Former Uber driver has app cancelled, claims unjustifiable dismissal as 'employee'

The ERA heard the driver had sold his Alext Taxi franchise business before signing up to drive for Uber. Photo / Getty Images

A former Uber driver who worked for the ridesharing giant for four years has claimed he was unfairly dismissed by the San Francisco-based company following a complaint.

Atapattu Arachchige, formerly an Alert Taxi driver, drove for Uber in Auckland between May 2015 and June 2019, and was one of the first taxi drivers to sign up to Uber when it launched in New Zealand.

During that time, he conducted 5623 trips through the platform, however on June 19 his driver app was deactivated following a complaint Uber received from a passenger.

Uber says it investigated the complaint, but Arachchige claims he did not receive any details of the complaint and he was not given any opportunity to provide a response.

The deactivation of his app shortly after ended his work for Uber and Arachchige subsequently called in the Employment Relations Authority to claim personal grievance for unjustifiable dismissal.

Arachchige sought damages on the basis that he was an employee of Uber.

However, the ERA found that while Arachchige had entered into services agreements with Uber to use its platform, this was not an employment agreement.

The agreement outlined that he was "an independent provider of peer-to-peer passenger transportation services".

"In the written agreement, the parties expressly agree that it is not an employment agreement and that it does not create an employment relationship," Judge J C Holden said in the Employment Court determination.

"While the Services Agreement is personal to the driver signatory, it did not require exclusivity; drivers are not to display any Uber logo or other signage and Uber drivers are able to undertake other activities, including in competition with Uber.

"Overall, the Services Agreement is not in the form of, and does not operate as
an employment agreement," Holden ruled.

The determination outlined that Arachchige did not go through an employment recruitment process and that there was no "vacancy" Uber was looking to fill.

"The principal argument for Mr Arachchige to be an employee was the lack of control that he had over building a customer base and over determining what fare to charge. The two are inter-related. There was, in theory, an ability for a driver to charge a passenger less than the quoted price, but without the ability to establish a relationship with passengers, and thereby attract future work, this was of no value to Mr Arachchige. This was the principal difference between the Uber model and the arrangements Mr Arachchige had with Alert Taxis," Holden said.

Before joining Uber, Arachchige sold his Alert Taxi business, including his book of clients, his vehicle and his franchise licence, to a friend for approximately $15,000. He was an Alert Taxi driver for five years.

The Employment Court at Auckland ruled that Arachchige was not an employee of Uber despite "aspects of the relationship between Uber and Mr Arachchige that may point to employment".

"The intent of the parties throughout their relationship was that Mr Arachchige would operate his own 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'," Holden concluded.