Fair Work Commission|2024-04-09

Gary Grist v Raiser Pacific Pty. Ltd [2024] FWC 900 (9 April 2024)

s.394 - Unfair dismissal

Application for an unfair dismissal remedy- circumstances not exceptional - application dismissed.

[1] Mr Gary Grist (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Raiser Pacific Pty. Ltd (the Respondent).

[2] The Respondent objects to the application on the grounds that it appears to have been lodged outside of the statutory timeframe.

[3] The Respondent has a further jurisdictional objection to the application, being that the Applicant was not dismissed by the Respondent.

[4] The Respondent, in their submissions, highlighted that any reference to a date of termination, was not a dismissal as such, rather the Respondent deactivating the Applicant's driver account rather than a dismissal.

[5] Before considering the merits of the application or the objection regarding the existence of a dismissal, the Commission must be satisfied that the application was not made out of time.

[6] A Hearing regarding the out of time issue was held. At the Hearing, the Applicant gave evidence on his own behalf. The Respondent did not present any witnesses.

[7] Section 394(2) of the Act details the requirement for an unfair dismissal remedy to be made within the 21-day time limit:

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

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

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

[8] As the Full Bench has stated, in relation to a general protections application but equally applicable here, "the 21 day period prescribed... does not include the day on which the dismissal took effect."[1]

[9] The Full Bench further stated, "if the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day."[2]

[10] The parties are in dispute about when the dismissal took effect.

[11] The Commission received an application Form F2 from the Applicant on 22 February 2024. The Applicant, in his application, states that his employment with the Respondent ended on 9 May 2023.

[12] The Applicant, in his submissions to the Commission, stated:

"after numerous messages and letters to UBER their final notice to deactivate my account permanently was not until 29 January 2024".

[13] The Respondent submits that the dismissal in fact took effect on 11 May 2023, when the Respondent communicated to the Applicant that his Uber Driver Partner account was permanently deactivated.

[14] The Respondent provided a copy of communication between the Applicant and the Respondent, from 11 May 2023, which states:

"We have received a report from a third-party from a recent trip that you may have been verbally abusive. Reports of this behaviour are extremely concerning and are in a direct violation of out Community Guidelines. As such, in the interests of maintaining the safety of all users of the Uber App, we've decided to permanently deactivate your account as a result of this feedback.... This was not an easy decision as we value everyone who partners with us. If you believe our decision to deactivate your account should be reviewed, you are able to request an appeal by following this link".

[15] I am satisfied that on 11 May 2023 the Respondent sent clear communication to the Applicant stating that his account as a partner driver had been permanently disabled and that this communication ended any ongoing working relationship between the parties.

[16] On assessment of the parties' submissions and the evidence before me, I am satisfied that the dismissal occurred on 11 May 2023.[3]

[17] It is a matter of record that the application was lodged on 22 February 2024.

[18] As noted above, the dismissal took effect on 11 May 2023. The final day of the 21-day period was therefore 1 June 2023 and ended at midnight on that day. As I found above, the application was made on 22 February 2024.

[19] Noting the contending submissions of the parties, in the event I have erred in my conclusion on the dismissal date, the absolute final day of the Applicant's employment would have been 29 January 2024.

[20] I note that, on the 29 January 2024, the Applicant received the following communication from the Respondent:

"We refer to your most recent email of 16 January 2024 regarding the removal of your access to the Uber Driver App....We confirm that it was your behaviour on this occasion that led to the deactivation of your account, as this behaviour is in breach of Uber's Community Guidelines....We also confirm we have reviewed the material attached to your email dated 16 January 2024, and note that although your driver authorisation has been reinstated, due to the nature of the incident reported to Uber....Uber maintains the decision to remove your access from the Uber Driver App for violation of Uber's Community Guidelines and the Services Agreement."

[21] Even in the event that the termination took place on 29 January 2024, the Applicant's application would still have been filed 3 days out of time. For the reasons outlined further in this decision, this would not change my decision to dismiss the application.

[22] The application, having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.

[23] Section 394(3) of the Act allows for the Commission to exercise discretion in granting a further period for an application to be made.

[24] The Commission must be satisfied there are exceptional circumstances permitting such discretion to be exercised.

[25] Section 394(3) of the Act lists the considerations the Commission must take into account:

(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:

(b) whether the person first became aware of the dismissal after it had taken effect; and

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

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

[26] The issue before me is whether the circumstances are exceptional and whether it is fair and equitable for an extension to be granted in the given circumstances.

[27] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[4]

[28] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon. The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[5]

[29] 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.[6]

[30] 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.[7]

[31] 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.[8]

[32] The determination of whether exceptional circumstances exist requires the consideration and assessment of all relevant circumstances.[9]

[33] This decision contemplates the relevant considerations in section 394(3) of the Act in the context of the current application.

[34] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 1 June 2023. The delay is the period commencing immediately after that time until 22 February 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[10]

[35] The Applicant put forth several factors as contributing to the delay:

The Applicant submits that, following him being charged on 8 May 2023 with three serious offences, Queensland Transport suspended his Driver Authority (DA) which meant that he was unable to drive for Uber or any other rideshare application or similar.

The Applicant is of the position that, until the criminal charges could be resolved before the Court in Queensland, there was little utility in making the application or disputing the termination further as he was unable to fulfil his role in the absence of a DA.

When the pending criminal charges were resolved on 25 September 2023 and, shortly after, his DA was reinstated on 28 September 2023, the Applicant was of the belief that the Respondent would allow him to return to work.

The Applicant submits that he was delayed in filing his application as he sought to resolve the matter directly with the Respondent in the first instance.

[36] In relation to the reason for the delay, the Respondent submits that the Applicant has not provided any evidence of exceptional circumstances to explain any or all of the delay.

[37] The Respondent submits that the Applicant waiting until his matters in the Queensland Court had been resolved and his DA reinstated are not exceptional circumstances for the purpose of the Act.

[38] The Respondent also outlined at the hearing that, using the absolute final date of 29 January 2024, the Applicant has failed to explain why his application was filed three days out of time. I agree that the Applicant could not provide an explanation or put forth a reason as to why he filed 3 days outside of the absolute latest date of the alleged dismissal.

[39] Having regard to the above, I find that the primary reason for the delay offered by the Applicant, being that he was awaiting the resolution of the associated charges and reinstatement of his DA, would understandably lead to apprehension in filing.

Did the Applicant first become aware of the dismissal after it had taken effect?

[40] It was not in dispute that the Applicant received communication from the Respondent on 11 May 2023 confirming that the Applicant's Driver Partner account had been permanently deactivated.

[41] At this point in time, it had been clearly and directly communicated to the Applicant that his ability to use the Uber Driver Application had ceased and that his access had been permanently disabled. It is clear on the evidence filed by the parties that the Applicant was completely aware of the fact that he was unable to complete work for the platform, having been reminded of the disabling of his account at every point in the process. Although, the Applicant contends that the decision to disable his account was incorrect, or that it was temporary and based on inaccurate accusations, it is clear that he was made aware of the termination of the working arrangement and that it was not communicated to him at some later date.

What action was taken by the Applicant to dispute the dismissal?

[42] The Applicant submits that he attempted to dispute the termination by seeking to communicate directly with the Respondent about his Uber Driver account being reactivated once his Driver Authority had been reinstated.

[43] The parties provided a not insignificant volume of material showing that the Applicant had been in communication with the Respondent about the potential reactivation of his Uber Driver account from 25 September 2023 until 16 January 2024.

[44] The material included lengthy transcripts of the Applicant's communication with the Respondent, including:

25 September 2023 - communication from the Applicant to the Respondent seeking his Uber Driver account be reactivated.

26 September 2023 - the Respondent states "Thank you for reaching out to us about your account deactivation. If you believe that our decision to deactivate your account should be reviewed, you are able to request an appeal by following this link". The Applicant again asked for his account to be reactivated and was again advised of the appeal process. The Applicant did not action any appeal.

28 September 2023 - Applicant confirms Driver Authority reinstated. The Respondent confirms again the process to follow to appeal the decision and that the Applicant's account has been permanently deactivated. The Applicant continues to argue with the Respondent but does not file an appeal against the decision to deactivate his account.

29 September to 10 October 2023 - continued correspondence between the Applicant and representatives of the Respondent.

10 October 2023 - the Applicant writes to the Respondent stating "I am informing you that as my UBER account is not activated allowing me to go back to work and earn a living I will be taking Legal action for future income as I am unable to earn an income with UBER as I have done for the past 5 years.....My average income is $950 p.w.. The next 5 years would be $250-300k. I will take Legal action v UBER in order to secure my future income. I will give you until 1st November 2023 to reinstate my account, after which I will commence Legal proceeding."

11 October 2023 - The Respondent states "Thank you for your patience while we reviewed the deactivation of your Uber account. We have reviewed the information available, and have unfortunately decided to uphold the deactivation decision. Based on our review, we have found that your account is in violation of the standard Uber has set for all users. Please note, any legal documentation that you would like addressed to Uber can be sent to our registered mailing address...".

12 October 2023 - the Applicant responds stating "you people dont know what you are doing when my deactivation did not unvolve a user or rider. i am sick of wasting time i will go to your legal department and if they got no brains i go to court".

18 November 2023 - the Respondent outlines the following to the Applicant "We have taken a further look into your account and determined our initial decision will stand. Based on our review, we see that you have not provided any further information since your last review request, where the decision was to uphold your deactivation......This decision is final, please do not attempt to contact Uber again regarding this matter".

18 November to 30 November 2023 - the Applicant makes further demands of the Respondent to reactivate his account with the Respondent.

15 December 2023 to 22 December 2023 - the Applicant makes further requests to have his account reactivated with the Respondent. The Respondent confirms that there is no change to the final decision already advised of. Relevantly, on 15 December 2023, the Applicant states "you cannot deactivate my accounts for no legal reason i will sue uber for many thousands as your illegal decission will have you guilty of fair work australia rules. you are a pack of idiots no wonder uber have never made a profit".

Also on 15 December 2023, the Applicant states, "soon as legislation is passed i see you at fair work australia" and "as i have informed you as soon as legislation is passed re deactivation i will take this to fair work australia to claim compensation for my income losses. i was averaging $950 per week the six months prior to being deactivated so it is mounting up every week 11 weeks since da was reinstated a total of $10500 and rising weekly".

16 January 2024 - the Respondent sends a letter to the Applicant confirming its decision.

[45] The Respondent submits that, whilst the Applicant had sent numerous messages and emails to the Respondent about the reactivation of his Uber Driver account, the Applicant did not lodge a formal appeal with the Respondent as repeatedly prompted. Rather, the Applicant continued to send messages to the Respondent outlining his displeasure and disagreement with the Respondent's decision and the Respondent continuously confirmed that the previous decision was final and would not be changing.

[46] The Respondent highlighted that, in Gao v Department of Human Services,[11] the Full Bench held that the applicant's request for further review by the respondent in that case, into the applicant's dismissal, did not constitute a circumstance excusing the delay in lodging the application.[12] The Full Bench found that such "a further review could have been sought even after an application had been lodged" within time.

[47] The evidence given by the Applicant during the Hearing, in relation to the correspondence back and forth with the Respondent prior to lodgment, seemed to conflict with the documentary evidence and the responses given were often dismissive or suggested that the Applicant was, at times, feigning naivety and solely motivated to provide self-serving answers. The Applicant would often agree with a question put to him under cross examination only to attempt to walk back or adjust that answer during follow up questions from the Respondent's representative.

[48] Having regard to the matters I have referred to above, it is clear the Applicant made some attempt to dispute the dismissal. However, the Respondent clearly articulated to the Applicant, on numerous occasions, that its decision was final and would not be changing.

[49] It is also evident from the evidence submitted that the Applicant foreshadowed legal proceedings, including an application to the Commission, as early as 10 October 2023 and again on 15 December 2023. However, the Applicant has not provided any reason which delayed his application being filed until 22 February 2024.

What is the prejudice to the employer (including prejudice caused by the delay)?

[50] It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.

[51] The Respondent submits that the Applicant was not an employee within the meaning of the Act and was not dismissed within the meaning of the Act. The Respondent submits that the Applicant is not a person protected from unfair dismissal.

[52] The Respondent highlighted several previous decisions of the Commission in support of its position.[13] The Respondent submits that the circumstances of the current application are identical to the circumstances of the applicants considered in the failed matters references. Accordingly, the Respondent submits that the prospects of success for the Applicant's application are low.

[53] Having examined the materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. 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)"[14] and the same applies to section 394(3)(e) of the Act.

[54] In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits.

[55] However, on the materials before the Commission, it is clear that the other jurisdictional objections carry weight and the application would, in all probability, not proceed past the next hurdle.

Fairness as between the Applicant and other persons in a similar position

[56] 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, taking into account the matters above?

[57] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:

(a) the reason for the delay, being that the Applicant was waiting for his DA to be reinstated and associated charges dealt with;

(b) the Applicant being aware of the fact that he could no longer work with the platform at the time that the disabling of his account took effect;

(c) the actions taken by the Applicant to dispute the dismissal, in seeking to directly resolve the matter in the method he deemed most appropriate;

(d) the absence of any prejudice to the employer;

(e) the merits of the application being limited in their prospects for success noting the remaining objections; and

(f) no issue of fairness arising as between the Applicant and other persons in a similar position.

[58] Again, for clarity, it should be noted that 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.[15] 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.[16]

[59] The Applicant has not provided any reason for his delay in filing this application that I would consider a reasonable explanation for the delay. Further, in assessment of all relevant criteria, I see nothing before me to support the finding that there are circumstances in this matter rising to the level of exceptional circumstances.

[60] As I have noted previously in this decision, if I have erred in relation to the date of the alleged termination, the Applicant was aware that his Uber Driver account would not be reinstated by, at the latest, 16 January 2024, still rendering the application out of time. The only explanation provided by the Applicant for the 3-day delay was that he did not mean to file out of time, and it was only a few days. Such reason does not excuse any delay, nor does it weigh in favor of a finding of exceptional circumstances.

[61] As I have highlighted earlier in decision, I have concluded that the Applicant was aware that his Uber Driver account had been deactivated permanently on 11 May 2023. Whilst I understand the decision of the Applicant to not to challenge the deactivation of his account until the matters before the Queensland Court were resolved, this in itself is not an exceptional circumstance.

[62] The Applicant made numerous references regarding commencing legal proceedings against the Respondent in October and December 2023, including statements regarding an application to the Commission. However, the Applicant did not file his application until 22 February 2024, the Applicant has not explained why he was unable to file this application during the period in which he was seeking, very unsuccessfully, to have his account reinstated.

[63] The Applicant was clearly not happy that the Respondent had not reactivated his Uber Driver account straight away, after being requested, on 25 September 2023. Aside from the Applicant's personal expectation, that he was hoping the Respondent would come to the party and reactivate his account, there is nothing that would have prevented the Applicant from filing his application at a much earlier date.

[64] Having considered the previous case law in relation to such matters, I am inclined to agree with the submission of the Respondent that the application has limited prospects of success.

[65] The Applicant, despite being fully aware of his predicament, persistently sought to argue with the Respondent over its decision and neglected to lodge any formal dispute, or appeal directly with the Respondent, during the period of delay. In assessment of all the criteria under the Act, I am not satisfied that there are exceptional circumstances in the present matter which would give rise to a consideration on whether to grant an extension of time.

[66] Having regard to all of the matters at section 394(3) of the Act, I am not satisfied that there are exceptional circumstances.

[67] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant's application for an unfair dismissal remedy is therefore dismissed. An order to that effect has been issued.[17]

[1] [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[3] Dismissal for the purposes of calculating the lodgement period under the Act, noting the Respondent's remaining objection.

Printed by authority of the Commonwealth Government Printer

Interpretation Act 1901

Gary Grist v Raiser Pacific Pty. Ltd [2024] FWC 900

At a glance

Court

Decision date

Source

Judgment (124 paragraphs)

Gary Grist v Raiser Pacific Pty. Ltd [2024] FWC 900 (9 April 2024)

Parties

Legislation Cited (2)