Kulwinder Brar v 13 Cabs

[2014] FWC 2666

[2014] FWC 2666

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kulwinder Brar
v
13 Cabs
(U2013/17322)

COMMISSIONER GREGORY MELBOURNE, 21 MAY 2014

Application for extension of time/Applicant not an employee.

Introduction

[1] Mr Kulwinder Brar has been driving a taxi since March 2010. However, in April 2013 his access to the Black Cabs Combined Pty Ltd (Black Cabs) dispatch system was withdrawn. Mr Brar subsequently sought to appeal this decision through various appeal mechanisms that exist in the taxi industry. However, on 2 July 2013 an Appeal Committee rejected his appeal and Black Cabs confirmed it would not be reinstating his access to the dispatch system.

[2] Mr Brar subsequently sought legal advice but says he was not told about the option of making an application to the Fair Work Commission until several months later when he sought advice elsewhere. He finally lodged an unfair dismissal application on 11 December 2013 and now seeks an extension of time to make that application.

[3] Black Cabs raises two jurisdictional grounds in response. It submits, firstly, Mr Brar was never its employee and so is not capable of being unfairly dismissed by Black Cabs. However, if the Commission rejects this ground and finds he was an employee of Black Cabs it submits there are no “exceptional circumstances” to justify an extension of time being granted.

[4] It is also noted that the Applicant’s Form F2 indicated that the Respondent is 13Cabs. However, the Form F53 received from the Respondent’s representative, and the subsequent written submissions provided on its behalf, indicate the actual Respondent is Black Cabs Combined Pty Ltd. 13Cabs is instead a brand name used to market an Australia wide telephone contact number. However, no application was received to amend the original application in this regard.

The Issues to be Determined

[5] Section 382 of the Fair Work Act 2009 provides, in part:

“A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period”. 1

[6] The first issue to be determined is whether Mr Brar was an employee of Black Cabs and a person protected from unfair dismissal under s.382 of the Fair Work Act and therefore capable of making an unfair dismissal application.

[7] Section 394 of the Act, then provides that an unfair dismissal application must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. It may allow a further period if satisfied there are exceptional circumstances to warrant a further period being granted.

[8] Therefore, the second issue to be determined, if the Commission finds Mr Brar was an employee of Black Cabs, is whether there are “exceptional circumstances” to warrant an extension of time being granted to make his application?

The Submissions and Evidence

[9] Mr Brar provided a brief written submission which dealt primarily with the reasons why his application was filed on 11 December 2013. He submits he was dismissed on 2 July 2013 and sought legal advice eight days later from a local firm of solicitors. He submits he was given poor advice from his legal representatives and was not told about the possibility of pursuing an application before the Fair Work Commission. He said his solicitor finally told him in October there was nothing more they could do for him.

[10] He then went to a local legal centre and was told about the Fair Work Commission and the possibility of making an unfair dismissal application. However, he submits he was also upset and distressed at the time about no longer being able to drive a taxi and was obtaining treatment from a psychologist to assist. As a result, he did not lodge his unfair dismissal application until 11 December 2013.

[11] Mr Brar’s written submissions did not deal with the jurisdictional argument raised by Black Cabs that he was not an employee of Black Cabs and therefore was not able to bring an unfair dismissal application.

[12] Black Cabs submits Mr Brar entered into a commercial relationship with the owner of a taxi vehicle in February 2012. This relationship involved him paying a fee to Black Cabs in consideration of access to its dispatch system. It submits this relationship should properly be categorised as one of bailor and bailee and at no stage was there any contractual relationship, let alone any employment relationship in existence. Black Cabs does, however, require compliance with certain requirements in order for Mr Brar to gain and maintain ongoing access to its centralised dispatch system.

[13] It submits that in the absence of any employment relationship Mr Brar is not a person protected from unfair dismissal under s.382 of the Fair Work Act 2009 and therefore has no ability to bring an unfair dismissal application.

[14] Black Cabs also relies on the recent Full Bench decision in James Voros v. Alan Dick 2(Voros), which reviewed a long line of authorities dealing with the nature of the relationship between a driver and taxi owner. In dealing with the matter before it the Full Bench concluded the fundamental elements of an employment relationship did not exist, and that drivers of taxi cabs owned by another person are not generally employees in an employment relationship but are instead bailees of the taxi cabs they drive.

[15] Black Cabs also submits that the nature of the relationship in the present matter is even more tenuous because Mr Brar was not required to share any of his takings with Black Cabs, nor did it exercise any control over when, where or how often he drove. It also submits it did not provide him with any entitlements that resembled employment entitlements.

[16] Black Cabs also made submissions about the issue of the application being lodged outside of the 21 day time period. However, given the decision I have come to in this matter I do not make reference to those submissions.

Consideration

[17] The recent decision in Voros has already been referred to. It also involved an unfair dismissal application and consideration of the nature of the relationship between a taxi cab owner and the driver of the taxi. The decision contains a detailed review of various decisions which have examined the nature of this relationship. The Full Bench stated at [13]:

“However, for there to be an employment relationship, certain fundamental elements must exist. An employment contract is, at its essence, a work-wages bargain, so that the ‘irreducible minimum of mutual obligation’ necessary to create such a contract is an obligation on the one side to perform the work or services that may reasonably be demanded under the contract, and on the other side to pay for such work or services.” 3

[18] The Full Bench then referred to the particular factors that led it to conclude an employment relationship did not exist. The taxi driver was not required to perform any work or provide any services for the taxi owner, and once he had taken possession of the taxi was free to perform as much or as little work as he liked. He provided a service to the customers without any reference to the taxi owner, and any contractual arrangement in place existed between the taxi driver and the customer, rather than as a result of any contractual obligation between the driver and the taxi owner. The Full Bench also noted the taxi owner did not make any payments to the driver for the provision of work or services, but instead the driver paid the owner an agreed percentage of the fares he collected. In conclusion, it found no evidence of the existence of an employment contract whereby one party is engaged and paid by the other for the provision of work or services. It held that the nature of the contractual relationship it evidenced:

“...is consistent with a long line of authority concerning the proper characterisation of the usual type of relationship between taxi owners and taxi drivers in Australia.” 4

[19] Black Cabs submits that the arrangements in place in the present matter should be categorised in the same way.

[20] The Full Bench found in Voros that a long line of authority “...has established a legal paradigm in respect of taxi owner-taxi driver relationships,” 5 being that the nature of the relationship is one of bailment between a bailor and bailee, rather than being an employment relationship between employer and employee. I am satisfied in all the circumstances that the nature of the arrangement between Black Cabs and Mr Brar should be viewed in the same way. I note, in particular, that he was not required to share any of the takings generated from customers with Black Cabs, and Black Cabs exercised no control over where and when and how often he drove the taxi. In addition, Black Cabs did not provide him with any of the pay and conditions or other entitlements that would normally be inherent in an employment relationship.

[21] Having come to this conclusion Mr Brar’s unfair dismissal application must be dismissed as being beyond the Commission’s jurisdiction. Mr Brar was not an employee in an employment relationship and is therefore unable to bring an unfair dismissal application against Black Cabs. Consequently, there is also no requirement to consider whether it is appropriate to extend the time for making application. The application is dismissed.

COMMISSIONER

Appearances:

The Applicant appeared on his own behalf.

Mr Jack O’Brien of The Australian Industry Group appeared on behalf of the Respondent.

Hearing details:

2014.

Melbourne:

17 April.

 1   Fair Work Act 2009 (Cth) s.382

 2   [2013] FWCFB 9339

 3   Ibid at [13]

 4   Ibid at [17]

 5   Ibid at [25]

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