Hassan Saad Dhimbil v Rasier Pacific Pty Ltd
[2024] FWC 2908
•21 OCTOBER 2024
| [2024] FWC 2908 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Hassan Saad Dhimbil
v
Rasier Pacific Pty Ltd
(U2024/10993)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 21 OCTOBER 2024 |
Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed.
Introduction
This decision concerns an application by Mr Hassam Dhimbil (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act) against Rasier Pacific Pty Ltd (Respondent). Prior to his deactivation in mid-2021, the Applicant worked for the Respondent as an Uber Driver Partner.
The Applicant seeks an extension of time to lodge his unfair dismissal application in the Fair Work Commission (Commission).
I conducted a hearing, by telephone, on 21 October 2024 in relation to the Applicant’s request for an extension of time.
The Applicant’s alleged dismissal from his employment with the Respondent took effect on 1 June 2021. The Applicant lodged his unfair dismissal application in the Commission on 15 September 2024.
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 period of 21 days ended at midnight on 22 June 2021. The application was therefore filed more than three 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 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]
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.
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.
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
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]
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]
Relevant facts and submissions
In his unfair dismissal application, the Applicant gave the following explanation for his application being filed outside the 21 day period provided for in the Act:
“This law was passed a month before. That’s why I’m launching my case now.”
The Applicant also explained in his evidence that he did not have any knowledge of the law.
Taking into account all the circumstances, I do not consider that the matters relied on by the Applicant, considered individually or collectively, provide an acceptable or reasonable explanation for the more than three year delay in filing his unfair dismissal application. The recent legislative changes which permit independent contractors who are engaged by a digital labour platform operator such as Uber to challenge the fairness of their deactivation commenced operation on 26 August 2024. However, such claims may only be made if the employee-like worker has been performing work on a regular basis for a period of at least 6 months after 26 August 2024. The Applicant was deactivated in mid-2021. He does not qualify to bring an unfair deactivation case. Further, ignorance of the law does not provide an acceptable or reasonable explanation for a long delay in making an unfair dismissal application.
The absence of an acceptable or reasonable explanation for the more than three year delay in lodging the application on 15 September 2024 weighs against the Applicant’s contention that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was aware of his alleged dismissal on the day it took effect and therefore had the full period of 21 days to lodge his unfair dismissal application. This is a neutral consideration.
Action taken to dispute the dismissal
The Applicant sought to challenge his deactivation by sending emails to the Respondent on 20 August 2023 and 3 September 2024. Although these emails constitute steps to dispute his alleged dismissal, they were taken more than two years after his deactivation in mid-2021. In those circumstances, I consider this to be a neutral consideration in my assessment as to whether there are exceptional circumstances.
Prejudice to the employer
I cannot identify any significant 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
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.
The Applicant’s prospects of success in an unfair dismissal claim are weak. It has been held on numerous occasions by the Commission that Uber drivers are independent contractors (not employees), with the result that they are not entitled to bring unfair dismissal applications.[6]
Having regard to all the circumstances, I consider the merits of the Applicant’s unfair dismissal application to weigh against a finding that there are exceptional circumstances.
Fairness as between the person and other persons in a similar position
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.
Neither party made any submissions in relation to this factor. In all the circumstances, I consider this factor to be a neutral consideration.
Conclusion
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. The Applicant does not have an acceptable or reasonable explanation for the more than three year delay in lodging his unfair dismissal application in the Commission on 15 September 2024. Because the Applicant was deactivated by Uber in 2021, he does not qualify to bring an unfair deactivation claim under the recent amendments to the Act. The other relevant factors are either neutral of weigh against a finding of exceptional circumstances. Having regard to all the material before the Commission, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.
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 H. Dhimbil appeared for himself.
Mr T. Sebbens, solicitor, appeared for the Respondent.
Hearing details:
2024.
Newcastle (by telephone):
21 October.
[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]
[6] See, for example, Kaseris v Rasier Pacific[2017] FWC 6610; Asim Nawaz v Rasier Pacific[2022] FWC 1189
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