Ahmed Mohamed Hussein v Rasier Pacific Pty Ltd
[2023] FWC 1214
•20 JUNE 2023
| [2023] FWC 1214 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ahmed Mohamed Hussein
v
Rasier Pacific Pty Ltd
(U2023/2483)
| COMMISSIONER BISSETT | MELBOURNE, 20 JUNE 2023 |
Application for an unfair dismissal remedy
On 24 March 2023 Mr Ahmed Mohamed Hussein made an application to the Commission in which he sought a remedy from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Hussein said that he had been dismissed from his employment with ‘Uber Australia Pty Ltd’ on 18 March 2023. In its response, the Respondent indicated that the correct Respondent name is ‘Rasier Pacific Pty Ltd’. Accordingly, with the consent of the parties I ordered that the name of the Respondent employer be amended to Rasier Pacific Pty Ltd (referred to as Uber throughout this decision).
Prior to the hearing of the application for an extension of time on 18 May 2023 I granted Uber permission to be represented by a lawyer on the grounds that it would enable to matter to be dealt with more efficiently.
After hearing evidence and submissions from both parties on 18 May 2023 I advised the parties of my decision. That was that I declined to exercise my discretion and grant an extension of time within which Mr Hussein could make his application. I indicated that I would issue reasons for that decision in due course. An order dismissing the application of Mr Hussein was subsequently issued in the morning of 19 May 2022.
On 19 May 2023 Mr Hussein contacted my chambers and advised that he wished to discontinue his application. Mr Hussein was advised that his application had already been dismissed by the Commission and an order issued to this effect. It was therefore not possible for him to discontinue his application.
These are my reasons for not granting the extension of time.
Background
Over the 6 months prior to hearing this application the Commission has received in excess of 50 applications from previous drivers or food delivery riders who had operated on the relevant Uber Eats or Uber Rides platforms (apps) and who had, for various reasons, had their access to the relevant app deactivated. Without access to the app it is not possible to be a driver or rider under the Uber banner.
The applications received have all been in the same form. All, for example, sought as a remedy that they ‘be reinstated as a driver as this is was my main source of income with Uber’ and said that the dismissal was unfair as ‘no formal reason was given for the dismissal except generic correspondence. [Uber] have been extremely vague in the reasons and in their responses to my emails after several attempts to resolve any issues in relation to my employment.’[1]
Upon review, it was apparent that many of these applications were made outside the 21-day time limit for the making of the application, based on the information provided by the relevant applicant. Many more were alleged to have been made out of time based on the information provided by Uber in the employer response form.[2]
When this similarity in form of the application became apparent in late 2022 a streamlined administrative process was established (with the agreement of Uber) for dealing with them. When the pattern application was identified the application was served on Uber and their employer response form (Form F3) sought. If the employer response form indicated that the application was made within the prescribed time period the application was transferred into the normal unfair dismissal processes. If the application was filed out of time on the basis of the information provided by Uber, directions were issued for the filing of submissions and evidence in relation to whether the application was made out of time and whether an extension of time should be granted pursuant to s.394 of the FW Act.
Where submissions have been filed by an applicant seeking an extension of time, these submissions are now being received in the same form.
The apparent origin of the form of the applications and of the submissions came to light in hearing the current application and is discussed below.
Each of the applications where an extension of time needed to be determined has been allocated to my chambers for determination. Of the more than 50 applications that fit this pattern all (except that of Mr Hussein) have been discontinued by the relevant applicant either when advised that the matter would not be going to ‘mediation’ prior to a determination of the extension of time, at the time submissions on the extension of time were sought or, in a limited number of cases, within a few days of the hearing date.[3]
Mr Hussein’s application
Mr Hussein’s application for an extension of time is the only matter of the over 50 to date that has proceeded to hearing.
Mr Hussein’s application for unfair dismissal[4] states that:
· He commenced with Uber on 1 August 2017
· He was a notified of his dismissal on 18 March 2023 and his dismissal took effect on that day
· His main source of income was from Uber
· No formal reason was given for his dismissal except for generic correspondence. That Uber had been ‘extremely vague in the reasons and in their response to [his] emails after several attempts to resolve any issues in relation to [his] employment’.
Mr Hussein’s application was dated 18 March 2023.
In his written submissions as to why an extension of time should be granted (on being informed that Uber maintained his account had been deactivated over 5 years earlier on 30 October 2017) Mr Hussein said:
· There was no delay in making his application as the dismissal date he put in his application (18 March 2023) was the date he ‘believed Uber officially dismissed’ him and that he had ‘email evidence to back this up.’ The dismissal date was that specified in the Form F2
· He had disputed his dismissal in correspondence with Uber ‘for approximately 3 weeks’
· He wished to ‘have [his] case heard and not feel as though [he] is being bullied by a global company’
· The matter should have been resolved ‘without having to go to these extremes’
Mr Hussein further submitted that he had contacted the Commission ‘[d]ue to the arrogant and bullish treatment I have received from Uber, in the hope that your department would help resolve this issue. I am already under enormous financial and psychological stress and this is now causing me further serious mental health issues’.
Uber provided submissions and documents to the Commission opposing any extension of time. The documents indicated that:
· On 30 October 2017[5] Mr Hussein was advised that, due to low rating, his account would be deactivated
· On 3 October 2018, almost a year later, Mr Hussein provided two photographs of himself and indicated he was unable to go online. He was advised his account had been deactivated
· On 20 November 2018 Mr Hussein sought a review of the decision to deactivate his account. He was advised that the decision to deactivate his account would stand
· On 27 January 2023 Mr Hussein wrote to Uber and requested his account be reactivated
· On 24 February 2023 Mr Hussein wrote to Uber requesting his account be reactivated. In that correspondence Mr Hussein said:
‘After taking a break from Uber to deal with some personal issues ,I have discovered that I am having some problems signing into my account after several attempts. In my previous conversation with Uber before I took this extended leave, I did explain my circumstances which Uber were very compassionate and understanding about. It was advised that I was able to reactivate my account at any time. I have checked through the app help section and tried troubleshooting even reinstalling the app in case there had been updates and still I’m having issues.
Your assistance in this matter would be greatly appreciated as I believe it may just be a minor technical issue due to the extended time I have had off and it’s quite possible some of your procedures in relation to reactivation may have changed. I believe I have the correct and up to date documentations required to start work again with Uber as all my documentation seems to be correct. If it's my background check I’m happy to supply another copy if this is the issue. I look forward to your replay and assistance in this matter as I would like to resume work as soon as possible.’
· On 4 and 5 March 2023 Mr Hussein again wrote to Uber indicating some frustration ‘at the lack of communication from Uber’ and again stating that he ‘took time out from driving with Uber due to personal and family reasons that needed…attention’. He also said that ‘[a]s memory recalls, and also confirmed by your records, my ratings at the time were quite high…’ Uber responded to Mr Hussein on 4 and 5 March 2023 confirming his account had been deactivated and that decision would stand
· Mr Hussein again wrote to Uber in the same form on 6 and 7 March 2023
· On 17 March 2023 Mr Hussein again wrote to Uber following up on his email of 7 March 2023. Mr Hussein was again advised that his account was deactivated
In his oral evidence given at the hearing in relation to the extension of time Mr Hussein agreed that his Uber account had been deactivated in 2017.[6] He explained that his application for unfair dismissal had been completed by Andrew Edwards[7] who he said was a ‘lawyer.’[8] Mr Hussein said he paid money to Andrew Edwards[9] for help with his application and that Andrew Edwards must have got the information wrong when he completed the application as Mr Hussein knew his account had been deactivated in 2017.[10] Mr Hussein said that Andrew Edwards had told him that a lot of drivers were getting their accounts reactivated.[11]
Mr Hussein also said that Andrew Edwards had written the submissions filed by Mr Hussein[12] in accordance with the Directions issued by the Commission.
In relation to the correspondence sent by Mr Hussein to Uber in the period prior to making his application, Mr Hussein explained that Andrew Edwards had written the text of the messages and told Mr Hussein to cut and paste the text into the messages he then sent to Uber.[13] Mr Hussein agreed this information (in particular that Mr Hussein had taken time out from driving ‘due to personal and family reasons’) was incorrect. He gave evidence that he sent it to Uber because Andrew Edwards told him that ‘you have to have a really good reason’. In answer to a question in cross examination Mr Hussein said
I can’t make up any reason, any good reason for why I should get [access to the app] back. So he's the one sent that to me, “This should be a good reason for Uber. This should open your account. This will make up their mind”, or whatever. So and then so he told me, like, copy and paste so I did it, I send it.[14]
As to why his application was made more than 5 years outside the statutory time period, Mr Hussein said that he did not know that there was anything he could do about the deactivation until he found the social media site of Andrew Edwards who then helped him. He said he had tried to find out if he could do anything at the time his account was deactivated in 2017 and since that time but had not been able to find any information.
Statutory provisions
Section 394 of the FW Act states as follows:
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.
…
(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 is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
Mr Hussein’s Uber account was deactivated on 30 October 2017. To make his application within time Mr Hussein needed to make his application by no later than midnight on 20 November 2017. Mr Hussein made his application (apparently as advised by Andrew Edwards) on 18 March 2023 – over 5 years after the date of his ‘dismissal’.
In order to determine if I should extend time within which the application may be made I have considered each of the factors detailed in s.394(3) of the FW Act. Each of these matters must be considered in assessing whether there are exceptional circumstances.[15]
(a) reason for the delay
Mr Hussein offered no reason for the delay in making his application other than he was not aware that there was anything he could do in relation to the deactivation of his account until he came across the social media site associated with Andrew Edwards.
Putting to one side for the moment issues of whether Mr Hussein was an employee such that he is eligible to make an application for unfair dismissal, it is well established that ignorance of the law does not provide a satisfactory explanation for a failure to commence proceedings within time. Mr Hussein’s ignorance of unfair dismissal proceedings (to the extent that they are applicable in his case) does not provide a satisfactory explanation for the 5-year delay in making his application.
It would be highly speculative in Mr Hussein’s case, and based on the facts before me, to suggest that the making of an application for a remedy for unfair dismissal would lead to the reactivation of his Uber account. Further to suggest that correspondence sent to Uber more than 5 years after the deactivation of the account could change the date on which that deactivation (or claimed ‘dismissal’) occurred is divorced from reality. Any suggestion that Mr Hussein was ‘dismissed’ in March 2023 on the basis of three weeks of correspondence does not hold up to scrutiny.
There is no basis in the material before me on which it could possibly be thought that Mr Hussein’s engagement with Uber ended on 18 March 2023. Mr Hussein agrees his account was deactivated in 2017 and attempts to represent the end date as anything else is false and misleading.
Beyond a general claim that he was not aware that he could make an application for unfair dismissal Mr Hussein provides no reason for the delay in making his application.
(b) whether Mr Hussein became aware of the dismissal after it had taken effect
Mr Hussein agreed that he was aware that his Uber account was deactivated in 2017.
Even if Mr Hussein is correct and he became aware in 2022 or 2023 that it was possible to seek to reactive his account, this does not alter that he was aware of the deactivation when it occurred in 2017. There was no impediment to him undertaking research as to his rights at that time.
(c) any action taken by Hussein to dispute his dismissal
Mr Hussein, in his written submissions said that there ‘has been numerous correspondence with Uber for approximately 3 weeks’ and that he has the email evidence to back this up.
Uber submitted that between 2017 and February 2023 Mr Hussein took no steps to dispute his dismissal. To the extent it might be seen that he was doing so in his emails in February and March 2023, Uber submitted that the reasons he gave as to why his account should be reactivated (that he had been off the platform for personal and family reasons) were ‘disingenuous when considered in light of the communication on 30 October 2017’ when he was advised his account was deactivated because his account showed ‘ratings consistently lower than standard.’
(d) prejudice to the employer
Uber did not assert any prejudice except for that caused in the ordinary course of making the jurisdictional objection.
Mr Hussein said in his written submissions that there is no delay in making his application and therefore no issue of prejudice arises.
(e) merits of the application
Mr Hussein did not address the Commission on the merits of his application. In the written submissions (apparently written by Andrew Edwards but certainly forwarded by him to Mr Hussein) it is said, in relation to the merits of his application, that Mr Hussein sought to ‘have his case heard and not feel as though [he is] being bullied by a global company.’
Uber raised substantial matters with respect to the merits of the application of Mr Hussein, relying on previous decisions of the Commission that have found that Driver Partners are not employees of Rasier Pacific or its predecessor entities.[16] Further, Uber relies on the decision of the Commission at first instance and on appeal that a delivery Partner using the Uber Eats app was not an employee.[17] The later matter’s reasoning focussed on the Services Agreement in line with decisions of the High Court.[18] Uber said that the reasoning of the Full Bench in Gupta is relevant to the application of Mr Hussein. Uber submitted that the Commission should not depart from the reasoning in the decisions it has referred to.
(f) fairness between the person and other persons in a similar situation
Mr Hussein submitted, in his written material, that ‘there is no fairness in this situation’ and that the matter should have been resolved without having to ‘go to these extremes.’
Uber made no submissions on fairness as there is no other individual in a similar position.
CONSIDERATION
The delay in Mr Hussein making his application is substantial and no reasonable explanation is given for the extent of the delay. To the extent it might be suggested that Mr Hussein’s employment was terminated on 18 March 2023 I do not accept this and any advice Mr Hussein may have received to this effect is plainly wrong. Mr Hussein said while under oath before the Commission that he accepts that he was removed from the Uber app in 2017.
This weighs heavily against the grant of an extension of time.
Mr Hussein became aware that his account was deactivated in 2017 when it occurred. This also weighs against the grant of an extension of time.
I am satisfied that Mr Hussein took no action to dispute his ‘dismissal’ at the time it occurred in late 2017. Sending emails to Uber in 2023 does not alter this. Further, I accept that the information Mr Hussein suggested in correspondence to Uber that he had not been active on the Uber app for a number of years as he dealt with personal and family matter was plainly wrong and was an attempt to mislead Uber. I do acknowledge however that, under oath before the Commission, Mr Hussein was honest with the Commission as to why he had said what he did in correspondence to Uber. Further, I accept Mr Hussein’s evidence in this respect. That Mr Hussein had taken no action since 2017 to dispute his dismissal until a three week flurry of emails early in 2023 weighs against the grant of an extension of time.
Mr Hussein provided no material to the Commission as this time to suggest his claim had any merit. A consideration of previous decisions of the Commission in matters related to Uber and its driver or delivery partners strongly suggests that Mr Hussein’s claim could not succeed on further jurisdictional grounds – primarily that he was not an employee of Uber and hence is not eligible to make an unfair dismissal application. This weighs substantially against the grant of an extension of time.
I accept that no prejudice is claimed by Uber and consider this a neutral consideration.
No issues of fairness between Mr Hussein and others in a similar situation is advanced by Mr Hussein and is given no weight by me either for or against the grant of an extension of time.
CONCLUSION
Given the circumstances of this case I made my decision to not grant an extension of time and dismissed the application.
I make no adverse findings in respect of Andrew Edwards’ or the role he is said to have played in Mr Hussein’s application. I have, in these reasons, done no more than recount the evidence given by Mr Hussein. I acknowledge that Andrew Edwards did not appear at the hearing and has not been given an opportunity to respond to what Mr Hussein has said. Suffice it to say my conclusion would not be any different had Andrew Edwards’ involvement in the application process not been raised.
As mentioned above, the Commission has received over 50 applications for unfair dismissal from Uber driver or riders in strikingly similar form. Where submissions have been filed these too are in strikingly similar form to those filed by Mr Hussein. It is inconceivable that this has happened by chance. While I make no adverse findings in relation to any individual in my decision, I wish to note that the provision of incorrect information to (past) Uber drivers or riders that misleads them or is designed to mislead the Commission is a serious matter. Whether an application is made on behalf of an applicant or by an applicant themselves, there is an obligation to provide the Commission with information that is accurate and honest, to the best knowledge of the person lodging the application. Misinformation can provide unwarranted hope and unnecessary handling of an application which is best avoided for all those involved.
COMMISSIONER
Appearances:
A Hussein, Applicant
T Sebbens and C Ball of Ashurst with B Richardson for the Respondent
Hearing details:
2023.
Melbourne (by video):
May 18.
[1] This, of course, is not the totality of applications received by the Commission where Raiser Pacific Pty Ltd is the named respondent but rather is a specific, identifiable subset of applications
[2] Uber also objected to each application on the grounds that the applicant in question was not an employee but was a contractor and was not dismissed. This decision makes no findings in relation to these objections
[3] Two applications were dismissed by me pursuant to s.399A or s.587 of the FW Act respectively as the applicant in each matter failed to comply with directions or respond to the Commission in any way
[4] Form F1
[5] Note that all times on emails are GMT – dates have been converted to relevant Australian dates as advised by Uber
[6] Transcript PN70, 72, 75 and 137
[7] Transcript PN79
[8] Transcript PN90
[9] Transcript PN187-188
[10] Transcript PN83 and 85
[11] Transcript PN209-210
[12] The submissions filed by Mr Hussein shows the email trail from Andrew Edwards.
[13] Transcript PN162, 169, 180, 182 and 184
[14] Transcript PN196
[15] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39]
[16] See Kaseris v Rasier Pacific V.O.F. [2017] FWC 6610 (Kaseris); Pallage v Rasier Pacific Pty Ltd [2018] FWC 2579 (Pallage); Suliman v Rasier Pacific Pty Ltd [2019] FWC 4807 (Suliman), Asim Nawaz v Rasier Pacific Pty Ltd T/A Uber B.V. [2022] FWC 1189 (Nawaz), and most recently Jama v Rasier Pacific Pty Ltd [2022] FWC 2946 (Jama) at [19].
[17] Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd T/A Uber Eats [2019] FWC 5008; Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd t/a Uber Eats [2020] FWCFB 1698; (2020) 296 IR 246 (Gupta) at [69].
[18] CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Pty Ltd v Jamsek [2022] HCA 2.
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