PETALING JAYA: With a grievance filed by an e-hailing driver awaiting possible referral to the Industrial Relations (IR) court, Grab Malaysia says it will submit proof that the driver was not its employee.

“We are seeking legal advice on this matter and will provide the necessary documentation to the (Industrial Relations) department to support the position that the driver-partner was not an employee of Grab, ” a company spokesman told The Star.

He said the e-hailing operator had informed the department of the independent third-party service provider relationship but was instructed to attend the conciliation meeting on Jan 21.

Stating that Grab did not agree to consider reinstating the driver-partner, he claimed that the driver was in fact terminated due to gross breach of the drivers’ code of conduct.

On Jan 3, a single mother known only as Loh, lodged a complaint with the department against Grab for removing her from its platform, allegedly without a valid reason, on Nov 5. It was the first such case brought to the department’s attention.

Her complaint was filed under Section 20 of the Industrial Relations Act 1967, which provides that an employee who feels that he or she has been dismissed without just cause or excuse by his employer, may lodge a representation to the IR director-general within 60 days from date of termination.

On Jan 6, the department issued a notice to Loh and Grab calling for conciliation on Jan 21.

It is learned that the department officer gave Grab and Loh, who is hoping for reinstatement, two weeks to seek settlement and they will know the outcome on Feb 4.

When contacted, Human Resources Minister M. Kulasegaran said the case was still at the conciliation stage at the department level.

“We are not able to say much because it is for the department to deliberate and take the necessary action before deciding and reporting to the minister, ” he said.

“Let’s wait for the outcome first.”

Loh’s lawyer Ng Kian Nam said he was hopeful that the case will see a recourse or a settlement achieved.

He said Malaysian laws should better protect gig economy workers’ rights, adding that the authorities “had never really studied and interpreted the existing laws on whether e-hailing drivers are categorised as workers or not.”

“It totally follows the e-hailing operator’s interpretation that drivers are partners and not employees. According to the Employment Act 1955, the definition of workers and employees is open and subject to the schedule and minister’s announcement from time to time, ” he said.

“Based on the United Kingdom and Europe’s model and also earlier research where drivers are recognised as workers, it is high time for our laws to do the same.”

Ng, who is also the spokesperson for the Campaign to Protect the Rights of E-Hailing Drivers, said the UK labour law and Malaysia’s laws were similar and it gives space for similar interpretation here, since Malaysia is a Commonwealth country.

“In an earlier case in the United Kingdom when a driver sued Uber, the Employment Rights Act was used and was interpreted that drivers are subject to strict and comprehensive internal rules imposed by Uber, ” he said.

“So whenever they switched on their apps, they are considered employees.”

Labour law specialist Datuk Thavalingam Thavarajah (pic) said the department’s decision should be awaited, as the officer has to review the oral statements and documentary evidence and prepare a report for the minister for the latter to decide if the case warranted a reference to the IR court.

“Even if a decision is made to refer to the IR court, ultimately the court will decide whether the driver is an employee or not after a hearing or a full trial, ” he said, adding that Malaysian labour laws recognised the clear distinction between independent contractors and employees.

“An employee is specifically defined under the Act. So it’s a question of what an individual prefers – flexibility and freedom as an independent contractor or the regulations and rigidity as an employee.

“When there is a dispute, it is for the court to determine, looking at the substance over the form, ” said Thavalingam.

“Our laws regulate the relationship between the employer and employees, whereby independent contractors have greater freedom in that context, ” he added.

Asked if IR’s pondering over the case would mean e-hailing drivers can bring up their claims to the department in future, Thavalingam said the qualification is that “each case has its own peculiar set of facts.”

“The IR officer will determine whether there is merit in the claim or not. Perhaps after this test case is resolved by the minister or the court, this will set a precedent for future cases for the officer not to entertain any further claims, ” he said.

“The process is at least in compliance with natural justice and procedural fairness. Both parties are given a chance to ventilate their arguments in a forum provided for by the law.”

Malaysia E-Hailing Drivers Association president Daryl Chong said it was more practical for e-hailing operators to be transparent with their rules and penalties among drivers.

“There is no proper SOP (standard operating procedure) stating clearly the type of offences and penalties.

“Everything is still vague; the code of conduct only mentions what should not be done, ” he said.

“Drivers must be told what offences will cost them and how in a properly published notice. It’s not written anywhere so far.”