By David Doorey, York University
A gig worker, let’s call her Jane, who also happens to be a labour activist who has publicly pushed for safer working conditions at Yyft and Uber, has been suspended from both companies’ dispatch technology. This story provides a great fact scenario for us to consider some legal issues relating to so-called “gig” workers. In fact, there are several potential legal avenues involved, including a potential violation of Section 50 of the OHSA if the de-activation from the Apps is a reprisal for Jane raising safety concerns, a violation of the Labour Relations Act’s unfair labour practice provisions, and a possible wrongful dismissal action. In this quick post, I want to discuss the latter two scenarios. Just for fun.
The Factual Context
Note first that I am basing my discussion in this post only on the alleged facts that appear in publicly available sources, including from the Twitter account of Gig Workers United (GWU), which is a community union associated with the Canadian Union of Postal Workers. Here’s the story.
Jane has been a driver working for Lyft and Uber for 6 years, with excellent service ratings. She is a member and actively involved with the GWU and she has very publicly advocated for improved working conditions and safer conditions for gig workers. Last week, Jane presented to the Toronto City Council sub-committee on ride-sharing bylaws. She has refused to deliver customers who want to bring children into the car without a car seat, which is unlawful, and has objected to customers who want rides while refusing to wear masks, as is required.
On Nov 13, she was suddenly de-activated from Uber “without notice or valid reason” according to GWU. On Nov. 18, Jane was also de-activated by Lyft, this time after she refused to transport a customer with a child without a child-seat.
Is the De-Activation of Jane from the App a Violation of the Labour Relations Act?
Assuming these facts to be accurate, let’s consider whether Uber and/or Lyft have violated the Labour Relations Act (LRA) of Ontario. Walk through the analysis with me.
Sections 70 and 72 of the LRA prohibit an “employer” from using threats or intimidation to interfere with a union’s representation of a worker and from discriminating or punishing an “employee” because they support a union or have engaged in any activities protected by the LRA. Section 76 prohibits any “person” from using intimidation or coercion to compel any other “person” to stop supporting union or to stop exercising rights under the LRA. Generally these provisions prohibit an employer from discriminating or punishing a worker because they are a union member, support a union, or engage in labour activism as part of their association with the union.
I don’t think that there can be any serious dispute that de-activation from a dispatch service that provides the work constitutes discrimination, coercion, reprisal, and a negative repercussion. The OLRB should have no problem finding that a dispatch service like Uber/Lyft is punishing drivers by kicking them off the dispatch. It’s a form of discipline (or termination if the de-activation is permanent).
The next question is whether that punishment is related to her union activism or union membership. Uber and Lyft would likely argue that the de-activation and Jane’s labour activism are entirely unrelated. All employers make this argument in ULP complaints, obviously. Perhaps the companies can argue that the suspension was done by an algorithm and not an actual person? I don’t know. However, the OLRB can draw adverse inferences from suspicious timing and other facts presented at the hearing.
The LRA creates a reverse onus in these circumstances in Section 96(5), meaning that the companies must prove that they did not de-activate Jane because of her involvement with the union and her activism:
On an inquiry by the Board into a complaint under subsection (4) that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to the person’s employment, opportunity for employment or conditions of employment, the burden of proof that any employer or employers’ organization did not act contrary to this Act lies upon the employer or employers’ organization.
Also working against the companies in this case is the fact that the Board needs only to find that any part of the decision to de-activate Jane was tainted by her involvement with the union, even if there are also other factors that weighed into the decision. The timing of Jane’s presentation to the city by-law’s subcommittee, coming just days before she was de-activated by both companies, sure looks suspicious, and the OLRB does not like suspicious timing in dealing with ULP complaints.
Of course, the other issue is whether the ULP provisions apply at all. Uber/Lyft would probably argue that they are not “employers” of Jane and therefore that the LRA doesn’t apply to them. In other words, the companies might argue that because they are not “employers”, they are perfectly free to terminate and discriminate against drivers for engaging in collective actions, joining unions, and advocating for safer working conditions.
Personally, I would LOVE them to make this argument! Imagine two large foreign corporations arguing before the OLRB that they should have a legal right to randomly terminate, suspend, or discriminate against union members because our laws are narrowly crafted to protect only “employees” who join unions and not other workers. If ever a case would demonstrate the urgent need to reform our labour laws to cast freedom of association wider, it would be this case in response to the argument that its open season on non-employees who joins unions and who work collectively to improve working conditions!
However, I think its very likely the OLRB would find that Uber/Lyft are Jane’s employers. The LRA states expressly in section 1 that “employee includes a dependent contractor”. Dependent contractor is defined as follows:
“dependent contractor” means a person, whether or not employed under a contract of employment, and whether or not furnishing tools, vehicles, equipment, machinery, material, or any other thing owned by the dependent contractor, who performs work or services for another person for compensation or reward on such terms and conditions that the dependent contractor is in a position of economic dependence upon, and under an obligation to perform duties for, that person more closely resembling the relationship of an employee than that of an independent contractor;
Applying this definition, the OLRB has already found that couriers delivering for Foodora are “employees” and lots of owner-operator taxi and limousine drivers have similarly been found to be dependent contractors over the years. Personally, I will be very surprised if Uber and Lyft drivers are not at least dependent contractors (they might also be “employees” more narrowly understood, a question that is before the OLRB now in a couple of employment standards cases). The very fact that the companies can just suspend Jane and other drivers from their dispatch for any reason they feel is worthy of discipline sure makes the companies look like employers.
Therefore, if we assume that Uber/Lyft are Jane’s “employers”, then my quick and dirty assessment based on the limited facts that are publicly available, is that there’s a pretty strong case that, by de-activating Jane, the platform companies have violated the Labour Relations Act. The remedy, if such a case were filed and won, would include damages for loss of income and reinstatement to the dispatch service. A reminder again that this quick assessment is based on the limited facts I have available to me and this is NOT legal advice to anyone!! Talk to a real practicing lawyer.
Has Jane Been Wrongfully Dismissed?
Another interesting question is whether the de-activation amounts to a constructive dismissal or wrongful dismissal under Common Law. The tweets states that Jane has worked from the companies for about 6 years. In Canada, an employer that suspends an employee and thereby cuts off their income, commits a fundamental breach of contract that the employee may treat as a constructive dismissal (unless the contract expressly permits suspensions). We don’t know yet whether Jane has been temporarily suspended from the dispatches or terminated permanently. I also don’t know what the standard form contracts say about suspensions and terminations.
In Ontario, employers are required to provide notice of termination to both “employees” and “dependent contractors”. I discuss this in Chapter 4 of my text The Law of Work. On p. 59, I discuss Ontario Court of Appeal decisions in cases called Keenan v. Canac Kitchens and McKee v. Reids Heritage Homes , where the Court recognized that the intermediate category of “dependent contractor” that appears in the LRA has been recognized in the common law as well and that dependent contractors are entitled to notice of termination. Provided that Jane could establish that she fits either the common law definition of an “employee” or alternatively a “dependent contractor”, then she would be entitled to notice of termination. If she has been “suspended”, she would need to quit and sue for constructive dismissal. If she has been terminated from the Uber/Lyft dispatch, she could sue for wrongful dismissal.
In either case, she would be seeking damages for failure of the companies to provide her with notice of termination, and maybe also aggravated and punitive damages (but I won’t go into those damages here). An interesting issue would be how much notice, and then also how to calculate the damage. Once again, we’d need to look at the termination provisions of the standard form contract. This analysis could bring us into interesting terrain given that the Supreme Court of Canada has already ruled that one of Uber’s contracts was “unconscionable” in Heller v. Uber. Insofar as the standard form contracts purport to permit the companies to terminate drivers without any notice, those terms could run afoul of employment standards legislation, if Jane is an “employee” for the purposes of the ESA. But let’s not go down that rabbit hole today!
Jane’s story is interesting because it demonstrates the many ways in which the law interacts with “gig” workers in uncertain ways. In time, we are likely to see more test cases that examine the reach of existing laws to the new breed of gig worker. If the workers lose these test cases, the loss will only demonstrate the need for legal reform to ensure that vulnerable platform workers are protected by the many laws we’ve created over the years to impose a basic floor of decency in the labour market.