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

1. 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).

1. 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.

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

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

1. 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.

1. 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.

1. 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.

1. 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).

1. 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).

1. 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]

1. 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.

1. Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a)   the reason for the delay;

(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);

(e)   the merits of the application; and

(f)    fairness as between the person and other persons in a similar position.

1. 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.

Reasons for the delay

1. 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]

1. 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]

1. The Applicant has provided the following reasons for his delay:

(a)the existence of the COVID-19 pandemic;

(b)the death of the Applicant’s father;

(c)personal and health issues;

(d)the Applicant’s Crohn’s disease, chronic pain and other illnesses; and

(e)the Applicant was not informed of his deactivation and tried recently, without success, to communicate with Uber to sort the problem out.

1. 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 Applicant did not provide the Commission with any medical evidence concerning the extent of his medical issues or their impact on him over the almost four-year period from his deactivation on 29 September 2020 until he filed his unfair dismissal application on 16 September 2024. In light of the limited material before the Commission and given the long delay in making the application, I do not consider that the Applicant’s medical and personal issues establish an acceptable or reasonable explanation for much of the delay. I do not accept the Applicant’s contention that he was not informed of his deactivation. On 29 September 2020, the Respondent informed the Applicant, in writing, of its final decision to deactivate his account. The Applicant responded to that message from the Respondent by sending a series of written communications to the Respondent later on the same day. Further, although the Applicant recently engaged with the Respondent to try to sort the problem out, this does not explain much of the long delay in making the application.

1. The absence of an acceptable or reasonable explanation for much of the long delay in lodging the application on 16 September 2024 weighs against a conclusion that there are exceptional circumstances.

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

1. According to material filed, the Applicant became aware of his deactivation on the day it took effect (29 September 2020). The Applicant therefore had 21 days to lodge his unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal

1. I accept that the Applicant took steps to dispute his alleged dismissal by disputing his deactivation when it first occurred and recently trying to sort the problem out with the Respondent. This weighs in support of the Applicant’s contentions that there are exceptional circumstances.

Prejudice to the employer

1. 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.

Merits of the application

1. 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.

1. The Applicant contends that he was an employee of the Respondent, he undertook more than 3,500 trips for Uber, he had a driver rating of 4.91 with many great comments, his deactivation on the basis that he engaged in fraudulent behaviour is false and defamatory, and he was not given a proper reason for the deactivation of his account.

1. 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; 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).

1. 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.

1. 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

1. 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.

1. 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.

Conclusion

1. 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 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.

1. 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.

DEPUTY PRESIDENT

Appearances:

Mr Gellel did not appear.
Ms Reddy appeared for the Respondent.

Hearing details:

2024.
Newcastle (by telephone):
20 November.

[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

[2] Ibid.

[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]

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