On 9 July 2021, the High Court ruled that a Grab (e-hailing) driver is not an employee. A Grab driver may not claim unfair dismissal if they are removed from the e-hailing platform.
Brief Facts
- The Claimant was an e-hailing driver for Grab.
- The Claimant’s account with Grab was suspended following a dispute with a passenger on the loading capacity of her vehicle.
- The Claimant lodged a representation of unfair dismissal against Grab, for removing her from the Grab platform.
- The Minister of Human Resources refused to refer the Claimant’s representation of unfair dismissal to the Industrial Court.
- The Claimant applied for judicial review against the Minister’s decision. The Claimant requested the High Court to quash the Minister’s decision, and for her representation to be referred to the Industrial Court.
Court’s Decision
Grab’s position was that the Claimant was not an employee within the definition of the Industrial Relations Act 1967 (“IRA”) and therefore could not claim unfair dismissal. The Minister of Human Resources was correct in not referring the matter to the Industrial Court, as the Claimant’s case did not satisfy the threshold requirements.
The Claimant relied on the UK Supreme Court case of Uber BV and Others v Aslam and Others [2021] UKSC 5 (“UK Uber case”) which held that Uber drivers are workers. However, Grab claimed that the Uber case differs on the facts, and the New Zealand decision of Arachchige v Rasier New Zealand Ltd & Uber BV [2020] NZEmpC 230 (“NZ Uber Case”) (which held e-hailing drivers are not employees), is applicable
The High Court agreed with Grab and dismissed the Claimant’s application.
Commentary
The High Court’s written grounds have not been prepared, but we can expect this to be available given the Claimant’s intention to appeal to the Court of Appeal.
However, we can surmise that the High Court had agreed with Grab’s position that e-hailing drivers do not fall within the definition of a “workman” under the IRA.
Under the IRA, the definition of a workman is:
any person, including an apprentice, employed by an employer under a contract of employment to work for hire or reward and for the purposes of any proceedings in relation to a trade dispute includes any such person who has been dismissed, discharged or retrenched in connection with or as a consequence of that dispute or whose dismissal, discharge or retrenchment has led to that dispute.
(emphasis added)
A claim of unfair dismissal is a right only available to workmen or employees. Here, as the Claimant was not deemed as an employee employed by Grab under a contract of employment, the Claimant’s recourse for removal from the platform does not lie in unfair dismissal.
There is a misconception that the UK Uber Case meant that Uber drivers in the UK are employees. The UK Uber Case held that Uber drivers are “workers”, not “employees”. In the UK, work status is separated into three principal categories, which are employees, workers and independent contractors/self-employed in order of decreasing statutory protection. This is not the case under Malaysian employment law, which adopts a more binary approach: you are a workman/employee, or you are not. As we lack the intermediate category of ‘workers’ as decided in the UK Uber Case and there is no equivalent here, the UK Uber Case is not an apple to apple comparison.
In the NZ Uber Case, it was held that while there were aspects of the relationship between Uber and its e-hailing drivers that may point to employment, the intent of parties throughout their relationship was that the drivers would operate their own business how and when they wished. Their work was not controlled by Uber beyond some matters that might be expected, given they were using the Uber brand. The agreement between Uber and its drivers reflected the parties’ intentions. While the work of the drivers is integral to Uber’s business, it was with little control by Uber.
Without the written grounds, it remains to be seen what were the factors that made the High Court decide that the driver was not a workman. A written judgment would be welcome as guidance to other businesses (not limited to the e-hailing/transportation industry) who are operating on a similar model.
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This article was written by Donovan Cheah and Adelyn Fang (Legal Manager). Donovan has been named as a Recommended Lawyer for Labour and Employment by the Legal 500 Asia Pacific 2017, 2018, 2019, 2020 and 2021, and he has also been recognised by Chambers Asia Pacific and Asialaw Profiles for his employment law and industrial relations work.
Donovan & Ho is a law firm in Malaysia. Our practice areas include employment law, dispute resolution, tax advisory and corporate advisory. Have a question? Please contact us.
