PUTRAJAYA | The Court of Appeal today affirmed that an e-hailing driver is not a workman, as defined by the Industrial Relations Act 1967, in dismissing a woman’s appeal for the industrial court to hear her unfair dismissal case.
A three-member bench, chaired by Justice Azizah Nawawi alongside Justices See Mee Chun and Zaini Mazlan, said a workman, as defined by the Act, is someone who is engaged through a contract of service.
“An independent contractor, who is engaged through a contract for services, is not a workman under the Act,” Azizah said in dismissing an appeal by Loh Guet Ching, who had filed a claim for unfair dismissal with the industrial relations department, seeking reinstatement by MyTeksi Sdn Bhd, operating in the name of Grab.
Azizah said there was evidently no employment contract established between Loh and Grab, adding that it was a commercial arrangement in which Loh acted as an independent third party and provider.
“This arrangement cannot be construed as creating an employer-employee bond between them,” she said in the ruling delivered online.
Azizah said Loh had used her own vehicle to carry out transport services through Grab’s platform.
Further, she said, Grab did not pay Loh a salary and did not contribute to her EPF or Social Security Organisation (Socso) accounts.
She said the services performed were a commercial transaction with Grab charging a 20% commission for using its platform.
“Therefore, the appellant (Loh) clearly does not fall within the category of ‘workman’ as defined under Section 2 of the Act.
“As such, her representation is not fit to be tried by the industrial court,” she said.
Azizah said the industrial relations department director-general’s decision not to refer Loh’s representation to the industrial court did not contain any error of law.
She said the High Court was also right in refusing to quash the order of certiorari by the director-general.
“Therefore, we find no merits in the appeal and it is dismissed. The decision of the High Court judge is upheld,” she said.
On July 9, 2021, Kuala Lumpur High Court judge Ahmad Kamal Shahid dismissed Loh’s application for a judicial review seeking the right to be heard before the industrial court for unfair dismissal.
Loh had previously filed a claim with the industrial relations department seeking reinstatement with Grab, which the human resources minister, in exercising his discretion, declined.
Ng Kian Nam, representing Loh, submitted that she had the right of recourse and the minister should have referred the matter to the industrial court.
Grab, represented by T Thavalingam and Rebecca Sonali Alfred, said e-hailing drivers were not employees within the strict definition of the Act.
It was reported in early 2019 that Loh had reported Grab to the industrial relations department for unfair removal from the platform.
She alleged that she was blocked from driving on the platform operated by Grab over a dispute with a passenger at Senai International Airport in Johor in November 2018.
She said the passenger booked two vehicles on the Just Grab tier, the cheapest on the platform, although there were seven of them altogether, each with a bag.
“I told them I could only take three passengers with their three pieces of luggage; anything else would be an overload, but they were upset because they wanted a fourth family member to also hop into my car.
“The other Grab driver had apparently told the fourth passenger to ride in my vehicle because his car was smaller than mine, but I refused. The passengers were unhappy and they scolded me until I dropped them off at their home,” Loh was quoted as saying.
She said the dispute was made known to Grab via social media, after which her account was suspended.