s.394 - Unfair dismissal

Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed.

[1] On 27 September 2025 Mr Faruq Mohammed made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth), alleging that he had been unfairly dismissed from his employment with Uber Australia.

[2] Section 394(1) requires that unfair dismissal claims be lodged within 21 days after a dismissal takes effect. Mr Mohammed was engaged as a driver for Uber Australia until he was deactivated on 6 July 2025. In the unlikely event that Mr Mohammed was an employee of Uber Australia and that his dismissal from employment took effect on 6 July 2025, Mr Mohammed needed to make his unfair dismissal application by midnight on 27 July 2025. Mr Mohammed's unfair dismissal claim was therefore made 62 days late.

[3] Section 394(3) gives the Fair Work Commission a discretion to allow Mr Mohammed an extension of time to lodge his unfair dismissal claim, but only if there are exceptional circumstances. The exceptional circumstances requirement in s.394(3) sets a 'high hurdle' for applicants to overcome. Exceptional circumstances for unfair dismissal claims filed after the 21-day time limit are circumstances that are out of the ordinary course, unusual, special or uncommon.

[4] Early in the proceeding I expressed my preliminary view that Mr Mohammed's application for an extension of time was unlikely to succeed. Mr Mohammed was invited to discontinue his application but chose not to do so.

[5] The Respondent also provided Mr Mohammed with copies of several Federal Court and Fair Work Commission decisions that make it abundantly clear that Uber drivers are not regarded as employees and therefore are not eligible to make unfair dismissal claims. Mr Mohammed chose to continue with his claim.

[6] For the reasons set out below I find that there are no exceptional circumstances that could allow me to make an order to grant Mr Mohammed an extension of time.

Section 394

[7] Section 394 the Fair Work Act 2009 ("the FW Act") is in the following terms:

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) 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:

(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."

[8] Each of the matters in s.394(3) must be taken into account where relevant. In summary:

**_(a) the Commission is unlikely to find that exceptional circumstances exist if an applicant does not have a credible explanation for the delay (s.394(3)(a)). The test invariably applied is whether an applicant has a 'credible or reasonable' explanation for the delay and whether the reason(s) for the delay point towards there being exceptional circumstances;

(b) sometimes an applicant's medical condition can be so significant that it effects their mental capacity to prepare and file an application. Stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves. A depressive illness might point towards exceptional circumstance if the illness had a material impact upon an applicant's capacity to lodge the application within the statutory time limit. The applicant's evidence should positively demonstrate that their depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame (s.394(3)(a)). An applicant's self-assessment of their alleged psychological incapacity is unlikely to be sufficient;

(c) it is not out of the ordinary or uncommon for employees whose employment has ceased not to be aware of the law and unable to pay for advice or afford legal costs (s.394(3)(a));

(d) exceptional circumstances might exist when an applicant is not aware that a dismissal has taken effect until a later date (s.394(3)(b));

(e) the Commission is not required to, and does not, conduct a full inquiry into the merits to satisfy s.394(3)(e). There are sound reasons why the Commission does not do so - most notably because parties should not have to present their evidentiary case twice. In this context members it is sufficient for the Commission to make a preliminary assessment about whether there is any merit to the application;

(f) in certain circumstances there may be people in a "similar position" to the applicant, such as other employees dismissed by the same employer at the same time. Under s.394(3)(f) the Commission can consider factors beyond the immediate circumstances of the parties to ensure that there is fairness in the treatment of the applicant's claim compared to the claims of others in a similar position._**

[9] I have considered all the material provided by Mr Mohammed in support of his argument that there were exceptional circumstances and that he should be granted an extension of time to file his application. This material can be summarised as follows:

**_(a) Mr Mohammed was unwell and unable to manage his affairs during the relevant period; and

(b) Mr Mohammed tried to obtain trip records and earnings records from Uber without success._**

[10] Mr Mohammed said that after the deactivation he experienced significant mental and emotional stress and was feeling low, overthinking, and unable to manage normal daily responsibilities.

[11] Mr Mohammed provided a medical certificate dated 24 October 2025 (almost one month after the unfair dismissal claim was filed). The medical certificate does not assist Mr Mohammed's application. The certificate does not indicate that Mr Mohammed received any medical treatment prior to 24 October 2025 and merely records, without any apparent medical assessment, that Mr Mohammed "stated has a medical condition feeling stressed, low and overthinking for few months." In other words, the medical certificate provided by Mr Mohammed is no more than a document from a doctor that records in brief terms what Mr Mohammed told the doctor on 24 October 2025 about his health over the previous months.

[12] Taking into account each of the factors listed in s.394(3) I find that:

**_(a) Mr Mohammed provided no proper medical evidence at all to support his assertions about his capacity to make an application;

(b) Mr Mohammed has not provided a credible and reasonable explanation for the whole period of the delay. The reasons for delay point in favour of / against a finding that there were exceptional circumstances;_**

[13] In my view the following matters are neutral considerations:

**_(a) Mr Mohammed was notified of the deactivation on the same day that it took effect, and therefore had the benefit of the full 21-day period to lodge an application;

(b) there is no evidence of prejudice to the Respondent;

(c) I am not aware of any persons or cases that are relevant to the question of fairness as between Mr Mohammed and other persons; and

(d) Mr Mohammed took no steps to challenge the alleged dismissal by asking Uber Australia to review its decision._**

[14] Mr Mohammed's application has no real prospects of success even if an extension of time was granted. It is now well established that Uber drivers do not perform work as employees.

[15] In this case none of the above matters considered individually point towards there being any exceptional circumstances. After reviewing the matters collectively I am still not satisfied that there are exceptional circumstances.

[16] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time to make Mr Mohammed's application. I make the following order:

1. The unfair dismissal application made by Mr Mohammed on 27 September 2025 is dismissed.

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