The Case

Mr Kaseris was an Uber driver. In August 2017, Uber (operated by Rasier Pacific V.O.F.) deactivated Mr Kaseris’ Uber driver account due to poor passenger ratings. Mr Kaseris commenced unfair dismissal proceedings in the Fair Work Commission (FWC).

Rasier Pacific V.O.F. argued that Mr Kaseris was not an employee and hence the FWC did not have jurisdiction to hear the unfair dismissal claim.

The Verdict

Deputy President Gostencnik dismissed Mr Kaseris’ unfair dismissal claim finding that an employment relationship did not exist given:

1.The terms of the Services Agreement between Rasier Pacific V.O.F. and Mr Kaseris provided:

• • the relationship between the parties was that of independent contractors;
  • Rasier Pacific V.O.F. granted Mr Kaseris a sub-licence to use the Partner App to connect with passengers requiring transport;
  • Rasier Pacific V.O.F. provided the Uber Services (lead-generation, payment and collection processing, customer support etc), in exchange for a service fee paid for by Mr Kaseris;
  • while Mr Kaseris was required to meet Uber’s service standards he could otherwise provide the trip how he deemed appropriate; and
  • Mr Kaseris and other drivers did not wear a uniform, or any other clothing displaying Uber’s name, logo or colours.

2. There was no wage-work bargain. Mr Kaseris was:

• • not required to perform work in exchange for payment;
  • not required to perform any work or provide any services for the benefit of Rasier Pacific V.O.F.; and
  • free to provide transportation to passengers whenever and to whomever he wanted.

3. The employment relationship was tested using these considerations:

• • Control: Mr Kaseris had complete control over the way he conducted the services, who he provided the services to and when he provided the services. He could log onto and off the Uber Partner App, whenever he liked. The requirement to charge the Uber price for a fare, maintain service standards and vehicle maintenance did not outweigh the other strong anti-control factors that characterised the relationship.
  • Equipment and uniform: Mr Kaseris was required to provide his own motor vehicle, smart phone, wear his own clothes register and insure his motor vehicle.
  • Taxation: Mr Kaseris was required to have an ABN, become registered for GST and pay his own tax.

The Lessons

This is the first decision in Australia examining the employment status of Uber drivers. The finding that Mr Kaseris was an independent contractor, also means that Mr Kaseris was not covered by a modern award. Therefore, he was not entitled to the National Employment Standards and associated employment benefits.

This decision shows that the relationship between parties needs to be carefully examined to determine what their legal relationship is.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.