one not so easy to answer. In South Africa, our labour laws provide for the following test to help determine whether someone is an independent contractor or an employee.
A person who works for, or renders services to, any other person is presumed, until the contrary is proven, to be an employee, regardless of the form of the contract, if any one or more of the following factors is present:
|•||The manner in which the person works is subject to the control or direction of another person;|
|•||the person’s hours of work are subject to the control or direction of another person;|
|•||in the case of a person who works for an organisation, the person is a part of that organisation;|
|•||the person has worked for that other person for an average of at least 40 hours per month over the last three months;|
|•||the person is economically dependent on the other person for whom that person works or renders services;|
|•||the person is provided with tools of trade or work equipment by the other person; or|
|•||the person only works for or renders services to one person.|
This presumption does not apply to a person who earns more than the threshold determined by the Minister of Labour, currently set at R205 433.30 per annum. Where a person does earn above this threshold, the factors may however still be used as a guide to establish whether the person is an employee or not.
The presumption that an employment relationship exists if one of these factors are present will apply regardless of what the contract may say regarding the relationship. This means that all the evidence must be considered to determine what the actual nature of the relationship is.
In a recent CCMA case widely reported in the media, the CCMA found that Uber drivers do qualify as employees of Uber and are therefore protected by our labour laws as employees. The CCMA held that not only were drivers provided with the Uber technology platform as a tool of the trade, but they were also subject to Uber’s performance requirements and standards, thereby falling under the control of Uber.
For the moment, it seems that Uber drivers are seen as employees and not independent contractors. One will however have to see whether Uber appeals the decision, and if such appeal leads to a different finding. The CCMA decision does align with decisions in other countries where Uber drivers have also been seen to be employees of Uber. Time will tell whether this position will remain to be the case also in South Africa.
This article was first published in Phatshoane Henney Attorneys October 2017 newsletter