Deliveroo faces another legal action over an alleged unfair dismissal of deliver rider

The Australian food delivery rider had worked with Deliveroo for three years before his contract was terminated.

The Amazon-backed Deliveroo has been served a legal action at the Australian Fair Work Commission (FWC) by a former food delivery rider who alleges that they were unfairly dismissed.

According to the former rider, Diego Franco, Deliveroo terminated his contract in April because of slow deliveries but did not give specifics as to when and where the problem occurred. 

Franco said he was only given seven day's notice that he would no longer be working with Deliveroo. Prior to losing his Deliveroo contract, Franco had made Deliveroo deliveries for three years as his main job, he added.

Transport Workers Union (TWU) assistant national secretary Nick McIntosh said the case showed how the federal government needed to step up to protect workers by classifying food delivery riders as employees rather than independent contractors.

"Diego and thousands of food delivery riders like him have been hailed as the heroes of the pandemic, allowing restaurants to stay open and people to self-isolate. But this is really a lie if he can be sacked by an anonymous email stating he's being booted off the app," McIntosh said.

"The treatment of these so-called essential workers is appalling. They work weekends, nights, and in appalling weather with no penalty rates, minimum rates, or even guaranteed pay. They get no sick leave if they are unwell and need to stay at home. They get no superannuation or annual leave. And when they are no longer useful to the company they can be sacked without warning or the chance to appeal."

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At a press conference on Wednesday, Labor Senator Tony Sheldon called for Prime Minister Scott Morrison to support the Australian community through the COVID-19 crisis and to make sure individuals are paid decent wages in light of Diego's dismissal. 

"Workers are getting paid less than half the minimum wage whilst providing their labour, providing a car, the fuel, the insurance, and working at all times of night and day at less than half the minimum wage. As a national compact, Scott Morrison has a responsibility to not abandon thousands of young, struggling families that are trying to make a fair day's pay, for a fair day's work," Sheldon said.

"This government has a responsibility to make sure that they are stepping up for a national compact for the future of the Australian workforce, not just turning back the clock to the 1900s, which we all suspect. This government has a responsibility to say the gig workers are not the old piece workers of the 1900s and the 1800s, but an Australian workforce for the 2020s, and beyond. This government has a responsibility to make sure that a national compact is extended to every Australian to give them job security."

The argument that food delivery riders should be entitled to employee rights, such as sick leave and minimum wage rates, has had mixed success in the legal realm, having worked against Foodora but not against Uber.

The unfair dismissal case is the first of its kind against Deliveroo and follows the TWU filing an appeal at the Federal Court over an unsuccessful action last month where the FWC found an Uber Eats driver was not unfairly sacked because she was not an employee.

In that FWC decision, the bench said the former Uber Eats driver was never an employee as Uber did not exercise any control over when the driver performed her work, Uber Eats drivers are allowed to accept work through other food delivery apps, and Uber Eats drivers are not required to wear uniforms or bear company logos.

In response to the legal action, Deliveroo told ZDNet that it rarely terminates contracts with its riders as only 4% of them are let go every year.

"When a rider consistently fails to meet the service standards they signed up to, our team will investigate, notify the rider, and potentially consider ending our contract with that individual," Deliveroo said. 

"In this instance, the contract was ended because a high number of orders delivered by the rider were taking significantly longer to reach our customers than would reasonably be expected. The rider was notified of this, but this continued."

Deliveroo CIO Will Sprunt said last year "it would be amazing" if flexible work could be supplemented with sick leave and the ability to accrue holiday days, but noted that if riders were to be deemed as full-time employees, Deliveroo would be required to change the way its business operates.

"We've worked with the governments actually in the UK and France to try and change the legislation so we're able to offer these benefits without considering these people as full-time employees," he said at the time. 

Deliveroo is also separately facing another TWU-backed legal action for allegedly failing to pay the minimum wage to its riders.

Meanwhile, the Queensland government in April announced it had held meetings with "key stakeholders" to address the delivery fees that food delivery services such as Deliveroo and Uber Eats have been charging local cafe and restaurants.

Deliveroo then announced at the start of May it would remove the commission fee for pick-up orders and drop its commission rate to 5% where restaurants provide their own delivery to help local businesses that have been impacted by the novel coronavirus outbreak.

Deliveroo's commission relief will apply until June 5.

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