Food delivery driver wins case against ‘unjust, harsh’ email sacking not affording him ‘basic human dignity’

An excoriating judgment reveals the Amazon-backed giant did not show ‘fundamental human compassion’ when unfairly sacking a man via email.

A food delivery rider has won his case against Deliveroo after being abruptly booted over spurious claims, with the workplace umpire lashing the Amazon-backed service, saying it did not show “fundamental human compassion”.

Diego Franco had worked with Deliveroo for three years when he was sacked in April last year, accused of not working fast enough after the company used data analytics software to compare estimated delivery times with his actual delivery times.

That gap, known as the “delta”, is then compared with the average delta for other riders in the same zone using the same type of vehicle.

The Brazilian national, who arrived in Australia in 2016, was also accused of marking orders delivered that were not received on four separate occasions.

After he was sacked via email and given just seven days notice, Mr Franco sought reinstatement, continuity of service and backpay through the Fair Work Commission, which on Tuesday found resoundingly in his favour.

Diego Franco was left struggling to provide for his wife and baby daughter after the dismissal. Picture: Supplied by TWU

Commissioner Ian Cambridge said the decision to terminate Mr Franco’s services was taken “without providing him any opportunity to be heard, provide explanation, offer any defence or plead for mercy” and sacking him via email without any warning was “unjust, unreasonable and unnecessarily harsh”.

A company of its size should have had far more acceptable and professional practices and procedures, he said.

“Basic human dignity requires that a matter of such gravity should be conveyed personally,” Commissioner Cambridge said.

“It appeared that 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.

“Further, the access that digital platform businesses have to extensive quantities of data and which provide the capacity for detailed examination of performance metrics should not translate into a licence to treat individuals, whether they be employees or contractors, without a level of fundamental human compassion.”

Food delivery riders in Australia have been protesting against 'wage theft' and work conditions. Picture: NCA NewsWire/Christian Gilles

The commission found there was no valid reason for Mr Franco’s dismissal relating to his capacity or conduct and rejected Deliveroo’s jurisdictional objections to the unfair dismissal application on the basis he was a contractor, not an employee.

A Deliveroo spokeswoman said the company planned to appeal the decision as it did not accept the premise upon which it was taken “and do not believe this reflects how Deliveroo riders work with the company in practice”.

“We are confident that riders are engaged as independent contractors,” she said.

“Riders have the absolute freedom to decide whether, when and where they work, and if they do go online they can decide how long to work and can freely reject any offer of work offered to them.

“Riders don’t need to provide personal service – they can and do use delegates to complete deliveries.

Delivery drivers have been protesting for better rights for years. Picture: Joel Carrett/AAP

“Riders can and do work with multiple platforms, including competitors, at the same time – as Mr Franco did himself.

“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 to protect those freedoms.”

TWU national secretary Michael Kaine said it was an important judgment that put Australia in line with other countries across the world from the UK to Spain and the Netherlands, where the rights of gig economy workers had been recognised.

“This ruling has huge implications for gig workers in Australia, and we urge the federal government to look at it today and to start devising regulation now,” Mr Kaine said.

He said the sacking had left Mr Franco struggling to support his wife and baby daughter.

Originally published as Food delivery driver wins case against ‘unjust, harsh’ email sacking not affording him ‘basic human dignity’