The Fair Work Commission found on Tuesday that Deliveroo rider Diego Franco was unfairly dismissed, a protection only extended to employees, on the basis that he was more akin to an employee than a contractor before he was dismissed by Deliveroo for “no valid reason”.

“In this case, when consideration of all the relevant indicia, has, like the colours from the artist’s palette, emerged to form a complete picture, the correct characterisation of the relationship between Mr Franco and Deliveroo is that of employee and employer. Although, the picture is impressionistic and not precise, it is nevertheless a compelling conclusion,” Commissioner Ian Cambridge found.

“Mr Franco was not carrying on a trade or business of his own, or on his own behalf. Instead, he was working in Deliveroo’s business as part of that business.”

The Commission ruled against arguments used by companies operating in the gig economy, including that because workers can work for competitors, they must be contractors.

In “the context of a modern, changing workplace impacted by our new digital world”, the Commission found this was insufficient justification. (Franco v Deliveroo Australia Pty Ltd [2021] FWC 2818, Fair Work Commission, 18 May 2021)