s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - request for an extension of time - application dismissed.

• [1] This decision concerns an application by Mr Syed Zaidi (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act)

• [2] The Applicant was removed from being able to access the Uber's digital engagement platform as a driver with effect on 6 October 2022. Uber's parent company is Rasier Pacific Pty Ltd (the Respondent). The Applicant lodged his F2 unfair dismissal application form with the Commission on 19 February 2025.

• [3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 27 October 2022. The application was therefore filed in excess of 860 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request and also raises an objection that the application should be dismissed on the account of the Applicant not being an employee and having no reasonable prospects of success.

• [4] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are 'exceptional circumstances'. Briefly, 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.[1] 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.[2]

• [5] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

• [6] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

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

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

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

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

• [7] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.

• [8] 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. 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.[3]

• [9] The Applicant acknowledges that his application is filed significantly out of time. He submits that the reason for this delay is that he was not aware he could make an application to the Commission until a few weeks ago. Further, that as soon as he became aware of his potential access to the Commission, he took steps to file his application.

• [10] In addition, the Applicant indicates that his priority after being dismissed was to take care of his family. He asserts that his termination significantly impacted him and his family's circumstances, leaving him in crisis and with no other option but to look after his family first.

• [11] The Applicant has not provided any additional information to support his position. However, sworn evidence was provided to the Commission, and I have no reason not to accept his version of events.

• [12] I have considered each of these reasons for the delay provided by the Applicant. Regarding his lack of awareness of his rights and potential access to make an unfair dismissal application with the Commission, it is well established that ignorance of one's rights is not usually an acceptable reason for delay.

• [13] In his circumstances, the Applicant further submits that his priority following his termination was to look after his family and that it was not until a few weeks ago he found out he could make an application to the Commission. I accept its likely the Applicant was under considerable pressure and strain after he lost access to the Uber platform and with this his ability to earn an income.

• [14] I cannot accept, however, that there is anything "exceptional, "out of ordinary course" or uncommon about his circumstances that distinguishes his case from many others placed in similar situations. In this regard, I note it is well established as common for people who have lost their job to suffer negative impacts, including stress and anxiety and financial strain.

• [15] It follows that I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.

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

• [16] The Applicant provided submissions and supporting text messages that make it clear he was aware of his removal from the Uber platform, with final effect from 6 October 2022 when he was notified his deactivation was being upheld. Therefore, the Applicant had the full 21-day period to lodge his unfair dismissal application. This is a neutral consideration.

• [17] The Applicant has provided a series of text messages exchanged between himself and Uber's representatives in the period leading up to 6 October 2022. This material indicates attempts by him to engage with a review of complaints made against him and appeal his deactivation. Once his deactivation was confirmed on 6 October 2022, the Applicant took no further action.

• [18] It was not until 19 February 2025 that he filed his application with the Commission seeking to dispute his dismissal. I do not consider these steps he took prior to his deactivation amount to action taken to dispute the dismissal. This conclusion weighs against there being exceptional circumstances.

• [19] The Applicant submits there is no prejudice arising for the Respondent should his application be permitted to proceed. The Respondent submits that allowing the application to proceed despite its objection that it is out of time and that the Applicant is not an employee gives rise to a prejudice against the employer. I have considered these submissions, and I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of an extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances and consider this a neutral factor.

• [20] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed and I do not repeat them here. In short, the Applicant's submissions are that he was deactivated because of unfounded complaints made against him. The Respondent relies on its objection that the Applicant is not an employee.

• [21] Having examined these materials, it is evident to me that the merits of the Application may turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed.

• [22] Prior to considering the merits of the Applicant's application, the additional jurisdictional objection of the Respondent that he was not an employee would need to be determined. In this regard, I note several previous decisions of the Commission examining similar circumstances to this case that have not found a relationship of employment.[4][5]

• [23] That said, it remains premature to make any firm or detailed assessment of the merits. Accordingly, I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

• [24] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

• [25] Neither party brought any other relevant matter or decision of the Commission concerning this matter to my attention, I conclude this to be a neutral consideration.

• [26] Having regard to the matters I am required to take into account under s 394(3) and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

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

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

[4] Ahmed Abdi v Rasier Pacific Pty Ltd [2021] FWC 5968 among others including Jama v Rasier Pacific Pty Ltd [2022] FWC 2946; Christoper Gellel v Uber [2025] FWCFB 19.

[5] See Ahmed Abdi v Rasier Pacific Pty Ltd [2021] FWC 5968.

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