A former delivery worker is suing Uber Eats for unfair dismissal after she was allegedly sacked for showing up 10 minutes late.

Key points: Uber Eats drivers argue the company has intentionally misclassified them as 'independent contractors', rather than 'employees'.

Uber Eats drivers argue the company has intentionally misclassified them as 'independent contractors', rather than 'employees'. Employees can sue for unfair dismissal, and receive minimum wage, superannuation, annual leave and other benefits

Employees can sue for unfair dismissal, and receive minimum wage, superannuation, annual leave and other benefits Contractors don't have these rights under Australian law.

Adelaide-based Amita Gupta also claims to have been severely underpaid by the food delivery giant.

Ms Gupta said she worked as long as 96 hours in some weeks — most of it spent waiting for orders to be placed via the Uber Eats app — but earned as little as $300 for those periods.

Taking the matter before the Fair Work Commission (FWC), Ms Gupta relied on a Hindi interpreter and was represented by her husband Santosh, who is also an Uber Eats delivery driver.

But Ms Gupta lost her case against Uber on August 23, and was given three weeks to lodge an appeal with the FWC's Full Bench.

This is potentially an important test case as it could result in consumers paying a higher price for ordering food via a mobile app.

If Uber loses the appeal, it would be forced to pay its delivery drivers higher wages.

There could also be significant consequences for the wider gig economy, particularly for companies like Deliveroo, which is also being sued for alleged worker exploitation, and uses a similar business model.

'Deliberate' underpayment

The FWC decided Ms Gupta was technically an "independent contractor" (not an "employee") — and therefore has no legal right to sue for unfair dismissal.

However, Ms Gupta's luck appears to have turned after the Transport Workers Union (TWU) took an interest in her case, agreed to legally represent her and filed an appeal at the eleventh hour.

"Uber Eats is deliberately misclassifying its workers, calling them independent contractors so they can deny them rights … deny them superannuation, the rights to [annual] leave," TWU national secretary Michael Kaine told a press conference in Sydney on Monday.

"The Fair Work Commission found — we say wrongly — that Amita was not an employee.

"This case highlights just how low Uber can go in terms of abusing workers.

"They expect workers to be logged on for hours with no work and if they are a few minutes late they get sacked, with no warning or right to appeal."

Under Australian law, businesses are not required to pay independent contractors a minimum wage, penalty rates, superannuation, paid sick leave or annual leave.

That is because contractors are treated as self-employed people, running their own businesses.



A number of Uber drivers and delivery workers have told the ABC that was not the case — and they had no real control over how, when or where they worked.

But according to the original decision, the FWC noted that Ms Gupta rejected more than 550 food delivery requests, and cancelled a further 240 after having accepted them.

Ms Gupta also attended the press conference with her husband, but did not speak publicly.

Instead, Mr Gupta told reporters, on her behalf: "We worked around 2,700 hours, and we got paid $21,000."

"It works out to be $7.85 an hour and that includes weekly expenses … it's slavery in [the] modern world in Australia."

Australia's minimum wage was increased by 3 per cent to $19.49 per hour on July 1.

'Freedom and flexibility'

Uber declined to answer the ABC's specific questions about Ms Gupta's case as it remains an ongoing legal dispute.

However, it provided a brief statement, which said: "Uber welcomed the Fair Work Commission's decision on this matter."

"It reflected what delivery partners tell us — that they value the freedom and flexibility the Uber app provides."

The TWU is also ramping up its pressure on the Morrison government to pass legislation to improve the rights of gig economy workers.

"It cannot be left any longer to individuals to take on these cashed-up Silicon Valley behemoths, dragging them through the courts," Mr Kaine said.

"California last week stepped up and gave these rights to workers, why can't the Australian government do the same?"

On September 10, California's State Senate voted to pass a bill called "Assembly Bill 5" (AB5) that would make it harder for companies like Uber to classify workers as independent contractors, rather than employees.

AB5 will, however, need to undergo a final vote at the California State Assembly, before the bill can be signed by its Governor and become law.

The United Kingdom has also moved towards classifying Uber drivers as "workers", rather than self-employed contractors.

The UK Court of Appeal ruled, on December 19, that the drivers were entitled to minimum wage, holiday pay, and paid rest breaks.