A delivery driver kicked off the Uber Eats app wasn’t an employee of the tech giant so can’t be unfairly dismissed, the full bench of the Fair Work Commission has ruled.

Adelaide-based driver Amita Gupta had claimed the decision to suspend her from the Uber Eats ‘Partner App’ in January 2019 amounted to unfair dismissal.

Working with her husband, she’d made more than 2200 deliveries in 16 months – earning about $4.30 per pick-up, $2.10 per delivery and $0.66 per kilometre travelled.

But the full bench rule agreed with an earlier assessment by the commission that Ms Gupta wasn’t an employee of Uber or its platform provider Portier Pacific.

Fair Work Commission rules Uber Eats drivers are not employees https://t.co/BrL2PE7ZAr by @campbell_kwan

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While she didn’t have an Australian Business Number or the ability to establish goodwill with customers, Ms Gupta was free to accept work through other delivery platforms (even when on an Uber Eats delivery) and Portier had no control over when she logged on.

Further, she wasn’t required to wear a uniform, display a logo or represent Uber other than collecting and delivering food.

“She was free to undertake whatever deliveries she wished, or no deliveries. She could log on at any time. She could choose not to log on,” deputy president Alan Colman said.

“Once she accepted a delivery opportunity, she could cancel it.

“Ms Gupta made no promise to Portier Pacific to undertake work, and the company did not seek any such promise. Portier Pacific was, in fact, indifferent to whether Ms Gupta accepted delivery opportunities.”

Uber Eats welcomed the confirmation that “delivery partners” using the Uber Eats platform are independent contractors.

“It also reflects what 87 percent of delivery partners tell us – that they value the freedom and flexibility the Uber app provides,” a spokeswoman told AAP in a statement.

The Transport Workers Union, which supported Ms Gupta’s claim, had previously characterised the relationship as “worker exploitation via an app” and the conditions as “dystopian”.

-AAP