The employee worked as a deliverer rider for Deliveroo, a company dedicated to the marketing, sale and delivery of food at home or in work offices, through a service lease contract. In the contract, the company established express and specific instructions on the way of providing the service, the delivery person was at all times geolocated and the company was aware of the time it took to make the deliveries. In addition, the company periodically evaluated the delivery person, taking into account the weekend availability and the acceptance percentage of orders.
The company sent an email to the deliveryman informing him that, due to the repeated lack of availability, it proceeds to terminate his contract. The employee filed a complaint for dismissal before the Labor Court requesting that he dismissal was null and void or, subsidiary, unfair. However, the company understood that the relationship between the distributor and the company was commercial and not labor.
The Labor Court considers that in the case prosecuted the notes of voluntariness, alienation and dependence are met, so it must conclude that it is an employment relationship. It is accredited the alienation since it was the company that decided the price of the services performed by the employee, who did not participate in any way of the benefits that the defendant could obtain and did not know the conditions of the adhered restaurants to the platform and the clients to whom it provided services. Regarding the dependency, it is proven that the deliveryman worked according to the instructions of the company and under the conditions set unilaterally by it. Thus, it is stated that:
- The employee should download the application developed and managed by the company on his mobile phone, and should be part of a Telegram group whose creator and the administrator was also the company;
- The company was the one that decided the area in which the worker had to perform his duties;
- Although the employee had to offer the company the time slots in which he wanted to work, these had to be within the previously established schedule and then, the company decided the weekly schedule;
- The company gave concrete instructions to the delivery people about the way in which the service had to be carried out, setting time and standards of behavior that they had to comply with;
- The company had at all times geolocated the employee, who could ask for explanations at any time about the service, keeping track of times of each distribution;
- The employee lacked freedom to refuse orders within his schedule. The rejection and the lack of repeated availability is cause for termination of the employment relationship. In addition, the worker who wants to temporarily stop providing services must communicate it two weeks in advance.
- Although the employee contributed his own means to work (bicycle and mobile phone) he lacked business organization, being the company the owner of the virtual platform, which, through an app, organized the business activity.
In conclusion, due to the concurrence of the characteristic notes of an employment relationship and considering that the applicant’s work was within the scope of the organization and management of the defendant company, the existence of an employment relationship between the parties must be concluded, and the consequent competence of the social jurisdiction to know the claim exercised. Once recognized the labor relationship, the dismissal was declared unfair due to the fact that the company has not proven the facts of the dismissal, and the declaration of nullity does not proceed because there was no violation of the fundamental rights or any of the causes of discrimination foreseen.