GIG ECONOMY LITIGATION DATABASE
Kaseris v Rasier Pacific VOF (2017)
Citation/case number: [2017] FWC 6610
Country: Australia
Year: 2017
Court: Fair Work Commission
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
On 29 August 2016, the claimant entered into a services agreement with Rasier Pacific VOF ("Rasier Pacific"), a partnership registered in the Netherlands and the provider of the Uber platform in Australia. He thereafter commenced working as a driver for Uber. On 11 August 2017, Rasier Pacific terminated the services agreement and deactivated the claimant's account on the basis that the claimant had failed to meet the service standards required by failing to maintain an adequate overall rating.
The claimant subsequently applied to the Fair Work Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth). That application alleged that the claimant was an employee of Uber at the time of his termination and was therefore protected against unfair dismissal under the statutory scheme. In response, Rasier Pacific submitted that the application should be dismissed as the claimant was engaged not as an employee but as an independent contractor, and therefore he was not a person protected from unfair dismissal.
Key issues for determination
Was the claimant an employee of Rasier Pacific such that he was entitled to an unfair dismissal remedy under section 394 of the Fair Work Act?
Finding
The Commissioner observed that in order to determine whether the claimant was an employee of Rasier Pacific at the time of his dismissal, Australian courts had developed a multifactorial approach, in which no single criterion was decisive, to assessing the nature of a contractual relationship. In applying these criteria to the relationship between the claimant and Rasier Pacific, the Commissioner made the following observations:
- Control: The claimant appeared to have had complete control over the way in which he conducted the services he provided. He was able to choose when to log in and log off the Uber app, he had control over the hours he wanted to work, he was able to accept or refuse trip requests (with some caveats) and he was free to choose how he operated and maintained his vehicle. All of these factors weighed in favour of an independent contractor relationship. Although certain factors showed some control by Rasier Pacific over the claimant and other drivers, including the ability set fares and certain service standards outlined under the services agreement, none were overwhelmingly strong factors, nor were they the kinds of control commonly associated with employment (at [54]-[55]).
- Equipment: The claimant was required to provide his own capital equipment in order to use the Uber platform and charge fares, including a vehicle and a mobile phone. The claimant was also required, at his own cost, to maintain valid registration and insurance for his vehicle, and a wireless data plan for his mobile phone. These factors weighed significant in favour of a conclusion that the relationship was one of principal and independent contractor (at [56]).
- Uniform: The claimant did not, and was not permitted to, display any of Rasier Pacific's or its affiliates s names, logos or colours on his vehicle. He did not and was not required to wear any uniform or other clothing which illustrates to the world that he was attached to or connected or associated with the Uber brand. This was a factor that weighed against a conclusion of an employment relationship (at [57]).
- Taxation: The services agreement made clear that the claimant was expected to maintain his own private taxation affairs, including registering for goods and services tax and remitting all tax liabilities. Rasier Pacific did not deal with the Australian Taxation Office on behalf of its drivers. This weighed in favour of an independent contractor relationship (at [58]).
- Terms and terminology of the services agreement: The services agreement outlined a limited relationship between the claimant and Rasier Pacific wherein Rasier Pacific would act as a payment collection agent and provide technology services to the claimant. While the Commissioner observed that simply labelling a relationship as that of independent contractor alone does not necessarily make that the case, when taken together with the totality of the relationship, this weighed in favour of such a conclusion (at [60]).
- Other indicia: Several other factors weighing against the existence of a relationship were identified, including the fact that instead of a wage, the claimant received a proportion of the fee charged for each trip; that the claimant did not accrue annual, sick and long service leave; and that Rasier Pacific did not make any superannuation contributions on behalf of or for the benefit of the claimant (at [61]).
On this basis, the Commissioner concluded that the relevant indicators of an employment relationship were absent, and the overwhelming weight of the relevant indicia instead pointed to the conclusion the relationship between the claimant and Rasier Pacific was one of independent contractor and principal. As such, the claimant was not a person protected from unfair dismissal at the time of his termination and was not entitled to any remedy under section 394 of the Fair Work Act (at [67]).
In so concluding, the Commissioner observed that the common law approach to distinguishing an employee from an independent contractor had developed and evolved at a time before the gig economy and as such, "[i]t may be that these notions are outmoded in some senses and are no longer reflective of our current economic circumstances". However, he noted that until labour law evolved to reflect the nature of the digital economy and offer protection to participants in the digital economy, the traditional tests of employment would continue to be applied (at [66]).
Outcome
The claimant's application was dismissed as he was held to be an independent contractor, rather than an employee of Rasier Pacific, and was therefore not entitled to any protection or remedy against unfair dismissal.
