In the recent decision of Diego Franco v Deliveroo Australia Pty Ltd [2021] FWC 2818, the Fair Work Commission (FWC) found that a Deliveroo rider was an employee of Deliveroo & protected from unfair dismissal despite the ability of the worker being able to work for competitors, the terms of the written contract providing for an independent contractor relationship & the ability for the rider to subcontract.

The FWC based the decision on a number of factors, including the ‘Degree of Control’ – Deliveroo directed the worker to undertake work at particular times, to make himself regularly available for work and to not cancel booked engagements.

A secondary consideration was ‘Presentation’ – the worker was encouraged to wear a uniform and, in this way, was encouraged to present himself as part of Deliveroo.

Other factors included the method of remuneration, taxation obligations, paid leave & goodwill created by the parties.

Having found that the worker was an employee, the FWC found his dismissal to be unjust, unreasonable & unnecessarily harsh. The FWC ordered the worker be reinstated, the continuity of his service be recognised and Deliveroo pay the worker remuneration lost because of his dismissal.

If you are concerned about the nature of your engagement with a business owner or seeking advice as to the prospect of a potential claim being made by a contractor, contact us to discuss your position: (03) 9005 0829 or