FWC Finds Deliveroo Rider is an Employee in Franco v Deliveroo

Friday 21 May 2021 @ 11.29 a.m. | Industrial Law | Legal Research

In Franco v Deliveroo Australia Pty Ltd [2021] FWC 2818 (18 May 2021), Deliveroo has been ordered to reinstate a rider after the Fair Work Commission (“the FWC”) ruled that the driver, Mr Franco, was unfairly dismissed. Mr Franco was found to be an employee of Deliveroo rather than an independent contractor.

Mr Franco worked as a food delivery rider for Deliveroo for three years before he was sacked via email in April 2020. Deliveroo then lodged a jurisdictional objection to his unfair dismissal application on the basis he was an independent contractor, rather than an employee. Deliveroo argued that as he was an independent contractor, and therefore that there was no unfair dismissal.


Most workers for food delivery platforms such as Deliveroo are classified as “independent contractors”. This means that they do not have access to the same protections as employees such as unfair dismissal, sick leave and minimum wage.

According to an email sent on 23 April 2020, Deliveroo claimed that Mr Franco frequently took “significantly longer” than expected to complete “a high number” of deliveries. The email also stated that Mr Franco had previously been “notified” of his performance issues, and that Deliveroo thereby terminated his “supplier agreement” due to his slow deliveries.

Mr Franco argued he was unfairly dismissed as he didn't receive any notification or warning from the company prior to the seven days notice of his termination. Mr Franco challenged his dismissal with the help of the Transport Workers' Union ("the TWU").

The Decision

In handing down his decision, Commissioner Cambridge said at [para 42]:

“… Mr Franco was not carrying on his own business as had been asserted by the submissions made on behalf of Deliveroo … Mr Franco was not engaged in his own business …”

The Commissioner stated at [para 160] that the dismissal of Mr Franco was:

“…harsh, unjust and unreasonable. Therefore, the applicant’s claim for unfair dismissal remedy has been established”.

Commissioner Cambridge also said at [para 165]:

“Mr Franco had every justification for being aggrieved by the callous and perfunctory termination of his services and any criticism of Deliveroo’s conduct was understandable.”

The Commissioner ordered Deliveroo to reinstate Mr Franco and repay him for lost earnings.

Independent Contractor or Employee?

Deliveroo argued that its riders are independent contractors as they are free to decide when they work, and can work for multiple platforms. However, Commissioner Cambridge said that in considering the overall picture, Mr Franco was an employee as he [at para 139]:

“… was not carrying on a trade or business of his own, or on his own behalf. Instead, he was working in Deliveroo’s business as part of that business. Importantly, the level of control that Deliveroo possessed, and which it could choose to implement or withdraw …”

The Commissioner said this was representative of employment, rather than of independent contracting.

Michael Kaine, National Secretary of the TWU, commented in an ABC News article that the ruling supports the TWU's calls for the federal government to establish a tribunal to regulate gig economy work:

“The treatment of gig workers isn't just unfair, it is deadly. Riders work under the spectre that they may get sacked at any moment and are forced to risk their lives to make deliveries quickly.”

Comment from Deliveroo

Deliveroo commented in an ABC News article that it was planning to appeal the decision, with a company spokesperson stating:

“We do not accept the premise upon which the decision was taken and do not believe this reflects how Deliveroo riders work with the company in practice.”

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