Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - whether to extend time - application dismissed

• [1] On transcript earlier this morning, I dismissed an application for an unfair dismissal remedy made by Shereen Mirranay (applicant) under s 394 of the Fair Work Act 2009 (Act), for the following reasons.

• [2] The applicant contended that he was unfairly dismissed by Rasier Pacific Pty Ltd (respondent) on 4 September 2023 following an unfounded customer complaint. The respondent objected to the application on the ground that it was filed out of time. It further contended that the applicant was not its employee and was not dismissed, and that instead it deactivated the applicant's account as an Uber driver on 9 September 2023. I decided to consider the extension of time matter first, proceeding on the basis that, if the applicant was an employee of the respondent and was dismissed, the dismissal occurred on 4 September 2023.

• [3] Section 394(2) states that an unfair dismissal application must be made 'within 21 days after the dismissal took effect', or such further period as the Commission allows pursuant to s 394(3). The application was lodged on 2 March 2025, a year and 5 months out of time. In order for the application to proceed, the applicant required an extension of time. The Act permits the Commission to extend time only if it is satisfied that there are 'exceptional circumstances', taking into account the matters in s 394(3)(a) to (f). As to the reason for the delay (s 394(3)(a)), the applicant stated that he had only recently learnt about new legislation that confers rights on employee-like workers such as Uber drivers. As I explained to the applicant, the new legislation allows employee-like workers to make claims in respect of alleged unfair deactivation. It does not extend unfair dismissal rights to such workers. In any event, unawareness of the law is not an acceptable reason for the delay. The applicant also said that the respondent had ignored his messages to it, but this is not a good reason for the delay either. The reasons for the delay weigh against an extension of time.

• [4] I considered that ss 394(3)(b), (c), (d) and (f) were neutral matters: the applicant did not contend that he became aware of his alleged dismissal after it took effect; nor did he contend that he had taken other steps to challenge his dismissal. There was no significant prejudice to the employer; and I did not consider that there were any matters relevant to fairness between the applicant and other people.

• [5] As to the merits (s 394(3)(e)), the applicant stated in his F2 application that his dismissal was unfair because his account was deactivated in response to a false customer complaint and that he was not provided with an opportunity to respond to the complaint. The respondent submitted that the terms of the applicant's contract with the respondent evidenced a contracting relationship, not one of employment, and that the applicant was not dismissed, and was therefore not eligible to bring an unfair dismissal application. It appears to me that the applicant was not an employee and was therefore not dismissed, for the reasons explained by the Full Bench in Gupta v Portier Pacific Pty Ltd t/a Uber Eats [2020] FWCFB 1698. I have formed this view after also considering the new expanded definition of 'employee' in s 15AA of the Act. If the applicant was not an employee of the respondent, his unfair dismissal application cannot succeed. The merits weigh against an extension. But even if I were to regard the merits as a neutral consideration, my decision on the extension of time question would be the same.

• [6] The Commission can extend time only if it is satisfied that there are exceptional circumstances. Taking into account the matters in s 394(3), I am not satisfied that there are exceptional circumstances, save perhaps that the application was lodged exceptionally late. But this weighs against, not in favour, of an extension. There is no basis for the Commission to extend time in this case. It is not necessary to determine the respondent's second jurisdictional objection. The application is dismissed.

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