s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application out of time - circumstances not exceptional - application dismissed

• [1] On 18 December 2024, Mr Thomas Marsland made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Rasier Pacific Pty Ltd (Rasier Pacific).

• [2] Section 394(2) of the FW Act requires that the application be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.

• [3] In his application, Mr Marsland stated that his employment ended on 25 June 2024. Therefore, the application has been made outside of the 21-day period prescribed by s.394(2) of the FW Act.

• [4] I am required by s.396 to decide a number of matters before considering the merits of the application including whether the application was made within the required timeframe and whether Mr Marsland was protected from unfair dismissal which includes whether he was an employee of Rasier Pacific and was dismissed.

• [5] In summary, I have found that Mr Marsland ceased working for Rasier Pacific on 25 June 2024. The application should have been made on 16 July 2024 to comply with s.394(2)(a) of the FW Act. The application was therefore made 155 days outside of the 21-day limit.

• [6] I have found that the circumstances in which the application was made are not exceptional, according to the factors in s.394(3) of the FW Act, and so I have not granted an extension of time to file the application.

• [7] Mr Marsland worked as an Uber Driver. According to material filed by Rasier Pacific, Mr Marsland was engaged as a 'Driver Partner' under a Services Agreement with Rasier Pacific for the provision of lead generation and other services. Rasier Pacific contends that Mr Marsland, as a Driver Partner, was not and has never been an employee of Rasier Pacific or any of its affiliates.

• [8] On 25 June 2024, Mr Marsland was advised that his account was permanently deactivated following behaviour that was inconsistent with Uber's Community Guidelines.

• [9] Since the deactivation of Mr Marsland's account, he has sent several items of correspondence to Rasier Pacific requesting a review of the deactivation decision, including on 26 June 2024, 5 July 2024, 17 August 2024 and 20 September 2024. Rasier Pacific has confirmed that the decision to deactivate Mr Marsland's account would remain.

• [10] In response to the application, Rasier Pacific has raised the following three jurisdictional objections:

• Mr Marsland filed the application outside the 21-day time limit;
• Mr Marsland was not an employee; and
• Mr Marsland was not dismissed.

• [11] Before considering the merits of the application or other jurisdictional objections, the Commission must consider whether exceptional circumstances warrant granting an extension of time to file the application.[1]

• [12] The merits of the case are whether the dismissal was harsh, unjust or unreasonable. The FW Act prevents me from considering whether the dismissal was harsh, unjust or unreasonable unless I am satisfied that:

• There are exceptional circumstances warranting an extension of time, taking into account the matters in s.394(3) of the FW Act; and
• Mr Marsland was an employee of Rasier Pacific and was dismissed within the meaning of s.386(1) of the FW Act.

• [13] The matter was listed for a case management conference on 3 February 2025. Prior to the case management conference, I provided the parties with draft directions and a proposed hearing date for the extension of time issue.

• [14] At the case management conference, Mr Marsland represented himself and Rasier Pacific was represented by Mr Trent Sebbens, lawyer. Mr Marsland did not object to Rasier Pacific being legally represented. I granted Mr Sebbens permission to represent Rasier Pacific in the proceedings pursuant to s.596(2), on the grounds that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

• [15] I explained to the parties that Rasier Pacific has raised a number of jurisdictional objections, but that I proposed to list the matter for hearing initially in relation to the extension of time issue. Both parties agreed to this approach.

• [16] I then noted that Mr Marsland named Uber Australia Pty Ltd as the respondent in his application, however, Rasier Pacific had asserted that it was the correct respondent. With the consent of both parties, I allowed an amendment to the application pursuant to s.586(a) to correctly reflect the respondent as Rasier Pacific.

• [17] As Mr Marsland was not represented, I advised Mr Marsland of the following during the case management conference to ensure he was aware of what was required in a hearing to determine whether an application should be accepted out of time:

• The Commission is required to consider the following issues under s. 394(3) of the FW Act, when determining whether there are exceptional circumstances warranting an extension of time:

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

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

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

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

• Ordinarily, a person needs to provide evidence about the reasons for the delay and the evidence can be in the form of a witness statement. The draft directions contain links to resources on the Commission website which are designed to help parties prepare their cases and to show the format of a witness statement and submissions.

• If a person is relying upon medical evidence or some other circumstances in relation to the delay, they ordinarily need to provide that medical evidence or any other evidence they are relying upon.

• The Commission is required to consider whether there are exceptional circumstances. It is not sufficient to just show that there is a reason for the delay.

• [18] Mr Marsland explained that he had been seeing psychologists and a social worker from Centrelink, and he did not think that he would have a problem submitting what he needed to for his evidence. I informed Mr Marsland that if he was going to be relying on anything that the social worker or psychologist had said, he would need to obtain statements from those people.

• [19] I directed Mr Marsland to provide his material by 10 February 2025 and Rasier Pacific to provide its material by 17 February 2025. I set the matter down for hearing on 21 February 2025.

• [20] Mr Marsland did not file his material by 10 February 2025 and instead requested a one-week extension. This was granted with the consent of Rasier Pacific and necessitated the hearing being adjourned to 6 March 2025. On 17 February 2024, Mr Marsland sought a further extension to file material which Rasier Pacific agreed to. Mr Marsland then filed his material on 20 February 2025. Rasier Pacific filed its material on 27 February 2025. Mr Marsland sought an opportunity to file material in reply and then filed further material on 5 March 2025.

• [21] The material which Mr Marsland filed on 20 February 2025 comprised of numerous documents including an Australian Law Reform Publication called Serious Invasions of Privacy in the Digital Era, the Australian Privacy Principles, a letter from a lawyer in relation to workers compensation entitlements, factsheets from the Australian Human Rights Commission and information about human rights from the United Nations. This material may have been relevant to consideration of whether the cessation of Mr Marsland's engagement on 25 June 2024 was harsh, unjust or unreasonable, however, this is not a matter that I was considering at the hearing on 6 March 2025.

• [22] As I had explained to the parties at the case management conference on 3 February 2025, the hearing on 6 March 2025 was limited to considering whether exceptional circumstances warrant granting an extension of time to file the application. The evidence which Mr Marsland provided in support of this issue comprised of a letter from a social worker employed by Services Australia dated 27 February 2025, which I refer to below.

• [23] In addition to submissions, Rasier Pacific filed documents which showed Mr Marsland's communications with the Community Operations Team at Uber about the deactivation during the period from 25 June 2024 to 20 September 2024.

• [24] At the hearing on 6 March 2025, I read out to Mr Marsland the s.394(3) considerations and asked him if he had anything further to say in relation to why the time for filing his application should be extended on the basis that there are exceptional circumstances. Mr Marsland did not provide any further submissions addressing the matters in s.394(3) of the FW Act.

• [25] Mr Marsland's evidence is that he ceased working for Rasier Pacific on 25 June 2024. Rasier Pacific has not disputed this.

• [26] For the purpose of considering the matter pursuant to subsection 394(2) of the Act, I find that the alleged dismissal took effect on 25 June 2024.

Was the application made within 21 days after the dismissal took effect?

• [27] As the Full Bench has stated in relation to a general protections application, but equally applicable here, "[t]he 21 day period prescribed... does not include the day on which the dismissal took effect."[2]

• [28] As I found above, the alleged dismissal took effect on 25 June 2024. The final day of the 21-day period was therefore 16 July 2024 and ended at midnight on that day.

• [29] I find that the application was made on 18 December 2024 and note that this is not in dispute.

• [30] As the application was not made within 21 days of the date on which the alleged dismissal took effect, I need to consider whether the Commission should allow a further period for the application to be made.

Should the Commission allow a further period for the application to be made?

• [31] Under section 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

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

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

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

(f) fairness as between Mr Marsland and other persons in a similar position.

• [32] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]

• [33] I set out my consideration of each matter below.

• [34] For the application to have been made within 21 days after the dismissal took effect, it should have been made by midnight on 16 July 2024. The delay is the period commencing immediately after that time until 18 December 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]

• [35] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[5]

• [36] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where an applicant has not provided any reason for any part of the delay.[6]

• [37] Mr Marsland provided the following reasons for the delay:

• The dismissal has affected his mental health;
• He has been seeking professional help and had to change psychologists;
• He was not aware that he could lodge an unfair dismissal application until the fifth lawyer he called suggested that he does this.

• [38] Mr Marsland provided a letter from a social worker employed by Services Australia dated 27 February 2025, which confirmed that Mr Marsland is at major risk of exacerbating his poor mental health especially since becoming unemployed and has been in a vulnerable state for some time now. The letter confirmed that Mr Marsland has seen a psychologist to address these issues.

• [39] I accept Mr Marsland's evidence, which is supported by his social worker, that he has been experiencing poor mental health since the deactivation of his account by Rasier Pacific. However, Mr Marsland has not explained the connection between his poor mental health and the delay in filing the application. I would have been assisted by evidence from Mr Marsland about any periods when he was incapacitated and therefore not medically fit to fill out the application form, but this was not provided. I therefore do not know whether Mr Marsland's poor mental health caused the delay in filing his application, or whether Mr Marsland was experiencing poor mental health in the aftermath of the dismissal but that it had no impact on the date the application was filed.

• [40] Further, the evidence provided by Rasier Pacific shows Mr Marsland interacting with the Community Operations Team at Uber on numerous occasions in June, July, August and September 2024. In my view this indicates, in the absence of evidence to the contrary, that Mr Marsland would have been fit enough to fill out an application form during this period.

• [41] I think that the more likely scenario is that the reason for the delay is that Mr Marsland was not aware that an unfair dismissal application could be lodged by a dismissed employee with the Commission and the timeframe for doing so.

• [42] It is well established that mere ignorance of the statutory time limit is not an exceptional circumstance.[7]

• [43] I have considerable sympathy for Mr Marsland's current situation. However, more is required to explain the extensive delay in filing than evidence that Mr Marsland is experiencing hardship and health issues. In the circumstances I am not satisfied that the reasons for the delay advanced by Mr Marsland weigh in favour of a finding that there were exceptional circumstances.

Did Mr Marsland first become aware of the dismissal after it had taken effect?

• [44] There appears to be no dispute between the parties that Mr Marsland was notified on 25 June 2024, that his Driver Partner account had been permanently deactivated. This is not a matter which weighs in favour of a finding that there were exceptional circumstances.

What action was taken by Mr Marsland to dispute the dismissal?

• [45] Rasier Pacific accepts that Mr Marsland disputed the permanent deactivation of his account on various occasions from 25 June 2024 to 20 September 2024 but submits that Mr Marsland did not take any further steps from 20 September 2024, until he lodged his unfair dismissal application on 18 December 2024. I find that this is a matter which neither weighs in favour of, or against, a finding of exceptional circumstances.

What is the prejudice to the employer (including prejudice caused by the delay)?

• [46] Rasier Pacific did not assert any prejudice except the ordinary prejudice of making the jurisdictional objection to the application. I find that prejudice to Rasier Pacific is a neutral consideration in this matter.

• [47] One of the prerequisites for bringing an unfair dismissal application is that an applicant was an employee of the respondent. This is referred to in s.382(a) of the FW Act. It is not clear from the application filed by Mr Marsland whether he claims to have been an employee of Rasier Pacific. Rasier Pacific disputes that this was the case.

• [48] Rasier Pacific submitted that the Commission has conclusively determined on three separate occasions that Driver Partners are not employees of Rasier Pacific or its predecessor entity (Rasier Pacific V.O.F.) and referred me to Pallage v Rasier Pacific Pty Ltd (Pallage)[8] and Suliman v Rasier Pacific Pty Ltd (Suliman),[9] and Kaseris v Rasier Pacific V.O.F. (Kaseris).[10] In each of these cases, the applicant's unfair dismissal case was dismissed before the merits of the case were considered.

• [49] Rasier Pacific submits that these cases applied the 'multi-factorial' test which is now made clear by s.15AA of the FW Act which took effect on 26 August 2024, and provides:

15AA Determining the ordinary meanings of employee and employer

(1) For the purposes of this Act, whether an individual is an employee of a person within the ordinary meaning of that expression, or whether a person is an employer of an individual within the ordinary meaning of that expression, is to be determined by ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person.

(2) For the purposes of ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person:

(a) the totality of the relationship between the individual and the person must be considered; and

(b) in considering the totality of the relationship between the individual and the person, regard must be had not only to the terms of the contract governing the relationship, but also to other factors relating to the totality of the relationship including, but not limited to, how the contract is performed in practice.

Note: This section was enacted as a response to the decisions of the High Court of Australia in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2.

(3) Subsections (1) and (2) do not apply to the following provisions of this Act:

(a) Divisions 2A and 2B of Part 1‑3;

(b) Part 3‑1, to the extent that Part 3‑1 applies only because of the operation of section 30G or 30R.

• [50] If Mr Marsland was not employed by Rasier Pacific, he is not eligible to make an application for a remedy in relation to unfair dismissal. If I grant an extension of time in relation to the application, the next step would be for me to consider whether Mr Marsland was an employee of Rasier Pacific. If I find that Mr Marsland was not an employee, I would be required by s.396(b) of the FW Act to dismiss Mr Marsland's application without considering whether the deactivation was unfair.

• [51] I do not have any evidence before me in relation to the issue of whether Mr Marsland was an employee, however, this appears to me to be a difficult matter for Mr Marsland to establish if the circumstances of his engagement were the same as those of the applicants in Pallage, Suliman and Kaseris. It seems to me that it is unlikely that Mr Marsland could establish that he was an employee of Rasier Pacific unless he establishes that the reasoning of the Commission in Pallage, Suliman and Kaseris was incorrect or that the circumstances of his engagement were different to the applicants in those cases.

• [52] Mr Marsland says that he was an Uber Driver for seven years and had a high star rating. It appears that his role as an Uber Driver was Mr Marsland's main source of income. Mr Marsland's Uber account was deactivated without notice. Since then, according to both Mr Marsland and his social worker, Mr Marsland has experienced considerable distress, health issues and financial hardship. When these matters are considered in totality, it is understandable that Mr Marsland feels aggrieved by the circumstances of the deactivation. These are matters which are relevant to the merits of the case, however, they are unable to be considered by the Commission if Mr Marsland is not eligible to bring an unfair dismissal claim.

• [53] In my view, the likelihood that Mr Marsland is not an employee and that the Commission does not have the power to consider the merits of the application are matters which are relevant to the merits and whether exceptional circumstances exist. However, ultimately, I regard the merits of the application as a neutral consideration because I do not have sufficient evidence before me in relation to this matter to form more than a preliminary view.

Fairness as between Mr Marsland and other persons in a similar position

• [54] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

• [55] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:

• The dismissal has affected his mental health;
• He has been seeking professional help and had to change psychologists;
• He was not aware that he could lodge an unfair dismissal application until the fifth lawyer he called suggested that he does this.

(b) Mr Marsland becoming aware of the dismissal before it took effect;

(c) the action taken by Mr Marsland to dispute the dismissal during the period from June to September 2024 prior to making the application;

(d) no issue of prejudice to the employer being identified;

(e) the likelihood that Mr Marsland is not an employee and that the Commission does not have the power to consider the merits of the application; and

(f) no issue of fairness arising between Mr Marsland and other persons in a similar position.

• [56] 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.[11] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually have no particular significance, when taken together can be considered exceptional.[12]

• [57] The reasons for the delay and the time that Mr Marsland became aware of the dismissal do not weigh in favour of a finding of exceptional circumstances. The matters in subsections 394(3)(c)-(f) are neutral considerations.

• [58] Having regard to all of the matters listed at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.

• [59] As I am not satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time.

• [60] Therefore, Mr Marsland's application for an unfair dismissal remedy is dismissed. I order accordingly.

Mr T. Sebbens, legal representative from Ashurst, for the Respondent

[1] Lisha Herc v Hays Specialist Recruitment (Australia) Pty Limited [2022] FWCFB 234 at [15]

[2] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

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

[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].

[7] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd [2016] FWCFB 5472, [23].

[8] [2018] FWC 2579

[9] [2019] FWC 4807

[10] [2017] FWC 6610

[11] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[12] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

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