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The Fair Work Commission has ruled that a Deliveroo rider was an employee who must be reinstated.

In its finding, the Fair Work Commissioned criticised the online food delivery company for a “callous and perfunctory” dismissal “most notable for its absence of compassion”.

In a major breakthrough for some workers in the gig economy who have long argued that they are employees, Commissioner Ian Cambridge has held that Deliveroo rider Diego Franco was an employee entitled to protection from unfair dismissal.

Franco says he worked for the company for three years, until it emailed him in April last year to say it would terminate his “supplier agreement” within a week due to his slow deliveries.

Deliveroo lodged a jurisdictional objection to his unfair dismissal application on the basis he was an independent contractor, not an employee, and was not dismissed.

Commissioner Cambridge rejected the company’s arguments and observed that Franco had “every justification for being aggrieved by the callous and perfunctory termination of his services, and any criticism of Deliveroo’s conduct was understandable”.

“In the particular circumstances of this case, the primary remedy of reinstatement would represent an appropriate and just rectification that reflected a termination that was most notable for its absence of compassion.

“Irrespective of whether Mr Franco was a contractor or an employee, it was plainly unconscionable to terminate what would be well understood to be his primary source of income, without first hearing from him.

“The capacity to undertake a detailed analysis of Mr Franco’s performance statistics should not remove the human factor.”

Commissioner Cambridge said he will also order continuity of service and the restoration of lost pay.

Deliveroo has indicated it will appeal the decision.

Diego Franco v Deliveroo Australia Pty Ltd [2021] FWC 2818 (18 May 2021)