GIG ECONOMY LITIGATION DATABASE
Gupta v Portier Pacific Pty Ltd (2020)
Citation/case number: [2020] FWCFB 1698
Country: Australia
Year: 2020
Court: Fair Work Commission (Full Bench)
Status: Determined
Topic/theme: Employment relationship
Issue: Unfair dismissal
Claimant type: Individual
Respondent type: Corporation
Legislation considered: Fair Work Act 2009 (Cth), ss 380, 382, 386, 394
Factual background and procedural history
The claimant commenced work as a delivery driver for Uber Eats in September 2017, pursuant to services agreement with Uber BV and Portier Pacific Pty Ltd ("Portier Pacific"), an Australian subsidiary of Uber BV. In December 2018, her access to the platform was suspended. Her access was later restored, but she was then subsequently permanently blocked from accessing the Uber Eats app in January 2019. There was evidence that the reason for the claimant's suspension and subsequent blocking was that she was failing to meet Uber Eats' standards for timely delivery.
The claimant subsequently applied to the Fair Work Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth). The respondents to the application were named as Portier Pacific and Uber Australia Pty Ltd ("Uber Australia"), two Australian subsidiaries of Uber BV ("the Uber entities"). The Uber entities opposed the application, raising two jurisdictional issues: (1) that the claimant had no relationship with Uber Australia and as such it was not a proper respondent and the application insofar as it concerned that entity should be dismissed; and (2) that the claimant was not an employee of Uber Eats and therefore, by virtue of sections 380 and 382 of the Fair Work Act, was not entitled to protection against unfair dismissal. After finding that there was no proper basis for joining Uber Australia as a respondent, the Commissioner dismissed the claimant's application for an unfair dismissal remedy, holding that the claimant was not an employee of Portier Pacific for the purposes of the Fair Work Act.
The claimant subsequently appealed against the Commissioner's decision to the Full Bench of the Fair Work Commission, contending that the Commissioner was in error in deciding that she was not an employee of Portier Pacific (at [30]-[31]). Portier Pacific disputed this, submitting that the claimant was neither an employee nor an independent contractor as she was not performing delivery work pursuant to a contractual relationship with Portier Pacific. Instead, it was submitted that the claimant performed each delivery task pursuant to a contract with the restaurant she collected each order from, that the restaurant had the obligation to pay her, and that Portier Pacific acted merely as the agent of the restaurant in arranging for the claimant to pick up and deliver the meal, and acted as the claimant's "limited payment collection agent" in collecting the delivery fee on her behalf and remitting it to her (at [36]). Reference was also made to the Commissioner's findings that the essential elements of the so-called "work-wages" bargain (reciprocal obligations to work and to pay) were absent in the present case and thus no employment relationship existed (at [33]).
Key issues for determination
(1) Did the claimant perform her delivery work pursuant to a contractual relationship with Portier Pacific; and (2) was the claimant an "employee" of Portier Pacific so as to be entitled to an unfair dismissal remedy under section 394 of the Fair Work Act?
Finding
The majority of the Full Bench first observed that the multifactorial evaluative approach adopted in determining the nature of an employment relationship proceeds on the premise that the individual in question personally performs work pursuant to a contractual relationship with another person or entity. It noted that in this case, a prior question arose: did the claimant perform her delivery work pursuant to a contractual relationship with Portier Pacific at all, or was she in fact performing work for, and being paid by, the restaurants for which she was delivering orders, with Portier Pacific merely acting as a payment agent? (at [36]).
The majority found that this question was to be answered by reference to the substantive rights and obligations under the services agreement and other policies and the commercial or working reality of the overall arrangement by which the claimant delivered restaurant meals to customers (at [44]). Notwithstanding the fact that the services agreement sought to characterise the claimant as neither an employee nor an independent contractor of Portier Pacific, the majority referred to three matters it considered demonstrative of the proposition that the claimant performed her delivery work for, and was paid for it by, Portier Pacific:
- The absence of any basis to conclude that there was any contractual relationship between the claimant and any restaurant in relation to which she delivered a meal to a customer (at [45]).
- The fact that any obligations attaching to the performance of the delivery work were to be found in the services agreement between the claimant, Portier Pacific and Uber BV (at [46]).
- The fact that payment for the claimant's delivery work was a matter entirely within the control and responsibility of Portier Pacific, and the price for the work was set by Portier Pacific, not any restaurant (at [47]).
Based on these factors, the majority held that Portier Pacific engaged the claimant to perform delivery services for it, and paid her for them, as part of a business by which it delivered restaurant meals to the general public, and as such the minimum reciprocal obligations of work and payment ("work-wages" bargain) could be said to exist (at [48]).
Having so concluded, the majority proceeded to consider whether the claimant did so in the capacity of employee or independent contractor. It first identified features of the Uber Eats business model that were neutral in this regard:
- Although the claimant was required to provide her own motor vehicle and mobile phone in order to carry out her work, these were not specialised items of equipment, and were not purchased for the purpose of performing Uber Eats work because they were already owned and used for personal purposes, and as such did not necessarily point to her being an independent contractor (at [65]).
- The degree of control exercised by Portier Pacific through the various obligations imposed by the services agreement, policy documents and the ratings system to require the performance of the work to a satisfactory standard does not necessarily point to an employment relationship, as there was nothing particularly unusual about a principal establishing and enforcing performance and quality standards in respect of independent contractors engaged to perform work (at [66]).
- The fact that the claimant was remunerated on a per-delivery basis, received no leave or superannuation benefits, and was responsible for her own taxation obligations did not point to her necessarily being an independent contractor, as this was a natural means to remunerate the deliverers regardless of their status (at [67]).
The majority then identified some matters which it suggested leant in favour of a finding of employment (at [68]):
- The claimant's work did not involve the exercise of any particular trade or skill, and required no special qualifications.
- The rate of the delivery fee was set by Portier Pacific, and it superintended the payment to her of remuneration on a weekly basis.
- There was no aspect of the claimant's work which would permit it to be characterised as the carrying on of an independent business or enterprise: she had no means of independently expanding her customer base or generating additional work within the Uber Eats business or of establishing goodwill with any of the restaurants or customers with whom she dealt.
- The claimant was not permitted to delegate the work, since she was required from time to time to use facial recognition software to log on to the Uber Eats platform.
However, the majority ultimately held that there were three critical factors telling decisively against the existence of an employment relationship (at [69]):
- Portier Pacific exercised no control over when, whether or for how long the claimant performed her work.
- The claimant had no obligation of exclusivity of service to Portier Pacific when she was undertaking work, and there was no practical impediment to her accepting work through other competitor food delivery apps or perform other types of passenger or delivery work.
- The claimant was not represented to others as an emanation of the Uber Eats business in the performance of her work: she was not required to wear a uniform, her car bore no logos, and there is no evidence that she was required to even represent that she was part of the Uber Eats business beyond what was necessary to collect the particular meal from the restaurant and deliver to the customer.
As such, the majority concluded that the claimant's relationship with Portier Pacific did not bear the usual and essential hallmarks of an employment relationship, and as such she could not be considered its employee (at [70]).
In a separate opinion, Deputy President Colman agreed that the appeal should be dismissed, but reached a different conclusion as to the nature of the relationship between the claimant and Portier Pacific. He accepted Portier Pacific's submission that the claimant was neither an employee nor an independent contractor of Portier Pacific, finding that there was no "work-wages" bargain between the claimant and the company. In this regard, he noted that although the claimant undertook delivery work, it was not work performed for Portier Pacific, and she was not subject to any contractual obligation to perform work for the company nor party to a contract for services with Portier Pacific as an independent contractor (at [77]-[78], [81]).
Outcome
The Commissioner's decision that the claimant was not an employee of Portier Pacific was upheld, and the appeal was dismissed.
