- Diego Franco is suing Deliveroo for unfair dismissal
- It may be considered a test case for workers in the gig economy, who want more rights
- Demand for food delivery services has surged to unprecedented levels
It had been his main job for three years, since he moved to Sydney from his native Brazil.
But at the height of the pandemic, Deliveroo sacked him, in late April, for essentially being too slow.
Now he’s suing the food delivery giant at the Fair Work Commission.
Depending on what the FWC decides, this test case might set a precedent with expensive consequences for Deliveroo and its competitors in the gig economy.
Deliveroo said Mr Franco frequently took “significantly longer” than expected to complete “a high number” of deliveries, according to an email it sent him on April 23.
It said he had previously been “notified” of his performance issues, and tore up his contract with seven days’ notice.
Mr Franco argues he was unfairly dismissed as he actually didn’t receive any “notification” or warning from the company before he was terminated.
“If I’d been told there was an issue with my work, I would have done something about [it]. I wasn’t told at all,” he said.
‘They just don’t care’
The motorbike courier, 32, also denies Deliveroo’s claim that he was too slow on the job.
“It doesn’t make sense for us riders to drop off the food late, as we don’t get paid much money.
“As fast as you can, and as safe as possible, you do drop-off — the more orders you get, [the] more money you make.”
The minimum wage is $19.49 per hour.
Mr Franco said he was paid, on average, $10 to $12 per delivery, and it could be tough to earn minimum wage on a quiet day.
“It was frustrating, as I’ve been with them for years and they just didn’t care what I had to say.
“I mentioned all of my personal problems, my loss of income, my wife and 11-month-old daughter, who I need to take care of … but they [Deliveroo] just don’t care.”
He also lost his job at a time of unprecedented demand for food deliveries.
Consumers have been spending 230 per cent more on food deliveries during the coronavirus pandemic, compared to an “ordinary week”, according to a real-time spending tracker developed by analytics firm AlphaBeta and credit bureau illion.
Mr Franco has since found a new job with one of Deliveroo’s competitors, but is not earning as much as he used to.
He says this is because a huge number of people who lost their jobs during the pandemic have turned to food delivery, meaning there is less work to go around.
Independent contractors, not employees
Deliveroo says it terminates 4pc of its riders each year, which is “extremely rare”. (ABC News: Mridula Amin)
But the problem for Mr Franco, in this case, is that the law may not necessarily be on his side.
Deliveroo hires its riders as “independent contractors”, rather than “employees”.
To succeed, he would have to convince the FWC that he was really an employee, and that Deliveroo had engaged in “sham contracting”.
Basically, that means misrepresenting its employees as contractors (who are their own bosses, running their own businesses), to avoid paying minimum wage, annual leave, sick leave, superannuation and other entitlements.
Also, employees are protected by unfair dismissal laws. Contractors are not.
The food delivery business relies on low-cost, on-demand workers who are generally not paid an hourly wage.
If Deliveroo, and rivals Uber Eats and Menulog, were forced to re-classify their riders as “employees” under the law, that would threaten the viability of their business model, with labour costs skyrocketing.
“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,” said Nick McIntosh, the Transport Workers Union’s assistant national secretary.
The TWU is funding Mr Franco’s case against Deliveroo.
“The treatment of these so-called essential workers is appalling,” he said.
“They work weekends, nights and in appalling weather with no penalty rates, minimum rates or even guaranteed pay.
“And when they are no longer useful to the company they can be sacked without warning or the chance to appeal.”
‘Extremely rare’ terminations
Deliveroo says it will defend the case, and has strongly disputed Mr Franco’s claims.
“Ending a contract is extremely rare, impacting 4 per cent of riders each year,” the company’s spokesperson told the ABC.
“We confirm that in the three months prior to the notice to end his agreement, Deliveroo notified Mr Franco twice regarding poor delivery outcomes.
“In the six-week period prior to the termination notice, his delivery performance was significantly poorer than the average of riders in the same area using the same vehicle type.
“We understand Mr Franco’s position and are empathetic towards the concerns he has raised.
“However, based on the reasons outlined above, we are not able to reinstate his service agreement.”
“Our customers rightly expect their food to be delivered promptly, restaurants’ reputations rely on a good service delivering their food hot and in good condition, and other riders do not want the behaviour of a minority to turn customers away from ordering Deliveroo.”