s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application dismissed pursuant to s 587 of the Fair Work Act 2009

[1] On 23 December 2025, Mr Narinder Handa (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment with Portia Pacific Pty Ltd (the Respondent) was unfair. On 13 February August 2026 the Respondent filed its Form F3 Response with the Commission. In its response the Respondent raised the jurisdictional objections that the Applicant was not an employee, that he was not dismissed and that the application was filed outside the 21-day filing period.

[2] The matter was allocated to my Chambers on 20 February 2026 for determination. In reviewing the Form F2 filed by the Applicant and the Respondent's Form 3 response it was plainly apparent that the Applicant had filed the wrong application. He had established an account with the Respondent as an Uber delivery driver, the account having been deactivated on 10 January 2025. He was clearly not an employee but was employee like worker claiming to have been unfairly deactivated from a digital labour platform. As a consequence, correspondence was sent to the Applicant in the following relevant terms;

I refer to your application for an unfair dismissal remedy made pursuant to s 394 of the Fair Work Act which has been allocated to Deputy President Masson.

The Deputy President advises that it is apparent from your application and the Respondent's Form F3 response that you have filed the wrong application. It is clear that you were not an employee of Portia Pacific Pty Ltd (T/A Uber) but rather were an employee like worker claiming to have been unfairly deactivated from a digital labour platform. The appropriate application for a remedy related to alleged unfair deactivation from a digital labour platform is that of a Form F89.

As you were not an employee, the Deputy President advises that your application for an unfair dismissal remedy has no reasonable prospects of success. As such you are encouraged to immediately withdraw your application. Should you choose to, you may wish to then file an application for unfair deactivation.

Should you decline to withdraw your application the Deputy President will proceed to consider whether your application should be dismissed pursuant to s 587 of the Act which is set out below;

You are requested to advise Chambers on or by 5.00pm on Thursday 26 February 2026 whether you wish to withdraw your application for an unfair dismissal remedy. Should you decline to do so, you may file submissions and or other material in relation to the proposed dismissal of your application pursuant to s 587 of the Act. Such submissions are required to be filed on or by 5.00pm on Thursday 26 February 2026."

[3] The Applicant responded on 25 February 2026 in the following terms to the above correspondence;

I am just wondering why I am asked to deposit the fees if the application was not processed correctly. What about the fees I paid.

Is it possible for to switch and process my application as needed. Or you can just cancel this case and get rid of the case which is not helping me.

[4] On receipt of the above correspondence from the Applicant, further correspondence was sent from my Chambers to the Applicant on 25 February 2025

To clarify, your application was successfully lodged with the Commission and was processed correctly. But the application submitted was for the wrong remedy. If you wish to make an application for an Unfair Deactivation Remedy you can do so using the Form F89A which can be found in the link in the previous email. At that Form can be submitted using the normal process.

To cancel your current matter, you can simply send us an email stating that you wish to discontinue your application. At which point the file will be closed.

[5] Having not received any further correspondence from the Applicant, I have decided to consider whether the application should be dismissed pursuant to s 587 of the Act which provides as follows;

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

[6] As I have identified above, the Applicant established an account with the Respondent as an Uber delivery driver which was deactivated on 10 January 2025. While the application was filed some 347 days after deactivation of his account, the application confronts a more fundamental problem in circumstances where he seeks a remedy for an alleged unfair deactivation. He has filed an application for an unfair dismissal remedy rather than an unfair deactivation remedy. In these circumstances, I have determined to exercise my discretion pursuant to ss 587(1)(c) of the Act to dismiss the application, on the basis that there are no reasonable prospects of success. In doing so I have acted on my own initiative as I am permitted to under s 587(3) of the Act.

[7] For the reasons outlined above, I am satisfied that the application has no reasonable prospects of success as the Respondent was not the Applicant's employer. In the circumstances, I have decided to dismiss the application pursuant to s.587(1)(c) of the Act. An order to that effect will be issued with this decision.

Printed by authority of the Commonwealth Government Printer