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[2021] FWC 4729
General information, not legal advice.
Fair Work Commission
2021-08-06
Original judgment source is linked above.
[2021] FWC 4729 [Note: An appeal pursuant to s.604 (C2021/4637) was lodged against this decision.]
s.394 - Unfair dismissal
Rasier Pacific Pty Ltd, Uber BV, Uber Australia Pty Ltd T/A Uber
Application for an unfair dismissal remedy; application for stay of proceedings; stay not granted.
[1] This decision concerns a stay application made by Mr Syed Mubashir (the Applicant) in respect of proceedings dealing with his application for an unfair dismissal remedy (the Unfair Dismissal Proceedings). The background to the stay application is set out below.
[2] On 8 June 2021, the Applicant lodged an F2 application pursuant to s.394 of the Fair Work Act 2009 Cth (the Act) in which he asserts that he had been employed by Rasier Pacific Pty Ltd, Uber BV, Uber Australia Pty Ltd T/A Uber (Uber) as a driver and was unfairly dismissed on 19 May 2021.
[3] Uber filed a Form F3 response to the Applicant's F2 and in so doing objected to the unfair dismissal application being heard on the basis that the Applicant was not an employee and consequently could not have been dismissed within the meaning of s.386 of the Act.
[4] The matter was set down for hearing of the Respondent's jurisdictional objection on 27 August 2021. Directions were also issued on 15 July 2021 requiring both parties to file submissions, statements of evidence and other material on which they sought to rely on in respect of Uber's jurisdictional objection in advance of the hearing.
[5] On 30 July 2021 an application was filed in the Federal Court on behalf of the Applicant, three other named persons and Rideshare Driver Network against Rasier Pacific Pty Ltd, Uber Pacific Pty Ltd, Uber Australia Pty Ltd and Uber BV (the Federal Court Proceedings). In the Federal Court Proceedings, the joint applicants assert that Uber, in contravention of sections 535 and 536 of the Act, have failed to maintain employee records and provide pay slips as required by the Act and Fair Work Regulations 2009 Cth (the FW Regs).
[6] The applicants in the Federal Court Proceedings seek declarations for each serious contravention or contraventions of ss.535 and 536 of the Act and pecuniary penalties in the sum of the maximum amount available under the Act to be paid to Rideshare Driver Network which is the fifth applicant in the Federal Court Proceedings.
[7] A preliminary issue that appears will need to be determined in the Federal Court Proceedings is whether the natural person applicants are employees. The applicants in the Federal Court Proceedings have sought the referral of the issue of the employment status of the natural person applicants to the Full Court of the Federal Court of Australia for determination.
[8] The Applicant filed the stay application in the unfair dismissal proceedings on 30 July 2021 seeking that the directions issued on 15 July 2021 be stayed until further order and that the jurisdictional objection hearing listed on 27 August 2021 be vacated.
[9] A hearing to deal with the Stay Application was listed for 3 August 2021. At the hearing both parties sought and were granted permission to be legally represented pursuant to s.596 of the Act.
Power to 'stay' proceedings and principles to be applied in exercising discretion
[10] It was uncontroversial between the parties that the power to 'stay', or perhaps better stated to adjourn, the proceedings as sought by the Applicant was conferred by s.589(1) of the Act which states that the Commission "may make decisions as to how, when and where a matter is to be dealt with." I accept that the power conferred by s.589 would allow adjournment of the Unfair Dismissal Proceedings until such time as the central issue of the Applicant's employment status was resolved through the Federal Court proceedings. Where the parties disagree is whether the Commission should in fact exercise its discretion to do so.
[11] In exercising its discretion, the Applicant took me to a number of Commission authorities they contended were relevant,[1] but submitted that particular regard should be had to the Federal Court authority of Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union[2] (Teys). In this case his Honour Justice Bromberg was dealing with an interlocutory application made by the employer in which it had sought to injunct the Commission from dealing with a dispute filed by the Australasian Meat Industry Employees Union (the Union).
[12] The substantive dispute in Teys was over the interpretation of an enterprise agreement, specifically, whether a particular document formed part of the enterprise agreement. The Union filed a dispute application in the Commission pursuant to the relevant dispute resolution procedure in the enterprise agreement.[3] Approximately two weeks later, the company filed an application in the Federal Court for a declaration that the particular document did not form part of the enterprise agreement. The company also sought an interlocutory injunction, the effect of which would stop the Commission from dealing with the matter until the Court had determined the contested issue.
[13] While his Honour was ultimately not required to issue the interlocutory order sought as the Commission adjourned the dispute matter before it, he did determine that on balance, the interests of justice were best served by the substantive question being first determined by the Court. In doing so he identified the following six matters relevant to the exercise of the discretion;
1. The Court's specialist function provides for the final determination of controversies concerning existing rights and liabilities, including under the FW Act[4];
2. The Commission is an inferior tribunal and will be assisted by the reasons for judgement of the Court[5];
3. Complex legal issues were evident in the matter which deserved the attention of a superior Court[6];
4. The issues raised are of general importance including that it may impact on other similar enterprise agreements and many employers[7];
5. If the substantive question continues to determination in private arbitration and at the same time in the Court, there is the potential for the answers to be inconsistent. If the Court first determines the issue, the potential for inconsistent results are minimised. His Honour referred to this as the most important matter[8]; and
6. The potential for delay of the Commission proceedings. In the matter before his Honour, he expressed confidence that any delay could be minimized by the Court dealing with the substantive question in a timely manner[9].
[14] For its part, Uber submit that the relevant principles to be applied when considering a stay where multiple proceedings dealing with the same issues are on foot were summarised by his Honour Justice Lockhart in Re Sterling Pharmaceuticals Pty Limited v the Boots Company (Australia) Pty Limited[10] (Sterling Pharmaceuticals) where his Honour said;
"In my opinion relevant considerations to be taken into account in the present case include the following:-
• Generally balancing the advantages and disadvantages to each party."[11]
[15] Sterling Pharmaceuticals was also cited with approval by Deputy President Gostencnik in Sharon Bowker; Annette Coombe; Stephen Zwarts v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The-Victorian Branch and Others (Bowker) where he relevantly stated as follows;
"[6] The approach in Sterling Pharmaceuticals has been adopted in a number of subsequent decisions but it is to be noted that the list of considerations set out in Sterling Pharmaceuticals is not exhaustive and is not intended to be applied as a strictly prescriptive checklist of preconditions. Furthermore, considerations of case management are also relevant, as is the fact that decisions considering whether to grant a stay are often enmeshed in the facts and circumstances of the case the subject of decision and ultimately each case must be addressed having regard to its own circumstances." (citations omitted)
[16] Both of the Federal Court authorities to which I have been referred to are relevant to my consideration of the stay application. While Teys may bear upon the particular relationship between the Commission and the Federal Court in the context of the resolution of a dispute over the terms of an enterprise agreement in that matter, the principles set out by his Honour are also relevant in the exercise of the Commission's jurisdiction in the present matter of an application for an unfair dismissal remedy. Those principles do not, however in my view, serve to overshadow or displace the judicial guidance provided by the Full Court of the Federal Court in Sterling Pharmaceuticals. I will consequently have regard to both authorities to the extent they may be relevant to the particular circumstances of the matter before me.
[17] The Applicant contends that as the Federal Court Proceedings will be required to deal squarely with the employment status of the Applicant, which is a threshold matter in the Unfair Dismissal Proceedings, the latter proceedings should be stayed for the following reasons;
any decision of the Federal Court or the Full Court of the Federal Court will be binding on the Commission;
as there is significant uncertainty as to the employment status of gig economy workers, and varied decisions by the Commission, it would be appropriate for the matter to be heard and a binding decision made by a superior court;
there is a real risk of inconsistent findings which would bring the administration of justice into disrepute;
it would be more efficient for the present proceedings to be stayed pending the Federal Court determination, which would avoid a waste of resources in respect of any appeal required to the Full Bench of the Commission on the employment status issue; and
the lack of prejudice to Uber of a stay of proceedings, particularly given they are also a party to the Federal Court Proceedings and would similarly benefit from a binding determination of a superior court.
[18] There can be no question that a decision of the Federal Court in respect of a particular matter will be binding on the Commission to the extent the Commission is dealing with the same or a substantively similar matter. That does not in itself mean that the Commission should decline to deal with a matter before it as there a number of other matters to be weighed. Nevertheless, there is considerable force to the argument that the interests of justice may be best served by giving primacy to the Federal Court Proceedings in considering the stay application.
[19] There is however one difficulty with the application of the above reasoning in the present matter. The Federal Court Proceedings have a different purpose to that of the Unfair Dismissal Proceedings. In the latter the relief being sought by the Applicant is personal, that being his reinstatement and/or compensation. In the former there is no apparent personal relief being sought by the Applicant in those proceedings. If the Applicant is entirely successful in the Federal Court Proceedings, any pecuniary damages awarded would flow not to him but would be directed to the 5th applicant in those proceedings, the Rideshare Driver Network. The different character of the respective proceedings seems to me to distinguish the circumstances of the present matter from that of the circumstances that existed in the authorities to which I was taken to by the Applicant.
[20] Notwithstanding the above, I do accept that while the respective proceedings have a different purpose, a central element of both is that of the employment status of the Applicant. Resolution of that central issue will be a critical step in both sets of proceedings. In these circumstances a number of the considerations set out by his Honour Justice Bromberg in Teys weigh in favour of granting the application for an adjournment of the Unfair Dismissal Proceedings. Those considerations are that;
The Commission is an inferior tribunal to that of the Federal Court;
The Federal Court's specialist function is to finally determine the rights of persons under the Act, save for rights of appeal to the High Court; and
The issues raised, that of the employment status of Uber rideshare drivers, are of general importance.
[21] Further to the above considerations set out in Teys, I also accept that there is a risk of inconsistent answers being provided to the same critical question, that of the Applicant's employment status. That risk is however present in many matters that come before the Commission. Where a party is aggrieved by a first instance decision, the normal course is for the aggrieved party to pursue their rights of appeal and in some circumstances may seek judicial review. That right of appeal is a cornerstone feature of the system and rather then bring the system into disrepute serves to enhance confidence in the administration of justice in my view.
[22] I think that in the circumstances of the present matter the risk of inconsistent answers weighs less heavily than might otherwise be the case. That is because it is the Applicant that has initiated both proceedings. The Applicant's circumstances may be contrasted with those dealt with in in Metro Trains[12] for example. In that case the employer filed a dispute in the Commission seeking an arbitration of a disputed matter while the union sought an adjournment of that proceeding pending a determination of an application it had subsequently made to the Federal Court in respect of the same matter. In the present matter the Applicant has not been "dragged" into the Federal Court by Uber after having lodged his unfair dismissal application. Rather he made a conscious choice to file an unfair dismissal application and then subsequently join the Federal Court Proceedings. It is the Applicant that has made his choice as to where his interests are best pursued, of which I make no criticism. Having made those choices, he can hardly now complain if he is forced to make out his case in respect of his initial unfair dismissal application.
[23] Another key factor that bears heavily upon my consideration is that of the potential delay that may be caused by acceding to the adjournment request. It must be said that there was no indication by the Applicant's representative as to the likely timeframe over which the Federal Court Proceedings would progress. Ms Zhang, who is a lawyer for the Applicant's legal representative, conceded during evidence she gave before me that there was uncertainty as to timing of the Federal Court Proceedings, she did not know when the application in those proceedings would be determined and was not aware of inquiries having been made with the Federal Court regarding likely programming. It also seems likely that Uber will robustly resist the application in the Federal Court, as it is entitled to do, which also likely brings with it further delay and uncertainty as to the final form the proceedings will take and the timing.
[24] The uncertainty of the timing of the Federal Court Proceedings may be contrasted with the Unfair Dismissal Proceedings for which directions and a notice of listing have already been issued that will allow the prompt determination of the preliminary jurisdictional objection. It seems to me in the circumstances that the Applicant is likely to endure more extensive delays in his unfair dismissal application being dealt with should the adjournment request be acceded to. This weighs against adjourning the Unfair Dismissal Proceedings.
[25] A number of other considerations also weigh against adjourning the Unfair Dismissal Proceedings. Firstly, those proceedings were initiated almost two months prior to the Applicant joining the application to the Federal Court. Secondly, adjourning the Unfair Dismissal Proceedings would have no material impact on the Federal Court Proceedings. This much was conceded by Ms Zhang who confirmed that preparations for the Federal Court application were well advanced by the time the Applicant joined as a co-applicant in late July 2021 and that application would have progressed with or without the Applicant's involvement. Thirdly, I don't accept that work undertaken by either party in preparing submissions, witness statements and other material for the jurisdictional hearing in the Unfair Dismissal proceedings would be wasted as such material could be reprised and used for the Federal Court Proceedings if required at some future point. Finally, as I have set out above, proceedings in the Federal Court do not appear to have advanced beyond the application stage whereas the Unfair Dismissal Proceedings are advanced to the point that a hearing date to deal with the jurisdictional point is presently set down for 27 August 2021.
[26] Turning briefly to one point made by the Applicant, that being there is considerable legal uncertainty as to the employment status of gig economy workers and that resolution of that uncertainty by the Federal Court is desirable. While there may not be any Federal Court decisions dealing with Uber, it is incorrect to say there has been an inconsistency in decisions arising from matters before the Commission involving Uber.[13] Ms Zhang also conceded this point although pointing to other recent decisions involving different companies.[14] I don't believe seemingly inconsistent outcomes involving different companies takes the Applicant's argument far as each case will turn on its own particular facts.
[27] Finally, as to prejudice to either party arising from a decision to adjourn the Unfair Dismissal Proceedings, I see no great prejudice to the Respondent and consequently regard that as a neutral consideration.
[28] In the circumstances and after having weighed the various relevant considerations, I am not satisfied that the interests of justice are served by my staying directions and vacating the hearing listed for 27 August 2021 in the Unfair Dismissal Proceedings. I decline to do so.
[29] Further amended directions will be shortly issued in relation to the filing of submissions, witness statements and other material for the forthcoming hearing to deal with Uber's jurisdictional objection.
M Harmer of Harmers Workplace Lawyers for the applicant.
[1] See ALDI Foods Pty Limited, As General Partner of ALDI Stores (A Limited Partnership) [2017] FWC 2188 (Aldi), Aerocare Flight Support Pty Ltd T/A Aerocare [2018] FWC 6159 (Aerocare), Metro Trains Melbourne Pty Ltd T/A Metro Trains v Australian Rail, Tram and Bus Industry Union [2017] FWC 4571 (Metro Trains)
[12] Metro Trains Melbourne Pty Ltd T/A Metro Trains v Australian Rail, Tram and Bus Industry Union [2017] FWC 4571
[13] See Amita Gupta v Portier Pacific; Uber Australia Pty Ltd T/A Uber Eats [2020] FWCFB 1698, Amita Gupta v Portier Pacific; Uber Australia Pty Ltd T/A Uber Eats [2019] FWC 5008, Kaseris v Rasier Pacific Pty Ltd [2017] FWC 4807, Rajab Suliman v Rasier Pacific [2019] FWC 2818
[14] See Joshua Klooger v Foodora Australia Pty Ltd [2018] FWC 6836, Diego Franco v Deliveroo Australia Pty Ltd [2021] FWC 2818
Printed by authority of the Commonwealth Government Printer
Syed Mubashir
Rasier Pacific Pty Ltd, Uber BV, Uber Australia Pty Ltd T/A Uber [2021] FWC 4729