'Fired for taking a holiday': Bicycle couriers claim unfair dismissal
Two foodora cyclists have launched unfair dismissal claims in cases the Transport Workers Union believes could prove a test case for the burgeoning food delivery industry.
The two cyclists, Josh Klooger and Avi Winner, are launching claims arguing that they were unfairly dismissed for taking holidays and speaking out about being underpaid.
Transport Workers Union national secretary Tony Sheldon said that while the two workers were hired as independent contractors, foodora had treated them as employees.
The case will seek to build on the the High Court of Australia decisions in Hollis versus Vabu which found that couriers riding their own bicycles were employees and not independent contractors even though they were responsible for repairs, loss or damage to their equipment and uniforms.
A court will look beyond a contract arrangement to the total relationship between the worker and the company including the level of control the company exercised over the workers including their hours and requirements to wear uniforms to decide whether the workers are employees or independent contractors.
Mr Sheldon argued there was even more evidence that Foodora cyclists were allegedly employees than there was in the Hollis versus Vabu case which dealt with a bicycle rider working for Crisis Couriers.
"There are more requirements in my view at foodora, Deliveroo and Uber Eats than there was in the Vabu case," Mr Sheldon said.
Mr Sheldon said Mr Klooger had publicly raised concerns about his work and reduced pay rates before being sacked earlier this year. He had also allegedly refused to divulge online correspondence with other employees.
Mr Winner said he had a pressing need to take leave to go overseas late last year, but when he returned to work he was given fewer shifts and then allegedly sacked without notice for "inactivity".
"Companies on one hand are saying you have freedom to be a contractor, but if you act like a contractor they
terminate your employment," Mr Sheldon said.
"Riders are forced to make themselves available for shifts on the companies' terms and are penalised if they get injured, sick or take leave.
"These unfair dismissal cases are about demanding rights for workers and standing up to the tech billionaires."
The TWU will protest in Sydney on Wednesday over low wages and poor conditions for bicycle couriers.
A spokeswoman for foodora said its riders are engaged as "contractors" as part of the gig economy where flexibility and an autonomous workforce make it "unique, functional and appealing to workers".
The spokeswoman said no contractor is ever penalised for taking time off work if their absence is registered or communicated through appropriate channels.
"As a contractor, a termination of services can be enacted at any time," she said.
"There are no guarantees in terms of hourly wage, they have the freedom to work when and where they want, as much as they want.
"They have ability to accept and reject delivery orders as they wish. Furthermore, foodora contractors are not precluded from engaging with other operators simultaneously."