In a precedent-setting labour board battle over the future of the gig economy, food delivery giant Foodora is arguing its couriers are independent contractors, a category of worker that cannot unionize and is defined by freedom and flexibility on the job.

But Foodora also maintains an active “strike log” that closely monitors couriers and clocks poor performance — with potentially significant consequences for workers’ wages and ability to get work, according to evidence submitted by the Canadian Union of Postal Workers to the provincial labour board.

The documents, obtained by the Star, are part of submissions to a potentially groundbreaking case between CUPW and Foodora that could change the gig economy’s landscape. Most workers in that sector are classified by the companies they work for as independent contractors.

CUPW argues Foodora couriers are not truly independent contractors because of the degree of control the company exercises over them. If that argument proves successful, the couriers could become the first app-based workforce in the country to unionize.

Its submissions, based on written declarations made by couriers and supporting evidence such as corporate communications and dispatch logs, claim that Foodora “tracks” couriers’ “work performance closely,” including, in at least one case, issuing a “notice of termination” to a courier for delivering too slowly.

Some of the supporting evidence, including dispatch communications and the name of the allegedly terminated courier, were redacted in the submissions obtained by the Star.

In an emailed statement, Matt Rice, Foodora’s head of marketing, said that classifying workers as independent contractors provides “more flexibility for both the courier and foodora.”

“In 2015, we acquired a business that was 100 per cent independent contractors,” he added, referring to the company’s acquisition of Toronto start-up Hurrier, which then rebranded as Foodora. “It was working well for both sides, so we kept the model.”

The Star sent a list of specific questions to Foodora about the claims made in the labour board evidence, but the company said it could not comment on the ongoing proceedings.

So far, Foodora has, in a series of hearings that took place this fall at the board, argued it exercises little control or direction over couriers’ work conditions. Lawyers for the company have focused on the fact the couriers purchase and select their own work gear; can change, extend or delay shifts for any reason; and can work for competing companies without penalty.

Defining features of an independent contractor include setting one’s own schedule, supplying one’s own work equipment, and being able to subcontract work to others. Unlike employees, businesses “cannot discipline” independent contractors, according to the Ontario Ministry of Labour’s website.

The documents obtained by the Star include four written declarations from couriers claiming Foodora maintains a “strike log” to monitor them. The couriers’ declarations provided numerous examples of documented “strikes” against them by the company due to perceived performance issues. The “strikes” are ranked in severity by Foodora’s dispatch team from low to high. They were issued for everything from “disputes over a declined order,” to “failing to respond to dispatch,” to “delaying an order,” according to the written declarations.

“On one occasion I was warned that I could only decline 5 per cent of my orders without consequence,” reads a written declaration from Ivan Ostos, a Foodora courier and one of the lead organizers of the union drive. (The text of Ostos’s exchange with dispatch over declining orders was redacted in the documents obtained by the Star).

In one case, a delivery driver in the GTA was subject to a “rider misconduct” inquiry in April 2019, according to evidence submitted by CUPW. Its submissions include an email from Foodora fleet management to the driver informing him that he had been “reported for refusing to complete an order” assigned by dispatch.

“Let it be known that this type of behaviour will not be tolerated and that you are expected to be ready and available for the entirety of scheduled shifts from beginning to end,” the report says.

The report goes on to say the driver will no longer receive a guaranteed $16 hourly wage, which some Foodora couriers are entitled to if they meet certain requirements set by the company.

“I was told that my wages for that shift would be converted to commission only,” the driver’s declaration says. “I do not know whether or not this conversion in fact took place.”

Without the guaranteed wage, couriers earn a base rate set by Foodora of $4.50 per delivery, plus $1 a kilometre of travel between restaurant and drop-off point.

Larry Savage, director of Brock University’s Centre for Labour Studies, calls the Foodora labour board battle “key for the union movement.”

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“Employment misclassification and the spread of non-standard work arrangements threaten to undermine good-paying jobs and workers’ rights now and in the future,” he said.

In another written declaration submitted to the board, a bike courier said Foodora’s dispatch team had issued several “strikes” against him for disputes over delayed or declined orders, including one he said he declined because the drop-off point was too far away.

His declaration added that dispatch monitored his location through GPS tracking on the app and “questioned me when it appeared that I was not completing a delivery as expected.” In one instance, he said, dispatch “objected” when he stopped to fix his bicycle mid-delivery.

“I was told by dispatch that I should complete the order regardless of my belief that my bicycle was not safe,” his declaration says.

CUPW also submitted evidence that a courier, whose name was redacted in the Foodora documents obtained by the Star, received a “notice of termination” from Foodora this June for “working for another platform while on shift,” leading to an “unreasonably delayed order.”

A November agreed statement of facts between Foodora and the union says couriers are “contractually obligated to provide services in an efficient, effective, competent and professional manner.”

The agreed statement of facts also says the company uses “rider performance metrics” to decide who gets first crack at shifts. Those metrics include starting on time, completing shifts, and accepting all deliveries offered by dispatch while on shift.

Poor performers can be “de-prioritized” or even “deactivated” from the app.

“I suspect Foodora will have a difficult time establishing that its couriers are independent contractors given how deeply couriers are integrated into its delivery business,” Savage said. “Foodora clearly controls couriers’ working conditions as evidenced by, among other things, the company’s use of the strike log, which impacts couriers’ ability to secure shifts and get paid.”

In January, Foodora and CUPW will continue to argue those points before the board. The union is seeking a ruling that couriers are dependent contractors — a middle ground between employee and independent contractor that still has the right to unionize.

“I think there is a very strong case to be made that Foodora couriers are dependent contractors. It’s clear that a significant number of couriers are working precariously and are economically dependent on Foodora,” Savage said.

“Working in the gig economy is not the hobby-based lifestyle some have made it out to be,” he added. “For a growing number of workers, it’s their day-to-day reality and they are barely making ends meet.”