'Dasher' argues company had control over her daily activities
The Fair Work Commission (FWC) recently dealt with a case involving a worker who filed an application dealing with a dismissal dispute, yet she was allegedly not an employee of the company.
The employer argued that the worker was engaged as an independent contractor for the company, hence, no dismissal occurred.
Employee or independent contractor?
The company involved in the case manages an online marketplace facilitating the purchase and delivery of food and goods between merchants and customers.
As a delivery service, the company engages “Dashers” to perform the delivery of items ordered through the company’s platform.
The case noted that the worker involved established a Dasher account and accepted the terms of the company’s independent contractor agreement on 1 December 2021.
After the worker’s account was established, she started accepting delivery opportunities as a Dasher using a motor vehicle to perform deliveries.
According to the worker, the company provided her with a branded insulated box for the purpose of completing delivery opportunities.
Around July 2022, the company distributed a replacement independent contractor agreement for the Dashers.
The business records showed that the worker, as referenced to her Dasher ID number, had accepted the terms of the 2022 Agreement via the company’s platform on 29 July 2022.
Despite these records, the worker argued in her closing written submissions that she was from a non-English speaking background.
Hence, she did not “fully” understand the 2021 agreement because she did not read the whole document and solely relied on Google Translate.
The worker initially stated that she did not fully understand that she had already agreed to the 2022 agreement.
After such, she gave conflicting evidence that she could not recall whether she had ticked the box confirming acceptance of the 2022 agreement at all.
The worker further argued that, typically, an employer has control regarding the worker’s daily activities, including what to do, when to do it, and how to do it, which is far different from an independent contractor who has more control over their work.
She said that the employer exercised control over her using the company’s platform, which monitored her day-to-day activities.
Ultimately, the Commission found that the worker was not an employee of the company at the time that her engagement with it was terminated.
Having examined the totality of the relevant contractual rights and obligations in the 2021 agreement, the Commission was satisfied that the worker was engaged by the company as an independent contractor.
“I find that the terms of the 2021 agreement applied as at the time of the [worker’s] termination and that it is a wholly written comprehensive contract regulating the arrangement between the parties, that is not a sham, was not varied, and is not otherwise ineffective,” the Commission noted.
It further argued that the work performed by the worker under the terms of the 2022 Agreement was not extremely subordinate to the company’s business to the extent that it can be seen to have been performed as an employee of the company.