Are works employees or independent contractors?
The controversy as to whether workers in the gig economy are employees or independent contractors continues with the recent decision in Franco v Deliveroo Australia Pty Ltd [2021] FWC 2818.
In that decision handed down on 18 May 2021 the Fair Work Commission found that Mr Franco, as a Deliveroo driver was in fact and in law an employee and that the circumstances of the termination of his “service agreement” were a dismissal, which was unfair.
Before the termination of his employment Mr Franco delivered food on a motorcycle he bought and wore a Deliveroo uniform. The reason given for the termination of his “service agreement” was that he was too slow in delivering orders.
Represented by the TWU in the application, Mr Franco asked for and was granted reinstatement as a Deliveroo driver.
If you are looking for consistency in approach with these matters, you are hard-pressed to find it.
In two other decisions of the Fair Work Commission, a food delivery worker using a bicycle was found to be an employee for the purposes of an unfair dismissal: Klooger v Foodora [2018] FWC 6836; but a food delivery worker who used a car was found not to be an employee: Gupta v Portier Pacific Pty Ltd [2020] FWCFB 1698.
To be fair, however, it was the business model that each of Deliveroo, Uber Eats and Foodora operated rather than the mode of transport that was used to determine whether the relationship of principal and contractor or employer and employee applied.
As Deliveroo has signalled its intention to appeal in Franco, there is still another chapter in the employee versus independent contractor saga to be written.
If you have questions about the status of work you undertake or the work you provide, please contact our experienced Workplace Relations Team at melbourne@nevettford.com.au or on (03) 9614 7111.