Lagos – The Presiding Judge, National Industrial Court of Nigeria, Lagos Division, His Lordship, Hon. Justice B. B. Kanyip on Tuesday 4th December 2018 in a judgment dismissed suit filed by Oladapo Olatunji and Daniel John (Representing themselves and otherUber and Taxify Drivers in Nigeria in a Class Action) against Uber Technologies System Nigeria Limited and 2 others for being speculative.
The claimants filed this suit on 7th November 2017 by way of an originating summons, which was later amended. By the amended originating summons, the claimants sought among other; A declaration that the claimants and members of their class are employees of the defendant. A declaration that by virtue or nature of the defendant’s control over the claimants and members of their class, they are not meant to be classified as independent contractors. An order mandating the defendant to provide all relevant benefits, including but not limited to health insurance, pensions and other benefits to the claimants and members of their class.
In supporting these reliefs, the claimants posed for determination: Whether or not considering the circumstances of the facts of this case, the claimants and members of their class are independent contractors of the defendant. Whether or not by the interpretation and construction of “worker” under section 91 of the Labour Act, the claimants and members of their class are employees of the defendant.
To the claimants, they commenced work as one of the defendants’ drivers and were periodically given work to do upon which they earned weekly wages which were usually paid every Tuesday. That whenever they carried passengers, the passengers paid directly to the defendants who periodically paid them wages after making all relevant deductions including taxes. That they recently discovered that the defendants never made any pension remittance to any pension funds administrators and so they approached them on same but the defendants denied liability, hence this suit. The argument of the claimants is that they are employees of the defendants. The defendants, however, disagree contending that the claimants are independent contractors.
The case of the 1st and 2nd defendants is that the 1st defendant - Uber Technologies System Nigeria Limited has no contractual relationship with the claimants or any member of the class they purport to represent in this suit. UBER BV (the 2nd defendant), a company incorporated in the Netherlands, is the licensee of the UBER Application, a smart phone mobile application which is owned by UBER Technologies Incorporated.
The Service Agreement specifically provides that it shall not be deemed to create any labour or employment relationship in any manner. The contracts entered into by both Claimants are identical to those entered into by all Customers who have signed up to the use of the UBER Application for their transportation businesses.
That the claimants have not placed before this Court any agreement or contract which portrays them as employees of the 1st defendant. That the claimants and other members of their class are not and should not be considered as employees of the 1st or 2nd defendants and are, therefore, not entitled to employment benefits.
Taxify Technology Nigeria Limited (3rd defendant) submitted that the relationship between the claimants and the 3rd defendant is not an employer-employee relationship, but one where the claimants are independent contractors.
In reply, the claimants submitted that the fact that the word “Independent contractor” is used in the agreement does not necessarily render the Court slavish to such use in the interpretation of the terms of the said agreement to determine the actual status of the claimants.
After careful analysis of all the processes filed, and the submissions of the learned Counsel from both sides. The Court presided by Hon. Justice B. B. Kanyip expressed thus;
“As it is, I reiterate that questions (1), (3) and (4) as posed by the claimants are incompetent and so cannot be considered in this judgment.
“The only valid question posed by the claimants is question (2) i.e. whether or not by the interpretation and construction of “worker” under section 91 of the Labour Act, the claimants and members of their class are employees of the defendant.
“The point from all of this is that the relationship between the parties is determinable based on the facts and on the principle of the primacy of facts.
“The claimants want this Court to rule that they are employees, but supplied insufficient facts and evidence for that determination given the nature of the relationship between the parties.
“On the whole, the claimants did not prove their case. What the claimants put before the Court as their case is nothing but one that is in the main speculative, conjecture, academic and hypothetical.
“In like manner, the instant suit being speculative, conjecture, academic and hypothetical, fails and so is hereby dismissed.