s.394 - Unfair dismissal

Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed

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

• [2] The Applicant alleges that he was employed as an Uber driver by the Respondent and he was dismissed on 28 May 2024. The Respondent contends that the Applicant's account on the Uber Rides platform was deactivated on 23 May 2024.

• [3] The Applicant filed his unfair dismissal application in the Fair Work Commission on 26 February 2025.

• [4] The Applicant seeks an extension of time for the late filing of his unfair dismissal application. I have decided the Applicant's request for an extension of time on the basis of the documentary material filed by the Applicant and the Respondent.

• [5] 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).

• [6] The documentary material establishes that the Respondent informed the Applicant of its 'final' decision to deactivate his account on 23 May 2024. I therefore find that the Applicant was informed of his alleged dismissal, and it took effect, on 23 May 2024. Accordingly, the period of 21 days ended at midnight on 13 June 2024. The application was therefore filed approximately 8.5 months 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).

• [7] 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]

• [8] 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.

• [9] 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.

• [10] 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 will now consider these matters.

• [11] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]

• [12] 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.[5]

• [13] The Applicant provided the following explanation for the delay in his Unfair dismissal application form:

"I'm not sure and I have no idea that I can lodge the complaint after knowing with one of my friend I'm lodging this complaint."

• [14] The Applicant provided the following additional information in response to directions I made for the filing and service of material in relation to the out of time issue:

"As you have requested documents please find the below attached copies of proof that I have lodged the case with VCAT and I'm uploading the file which is filed on 13/06/2024 and I have uploading the document of the doctor given medical certificate as I was undergoing some investigations regarding my health check I was unaware I can lodge a file through Fairworks as one of my Friends said that we have received an email from uber that if we have any blocked accounts we can lodge a complaint through fair works the very next day I got to know I have raised an appeal to Fair Works as I was not fighting for the compensation from Uber I'm just expecting the justice to be delivered as I was working with them since more than 5 years I also complained them that I'm getting false complaints from uber customers they said there will be no problem until you do something wrong I haven't done anything wrong I still remember what happened that day I did only one trip the customer got into my car she was upset with her work and when I wished her ( Hi How are You ? ) she didn't replied me back and was rude towards me as I want to complaint to uber in this regards but they blocked my account and they gave the decision that it is permanently blocked I did more than 7000 trips on uber this is not the fair way to treat an driver as I work for driver industry I never got any issues with but they didn't even listen what my side story as there will be two sides of the story and when I was trying to contact uber they are just throwing scripted responses and I requested them more times they are just closing my case when I open the request and they removed the access to my Uber Driver App please do the investigation and do the needful as I want to work with uber I'm not complaining on uber I was just expressing my pain towards I'm going through in my mind regarding some customers false complaints they can't be removed from Uber. As I wrote everything what happened please help me with activating my Uber account I'm very much stressed without doing Uber as I was doing it for a long time I hope you understand thank you so much for your time Fair Works Team."

• [15] Having regard to all the circumstances, I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the long delay in filing his unfair dismissal application. The primary reason for the delay is the fact that the Applicant was not aware that he may be able to make an unfair dismissal claim or the 21 day time limit for such claims. Ignorance of the law is not an acceptable or reasonable explanation for a long delay, nor does it establish an exceptional circumstance.[6]

• [16] The Applicant's reference to an email from Uber concerning making applications to the Commission about "blocked accounts" no doubt relates to the new unfair deactivation jurisdiction conferred on the Commission. However, regulated workers such as Uber drivers are not eligible to make such an application if their deactivation took place before 26 February 2025.

• [17] The documents provided by the Applicant show that he lodged a claim in the Victorian Civil & Administrative Tribunal (VCAT) on 13 June 2024 in relation to Uber blocking his account after receiving what he claims was a false complaint about him. The fact that such an application was made in a different jurisdiction does not provide an acceptable or reasonable explanation for a long delay in making an application in the Commission. It also suggests that the Applicant was capable of filing an application in the Commission shortly after his alleged dismissal on 23 May 2024.

• [18] The medical certificate provided by the Applicant is dated 1 April 2025. It was prepared by Dr Sanjay Gupta, who has cared for the Applicant since 14 December 2024. Dr Gupta states that the Applicant has a medical history of renal calculi, for which he is currently undergoing investigations. Dr Gupta also expresses the opinion that it is highly likely that the Applicant may not fully understand the steps involved in making an application in the Commission. Dr Gupta does not state that the Applicant has been incapacitated, or rendered substantially less capable of making an application in the Commission, by reason of his medical condition. In all the circumstances, I am not satisfied that the Applicant's medical condition provides an acceptable or reasonable explanation for the long delay in making his application in the Commission.

• [19] The absence of an acceptable or reasonable explanation for much of the long delay in lodging the application on 26 February 2025 weighs against a conclusion that there are exceptional circumstances.

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

• [20] According to the material filed, the Applicant became aware of his deactivation on the day it took effect (23 May 2024). The Applicant therefore had 21 days to lodge his unfair dismissal application. This is a neutral consideration.

• [21] I accept that the Applicant took steps to dispute his alleged dismissal by disputing his deactivation with the Respondent when it first occurred and filing a claim in VCAT. The Applicant continued to make requests of the Respondent, in the period from May 2024 until 26 September 2024, to have the decision to deactivate his account appealed. On each occasion, the Respondent confirmed that the decision to deactivate the Applicant's account would remain.

• [22] The action taken by the Applicant to dispute his alleged dismissal weighs in support of the Applicant's contentions that there are exceptional circumstances.

• [23] I cannot identify any prejudice that would accrue to the Respondent 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 the grant of 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.

• [24] 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 unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory. Indeed, as s 396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s 394(2) (which includes deciding whether a further period should be allowed under s 394(3)), before considering the merits of the application. Nonetheless some assessment of the merits is required because the merits of the application is a material consideration in determining whether there are exceptional circumstances. It is appropriate therefore that I make an assessment about the merits of the case based on the limited material that is available.

• [25] The Applicant contends that he was an employee of the Respondent, he undertook more than 7,000 trips for Uber, and he was the subject of a false complaint from a customer.

• [26] The Respondent contends that the Applicant was not an employee. The Respondent submits that the Applicant, as a Driver Partner, was not and has never been an employee of the Respondent or any of its affiliates. The Respondent contends that the Commission has conclusively determined on numerous separate occasions that Driver Partners are not employees of the Respondent or its affiliated entities: see, for example, Kaseris v Rasier Pacific V.O.F. [2017] FWC 6610, Pallage v Rasier Pacific Pty Ltd [2018] FWC 2579, Suliman v Rasier Pacific Pty Ltd [2019] FWC 4807, Asim Nawaz v Rasier Pacific Pty Ltd T/A Uber B.V. [2022] FWC 1189; Shen Bing Zhuge v Uber Australia Pty Ltd [2024] FWC 911; and see also Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd T/A Uber Eats [2019] FWC 5008 (Uber driver on the Uber Eats platform). The Respondent also submits that the introduction of s 15AA into the Act, requiring an examination of the "real substance, practical reality and true nature of the relationship", will not lead to a different outcome to that determined by the Commission in the previous cases involving entities in the Uber group of companies.

• [27] On the information presently available to the Commission, I am of the view that the Applicant has a weak claim insofar as he contends that he was an employee of an entity in the Uber group of companies; only an employee can pursue a claim for unfair dismissal. The decisions of the Commission on which the Respondent relies in relation to this point provide the basis for my opinion as to the merits of the case.

• [28] In all the circumstances, the merits of the Applicant's unfair dismissal application weigh against his application for an extension of time.

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

• [29] 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.

• [30] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

• [31] Taking into consideration the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Although the Applicant took some action to dispute his dismissal, the Applicant does not have an acceptable or reasonable explanation for much of the long delay in lodging his application, the merits of his claim are weak, and the balance of the relevant considerations are not of any significant weight. Having regard to all the circumstances, I do not consider this case to be out of the ordinary course, unusual, special or uncommon.

• [32] 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] Long v Keolis Downer [2018] FWCFB 4109 at [40]

[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31]

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

[6] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14]

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