Josh Klooger commenced employment with Foodora as a food deliverer on 11 March 2016. The contract specified that Mr Klooger was being engaged as an independent contractor, not an employee, and stipulated that Mr Klooger would be paid $14 per hour plus $5 per delivery.
By February 2018, Foodora deliverers were being paid only $7 per delivery and no hourly wage. Mr Klooger made public complaints about these rates and on 22 February 2018 Foodora management wrote to Mr Klooger raising concerns about him breaching confidentiality and intellectual property rights but maintaining and refusing to transfer ownership of a Telegram chat group to Foodora. On 2 March 2018 Foodora management wrote to Mr Klooger again and gave notice of termination effective immediately.
Mr Klooger made an Unfair Dismissal application on 14 March 2018. Foodora raised a jurisdictional objection, that is, it claimed that the Fair Work Commission did not have power to deal with the application, on the basis that Mr Klooger was not an employee but an independent contractor.
Fair Work Commissioner Ian Cambridge applied a multifactorial test to determine the question of whether Mr Klooger was an employee or an independent contractor. The following factors, among others, contributed to the determination that Mr Klooger was a Foodora employee:
The Commissioner then went on decide the Unfair Dismissal application and held that there was no valid reason for the dismissal of Mr Klooger relating to his capacity or conduct. Furthermore, Mr Klooger’s dismissal by email and without warning was ‘plainly unjust, manifestly unreasonable, and unnecessarily harsh’. Foodora was ordered to pay Mr Klooger almost $16,000 as compensation for his unfair dismissal.
New technologies and business models are changing the nature of employment relationships and this landmark decision will have implications for those working in the gig economy. Drivers for food delivery services like Foodora may more properly be described as employee with the entitlements that follow notwithstanding that the contract states that the relationship is that of independent contractor.
Factors that point to an employer-employee relationship include:
As employees, deliverers and couriers would be able to access the work rights and entitlements as provided in the Fair Work Act 2009 (Cth) and modern award such as minimum wage rates and allowances, paid leave, superannuation, procedural fairness and the right to lodge an application to the Fair Work Commission.