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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.

Is an automatic termination clause in an Labour
employment contract valid?

June 2017

“I’ve been appointed by a security company as a security
officer. I did not disclose the fact that there is a pending
criminal charge against me, because I have not been found
guilty yet. However, the company picked up the pending
charge and has now dismissed me based on a clause in my
contract which states that my appointment is subject to me
receiving a positive background screening result. Can they
just do this?”

The type of clause which you mention as being included in your
employment contract is typically referred to as an “automatic termination
clause.” The validity of such a clause depends on whether it prevents
an employee from exercising any right conferred on an employee by
the Labour Relations Act, including for example, any limitation of an
employee’s right of protection against unfair dismissal.

It must be understood that an employer may not include a contractual
clause in an employment agreement which prevents an employee from
relying on his right not to be unfairly dismissed or limits the right of the
employee to challenge such dismissal. That said, it is not illegal for an
employer to require fulfilment of a specific condition before employment

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