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 However, in April 2013 his access to the Black Cabs Combined Pty Ltd (Black Cabs) dispatch system was withdrawn.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…

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: [2014] FWC 2666
Decision Date: 21 MAY 2014

CaseChat Overview and Summary

Kulwinder Brar sought to appeal a decision of the Fair Work Commission (FWC) that dismissed his claim for unfair dismissal. The dispute arose from the termination of his employment as a driver for 13 Cabs. The Fair Work Court was the court that dealt with the appeal.

The key legal issue before the court was whether the applicant had demonstrated special circumstances that warranted an extension of time to lodge his appeal. Brar argued that he had not been formally employed by 13 Cabs but rather operated as an independent contractor. Therefore, he contended that the procedural requirements for unfair dismissal claims did not apply to him. The court needed to decide if Brar's status as a contractor exempted him from the usual time limits for lodging an appeal and whether his circumstances warranted an extension of time.

The court found that the applicant's status as an independent contractor did not exempt him from the procedural requirements governing unfair dismissal claims. It was determined that Brar's contractual arrangement with 13 Cabs was that of an employee rather than an independent contractor. Consequently, the time limits for lodging an appeal applied to him. The court held that Brar had not shown special circumstances warranting an extension of time. It was concluded that the application for an extension of time to lodge the appeal was dismissed.

The Fair Work Court dismissed the application for an extension of time to lodge the appeal. The court found that Brar's status as an independent contractor did not exempt him from the procedural requirements governing unfair dismissal claims. The application was dismissed with no orders for costs.

Orders