Canadian Labour Reporter

7 Canadian HR Reporter, a HAB Press business 2020 CANADIAN LABOUR REPORTER CANADIAN LABOUR REPORTER ARBITRATION AWARDS couriers on the app, though there is no training on how to make deliveries. Shifts are assigned to couriers who are available and are prioritized based on factors such as amount worked and depend- ability. The couriers' contracts require them to "provide services in an ef- ficient, effective, competent and professional manner." If Foodora deems a courier to not meet those obligations, it can deactivate them at its discretion. It also maintains a "strike log" in which couriers can accumulate "strikes" for issues such as refusal to accept an order, repeated fail- ure to confirm a delivery is com- plete, tardiness, or inappropriate communications, that can affect priority for shifts. Foodora pays couriers rates specified in their contracts, makes no deductions, and doesn't pro- vide benefits. Couriers are free to work for other companies and many work for other delivery ser- vices at the same time as they're working Foodora shifts — re- ferred to as "dual apping." The board noted that individu- als who aren't necessarily employ- ees could be entitled to collective bargaining if they are "dependent contractors" — defined in the On- tario Employment Standards Act, 2000 as someone "in a position of economic dependence upon, and under an obligation to perform duties for, that person more close- ly resembling the relationship of an employee than that of an inde- pendent contractor." In addition, the act states that an employee for its purposes in- cludes a dependent contractor. The board found that Foodora controls and monitors who deliv- ers food and couriers are not free to use substitutes of their own choice. This is like an employment relationship, said the board. The board also found that cou- riers provide most of their own tools, but Foodora supplies and controls the most important tool: the app, which is the "lynchpin in the process to deliver food." The board noted that the com- pany's revenue depends entirely on the service of the couriers and the couriers relay entirely on the Foodora app for relationships and payment with customers and res- taurants. This setup "more closely re- sembles an employee who is permitted to use the company's software than an independent contractor," the board said. In addition, the board noted that couriers are paid by the order and distance travelled — with a guaranteed base hourly rate — so the risk of loss is minimal if there are problems with deliveries. Their contracts require them to give priority to Foodora — even if dual apping — and they can't re- peatedly refuse deliveries during a shift. Even if couriers have other sources of income, they are on- call for work through the Foodora app. "The courier is a mere cog in the wheel that is powered by Foodora" that leans toward an employment relationship, said the board. The board found that couri- ers are "selected by Foodora and required to deliver food on the terms and conditions determined by Foodora in accordance with Foodora's standards." Therefore, the couriers are de- pendent contractors and more closely resemble employees than independent contractors — leav- ing them open to the possibility of unionization. himself "in a professional and re- spectful manner at all times." The worker was unable to live up to the conditions of reinstate- ment and he was terminated for a third time in December 2016. However, after mediation in July 2017 he was reinstated on a last- chance agreement requiring him to "demonstrate exemplary con- duct at all times." There were delays to the work- er's return to the workplace due to operational issues that frustrated the worker. In a July 16, 2017 call with his cabin crew manager, the worker was rude and insubordinate. He yelled at the manager and contin- ued to do so when she asked him to stop. The call ended abruptly, though it was unclear if the work- er hung up. The worker had a second call with the lead scheduler on Aug. 7. The worker said he wanted to use 2016 vacation entitlements to take the month of September off, but the scheduler informed him he didn't have enough remaining en- titlements. This made the worker upset and he said he wasn't happy to return to work, which surprised the scheduler because every other employee she had helped was pos- itive in returning to work. When she mentioned this to the worker, he made disrespectful, profane, and disparaging comments that left her "shaken and upset." The scheduler wrote up a report of the call saying the worker "went on a rampage… he went nuts." The worker disagreed that he behaved poorly during the two calls. He claimed there were dis- agreements between colleagues, but they were "amicable." In the first call, he said the cabin crew manager told him things that weren't true, so he tried to "dumb it down" but wasn't disrespect- ful. He also claimed in the second call, it was the lead scheduler who became aggressive and acted im- properly. Air Canada determined that the worker breached his last- chance agreement with contin- ued inappropriate behaviour, so it terminated him for a fourth time. The union grieved the termina- tion, arguing that the worker was "an exuberant individual, a person who says what is on his mind, and does so in an honest, respectful and forthright fashion." It claimed he didn't act unprofessionally, and the calls involved "a series of mis- understandings and mischarac- terizations." It acknowledged the worker's manner could be "off- putting to some people but he was a long-standing employee who was "understandably frustrated" by the reinstatement process. The arbitrator noted that it wasn't unusual for an employee to feel stress and frustration in a reinstatement process, especially if it wasn't going as quickly as the employee would like. However, the evidence of the cabin crew manager and lead scheduler was consistent, and they had no rea- son to exaggerate, while the work- er had a history of poor behaviour and had an inconsistent account of the calls. The arbitrator found that the worker's disciplinary history and last-chance agreement meant that he knew he had to act in "an exem- plary fashion" and "this was truly his last chance." "Whether he had a long disci- plinary record or not, or whether he was subject to a last change agreement or not, [the worker] could have and should have acted politely and professionally to members of management," said the arbitrator in dismissing the grievance. "There was no evi- dence of provocation and no rea- son for the [worker] to have be- haved the way he did." Last-chance agreement, terminations don't change behaviour < Reinstatements pg. 1 < Foodora pg. 1 OLRB determines couriers are dependent contractors Reference: Air Canada and CUPE, AC Componen. William Kaplan — arbitrator. Alexandra Meunier for employer. Megan Reid for employee. April 1, 2019. 2019 CanLII 24931 Reference: Canadian Union of Postal Workers v. Foodora. Matthew R. Wilson — alternate chair. Craig Lawrence, Karina Plyypczuk, David Albert, Sadie Weinstein for employer. Ryan White, Amelia Philpott, Aaron Spires for employee. Feb. 25, 2020. OLRB Case No: 1346-19-R

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