Amita Gupta, an Adelaide-based woman who recently unsuccessfully sued Uber Eats with the Fair Work Commission for unfair dismissal for allegedly showing up 10 minutes late to work, is now appealing her case to the FWC Full Bench with the support of the Trade Workers Union.
The FWC held, in the initial proceedings, that Ms Gupta was an “independent contractor” rather than an employee, and therefore did not have a legal right to sue for unfair dismissal, as reported by ABC.
But, the appeal to the Full Bench may have flow-on effects for those operating in the gig economy, said McDonald Murholme lawyer Sam Nottle.
“The appeal might ‘embolden’ other individuals to make claims for entitlements and/or for unfair dismissal as an employee rather than independent contractors, given the media attention that has been received,” he posited.
“As the law currently stands, the question of whether an individual is an employee or independent contractor is determined on a case-by-case basis – there is no one-size-fits-all and one particular individual’s circumstances are not necessarily determinative of another. As a result, any decision from this appeal won’t necessarily have all that much bearing on other individuals in similar circumstances.”
What bringing the appeal will do, however, is embolden other individuals who find themselves in similar circumstances to make claims that they are an employee – especially given the uncertainty in this area of the law, Mr Nottle submitted.
“While the uncertainty remains, individuals will continue to make claims and these questions will continue to be raised. That will create further backlog in the Commission/Courts and leave a degree of uncertainty among businesses who operate in the gig economy – uncertainty is never a good thing,” he continued.
“This may very well be why the Transport Workers Union has taken on the case, in particular given the Fair Work Ombudsman’s recent findings which went ‘against’ Uber contractors being considered employees – they are looking to place pressure on the current government, be it state or federal, to reassess the law and regulation surrounding the gig economy and independent contracting.
“Contractors could be covered by specific legislation that regulates minimum pay and allows protection from unfair dismissal but would specifically preclude them from seeking employment entitlements such as annual leave, paid personal leave or long service leave.
“It would continue to allow companies and employees to maintain ‘flexible’ working arrangements as is the advantage of such gig economy work. It would also provide greater certainty and, while it doesn’t iron out all the issues, would be a step in the right direction in providing clarity to both business and individuals.”
Uber and Lyft are also in the spotlight in the US, Mr Nottle added, after a new bill was passed that requires app-based companies to designate contract workers as employees.
“The passage of the legislation in California sets an example for a pathway forward in Australia – it will promote further discussion surrounding the passing of legislation that regulates the gig economy,” he said.
“This must be counterbalanced with the element of flexibility that should be provided for in the gig economy and which has allowed innovation in the area, including providing consumers cheaper alternatives to rideshare/food delivery platforms. My view is that the third category of worker allows for flexibility [while] promoting certainty and minimum entitlements to these ‘dependent’ contractors.”
Reference: ‘Uber Eats’ fight against sacked driver has implications for the gig economy’, Lawyers Weekly, Thursday 19th September 2019