The connection conundrum: Do businesses have rights to the social media accounts or connections of their employees?

19 July, 2017

The Fair Work Commission has ruled in favour of a Foodora rider, finding that he was an employee (not a contractor) for the purposes of the unfair dismissal jurisdiction. In this article, Nicola Martin and Erin Kidd explore the key themes emerging from this decision.

This case1 before the Fair Work Commission (FWC) concerned an application for unfair dismissal remedy by Joshua Klooger, a food delivery bicycle rider for Foodora (Applicant). In deciding whether the Applicant’s dismissal was unfair, the FWC had to first decide whether it had jurisdiction to hear the application, as there was contention regarding whether the Applicant was an employee or an independent contractor. This aspect of the decision is important due to the FWC’s detailed consideration of the circumstances of the Applicant’s relationship with Foodora and the application of the various legal principles used to determine the employee versus contractor question.


The Applicant commenced work for Foodora on 11 March 2016 as a delivery rider in accordance with a signed contract that was titled “INDEPENDENT CONTRACTOR AGREEMENT” (Contract).

The work performed by the Applicant was arranged and undertaken by means of various computer-based apps accessible by smart phone. The distribution of the work occurred in accordance with shifts designed by Foodora and available to be accepted by the Applicant. In October 2017, the shift allocation system became more complex, changing to a ‘batch’ system whereby available shifts would be allocated pursuant to the quality of a Foodora driver’s performance. Both before and after October 2017, Foodora drivers could swap shifts with one another, but only with the ‘permission’ of Foodora.

On any given shift, a rider would be told the location they would operate within, when to pick up orders and where to deliver those orders. The Applicant could not work at his own whim.

During the period in which the Applicant worked for Foodora, the Applicant established what has been dubbed a ‘substitution scheme’, through which he allowed various third parties to conduct work for Foodora using his account. Initially, Foodora was unaware of the substitution scheme, but it took no steps to stop it once it found out. In fact, Foodora commended the Applicant for his entrepreneurial initiative. The Applicant’s management of the scheme was such that he made deductions of tax from payment to these individuals and also took a 1% cut for his involvement. The Applicant’s contract with Foodora did not prohibit sub-contracting of work, but required Foodora’s written consent.

What did the FWC decide?

In deciding whether the Applicant was an employee or an independent contractor, the FWC applied the traditional tests. Specifically, the FWC examined the relationship between the Applicant and Foodora by utilising the multifactorial approach which involves the consideration of various factors.

Of the factors highlighted by the FWC as indicative of employment, two factors appeared to give substantial weight to the existence of an employment relationship between the Applicant and Foodora. The first was the fact the Contract was badly drafted and contained many provisions that were indicative of an employment contract, despite there being an express provision stating the Applicant was an independent contractor.

The second factor was that the rostering system was designed and controlled by Foodora. Specifically, there was no ability for the Applicant to work outside the rostered hours, nor was there an ability for the Applicant to choose his location. In addition, once the ‘batching’ system was introduced, the control that the Applicant could exercise over the hours they worked was further reduced. This is because the ‘batching’ system ranked drivers according to quality – shifts worked, delivery time, and number of deliveries – meaning as a matter of practical reality, the Applicant could not pick and choose when and where to work, or how fast or slow to make deliveries.

In addition, other matters that the FWC considered supported a finding that the work of the Applicant was integrated into Foodora’s business and was not an independent operation were the fact that the Applicant:

  1. did not have a separate place of work;
  2. did not advertise his services to the world at large;
  3. did not make a substantial investment in the capital equipment that he used to perform his delivery work;
  4. did not utilise an established profession, trade or distinct calling; and
  5. would utilise Foodora’s branded attire and equipment.

With regards to factors favouring a finding that the Applicant was an independent contractor, the FWC placed only a small amount of weight on the Contract’s attempt to classify the relationship as principal/contractor. Similarly, little weight was also given to the fact the relationship between the Applicant and Foodora was non-exclusive and the Applicant could work other jobs, as the FWC viewed this as synonymous with casual employment.

The FWC considered the substitution scheme to be the strongest ground advanced by Foodora for supporting a finding that the Applicant was an independent contractor.  In particular, the FWC noted that “the prospect that an employee could sub-contract her or his work to another would, ordinarily, be antithetical to the existence of any employment relationship”. However, in this case, because Foodora had knowledge of the Applicant’s operation of the substitution scheme and was aware that it was in breach of the Contract and Australian law (due to some migration matters), the FWC held that Foodora should not be allowed to rely on this scheme as a proper or acceptable basis for characterising the relationship as principal/contractor.

For these key reasons, the FWC held that from the overall picture obtained, the Applicant was not carrying on a trade or business of his own. Instead, the Applicant was working in the respondent’s business as part of that business.

Once the jurisdictional objection that the Applicant was not an employee had been determined, the FWC went on to consider whether the Applicant’s termination was harsh, unjust or unreasonable.  Upon an analysis of the various factors used to determine this question, it was found that there was no valid reason for the dismissal related to the Applicant’s capacity or conduct.  Rather, it was held that the Applicant’s public complaints about Foodora, including during an appearance on the television program “The Project”, was not a reason that could be found to have been ‘sound, defensible or well-founded’.  The FWC also criticised Foodora’s termination procedure, whereby it advised the applicant of his dismissal abruptly by way of email and without any proper or prior warning.

Accordingly, the Applicant was held to have been unfairly dismissed from his employment with Foodora and received compensation of $15,559.

Implications for employers

Since this decision was handed down, there has been commentary from employment law academics suggesting that it will not have any immediate implications for existing gig-economy companies such as Uber or Deliveroo because the arrangements between those companies and their drivers/riders have been crafted very differently. Instead of exercising control over drivers/riders in respect of when and how they perform work, like Foodora did in rostering its riders’ shifts, these other companies argue that their drivers/riders don’t perform work for them at all – instead providing a platform whereby drivers/riders find customers and get paid.

However, the decision is important because it reinforces a number of key points for businesses to consider if they engage, or intend to have individuals work for them as, independent contractors.

  1. Firstly, the decision highlights the importance of the business having a well-drafted contract between it and its contractors – especially one that does not indicate the existence of an employment relationship.
  2. Secondly, the decision raises the importance of allowing contractors to maintain control over the way in which they work as this better aligns with an individual carrying on their own trade or business.
  3. Finally, the decision also highlights the importance for businesses to ensure that they enforce key provisions in their contracts and conduct their activities according to the law.

1 Joshua Klooger v Foodora Australia Pty Ltd [2018] FWC 6836 (16 November 2018).

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Canadian Court elevates thumbs-up emoji to signature status

In June 2023, a Canadian Court in South-West Terminal Ltd v Achter Land and Cattle Ltd, 2023 SKKB 116, held that the "thumbs-up" emoji carried enough weight to constitute acceptance of contractual terms, analogous to that of a "signature", to establish a legally binding contract.   Facts This case involved a contractual dispute between two parties namely South-West Terminal ("SWT"), a grain and crop inputs company; and Achter Land & Cattle Ltd ("ALC"), a farming corporation. SWT sought to purchase several tonnes of flax at a price of $17 per bushel, and in March 2021, Mr Mickleborough, SWT's Farm Marketing Representative, sent a "blast" text message to several sellers indicating this intention. Following this text message, Mr Mickleborough spoke with Mr Achter, owner of ALC, whereby both parties verbally agreed by phone that ALC would supply 86 metric tonnes of flax to SWT at a price of $17 per bushel, in November 2021. After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed.   Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph [18], Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)."   Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and   The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and   The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter.   Judgment At paragraph [36], Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship.   Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph [63]: "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the dictionary.com definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest.   What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. We have also seen the rise of electronic platforms such as "DocuSign" used in commercial relationships to facilitate the efficient signing of contracts. Furthermore, this case highlights how courts will interpret the element of "intention" when determining whether a valid contract has been formed, confirming the long-standing principle that it is to be assessed objectively from the perspective of a reasonable and objective bystander who is aware of all the relevant facts. Overall, this is an interesting development for parties engaging in commerce via electronic means and an important reminder to all to be conscious of the fact that contracts have the potential to be agreed to by use of an emoji in today's digital age.

Published by Foez Dewan
29 August, 2023

Venues NSW ats Kerri Kane: Venues NSW successful in overturning a District Court decision

The McCabes Government team are pleased to have assisted Venues NSW in successfully overturning a District Court decision holding it liable in negligence for injuries sustained by a patron who slipped and fell down a set of steps at a sports stadium; Venues NSW v Kane [2023] NSWCA 192 Principles The NSW Court of Appeal has reaffirmed the principles regarding the interpretation of the matters to be considered under sections5B of the Civil Liability Act 2002 (NSW). There is no obligation in negligence for an occupier to ensure that handrails are applied to all sets of steps in its premises. An occupier will not automatically be liable in negligence if its premises are not compliant with the Building Code of Australia (BCA). Background The plaintiff commenced proceedings in the District Court of NSW against Venues NSW (VNSW) alleging she suffered injuries when she fell down a set of steps at McDonald Jones Stadium in Newcastle on 6 July 2019. The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. The Decision at Trial In finding in favour of the plaintiff, Norton DCJ found that: the steps constituted a "stairwell" and therefore were in breach of the BCA due to the absence of a handrail and the presence of a chamfered edge exceeding 5mm in length. even if handrails were not required, the use of them would have been good and reasonable practice given the stadium was open during periods of darkness, inclement weather, and used by a persons of varying levels of physical agility. VNSW ought to have arranged a risk assessment of the entire stadium, particularly the areas which provided access along stepped surfaces. installation of a handrail (or building stairs with the required chamfered edge) would not impose a serious burden on VNSW, even if required on other similar steps. Issues on Appeal VNSW appealed the decision of Norton DCJ. The primary challenge was to the trial judge's finding that VNSW was in breach of its duty of care in failing to install a handrail. In addition, VNSW challenged the findings that the steps met the definition of a 'stairwell' under the BCA as well as the trial judge's assessment of damages. Decision on Appeal The Court of Appeal found that primary judge's finding of breach of duty on the part of VNSW could not stand for multiple reasons, including that it proceeded on an erroneous construction of s5B of the Civil Liability Act 2002 and the obvious nature of the danger presented by the steps. As to the determination of breach of duty, the Court stressed that the trial judge was wrong to proceed on the basis that the Court simply has regard to each of the seven matters raised in ss 5B and 5C of the CLA and then express a conclusion as to breach. Instead, the Court emphasised that s 5B(1)(c) is a gateway, such that a plaintiff who fails to satisfy that provision cannot succeed, with the matters raised in s 5B(2) being mandatory considerations to be borne in mind when determining s 5B(1)(c). Ultimately, regarding the primary question of breach of duty, the Court found that: The stadium contained hazards which were utterly familiar and obvious to any spectator, namely, steps which needed to be navigated to get to and to leave from the tiered seating. While the trial judge considered the mandatory requirements required by s5B(2) of the CLA, those matters are not exhaustive and the trial judge failed to pay proper to attention to the fact that: the stadium had been certified as BCA compliant eight years before the incident; there was no evidence of previous falls resulting in injury despite the stairs being used by millions of spectators over the previous eight years; and the horizontal surfaces of the steps were highly slip resistant when wet. In light of the above, the Court of Appeal did not accept a reasonable person in the position of VNSW would not have installed a handrail along the stepped aisle. The burden of taking the complained of precautions includes to address similar risks of harm throughout the stadium, i.e. installing handrails on the other stepped aisles. This was a mandatory consideration under s5C(a) which was not properly taken into account. As to the question of BCA compliance, the Court of Appeal did not consider it necessary to make a firm conclusion of this issue given it did not find a breach of duty.  The Court did however indicated it did not consider the stepped aisle would constitute a "stairway" under the BCA. The Court of Appeal also found that there was nothing in the trial judge's reasons explicitly connecting the risk assessment she considered VNSW ought to have carried out, with the installation of handrails on any of the aisles in the stadium and therefore could not lead to any findings regarding breach or causation. As to quantum, the Court of Appeal accepted that the trial judge erred in awarding the plaintiff a "buffer" of $10,000 for past economic loss in circumstances where there was no evidence of any loss of income. The Court of Appeal set aside the orders of the District Court and entered judgment for VNSW with costs. Why this case is important? The case confirms there is no obligation in negligence for owners and operators of public or private venues in NSW to have a handrail on every set of steps. It is also a welcome affirmation of the principles surrounding the assessment of breach of duty under s 5B and s 5C of the CLA, particularly in assessing whether precautions are required to be taken in response to hazards which are familiar and obvious to a reasonable person.

Published by Leighton Hawkes
18 August, 2023
Litigation and Dispute Resolution

Expert evidence – The letter of instruction and involvement of lawyers

The recent decision in New Aim Pty Ltd v Leung [2023] FCAFC 67 (New Aim) has provided some useful guidance in relation to briefing experts in litigation.

Published by Justin Pennay
10 August, 2023