GIG ECONOMY LITIGATION DATABASE
Pallage v Rasier Pacific Pty Ltd (2018)
Citation/case number: [2018] FWC 2579
Country: Australia
Year: 2018
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
The claimant commenced work as a driver for Uber on 25 July 2016 pursuant to a services agreement with Rasier Pacific VOF, a partnership registered in the Netherlands. That services agreement was later varied to be between the claimant and Rasier Pacific Pty Ltd ("Rasier Pacific"), an Australian company, and Uber BV, a Netherlands company. On 4 December 2017, the claimant's account was deactivated and his capacity to work as an Uber driver was terminated.
On 19 December 2017, the claimant applied to the Fair Work Commission for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (Cth). Rasier Pacific objected to the claimant's application on the grounds that the nature of the relationship between it and the claimant was one of principal and independent contractor, and not of employment.
Key issue 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 recognised that determining whether the relationship between the claimant and Rasier Pacific was one of employment or independent contractor required the application of a multifactorial approach. In applying the various indicia to the present case, he made the following observations:
- Nature of the work performed and manner of performance: In overall context, the work performed by the claimant for Rasier Pacific was that of passenger transportation. That work was relatively high volume, largely unskilled and performed alone with customers. It was performed repetitively and over many engagements for the same principal, and the claimant did not bring anything especially entrepreneurial to the arrangement. While these factors had some consistency with an employment relationship, they did not persuasively lead to a finding of employee nor of independent contractor (at [23]-[28]).
- Terms and terminology of the services agreement: The services agreement explicitly stated that the claimant was not an employee of the Rasier Pacific or Uber or any of its affiliates. It also records the parties' intention that there would be a direct legal relationship between the claimant and the passengers to whom he provided services. While some elements of the contract appeared more consistent with an employment contract, most did not. Although not determinative, these factors weighed against an employment relationship (at [29]-[34], [53]).
- Control: The claimant was able to choose when to log into and log off from the Uber platform, and he had control over the hours he wanted to work and was able to accept or refuse trip requests. As such, the available evidence suggested that there was relatively weak control of the claimant by Rasier Pacific. This weighed in favour of a finding that the arrangement between the parties was that of an independent contractor (at [36]-[37]).
- Performance of work for others: There was no evidence of any prohibition on the claimant working for others, which weighed against a finding of employment (at [38]).
- Equipment: The claimant provided substantial equipment to fulfill the contractual duties, principally in the form of a vehicle and a mobile phone and attendant data connection. The vehicle was required to be licenced, insured and roadworthy at the expense of the claimant. These matters resolved in favour of a finding that the relationship was more likely one of an independent contractor than that of an employee (at [40]).
- Delegation or subcontracting: There was evidence that the claimant was unable to delegate or subcontract any work he was tasked with through the Uber platform, which weighed in favour of a finding of an employment relationship (at [41]).
- Capacity to suspend or dismiss: The services agreement provided for mutual rights of termination, and the claimant was terminated immediately and without notice for breaching Uber's community standards. The right of a principal to suspend or dismiss a person for misconduct in this way was more suggestive of a contract of service, or employment, rather than a contract for services (at [42]-[45]).
- Emanation of the business: The services agreement prohibited the claimant from displaying anything that would identify his vehicle as an Uber vehicle or wearing a uniform or any other clothing that might identify him as working for Uber. This weighed against a finding of an employment relationship and instead was more consistent with an independent contractor (at [46]).
- Taxation: The claimant was required to register as a sole trader and enrol for the payment of goods and services tax, as well as to remit all tax liabilities. This weighed against a finding of an employment relationship (at [47]).
- Mode of remuneration: The claimant was not paid a periodic wage or salary and the payments he received were referrable to the completion of tasks, namely the acceptance of an undertaking of trip requests. This resolved in favour of a finding that the relationship was closer to that of an independent contractor than of an employee (at [48]).
- Paid leave: There was no evidence that paid annual or sick leave was available to the claimant, and the services agreement made no reference to such. However, as a casual employee would likewise not have direct access to paid leave, this was a neutral consideration (at [49]).
Based on his assessment of the above indicia, the Commissioner concluded that on balance, the evidence showed that the claimant was not engaged as an employee of Rasier Pacific but instead as an independent contractor. Accordingly, the Commissioner concluded that the claimant was not at the relevant time a person protected from unfair dismissal, and his application for unfair dismissal remedy pursuant to section 394 of the Fair Work Act was dismissed.
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.
