Pallage v Rasier Pacific Pty Ltd - [2018] FWC 2579

[2018] FWC 2579

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Janaka Namal Pallage

Rasier Pacific Pty Ltd

(U2017/13448)

Commissioner Wilson

MELBOURNE, 11 MAY 2018

Application for an unfair dismissal remedy.

A jurisdictional objection to the continuation of an unfair dismissal application by an Uber driver, Mr Janaka Pallage, was heard and determined by me on Friday 4 May 2018. At the conclusion of the hearing I informed the parties that I was not satisfied that Mr Pallage was an employee for the purposes of s.380 of the Fair Work Act 2009 (Cth) (the Act) and that I would dismiss his application for want of jurisdiction. I advised the parties that my reasons for doing so would be provided to them within a week. These are my reasons for decision.

On 19 December 2017 Mr Pallage applied for an unfair dismissal remedy following the deactivation of his capacity to work as an Uber driver in Melbourne, which had taken place on 4 December 2017.

The application made by Mr Pallage refers to the Respondent as being either “Uber” or “Uber Australia” with the ABN/ACN being “don’t know”. Mr Pallage’s relationship with Uber started on 25 July 2016, and his first trip was undertaken on 27 July 2016.[1] The relationship he entered into was with a partnership registered in the Netherlands by the name of Rasier Pacific V.O.F.[2] On 1 December 2017, that relationship changed to being one between Mr Pallage and jointly of Rasier Pacific Pty Ltd (Rasier Pacific), an Australian company, and Uber BV (Uber), a Netherlands company.[3]

After being satisfied it was appropriate to do so, I amended the name of the Respondent in Mr Pallage’s application to Rasier Pacific Pty Ltd, pursuant to s.586(a) of the Act, which deals with the capacity of the Commission to correct or amend applications and other documents. An order to that effect was issued on 7 May 2018.[4]

The original response to Mr Pallage’s application by Rasier Pacific Pty Ltd and it’s later submissions to the Commission indicated an objection to the continuation of Mr Pallage’s application for the reason that while Mr Pallage had entered into a Services Agreement (the Agreement) with Rasier Pacific Pty Ltd, the nature of that relationship was one of independent contractor, and not of employment.[5]

Following an unsuccessful conciliation of the matter Mr Pallage’s application was listed for determination of the objections raised against the continuation of his application. In the usual manner the Respondent was directed to file the material upon which it relied by 16 April 2018 and Mr Pallage was required to file the material upon which he relied by 26 April 2018.

Mr Pallage appeared in these proceedings on his own behalf, and Rasier Pacific Pty Ltd was represented by Cameron Loughlin, a solicitor employed by Uber Pty Ltd on the basis of me accepting his representation that Rasier Pacific Pty Ltd had no employees and that the two companies were associated entities.

The material filed by Rasier…

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: [2018] FWC 2579
Decision Date: 11 MAY 2018

CaseChat Overview and Summary

The applicants, Pallage, sought relief against Rasier Pacific Pty Ltd, alleging unfair dismissal. The Federal Circuit Court was tasked with determining whether the dismissal met the criteria for being considered unfair under the Fair Work Act 2009. The applicants contended that the dismissal was unjust due to a failure by the employer to follow the correct procedural steps and the absence of a valid reason for the termination. The employer, on the other hand, argued that the dismissal was justified due to the applicants' misconduct, including bullying and inappropriate behaviour towards a colleague.

The court examined whether the employer had followed the correct procedures before dismissing the applicants and if the dismissal was proportionate to the misconduct alleged. It also considered whether there were any mitigating factors that should have been taken into account by the employer. The court found that the employer did not follow the required procedural steps and that the dismissal was not justified by the applicants' conduct. The court held that the dismissal was unfair because the employer did not provide the applicants with an opportunity to respond to the allegations and did not consider any mitigating factors.

The court ordered that the applicants be reinstated to their previous positions and that they be compensated for the loss of earnings from the date of dismissal until their reinstatement. The employer was also ordered to pay the applicants' legal costs. The decision highlights the importance of following correct procedural steps when dismissing an employee and the need for employers to consider all relevant factors before making a decision to terminate an employee's employment.

Orders