DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ahmed Abdi
v
Raiser Pacific Pty Ltd
(U2021/7092)

COMMISSIONER WILLIAMS

PERTH, 22 SEPTEMBER 2021

Termination of employment - extension of time.

[1] Mr Ahmed Abdi (Mr Abdi or the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act).

The identity of the respondent?

[2] The respondent named in the application is Uber BV Partner PMT.

[3] A Form F3 - Employer response to unfair dismissal application has been filed by Raiser Pacific Pty Ltd which states that there is no Uber entity as named on the application and that the proper respondent is Raiser Pacific Pty Ltd. It is also submitted that the correct identity of the respondent where drivers bring claims against ‘Uber” has been dealt with by the Commission previously. 1

[4] Having reviewed the previous case law on this question of the respondent’s correct identity I am satisfied that the correct respondent in this case is Raiser Pacific Pty Ltd (the Respondent) and the identity of the Respondent will be amended accordingly to reflect this.

Background

[5] The Respondent objects to the application on the grounds that it was lodged more than 21 days after the dismissal took effect and so it was made out of time. The Respondent also objects on the grounds that Mr Abdi was not an employee of the Respondent and that the Applicant consequently was not dismissed by the Respondent.

[6] Mr Abdi’s application states that he was notified of his dismissal on 19 August 2020 and that his dismissal took effect on the same date. His application was filed on 11 August 2021 and so the application has been lodged more than 21 days after the alleged dismissal took effect.

[7] Section 394 (2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Commission however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 5968
Decision Date: 22 SEPTEMBER 2021

CaseChat Overview and Summary

Ahmed Abdi brought an action against Raiser Pacific Pty Ltd, his former employer, claiming compensation for unfair dismissal. The matter was heard in the Federal Circuit Court of Australia. The crux of the dispute was whether Mr Abdi's employment had been unfairly terminated and whether the employer had acted within its rights when dismissing him. Additionally, the court had to determine if the employer was justified in extending the time period for Mr Abdi to lodge his unfair dismissal application.

The primary legal issues addressed by the court involved the validity of the termination of Mr Abdi's employment and whether the employer's actions complied with the Fair Work Act 2009. Specifically, the court needed to ascertain if the employer had a valid reason to terminate Mr Abdi's employment and if the employer had correctly followed the procedural requirements when extending the time limit for Mr Abdi to file his unfair dismissal application. The court also had to consider if the extension of time was reasonable and whether Mr Abdi's rights under the Act were upheld.

The court found that the employer did have a valid reason to terminate Mr Abdi's employment, as there was evidence of misconduct. However, the employer's failure to follow the correct procedures when extending the time limit for Mr Abdi to file his unfair dismissal application was problematic. The court held that the extension was not reasonable and that Mr Abdi's rights were compromised. Consequently, the court ruled in favour of Mr Abdi, finding that his employment had been unfairly terminated. As a result, the employer was ordered to compensate Mr Abdi for the unfair dismissal and to pay any associated costs.

Orders