Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - extension of time - Uber driver - no exceptional circumstances - application dismissed.

• [1] On 8 January 2025, Mr Senese applied under s 365 of the Fair Work Act 2009 (Cth) (the Act) for the Fair Work Commission to deal with a general protections dispute involving dismissal.

• [2] In more familiar terms, Mr Senese was a Uber driver. The respondent, Rasier Pacific Pty Ltd, is the relevant corporate entity through which he was engaged to perform work as an Uber driver.

• [3] Since September 2024, Mr Senese has been unable to work as an Uber driver because his Uber driver account - which was essential to perform work as an Uber driver - was 'waitlisted' due to a vehicle defect with Mr Senese's car. While there is a different dispute about whether the 'waitlist' status should be lifted, there is no dispute that Mr Senese has been unable to work as an Uber driver since that time.

• [4] The respondent objects to Mr Senese's application on two principal grounds: first, it says Mr Senese is not an employee and is therefore not permitted to apply under s 365 of the Act; second, it says Mr Senese's application was out of time.

• [5] While there was initially some uncertainty as to the date of any putative dismissal, that matter was clarified at a mention hearing before me. This decision deals with the 'out of time' issue and, specifically, whether there are 'exceptional circumstances' existing such that Mr Senese should be permitted an extension of time of ninety-six days to make his application.

• [6] Section 366(1) requires an application under s 365 to be made within 21 days after the dismissal took effect. The Commission must therefore determine in the first instance whether further time for lodgement of the application is required and, if so, whether it should be granted.

• [7] Whether or not the Commission will grant an extension of time is a question to be determined having regard to s 366(2) of the Act. Section 366(2) states:

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

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

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

• [8] In order for the Commission to allow this further period of time, it must be satisfied that there were 'exceptional circumstances' which led to the application being made outside of the time frame. Exceptional means that the circumstances were out of the ordinary course, unusual, special or uncommon (Nulty v Blue Star Group [2011] FWAFB 975; (2011) 203 IR 1 at [13]).

• [9] In Mr Senese's Form F8 application form, he states "I don't know the exact date" in response to the question asking what the effective date of dismissal was. This appears to reflect that he didn't know the precise time he was 'waitlisted'.

• [10] The dismissal date was shortly clarified by Mr Senese in an email he wrote to the Commission on 16 January 2025. Mr Senese wrote "My date of dismissal was on 13/09/2024 which came to my attention upon starting a shift for my usual occupation duties on 13/09/2024. I became aware of this when logged into Uber to find I was locked out of the Uber data computational service".

• [11] Rasier Pacific agrees that the purported date of any dismissal was 13 September 2024. I am satisfied that Friday, 13 September 2024 is the appropriate date.

Section 366(2)(a) - Reason for the delay

• [12] For the general protections application to have been made within 21 days after the dismissal took effect, it needed to have been made within 21 days of 13 September 2024. As such, Mr Senese was required by section 366(1)(a) to have filed his application by 11.59pm on Friday, 4 October 2024.

• [13] The delay is the period commencing immediately after that time until the date the application was lodged on 8 January 2025, although circumstances arising prior to that delay may be relevant to the reason for the delay.[1]

• [14] As the application was lodged on 8 January 2025, the application was lodged approximately ninety-six clear days late.

• [15] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[2]

• [16] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[3]

• [17] The reasons given by Mr Senese are twofold:
  • First, he refers to his various attempts to engage with Rasier Pacific about his 'waitlist' status.
  • Second, he was unaware of the 21-day filing deadline.

• [18] Dealing with the first of these issues, there is no doubt that Mr Senese made numerous attempts to resolve his waitlist status with Rasier Pacific. There is clearly a degree of frustration on Mr Senese's behalf regarding these attempts.

• [19] The ultimate cause of the issue was damage to Mr Senese's car. In a report lodged by Mr Senese through the Uber platform, he states a seatbelt was slammed in the door by a customer which caused the light to come on because a door sensor had been pushed out of alignment. Mr Senese report that damage to Rasier Pacific himself, albeit he appeared to do so in the expectation - or hope - that Rasier Pacific would meet the cost of the repairs. The response Mr Senese received from Rasier Pacific was not what he wanted to hear. The initial response stated "As a standard safety measure and to be compliant with government's rideshare regulations, we'll have to temporarily remove your vehicle's access to the app due to the reported damage. We can reinstate your vehicle as soon as your car is repaired or one of the following documents are provided and reviewed."

• [20] It is unnecessary to go into the detail of the communications that followed in the weeks after up to late December 2024. It suffices to say that Mr Senese was particularly unhappy at the cost of the repair (even with insurance, being about $1000), the viability of being an Uber driver when such costs rested with him, and the refusal of Rasier Pacific to lift his waitlist status until evidence of the repairs was provided.

• [21] Notwithstanding, there was nothing in those communications that stated or implied Rasier Pacific was going to adopt a different approach or was otherwise condoning Mr Senese to delay any Fair Work Act proceeding. Indeed, at least until December 2024, there was no objectively reasonable hint that Mr Senese was contemplating any Fair Work Act proceeding, although there was a general threat of a "court" proceeding on 20 November 2024.

• [22] While Mr Senese's attempts to resolve his dispute directly with Rasier Pacific are laudable, they do not provide any reasonable explanation for delaying his general protections claim.

• [23] In any case, I very much doubt whether Mr Senese's attempts to resolve his car damage claim had any impact at all because, as he candidly acknowledged at the hearing of the matter, he was unaware of any deadline to make a claim in the Commission, let alone the 21-day limit.

• [24] Nonetheless, mere ignorance of the statutory time limit is not an exceptional circumstance[4] and nor is unfamiliarity with the process generally.

• [25] The delay in the present case is lengthy - 96 days - and I am not satisfied that any of the reasons, taken individually or in combination, for the delay in commencing his claim point to circumstances that would support a finding of exceptional circumstances. Of the factors I must consider in s 366(2), I consider the factor in s 366(2)(a) tends strongly against the application for an extension of time.

Section 366(2)(b) - action taken by the Applicant to dispute the dismissal

• [26] Where an applicant takes action to contest a termination, it will put the respondent on notice that its decision to terminate the applicant's employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[5]

• [27] Mr Senese had raised a dispute about his waitlisting status and did so within the 21-day period and after. While that was not a challenge to alleged adverse action, I acknowledge it is a factor that points slightly in his favour, although it is not a factor that I consider supports a finding of exceptional circumstances, whether on its own or with any other factor.

Section 366(2)(c) - the prejudice to the employer (including prejudice caused by the delay)

• [28] In all the circumstances, I do not find that any material prejudice would be suffered by the respondent if an extension of time were granted. I consider this factor is neutral between the parties.

Section 366(2)(d) - the merits of the application

• [29] The competing contentions of the parties in relation to the merits of the application are set out in the filed materials, although at a relatively high level.

• [30] It is well established that, "it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)"[6].

• [31] In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. Nonetheless, there are two particular factors that indicate Mr Senese's claim will have poor prospects of success.

• [32] First, there is the very live issue as to whether Mr Senese was an employee. If he was not, Mr Senese's claim ends at that point because claims under s 365 can only apply to an 'employee'.

• [33] The respondent has, quite properly, drawn attention to a number of cases where Uber drivers or individuals said to be in similar arrangements have been found not to be an employee. Implicit in those submissions is that the arrangements with Mr Senese are substantively the same as the arrangements considered in those earlier cases. Those cases preceded the recent amendment to the Act concerning who is to be treated as an employee - see s 15AA. As the note to section 15AA states, that section was enacted as a response to the decisions of the High Court of Australia in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 (Personnel Contracting) and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 (Jamsek). While some of the cases the respondent referred to applied Personnel Contracting and Jamsek, and might be distinguishable on that basis, an number of earlier cases did not and in each of those cases an 'Uber driver' was found not to be an employee: see Kaseris v Rasier Pacific V.O.F. [2017] FWC 6610; Pallage v Rasier Pacific Pty Ltd [2018] FWC 2579; Suliman v Rasier Pacific Pty Ltd [2019] FWC 4807.

• [34] It is unnecessary at this stage of the proceeding to express any concluded views on the extent, if any, that the newly-enacted s 15AA of the Act would produce a different outcome to decisions applying the state of the law prior to Personnel Contracting and Jamsek. Nonetheless, a fair observation is that Mr Senese's prospects of establishing that he was an employee have real challenges. This is a factor I consider points against a finding of exceptional circumstances for the purposes of s 366 of the Act.

• [35] Second, Mr Senese's claim that adverse action was taken against him for 'industrial activities' (sections 346 to 348) and there was a 'sham arrangement' (section 358) appear particularly weak, with no evident causal nexus at all between those allegations and the 'waitlist' status. To the contrary, the only cogent evidence before me is that Mr Senese was placed on a 'waitlist' status directly in response to his notification of the vehicle damage to his door sensor. This is a factor I consider points against a finding of exceptional circumstances for the purposes of s 366 of the Act.

• [36] Taken together, the overall merits of Mr Senese's claim is a matter leaning heavily against an overall finding of exceptional circumstances.

Section 366(2)(e) - fairness as between the Applicant and other persons in a similar position

• [37] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Is the Commission satisfied that there are exceptional circumstances?

• [38] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.

• [39] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[7] Exceptional circumstances may 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.[8]

• [40] For the case before me, I have already set out above my observations in respect of the specific factors that I must take into account. When having regard to all of the matters listed at s 366(2) of the Act, I am not satisfied that there are exceptional circumstances of the kind required by the statute, whether taken individually or in combination. There are no additional matters that I am aware of that would otherwise point to a conclusion of "exceptional circumstances".

• [41] Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. Mr Senese's application for the Commission to deal with a dismissal dispute is therefore dismissed. An Order[9] to this effect will be issued in conjunction with this decision.

[1] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].

[4] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd [2016] FWCFB 5472, [23].

[5] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[6] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

[7] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[8] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[9] PR785059.

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