‘Not an employee’: Deliveroo challenges gig worker’s unfair dismissal case

Thousands of food delivery riders potentially eligible for significant backpay face a blow to their chances with Deliveroo using a landmark court decision backing the gig economy model to try to overturn an unfair dismissal case.

The major on-demand platform is appealing after the industrial umpire last year found that one of Deliveroo’s riders, Diego Franco, was technically an employee after he was booted off the platform for alleged lateness.

Deliveroo is challenging the unfair dismissal case of rider Diego Franco in the Fair Work Commission.Credit: Rhett Wyman

In a submission filed before the Fair Work Commission, Deliveroo is relying on a High Court decision that ruled last month two truck drivers who worked for the same business for 40 years were not employees, as they were dictated by the terms of the contract they signed.

“Ultimately, Deliveroo has always strongly submitted that the Full Bench [of the commission]
ought to conclude that Mr Franco was not an employee of Deliveroo,” the submission reads, adding the High Court judgment made theirs “unmistakably the correct characterisation of the relationship between Mr Franco and Deliveroo.”

The High Court allowed the appeal of ZG Operations after the Federal Court last year found the “substance and reality” of the decades-long relationship between the company and drivers Martin Jamsek and Robert Whitby was one of employment.

“The respondents were not employed by the company. They were members of partnerships which carried on the business of providing delivery services to the company,” High Court Chief Justice Susan Kiefel, Justice Patrick Keane and Justice James Edelman found jointly.

Deliveroo argues its former rider Mr Franco wasn’t employed because he was running his own business, wasn’t personally required to perform the delivery services, could simultaneously work for their competitors, and supplied the critical equipment required, among other tenets of its argument.

Deliveroo’s Australian chief executive Ed McManus told The Sydney Morning Herald and The Age, the freedom of riders to work across multiple platforms was important for participants in the industry, with the market able to compete for riders with incentives such as income protection for illness.

“What this demonstrates is it’s possible to add value,” he said.

The Fair Work appeal was stalled to allow for the High Court judgment, with the Transport Workers’ Union also due to make a submission in the near future.

The High Court decision distinguishing contractors and employees has been welcomed by food delivery platform Deliveroo.Credit: Trevor Collens

Its national secretary, Michael Kaine, accused Deliveroo of having a “misplaced focus” on overturning this decision rather than reinstating Mr Franco.

“The High Court’s decision and ruling prove without any doubt that our blackletter laws are hopelessly outdated,” he said, adding an independent body was needed to “examine relationships of dependency and set enforceable safe standards for workers”.

Adelaide University professor Andrew Stewart, an expert in industrial relations, said that, if Mr Franco was ultimately successful “then, on the face of it, yes there are thousands of other food delivery workers who could potentiality make a similar claim.”

“This is a significant test case, but it’s highly likely that it’s going to progress to the higher courts,” Professor Stewart said.

University of Technology Sydney law professor Joellen Riley Munton said that, given the use of standard contracts, “whatever the case for Diego ... can be expected to be the result for anyone else working for Deliveroo.”