Food delivery giant Deliveroo has been ordered to reinstate a rider after a tribunal ruled he was unfairly dismissed and was not an independent contractor.

Diego Franco worked as a food delivery rider for Deliveroo for three years after moving to Sydney from Brazil when he was sacked via email last April with seven days’ notice.

Deliveroo said Mr Franco frequently took “significantly longer” than expected to complete “a high number” of deliveries, according to an email it sent him on April 23.

It said he had previously been “notified” of his performance issues, and tore up his contract.

Mr Franco argued he was unfairly dismissed as he actually didn’t receive any “notification” or warning from the company before he was terminated.

Mr Franco challenged his dismissal by taking his fight to the nation’s workplace relations tribunal with the help of the Transport Workers Union.

Diego Franco’s sacking by Deliveroo has been ruled unfair by the Fair Work Commission. Photo: Transport Workers Union

In a scathing judgment, Fair Work Commissioner Ian Cambridge ruled on Tuesday Mr Franco had been unfairly dismissed with no valid reason and the dismissal was “harsh, unjust and unreasonable”.

“Mr 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.”

Commissioner Cambridge ordered Deliveroo to reinstate Mr Franco and repay lost earnings.

Almost all workers for food delivery platforms such as Deliveroo are classified as independent contractors, meaning they do not have access to the same protections as employees such as unfair dismissal, sick leave and the minimum wage.

Deliveroo said it planned to appeal the decision.

A company spokeswoman said: “We do not accept the premise upon which the decision was taken and do not believe this reflects how Deliveroo riders work with the company in practice.”

The company argued its riders are independent contractors as they are free to decide when they work and can work for multiple platforms.

But Commissioner Cambridge said, considering the overall picture, Mr Franco was an employee as he “was not carrying on a trade or business of his own or on his own behalf” and “the level of control that Deliveroo possessed” represented a relationship of employment rather than independent contracting.

Transport Workers Union national secretary Michael Kaine said the ruling supported the union’s calls for the federal government to establish a tribunal to regulate gig economy work.

“The treatment of gig workers isn’t just unfair, it is deadly. Riders work under the spectre that they may get sacked at any moment and are forced to risk their lives to make deliveries quickly.”

–ABC