Gupta v Portier Pacific Pty Ltd & Uber Eats Australia Pty Ltd [2020] FWCB 1698 21 April 2020

Nearly everyone has had an exposure to the gig economy.  From online food delivery, transport and multiple other means of provision of goods and services, technology enabled platforms bring convenience to our fingertips.  These platforms have also revolutionised the people who full the services upon which you rely, the ‘gig worker’.  Essentially, these persons undertake the task of delivering the food or driving you to your next destination.  What happens to these gig workers when things don’t work out for them?

The recent case of Gupta in the Fair Work Commission highlights what rights a gig worker has when they believe they have been unfairly dismissed.  Ostensibly a case concerning the ‘unfair dismissal’ this case went to the core issue of what is an employee.  Ms Gupta was appealing a decision in the Commission refusing her unfair dismissal claim on the basis that she was not an employee and thus unable to pursue an unfair dismissal claim.

Under the Fair Work Act, an employee who has been dismissed can, subject to certain exceptions, bring a claim for unfair dismissal.  The issue for the Commission in most circumstances is to establish whether the persons was an employee, whether they were dismissed other than for redundancy and if so, whether the dismissal was unfair, harsh or unreasonable.

For Ms Gupta, an Uber Eats gig worker, when she was dismissed from the “app” and thus excluded from providing services, she bought a claim for unfair dismissal.  The Uber Eats entities who provide the platform for the restaurants to fulfill consumers orders and the drivers to deliver the orders, denied that they were liable to Ms Gupta for unfair dismissal.  They did so on two basis, namely that there was no work/wage relationship and if there was such a relationship, Ms Gupta was a contractor and not an employee.

The original commission decision (the subject of the appeal) held that there was no work/wage relationship and that Ms Gupta was an employee. On appeal, the Full Bench majority held that whilst there was a work/wage relationship Ms Gupta was a contractor and not an employee.

In reviewing the work wage bargain, the Full Bench majority rejected the argument that Uber Eats did not have a relationship with Ms Gupta.  In finding that Ms Gupta did perform the delivery work for and as paid by Uber Eats, the majority focused on the following key points:

  1. There was no basis to conclude that Ms Gupta was engaged by the Restaurants The service agreement did not allow her to deal direct with the Restaurant and when an order was ready to be fulfilled the Restaurant did not engage Ms Gupta but rather a delivery driver designated via the Uber Eats platform;
  2. The obligations to perform the work were between Uber Eats and Ms Gupta via the service agreements. There was no obligation or performance standards imposed between restaurant and Ms Gupta; and
  3. Payment for the service delivery was solely within the control of Uber Eats. They collected the fee from the client and then disbursed the relevant fees to both Ms Gupta and the restaurant.

With this steps in the process satisfied, the Court was then required to consider whether Ms Gupta performed those services as an employee or contractor. In this respect the Commission adopts the ‘multi factorial’ test.  This requires the Commission to consider a number of ‘indicia’ which go to the finding of a employee or contractor.  In this regard, the Commission reviewed the agreement and the manner and environment in which the arrangement worked.  As to the relevant facts, the court considered the following:

  • As neutral factors; Whilst Ms Gupta provided her own work equipment (car and mobile) that equipment was not specialised and were not purchased to provide the service.  Whilst Uber Eats does impose performance and quality standards, they were not inconsistent with a contractor relationship. The fact that Uber Eats did not pay leave or superannuation was more indicative of Uber Eats view of the relationship rather than confirmation of a contractor relationship.
  • As to factors favouring an employment relationship; There was no requirement to have specialist skills to perform the service. The fee structure was set by Uber Eats.  There was no basis to conclude that Ms Gupta was carrying on an independent business as she was not able to generate good will or develop relationship with restaurants.  Ms Gupta was not able to delegate her work to others (especially given the unique log on code and facial recognition requirements of the delivery app).

However, after taking these matters into account, the Commission found that there were three key elements of the arrangement that favoured a principal/contractor relationship. They were:

  1. Uber Eats exercised no control over when or for how long Ms Gupta performed the work. Ms Gupta was free to choose when to log on and when logged to accept or decline a delivery request;
  2. Ms Gupta had the ability to perform other work when working with Uber Eats. There were no specific limitation on her ability to work for competing food delivery platforms whilst logged onto Uber; and
  3. Ms Gupta was not required to be identified as part of Uber. She did not have any specific item of clothing or other badges which would satisfy the requirement that she was an ‘emanation’ of the Uber Eats business.
Take Out

With the rise of online platforms and the gig economy, the rights of gig workers are substantially less than a conventional employee.  Whilst framed as convenient for the gig worker, questions are being asked as to whether the convenience afforded by these online platforms is really a substantial erosion of rights for those who seek work to support themselves and family.

If you have any questions about employment related issues, please do not hesitate to contact our employment law team, Heath Adams and Amelia Hatton on 02 9635 3404 or email us at info@adamslawyers.com.au.

Written By Heath Adams

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