Christopher Gellel v Uber - [2024] FWC 3218

[2024] FWC 3218

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Christopher Gellel
v

Uber

(U2024/10933)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 21 NOVEMBER 2024

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

Introduction

This decision concerns an application by Mr Christopher Gellel (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

The Applicant alleges that he was employed as an Uber driver by Portier Pacific Pty Ltd (Respondent). The Respondent contends that the Applicant’s Uber Driver Partner Account was permanently deactivated on 29 September 2020.

The Applicant filed his unfair dismissal application in the Fair Work Commission on 16 September 2024.

The Applicant seeks an extension of time for the late filing of his unfair dismissal application.

The Applicant’s request for an extension of time was listed for hearing, by telephone, at 9am on 20 November 2024. Both parties had been given prior notice of the hearing. The Respondent attended the hearing. The Applicant did not and was not contactable when called by my Associate.

By email sent to the Applicant at 9:30 AM AEDT on 20 November 2024, the Applicant was informed that his request for an extension of time would be decided on the basis of the following written material unless he objected to that proposed course of action by 10am on 21 November 2024:

1.The Applicant’s unfair dismissal application.
2.The Applicant’s four emails sent to the chambers of Deputy President Saunders at 2:53am, 3:06am, 3:18am and 10:14am on 19 November 2024.
3.The Respondent’s response to the Applicant’s unfair dismissal application.
4.The Respondent’s tender bundle sent to the Applicant (and the Commission) by email at 6:37pm on 18 November 2024.

The Applicant did not object to the proposed course of action. Accordingly, I have decided the request for an extension of time on the basis of the material set out in paragraph [6] above.

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).

The documentary material establishes that the Respondent informed the Applicant of its final decision to remove access to his account on 29 September 2020. This is the date on which the Applicant was informed of his alleged dismissal. Accordingly, the period of 21 days ended at midnight on 20 October 2020. The application was therefore filed approximately 1,427 days (almost four years) 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).

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…

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.

Continue reading Christopher Gellel v Uber

Details

AGLC: Christopher Gellel v Uber [2024] FWC 3218
Case: [2024] FWC 3218
Decision Date: 21 NOVEMBER 2024

CaseChat Overview and Summary

The Fair Work Commission has determined an application by Mr Christopher Gellel for an unfair dismissal remedy against Uber. Mr Gellel claims he was employed as an Uber driver by Portier Pacific Pty Ltd, which operates as Uber. The Respondent asserts that Mr Gellel's Uber Driver Partner Account was deactivated on 29 September 2020. Mr Gellel filed his unfair dismissal application on 16 September 2024, almost four years after the dismissal took effect, and seeks an extension of time on the basis of exceptional circumstances. The Deputy President, Saunders, did not grant the extension and dismissed the application.

The legal issues in this case concern whether the Commission should extend the time for Mr Gellel to file his unfair dismissal application under section 394(3) of the Fair Work Act 2009. The Act requires that the Commission must be satisfied that there are exceptional circumstances before it can extend the time for filing an application for unfair dismissal. The Deputy President considered the reasons for the delay, whether Mr Gellel became aware of his dismissal after it had taken effect, any action taken to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness as between Mr Gellel and other persons in a similar position. The Deputy President concluded that there were no exceptional circumstances because Mr Gellel did not provide an acceptable or reasonable explanation for the long delay, the merits of his claim were weak, and the balance of the relevant considerations did not support an extension of time.

The Deputy President decided that the case was not out of the ordinary, unusual, special, or uncommon, and there were no exceptional circumstances that would justify an extension of time. The Deputy President declined to grant an extension of time under section 394(3) of the Act. Consequently, the application for an unfair dismissal remedy must be dismissed. The Deputy President did not grant an extension of time and dismissed the application.

Orders