Alvaro Felipe Arredondo Montoya and Pedidos Ya Chile SPA

Unofficial English Translation

Date: October 5, 2020

Tribunal: Court of Appeal of Concepción (Rol N° 395-2020).

Issue: Unjust dismissal

Finding: Employee

Decision:

 Montoya was a driver for Pedidos Ya (PY), using a mobile application for delivery, from July 3, 2019 to May 15, 2020. When he was denied access to the app, he filed a suit claiming ‘unjustified, undue, or improper dismissal.’ In order for the Court to find an improper dismissal, it had to first determine whether there was an employment relationship between Montoya and PY.

The lower court decided that PY exercised control over the riders and thus established an employment re- relationship. In so doing, it found:

  • PY conducted the selection process, background check and training on the app
  • Riders were required to wear the PY-branded gear (jacket, backpack, t-shirt and raingear)
  • PY exercised control over the riders through a rating system based on monitoring of the riders’ Lateness, rejection of too many orders or pauses on the app would lower the rating, meaning lack of access to better shifts and potentially suspension and deactivation. If drivers re- fused a particular delivery, then he would not be assigned new assignments for at least 30 minutes. Punctuality and continued work meant a higher rating and access to better shifts.
  • Drivers were not allowed to choose any These were determined by PY based on the ratings.
  • Each delivery was assigned to a zone determined by PY and were not free to operate in any other zone or to alter their routes. Riders also had to appear at a connection site at the beginning of the If they did not, they were instructed to head to that area and were penalized if they did not do so.
  • The riders were not free to set the rates for their delivery services

The court found that the dismissal dated May 15, 2020 was unjustified, undue or improper because he was dismissed without cause in violation of the Labour Code. PY appealed seeking to set aside the decision be- low on that basis that it misapplied the existing law and jurisprudence on subordination and independence in the facts of the case.

The Court of Appeals took note that, “[W]e must bear in mind that the existence of a new productive reality, based on the provision of services through digital platforms, with technological innovations that even favor the establishment of digitalized control systems for the execution of such services, represents an apparent difficulty when determining the presence of the defining elements that allow us to conclude whether or not we are in the presence of a labour contractual relationship.”

The Court further explained that “the employment relationship is often asymmetrical between the employer and the worker. On numerous occasions, the latter has to accept the conditions that the former proposes for the latter contract, which is why the protective nature of this branch of law obliges the judge to take particular care that his decisions tend to balance this relationship. Therefore, when there is controversy in the interpretation of a rule applicable to the employment relationship, the rule that is more in line with the interests of the worker should be preferred.”

Accepting the facts as found by the lower court, Court of Appeals found no error of law and dismissed the appeal.

News:

 Nicolas Valenzuela, Tribunal declara existencia de relación laboral de repartidores con Pedidos Ya, Revista de Frente, 6 de octubre 2020

Dayana Sanchez, Juzgado del Trabajo de Concepción reconoce vínculo laboral entre Pedidos Ya y reparti- dor, y abre fuerte debate, La Tercera, 6 de octubre 2020

Camilo Espinosa, Histórico fallo: Juzgado reconoce por primera vez en Chile que repartidores de delivery son trabajadores, no socios, The Clinic, 6 de octubre 2020