Liibaan Osman v Rasier Pacific Pty Ltd
[2024] FWC 3512
•17 DECEMBER 2024
| [2024] FWC 3512 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Liibaan Osman
v
Rasier Pacific Pty Ltd
(U2024/12583)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 17 DECEMBER 2024 |
Application for an unfair dismissal remedy – application made outside of 21-day time limit - no exceptional circumstances present – extension of time not granted – unfair dismissal application dismissed.
Introduction
This decision concerns an application made by Mr Liibaan Osman (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant, who claims to have been employed by Rasier Pacific Pty Ltd (the Respondent), alleges he was dismissed on 31 October 2019. The unfair dismissal application was lodged by the Applicant on 22 October 2024. The Respondent raises two jurisdictional objections in its Form F3. Firstly, as the Applicant was not an employee, he could not have been dismissed. Secondly, the application was not made within the 21-day statutory period required by s 394(2)(a) of the Act. This decision deals only with the Respondent’s second jurisdictional objection.
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 Fair Work Commission (the Commission) allows pursuant to s 394(2) of the Act. As the alleged dismissal took effect on 31 October 2019, the period of 21 days ended at midnight on 21 November 2019. The application was therefore filed 4 years, 11 months and 1 day (1,797 days) 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) of the Act.
The application was listed for conference/hearing on 16 December 2024 to deal only with whether an extension of time to file the unfair dismissal application should be granted. In advance of the conference/hearing, the parties filed material in accordance with directions issued. At the conference/hearing the Applicant appeared and gave evidence while the Respondent was represented by Mr Trent Sebbens of Ashurst who was granted permission to appear pursuant to s 596(2)(a) of the Act.
Background and evidence
The Applicant, who was engaged by the Respondent as a ‘Driver Partner’ states that he became aware on or about 30 October 2019 that his Uber driver account (the Account) had been deactivated. In a telephone call made to Uber on 20 October 2019, he was advised that his concern would be escalated and that he would be contacted within three days. He was subsequently advised as follows on 1 November 2019;
“Hi Liiban
Your account was flagged as part of an automatic review which identified unusual activity. The fraudulent activity constitutes a breach of the agreed Services Agreement. As a result, Uber has ended its partnership with you effective immediately.[1]
…”
Following the above advice to the Applicant on 1 November 2019, the following communication took place between the Applicant and the Respondent;
1 November 2019 – the Applicant advised the Respondent that he needed to work that night and over the weekend and sought advice on what the problem was and how he could fix it;[2]
3 November 2019 – the Applicant sent a further email expressing confusion about the link that was contained in the Respondent’s 1 November 2019 email and sought an explanation;[3]
4 November 2019 – the Applicant sent a further email to the Respondent seeking a contact person to talk with;[4]
6 November 2019 – the Applicant again wrote to the Respondent regarding deactivation of his Account on 31 October 2019. He explained his financial commitments, that if he had made a mistake he would address it and sought a further chance to work for the Respondent;[5]
12 November 2019 – the Respondent sent a further email to the Applicant in the same terms as the 1 November 2019 email, simply restating that the Applicant’s Account had been deactivated because of fraudulent activity;[6]
12 November 2019 – the Respondent advised the Applicant that it had passed on the matter to the relevant team which would be in touch with him shortly;[7]
12 November 2019 – in response to the Respondent’s email of 12 November 2019, the Applicant wrote to the Respondent claiming to have been a good driver and again stating if given ‘one last chance’ he would not make any further mistakes;[8]
13 November 2019 – the Respondent wrote to the Applicant explaining that in a recent audit, the Respondent had been unable to confirm that the real-time driver photo submitted was in fact the Applicant and that the photo of the person signing in did not match the driver photo profile. This was taken as an indicator of Account sharing, leading to deactivation of the Account;[9]
13 November 2019 – the Applicant responded by suggesting that his Account had been hacked and reassured the Respondent that if given a final chance he would ensure he used a stronger password;[10]
13 November 2010 – the Respondent emailed shortly after, again advising that the Applicant’s concern would be escalated and that a response would be provided within 3 days;[11]
14 November 2019 – the Respondent sent a further email to the Applicant in similar terms to the original 1 November 2019 email, again confirming deactivation of his Account because of fraudulent activity; and[12]
11 March 2020 - the Respondent sent an email to the Applicant in similar terms to the original 1 November 2019 email, again confirming deactivation of his Account because of fraudulent activity.[13]
The Applicant travelled to Somalia on 22 January 2022 and returned to Australia on 21 June 2022.[14]
Further communication between the Applicant and the Respondent took place as follows;
18 and 22 May 2023 – in apparent response to further contact from the Applicant, the Respondent again explained that deactivation of his Account was because of the Respondent’s inability to confirm the driver’s real time photo with the authorised driver profile photo;[15]
23 September 2024 – the Respondent wrote to the Applicant regarding his contact via Facebook and advised that it would contact him shortly. The Respondent sent a further email the same day advising that the matter had been escalated to the Respondent’s Community Operations team and that a member of that team would review the Applicant’s concern and reach out as soon as possible; and[16]
26 September 2024 - a member of the Respondent’s Senior Safety team wrote to the Applicant and advised that after reviewing the available information on the deactivation of the Account, the Respondent had decided to uphold the original decision to deactivate the Account because his use of the Account was in violation of the Respondent’s standards.[17]
Following conclusion of the hearing, the Applicant provided additional information on travel undertaken by him following the deactivation of his Account in 2019. The material filed indicates that the Applicant was also overseas in the period from 14 February 2024 to 18 September 2024 and again from 25 October 2024 to 27 November 2024. The latter period of travel is irrelevant to consideration of whether to grant an extension of time as that period of travel took place after he had filed his unfair dismissal application on 22 October 2024.
Should an extension of time be granted?
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.[18] 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.[19]
The requirement that there be exceptional circumstances before time can be extended under s 394(3) of the Act contrasts with the broad discretion conferred on the Commission under s 185(3) of the Act 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; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(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 now turn to consider these matters in the context of the application.
Reason for the delay
As earlier stated, for the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 21 November 2019. The delay is the period commencing immediately after that time until 22 October 2024, although circumstances arising prior to that day may be relevant to the reason for the delay.[20]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[21] An applicant does not need to provide a reason for the entire period of the delay although 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. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay.[22]
The Applicant explained that the delay in filing his application was due to his travel to Somalia, his ignorance of his rights to pursue his dismissal under the Act, the COVID-19 period of community and work restrictions, and his desire to resolve the matter directly with the Respondent rather than pursue a formal application.
Relevant to considering the Applicant’s explanation for failing to file an application until almost five years after deactivation of his Account is the chronology of events. It may be summarised as follows;
31 October 2019 – the Respondent deactivated the Account;
1 November 2019 to 14 November 2019 – various email communication between the Applicant and the Respondent took place in respect of the Account deactivation;
21 November 2019 – the 21-day period for the filing of an unfair dismissal application passed;
22 November 2019 to 10 March 2020 – no apparent action was taken by the Applicant in relation to his Account deactivation;
11 March 2020 – the Respondent wrote to the Applicant and again confirmed his Account deactivation;
12 March 2020 to 11 January 2022 – no apparent action was taken by the Applicant in relation to his Account deactivation;
22 January 2022 to 21 June 2022 – the Applicant travelled to Somalia before returning to Australia;
22 June 2022 to 21 May 2023 - no apparent action was taken by the Applicant in relation to his Account deactivation;
22 May 2023 – further correspondence was sent by the Respondent to the Applicant, again confirming the reasons for his Account deactivation;
22 May 2023 to 22 September 2024 - no apparent action was taken by the Applicant in relation to his Account deactivation;
14 February 2024 to 18 September 2024 - the Applicant travelled to Somalia before returning to Australia;
23 September 2024 to 26 September 2024 – correspondence was sent by the Respondent to the Applicant in response to contact from the Applicant via Facebook. The Respondent reaffirmed the Account deactivation decision would stand;
27 September 2024 – 21 October 2024 - no apparent action was taken by the Applicant in relation to his Account deactivation; and
22 October 2024 – the unfair dismissal application was filed.
What is readily apparent from the above chronology is that the Applicant took no formal steps to challenge his alleged dismissal from the time of his Account deactivation on 31 October 2019 until 22 October 2024 when he filed his unfair dismissal application. Apart from his absences overseas in the period from 22 January 2022 to 21 June 2022 and from 14 February 2024 to 18 September 2024, the balance of the period of delay of almost four years is explained by the Applicant as due to ignorance of his workplace rights, the Covid period of community and work restrictions and his desire to resolve the matter of his Account deactivation directly with the Respondent. I do not regard any of these explanations, save for his overseas travel, as providing a credible explanation for the period of the filing delay for the reasons that follows.
Dealing firstly with the Applicant’s claim that the delay in filing his unfair dismissal application was due in part to his ignorance of his rights under the Act. That explanation must be rejected as it is well established that ignorance of the statutory time period does not weigh in favour of a finding of exceptional circumstances. The Full Bench in Nulty v Blue Star Group Pty Ltd[23] (Nulty) said as follows when considering the equivalent extension of time provisions in a general protections dismissal matter before it;
“[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances.” In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.”
It follows from the approach stated by the Full Bench in Nulty which I intend to follow, that the Applicant’s claimed ignorance of his rights under the Act does not provide an acceptable explanation for any part of the delay in filing his unfair dismissal application.
Reliance of the Applicant on the COVID-19 period of community and work restrictions is also misconceived and unconvincing. Firstly, it does not explain the Applicant’s inaction between deactivation of his Account on 31 October 2019 and the onset of pandemic related community and work restrictions in Victoria in March 2020. Nor does it explain his inaction following the easing of pandemic related community and work restrictions towards the end of 2021. There was also no barrier to the Applicant making an application to the Commission during the 2020/2021 period as the Commission continued to function normally, albeit most conferences and hearings were conducted on-line. I consequently do not accept the COVID period of restriction provides a credible explanation for any part of the delay.
As to the Applicant’s claim that he failed to file his application at an earlier time because he wanted to resolve the matter of his Account deactivation directly with the Respondent, that explanation is also rejected. It ought to have been apparent to the Applicant shortly after his Account deactivation that the Respondent’s position was clear on the reasons for the deactivation and was unlikely to change. The Applicant’s choice to periodically revisit the issue with the Respondent over the course of the ensuing five years did not prevent him from making an application to the Commission at an earlier time. His desire to resolve the matter directly with the Respondent would have been more compelling had those attempts been sustained in the immediate wake of his Account deactivation. The fact that he allowed months and at time years to pass before again raising the issue of his Account deactivation with the Respondent diminishes the credibility of the explanation. I consequently do not accept this reason as explaining any part of the delay.
The Applicant has failed to advance an acceptable explanation for large parts of the delay in filing his application for an unfair dismissal remedy. Apart from the periods of his overseas travel from 22 January 2022 to 21 June 2022 and 14 February 2024 to 18 September 2024 when the Applicant was in Somalia, he has failed to advance an acceptable explanation for the balance of the period of the filing delay of almost four years. This weighs heavily against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
It was not in dispute, and I find that the Applicant became aware of his Account deactivation on 31 October 2019 which was the same day that it took effect. He therefore had the benefit of the full period of 21 days within which to lodge his unfair dismissal application. This weighs against a finding of exceptional circumstances.
Action taken to dispute the dismissal
The Applicant periodically questioned the deactivation of his Account with the Respondent, including in the immediate wake of deactivation of his Account in the period between 1 to 14 November 2019, and then in March 2020, May 2023 and finally in September 2024. No other action was taken by the Applicant to contest his alleged dismissal. The Applicant’s failure to formally challenge the decision of the Respondent to deactivate his Account weighs against a finding of exceptional circumstances.
Prejudice to the employer
The application was filed 1,797 days outside of the 21-day period. The Respondent did not contend that it would suffer prejudice except for the ordinary prejudice of making a jurisdictional objection. In these circumstances I regard this factor as a neutral consideration.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. When the Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group[24] it said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
As evidence on the merits is rarely called at an extension of time hearing, the Commission “should not embark on a detailed consideration of the substantive case”[25] for the purpose of determining whether to grant an extension of time to the applicant to make their application. I have adopted this reasoning.
The Applicant submits that he was not warned regarding his conduct before his Account was deactivated and nor did he receive a formal notice of dismissal. He also states that no evidence has been presented to him in support of the Respondent’s claim that there was fraudulent activity on his Account. The Respondent for its part submits that the Applicant was notified of the reason for his Account deactivation, that being the inability of the Respondent to confirm the driver identity by reference to the driver profile photo. The Respondent also advised the Applicant in November 2019 and subsequently that the driver identity confirmation issue was indicative of account sharing which was a breach of the Services Agreement entered into by the Applicant and Respondent. It is evident to me that the merits of the Application are likely to turn on contested points of fact which would need to be tested if an extension of time were granted, and the matter were to proceed. The Applicant has an arguable case, to which the Respondent raises a prima facie defence.
More fundamentally in considering the prospects of the Applicant’s case, the Commission has concluded on several occasions that Driver Partners of the Respondent are not employees. While I have not determined that jurisdictional point in these proceedings, it is noted that the Applicant’s circumstances appear identical to the circumstances considered in earlier matters before the Commission. See also the decision regarding a Driver Partner using the Uber Eats app in the matter before a Full Bench in Amita Gupta v Portier Pacific Pty Ltd t/a Uber Eats[26] (Gupta) in which the Full Bench found that Mr Gupta was not an employee. Based on the relevant case authority, including Gupta which has since been followed in multiple single member decisions of the Commission, and considering that the Applicant’s circumstances do not appear dissimilar to those previously decided matters, the Applicant’s case appears extremely weak.
Having regard to the above I believe the merits of the case do not tell for or against an extension of time although I do note that if I were to grant an extension of time the further jurisdictional objection raised by the Respondent would need to be dealt with.
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 brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Conclusion
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant and outlined above, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.
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) of the Act. Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Liibaan Osman, Applicant.
Trent Sebbens for the Respondent.
Hearing details:
2024.
Melbourne:
December 16.
[1] Exhibit R1, Email from Applicant to Respondent, dated 1 November 2019
[2] Ibid, Email from Applicant to the Respondent, dated 1 November 2019
[3] Ibid, Email from Applicant to Respondent, dated 3 November 2019
[4] Ibid, Email from Applicant to Respondent, dated 4 November 2019
[5] Ibid, Email from Applicant to Respondent, dated 6 November 2019
[6] Ibid, Email from Respondent to Applicant, dated 12 November 2019
[7] Exhibit R2, Email from Respondent to Applicant, dated 12 November 2019 at 12.36pm
[8] Ibid, Email from Applicant to Respondent, dated 12 November 2019
[9] Ibid, Email from Respondent to Applicant, dated 13 November 2019
[10] Ibid, Email from Applicant to Respondent, dated 13 November 2019
[11] Ibid, Email from Respondent to Applicant, dated 13 November 2019
[12] Ibid, Email from Respondent to Applicant, dated 14 November 2019
[13] Exhibit R3, Email from Respondent to Applicant, dated 11 March 2020
[14] Exhibit A1, Airline ticket confirmation
[15] Exhibit R4, Email from Respondent to the Applicant, dated 22 May 2023
[16] Exhibit R5, Email from Respondent to the Applicant, dated 23 September 2024
[17] Ibid, Email from Respondent to the Applicant, dated 26 September 2024
[18] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[19] Ibid.
[20] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[21] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[22] Ibid at [40].
[23] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975.
[24] Print PR3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[25] Kyvelos v Champion Socks Pty Ltd, Print T2421, 10 November 2000, at [14].
[26] [2020] FWCFB 1698
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