Suliman v Rasier Pacific Pty Ltd (2019)

  
Citation/case number: [2019] FWC 4807
Country: Australia
Year: 2019
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 working as an Uber driver in August 2017, pursuant to a services agreement with Rasier Pacific Pty Ltd ("Rasier Pacific"), an Australian company, and Uber BV, a company based in the Netherlands. He performed work for Uber pursuant to that agreement until February 2019, at which time his access to the Uber platform was terminated.

He subsequently applied to the Fair Work Commission for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (Cth). That application was opposed by Rasier Pacific, who raised a jurisdictional objection on the grounds that the claimant was not an employee but instead an independent contractor, and as such he was not entitled to protection 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 first dealt with a submission made by the claimant to the effect that the arrangement he had with Rasier Pacific was no different to that of a casual employee. In rejecting this submission, the Commissioner referred to the fact that although neither a casual employee nor a driver can be compelled to attend work, unlike a casual employee, an Uber driver cannot be compelled to accepted any requests received through the Uber platform after having logged on. As such, the essential elements of a "work-wages" bargain indicative of an employment relationship were not present (at [37]-[41]).

The Commissioner then proceeded to apply the multifactorial approach developed in other Australian cases to determine whether a person is an employee or an independent contractor. In doing so, she made the following observations:

• Exercise of control: Although Uber exercised some control over the way in which the claimant performed work, specifically by limiting the period for which he could continuously engage in work and by denying him the ability to independently assess the profitability of any given trip before accepting it, these considerations had to be balanced against the control the claimant had over when, where and for how long he worked. The limited degree of control exercised by Uber did not weigh in favour of a finding of an employment relationship (at [42]-[50]).
• Exclusivity: There was nothing in the services agreement preventing the claimant from driving for any other company or undertaking any other work of his choosing. This factor did not weigh in favour of a finding that the claimant was an employee (at [51]-[54]).
• Tools of trade: The claimant provided his own car and was responsible for repairs, maintenance and insurance. Neither the fact that the claimant sourced his vehicle through listings provided by Uber nor that the services agreement determined the standard of vehicle required meant that it provided him with tools of trade. These findings did not weigh in favour of a relationship of employment (at [55]-[60]).
• Subcontracting: There was evidence that the claimant could not allow any other persons to access his account on the Uber platform without violating a term of the services agreement, which suggested that he was unable to subcontract his work. This weighed slightly against a finding of independent contractor (at [62]-[64]).
• Payment of wages: The claimant was not paid a periodic wage, but was instead paid for each completed task (being the delivery of a rider to a specified location). Although the claimant did not set the amount he would be paid for each task, there was a limited ability to attempt to negotiate a different payment amount for each trip. He also paid a service fee to Rasier Pacific and was responsible for his own taxation arrangements. These factors weighed against the existence of an employment relationship (at [65]-[70]).
• Provision of paid leave: The claimant had no access to paid annual or sick leave, which weighed against a finding that he was an employee (at [71]-[75]).

In weighing these indicia and having regard to the absence of the essential elements of a "work-wages" bargain, the Commissioner concluded that the claimant could not be considered an employee of Rasier Pacific and was therefore not protected from unfair dismissal under section 382 of the Fair Work Act. Accordingly, the application for an unfair dismissal remedy was dismissed (at [76]-[83]).

Outcome

The claimant's application was dismissed as he was held not to be an employee of Rasier Pacific, and was therefore not entitled to any protection or remedy against unfair dismissal.

Link to decisions: Suliman v Rasier Pacific Pty Ltd [2019] FWC 4807

Other relevant publications

Jacques Duvenhage, 'Rajab Suliman v Rasier Pacific Pty Ltd: Employee or Independent Contractor?' (2019) 21 University of Notre Dame Australia Law Review 7