Fair Work Commission|2022-11-21

Ali Abdurahman Jama v Rasier Pacific Pty Ltd [2022] FWC 2946 (21 November 2022)

s.394 - Unfair dismissal

[1] Mr Ali Abdurahman Jama (the Applicant) applied for an unfair dismissal remedy, having been purportedly dismissed from Rasier Pacific Pty Ltd (the Respondent) on or around 3 May 2022. The Respondent objected to the application on the grounds that the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act), and the Applicant was not an employee and as such had not been dismissed.

[2] The Applicant concedes that his application was filed on 21 September 2022 and was therefore submitted some 120 days after the statutory deadline (which was 24 May 2022). However, he attributes the delay in filing his application to his lack of knowledge about the unfair dismissal jurisdiction and that he was awaiting further information from the Respondent in relation to the outcome of the deactivation of his account from its Uber platform.

[3] Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the applicant was protected from unfair dismissal, and another, whether the application was made within 21-days after the dismissal took effect.

[4] Briefly stated, I have concluded that the Applicant was not protected from unfair dismissal as he was not an employee of the Respondent. I note I have permitted a change to the name of the Respondent from 'Uber Australia' to Rasier Pacific Pty Ltd under s 586 of the Act.

[5] If, however, my conclusion is wrong on this point, it remains that the Applicant's unfair dismissal application was filed late and there are no exceptional circumstances which warrant extending the period in which to make his application. On that basis, his unfair dismissal application is dismissed. An Order[1] issues concurrently with this decision.

[6] From the Applicant's viva voce evidence, it seemed he had worked as an 'Uber' driver from 2015.

[7] The Respondent submitted that whilst the Applicant had named Uber Australia Pty Ltd as the respondent in the application, the proper respondent was Rasier Pacific Pty Ltd.[2] The Respondent noted that the correct identity for 'Driver Partners' bringing claims against 'Uber' had been dealt with by the Commission before, with findings made that Rasier Pacific Pty Ltd was the correct respondent.[3]

[8] Concerning the term 'Driver Partner', the Respondent explained that Driver Partners contract with the Respondent under Services Agreements for the provision of lead generation and other services.[4] According to the Respondent, the Applicant's application related to his status as a 'Driver Partner'.[5]

[9] As to what initiated the unfair dismissal application, on 23 April 2022, the Applicant was notified that a report had been received of inappropriate behaviour and that his access to the Uber account had been temporarily blocked.[6]

[10] During the period of 23 April 2022 and 3 May 2022, the Applicant communicated with the Respondent on several occasions regarding having had his account temporarily blocked.[7]

[11] On 3 May 2022, the Applicant was notified that his Uber account would be permanently deactivated. The Applicant tendered the following message to show the deactivation of his Uber account:

... This is Cameron from the Community Operations team.

We've received a report from a rider from one of the recent trips that you may have made a verbal threat of sexual assault.

Reports of this behaviour are extremely concerning and are in direct violation of our Community Guidelines. As such, in the interests of maintaining the safety of all users of the Uber App, we've decided to permanently deactivate your account as a result of this feedback.

This was not an easy decision as we value everyone who partners with us. We wish you all the best and thank you for using the Uber app.

[12] The Applicant revisited the decision to deactivate his account on 13 September 2022.[8] The Applicant sent a message to Uber Support stating that his account was 'deactivated a while ago' and sought an explanation for why it was deactivated. In that same email, the Applicant stated that he had been out of income 'for months now'.[9]

[13] The Respondent submitted that the Applicant was not and has never been an employee of any 'Uber' entity, including the Respondent.

[14] The Respondent explained that as a Driver Partner, the Applicant had entered into a Services Agreement with the Respondent which comprehensively contained the rights and obligations of each of the parties.[10]

[15] The Respondent observed that the Commission had conclusively determined on four separate occasions that Driver Partners are not employees of the Respondent or its predecessor entity (Rasier Pacific V.O.F).[11] Referring to the decision in Nawaz v Rasier Pacific Pty Ltd (Nawaz), the Respondent extracted the following passages (at [239]-[240]) from that decision:

The ultimate question is whether Mr Nawaz was employed, as an employee, by Uber. The assessment of the totality of the relationship between the parties by reference to the various indicia of employment as concerned with the rights and obligations established by the parties' contract, is apposite. Given my findings as to the veracity of the Services Agreement and absence of any variation, the post-contract conduct is not relevant.

The factors within the legal relationship pointing away from employment are more significant than those that would lead to the opposite outcome sought by Mr Nawaz. This includes that the nature and degree of the control exercised is not consistent with the nature of employment. Further, Mr Nawaz's role under the terms of the Services Agreement was not so subordinate to Uber's business in the sense contemplated in Jamsek and Personnel Contracting that it can be seen to have been performed as an employee of the business.[12]

[16] The Respondent submitted that Nawaz applied the common law test for employment as recently confirmed by the High Court in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (Personnel Contracting)[13] and ZG Operations Australia Pty Ltd v Jamsek (Jamsek).[14] The Respondent noted that those judgments provided that the characterisation of a relationship of employment proceeds by reference to the rights and obligations of the parties under the terms of any written agreement between them, where the parties have comprehensively committed the terms of their relationship to a written contract or agreement. The Respondent submitted that in Nawaz, the Commission in applying Jamsek and Personnel Contracting was satisfied that the Services Agreement was a comprehensive agreement and that the totality of the relationship, by reference to the indicia found in the agreement, was not one of employment.

[17] The Respondent pressed that given the Applicant was engaged under a Services Agreement identical to that in Nawaz, the case had no reasonable prospects of success because the Commission would not depart from those conclusions reached in Nawaz (or the same findings reached in Kaseris v Rasier Pacific VOF,[15] Pallage v Rasier Pacific Pty Ltd,[16] Suliman v Rasier Pacific Pty Ltd[17] and Gupta v Portier Pacific Pty Ltd[18]). The Respondent stated that on that basis, the application should be dismissed because the Applicant was not an employee within the meaning of the Act.

[18] For his part, the Applicant asserted that he was an employee because he was solely dependent on 'Uber' for his income and had been working for them for years.

[19] Based on the materials before me, I have concluded that the Applicant was not an employee. The Applicant's contentions regarding whether he is an employee are unpersuasive. Furthermore, he did not dispute the submissions of the Respondent regarding the contractual arrangement between them. If, however I am wrong on this point, it nevertheless remains that the Applicant's case must fail. The Applicant's unfair dismissal application was made out of time and there are no exceptional circumstances which warrant granting an extension. My reasons for not exercising discretion to extend the period in which to make the unfair dismissal application follow.

[20] Under s 394(2)(b) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made, if it is satisfied that there are 'exceptional circumstances'. The meaning of this term was considered in Nulty v Blue Star Group Pty Ltd (Nulty), where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[19] It is accepted that exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together, can be considered exceptional.[20]

[21] Section 394(3) provides that in determining whether there are exceptional circumstances, the Commission is to take into account the following:

(a) the reason for the delay; and

(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

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.[21]

[22] In respect of the first factor, the Act does not specify what reasons for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.[22] The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however, all of the circumstances must be considered.[23]

[23] The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[24] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[25]

[24] It appears uncontroversial that by 3 May 2022 the Applicant had been informed that his Uber account would be permanently deactivated due to his account being in violation of Uber's Community Guidelines.[26]

[25] The Applicant submitted that his application was made out of time because he was not told of his rights and what he should do when his Uber account was deactivated. It appears that the Applicant relies upon this point to explain why there was a delay in 'appealing' (presumedly the decision to deactivate his Uber account). Further, the Applicant submitted that the appeal process 'took some time', and that he had no knowledge of the existence of 'this service' (presumedly the protections offered by unfair dismissal). In addition, the Applicant noted that he had no knowledge of the 21-day time limit.

[26] In the decision of Nulty, the Full Bench considered the statutory time limit in the context of the discretion to extend time for making such applications on the existence of 'exceptional circumstances'. The Full Bench said that:

In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.[27]

[27] It is accepted that ignorance of an available remedy and associated time limits does not, in the absence of other circumstances, establish that there are circumstances which would lead to a finding of exceptional circumstances.[28]

[28] The Applicant's argument that the delay was in part caused by waiting for the Respondent to revisit its decision must be considered against the unequivocal message the Respondent sent to the Applicant on 3 May 2022 and the lack of further enquiry by the Applicant with Uber Support, until his message of 13 September 2022. The Applicant's message to Uber Support read:

My account has been deactivated a while ago. I wanted to understand as to why exactly that happened. As you can see I have been serving with you guys for 6 years. Can you please send a proper explanation as to why it has been deactivated. I have been out of income for months now.

[29] It is evident from the direct evidence that the Applicant left it some four months before making further enquiry about the deactivation of his Uber account. The Applicant's message to Uber Support includes an acknowledgement by the Applicant that he had been absent income 'for months'. No plausible reason has been provided to explain this delay and in any event, a request for a further review by the Respondent of the deactivation of the Uber account does not constitute a circumstance excusing the delay in making the unfair dismissal application. In Gao v Department of Human Services, the Full Bench of Fair Work Australia accepted that a delay due to an employee seeking an internal review was not a reasonable explanation for the delay:

...Furthermore, Mr Gao's request that DHS further review the dismissal did not constitute a circumstance excusing the delay in lodging the application. A further review could have been sought even after an application had been lodged.[29]

[30] After submitting his enquiry with Uber Support on 13 September 2022, in which he sought reasons why Uber account was deactivated, the Applicant then proceeded to wait until 21 September 2022 to lodge his application. Again, apart from a lack of knowledge regarding the jurisdiction and time limit, the Applicant proffered no other reason for the delay.

[31] I have considered the delay as the period beyond the 21-day period (commencing on 25 May 2022). I am not satisfied that the Applicant has made out an acceptable or reasonable explanation for the delay in lodging his unfair dismissal application. This weighs against a finding that there are exceptional circumstances.

4.2 Whether the person first became aware of the dismissal after it had taken effect

[32] If it were the case that the Applicant was dismissed, and I note my conclusion in this respect, I am of the view that the Applicant became aware of such dismissal on 3 May 2022 when informed that his Uber account had been permanently deactivated. I therefore consider this to be a neutral consideration.

4.3 Action taken by the person to dispute the dismissal

[33] The Applicant gave evidence of sending a message to Uber Support on 13 September 2022 asking why the Respondent had deactivated his Uber account. However, whilst the Applicant sought information on why his Uber account had been deactivated 'a while ago', and sought to understand why that was the case, it is not evident from the message sent that the Applicant disputed his 'dismissal'. Seeking reasons as to why an event has occurred is not synonymous with taking action to dispute a dismissal. In all the circumstances, I am satisfied that this action does not weigh toward the grant of an extension.

[34] The Respondent submitted that it did not assert any prejudice except the ordinary prejudice of having had to make the jurisdictional objection to the application. However, it noted that a 'lack of prejudice is a positive factor but not a major factor' in considering exceptional circumstances,[30] and pressed that this factor should be treated as neutral. I agree with the Respondent's submission that the factor of 'prejudice' is a neutral consideration in all the circumstances of this case.

[35] In Telstra-Network Technology Group v Kornicki,[31] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said in respect to the merits of an application:

If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[32]

[36] Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission 'should not embark on a detailed consideration of the substantive case' for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[33] The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded.

[37] However, it is evident from the application that the Applicant contends he was an employee, and the Respondent considers that not to be the case. I have of course addressed this issue at some length at the beginning of this decision.

[38] The Commission has concluded on several occasions that 'Drive Partners' are not employees of the Respondent or its predecessor entity (Raiser Pacific V.O.F).[34] Further, this Commission at first instance, and on appeal, has similarly held a 'delivery partner' using the Uber Eats 'app' was not an employee.[35]

[39] In Abdi v Raiser Pacific Pty Ltd, a case that similarly involved an 'Uber Driver', it was said that in Mr Abdi's case, he was 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.[36]

[40] It is a truism that each case will turn on its own facts. However, the merits of the Applicant's case would appear to be grim in light of previous authorities and taking into account my consideration of the jurisdictional objection that the Applicant was not dismissed. I consider this factor weighs against the granting of an extension of time.

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

[41] The criterion of 'fairness as between the person and other persons in a similar position', was considered by the Deputy President in Morphett v Pearcedale Egg Farm, where it was said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[37]

[42] Based on the submissions filed, I am not satisfied that the criterion of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party and as such I consider it a neutral consideration.

[43] The test of exceptional circumstances in s 394(3) of the Act is a stringent one. Having considered each of the statutory criteria and all the circumstances of the matter, I am not satisfied that there are exceptional circumstances that support an extension of time and I consider that it is not fair and equitable to grant the extension. As indicated, it follows that the Applicant's application for an unfair dismissal remedy is dismissed.

[3] Pallage v Rasier Pacific Pty Ltd [2018] FWC 2579, [4] (Pallage); Suliman v Rasier Pacific Pty Ltd [2019] FWC 4807, [2] (Suliman).

[6] Respondent's Outline of Submissions, [12(a)].

[9] Respondent's Outline of Submissions, [12(d)].

[11] Kaseris v Rasier Pacific VOF (2017) 272 IR 289 (Kaseris); Pallage (n 3); Suliman (n 3); Nawaz v Rasier Pacific Pty Ltd (2022) 317 IR 134 (Nawaz).

[12] Nawaz (n 11) 187 [239] - [240].

[19] [2011] FWAFB 975; (2011) 203 IR 1, 5 [13] (Nulty).

[22] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901; (2018) 273 IR 156, 165 [39].

[24] Long v Keolis Downer [2018] FWCFB 4109; (2018) 279 IR 361, 370 [40].

[25] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287; (2015) 246 IR 362, 366 [12].

[28] Rose v BMD Constructions Pty Ltd [2011] FWA 673, [11].

[30] Caire v Imscan Technologies [2013] FWC 3154, [16].

[33] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, [37] - [38].

[34] Kaseris (n 11); Pallage (n 3); Suliman (n 3).

[35] Gupta v Portier Pacific Pty Ltd [2019] FWC 5008; Gupta (n 18).

Printed by authority of the Commonwealth Government Printer

Ali Abdurahman Jama v Rasier Pacific Pty Ltd [2022] FWC 2946

At a glance

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Judgment (88 paragraphs)

Ali Abdurahman Jama v Rasier Pacific Pty Ltd [2022] FWC 2946 (21 November 2022)

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Legislation Cited (2)

Cases Cited (10)