Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2024] FWC 3218 of Deputy President Saunders at Newcastle on 21 November 2024 in matter number U2024/10933 - permission to appeal refused.

[1] Mr Christopher Gellel has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] of Deputy President Saunders, issued on 21 November 2024, for which permission to appeal is required. In the decision, the Deputy President declined to grant an extension of time for the filing of Mr Gellel's application for an unfair dismissal remedy against the respondent, Uber.

[2] The matter was listed for permission to appeal only. The parties consented to the application being determined without holding a hearing pursuant to s 607(1)(b) of the Act. We are satisfied that the question of permission to appeal can be adequately determined without the need for oral submissions. For the reasons that follow, permission to appeal is refused.

[3] After setting out various procedural matters, the Deputy President turned to consider Mr Gellel's application for an extension of time. Noting that the documentary material established that the respondent informed Mr Gellel of its decision to remove access to his account on 29 September 2020, the Deputy President recorded that the application was filed approximately 1,427 days (almost four years) outside the statutory timeframe for lodgement prescribed by

s 394(2) of the Act.

[4] The Deputy President considered whether to allow a further period for Mr Gellel's application to be made, having regard to the factors in s 394(3) of the Act. In relation to

s 394(3)(a), the Deputy President considered Mr Gellel's submissions as to the reasons for the delay, which are listed at [16] of the decision. The Deputy President did not consider that the matters relied upon by Mr Gellel, individually or collectively, provided an acceptable or reasonable explanation for the lengthy delay. Nor did Mr Gellel produce to the Commission any medical evidence concerning the extent of the medical issues he relied upon and their impact on him over the four-year period following his deactivation.

[5] The Deputy President was satisfied for the purposes of ss 394(3)(b), (c) and (d) that:

• (a) Mr Gellel was aware of his dismissal at the time it had taken effect, which was a neutral matter in his consideration of an extension of time;

• (b) Mr Gellel had taken action to dispute the dismissal by contacting the respondent which weighed in favour of an extension of time; and

• (c) little weight was to be attributed to the question of prejudice to the respondent.

[6] As to the merits of Mr Gellel's substantive application (s 394(3)(e)), the Deputy President conducted an initial assessment of the material before him, noting that the substantial merits were not able to be fully examined at the extension of time hearing which was an interlocutory proceeding. The Deputy President recorded Mr Gellel's many driving trips, his driver rating and positive passenger feedback, and Mr Gellel's contention that he was not given a proper reason for the deactivation of his account. The Deputy President also took into account the respondent's contention that Mr Gellel was not an employee (but rather a 'Driver Partner') and concluded that on the information available, Mr Gellel's application for an unfair dismissal remedy was weak, as only employees can pursue such claims. The Deputy President also concluded that there was nothing relevant to weigh in his consideration of the fairness factor in s 394(3)(f) of the Act.

[7] Having regard to the findings that he made in relation to the above factors, the Deputy President concluded that there were no exceptional circumstances such as to exercise his discretion to extend time and dismissed Mr Gellel's application.

[8] There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 400 of the Act applies to this appeal, as it is from a decision made under Part 3-2 of the Act. By 400(1), the Commission must not grant permission to appeal unless it is in the public interest to do so. Section 400(2) provides that an appeal on a question of fact can only be on the ground that the decision involved a significant error of fact. The test under s 400 is "a stringent one."[2]

[9] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[3] The public interest is not satisfied simply by the identification of error or a preference for a different result.[4] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[5] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[10] An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[6] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.

[11] In the Notice of Appeal, Mr Gellel lists his grounds of appeal as follows (unedited from original):

"• 4.91 rating over 3500 trips with Uber passenger + Eats

• Great comments & customer service
• Uber states you can put all accounts in one
• Unfair dismissal
• Ms Gupta received 400K for unfair dismissal
• Unaware deactivated until late
• Didn't drive for a while plus had change of vehicle
• Covid-19
• Dads death
• Crohn's disease, chronic illness & pain lead to delay. Can provide evidence through doctors notes and specialists if needed or pass on there details.
• Deactivated for minor reason due to me not having access to old phone number
• No proper warning letters issued"

[12] Mr Gellel's written submissions contain a series of screenshots including in relation to his driving history with the respondent, positive passenger feedback, correspondence from the respondent regarding duplicate accounts, and observations about earning an income as a driver including the associated costs and flexibility issues. Mr Gellel contends that his dismissal was unfair, his health was impaired due to his Chron's disease and chronic pain and other personal matters, and he is entitled to compensation as a remedy.

[13] Mr Gellel submits that it is in the public interest that permission to appeal be granted on account of him not having any income, his good driving history with the respondent, and the inherent unfairness of his outcome compared to other applications in the Commission.

[14] We are not persuaded that it would be in the public interest to grant permission to appeal. Mr Gellel's public interest submissions focusing upon his financial circumstances and driving history fail to engage the public interest criterion. Nor has Mr Gellel identified any relevant disparity between the decision under appeal and other recent decisions as to the legal principles to be applied (noting that such disparity is not established by simply referring to other cases decided by reference to different facts and circumstances).[7] The principles applying to the consideration of applications for extensions of time under s 394(3) of the Act are well established by Full Bench decisions including Nulty v Blue Star Group Pty Ltd[8] and Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters.[9] We consider, as the decision records, that the Deputy President correctly applied those principles to the application before him.

[15] Mr Gellel's appeal grounds do not allege any errors of fact in the decision, let alone any significant errors such as to satisfy the requirement in s 400(2) of the Act. Broadly, the concerns advanced by Mr Gellel's grounds of appeal appear to simply replicate Mr Gellel's first instance submissions in support of an extension of time. Far from demonstrating an arguable case of appealable error, it appears that Mr Gellel simply seeks a different outcome.

[16] The Deputy President's conclusion that there were no exceptional circumstances supporting the grant of an extension to time appears to have been reasonably available having regard to the findings he made, for which there was an evidentiary foundation. No error of the House v The King[10] kind has been advanced by Mr Gellel and none appears on the face of the decision.

[17] It follows, having regard to these matters, that we must refuse permission to appeal in accordance with the stringent test in s 400(1) of the Act.

[1] [2024] FWC 3218

[2] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43]

[3] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]

[4] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; 197 IR 266 at [24]- [27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28]

[5] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]- [27]

[6] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

[7] JBS Australia Pty Ltd v Willie Bara [2025] FWCFB 15 at [17]

[8] [2011] FWAFB 975; 203 IR 1

[9] [2018] FWCFB 901; 273 IR 156

[10] [1936] HCA 40; 55 CLR 499

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