Seifullah Nabizadeh v Rasier Pacific Pty Ltd - [2025] FWC 1341

[2025] FWC 1341

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Seifullah Nabizadeh
v

Rasier Pacific Pty Ltd

(C2024/8741)

COMMISSIONER SPENCER

BRISBANE, 13 MAY 2025

Application to deal with general protections contraventions involving dismissal – jurisdictional objections – filed out of time – no termination of employment (not an employee) – Uber drivers not employees as per previous decisions and as determined ‘Uber’ not correct name of Respondent entity – jurisdictional objections upheld – no extension of time granted – application dismissed.

Introduction

Mr Seifullah Nabizadeh (the Applicant) made a General Protections application to the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with contraventions involving dismissal. The Applicant stated that ‘Uber’ terminated his employment after deactivating his digital platform after an alleged interaction with a customer. The Respondent objected that Uber was not the correct name for the Respondent entity. A line of decisions of the Commission[1] have determined that Rasier Pacific Pty Ltd (the Respondent) is the correct name of the Respondent entity in lieu of Uber. The reasoning in these decisions is set out later. These decisions as raised by the Respondent in their response were provided to the Applicant.

The Respondent, in completing its Form F8A – Response to general protections application, raised two jurisdictional objections that; the application was lodged 147 days outside the 21 day statutory time limit for filing and that the Applicant was not an employee (and consequently, was not dismissed). When an Applicant makes a s.365 application, the Commission’s jurisdiction to exercise powers under s.368 of the Act, is enlivened on confirmation that the employee has been dismissed and when the application is lodged within the 21 day timeframe or an extension of time has been granted by the Commission.

Further, the Respondent in its Form F8A also raised that the incorrect name for the Respondent was used in the application, and that the proper Respondent is Rasier Pacific Pty Ltd. The Commission has previously considered whether Uber drivers are employees and the correct company entity.

Directions were set for the filing of the parties’ responses in relation to the jurisdictional objections. There was difficulty in having the Applicant respond to these jurisdictional objections, he volunteered that his English was limited and further his focus was on the merits of the alleged dismissal. He was aggrieved at the customer complaint related to the dismissal, and in relation to the economic impact of the alleged dismissal on his family (of five sons and two daughters). A Farsi interpreter as requested was used at the determinative conference in the matter and the Applicant had at the conference and at various times of communicating with Chambers, his daughter or son present as his support person. Separate times for communication with the Applicant and his support person, had occurred prior to the determinative conference to ensure he understood the matters in dispute.

The Respondent sought to be legally represented by Ashurst Australia,…

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: [2025] FWC 1341
Decision Date: 13 MAY 2025

CaseChat Overview and Summary

In the matter of Seifullah Nabizadeh v Rasier Pacific Pty Ltd, the Fair Work Commission (FWC) was asked to deal with general protections contraventions involving dismissal. The Applicant, Seifullah Nabizadeh, claimed that his employment with the Respondent, Rasier Pacific Pty Ltd, was unfairly terminated by the digital platform ‘Uber’ after an alleged interaction with a customer. The Respondent objected to the application on jurisdictional grounds, arguing that the application was filed beyond the statutory 21-day time limit and that the Applicant was not an employee, and therefore, could not be dismissed. The Respondent also asserted that the correct name of the entity was Rasier Pacific Pty Ltd, not Uber.

The jurisdictional objections were that the application was filed 147 days outside the statutory time limit and that the Applicant was not an employee, which meant there was no dismissal. The Respondent also claimed the incorrect name of the entity was used in the application and that the proper Respondent was Rasier Pacific Pty Ltd. The Commission had previously ruled that Uber drivers were not employees and that Rasier Pacific Pty Ltd was the correct entity.

The Applicant, with limited English proficiency, focused on the merits of the alleged dismissal and the impact on his family. The Respondent sought legal representation to aid in dealing with the jurisdictional issues. The Applicant had been an Uber driver since 2018 and his account was deactivated due to an alleged breach of the Community Guidelines. The Applicant claimed that a misunderstanding led to the customer complaint and the subsequent deactivation of his account.

The Respondent argued that the Applicant had violated the Guidelines and the agreement on three occasions. The decision to deactivate the Applicant’s account was reviewed but upheld. The Applicant filed the application 147 days after the account deactivation, citing he was waiting for the internal review and learning about his rights to apply to the Commission.

The Commission found that the Applicant was not an employee, and therefore, there was no dismissal. Previous decisions established that Uber drivers are not employees, and this was applicable to the Applicant’s case. The Applicant did not provide evidence to differentiate his relationship with the Respondent from prior cases.

Regarding the extension of time, the Applicant’s reasons for the delay were not considered exceptional. He cited ignorance of his ability to file an application and waiting for the review of his account deactivation. However, ignorance of the timeframe is not a justified defense, and the Applicant’s actions to dispute the deactivation only partially explained the delay.

The Commission concluded that there were no exceptional circumstances warranting an extension of time. The application was filed out of time, and no extension was granted. The jurisdictional objections were upheld, and the application was dismissed. The correct Respondent was determined to be Rasier Pacific Pty Ltd, in line with previous decisions.

Orders