Fair Work Act 2009

s.394 - Unfair dismissal

• [1] Mr Ahmed Abdi (Mr Abdi or the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act).

• [2] The respondent named in the application is Uber BV Partner PMT.

• [3] A Form F3 - Employer response to unfair dismissal application has been filed by Raiser Pacific Pty Ltd which states that there is no Uber entity as named on the application and that the proper respondent is Raiser Pacific Pty Ltd. It is also submitted that the correct identity of the respondent where drivers bring claims against 'Uber" has been dealt with by the Commission previously.[1]

• [4] Having reviewed the previous case law on this question of the respondent's correct identity I am satisfied that the correct respondent in this case is Raiser Pacific Pty Ltd (the Respondent) and the identity of the Respondent will be amended accordingly to reflect this.

• [5] The Respondent objects to the application on the grounds that it was lodged more than 21 days after the dismissal took effect and so it was made out of time. The Respondent also objects on the grounds that Mr Abdi was not an employee of the Respondent and that the Applicant consequently was not dismissed by the Respondent.

• [6] Mr Abdi's application states that he was notified of his dismissal on 19 August 2020 and that his dismissal took effect on the same date. His application was filed on 11 August 2021 and so the application has been lodged more than 21 days after the alleged dismissal took effect.

• [7] Section 394 (2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Commission however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(f) fairness as between the person and other persons in a similar position."

• [8] Consequently, on 6 September 2021 the Commission's staff wrote to the Applicant explaining it appeared the application was made out of time and that the Commission may only extend the time period for lodging such an application if it is satisfied that there were exceptional circumstances for not lodging the application on time. The letter explained the requirements of section 394 (3) of the Act.

• [9] The letter requested the Applicant responded in writing explaining why he considers his circumstances are exceptional and providing any supporting evidence. The letter then states,

"For example, if you rely on a medical condition as the reason for your delay, you should supply a medical certificate or report which specifically explains why your medical condition prevented you from making your application within time."

• [10] The Applicant has provided a written response to the Commission's as requested.

• [11] This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

• [12] The Applicant emailed the Commission and provided the following explanation of the reasons for the delay in making his application.

"I am still confused about this form 3 because I already filled my case and the only think I was late to lodge a claim was that I was not even aware of your existent until somebody informed me about your office.

Other things that postponed me is that I have some medical condition like taking some medication for an head injuries and few years ago was treated from bowel cancer and actually waiting a surgery for my hernia. All this make me sick and create anxiety beside that that I do believe a prejudiced decision applied on me if I remember the way the talked to me and treated" (sic)

• [13] It has been held many times in this Commission that not being aware of the right to pursue an unfair dismissal remedy application or not being aware of the requirement to make the application within 21 days after the dismissal took effect are not acceptable reasons for the delay in making an application and neither are they exceptional circumstances.

• [14] The Applicant has not provided any medical evidence at all to the Commission regarding his medical circumstances he refers to in his email.

• [15] The Commission's letter had expressly put him on notice that should he rely on a medical condition as the reason for the delay he should supply a medical certificate or report which explains why his medical condition prevented him from making the application within 21 days of his dismissal taking effect.

• [16] A Full Bench of the Commission in Australian Postal Corporation v Zhang[2], with respect to medical evidence provided to a Commissioner considering whether or not there were exceptional circumstances warranting an extension of time to make an application held at [22] as follows:

"In our view, in the absence of compelling medical evidence to that effect, such a finding was simply not open to the Commissioner. We note that the medical evidence before the Commissioner provided no insight into the extent to which Ms Zhang was incapacitated during the entire 205 day period of delay, let alone the 21 day period immediately following the termination of her employment for making an unfair dismissal application."

• [17] Consequently, in this case on the information provided by the Applicant I am not satisfied that his state of health was an acceptable reason for the lengthy delay nor was it an exceptional circumstance.

Did the Applicant first become aware of the dismissal after it had taken effect?

• [18] The application states that the Applicant was notified of his dismissal on the same date it took effect.

Any action taken by the person to dispute the dismissal

• [19] The application says that the Applicant has been to the Respondent's office many times and they have said they cannot help him. He has tried to open back up the 'App' but it does not work.

Prejudice to the employer (including prejudice caused by the delay)

• [20] In this case there has been a lengthy delay between when the alleged dismissal occurred and when the application was made. This will to some extent in all likelihood prejudice the Respondent should they have to defend the application based on the facts that occurred at the time of the alleged dismissal.

• [21] The application explains the reason for the dismissal concerns him driving back to a female passenger's address after finishing a trip and realising she had left her phone behind in the car. She was appreciative of him having returned the phone and the Applicant says she contacted the Respondent and said he was a nice person for doing so.

• [22] The application states that some time later the Respondent messaged him saying that he was wrong for returning her phone and that that is not their policy.

• [23] For its part, the Respondent objects to the application on the ground that the Applicant was not an employee. The Respondent refers to prior decisions of the Commission that have determined that Uber driver partners are not employees of the Respondent.[3]

• [24] There is considerable force to the Respondent's submission that in Mr Abdi's case he is highly unlikely to succeed with this application because of the Commission's previous rulings that persons in his circumstances are not employees of the Respondent and so are unable to make unfair dismissal remedy applications.

• [25] Consequently, I view the very limited merits of the application as weighing against granting an extension of time.

Fairness as between the person and other persons in a similar position

• [26] There is no information regarding fairness between the Applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.

• [27] The onus is on the Applicant to persuade the Commission that a further period should be allowed for him to make this application beyond the statutory time limit of 21 days.

• [28] I have considered the information provided by the Applicant and considering the relevant factors here I am not satisfied that this case involves exceptional circumstances.

• [29] I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application is not properly before the Commission and must be dismissed.

• [30] An order [PR734180] to that effect will be issued in conjunction with this decision.

[1] See [2018] FWC 2579 and [2019] FWC 4807.

[2] [2015] FWCFB 5285.

[3] See [2017] FWC 6610 and [2019] FWC 5008.

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