Gig economy employers are keeping a keen eye on the courts
A former Uber driver has failed in his bid to be deemed an employee over an alleged unfair dismissal.
The Employment Court ruled Atapattu Arachchige was not employed by the tech company when his access to the driver app was deactivated in June 2019.
The former taxi driver was among the first people to sign up for Uber when it launched in New Zealand in 2015.
According to the court ruling, Arachchige’s access to the app was removed after an alleged complaint from a customer.
He lodged an application for employment status with the court in order to bring unfair dismissal proceedings.
But the court dismissed his application, ruling that the nature of the relationship meant Arachchige could operate his business in the manner and at the times he wished.
“His work was not directed or controlled by Uber beyond some matters that might be expected given Mr Arachchige was operating using the Uber ‘brand’,” Judge J C Holden remarked.
“The agreement between Uber and Mr Arachchige reflected the parties’ intention, and the parties acted in accordance with the agreement.”
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The ruling referenced several previous hearings decided on by Australia’s Fair Work Commission relating to gig economy workers.
The FWC uses a multifactor legal test to establish the status of the plaintiff in each case, including the terminology of the contract and whether the organisation has the right to exercise power over the nature, place and hours of the work performed.
In each of the four rulings cited, the FWC has ruled the plaintiff was not an employee.
The hearing also looked at a recent landmark case in the UK whereby an employment tribunal ruled an Uber driver to be a worker.
However in that case, Uber held the driver’s private vehicle hire licence – a key difference to cases in both Australia and NZ.
The issue of gig economy workers continues to be a hotly debated topic around the world as the business model becomes increasingly popular.
Hamish Kynaston, partner at Buddle Findlay, said it’s likely to be issue that will continue to crop up in the courts this year.
Jacinda Ardern’s Labour government campaign last year included proposals to amend several areas of employment legislation, including the rights of dependent contractors.
Kynaston said in the film industry, a sector that relies heavily on contractors, workers were given more rights under a 2019 law change, including the right to bargain collectively.
“A similar sort of model may be applied to other industries or the government might seek to create a third category of person who may be difficult to define,” Kynaston told HRD.
“It’s something we’ll all be interested to see play out.”
