Written on behalf of Peter McSherry
We reviewed in a prior post how an arbitration clause can be potentially used by a company to require employment disputes be submitted to an arbitrator for determination as opposed to a civil court.
One benefit to an employer is that such a clause may prevent class action proceedings. We then noted the case of the Uber driver who was, by the terms of the contract, required to submit the issue as to whether he was an employee or independent contractor to an arbitrator in the Netherlands for determination of their rights.
That decision has now been reversed by the Ontario Court of Appeal.
The Facts of this Case
The employer, a ride sharing company, required any person seeking an interpretation of their legal rights must not only argue their case in Europe, use Netherlands law, but also pay $14,500 as an administrative fee and pay all their travel and legal costs.
More significantly, the rights of the employee to file a complaint with the Ontario Ministry of Labour to investigate their case was taken away by this agreement.
This was a fundamental failing of the contract. The Ontario Court of Appeal concluded that this clause was an attempt to remove from the employees their rights under this protective statute and hence ruled that the clause was invalid.
The Impact of the Case
This did not resolve the issue as to whether the drivers were employees or contractors. That question remains to be answered. The ruling did make it clear that the company cannot force a removal of the rights which are protected by the statute.
Once again, the agreement which apparently sets out the alleged rights of the employer may be not be effective. The answer to this question requires a careful reading of the terms of the contract. Not every case will lead to the same conclusion. It depends very much on how the contract has been drafted.
Get Advice and Know Your Rights
It is clear that legal advice is required to understand your legal rights. The written word may not be definitive. Get advice. Know your rights. Contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation
 The agreement was also ruled invalid as being fundamentally unfair or “unconscionable”.