Mr Ahmad Hasan v [2026] FWC 726

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - extension of time - whether exceptional circumstances exist - application to amend unfair dismissal application to an unfair deactivation application - exercise of discretion to amend.

[1] The applicant in this matter, Mr. Hasan, has made an application under s.394(1) of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy. The respondent to the application is Rasier Pacific Pty Ltd. Prior to the events giving rise to this application, the applicant performed work as a driver transporting members of the public as passengers using the respondent's digital labour platform, the Uber Driver App.

• [2] The respondent has objected to the application on the basis that Mr. Hasan was not an employee, could not have been 'dismissed'[1] by them, and that he was not a person protected[2] from unfair dismissal under Part 3-2 of the Act. Further, the respondent contended that the application had been made outside the 21-day time period prescribed by s.394(2) and that there were no exceptional circumstances warranting an extension of time to allow the matter to proceed.

[3] It was not in issue that the applicant was 'deactivated' from the respondent's app on 29 October 2025 and that the application was filed on 11 December 2025 which, if the deactivation date is treated as the date the 'dismissal' took effect, is 22 days outside the 21-day time limit in the Act. Mr. Hasan sought an extension of time pursuant to s.394(2)(b) on the basis that there were exceptional circumstances that would justify an extension of time. In final closing submissions at the hearing of the jurisdictional issues referred to above, Mr. Hasan also made an oral application to amend his application from an unfair dismissal application to an unfair deactivation application under Part 3A-3 of the Act. This was opposed by the respondent. For the reasons given below, I have concluded that there are no exceptional circumstances which would permit an extension of time, that it would be inappropriate to exercise any discretion I may have to amend the application and that the application should be dismissed.

[4] The Commission can only allow an extension of time if it is satisfied that there are exceptional circumstances having regard to the matters in s.394(3). Directions were made for the filing of evidence relating to the question of whether an extension of time could and should be granted and a further issue raised by the applicant's Form F2 application, namely, whether the applicant was prevented from bringing the application by the operation of Part 6-1 Division 3 of the Act which deals with multiple proceedings. The applicant did not file material in response to the directions. In the absence of a witness statement, the applicant was asked to attest to the accuracy of the factual material set out in the F2 application form and the annexures to that form. That material was received into evidence without objection.

(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.

• [6] Mr. Hasan attributed the reason for the delay to the fact that he had made unsuccessful attempts to contact the respondent through various channels after the dismissal/deactivation but was unable to communicate with them because his telephone number was blocked and the respondent did not respond to his attempts to engage with them. He also explained that he had only relatively recently arrived in Australia, that English was not his first language and that he was unfamiliar with the Commission's processes and the statutory limitation period. I do not consider that the reasons provided by the applicant satisfactorily explain the delay. The applicant was capable of lodging an application at the same time as making his inquiries of the respondent but did not do so. Further, mere lack of knowledge of available remedies and statutory time limits is not uncommon and does not amount to an exceptional circumstance.[3] The reasons provided by the applicant for the delay do not, in my view, weigh in favour a conclusion that exceptional circumstances exist here.

[7] Mr. Hasan accepted that was advised of the dismissal/deactivation on the date the final deactivation notice was provided to him, namely 29 October 2025. I find that he was advised of and became aware of the dismissal/deactivation on the day it took effect and that there is nothing under this heading that weighs in favour of a conclusion that exceptional circumstances exist.

[8] The evidence shows that the applicant provided his version of the events that resulted in the dismissal/deactivation to the respondent on 21 October 2025. The applicant also stated that he made repeated efforts to contact the respondent to discuss his circumstances without success, although the timing of these attempts was not clear. I accept that the applicant made some unsuccessful attempts to contact the respondent. However, the respondent's unchallenged evidence was that the contact the applicant did have with the respondent after the final dismissal/deactivation notice was issued was to request that his account be changed from Uber X to Uber Eats rather than to dispute the dismissal/deactivation. That does not constitute action to dispute the 'dismissal'.

• [9] I regard both the issue of prejudice to the employer and fairness as between the applicant and persons in a similar position as neutral considerations.[4]

• [10] As to the merits of the unfair dismissal application, the respondent contended that the application lacked merit on the basis that the applicant was not an employee and could not therefore have been dismissed.[5] The respondent pointed to the terms of the written contract with the applicant which provided that the applicant was an independent provider of transportation services and in doing so, was conducting his own business. The respondent also referred to various decisions of the Commission in which it had been found that other drivers in similar circumstances to the applicant were not engaged as employees of the respondent. The respondent noted that the introduction of s.15AA of the Act necessitated the application of the multifactorial test in a similar way to assessment of the relationship between the respondent and other drivers that had been undertaken in those earlier decisions and that a similar outcome would likely follow.[6]

[11] The applicant did not respond directly to the issues relating to the legal status of his relationship with the respondent and simply denied the conduct which ultimately led to the decision to dismiss/deactivate.

• [12] It is well settled that it is not appropriate for the Commission to resolve contested issues of fact going to the ultimate merits of the application for the purposes of taking into account the merits of the application under s.366(2)(d).[7] The same situation prevails in relation to s.394(3)(e). I am unable to come to a view as to whether there was a valid reason for the dismissal/deactivation of the applicant as this would require further evidence and the resolution of contested questions of fact. The existence of a valid reason is an important element in the assessment of whether a dismissal is harsh, unjust or unreasonable and therefore potentially unfair. However, on the material before me and accepting the obvious point that each matter would have to be assessed on its own merits, I am of the view that there is force in the argument advanced by the respondent that a person in the position of the applicant, engaged through the same respondent's digital labour platform, is unlikely to be an employee in the absence of material distinguishing features from the other cases involving this respondent that have analysed the substance of those types of arrangements. I consider that the applicant's prospects of establishing that he was in, and dismissed from, an employment relationship with the respondent are limited. The merits do not favour an overall conclusion that exceptional circumstances exist in this case.

• [13] 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. 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.[8] I am not satisfied that there are exceptional circumstances in this matter and it follows that there is no basis upon which an extension of time for the unfair dismissal application can be granted.

The amendment application, conclusion and disposition

• [14] As to the application to amend the application to convert the matter to an application for an unfair deactivation remedy under Part 3A-3 of the Act, s.586 of the Act provides that the Commission may allow a correction or amendment of any application on any terms the Commission considers appropriate or waive an irregularity in the form or manner in which the application is made. The Commission has held that s.586 does not permit an amendment to change an application from one type proceeding to an application in relation to a proceeding of a different kind. [9] There is therefore some considerable doubt as to whether an amendment under s.586 of the kind proposed is possible at all. I note that there are some similarities between unfair dismissal and unfair deactivation proceedings.[10] There are also important differences between the two sets of proceedings.[11] Because the application to amend was only raised at the very end of the proceedings, the question of whether s.586 permits such an amendment at all was not fully argued. However, even if such an amendment were permissible, I would refuse the application on discretionary grounds.

• [15] Firstly, the applicant has been on notice since the respondent filed its response on 16 January 2026 that the respondent objected to the application as being fundamentally misconceived in that the respondent maintained that the applicant was not an employee and could not have been dismissed, unfairly or otherwise, by them. The response made explicit mention of the fact that the claim should properly have been brought in the Commission's unfair deactivation jurisdiction.[12] Even allowing for the applicant's unfamiliarity with Commission processes, it was readily apparent that an amendment application of this kind ought to have been considered and made some time ago rather than at the very conclusion of the hearing.

[16] Secondly, as is the case for an unfair dismissal application, an application for an unfair deactivation remedy which is filed outside the 21-day time period referred to in s.536LU(3) can only proceed where the Commission is satisfied that there are exceptional circumstances. In the case of unfair deactivation, the Commission must take into account the matters referred to in s.536LU(4). Those matters are in substantially similar terms to the matters referred to in s.394(3). Even if there were other discretionary reasons favouring an amendment, my conclusion in relation to the question of exceptional circumstances under s.536LU(4) would be the same as it is for s.394(3).

[17] When the amendment application was made, the applicant was asked whether there would be any other material that could be brought in relation to an extension of time for an unfair deactivation remedy that had not already been raised at the hearing. No other matters were identified. Briefly, in relation to the matters in s.536LU(4)(a) to (c) and (f) my assessment would be the same as set out above in relation to the corresponding provisions in s.394(3). In relation to prejudice to the respondent under s.536LU(4)(d), I consider that there would be some relevant prejudice involved given the respondent would be required to respond to a different type of application to that which was originally filed. I would regard the merits of the application under s.536LU(4)(e) as a neutral consideration given the employment relationship/dismissal argument would be removed and the matter would largely turn on contested questions of fact at a later hearing.

• [18] Section 536LU(4)(g) refers to processes specified in the Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024 (Code). There is no equivalent provision in s.394(3). After the hearing I provided the parties with an additional opportunity to provide any further material in relation to s.536LU(4)(g). I have taken the processes specified in the Code into account and considered the further submissions of the parties. I note in particular that the respondent provided the applicant with a preliminary deactivation notice[13] on 21 October 2025 to which the applicant responded in writing on the same day. The respondent made a representative available to discuss[14] the preliminary deactivation notice with the applicant on 23 October 2025. On or about 29 October 2025 the respondent came to a view that the applicant's account should be deactivated and issued a written final deactivation notice[15] on that day. The applicant submitted that he attempted to resolve the issue internally after the deactivation but was prevented from doing so because his account access was blocked. He said that he was prevented from accessing the 'internal processes' referred to in the Code and not given a meaningful opportunity to respond to the deactivation. He said he spent the 21-day period trying to use the internal processes mentioned in the Code. The Code deals with processes to be followed prior to a deactivation occurring. Questions of Code compliance become relevant to the issue of whether the Commission can be satisfied that the person was unfairly deactivated once unfair deactivation proceedings are commenced.[16] The applicant was plainly given an opportunity to provide a response before the decision to deactivate was made and did so orally and in writing.

[19] I also note that although the applicant was notified in writing on 12 October 2025 that his access to the Uber app had been temporarily blocked as a result of complaints made against him, it does not appear that the applicant was given a written deactivation warning in the terms referred to in s.8 of the Code. Such warnings are not however required in all circumstances. For example, there is an exemption under s.9 of the Code if the operator considers on reasonable grounds that the matter relating to the worker's conduct is such that it warrants immediate modification or suspension of access to the platform. The issue was not addressed by the parties. To the extent there may have been shortcomings in the Code processes that were followed in this or other respects they would not, in my view, be significant enough to outweigh the other factors that I have taken into account above such as to favour an overall conclusion that there are exceptional circumstances.

[20] My overall conclusion would therefore be the same as for s.394(3), that is, that there would be no exceptional circumstances for the purpose of s.536LU(4) and no basis upon which an extension could be granted to allow the application to proceed. This weighs against exercising my discretion in favour of the proposed amendment and I would decline to do so.

Ms. R. Nocka, Solicitor of Dentons Australia, appearing with permission on behalf of the respondent

[3] Miller v. Allianz Insurance Australia Pty Ltd [2016] FWCFB 5605 at [10]

[6] Pallage v. Rasier Pacific Pty Ltd [2018] FWC 2579, Suliman v. Rasier Pacific Pty Ltd [2019] FWC 4807 and Kaseris v. Rasier Pacific Pty Ltd [2017] FWC 6610.

[7] Nulty v. Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

[8] Nulty v. Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[9] Ioannou v. Northern Belting Services Pty Ltd [2014] FWCFB 6660.

[10] See for example s.385 and s.536LF, s.387 and s.536LH and s.394 and s536LU.

[11] Notably, unfair dismissal proceedings relate to employees whereas unfair deactivation applies to 'employee-like workers' (see s.15P). The Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024 applies to the latter proceedings.

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