Neil Aslan v Rasier Pacific Pty Limited
[2023] FWC 3023
•21 NOVEMBER 2023
| [2023] FWC 3023 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Neil Aslan
v
Rasier Pacific Pty Limited
(U2023/10429)
| DEPUTY PRESIDENT BELL | MELBOURNE, 21 NOVEMBER 2023 |
Application for an unfair dismissal remedy – extension of time application – Uber driver – application approximately 2 years and 5 months late – no exceptional circumstances – application dismissed.
On 24 October 2023, Mr Aslan made an application for an unfair dismissal remedy against the respondent, Rasier Pacific Pty Ltd. The respondent is better known by its trading name, Uber Pacific.
The respondent has made two substantive objections, being that the application was lodged beyond the 21-day period required by s 394(2) of the Fair Work Act 2009 (Cth) (Act) and that Mr Aslan was not an employee but was, instead, an independent contractor. If either of these objections is successful, Mr Aslan’s application must be dismissed.
Through correspondence with chambers, I issued directions to deal with the ‘extension of time’ issue first.[1] Through further correspondence, I also indicated that I considered the matter was capable of being dealt with ‘on the papers’ and neither party took a different view. Each party filed material in accordance with the directions issued. I have determined the matter ‘on the papers’ as previously indicated to the parties.
For the reasons that follow, Mr Aslan’s application must be dismissed.
Under section 394(3) of the Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are ‘exceptional circumstances’, taking into account:
(a) the reason for the delay; and
(b) whether the Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2] 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.[3] 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.[4]
Date of ‘dismissal’
While the respondent contends that Mr Aslan was not ‘dismissed’ (because he was not an employee), there is little material dispute about the operative date that Mr Aslan’s engagement with the respondent ended.
In Mr Aslan’s ‘Form F2’ application, he stated he did not “know the exact date” but indicated “2018-2019”. In his initial submissions by email dated 2 November 2023, Mr Aslan stated:
“Everything was going well until 2019, but I had to go overseas due to my mother’s illness. When I returned towards the end of 2019, I tried to log into my Uber account and discovered that it had been deactivated. Unfortunately, Uber closed my account without any warning or explanation. Shortly after, the COVID-19 pandemic started, bringing everything to a halt. We had hoped for improvement after COVID-19, but unfortunately, things did not improve.
On February 6th, 2023, my family was affected by an earthquake in Turkey, resulting in casualties and injuries. I had to go there to be with my family. I returned on August 10th, 2023, and wanted to start working again. I created a new account, but they closed my new account without any explanation again. As a result, I was unable to work during this time. Honestly, I had no knowledge of the Fair Work Commission or its existence. I didn’t know where to apply or what to do, and I couldn’t afford to hire a lawyer due to economic reasons. With two children to support, I am desperate to work again, please help.”
The respondent filed material indicating Mr Aslan’s Uber accounts were closed by 18 May 2021 and, at the latest, by 19 June 2021. That material contained written communications between Mr Aslan and the respondent. In short, Mr Aslan had written on multiple occasions complaining that his account had been closed. Consistently, the respondent indicated that all of Mr Aslan’s accounts had been closed because he had an associated partner account in contravention of the respondent’s policies. By way of illustration, on 19 June 2021, the respondent stated to Mr Aslan:
“Hello Anil
We’re sorry to hear about the trouble with your account.
We take the safety of all users of the Uber app seriously. When you signed up to be a driver-partner on the Uber platform, you agreed to our partner terms and to follow the Uber Community Guidelines.
Our systems have identified that you have an associated partner account that was previously deactivated. In accordance with our policies around multiple accounts, your access has been removed.
Note that this outcome is final. Contacting Uber support will not assist you in this matter.
Thank you for your understanding.”
Substantially similar communications had been issued previously, on 18 May 2021.
In further submissions to the Commission sent by Mr Aslan on 8 November 2023, he wrote:
“On July 30, 2019, I received an email from Uber regarding multiple accounts.
They requested that I choose only one account, to which I responded by specifying my preferred account. However, on June 11, 2021, Uber sent me another email informing me that my account had been deactivated due to having multiple accounts.
This happened just one day after I purchased a car to work on Uber Black/Uber Premier.
It is important to note that my account was deactivated during the COVID-19 pandemic, during which Uber was unable to establish any contract or employment relationship. For your information, I have attached screenshots of the emails received from Uber.”
I am satisfied that the operative date of any dismissal was 18 May 2021 and, at the latest, by 19 June 2021. While I note from Mr Aslan’s material that he purported to reestablish a further Uber account in August 2023, that did not disturb any of the history regarding his accounts from 2021.
Accordingly, Mr Aslan’s delay in filing his application is approximately 2 years and 5 months.
Statutory factors
I have considered the material filed against the statutory criteria under s 394(3) of the Act. The substance of Mr Aslan’s material has been set out above, as has s 394(3).
With reference to the criteria in s 394(3)(a), the reasons for the delay are factors that weigh heavily against the exercise of a discretion to extend time, having regard to the extensive delay. None of the explanations given provide a satisfactory explanation for any delay, let alone the period of delay that finally occurred.
One specific reason for the delay is that Mr Aslan did not understand that he might be able to make an application to the Fair Work Commission or that there was a 21-day period in which he should apply. While I am prepared to accept Mr Aslan had “no knowledge of the Fair Work Commission or its existence”, I do not consider that Mr Aslan’s ignorance of, or unawareness about, the statutory timeframes for commencing an unfair dismissal application, or even ignorance about such a right at all, is a factor that points to supporting a conclusion of exceptional circumstances. So far as that was a reason, it does not assist Mr Aslan and I make the same observation about lack of funds to hire a lawyer. Similarly, I also note that Mr Aslan wrote that his primary language was Turkish. While this was not a factor specifically raised by Mr Aslan, I have considered whether any lack of proficiency in English might have been a factor for delay, but I am not satisfied it explains the delay or any part of it. I note that Mr Aslan’s communications with the respondent and with the Commission were in English and were all satisfactory in that respect.
With reference to the criteria in s 394(3)(b), Mr Aslan was on notice in the clearest of terms by no later than June 2021 that his accounts had been permanently deactivated. These circumstances do not point to any finding of exceptional circumstances.
As to the factor in s 394(3)(c) of the Act, Mr Aslan does not provide any evidence of action taken to dispute his dismissal beyond the complaints made in May-June 2021 and, potentially, again in 2023 by attempting to re-register an Uber driver account. While I note these matters, I do not consider they weigh in favour of a finding of ‘exceptional circumstances’.
As to the factors in s 394(3)(d) and (f), neither party drew my attention to any prejudice to the respondent or matters of fairness between Mr Aslan and other persons in a similar position that would bear on the question of whether exceptional circumstances exist. I treat these factors neutrally.
As to the factor in s 394(3)(e) concerning the “merits” of Mr Aslan’s application, the respondent contends that Mr Aslan was never an employee. If correct, that is a complete answer to Mr Aslan’s unfair dismissal application. The respondent provided references to various decisions of the Commission where Uber drivers (and similar such occupations) were found not to be employees. There is considerable force in the respondent’s submissions and these are factors that would also point strongly against the overall finding of ‘exceptional circumstances’. However, perhaps with some considerable generosity to Mr Aslan, I am prepared to treat the merits of the application as a neutral factor between the parties and, in this respect, I note I was not provided with a copy of Mr Aslan’s contractual documentation.
While I acknowledge the potential impact upon Mr Aslan that is a result of the deactivation of his Uber driver-partner account, when having regard to all of the matters listed at s 394(3) of the Act, whether individually or in combination, I am not satisfied that there are exceptional circumstances of the kind required by the statute.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. Mr Aslan’s application for an unfair dismissal remedy is therefore dismissed. An Order[5] to this effect will be issued in conjunction with this decision.
DEPUTY PRESIDENT
Hearing details:
Matter decided on the papers.
[1] Herc v Hays Specialist Recruitment (Australia) Pty Limited[2022] FWCFB 234.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[3] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[4] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[5] PR768410.
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