Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - no reasonable prospects of success - application dismissed

• [1] On 18 January 2025, Mr Farhad Ullah (the Applicant) made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Applicant advises, in the Form F2 unfair dismissal application, that he commenced employment with Raiser Pacific Pty Ltd (the Respondent) as an Uber driver sometime in January 2024, and that he was dismissed on 2 January 2025, the date on which his account on Uber Rides was deactivated.

• [3] The Respondent raises the jurisdictional objection that the Applicant was not an employee and had not been dismissed. Essentially, the Respondent submits that the law regarding Uber drivers has been conclusively settled, that Uber drivers are not employees, and that the application should be dismissed under s.587(1)(c).

• [4] Unsuccessful attempts to conciliate the matter were held on 19 February and 12 March 2025, and ample opportunity was provided for the Applicant to fully acquaint himself with relevant law. A further conference was held on 24 March 2025, at which previous directions in the matter were vacated.

• [5] On 26 March 2025, I wrote to the Applicant inviting him to respond to my preliminary view that the Commission lacked jurisdiction because the Applicant did not appear to be an employee of the Respondent and was not dismissed.

• [6] The Applicant was also invited to provide evidence that his contract with the Respondent was not in essentially the same terms as the contracts of other drivers who have unsuccessfully used an unfair dismissal application in order to challenge deactivation of their account on a digital platform.

• [7] The Applicant was to respond by 4pm on Monday 31 March 2025 but did not. As at the time of writing this decision, the Applicant's response is still outstanding.

• [8] Section 382 of the Act provides that a person is protected from unfair dismissal if, amongst other things, that person is an employee.

• [9] It is well established that Uber drivers such as the Applicant are not employees. The Applicant was invited but failed to provide any evidence to illustrate that his relationship with the Respondent was not in the nature of a contracting one.

• [10] Section 587(1) of the Act provides as follows:

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

• [11] As the Applicant is not an employee and has not been dismissed, the application has no reasonable prospects of success. As such, the application is dismissed under s.587(1)(c) of the Act.

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