Argentina: Cabify driver should be registered as an employee

On 31 August 2021, the First Instance Argentine Labour Court ruled on the legal nature of the work relationship between a vehicle driver and a platform company.
It stated that a driver of the platform was misclassified as contactor and therefore, was under an unregistered employment relationship with the company.

The legal status of platform economy workers is a topic of debate in many parts of the world.

In the case "Bolzán, José Luis v. Minieri Saint Beat Guillermo Mariano y otros s. Dismissal", the National Labour Court No. 21 considered the relationship between a driver and the company Cabify.

The defendant company alleged that there was no employment relationship between the parties under a relationship of dependence, but that there was a contractual relationship, whereby the plaintiff provided services to the defendant.

However, the Court directly applied the presumption provided for in article 23 of the Labour Contract Act in cases of provision of a service in favour of another. In this regard, the judgement states that: "it should be noted that the Labour Contract Act (Act No. 20,744, LCA) presumes that there is a dependent employment relationship by the mere fact of providing services for another (Art. 23), unless the contrary is proven.”

In this case, the Argentinian First Instance Labour Court considered that even though the driver used his own car, he was performing the company’s business activity and that the company was unable to rebut the legal presumption provided by Section 23. The Court also ruled that said presumption also applies even if a services agreement was put in place and even if the individual issue invoices, by virtue of the principle that substance prevails over the form.

The legal qualification of the relationship depends on the specific modalities in which the services must be provided rather than on formal postulates contained in instruments, even when these have been signed by the parties.

These circumstances led the Argentine Labour Court to conclude that plaintiff was entitled to claim his registration as employee and to consider himself dismissed in constructive basis and therefore, was entitled to collect severance compensation for dismissal, salary differences (13th salary and paid vacations), as well as labour fines provided in favour of the employee for defective registration of employment.