Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - jurisdictional objection heard - application by Respondent for a stay of the matter pending outcome of relevant High Court proceedings - stay granted - liberty to apply.

• [1] Mr Asim Nawaz has made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (the FW Act) claiming to have been unfairly dismissed by the Respondent, Rasier Pacific Pty Ltd[1] (Respondent or Uber).

• [2] Mr Nawaz operated a passenger vehicle using the Uber platform. On 3 April 2021 Uber removed Mr Nawaz's access to the platform in circumstances that have not yet been considered by the Commission.

• [3] In opposing the application, Uber contests Mr Nawaz's eligibility to make this application and contends that he was not a person protected from unfair dismissal on the basis that he was not an employee - the jurisdictional objection.

• [4] The unfair dismissal application has been subject to a hearing on 28 July 2021 in relation to the jurisdictional objection. In making the application and advancing his case, Mr Nawaz has referred to and relied upon to some degree the outcome of the decision of the Commission in Diego Franco v Deliveroo Australia Pty Ltd[2] (Franco). In addition, Mr Nawaz has also provided comprehensive material that he contends distinguishes his application from other decisions of the Commission concerning the Uber platform.

• [5] For its part, Uber has conducted its case primarily by reference to the decision of the Full Bench of the Commission in Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd t/a Uber Eats[3] (Gupta) and the application of the common law test of employment arising from Hollis v Vabu Pty Ltd[4] (Hollis v Vabu) as distilled and applied by the Commission in French Accent v Michael Anthony Do Rozario.[5]

• [6] Franco has been subject to appeal and by the time of the hearing in this matter, that appeal had been heard by a Full Bench of the Commission and a decision reserved. During the hearing, I advised that whilst I would reserve a decision in this matter, as both parties had relied upon, or in the case of Uber referred to, Franco:

"...Although there are differences in context and factual differences, it is likely that any decision in that matter may be relevant to the jurisdictional issue that I need to determine here, at least in terms of the principles that might be applied to applying the common law test of whether or not this relationship was one of employment.

So as a result, if that decision is made before I am ready to give a decision in this matter, then I will provide an opportunity for parties to make supplementary written submissions on the appeal decision. If, however, that decision is not made or announced by the time I am ready to give my decision the likelihood is I will just issue my decision."[6]

• [7] I also observe for completeness that after the hearing in this matter had been conducted, Mr Nawaz indicated by email to the Commission that his application should not be delayed as a result of the reported action of some other "Uber drivers" to seek an adjournment of their Commission matters due to Federal Court proceedings that they had initiated. I observe that these circumstances were subsequently discussed and dealt with in another case by Masson DP in Syed Mubashir v Rasier Pacific Pty Ltd, Uber BV, Uber Australia Pty Ltd T/A Uber.[7] In response to Mr Nawaz's email, my Associate advised both parties that:

For clarity, Commissioner Hampton indicated during the proceedings that he will consider and issue the decision in your matter in the normal course. If however, the Full Bench of the Commission in the Deliveroo Australia Pty Ltd v Franco appeal matter delivers its decision before he has made his decision, he will permit the parties to make some further written submissions as to whether there is any relevance in the Full Bench decision to your matter. The context for this indication is that you have relied upon the original decision in Franco v Deliveroo Australia Pty Ltd as part of your case, the appeal has already been heard, and whilst the facts of that matter and some of the issues arising are different to your application, the Full Bench may provide clarity around the principles that are to be applied in cases of this kind. You would also be aware that the Commissioner is required to have regard to relevant decisions of the Full Bench.

In relation to the issues you now raise, the Commissioner is not aware that either party has requested that this matter be "delayed, or attached with any higher court's litigation process". In the absence of such an application or some intervening order of the Court or Full Bench (none is foreseen), the Commissioner will, as indicated, consider and issue the decision in your matter in the normal course.

• [8] There have been 2 subsequent relevant developments that have impacted upon this matter. Firstly, the Full Bench dealing with the Franco appeal has determined in Deliveroo Australia Pty Ltd v Diego Franco[8] (Deliveroo stay decision) to stay proceedings in that matter. The context for that decision and the outcome was as follows:

"[1] In a statement issued on 6 August 2021, we indicated that we intended, in light of the decision of the High Court in Workpac Pty Ltd v Rossato & Ors, to give consideration to deferring the determination of the appeal in this matter until the High Court has heard and determined two appeals before it, being appeals against Federal Court Full Court decisions in Jamsek v ZG Operations Pty Ltd (matter S27/2021) and CFMMEU v Personnel Contracting Pty Ltd (matter P5/2021). These appeals are both concerned, like the appeal before us, with the employee/independent contractor distinction, and will be heard together by the High Court on 31 August and 1 September 2021. We conducted a hearing earlier today to provide the parties with an opportunity to make submissions about the postulated deferral.

[5] We have decided that the appropriate course is to defer the determination of this appeal until the High Court has heard and determined the appeals in Jamsek and Personnel Contracting. This appeal is a matter of some importance, given that it is likely to have significance for the whole of Deliveroo's workforce and perhaps also for the "gig" sector of the economy more broadly. We agree with Deliveroo that the decision in Rossato (particularly at [101]) has, intentionally or otherwise, called into question what principles are to be applied in determining whether a relationship is one of employment or independent contracting and the status of Hollis v Vabu in that respect. In all likelihood, the High Court's decisions in Jamsek and Personnel Contracting will provide authoritative guidance as to these issues." (citations omitted)

• [9] The decisions in the matters referred to in the Deliveroo stay decision are as follows:

• • Workpac Pty Ltd v Rossato & Ors[9]- Rossato;

• • Jamsek v ZG Operations Australia Pty Ltd[10]- Jamsek; and

• • CFMMEU v Personnel Contracting Pty Ltd[11] - Personnel Contracting.

• [10] Secondly, in light of the above developments Uber has now applied for this application to be stayed, or otherwise adjourned, until the High Court delivers its Judgments in the Jamsek and Personnel Contracting appeals. The stay application is opposed by Mr Nawaz and this Decision deals with this aspect.

• [11] The basis of the stay application made by Uber in this matter may be summarised in the following terms:

• The principal question in the appeal before the Full Bench in the Franco appeal is the same as the principal question to be determined by the Commission in the present proceedings, being whether Mr Nawaz was an "employee" of the Respondent in applying the common law test (although it says that this question has been categorically determined by the Full Bench in Gupta).

• The Full Bench in the Deliveroo stay decision has indicated that the High Court will provide authoritative guidance as to these issues.

• Uber contends that the decision in Gupta is correct and the orthodox approach would be for the Commission as presently constituted to apply the law, as it stands, on the basis of that and other binding authority. However, consistent with the approach expressed in the Deliveroo Stay decision, it is possible that the determination of Jamsek and Personnel Contracting appeals by the High Court may have a material effect on the characterisation of an employment relationship, and if so then this may have an impact on the analysis of whether Mr Nawaz was an employee of Uber (to the extent those decisions do authoritatively determine that the analysis to be applied is inconsistent with that applied in Gupta).

• While Gupta was determined applying the principles in Hollis v Vabu, either way the determination of the appeals in Jamsek and Personnel Contracting will be of general importance because it will likely provide guidance on determining the question of whether a worker is an employee or independent contractor.

• • It is accepted that there is some prejudice to Mr Nawaz in the present proceedings being deferred pending the outcome of the appeals in Jamsek and Personnel Contracting, due to the delay. However, those proceedings will be heard on 31 August 2021 and 1 September 2021 and therefore the delay will not be significant. Further, there is a public interest, in addition to the Applicant's interest, for there to be certainty in the outcome of the present proceedings. In the event the matter is heard at first instance and appealed, it is possible a Full Bench will then make a similar decision to Deliveroo anyway. This stay application avoids that uncertainty.[12]

• [12] Uber also contends that the matter should be stayed pending the High Court decisions, rather than the Franco appeal, given that both parties would be in a position to make submissions on the implications of the High Court Judgments at that point.

• [13] Finally, Uber emphasised that it was in the rather unique circumstances highlighted by the Full Bench in the Deliveroo stay decision that this stay application was being advanced.

• [14] Mr Nawaz opposes the application on the following basis:

• The Commission had previously indicated that it would not necessarily await the outcome in the Franco appeal and this should still be the case.

• He had advanced arguments that were different to those put in other "Uber" cases and that may not be advanced in the High Court cases.

• There was no reason to delay this matter to consider the Rossato decision as the Uber contract was ambiguous in terms of the description of the relationship and was "illegal".

• The matter had already been delayed to accommodate the Respondent's (internal) solicitor.

• The decision in Franco had already "distinguished" the Gupta Full Bench decision.

• • "Powerful parties may use their influence or capacity (at higher level courts) to thwart" individual applicants who can "hardly afford basis litigation processes".[13]

• [15] Mr Nawaz contends that the Commission should now just issue the decision in his matter.

• [16] I agree with Mr Nawaz that the parties would already be able to advance submissions in light of Rossato. On its own, I would simply provide an opportunity for the parties to make supplementary submissions on that aspect. However, in the context of the particular jurisdictional objection here, and for reasons largely set out in the Deliveroo stay decision, there are additional unique and significant relevant factors that must be taken into account in dealing with the stay application.

• [17] I have determined to stay (adjourn pending further developments) this matter until the High Court has heard and determined the appeals in the Jamsek and Personnel Contracting matters. My reasons for adopting this course of action are set out below.

• [18] Ultimately, whether to grant a stay in an application of this kind is a matter of discretion to be exercised having regard to the statutory framework and all of the relevant circumstances.

• [19] The Commission should generally deal with matters of this kind expeditiously. This flows from a number of factors including the nature of the unfair dismissal jurisdiction,[14] the desirability of avoiding prejudice to parties - from having evidence lost or degraded or from the nature of the remedies available - and incurring unnecessary costs, and the statutory scheme of the FW Act.[15]

• [20] In this case, the evidence has already been heard. There is potential prejudice to the parties arising from the delay. However, I observe that Mr Nawaz is ultimately seeking reinstatement, and if it is found that he was an employee and was unfairly dismissed, the consideration of reinstatement includes whether lost remuneration between the dismissal and the return to the workplace should be ordered.[16] There is however a limit of 6 months lost remuneration in the case of compensation.[17] In terms of any prejudice to Uber, it is the party seeking the stay.

• [21] The prospect for delay and prejudice should also be considered in the practical context that, given the capacity for a review of decisions of the Commission, the fairest and ultimately more efficient manner of dealing with this application is likely to involve having the parties make submissions at first instance when some clarification of the legal principles to be applied has been provided. The particular circumstances applying in this case include that the very legal principles relied upon by the parties are in a state of flux. This is evident from the Deliveroo stay decision. Further, although the facts are different and Mr Nawaz's case will be determined on its own merits, the Judgments of the High Court will be relevant and must be taken into account on the basis of precedent law and "comity". Decisions of the High Court and the Federal Court represent binding authority for the Commission.

• [22] There are many and varied applications of the principles of "comity". For present purposes I proceed on the basis that these relevantly include and extend from respect for relevant decisions of Courts and Tribunals dealing with the same or similar issues, and the desirability for consistency and predictability in approach in decisions from the same Tribunal. The Commission is not bound by the principles of stare decisis but has consistently held that the doctrine of precedent and the predictability of the law are important considerations, particularly (in the case of Tribunal decisions) concerning decisions made by a Full Bench of the Commission.[18] The outcome of the decision in this matter is also likely to be of some significance, not just for Mr Nawaz.

• [23] The parties would of course be given an opportunity to subsequently make submissions to the Commission in light of the High Court Judgments, and subject to consideration of those matters, the Commission would then be in a position to expeditiously determine this application. I emphasise that it is the legal principles that are to be taken into account and the distinguishing propositions advanced, or to be advanced in the future, by Mr Nawaz, will be considered and determined by the Commission in ultimately resolving the jurisdictional objection in his case.

• [24] The joint hearing of the High Court matters is also imminent.

• [25] The balance of the considerations in this matter weigh in favour of staying the determination of the jurisdictional objection concerning this application.

• [26] I have further considered whether I should also await the Full Bench decision in the Franco appeal, and not just the High Court Judgments. I assess that the Full Bench of the Commission will expeditiously consider and determine the appeal in that matter once the High Court outcomes are known. Further, there is the clear potential for some additional guidance to be provided by the Full Bench. However, until the detail and import of the High Court Judgments in Jamsek and Personnel Contracting appeals is known, I consider that the preferred course of action is to await those decisions and then hear further from the parties on the best way to proceed to determine the jurisdictional objection in this matter. Accordingly, and subject to any contrary directions I may subsequently issue, the Commission will convene a Directions Conference in this matter shortly after the High Court Judgments have been published.

• [27] Consequently, this matter is stayed until the High Court has heard and determined the appeals in the Jamsek and Personnel Contracting matters.

• [28] Given that there may also be subsequent developments in the High Court or other relevant matters, I do grant general liberty to apply to have the stay removed or varied.

C Loughlin, on behalf of Rasier Pacific Pty Ltd, the Respondent.

[1] The application cites the Respondent employer as trading as Uber BV. Based upon material already before the Commission in this matter, this is likely to be a reference to a separate corporation rather than a trading name. This can be dealt with in subsequent proceedings if required.

[2] [2021] FWC 2818.

[3] [2020] FWCFB 1698; (2020) 296 IR 246.

[4] [2001] HCA 44; (2001) 207 CLR 21.

[5] [2011] FWAFB 8307, 215 IR 235.

[7] [2021] FWC 4729.

[8] [2021] FWCFB 5015.

[9] [2021] HCA 23.

[10] [2020] FCAFC 119, 279 FCR 114, 297 IR 210.

[11] 2020] FCAFC 122, 279 FCR 631, 297 IR 269.

[12] Drawn principally from the Form F1 - Application for Stay dated 17 August 2021.

[13] Drawn from written submissions of 19 August 2021 as clarified during the hearing.

[14] Including the objects of Part 3-2 set out in s.381 and the time limit for the making of applications - s.394(2) and (3) of the FW Act.

[15] Including the injunction to the Commission to perform its functions and exercise its powers in a manner that is, amongst other qualities, quick - s.577(b) of the FW Act.

[18] See for example at Inna Grabovsky v United Protestant Association of NSW Ltd T/A UPA [2018] FWCFB 4362 at [26].

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