INTRODUCTION
The most recent landmark judgement of Karnataka High Court is to consider the driver-subscriber of a transport aggregator like Ola and Uber as an “employee” under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act 2013). The court also ordered Ola to pay 5.5 lakhs as compensation to women for failing to address the sexual harassment complaint made to the company. It also ordered the company’s Internal Complaint Committee (ICC) to conduct an inquiry into the complaint, in accordance with the provisions of the PoSH Act, 2013 and submit the report to the district officer within 90 days. The penalty of 1 lakh was imposed on Karnataka State Transport Authority (KSTA),that is to be paid to Karnataka State Legal Services Authority (KLSA) within 30d days as the officers were found guilty of deliberate inaction and negligence in discharging their statutory obligations.
BACKGROUND
The women complainant who is a regular user of Ola had booked a taxi through the platform to commute from her residence in Yelahanka to her office in JP Nagar in Bengaluru. The women got petrified with driver uncomfortable behaviour of staring at her through mirror, watching a pornographic video through phone and not stopping the vehicle despite multiple requests. She then reports a complaint against the driver on the Ola app. The Ola executives responded that the driver has been blacklisted and would be sent for counselling and training. Ola convinced her to close the complaint but she demanded a harsh punitive measure against the driver. The court rejected the contentions of Ola as “intermediary” and partially allowed the petition filed by the women. Ola management and ICC claimed no jurisdiction to take action against driver as there is no employer – employee relationship and the actual perpetrator was the driver. The court rejected the arguments and made aggregator Ola responsible along with other concerned authorities.
KEY ASPECTS
- DRIVERS ARE COMPANY EMPLOYEES
The drivers who are associated with aggregators like Ola, Uber are considered as gig workers or the unorganised workers to whom the company is not responsible to provide any social welfare benefits. There is no formal employer-employee relationship as the company only provides the platform for the drivers to register on application and use the App for finding the customers using the technical capabilities like GPS, real time monitoring of various parameters like customer, traffic, weather etc. Now with this landmark judgement, drivers are considered as company employees who can in future avail their social benefits and formally be part of the organization.
- APPLICATION OF PoSH FOR WOMEN SUBSCRIBER
PoSH applies to the women at the workplace who is been sexually harassed or exploited at workplace. However, in this case the women are not part of company Ola but is a subscriber on the platform who is a regular user of App. Through this landmark judgement, it is observed that the Women who is mere subscriber also becomes the responsibility of the company to listen to the complaints made by the women and address the issue by the concerned Internal Complaints Committee.
- HOLD INTERMEDIARY RESPONSIBLE
Though the company is an aggregator and intermediary in nature, it has social responsibility to address to the grievances of the customers especially when women raise the sexual harassment complaints against the drivers. The OLA platform acts like a transport company and is vicariously responsible for the acts of the driver.
- JURISDICTION TO TAKE COGNIZANCE OF COMPLAINTS
The Internal Complaints Committee has the jurisdiction to look into the non – employee complaints and conduct enquiry by inherently considering as “employer-employee” relationship with respect to the drivers who were viewed as “independent contractors” and report to the district officer by addressing the complaint within the stipulated time period of 90 days.
CONCLUSION
The recent landmark judgement of High Court on the inclusion of drivers as employees with respect to aggregators/intermediaries brings in a new dimension and picture to look into the future issues. This ensures the safety and security of women both at the workplace and in the public where she is involved in the business directly or indirectly with other organisations or companies. Now the companies also carry the responsibility to address the sexual harassment complaints registered through platform, by taking appropriate actions through the Internal Complaints Committee. If fails to address the issue, is liable for compensation for the women and the penalties/fines to other concerned authorities.
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WRITTEN BY: SOUJANYA V
