DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Michail Kaseris
v
Rasier Pacific V.O.F
(U2017/9452)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 21 DECEMBER 2017

Application for an unfair dismissal remedy; whether applicant an employee; application dismissed.

[1] Mr Michail Kaseris has applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. On 29 August 2016, he entered into a services agreement, including service fee addenda (explained further below), with Rasier Pacific V.O.F (the Respondent). The Respondent provides a software platform which essentially allows motor vehicle drivers to connect with members of the public requiring transportation services. The software platform is commonly known as “Uber”. The Applicant alleges that he was dismissed by the Respondent on 11 August 2017. 1

[2] The Respondent says that the Applicant’s application should be dismissed on the ground that the Applicant was engaged as an independent contractor, he was not an employee and was therefore not a person protected from unfair dismissal. 2 The Respondent says that all of the indicia of the relationship clearly illustrate that the Applicant was an independent contractor and that the Applicant’s application for an unfair dismissal remedy should therefore be dismissed.

[3] I have concluded that the Applicant is not an employee within the meaning of s.386(1)(a) of the Act and accordingly, is not able to pursue this application. The reasons for this conclusion are discussed in the latter part of my decision.

The operation of Uber

The “Uber” Brand

[4] The Respondent is an unlimited partnership that is registered in The Netherlands. 3 There are two partners operating under the Uber brand namely Uber Pacific Holdings B.V. (a private company registered in the Netherlands) and Uber Pacific Holdings Pty Ltd (a company registered in Australia).4 Uber Pacific Holdings B.V. is solely responsible for the day-to-day affairs of the Respondent.5

[5] Uber commenced its operations in approximately 2010 and is now one of the most widely used means of private transportation across the globe. Uber is the trademark name for the software application which is more popularly known as the “Uber App”. 6 The Respondent describes Uber as a technology based business premised on supplying lead-generation software and is in no way affiliated with providing transport services in Australia.7 Respectfully, the distinction drawn by the Respondent is one that is in reality, without a difference. Whilst it may be correct that the Respondent does not directly provide transport services in Australia, it and the technology upon which its business is based facilitate the provision of transport services. Moreover, it generates its revenue directly as a consequence of the transport services provided by drivers to members of the public who are brought together by the Uber App. To quote from a recent United States District Court decision concerning a similar issue to this application:

“First, Uber’s self-definition as a mere “technology company” focuses exclusively on the mechanics of its platform (i.e., the use…

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.

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Details

Case: [2017] FWC 6610
Decision Date: 21 DECEMBER 2017

CaseChat Overview and Summary

In the matter of Kaseris v Rasier Pacific V.O.F, the applicant, Mr Kaseris, sought an unfair dismissal remedy against the respondent, Rasier Pacific V.O.F. Mr Kaseris alleged that his employment with the respondent was terminated without just cause or reason. The Federal Circuit and Family Court of Australia was tasked with determining whether Mr Kaseris was indeed an employee of the respondent and whether his dismissal was unfair.

The central legal issue before the court was whether Mr Kaseris was an employee of the respondent, thereby entitling him to the protections afforded under the Fair Work Act 2009. The court examined the relationship between the parties, focusing on the nature of the work performed by Mr Kaseris, the degree of control exerted by the respondent, and the terms of any agreements between the parties. The respondent argued that Mr Kaseris was an independent contractor rather than an employee, and therefore not entitled to the protections under the Act.

The court determined that Mr Kaseris did not qualify as an employee of the respondent. The analysis revealed that the work performed by Mr Kaseris was of a casual and irregular nature, with limited control exercised by the respondent over his work. The terms of the agreements between the parties also indicated a contractor relationship rather than an employment relationship. Consequently, the court found that Mr Kaseris was not entitled to the protections of the Act and dismissed his application for an unfair dismissal remedy.

Orders