Mr Venkatasai Madasu v Deliveroo Australia Pty Ltd
[2021] FWC 3526
•21 JUNE 2021
| [2021] FWC 3526 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Mr Venkatasai Madasu
v
Deliveroo Australia Pty Ltd
(U2021/4472)
DEPUTY PRESIDENT ANDERSON | ADELAIDE, 21 JUNE 2021 |
Application for an unfair dismissal remedy – extension of time – discretionary considerations – no exceptional circumstances – application dismissed
[1] On 24 May 2021 Mr Venkatasai Madasu (Mr Madasu) made an unfair dismissal application under section 394 of the Fair Work Act 2009 (the FW Act) in relation to an alleged dismissal by Deliveroo Australia Pty Ltd (Deliveroo or the company) which took effect on 11 March 2021.
[2] Mr Madasu’s application was made seventy-four days after the alleged dismissal took effect, being fifty-three days beyond the statutory time-limit.
[3] For Mr Madasu’s application to proceed it would require the Commission to grant an extension of time.
[4] Mr Madasu seeks that extension.
[5] Deliveroo oppose the application for an extension. It also opposes the application on jurisdiction and merit grounds. It claims that Mr Madasu was not an employee and thus not dismissed within the meaning of the FW Act.
[6] The matter was allocated to me to determine whether an extension of time should be granted. This decision deals only with that issue.
[7] I issued directions on 27 May 2021. Information about an extension of time and the factors the Commission is required to take into account were provided to the parties.
[8] Mr Madasu filed materials in advance of the hearing and the employer filed a response (F3) and written submissions.
[9] I heard the matter by telephone on 18 June 2021. Both parties were self-represented.
[10] Mr Madasu gave evidence.
[11] Following the hearing I reserved my decision.
Facts
[12] There are two material factual disputes.
[13] Firstly, Mr Madasu contends that whilst advised by Deliveroo of the intended termination of his supplier agreement by email on 4 March 2021, he did not open the email until a week later on 12 March 2021, one day after the termination took effect. Deliveroo say that it sent the notice of termination on 4 March 2021 and that any delay in opening the email (which it considers implausible) was of Mr Madasu’s making.
[14] Secondly, Mr Madasu contends that he did not receive various messages from Deliveroo prior to the alleged dismissal drawing attention to performance issues. Those matters relate to merit, and do not materially bear on the extension of time issue.
Mr Madasu’s work
[15] Mr Madasu has lived in Australia for approximately two years after arriving as a student. He has completed his studies and holds a temporary resident visa.
[16] Leaving aside whether Mr Madasu worked as an employee or independent contractor, he was contracted (via a supplier agreement) to provide services to Deliveroo from 20 August 2020 until the supplier agreement was terminated effective 11 March 2021.
[17] During the approximately six months of working for Deliveroo, Mr Madasu also worked for another business (Menulog) performing similar work.
[18] Deliveroo terminated the supplier agreement by written notice (email) on 4 March 2021 for alleged “poor service”. It read: 1
“Hi Venkatasai,
We recently wrote to you on two separate occasions on 3/2/21 and again on 17/2/21, because the Deliveroo Rider App was not used properly on a number of orders accepted on your rider account.
Since we last notified you, there have been further occasions where the App has been inaccurately used by you or someone using your account to update the status of a, delivery. Specifically, we have noticed multiple instances of your account accepting a delivery and then not making your way towards the restaurant to complete the service.
By continuing to input incorrect information about your delivery status into the App and failing to use the App in the way that it has been designed, you have provided poor service to Deliveroo which greatly impacts the operation of our network.
As a result, your rider account with Deliveroo will be terminated in 7 days time in line with the terms of your Supplier Agreement, on 11/3/21. In the meantime, you can continue to provide delivery services on our platform if you wish.
We will pay you au remaining fees for the delivery services provided up to and including the day your agreement ends.
Regards,
Deliveroo Australia” (emphasis in original)
Mr Madasu’s conduct post-notice
[19] Mr Madasu was emailed the notice of termination on 4 March 2021. I deal with the question of when he first read the email later in this decision.
[20] Mr Madasu felt ill during the week that followed. He did not work between 4 to 7 March 2021. Feeling somewhat better, he worked on 8 March 2021. He still felt ill between 9 to 11 March 2021 (inclusive) and did not work.
[21] On 12 March 2021 Mr Madasu felt better and decided to work. He tried to open his Deliveroo rider account but discovered he was logged out. He immediately wrote to Deliveroo: 2
“I’ve worked till Monday, then I fell sick for 3 days. And when I tried to login it shows I couldn’t login. Please help me as soon as possible.”
[22] Mr Madasu phoned Deliveroo and sought to discuss the matter. He was advised that as his rider account had been closed, he needed to communicate in writing. Between 14 and 17 March 2021 (inclusive) Deliveroo and Mr Madasu exchanged written emails about the termination.
[23] On 14 March 2021 Deliveroo responded to Mr Madasu’s email of 12 March 2021, re-stated its reason, and advised “we will no longer wish to engage your services” 3.
[24] On 16 March 2021 Mr Madasu responded: 4
“Hi, as you said I haven't received any emails regarding my performance, if I know that something I'm doing wrong.. I will definitely corrected it myself.. because this is the only source of income and to clear my bank education al loan. Please you can check once again.. that to which you have sent.. but I receive only pay emails and asking for feedback of APP but nothing like my performance.
I'm attaching the screenshots of 17th Feb and 03th Feb. if you have an email tracker even you can check from your side.. mother promise I haven't received except invoices for customer cancelled or restaurant closed payments on those days.
Please solve my issue please.. I have to pay l000$ a week. I'm highly depending on deliveroo .. and I fell sick this week..
If I had come to know anything about performance on app I could have made it better..”
[25] On 22 March 2021 Deliveroo replied: 5
“Hi Venkata
Thanks for the response.
We sent these emails on 03/02/21 and 17/02/21. We also sent push notification alerts through the rider application notifying you that we had sent you important emails and to check your spam folders.
Thank you for the time that you have worked with Deliveroo, however, due to the reason explained in the termination email we no longer wish to engage your services once your agreement is terminated on 11/03/2021.
Kind regards
Ben”
[26] No further communication occurred between Mr Madasu and Deliveroo after Deliveroo’s message of 22 March 2021.
[27] On the evening of 23 May 2021 (two months later), Mr Madasu was speaking to friends. He told them he wanted to go to the police and report his unhappiness with Deliveroo. He was advised by his friends that the police were not the place to go but that the Fair Work Commission could help him.
[28] On the morning of 24 May 2021, with the assistance of one of his friends, Mr Madasu discovered via a search engine that another Deliveroo worker (a Mr Franco) had recently won an unfair dismissal case in the Commission against Deliveroo. He then accessed the Commission website and decided to make an unfair dismissal claim. He located the unfair dismissal form (F2), and by email sent at 10.33am 24 May 2021, filed an unfair dismissal application.
[29] In the period between the termination (11 March 2021) and filing the application (24 May 2021) Mr Madasu continued to work for Menulog (about 9 – 12 hours per week). He also secured a full time fixed term (three month) job with Spotless as a cleaner.
Consideration
[30] Section 394(3) of the FW Act provides:
“394 Application for unfair dismissal remedy
…
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(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.”
[31] Mr Madasu’s application can only proceed if he can establish that “exceptional circumstances” exist within the meaning of section 394(3).
[32] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.6
[33] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.7 A decision whether to extend time under section 394(3) involves the exercise of a discretion.8
[34] I apply section 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”9
[35] The principles of Nulty have been cited with approval by subsequent full benches of the Commission.
Status of the application
[36] It is not in dispute that Mr Madasu’s unfair dismissal application is fifty-three days out of time and can only proceed if an extension of time is granted.
[37] I now consider each of the factors in section 394(3).
Reason for the delay (section 394(3)(a))
[38] The reason for the delay in lodging an application is a factor that must be considered. The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.10
[39] However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional.11
[40] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether the explanation for the delay is acceptable or credible.12
[41] Two reasons are advanced by Mr Madasu for the delay:
• he did not know of the right to make an unfair dismissal claim until told by friends on 23 May 2021:
“Recently my friend suggested that I can email the whole problem to the fair work commission and said they procedure (sic), so I am emailing you for the justice.” 13; and
• until he researched the issue on 23 and 24 May 2021, he was unsure about challenging the termination because he had assumed that would be costly and difficult.
[42] The explanations for the delay do not individually or collectively weigh in favour of granting an extension.
[43] While it appears that Mr Madasu is genuine in wanting the fairness of his alleged dismissal tested (including whether he did in fact receive warnings about under-performance, as alleged by Deliveroo), nothing occurred in the delay period to generate a heightened sense of unfairness. Mr Madasu’s view about unfairness was able to be formed inside the 21-day period and he did so, as evidenced by his communications with Deliveroo in the ten days between 12 and 22 March 2021.
[44] Mr Madasu says he was “shocked because Deliveroo is my main source of income” 14. It is neither exceptional that an employee is surprised by being terminated, nor exceptional that work from which they have been dismissed may have been their main source of income.
[45] I accept that Mr Madasu had no particular knowledge about the rights of Australian workers or about the Commission and its unfair dismissal jurisdiction until 23 May 2021. However, it is well established that ignorance of legal rights is not a sufficient reason for not taking action inside the statutory time frame 15.
[46] Mr Madasu had capacity to discuss his concerns with his friends well before 23 May 2021 but did not do so – he says because he considered it a private matter. He also had capacity to conduct research or make inquiries about his rights – but did not do so until 23 May 2021. That Mr Madasu was working for both Spotless and Menulog since the termination at a combined 47 hours per week no doubt limited his time to do so. However, I am not satisfied that these commitments were of such a nature to preclude him from taking reasonable steps to ascertain and enforce any rights he held against Deliveroo.
[47] The assumption made by Mr Madasu that taking action against a large and resourced company such as Deliveroo would be difficult and costly is not an acceptable reason for delay. Had Mr Madasu taken steps to ascertain information about his rights, he would have discovered (as he ultimately did) that filing an application is relatively straightforward, did not require a lawyer and is not high cost. Nor is it unusual that unfair dismissal action is taken by a less resourced person against a more resourced former employer.
[48] That Mr Madasu did not know of a decision by a single member of the Commission on 18 May 2021 concerning Deliveroo and a Mr Franco 16 until 24 May 2021 is no more relevant than his general lack of knowledge about unfair dismissal rights. Without suggesting that the counter factual would have been an acceptable reason for delay, there is nothing to suggest that Mr Madasu was waiting for this decision to form a view about whether a person working for Deliveroo had standing to bring an unfair dismissal claim.
[49] Mr Madasu acted promptly once he learned that a different Deliveroo worker had successfully litigated an unfair dismissal claim in the Commission and once told that that approaching the Commission presented a more correct avenue to pursue his complaint than the police.
[50] However, considered overall, the explanations for the delay, taken individually and collectively, do not weigh in favour of a conclusion of exceptional circumstances.
Awareness of the dismissal taking effect (section 394(3)(b))
[51] As noted, Deliveroo advised Mr Madasu in writing on 4 March 2021 that his supplier contract would be terminated effective 11 March 2021.
[52] I am satisfied, on the balance of probabilities, that Mr Madasu received this email on 4 March 2021 but did not open and read it until 12 March 2021. The nature of Mr Madasu’s communication with Deliveroo on 12 March 2021 suggests that a genuine attempt to log-in to his rider account in order to work had been made that day.
[53] Thus, Mr Madasu did not, in fact, learn of the termination until the day following it taking effect.
[54] However, in the circumstances of this matter, this does not weigh in favour of granting an extension of time.
[55] Firstly, the day following termination was well within the 21 day period for filing.
[56] Secondly, it was entirely of Mr Madasu’s making that he did not learn of the intended termination on 4 March 2021. He failed to open the email from Deliveroo for an entire week. Whilst I have some regard to the fact that Mr Madasu was feeling unwell for a large part of that week, opening an email is not a task of great difficulty. This is particularly so given that Mr Madasu acknowledged in his evidence that he considered emails from Deliveroo to be more important than other emails he received. Further, at the very least Mr Madasu was well able to open the email on 8 March 2021 given that he logged into his rider account and worked that day.
[57] In these circumstances, Mr Madasu’s awareness of the termination taking effect does not weigh in favour of a conclusion of exceptional circumstances.
Action taken to dispute dismissal (section 394(3)(c))
[58] Mr Madasu took immediate action to question Deliveroo about the termination on becoming aware of the cancellation of his rider account. His communications on 12 and 16 March 2021, and the related phone call, suggest an immediate sense of grievance.
[59] However, Deliveroo did not ignore his representations. Whilst not altering its position, it responded relatively promptly on 14 and then 22 March 2021. The 22 March 2021 response made it clear that the decision was unchanged.
[60] From that time, it was readily apparent that the internal representations being made by Mr Madasu had not borne fruit. Leaving aside that pursuing an internal complaint does not necessarily excuse a failure to comply with a statutory time frame for filing proceedings, there was still ten days after 22 March 2021 during which Mr Madasu could have filed a claim within time. In any event, he allowed more than fourteen weeks to pass after the dialogue with Deliveroo ceased before making a claim.
[61] The action taken to dispute the dismissal weighs slightly, but only slightly, in favour of extending time in that it cannot be said Deliveroo could have been, in objective terms, surprised that Mr Madasu was discontented. However, this consideration carries significantly less weight given the lengthy period that Mr Madasu then allowed to elapse once internal action taken to dispute the dismissal reached its conclusion.
Prejudice to the employer (section 394(3)(d))
[62] As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances. 17
[63] If time for lodgement is extended, Deliveroo would have to further respond to the claim, involving time and cost. It is however a resourced business. I do not accept Deliveroo’s submission that it will be prejudiced because it only keeps certain records that may be relevant to merit for a short period of time. No evidence was led in these respects. In any event, it is likely to be the company’s decision as to how long it keeps records, not the decision of those who work for it.
[64] To the extent there is any, the prejudice is not unique.
[65] However, the absence of prejudice would not itself be a reason to grant an extension.18
[66] This is a neutral consideration.
Merits of the application (section 394(3)(e))
[67] A hearing will necessarily concern the jurisdictional question raised by Deliveroo – whether Mr Madasu was an employee or independent contractor.
[68] This is a question of fact but involves a range of legal considerations.
[69] Mr Madasu’s case on merit and remedy concern how he went about performing work, and the impacts of losing his rider account.
[70] I have not conducted a jurisdictional or merits hearing and none of these issues have been canvassed in any detail. It is not possible to form a view, even a provisional view, on any of these issues.
[71] In the circumstances, this is a neutral consideration.
Fairness between persons in similar position (section 394(f))
[72] No evidence or submissions from Mr Madasu or Deliveroo raise issues of fairness with and between other persons.
[73] In the circumstances, this is not a relevant factor.
Conclusion on extension of time
[74] The period of delay (53 days) is considerable particularly bearing in mind the statutory time limit.
[75] Whilst Mr Madasu feels genuinely aggrieved, he waited an inordinate period after termination before filing his claim, did so only when he learned that another person had made a successful claim against Deliveroo, and his explanations for the lengthy delay are not convincing.
[76] While there may be some general public interest in having legal principles surrounding whether a worker in the gig economy is or is not an employee for the purposes of the FW Act, there is also public interest in having statutory time frames adhered to. Legal questions concerning the status of employees vis-à-vis contractors in the gig economy are and are capable of being determined by courts and tribunals on applications filed within time and which properly invoke jurisdiction. That a question of some potential public interest arises in Mr Madasu’s case does not make it unique or exceptional.
[77] There being no exceptional circumstances, the time for lodging the claim cannot be extended.
Conclusion
[78] As Mr Madasu’s application is out of time and as the time for lodgement has not been extended, it is unable to proceed further. The application is dismissed. An order19 to that effect is issued in conjunction with the publication of this decision.
DEPUTY PRESIDENT
Appearances:
Mr Venkatasai Madasu, on his own behalf
Ms Maansi Gupta-Khotkar, on behalf of, Deliveroo Australia Pty Ltd
Hearing details:
2021
Adelaide (by video)
18 June
Printed by authority of the Commonwealth Government Printer
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1 A1
2 A2
3 A3
4 A4
5 A5
6 Smith v Canning Division of General Practice[2009] AIRC 959
7 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
8 Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
9 [2011] FWAFB 975 “Nulty” at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
10 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2019] FWCFB 3288 at [35]-[45]
11 Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
12 Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
13 F2 paragraph 1.5
14 F2 at 1.5
15 Nulty at [14]
16 Diego Franco v Deliveroo Australia Pty Ltd[2021] FWC 2818
17 Brisbane South Regional Health Authority v Taylor [1996] HCA 25
18 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
19 PR730852
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