Aluong Gai v Uber Australia Pty Ltd

[2023] FWC 987

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Aluong Gai
v

Uber Australia Pty Ltd

(U2023/1467)

DEPUTY PRESIDENT O’NEILL

MELBOURNE, 26 APRIL 2023

Application for an unfair dismissal remedy – s.399A application – application dismissed

On 23 February 2023 Mr Aluong Gai made an application to the Fair Work Commission for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the FW Act). Mr Gai alleged that he was unfairly dismissed by Uber Australia Pty Ltd (the Respondent) on 3 February 2023.

On 22 March 2023 the Respondent filed a Form F3 with the Commission and indicated that Mr Gai’s account on the ‘Uber Rides’ platform was deactivated on 30 June 2021. The Respondent objects to Mr Gai’s application on the basis that the application was lodged more than 21 days after the alleged unfair dismissal took effect, that Mr Gai was not an employee, and that Mr Gai was not dismissed.

Directions were issued to the parties on 23 March 2023. The Applicant was directed to file material about the issue of whether the application was made within the prescribed time by 6 April 2023.

As no submissions, evidence or other correspondence was received from the Applicant, the matter was listed for a Non-Compliance Hearing on 13 April 2023 at 2.30 pm. Parties were directed to provide appearances by 4.00 pm 12 April 2023. No appearances were received from the Applicant. A reminder email was sent to him on the morning of 13 April 2023.

On 13 April 2023 the Commission unsuccessfully attempted to telephone Mr Gai twice to join the hearing. Voicemail messages were left asking Mr Gai to urgently contact the Commission.

The hearing continued in the absence of the Applicant. During the hearing, the Respondent made an oral application to have the application dismissed under s.399A of the FW Act.

On 13 April 2023 Mr Gai was informed of the Respondent’s application and directed to file material as to why his application should not be dismissed by 20 April 2023. This correspondence warned Mr Gai that should he fail to respond his application may be dismissed without further notice.

No material has been received from the Applicant to date.

Whilst the s.399A application was made orally and not in an approved form, pursuant to s.586 of the FW Act, I waive the irregularity regarding the form in which it was made.

I am satisfied that Mr Gai has unreasonably failed to comply with the Directions of the Commission by failing to file submissions in relation to his unfair dismissal claim and failing to attend the hearing on 13 April 2023.

Further, the Applicant has taken no steps to demonstrate that he wishes to pursue his unfair dismissal application against the Respondent.
In the circumstances, I exercise my discretion pursuant to s.399A(1)(a) of the FW Act to dismiss Mr Gai’s unfair dismissal application.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, Aluong Gai made an application to the Fair Work Commission under section 394 of the Fair Work Act 2009 for an unfair dismissal remedy against Uber Australia Pty Ltd. Mr Gai alleged that he was unfairly dismissed by Uber on 3 February 2023, however, the Respondent indicated that Mr Gai's account on the 'Uber Rides' platform was deactivated on 30 June 2021. The Respondent objected to the application on the grounds that it was lodged more than 21 days after the alleged unfair dismissal took effect, that Mr Gai was not an employee, and that he was not dismissed. Directions were issued to both parties on 23 March 2023, and a Non-Compliance Hearing was scheduled for 13 April 2023. Despite attempts to contact Mr Gai, he did not attend the hearing or file submissions in response to the Respondent's objections.

The primary legal issues in this case were whether the application was made within the prescribed time, whether Mr Gai was an employee, and whether he was dismissed. Additionally, the court had to consider whether Mr Gai had unreasonably failed to comply with the Directions of the Commission, and whether his application should be dismissed under section 399A of the FW Act. The Respondent made an oral application to dismiss the case, which the Deputy President accepted despite the irregularity in the form of the application. The court found that Mr Gai had failed to comply with the Directions of the Commission and had not demonstrated a wish to pursue his unfair dismissal application against the Respondent.

The Deputy President exercised their discretion under section 399A(1)(a) of the FW Act to dismiss Mr Gai's unfair dismissal application. The court was satisfied that Mr Gai had unreasonably failed to comply with the Directions of the Commission and had not taken steps to demonstrate that he wished to pursue his unfair dismissal claim. The court also found that the application was made more than 21 days after the alleged unfair dismissal took effect, and that Mr Gai was not an employee of Uber Australia Pty Ltd at the time of the alleged dismissal. Therefore, the court dismissed the application for an unfair dismissal remedy.

The final orders of the court were to dismiss Mr Gai's unfair dismissal application against Uber Australia Pty Ltd. The court found that Mr Gai had unreasonably failed to comply with the Directions of the Commission and had not demonstrated a wish to pursue his unfair dismissal claim. The court also found that the application was made outside the prescribed time and that Mr Gai was not an employee of the Respondent at the time of the alleged dismissal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established