s.394 - Application for unfair dismissal remedy

Unfair dismissal application filed out of time - circumstances not exceptional - extension of time for filing not allowed

• [1] Mr Irshad Khan (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Fair Work Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Uber Australia Pty Ltd (Uber). By consent, Rasier Pacific Pty Ltd (the Respondent) was later substituted as the Respondent in these proceedings.

• [2] Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time. Mr Khan's application indicated that it was not filed within the required 21 day period. Mr Khan said the termination took effect on 27 September 2024. The application was filed on 12 November 2024.

• [3] In addition to resisting an extension of time the Respondent has raised objections that the Applicant was not an employee and was not dismissed, and has applied for the matter to be summarily dismissed for want of jurisdiction, or under section 587 of the Fair Work Act on the grounds that the application has not been made in accordance with the Act or has no reasonable prospects of success.

• [4] I have decided to refuse to extend time for the application.

• [5] Subsection 394(2) of the Fair Work Act provides that such an application must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.

• [6] Under subsection 394(3) of the Fair Work Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

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

(c) any action taken by the Applicant to dispute the dismissal; and

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

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

• [7] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]

• [8] The Respondent has objected to the application on the grounds that, inter alia, the application is out of time.

• [9] There being contested facts involved, the Commission is required to conduct a determinative conference or hold a hearing.

• [10] The Applicant and the Respondent did not express a preference for a hearing or conference. I considered whether a hearing would be the most effective and efficient way to resolve the matter. I considered it appropriate to hold a determinative conference. The determinative conference was held on 5 February 2025.

• [11] Mr Khan appeared for himself and gave evidence. Mr Trent Sebbens of Ashurst appeared for the Respondent, with permission, which I had granted on 23 January after first giving the parties an opportunity to be heard in that regard. The Respondent filed and read an affidavit of Mr Sebbens sworn 28 January 2025 in support of its application for summary dismissal, which was filed on that same date, and Mr Sebbens gave evidence at the determinative conference.

• [12] The parties provided information and documentary evidence by email to the Commission in advance of the determinative conference. They had the opportunity to tender documents, provide sworn evidence, and make submissions at the determinative conference.

• [13] I have carefully considered the evidence and the parties' arguments.

• [14] It was common ground Mr Khan was deactivated from Uber's platform on 27 September 2024. The application was received by online lodgement on 12 November 2024. The application was due to be lodged by midnight on 18 October 2024. It was lodged almost one month out of time.

• [15] Accordingly, I will now consider whether to allow an additional period, of that duration, for the Applicant to file his application, having regard to the considerations set out in section 394(3) of the Fair Work Act.

• [16] I set out my consideration of each matter below.

• [17] 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] 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]

• [18] The evidence shows Mr Khan had the following reasons for the delay:

(a) he had tried to use Uber's internal appeals process after being deactivated from its platform;[4]

(b) one of his daughters, who was five years old at the time of the deactivation, had disabilities[5] and he had been occupied with her care arrangements;[6]

(c) he had to make arrangements for an operation for the same daughter, obtaining a referral on 7 October 2024;[7]

(d) he had been trying to get a referral for eye care for another daughter;[8]

(e) he had a back injury or condition that caused him to be wholly incapacitated for work from 26 September 2024 to 26 December 2024.[9]

• [19] The Respondent's representative cross-examined Mr Khan about his reasons for the delay. I have considered the responses he gave under cross-examination, as well as his own evidence in chief.

• [20] Mr Khan did not call any expert witness to provide medical evidence about his back problem or any witness to adopt the materials regarding his daughters' health or disability issues. Nonetheless, he struck me as a forthright witness and I accept that he was dealing with significant health matters for himself and his family during the period the application was due to be made. I also accept that for at least the first part of that period he was trying to use Uber's own internal appeals process. These were the reasons for the delay in filing the application.

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

• [21] There was no issue of Mr Khan becoming aware of the dismissal after it had taken effect.

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

• [22] As indicated above the Applicant took immediate action to dispute the deactivation.[10] Having done so, he then followed up with Uber.[11]

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

• [23] The delay was short and unlikely to give rise to any or any significant prejudice. Mr Khan's account on the Uber platform was reactivated on 17 January 2025.[12] The issue of prejudice does not weigh against a finding of exceptional circumstances.

• [24] In addition to the objection on the grounds that the application was made out of time, the Respondent objects on the basis that Mr Khan was not an employee, and was not dismissed. It has also applied for the application to be summarily dismissed on the grounds that it was not made in accordance with the Act or has no reasonable prospects of success.

• [25] This application lacks merit. The Respondent submitted, and I accept, that as an Uber "Driver Partner" Mr Khan was not an employee.[13] The Respondent made that submission in reliance on various decisions of this Commission, and in doing so argued that section 15AA of the Fair Work Act does not provide a basis to depart from those decisions. I agree. Given my finding that Mr Khan was not an employee I accept he cannot meet the requirements of sections 382 and 385 of the Fair Work Act for the purposes of these proceedings.

• [26] This is not a matter of technicality or form, but goes to the substance of the matters to be considered in unfair dismissal proceedings. As Mr Khan was self-represented my Chambers drew the parties' attention to the unfair deactivation provisions of the Fair Work Act and the publicly-available information about them on the Commission's website. Mr Khan continued to press his unfair dismissal claim.

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

• [27] The Respondent declined to make submissions on this point on the basis that the matter does not involve another individual in a similar position. I accept there is no issue of fairness, or lack of fairness, as between Mr Khan and other persons in a similar position that weighs for or against a finding of exceptional circumstances.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

• [28] Having regard to all of the matters in subsection 394(3) of the Fair Work Act, I am not satisfied that there are exceptional circumstances. Mr Khan made out good reasons for the delay. If the merits of the case had been unable to be determined at this stage, or had been in Mr Khan's favour, I would have granted the extension of time. But the merits are strongly against Mr Khan, to the extent that the lack of merit outweighs the other considerations including the reasons for the delay.

• [29] Having made that decision it is not necessary to decide the Respondent's application for summary dismissal.

• [30] Not being satisfied that there are exceptional circumstances, it is not necessary to consider whether to allow a further period for the application to be made. Mr Khan's application for an unfair dismissal remedy is dismissed.

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

[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].

[13] Respondent's submissions filed 28 January 2025.

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