Skip The Dishes Driver Launches Lawsuit Over Employee Misclassification

Skip The Dishes: The Lawsuit

Skip The Dishes, a delivery service that brings food from restaurants to customers’ doors, has been served a class-action lawsuit in Manitoba.

Charleen Pokornik, who has been driving for the company since November 2016, filed a lawsuit on July 25 on behalf of drivers, arguing that the couriers should be classified as employees, and receive benefits like vacation, overtime and minimum wage.

Skip The Dishes refers to its drivers as independent contractors.

The issue of employee misclassification is a big one for the gig economy, which has seen an increasing number of Canadians take on jobs delivering food or conducting other jobs using services provided by an app. More workers in the gig economy feel that they are being cheated out of holiday pay, overtime pay and basic minimum wage. Skip The Dishes drivers are not alone in their desire to properly viewed as employees.

Canadian employment lawyer Lior Samfiru, partner at Samfiru Tumarkin LLP, told Global News Radio 640 Toronto in a recent interview that the Skip The Dishes argument mirrors his firm’s class-action lawsuit against Uber in Ontario.

“The argument is the same,” Samfiru said. “Like Skip The Dishes drivers, Uber drivers, including Uber Eats couriers, are employees rather than independent contractors. The company decides everything. They decided how much people are going to be paid. They decide who gets what job. They can penalize you. They can take you off the roster, or tell you how much to work. They have some of the indicators of employment.”

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Samfiru noted that these gig economy jobs do exist in a grey area, where the drivers do have some personal flexibility, yet the company does still exert a certain amount of control over the drivers.

“At some point, these matters will go to the Supreme Court of Canada, which will have to set the rules going forward as to what is appropriate and what is not in this new gig economy. How do we distinguish between employees and contractors?”

“Perhaps the way we’ve been doing it for the last 150 years is no longer relevant in the current reality.”

Independent Contractor or Employee: What’s the Difference

One of the most common issues in employment law is determining whether a worker is an employee or independent contractor. Or perhaps they are a dependent contractor.

Identifying the status is important for the purposes of determining the worker’s rights while carrying out his or her work as well as upon termination.

There are also significant financial considerations for all parties involved. For example, pursuant to the Employment Standards Act 2000, S.O. 2000, c. 41 (“ESA”), an employee has the right to:

• vacation pay
• statutory holidays
• overtime pay
• notice upon termination
• The right to collect employment insurance benefits

An independent contractor, on the other hand, does not have these rights unless it has been negotiated within the service contract.

Note that simply having an individual sign a contract stating that he or she is working as an ‘independent contractor’ and not an employee is not determinative of the issue. The courts, administrative tribunals and the Canada Revenue Agency will look beyond the wording of such contracts and delve into the relationship of the parties in order to determine its true character.

The following factors are used to determine if one is an employee or an independent contractor:

Level of Control

How much control does the employer have over the worker? Who determines the hour of work? Can the worker refuse work? Is the worker supervised? Who sets the prices? Who decides what customers will be served and when? Is the worker free to take on jobs elsewhere?

The lawsuit notes that the administration of a Skip The Dishes driver’s work controlled by the company. It is also alleged that the couriers are not allowed to compete with the company, or independently hire other drivers.

Ownership of Tools

Who owns the tools and equipment required to complete the job?

In a typical employment relationship, the tools are owned by the employer, who is also responsible for replacing them. An independent contractor would have their own tools, and replace their own equipment when necessary.

Opportunity for Profit and Risk of Loss

Can the worker negotiate his or her fee? Can the worker hire employees or subcontract the work? Does the employee bear any expenses in completing the work?

In a typical employment relationship, the employee is paid a set amount and bears no risk of loss, or incurs any expenses. By contrast, in a business relationship the worker has an opportunity to negotiate his or her fee, as well as incurs expenses directly related to the work being performed.