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Uber has appealed against an order made by the fair work umpire to reinstate a driver who was banned after receiving 16 misconduct allegations, calling on the government to go further as it updates its deactivation laws concerning sexual harassment.
On Wednesday, the ride-share giant filed a notice of appeal to the Fair Work Commission which last month ruled that Uber had unfairly deactivated the driver’s account and would need to give him his job back and compensate him for a year of lost pay.
Uber’s appeal highlights key challenges in the enforcement of laws introduced last year aimed at strengthening protections for gig economy workers.
Those laws give Uber drivers the ability to appeal against being unfairly deactivated from a platform, pulling them closer in line with standard employees, who can lodge unfair dismissal claims.
On Friday, Employment and Workplace Relations Minister Amanda Rishworth announced the government would make it easier for digital platforms to act more quickly, and with greater clarity, when deactivating drivers and operators facing sexual harassment allegations – including where there are repeated complaints or behaviour over time.
Platforms will also no longer need to share identifying details about a complainant with the accused worker, instead only needing to put any sexual harassment allegations in “general terms”.
Uber’s Australia and New Zealand head of safety, Nicole Ashcroft, said while she welcomed the government’s focus on sexual harassment claims, the narrow update left too many other safety gaps wide open and that the Digital Labour Deactivation Code was not being applied consistently or as intended.
In the case Uber is appealing, for example, Ashcroft points out the standards for evidence “don’t seem to be allowing us to look at patterns of behaviour, such as comments, verbal altercations or dangerous driving” which the platform has relied on before. She said that Uber is expected to “prove something happened, rather than the code’s intention of a reasonable belief [that something happened]”.
The case concerns a Melbourne driver booted from the platform last year after receiving 16 misconduct allegations including touching a passenger without consent, driving more than 20km/h over the speed limit and deserting a passenger on the side of the road, making racist remarks and driving unsafely.
Commissioner Oanh Thi Tran, who was scathing of Uber requiring the Melbourne driver to challenge his deactivation via an automated chatbot which gave “nonsensical” responses, said the platform’s reliance on patterns of complaints fell short of its evidentiary onus to prove the conduct took place and inquire with complainants.
The company’s appeal includes a claim that Tran did not sufficiently account for evidence including a photo supplied by the passenger showing the driver reaching a speed of 119km/h in a 100 zone.
While Tran acknowledged Uber’s concerns about providing identifying information to workers, she said the generality of the information provided about complaints also made it “extremely difficult” for a person to properly respond.
The latest changes to the code also allow the ride-share platform to outline sexual harassment allegations made to a worker in “general terms”, rather than providing specific detail.
However, the updates to the code will not apply to the case Uber is currently appealing because it occurred before the changes were introduced.
Ashcroft also noted Uber received delayed and inconsistent feedback from the commission on the adequacy of evidence, with commissioners often having different interpretations. “In some cases, information is sufficient, and in other cases, the commissioner has said it’s insufficient,” she said. “It’s very hard for us to then interpret what strict code-compliance actually means.”
Uber is pushing for a clearer definition of “reasonable grounds” for deactivation, given the unique nature of work on the platform which can make it harder to collect proof compared to a physical workplace with third-party witnesses and supervisors.
“We’re not asking for an unchecked power to deactivate drivers or delivery people,” Ashcroft said. “But the current test of ‘valid reason’ is potentially bringing in an employment lens to the gig economy and not meeting the intent of the code.”
Ashcroft also said it was harder for Uber to meet its safety obligations when it was required to reactivate people who the company didn’t believe were safe to operate ride-share vehicles.
“We have our duty to keep our customers safe, and we honestly believe that the safety of the platform is at risk as some of these decisions continue to come through,” she said.
Ashcroft hopes further reviews of the code will better define the standard of evidence, and support the platform in maintaining serious misconduct deactivations beyond sexual assault, covering other forms of misconduct including physical assault, refusal of service animals and illegal touting.
With Elias Visontay
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