The Full Bench of the Fair Work Commission applied recent High Court authorities when determining that a Deliveroo driver was not an employee.
The law regarding the characterisation of relationships between employers and workers has seen significant development this year, with the High Court handing down its decisions in CFMMEU v Personnel Contracting Pty Ltd1 (Personnel Contracting) and ZG Operations Australia Pty Ltd v Jamsek2 (Jamsek) on 9 February 2022.
The High Court found in Personnel Contracting and Jamsek that, where the working relationship is governed by a comprehensive written contract, the written terms are paramount in determining the nature of the relationship between the parties. Absent an allegation that the contract is a sham, or that the terms of the contract have been varied by the conduct of the parties, businesses can now have greater certainty that the terms of their written contracts will be upheld by the courts.
In Deliveroo Australia Pty Ltd v Franco,3 the Full Bench of the Fair Work Commission applied the principles in Personnel Contracting and Jamsek in the context of an unfair dismissal application made by Diego Franco, a worker in the gig economy.
Background
Mr Franco commenced working for Deliveroo’s meal delivery business on 22 April 2017 as a delivery driver pursuant to a ‘supplier agreement’ (Agreement), using motorbikes which he had purchased himself. For the majority of Mr Franco’s engagement, Deliveroo used a self-service rider engagement system which required Mr Franco to book the sessions he would work in advance and provided preferential access to particular sessions based on his performance, as well as incentivising him not to cancel engagements.
Mr Franco worked regularly for Deliveroo until 30 April 2020. He also performed work for Uber Eats and Door Dash whilst he worked for Deliveroo. In April 2020, Mr Franco was identified by Deliveroo as a driver with delayed delivery times. Deliveroo determined the delays were unacceptable and emailed Mr Franco on 23 April 2020 advising that, as he failed to deliver orders within a reasonable time, he was in breach of his agreement with Deliveroo and his agreement would be terminated. On 30 April 2020, Mr Franco’s access to the Deliveroo Rider App was disabled.
Mr Franco subsequently made an unfair dismissal application against Deliveroo pursuant to section 394 of the Fair Work Act 2009 (FW Act).
