Qasir Jawad Afzal v OLA Australia Pty Ltd

[2023] FWC 515

[2023] FWC 515

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Qasir Jawad Afzal
v

OLA Australia Pty Ltd

(C2022/7693)

DEPUTY PRESIDENT BEAUMONT PERTH,10 MARCH 2023

Application to deal with contraventions involving dismissal

1. Issue and outcome

1. On 19 November 2022, Mr Qasir Jawad Afzal (the Applicant) applied to the Fair Work Commission (the Commission) for it to deal with general protections contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act). The Act requires that the application be made within 21 days after the dismissal took effect[1] or within such further period as the Commission allows.[2] The Respondent, OLA Australia Pty Ltd, objected to the application on the basis that it was made outside the 21 day period prescribed by s 366(1)(a) of the Act and the Applicant was not its employee, and therefore had not been dismissed.

1. Presuming that the Applicant was dismissed, he states that his dismissal took effect on 1 November 2022. The Respondent disagrees, submitting that the Applicant’s last day of work was 29 July 2022, with the Applicant having been deactivated from the Respondent’s ‘platform’ on 17 August 2022.

1. To explain further, pursuant to the terms of the contractual agreement between the parties (the Driver Agreement), the Applicant was considered a ‘Driver’ who had access to the Respondent’s ‘portal’ or ‘platform’. The Driver Agreement states, amongst other matters:

OLA either owns or is a licensed operator of the Portal.

Subject to the Driver’s compliance with the representations and warranties and other terms of this Agreement, OLA has agreed to list the Driver and the Vehicle on the Portal to enable the Driver to provide the service of picking up and dropping off Customers and Goods from their chosen pick-up and drop-off locations selected by the Customer through the Portal using the Vehicles strictly in accordance with the terms of this Agreement (the “Transport Services”).

1. Unquestionably, the parties are in dispute over whether the Applicant was an employee. The Applicant clearly considers he was, and the Respondent disagrees. However, the first issue requiring attention is whether the application has been validly made.

1. Having noted that the Act requires the application to have been made within 21 days of the dismissal taking effect, s 366(1)(b) extends the period in which the application under s 365 must be made. The Commission may extend the period under s 366(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in s 366(2)(a)–(e) are considered.

1. In Herc v Hays Specialist Recruitment (Australia) Pty Ltd (Herc), the Full Bench of this Commission observed that the question of whether an application for an unfair dismissal remedy is made outside the statutory timeframe is not strictly a jurisdictional objection.[3] It is accepted that an unfair dismissal application made outside the time required in s 394(2) is not validly made unless and until a further period has been granted.[4] The proper approach is to first consider whether an application is made within the required statutory period and if not, whether a further period should be granted, before contending with an argument that there has been no dismissal.[5] This of course requires an assumption that an applicant is an employee for this purpose.[6]

1. Herc addressed the statutory period under s 394(2) and the accompanying ‘extension of time’ provision in s 394(3). These sections of the Act resemble s 366, sharing the same statutory period in which to make an application and factors which are considered when determining whether there are exceptional circumstances warranting an extension of time. However, it is noted that with respect to the term ‘exceptional’, the factors considered in making that determination are all but the same, with the exception that s 394(3) of the Act includes the factor of whether ‘the person first became aware of the dismissal after it had taken effect’. Nevertheless, it follows that the reasoning of the Full Bench in Herc is apposite here.

1. For the reasons that follow, I have found that the Applicant’s employment ended on 17 August 2022. It follows that the Applicant’s application was made 73 days outside of the statutory period. Having considered the factors in s 366(2) of the Act, I have found that the circumstances are not exceptional, and I do not consider it fair and equitable that time should be extended. I therefore decline to grant an extension of time under s 366(2). Accordingly, the Application is dismissed and an Order issues concurrently.[7]

1. Background

1. According to the Respondent, the Applicant was informed about the reasons for the deactivation of his account on and from 17 August 2022 to 19 November 2022 and beyond through the Service Blockers on his ‘Driver’s app’ as follows:

a)Service Blocker 1 – Invalid Vehicle Accreditation:

i.The first compliance failure trigger was recorded on 17 August 2022 at 1100 hours showing an “Invalid Vehicle Accreditation” status. The Applicant was notified of the Service Blocker 1 through the Applicant’s driver app as follows - “Please get in touch with DoT (clear dues) and update the document using the link below. We’ve also sent you an email with additional information.”

b)Service Blocker 2 – Invalid VEVO:

i.The second compliance failure trigger was recorded on 29 September 2022 at 1800 hours showing an “Invalid VEVO” status. The Applicant was notified of the Service Blocker 2 through the Applicant’s driver app as follows - “We are unable to confirm your right to work, please re-submit the latest proof of ID via app (e.g. Passport) and VEVO Document (If applicable) to continue driving with Ola.”

c)Service Blocker 3 – Invalid Passenger Transport Driver Accreditation:

i.The third compliance failure trigger was recorded on 16 November 2022 at 1800 hours showing an “Invalid Passenger Transport Driver Accreditation” status. The Applicant was notified of the Service Blocker 3 through the Applicant’s driver app as follows - “Your PTD Document is not available or has expired. To continue driving with OLA, please renew your PTD Document.”

1. The Respondent stated that the ‘Service Blockers’ were implemented due to the Respondent’s internal policy and standard operating procedure with respect to driver eligibility requirements in Western Australia. The Service Blockers were said to have prevented the Applicant from providing transport services until and unless the Applicant submitted the necessary documents enabling the Applicant to resume providing transport services on the Respondent’s platform.

1. The Respondent clarified that Service Blocker 1 was implemented and shown via the Applicant’s ‘Driver’s app’ on and from 17 August 2022, until the application was made.

1. The Respondent observed that the Applicant made only two document submissions on the ‘Driver’s app’ prior to making his general protections application, the first on 31 August 2022 and the second on 22 October 2022. On both occasions, the submission of documents failed to remove Service Blocker 1 and the failure trigger remained as the documents submitted were not in compliance with the Respondent’s internal policy and standard operating procedure with respect to driver eligibility requirements in Western Australia.

1. The Respondent noted that after Service Blocker 1 on 17 August 2022, the Applicant submitted to it documents on 31 August 2022. Thereafter, there were 50 days of inaction on the ‘Driver’s app’ until the second submission of documents on 22 October 2022. Regarding Service Blocker 2, the Applicant did not submit documents in response for 23 days and then on 26 October 2022 raised a ticket.

1. According to the Respondent, the Applicant already knew at the time of the Applicant’s contact with the Respondent on 26 October 2022 that the Applicant’s ‘Vevo document’ was invalid on and from 29 September 2022. This was because Service Blocker 2 was triggered at that date and remained on the Applicant’s ‘Driver’s app’.

1. The Respondent added that the Applicant was also aware that his account was deactivated not only because of the Applicant’s ‘Vevo document’, but also due to invalid documents under Service Blocker 1, which was triggered on 17 August 2022 and remained on the ‘Driver’s app’ at the date of the Applicant’s contact with the Respondent on 26 October 2022.

1. The Applicant gave evidence that in August 2022 he was busy with other stuff and could not log onto the Respondent’s ‘app’, so he regularly quit trying to do so.

1. On 29 August 2022, the Applicant bought a new car and uploaded his documents, presumedly via the Respondent’s ‘Driver’s app’, for the Respondent’s approval. The Applicant said that the Respondent asked for further documents, specifically his insurance. The Applicant said that he provided the Respondent with these documents two to three times and was sent a message to upload documents again and again. The Applicant said that after a lot of rejections of documents, he called the Respondent on 26 October 2022.

1. Having called the Respondent on 26 October 2022, the Applicant said that he became aware that the Respondent had been rejecting his ‘Vevo’ document, which he said was legitimate (presumedly the ‘Vevo’ document was said to be legitimate – not its rejection). The Applicant said that it was a shocking discovery that the Respondent was rejecting his documents because of his visa conditions. The Applicant continued that for the next four to five days he tried to convince the Respondent that there were no work limitations on his visa as far as he was living and working in Perth.

1. The Applicant said that the Respondent was rigid in its opinion and was not willing to rectify its ignorance. The Applicant noted that in his last conversation with the Respondent on 1 November 2022, the Respondent informed him that it could not open his account because of his visa conditions. On realising that the Respondent had suspended him without valid reason, he decided to make the general protections application.

1. Consideration

3.1      Date when the Applicant’s work came to an end

1. The Respondent considers that the Applicant was not dismissed and therefore there was no dismissal date. However, for the purpose of considering whether the application made is a valid application, I consider that the Applicant’s work came to an end on 17 August 2022. It was on this date that the Applicant’s account was deactivated on the Respondent’s platform and the Applicant was notified of the same. The evidence clearly shows that the ‘Driver’s app’ was the common way of communicating between the Applicant and the Respondent and on 17 August 2022, the Applicant was notified via the ‘Driver’s app’ of Blocker 1.

3.2      Extension of time

1. Consideration now turns to whether to extend the 21-day period within which the Application was to be brought.

1. In order for the application to proceed, it is necessary for the Applicant to obtain an extension of time to make the application under s 366(2). This section provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a similar position.

1. It has been said that proceedings not commenced in time should not be entertained.[8] However, the Act has given the Commission discretion to extend the prescribed period for the making of a general protections application involving dismissal. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (e) of s 366(2) are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion.[9]

1. In decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time.[10] The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

1. The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[11] 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 can be considered exceptional.[12]

1. In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of exceptional circumstances:

As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[13]

1. At the commencement of the hearing the parties were referred to s 366(2) of the Act, and the meaning of ‘exceptional circumstances’. Both were invited to make any further submissions in relation to the question of whether there were exceptional circumstances.

3.3      Reason for the delay

1. In Pottenger v Department of Caffiene,[14] the Deputy President observed that the Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable,[15] or a reasonable explanation.[16]

1. The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment.[17] Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though, it is a question of degree and insight.[18]

1. Having considered the evidence before me, I am not persuaded that there is a credible explanation for the entirety of the delay or for that matter part of the delay. The Applicant speaks of being busy in August 2022 without providing details regarding what occupied him during the latter part of the month (post 17 August 2022). While the period considered in circumstances where an application is made late is the period post the 21-day timeframe, regard can be had from the date of dismissal.

1. Then, during the period of September through to 26 October 2022, whilst aware that there were ‘Service Blockers’ in place, the Applicant took no steps to make an application with this Commission. Having purchased a car on 29 August 2022 and having received ‘rejections’ from the Respondent (that is an inability to use the Respondent’s platform or portal), the Applicant took no action during this period.

1. The Applicant purports having had his last conversation with the Respondent on 1 November 2022. In that conversation, the Applicant recalls that the Respondent informed him that it could not open his account because of his visa conditions. However, it was not until 19 November 2022 that the Applicant made his application.

1. On balance, and in the circumstances of this particular case, I find the reason for the delay is not an acceptable one. This weighs toward a finding of there not being exceptional circumstances.

3.4      Action taken to dispute the dismissal

1. It is evident that the Applicant sought to clarify the reason for his deactivation on the Respondent’s platform on 26 October 2022. Having identified that a reason for the deactivation was his ‘Vevo document’, the Applicant states that he continued for the next four to five days trying to convince the Respondent that he was not subject to work limitation. While the Applicant sought to clarify the reason for his deactivation on the Respondent’s platform, I am not persuaded that such actions, including trying to persuade the Respondent that he had the requisite work visa, constitute action taken to dispute his dismissal. This factor weighs against a finding of exceptional circumstances.

3.5      Prejudice to the employer

1. I cannot identify any particular prejudice that the Respondent would face if an extension of time is granted. This is notwithstanding the Respondent’s submissions that prolonged exposure to all manner of claims will place it at disadvantage. The Respondent submits that it has thousands of drivers on its platform and has only six staff in Australia. The Respondent states that it simply does not have the resources to cope with a prolonged exposure to such claims (presumedly the Applicant’s application).

1. However, the mere absence of prejudice is not itself a factor that would warrant the grant of extension of time. In the present case, I consider this to be a neutral factor.

3.6      Merits of the application

1. In Telstra-Network Technology Group v Kornicki,[19] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). The Full Bench said in respect to the merits of an application:

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.[20]

1. Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[21] The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded.

1. The Respondent submitted that the Applicant was not and has never been its employee. The Respondent explained to the effect that as a Driver the Applicant had entered into a Driver Agreement with the Respondent, which comprehensively contained the rights and obligations of each of the parties.

1. The Commission has conclusively determined on four separate occasions that ‘Driver Partners’ are not employees of the companies, such as, Rasier Pacific Pty Ltd (or Rasier Pacific V.O.F).[22] In Nawaz v Rasier Pacific Pty Ltd (Nawaz), the following was said:

The ultimate question is whether Mr Nawaz was employed, as an employee, by Uber. The assessment of the totality of the relationship between the parties by reference to the various indicia of employment as concerned with the rights and obligations established by the parties’ contract, is apposite. Given my findings as to the veracity of the Services Agreement and absence of any variation, the post-contract conduct is not relevant.

The factors within the legal relationship pointing away from employment are more significant than those that would lead to the opposite outcome sought by Mr Nawaz. This includes that the nature and degree of the control exercised is not consistent with the nature of employment. Further, Mr Nawaz’s role under the terms of the Services Agreement was not so subordinate to Uber’s business in the sense contemplated in Jamsek and Personnel Contracting that it can be seen to have been performed as an employee of the business.[23]

1. Nawaz applied the common law test for employment as recently confirmed by the High Court in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (Personnel Contracting)[24] and ZG Operations Australia Pty Ltd v Jamsek (Jamsek).[25] Those judgments set out that the characterisation of the employment relationship proceeds by reference to the rights and obligations of the parties under the terms of any written agreement between them – where the parties have comprehensively committed the terms of their relationship to a written contract or agreement. In Nawaz, the Commission in applying Jamsek and Personnel Contracting was satisfied that the ‘Services Agreement’ in that case was a comprehensive agreement and that the totality of the relationship, by reference to the indicia found in the agreement, was not one of employment.

1. Based on the materials before me, I have concluded that the Applicant faces a significant hurdle to show, more likely than not, he was an employee of the Respondent and therefore was dismissed. The Applicant’s contentions regarding whether he is an employee are unpersuasive. However, I am appreciative that this argument has not been fully explored and all the evidence regarding this issue has not, understandably, been received at this point. I therefore consider the factor neutral.

3.7      Fairness as between the applicant and other persons in a similar position

1. The parties did not draw my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

1. Conclusion

1. The ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each. Further, where exceptional circumstances are found, it must be determined whether it is fair and equitable that time should be extended.

1. Having regard to all of the matters that I am required to take into account under s 366(2), I am not satisfied that the requisite exceptional circumstances exist. No factors weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together. I do not consider it fair and equitable to extend the time in which the Applicant could make his application.

DEPUTY PRESIDENT

Appearances:

Mr Q Afzal, Applicant
Ms A Tan for the Respondent.

Hearing details:

2023.
Perth (by telephone):
7 March.

[1] Fair Work Act 2009 (Cth) s 366(1)(a).

[2] Ibid s 366(1)(b).

[3] [2022] FWCFB 234, [15].

[4] Ibid.

[5] Ibid.

[6] Ibid [17].

[7] PR751323.

[8] Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989, [20].

[9] Ibid [21].

[10] (2011) 203 IR 1, 6 [15].

[11] Ibid 5 [13].

[12] Ibid 5–6 [13].

[13] (2018) 273 IR 156, 165 [38] (emphasis in original).

[14] [2018] FWC 3403.

[15] Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, [9].

[16] Roberts v Greystanes Disability Services [2018] FWC 64, [16].

[17] Ibid [39].

[18] Ibid.

[19] (1997) 140 IR 1.

[20] Ibid 11.

[21] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37] – [38].

[22] Kaseris v Rasier Pacific VOF (2017) 272 IR 289 (Kaseris); Pallage (n 3); Suliman (n 3); Nawaz v Rasier Pacific Pty Ltd (2022) 317 IR 134 (Nawaz).

[23] Nawaz 187 [239] – [240].

[24] (2022) 96 ALJR 89.

[25] Ibid 144.

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