Fair Work Deliveroo ruling a big win for gig workers

Deliveroo rider Diego Franco.
Deliveroo rider Diego Franco.

The Fair Work Commission has ruled a sacked Deliveroo rider was an employee, not an independent contractor, in a significant decision that exposes the company to backpay claims and has broad implications for the gig economy.

Deliveroo announced it would appeal the decision by Commissioner Ian Cambridge after he overturned Deliveroo’s “callous” sacking by email of rider Diego Franco and ordered he be rein­stated and awarded lost pay.

Mr Cambridge said access by digital platform businesses to data and performance metrics should not translate into a licence to treat individuals without a level of fundamental human compassion.

Mr Franco worked for Deliveroo for three years and was sacked and removed from the app for allegedly delivering orders slower than other riders.

Much of the case focused on Mr Franco’s employment status, with Deliveroo maintaining he was an independent contractor with no unfair dismissal claim rights, while the TWU argued he was an employee and could pursue a legal remedy for his sacking.

Uber last year settled legal ­action that could have seen its workers classified as employees, while Foodora left the Australian market in 2018 in the wake of a test case launched by a rider.

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Sydney Law School professor Shae McCrystal highlighted Mr Cambridge’s findings about Mr Franco working for both Deliveroo and UberEats and also how Deliveroo could exercise significant control over where, when and for how long Mr Franco worked if it chose to do so.

“I think what you have got in here is a decision that really clearly pulls apart the mainstay of the digital labour platforms’ argument that their workers are self-­employed,” she said. “Now, what happens on appeal is anybody’s guess, but it’s a good strong case.”

Mr Cambridge said Deliveroo giving permission to riders to work for competitors and engage in multi-apping was a factor that did point against the existence of an employment relationship. But he said in the context of a modern and rapidly changing workplace, it could not represent a factor that should be construed as preventing the existence of an employment relationship.

He said the compelling conclusion was that the relationship between Mr Franco and Deliveroo “is that of an employee and employer”. “Importantly, the level of control that Deliveroo possessed, and which it could choose to implement or withdraw, whilst not immediately apparent, when properly comprehended represented an indicium that strongly supported the existence of employment rather than independent contracting,” he said.

He found Mr Franco was never advised by Deliveroo of the delivery times that were expected of him, and therefore the slower ­delivery times that were cited as a reason for sacking him was not a valid reason for his dismissal.

The impact of termination was a matter of such import that “basic human dignity requires that a matter of such gravity should be conveyed personally”, he said. “It appeared the perfunctory, callous approach to the termination of services was in large part a manifestation of the apparent ­absence of the ordinary protections provided to employees as ­opposed to independent contractors.”

TWU national secretary Michael Kaine said the judgment recognised that food delivery riders had rights: “This ruling has huge implications for gig workers in Australia and we urge the federal government to look at it and to start devising regulation now.”

Deliveroo said it was confident that riders were engaged as independent contractors. “Riders frequently tell us that the freedom that comes with self-employment is the key reason why they choose Deliveroo, and we will appeal this decision,” a spokeswoman said.