Uber stands by sacking of driver who refused guide dog

When *Bella opened her Uber app and booked a short ride in suburban Geelong shortly after 9am on a Thursday in March, the wait for a driver to arrive took longer than the five or so minutes needed to drive to her destination.

First, a driver accepted her trip within seconds, but cancelled on her a minute later. Then another driver accepted her trip, and spent eight minutes driving to her, allegedly drove up to and past her, at which point they also cancelled her trip.

A 10-minute wait for a driver can easily be written off as the frustrating reality of modern rideshare, an industry where drivers are considered not employees but contractors with the right to refuse work.

But what occurred in this 10-minute period has since led to the two drivers who cancelled on Bella being effectively fired from driving for Uber, with a related legal case testing the intersections of discrimination and employment law.

This is because, Bella, who is blind and rides with an assistance dog, believes both drivers cancelled on her because of her companion.

Uber, too, backs Bella. After receiving a complaint about her experience that morning, the company began the process of deactivating the drivers from its platform.

After being matched with each driver, Bella sent them both a standard message that she sends before every ride: asking for the front seat to be moved forward to accommodate her dog.

It’s a nice but unnecessary gesture. Any driver who accepts her trip is automatically alerted to her accessibility requirements because Bella has it displayed as a badge on her profile. This feature to pre-emptively identify assistance animals is optional for riders, but can prevent awkward confrontations if a driver objects to a dog on pick-up.

While standard riders need to book a special UberPet ride if they wish to transport an animal, riders with assistance animals do not need to book the special category. Drivers who don’t want dogs in their car for hygiene or cultural reasons, and so recuse themselves from UberPet trips, must still accept assistance dogs.

Yet, despite both Uber’s policies and discrimination law’s clarity on this issue, riders with assistance animals say repeated and consistent driver cancellations remain common.

Unfair deactivation case

After the drivers were notified of their breaches, and deactivated, Bella’s first driver that morning sought to challenge his sacking, lodging an unfair deactivation appeal at the Fair Work Commission.

He argues that Bella’s assistance dog was not his reason for cancelling. In fact, he claims he didn’t even pay attention to the message and badge notifying him of the dog, as he was distracted by simultaneously removing a booster chair from his back seats having just dropped his child off at school. He claims he only cancelled the trip because moments after accepting it, he found his child’s water bottle in his car, and wanted to run inside the school to give it to him.

He also pointed out he has previously driven riders with assistance dogs without issue.

Another part of his claim is that Bella’s initial complaint incorrectly mixed details from both of her cancelled trips that morning and misattributed them, including a claim that the first driver drove past her before cancelling. Mapping the route and timing of a subsequent trip he completed shortly after, he says proves any such allegation a geographic impossibility.

While Uber acknowledged the element of mistaken identity in the complaint, the company is standing firmly behind its decision to deactivate the first driver. It has also submitted evidence that shows the driver opened and read the message about Bella’s assistance dog, as well as the fact that he left his driver app active – and able to accept new trips – at the time he claimed to be running his child’s water bottle into his classroom.

Discrimination and labour laws clash

Uber’s staunch defence of its decision to boot drivers who refuse service to riders with assistance animals marks a significant policy turnaround for a company with a reputation for a hands-off approach.

Last year, Victorian woman Paula Hobley launched Federal Court proceedings against Uber alleging it had breached anti-discrimination laws over 32 trips she claims were cancelled due to drivers realising she had a guide dog.

In response, Uber shot down the allegations of discrimination by claiming it wasn’t responsible for what drivers did. Uber maintained it wasn’t a company that provided transport services, but rather, a technology company that provided users with access to its smartphone application, which matches them with and facilitates payments to drivers, who are independent contractors.

Uber and Hobley settled their case late last year, which included an agreement from Uber to review its operations related to forcing drivers to comply with their legal obligations to accept riders with assistance animals. Uber now also has an incentive for riders with assistance animals to report drivers who refuse them service: if their complaint leads to the driver being terminated, they get a $35 credit. Bella made note of the credit in her complaint about the driver.

Now, however, Uber finds its new anti-discrimination policy at odds with another set of laws.

Legislation introduced by the Albanese government a year ago to allow gig economy workers to claim unfair dismissal-style protections and appeal their “unfair deactivation” at the Fair Work Commission has seen Uber ordered to reinstate a flood of drivers – including several who had been disciplined over alleged unsafe driving and sexual harassment – in large part due to its policy of not gathering further evidence from complainants to risk re-traumatising them. Uber’s automated, bot-led system to handle complaints has also been savaged by the commission.

Following reporting from this masthead, Workplace Minister Amanda Rishworth last month announced strengthening of the laws to lower the amount of identifying information that platforms need to gather about complainants.

‘Test case’

In Ali’s case, Uber is coming up against a different hurdle. Under the laws, platforms must warn a contractor first, and give them a fair opportunity to respond, before formally deactivating them. Misconduct must be serious to warrant an immediate deactivation.

In upholding its new policy to protect vision-impaired customers, Uber is now worried it will breach worker protection laws, calling this matter a “test case”. Proving a driver’s deactivation was fair, and proving that a rider has been discriminated against for their disability, are different legal arguments.

“This case highlights the practical challenges platforms experience with the Deactivation Code, where Uber has to choose between complying with federal discrimination laws or the code,” said Uber Director of Public Policy Pia Brunner.

“Platforms must be able to act decisively on a reasonable belief of driver misconduct, and urgent change is needed. While we are committed to fair processes for drivers, our priority in this case is defending the right of passengers with assistance animals to travel with dignity,” she said.

Advocacy group Vision Australia is backing Uber’s position, with its chief mission officer Chris Edwards saying: “Enforcing clear consequences for these incidents sends an important message that discrimination will not be tolerated.”

The Transport Workers Union, which is representing the first driver, insists it doesn’t support drivers refusing trips to riders with assistance animals, but believes the evidence against the driver is lacking and overly reliant on automated processes.

“Uber’s reliance on algorithmic management, instead of proper human-led processes, has already been slammed by the Fair Work Commission as illogical and arbitrary,” TWU national secretary Michael Kaine said. “Until it puts decent systems in place, we will continue to see cases like this one that, upon even basic fact-finding, have no foundation.

“Uber has come into the country and engaged swaths of workers. It needs to take responsibility for those workers, as well as its own customers, by having proper, human-led systems in place,” Kaine said.

*Bella is a pseudonym to protect her identity.

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