Duade Borg v DoorDash Technologies Australia Pty Ltd Summary

[2024] FWC 1468

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Duade Borg
v

DoorDash Technologies Australia Pty Ltd

(C2024/2545)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 5 JUNE 2024

Section 365 application – not an employee – application dismissed

For reasons given on transcript earlier today, the applicant was not an employee of the respondent. In essence, the terms of his contract with the respondent bear out a contracting relationship, not one of employment. The facts of the applicant’s case are relevantly indistinguishable from those that were before the Full Bench in Gupta v Portier Pacific Pty Ltd t/a Uber Eats[2020] FWCFB 1698. The same three critical factors identified by the Full Bench at [69] are present in this case as a matter of contract (and also as a matter of practical reality, which would be relevant under the expanded definition of ‘employee’ in s 15AA that commences operation later this year). These factors pointed clearly to a conclusion that the applicant was not an employee of the respondent. The application was therefore dismissed.

DEPUTY PRESIDENT

Appearances:

D. Borg for himself
W. Spargo for the respondent

Hearing details:

2024
Melbourne (by Microsoft Teams)
5 June

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Duade Borg, filed a Section 365 application against DoorDash Technologies Australia Pty Ltd, seeking to be recognised as an employee of the company. The dispute was heard by Deputy President Colman in the Fair Work Commission. The central issue was whether Borg was an employee of DoorDash or if his relationship with the company was better characterised as that of an independent contractor. The case hinged on the interpretation of the contractual terms between Borg and DoorDash and whether these terms aligned with the legal definition of an employment relationship.

The court examined the contractual relationship between Borg and DoorDash, focusing on three critical factors that were previously identified by the Full Bench in the case of Gupta v Portier Pacific Pty Ltd t/a Uber Eats. These factors included the nature of the work, the level of control exerted by DoorDash over Borg, and the economic reality of the relationship. The court found that the terms of Borg's contract with DoorDash clearly indicated an independent contractor relationship, not one of employment. This conclusion was supported by both the contractual terms and the practical reality of Borg's working arrangement.

The Deputy President concluded that Borg's relationship with DoorDash was one of independent contractor rather than employment. The terms of the contract and the nature of the work performed by Borg were consistent with the characteristics of an independent contractor, as opposed to an employee. Therefore, the application was dismissed, and Borg was not recognised as an employee of DoorDash. The court relied on the previous Full Bench decision in Gupta v Portier Pacific Pty Ltd t/a Uber Eats, which provided a clear precedent for distinguishing between employment and contractor relationships.

In dismissing the application, the Deputy President did not make any specific orders as the primary issue of employment status was resolved against Borg. The decision stands as a clarification of the legal relationship between independent contractors and companies like DoorDash, reinforcing the importance of contractual terms and practical realities in determining employment status under the Fair Work Act 2009.

Duade Borg v DoorDash Technologies Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established