Source: Employment New Zealand
A driver delivering takeaway food via an online app was an employee of the company providing the platform, and not an independent contractor, the Employment Relations Authority has found.
The online app allowed customers to order Chinese food from local restaurants and grocers, and have it delivered by drivers connected to the app. Customers were able to make orders in Mandarin, and the service catered mainly for the local Chinese community.
The applicant, who was a Chinese immigrant who sometimes struggled with spoken English, had worked as a takeaway delivery driver for the respondent for almost two months.
The respondent disconnected the applicant from the app after a restaurant owner complained about his attitude. The applicant then raised a personal grievance with the respondent, seeking remedies and reinstatement. The respondent claimed the applicant was an independent contractor.
For this application, the Authority considered only whether the applicant was an employee or a contractor. Taking into account the nature of the relationship and how it operated, the Authority determined the relationship to be one of employment.
Some factors the Authority took into account were:
- While the written agreement between the applicant and the respondent stated the applicant was an independent contractor, the agreement was in English; the respondent did not provide a copy of the agreement to the applicant; the respondent did not explain the terms of the agreement; and the applicant was not able to get advice on the agreement before signing it.
- The applicant had to indicate his availability for rosters in advance; he could not just log in and “grab” orders.
- While the applicant had a significant degree of choice over when and where he chose to work, the model of business gave the respondent significant control over him when he was working.
- While the applicant used his own vehicle, which had no signage, delivery drivers were essential and integral to the respondent’s business model as the only tangible “public face” of the business.
- While the agreement provided that drivers could contract substitute drivers if they were unavailable, this was “a somewhat illusory benefit, as the applicant had no guaranteed work to undertake”.
- The applicant had no ability to expand the customer base to his advantage; there was no evidence he was in business on his own account.
- Takeaway food delivery drivers had a greater level of vulnerability when compared to taxi or courier operations which had been considered in other cases.
Wang v HungryPanda (NZ) Ltd [2022] NZERA 154 [PDF, 240KB] (external link)
