Food delivery rider claims he was ‘unfairly’ sacked, should be casual employee

A food delivery rider claims he was unfairly sacked by Deliveroo during the pandemic and should be considered a casual employee.

The groundbreaking case for the gig economy could establish that on-demand food service employees are entitled to minimum conditions. Picture: AFP

A food delivery rider claims he was unfairly sacked by Deliveroo during the pandemic and should be considered a casual employee, the Fair Work Commission heard.

The groundbreaking case for the gig economy could establish that on-demand food service employees are entitled to minimum conditions.

The Sydney-based rider, Diego Franco, claimed he received an email in February that said a number of his deliveries “took longer than expected” and he was fired “without any warning” in April.

Mr Franco’s barrister from the Transport Workers Union, Philip Boncardo, argued Deliveroo’s poor performance claim was “flawed” because the company did not have any benchmarks for delivery times and never communicated how long drivers should take to drop off food.

“This dismissal is a paradigm case of procedural unfairness,” Mr Boncardo said.

“My client was sacked … at the height of the COVID pandemic after three years of services to Deliveroo and in circumstances where he received no prior warning about the dismissal,” he said.

Riders were engaged in a system “akin” to shift work — in which they had to log in and bid for preferred work location and times — which Mr Boncardo said was a factor in “assessing whether Mr Franco was a material employee” of the company.

Although the system was canned in December last year, Mr Boncardo argued his client was a casual employee of Deliveroo.

But the company claimed Mr Franco was “miles away” from being classified a casual employee and even if he was, Deliveroo had a “valid reason” for his dismissal.

Deliveroo’s legal counsel, Marc Felman, denied the company had an employment relationship with Mr Franco, who was not required to perform services for Deliveroo at all.

Mr Franco could reject work “without consequence” and was free to work at other food delivery organisations simultaneously, Mr Felman said.

“Sometimes casual employees can have multiple jobs but that’s not what happened here,” Mr Felman said.

“Mr Franco worked for two or three delivery companies at the same time,” he added, citing UberEats and DoorDash.

However Mr Franco gave evidence his “statistics” could be affected if he cancelled a shift with less than 24 hours notice.

“If there was an emergency and I cancelled in less than 24 hours this would impact on my statistics … which would impact on my income,” Mr Franco said.

The Transport Workers Union backed the case and said after he was terminated Mr Franco and his wife and child struggled financially.

“We believe this case could have significant implications for the gig economy in Australia and, with the absence of federal government regulation in this sector, this is a way to hold companies to account,” TWU National Secretary Michael Kaine said in a statement.

“Riders are constantly getting sacked without warning, they have no minimum rates, no guaranteed wages, no right to sick leave even during the pandemic and no adequate insurance cover if they get injured or killed while working.”

The Fair Work Commission ruled Foodora misclassified casual workers as independent contractors in 2018 and was ordered to pay more than $8m in wages, superannuation and tax.

However, last year the Fair Work Commission found UberEats drivers were not employees of the company.