Uber says it intends to appeal a recent Ontario Ministry of Labour decision that found a Toronto courier was an employee, not an independent contractor as the company had argued.
The Feb. 22 decision from Employment Standards Officer Katherine Haire found several violations of the Employment Standards Act – and employment lawyers and advocates say the ruling sends a clear message on the issue of employment status that gig platform workers have long fought for.
Haire ordered the company to pay Uber Eats courier Saurabh Sharma wages he argued were deducted without notice last August, along with wages to make up for missing public holiday pay and minimum wage discrepancies, adding up to a total of $919.37.
The ruling also dinged the company for not allowing required breaks during all of Sharma’s shifts.
Uber spokeswoman Keerthana Rang said in an email Wednesday that the company will appeal the decision, indicating that the case is headed to the province’s labour board.
Ryan White, a lawyer who represented Sharma, said he would welcome the opportunity to argue the case before the labour board, which could set a precedent for future cases on the issue of employment status for gig workers.
Unions and other advocates have long argued that gig workers like Sharma should be considered employees under the law and that Uber and similar companies are their legal employers – a demand White and Sharma both said was validated in the ruling.
“I think it does send a pretty clear message to other platform employers,” White said of the ruling.
The case could also have further implications in an ongoing class action lawsuit against Uber Technologies Inc., involving roughly 50,000 people who are seeking the same designation as employees.
That class action was certified last year by an Ontario Superior Court judge, and stemmed from a court filing made by Samfiru Tumarkin LLP and Uber Eats courier David Heller in 2017.
Alex Lucifero, an Ottawa employment lawyer with Samfiru Tumarkin, said the Labour Ministry decision “confirms what we’ve been saying all along, which is that the vast majority of these gig workers …are effectively employees and that they are owed the same rights and the same minimum employment standards that all other employees are owed.”
While the Labour Ministry decision doesn’t set a legal precedent, Lucifero said it will likely be useful as a submission in the ongoing class action on the issue of whether Uber couriers are employees.
“It clearly gives an indication that is the way a court will favour,” he said.
The ruling also comes at a pivotal time for regulation of gig economy jobs in Ontario. It was rendered a week before the province introduced legislation aimed at addressing some, but not all, of the employment standards issues at play in Sharma’s case.
That proposed legislation, introduced Monday, would cover people who work on digital platforms like Uber. It would offer people minimum wage for active hours, bar operators from withholding tips, establish recurring pay periods and require that companies give greater transparency about how platforms work.
Critics were quick to point out, though, that the government’s new bill doesn’t touch the issue of employee classification. The Opposition NDP and The Canadian Union of Postal Workers pointed to Sharma’s case as evidence that the Progressive Conservative bill didn’t go far enough to ensure gig workers have the same rights as all other workers.
Labour Minister Monte McNaughton said in a written statement Wednesday that Ontario’s move to provide “core rights” to gig workers sets a higher standard than other provinces.
“Gig workers in Ontario will be significantly better off than their counterparts in Alberta, British Columbia, or any other part of the country,” he said, also noting that companies could choose to go beyond the government-set standards.
“Nothing is preventing a $66 billion-company from providing their workers with higher pay, vacation time, or other protections, tomorrow, if they chose to do it.”
Sharma and his lawyers are still waiting for the ruling to be enforced. But Sharma said for him, the still-outstanding wages from the complaint that sparked the investigation are less important to him than the finding that he and his fellow couriers are employees.
“For me, in this case, I think money was always secondary,” he said. “This was this is much more than just those $200. This was about our rights as workers, which have been denied for a very long time.”