The Applicant, a driver for Uber, applied for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act) following his dismissal by the Respondent, Raiser Pacific V.O.F, in August 2017.
The Applicant had entered into a Services Agreement with the Respondent, in which the Respondent facilitated the Applicant’s operation as a Driver for Uber, namely through providing the Applicant with software that would allow it to connect with potential passengers. In response to the Applicant’s failure to accord with the requisite service standards and in particular, to maintain an adequate total rating, the Respondent terminated the Services Agreement between the parties.
KEY ISSUES IN DISPUTE
The Respondent argued before the FWC that the Applicant’s application under s 394 of the Act should be dismissed due to the fact that the Applicant was engaged as an independent contractor, not an employee and therefore, that the Applicant was not a person protected from unfair dismissal.
The FWC denied the existence of factors that would indicate an employment relationship between the parties and in doing so, held that the Applicant was an independent contractor. As a result, the Applicant was held to be a person not protected from unfair dismissal.
In reaching it’s conclusion, the FWC drew on the court-developed multi-factorial approach which seeks to establish whether a contractual relationship is governed by a contract for service, or is one of employment. This approach relies not on a single decisive criterion but rather, the weighing up of several, potentially conflicting elements, to ultimately determine the nature of the contractual relationship in question.
It is crucial that a contract between parties is correctly characterised at the outset in order to establish the parties’ rights and obligations. When seeking to characterise your work status, it is important to look beyond contractual categorisations to the essence of the relationship, including each parties’ purpose and role. While none of the factors are singularly determinative, the Fair Work Ombudsman lists an established set of factors which help to distinguish between an employee or independent contractor: