Deliv­eroo case deliv­ers more uncer­tain­ty for the sta­tus of gig econ­o­my workers

In a deci­sion that fur­ther mud­dies the waters regard­ing when a work­er will be con­sid­ered an employ­ee for the pur­pose of access­ing statu­to­ry enti­tle­ments and, in this case, the unfair dis­missal régime, the FWC in the deci­sion of Fran­co v Deliv­eroo Aus­tralia Pty Ltd [2021] FWC 2818, has made a find­ing that a Deliv­eroo deliv­ery rid­er is an employee.

The appli­cant, who was rep­re­sent­ed by the Trans­port Work­ers’ Union of Aus­tralia (TWU), is a Brazil­ian nation­al who com­menced per­form­ing ser­vices for Deliv­eroo Aus­tralia Pty Lim­it­ed (Deliv­eroo) in around April 2017. Dur­ing the course of his engage­ment he also per­formed work for the Uber Eats and Door Dash businesses.

The appli­cant used his own motor­cy­cle to make the deliv­er­ies and logged in using an app on his smart­phone, called the Deliv­eroo Rid­er App, to be offered a deliv­ery based on his prox­im­i­ty to the rel­e­vant restau­rant. The appli­cant could choose to accept or reject a deliv­ery order up until the time an order was col­lect­ed from a restaurant. 

Rel­e­vant­ly, for a peri­od dur­ing which the appli­cant made deliv­er­ies, Deliv­eroo used a book­ing sys­tem called SSB which required rid­ers to book in advance to work in a par­tic­u­lar food deliv­ery zone at a par­tic­u­lar time. Pri­or­i­ty for book­ings was giv­en to rid­ers based on per­for­mance fac­tors such as atten­dance rates, can­ce­la­tion rates and a rider’s will­ing­ness to work dur­ing peri­ods of high demand. 

The appli­cant exe­cut­ed sup­ply agree­ments dur­ing the course of his engage­ment that said he was a sup­pli­er on his own account, not oblig­ed to do work sole­ly for Deliv­eroo and was free to work when and where he choose. 

Appli­cant submissions

In sub­mis­sions sup­port­ing an argu­ment that he was an employ­ee, and there­fore eli­gi­ble to make an unfair dis­missal appli­ca­tion, the appli­cant said the FWC should look at the total­i­ty of the rela­tion­ship includ­ing whether the appli­cant was run­ning his own busi­ness. In that regard it was not­ed that the appli­cant was not pur­su­ing prof­its, had no abil­i­ty to nego­ti­ate his remu­ner­a­tion or the terms of his engage­ment and wore Deliv­eroo brand­ed paraphernalia. 

It was empha­sised that, in the cir­cum­stances, con­ven­tion­al analy­sis of what con­sti­tutes a principal/​independent con­trac­tor arrange­ment was not help­ful and that the use of tech­nol­o­gy such as the Deliv­eroo Rid­er App result­ed in a man­ner of engage­ment that bet­ter resem­bled a casu­al (rather than inde­pen­dent con­trac­tor) relationship.

Respon­dent submissions

Deliv­eroo, on the oth­er hand, point­ed to the fact the appli­cant was not required to per­form ser­vices per­son­al­ly (rather, he arranged for the per­for­mance of ser­vices), and he was able to work wher­ev­er, when­ev­er and at what­ev­er time he want­ed, includ­ing for com­peti­tors (a prac­tice known as mul­ti-apping’). The terms of the sup­ply agree­ments and the fact the appli­cant invoiced Deliv­eroo and pro­vid­ed his own equip­ment were relied upon as evi­dence that the appli­cant had his own business. 

It was empha­sised by Deliv­eroo that rid­ers could accept or reject offers at any time, and that the cur­rent app used to allo­cate work was essen­tial­ly blind’ to the per­son­al char­ac­ter­is­tics of a rid­er (which meant work was not allo­cat­ed based on any a rid­er’s per­for­mance or deliv­ery his­to­ry). That point was also one of a num­ber of argu­ments advanced by Deliv­eroo in an attempt to dis­tin­guish the case from Klooger v Foodo­ra Aus­tralia Pty Ltd [2018] FWC 6836 (in which Com­mis­sion­er Cam­bridge found a Foodo­ra deliv­ery rid­er was an employee).


In con­sid­er­ing whether the appli­cant was an employ­ee, Com­mis­sion­er Cam­bridge adopt­ed the mul­ti-fac­to­r­i­al approach which involves con­sid­er­a­tion of dif­fer­ent indi­cia, with no one fac­tor being deter­mi­na­tive, as well as a crit­i­cal analy­sis of the over­all nature of the relationship.

One of the more sig­nif­i­cant indi­cia relates to con­trol. Com­mis­sion­er Cam­bridge con­sid­ered it par­tic­u­lar­ly rel­e­vant that the SSB sys­tem used by Deliv­eroo had the capac­i­ty to retain and use the vast amount of data in its pos­ses­sion relat­ing to rid­er per­for­mance to con­trol when, where and for how long they per­formed work. It was also rel­e­vant that Deliv­eroo had the capac­i­ty under its sup­pli­er agree­ment to dis­ci­pline rid­ers, which he said also point­ed towards an ele­ment of control.

The Com­mis­sion­er acknowl­edged that although mul­ti-apping may, on the face of it, point against the exis­tence of an employ­ment rela­tion­ship, tra­di­tion­al arrange­ments for the per­for­mance of work have changed and it is now pos­si­ble for an employ­ee to work for two or more employ­ers at the same time. In this case, there­fore, the fact the appli­cant could work for com­peti­tors did not mil­i­tate against a find­ing that there was an employ­ment relationship.

Issues such as the inequal­i­ty of bar­gain­ing pow­er between the appli­cant and Deliv­eroo in nego­ti­at­ing the sup­ply agree­ment, the fact the appli­cant was not apply­ing a dis­tinct trade and the appli­can­t’s pre­sen­ta­tion as part of the busi­ness were also fac­tors relied upon by the Com­mis­sion­er in reach­ing a con­clu­sion that the rela­tion­ship between the appli­cant and Deliv­eroo was one of employment.

Hav­ing found the appli­cant worked for Deliv­eroo as an employ­ee, the Com­mis­sion­er then turned his atten­tion to whether his dis­missal was harsh, unjust or unrea­son­able. The rea­son for the dis­missal (fail­ing to deliv­er orders in a rea­son­able time in breach of the sup­pli­er agree­ment) was found to be not valid in cir­cum­stances where the appli­cant was not informed of the deliv­ery times that were expect­ed, nor that a fail­ure to meet those deliv­ery times would result in his dismissal. 

Orders for rein­state­ment, con­ti­nu­ity of ser­vice, and the restora­tion of lost pay were made.

The find­ings of Com­mis­sion­er Cam­bridge in this case come at a point where the work­ing con­di­tions of food deliv­ery rid­ers is fac­ing increased scruti­ny. It also comes on the back of an announce­ment by food deliv­ery ser­vice Menu­log that it will make its food deliv­ery rid­ers employ­ees, and apply to the FWC for a new mod­ern award for food deliv­ery riders.