Fair Work Commission|2021-11-19

Leonaire Lurihosi v [2021] FWC 6349 (19 November 2021)

s.394 - Application for unfair dismissal remedy

[1] Mr Lurihosi (the Applicant) applied for an unfair dismissal remedy, having been purportedly dismissed from Raiser Pacific Pty Ltd (the Respondent) on or around 13 August 2021. The Respondent objected to the application on the grounds that the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act), the Applicant was not an employee, and had not been dismissed. This decision deals with the out of time objection.

[2] The Applicant concedes that his application was filed on 11 October 2021 and was therefore submitted some 38 days after the statutory deadline. However, he attributes the delay in filing his application on his lack of knowledge about the unfair dismissal jurisdiction, that English is not his primary language, and that he was awaiting further information from the Respondent in relation to the outcome of his deactivation from its Uber platform.

[3] Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21-days after the dismissal took effect.

[4] It is not contested that the application was made out of time. However, for the application to now proceed, it is necessary for the Applicant to obtain an extension of time in which to make the application. Section 394(3) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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.[1]

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

[6] By way of context the Applicant does not speak English as a primary language and requested an interpreter for the purpose of the hearing. The Applicant stated that whilst he was able to converse a little in English - for example with customers using the Uber platform, he was unable to read and write in English. Whilst directions had been issued for the filing of submissions and witness statements, none were forthcoming from the Applicant with the exception of the Form F2, which he had filed to initiate proceedings.

[7] Nevertheless, the matter proceeded to hearing. The Respondent was informed that the Applicant's Form F2 would be accepted into evidence and he would be permitted to give evidence viva voce. It was acknowledged that the Respondent was placed in the unenviable position of responding to evidence and submission not forewarned of. However, the Respondent was directed that should it require additional time in which to respond to the Applicant's evidence and argument such would be provided. Additional time was not requested.

[8] It appeared that the Applicant had worked as an 'Uber' driver for the Respondent since approximately 2015. On 14 August 2021, the Applicant was notified that his Uber account would be temporarily deactivated pending a review of a report relating to one of his trips. The Applicant said he was aware that his Uber account was deactivated on 13 August 2021.

[9] The Applicant explained that he had collected a female customer who was likely 45 years of age or upward. He recalled that the customer was heavily drunk and requested him to take her home. The Applicant said that when he arrived at the customer's house, she asked him to wait whilst she had a shower and then to take her to a second address. The Applicant said that he informed the customer that if she needed to do that, she would need to call someone else. The Applicant said that the customer was not at all happy, she got out of the car and said to him that she was going to report him, and his job would be finished.

[10] The Applicant said he did not take this seriously and responded to the next customer request. Having picked up four to six other customers the 'app' then stopped, according to the Applicant. The Applicant said he thought that perhaps it was because his car registration had expired, but he knew that he had paid that earlier in the day. The Applicant noted that he went home and relaxed.

[11] The Applicant gave evidence that he was contacted (presumedly by Uber Support) and asked whether he worked yesterday and did he take this person (the female customer). The Applicant replied to Uber Support that he had, and then he was told that there was a complaint that involved 'sexual abuse'. The Applicant said he was informed that if he denied any wrongdoing the Respondent would follow up to see what had happened. He denied any wrongdoing.

[12] According to the Respondent, on 15 August 2021 the Applicant was contacted by Uber Support via telephone to advise that his account would remain restricted pending a review of the report received by the 'rider' and the information gathered, including from the Applicant.

[13] Tendered into evidence was a business record of the Respondent, which detailed the content of in-app messages sent between the Applicant and the Respondent.[2]

[14] On 16 August 2021, the in-app message from Uber Support read:

Thank you for speaking with me on the phone earlier, this is just a follow up from the conversation we had. We've received a report from a rider from one of the recent trips that you may have made sexually inappropriate comments towards the rider.

Reports of this behaviour are extremely concerning and are in direct violation of our Community Guidelines. As such, in the interest 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. We wish you all the best and thank you for using the Uber app.

[15] On 16 August 2021, in response to the in-app message of the Respondent, the Applicant was said to have arranged for another person to send the following message to the Respondent:

Hello, I just want to explain to you about the rider who reported. Surely, The person who reported me was drunk. She was keep telling me things that I do not understand. Also she asked me to wait her for 30min and I couldn't agree with her. In the last six years, I never done this kind of behaviour. When the Uber support service range me on Saturday, I misunderstood the person because I was still in the bad. However my English is not good that is why I did not understood. Please I believe that I m a good driver since the last six year. Could you please reactivate my account ?and do not pair me with that rider.

[16] At hearing the abovementioned message was read out and the Applicant indicated that he arranged to have the message sent to the Respondent. This point was checked, as earlier in the proceedings the Applicant appeared to have been somewhat evasive on this point.

[17] When asked whether he was aware that his Uber account had been deactivated on 13 August 2021, the Applicant responded that this was correct. The Applicant also acknowledged receiving a telephone call on 14 August 2021 where he was informed that his Uber account had been temporarily deactivated.

[18] When asked whether the Applicant recalled receiving a further call on 16 August 2021, or an email or message from Uber Support, the Applicant denied having received a call. And in response to whether he received an email or message, he replied that Uber had sent plenty of 'them' and he could not know what they meant to him.

[19] When asked whether the Applicant recalled receiving a message from Uber Support on 16 August 2021 regarding permanently deactivating his account, he replied that the Uber office may not have known what was happening, and that he would only know if they called him or he checked the Uber app. While it did appear that the Applicant was being evasive, it is important to appreciate that with the use of a translator, evasiveness may simply be a manifestation of the difficulty of translating English words.

[20] From the evidence given, I am content to find that the Applicant was aware of the temporary deactivation of his account on 13 August 2021 and the permanent deactivation of his account on 16 August 2021. I also consider that more likely than not, the Applicant responded to the permanent deactivation of his Uber account by arranging for a message to be sent to Uber Support on 16 August 2021.

[21] Whilst the Applicant appeared to have sought assistance in arranging for a message to be sent to Uber Support on 16 August 2021, it appears that at some point he spoke to a friend about his despondency with the Uber app not being reactivated. The Applicant's friend was said to have directed him to a Community Legal Centre. On speaking with someone at the Centre on 11 October 2021, the Applicant appears to have filed his application for an unfair dismissal remedy that same day. The Applicant said that he had searched for some information and presented to the Centre with some forms.

[22] When it was suggested to the Applicant that he left it almost 59 days before he acted - the Applicant replied, 'that's correct'. The Applicant conceded that he knew he was late with his application but that he had explained on the Form F2 why his application was late. In subsequent correspondence to the Commission, the Applicant spoke of there being no medical grounds for his late application. However, that his lateness was based upon waiting for the Respondent to exercise fair judgment and at least communicate to him an outcome concerning the matter.

[23] Under s 394(2) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd.[3] In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. Exceptional circumstances can 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.

[24] Under s 394(3) of the Act, the Commission may allow a further period of time for an application under s 394 to be made if it is satisfied that there are exceptional circumstances, taking into account the factors that have been detailed at paragraph [4] of this decision. Each of these factors are considered below and were outlined to the parties at the commencement of the hearing.

[25] The Act does not specify what reason for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.[4] The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however, all of the circumstances must be considered.[5]

[26] The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[6] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[7]

[27] It was the Applicant's evidence that English is his second language. There was no reason to disbelieve this was the case. However, in this circumstance, I do not consider that a language barrier is a factor that warrants special consideration. When notified on 16 August 2021 that his Uber account had been permanently deactivated, the Applicant was able to promptly arrange for assistance to send a reply message to the Respondent on 16 August 2021. Furthermore, while the Applicant's English is undoubtedly limited, he has, up until in or around 13 August 2021, successfully operated under the Uber platform, driven a car, and can attend to activities of daily living such as making payment for his car registration.

[28] The Commission provides a number of means by which an unfair dismissal application can be lodged. These various methods mitigate language barriers experienced by applicants from non-English speaking backgrounds. In addition to electronic lodgement, an unfair dismissal application can also be made by phone.[8] Translators are available. Further, it is accepted that ignorance of an available remedy and associated limits is not an exceptional circumstance.[9]

[29] While the Applicant's circumstances may justify a short delay the explanation is insufficient to explain the entirety of the delay. The Applicant's Uber account was not reactivated on 16 or 17 August 2021. The Applicant received no response from the Respondent to his message of 16 August 2021. The Applicant's argument that the delay was in part caused by waiting for the Respondent to revisit its decision or investigate the matter further, must be considered against the unequivocal message the Respondent sent to the Applicant on 16 August 2021. In all of the circumstances this reason for the delay in making the application holds no weight.

[30] I have considered the delay as the period beyond the 21-day period. I consider that period commenced on 16 August 2021. I am not satisfied that the Applicant has made out an acceptable or reasonable explanation for the delay in lodging his unfair dismissal application. This weighs against a finding that there are exceptional circumstances.

3.2 Whether the person first became aware of the dismissal after it had taken effect

[31] If it were the case that the Applicant was dismissed, and I make no finding at this stage, I am of the view that the Applicant became aware of such dismissal on 16 August 2021 when informed that his Uber account had been permanently deactivated. I therefore consider this to be a neutral consideration.

3.3 Action taken by the person to dispute the dismissal

[32] The Applicant gave evidence of sending a message to the Respondent asking the Respondent to reactivate his Uber account and providing reasons as to why that should occur. I am satisfied the evidence leads to a finding that action was taken to dispute the deactivation of the Uber account. In all the circumstances, I am satisfied that this action weighs toward the grant of an extension.

[33] I agree with the Respondent's submission that the factor of 'prejudice' is a neutral consideration in all the circumstances.

[34] In Kornicki v Telstra-Network Technology Group,[10] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench said in respect to the merits of an application:

If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[11]

[35] Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission 'should not embark on a detailed consideration of the substantive case' for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[12] The merits of the application more generally would need to be scrutinised. This of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. It is for these reasons that I have concluded this factor to be one that is neutral. However, I make the following observations.

[36] The Applicant pressed that he was an employee and the Respondent argued to the contrary. The Commission has concluded on three separate occasions that 'drive partners' are not employees of the Respondent or its predecessor entity (Raiser Pacific V.O.F).[13] Further, this Commission at first instance, and on appeal, has similarly held a 'delivery partner' using the Uber Eats app was not an employee.[14]

[37] In Ahmed Abdi v Raiser Pacific Pty Ltd,[15] a case that similarly involved an 'Uber Driver', it was said that there was considerable force to the Respondent's submission. Further that, in Mr Abdi's case, he is highly unlikely to succeed with this application because of the Commission's previous rulings that persons in his circumstances are not employees of the Respondent and so are unable to make unfair dismissal remedy applications.[16]

[38] It is a truism that each case will turn on its own facts. And, whilst mindful that there is insufficient material before the Commission to conclude whether the Applicant was or was not an employee, it remains that the merits of the Applicant's case would appear to be fairly grim in light of previous authority. However, as noted I consider this factor to be neutral given the insufficiency of the evidence before me. The factor neither weighs for or against an extension of time.

3.6 Fairness as between the person and other persons in a similar position

[39] The criterion of 'fairness as between the person and other persons in a similar position', was considered by the Deputy President in Morphett v Pearcedale Egg Farm,[17] where it was said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[18]

[40] I am not satisfied that the criteria of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party, based on the submissions filed by both and as such I consider it a neutral consideration.

[41] The test of exceptional circumstances in s 394(3) of the Act is a stringent one. Having considered each of the statutory criteria and all the circumstances of the matter, I am not satisfied that there are exceptional circumstances that support an extension of time and I consider that it is not fair and equitable to grant the extension.

[42] It follows that the Applicant's application for an unfair dismissal remedy is dismissed. An Order[19] will be issued with this decision.

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

[6] Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 [40].

[7] Mr Ke Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 [12].

[8] Fair Work Commission Rules 2013 Rule 9.

[10] Print P3168, 22 July 1997 (Ross VP, Watson SDP, Gay C).

[12] Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899.

[13] Kaseris v Rasier Pacific V.O.F. [2017] FWC 6610; Pallage v Rasier Pacific Pty Ltd [2018] FWC 2579; Suliman v Rasier Pacific Pty Ltd [2019] FWC 4807.

[14] Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd T/A Uber Eats [2019] FWC 5008; Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd t/a Uber Eats [2020] FWCFB 1698.

Printed by authority of the Commonwealth Government Printer

Work Commission Rules 2013

Leonaire Lurihosi v [2021] FWC 6349

At a glance

Court

Decision date

Source

Judgment (75 paragraphs)

Leonaire Lurihosi v [2021] FWC 6349 (19 November 2021)

Parties

Legislation Cited (3)