Key Points
- A court ruled Xiaojun Chen was an employee rather than a contractor.
- Law firm Slater and Gordon said it could be a landmark case.
The family of a food delivery driver who died after being hit by a bus while at work will receive $834,000 in compensation after a court ruled he was an employee rather than a contractor.
Xiaojun Chen, 43, died while riding his motorbike in the Sydney suburb of Zetland in September 2020 while working for HungryPanda.
This has the potential to be a landmark case, law firm Slater and Gordon said, given delivery drivers or "gig workers" have in the past been classified as contractors and therefore not been given entitlements that other workers receive.
'My children miss their daddy'
Mr Chen’s widow Lihong Wei told SBS Mandarin TV she and her family were still coming to terms with her husband’s death.
“Our parents [have] become older overnight. They are in poor health now. I am still having psychotherapy. I just hope this is a dream. But the judgement of the case shows that the dream is real.”
In a statement issued by the law firm, Ms Wei said the decision would bring "respect and recognition to all food delivery workers for the essential service they provide".
She said Mr Chen, who had been sending money back to China, had planned to return to the country and they intended to open a business together to take care of their extended family.
"Now that dream will never be realised. The grief my children, their grandparents and myself feel cannot be put into words," she said.
"My children miss their daddy every day. My daughter has begun struggling with school and my son has lost his father forever at just eight years old. My father-in-law has lost his only son. Nothing can ever fix this."
After two long years, justice has finally been delivered for Xiaojun’s familyMichael Kaine
Slater and Gordon practice group leader Jasmina Mackovic said it was her understanding this was the first case where there has been an admission that a gig economy driver has been considered a worker.
"Gig economy workers and their families are usually denied any entitlements because they are considered independent contractors rather than employees, meaning they are unable to access workers’ compensation and other benefits such as annual leave and sick leave," Ms Mackovic said.
"This also means that workers or their families are not guaranteed loss of wages payments, medical payments or a lump sum for any impairment suffered if they are injured or ill, or even in the case of death as has happened here.
"Gig economy companies are avoiding their responsibilities to adequately protect the people who work for them, many of whom are migrant workers who are particularly vulnerable."
TWU national secretary Michael Kaine welcomed the decision.
"After two long years, justice has finally been delivered for Xiaojun’s family," he said.
"No family should have to experience the indescribable grief of losing a loved one at work.
"While no amount of compensation will truly heal the loss Xioajun’s family feels, this decision goes a long way towards righting a horrible wrong."
In a statement, a representative for HungryPanda said the company had put a range of initiatives in place to increase worker safety since the death of Mr Chen.
The spokesperson said measures included working with the NSW government to distribute safety vests to all drivers, working with SafeWork NSW to make sure all safety measurements and procedures were compliant and adding accessible safety information and features, including overtime log-off notifications to drivers, on the app.
"Our thoughts are with the Wei family at this difficult time. Drivers' safety is our number one priority as an organisation and HungryPanda shall keep working hard to keep our drivers safe," they said.
