By the time he was made redundant, in April 2020, Brazilian Diego Franco had been working for Deliveroo for over three years.
In the email of his dismissal, Deliveroo justified their actions by saying Franco's delivery time was taking too much time to deliver his goods.
He lost immediate access to the app seven days later and saw himself unemployed with no perspective of finding another job quickly amidst the pandemic.
He contends that at no time he had been warned of his unsatisfactory performance. Deliveroo, however, argues that the rider had been notified twice. "I did look for the notifications in my email inbox, spam and app, but did not find anything. I never received any of those warnings", he said.
Franco then decided to take legal action against the company. He contacted the Delivery Rider Alliance, the Deliverers Union, connected to Australia's Transport Workers' Union, for help and support.
In the past year, while the events unfolded at the Fair Work Commission, Diego Franco took part in three trial hearings. He had to answer all types of questions related to his job at Deliveroo, including questions from the company attorney.
At the end of the Commission process, a few days ago, Fair Work Commission concluded that Diego Franco was a Deliveroo employee during the three years he spent working for the company, and he faced an unfair dismissal. Fair Work found that the rider should be classed as an employee rather than a contractor. Deliveroo has to hire him again and pay for the period he was unemployed by the company, from April 30th 2020, when he was made redundant, to the end of the Commission process.
Deliveroo can appeal to the Federal Court against the decision. "Riders often tell us that the freedom that comes with self-employment is the main reason they choose Deliveroo, and we will appeal that decision to protect those freedoms," said a spokesperson for Deliveroo to the Associated Press.
Diego Franco afirma nunca ter recebido os emails de aviso antes da mensagem que confirmava seu desligamento. Source: AAP Image/Supplied by Transport Workers Union
According to Deliveroo, Franco was an independent contractor and had no employment links to the company, as they had no control over when, where or for how long he worked. He could use multiple delivery platforms simultaneously to generate work.
But the Fair Work Commission decided that the relationship between the company and Diego Franco was of an employer-employee. Among the reasons for this decision was the fact that the rider had to wear a uniform, attend a shift system and have his performance evaluated.
"The level of control that Deliveroo had over Franco represents an indication that strongly supports the existence of an employment relationship instead of casual independent hiring. Being able to work for various delivery applications does not represent a relationship of autonomy, especially during the pandemic," said Commissioner Ian Cambridge.
Ian Cambridge criticised Deliveroo for its treatment of Diego Franco by effectively firing him via email and the justification of late deliveries.
Michael Kaine, National Secretary of Transport Workers' Union, says, "This decision should impact all contract riders in Australia. We ask the federal government to review the decision and start drafting regulations from now on."
Diego Franco just received the news of the decision of the Fair Work Commission that was favourable to him in this case. He knows that the company will appeal the decision, and perhaps the case will be taken to the Federal Court. "I am going to wait and see what happens. But I already consider this a victory for me and all the riders in Australia. Because of the Fair Work's decision, many companies in the sector may offer more protection and security and look after their employees".
"I already consider this a victory for me and all the riders in Australia. Because of the Fair Work's decision, many companies in the sector may offer more protection and security and look after their employees".
Asked about the possibility of resuming his work at Deliveroo, Franco says he has not made a decision yet because he now has another job at a warehouse for the past six months.
Even so, he is proud to be part of a worldwide movement of delivery workers from several countries who have won more rights through actions like the one he bravely decided to take, suing Deliveroo.
Despite the uncertain outcome of the process, he leaves a message for those who, like him, are immigrants, are on a temporary visa in the country, do not have English as their first language, but feel wronged by the employer: “If you are an honest person, a worker who does everything right and realizes that they are taking advantage of you, fight for your rights. In Australia, some institutions can help you. You are not alone. Don't be afraid to be a student or an immigrant”. And he adds: “Justice will always be done”.
