Seifullah Nabizadeh v Rasier Pacific Pty Ltd
[2025] FWC 1341
•13 MAY 2025
| [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, who had acted as the representative in the related matters resulting in the prior relevant decisions regarding the correct name of the employer and whether Uber drivers were employees. Legal representation was granted pursuant to s596(2)(a) to aid in the efficient dealing with the matter with the jurisdictional issues.
Background
In summary terms, the Applicant had been an ‘Uber’ ‘driver partner’ with the Respondent since 2018.
The Applicant’s Uber account, as a result of a customer complaint, was deactivated on the basis that he had allegedly breached the Community Guidelines and his agreement with Uber. The Respondent stated that the Applicant had violated these Guidelines and the Agreement on three occasions. The decision to deactivate the Applicant’s access to the digital platform was reviewed by Uber after the Applicant had made a request for this deactivation review. The original decision was confirmed, and his account remained deactivated.
The Applicant stated that the dismissal had been unfair:
“I had internet issue while dropping off my rider and I asked the rider to cancel the trip as I am having internet issue but she didn’t where instead she had complained to uber Australia.
English is my second language and I don’t speak English really well, therefore she must have misunderstood me and I don’t know what she has understood of my asking her about cancelling her trip as the rider was safely picked up and dropped off at her destination where internet outage didn’t allow me to end the trip and I asked her politely to cancel the trip as my internet isn’t working as I have data outage from internet provider but she must have mis-understood me and have complain which I have no idea about.”
The Respondent stated that the Applicant was notified three days prior to the actual deactivation date. The Applicant refers to the dismissal date as when he was notified in writing that his account would be deactivated (which aligned with when he completed his last trip). Using the deactivation date, the application was filed 147 days out of time. The Applicant’s reasons for the late lodgement are detailed below, but primarily he stated he filed after waiting for the internal review of the Respondent’s decision on the deactivation of his account and when he learned that he could apply to the Commission.
Correspondence was sent to the Applicant seeking a response to the Respondent’s Form F8A in relation to the jurisdictional objections raised by the Respondent. The material included explanations of the various relevant Commission decisions regarding the determination that Uber drivers were not employees and the correct name for the Respondent entity. These decisions addressed similar facts to the Applicant’s role with the Respondent entity.
Further correspondence was sent to the Applicant stating that he had not responded to Chambers on the particularised jurisdictional issues and that he was to urgently respond or contact Chambers. In the absence of a response, a telephone discussion was then held between the Associate and the Applicant to explain the issues to be responded to. The Applicant confirmed his understanding of the issues to be responded to. However, another email was sent to the Applicant confirming the contents of the phone call and including further information to assist the Applicant to respond.
In the Applicant further not responding, it was deemed necessary for a further discussion to be held with the Applicant and his support person, to provide further explanation of the process and the relevance of the Commission’s applicable decisions made to date on Uber drivers. This telephone discussion was organised with a Farsi interpreter present as well as his daughter as his support person. The Applicant, through the interpreter, stated that he understood that the Respondent was denying that he was an employee based on the complaint made about him. Clarification was provided on the jurisdictional objections raised by the Respondent, including that the Respondent considered that the Applicant was not and never had been an employee, regardless of the complaint as was submitted in their Form F8A. The decisions of the Commission determining this were also referred to again as had formed part of the correspondence to him. It was raised also that an extension of time would be required to accept his application, and this was discussed through the interpreter and the support person that the applicant would have to provide any detail regarding his reasons for the late filing of the application. The call was concluded after it was confirmed by the interpreter to the Applicant that a response was required (on the jurisdictional issues as explained) and was to be emailed to Chambers.
The Applicant emailed Chambers with the following response in relation to the merits of the termination, but was not responsive as required to the jurisdictional matters:
“I was working for uber Australia for over 5 years and I was paying all my taxes and uber was charging its commissions the entire time for each trip there was no issue as we had agreed, one uber rider whom might had a bad day or didn't understand the internet problem I had at the time of drop off I politely asked her my internet data isn't working could please cancel the trip but she had not understood me and had complained to uber and as a result uber deactivated my uber driver account. I tried to explained to uber this before but they didn't listen and I need help to open my uber driver account so I could work. I don't want anything else. I asked uber to listen to the trips audio recording of if I had said anything that will clarify all misunderstandings that uber and the customer had. Please assist me in reactivating my uber driver account.”
The Respondent, through their representative, was given an opportunity to respond. The Respondent confirmed that it did not intend to provide a detailed response to the Applicant’s email setting out his response, but that it pressed the application for the Commission to dismiss the matter under sections 399A or 587(1). Later that day, the Applicant emailed Chambers with the same email he had sent above.
The matter was then listed for determinative conference between the parties with a Farsi interpreter. The Applicant had his son present as a support person.
Rasier Pacific Pty Ltd as the Proper Respondent
In Zhuge v Uber Australia Pty Ltd (Zhuge),[2] the Commission described the operations of ‘Uber’ as follows:
“[9] Uber is a brand name of the Respondent, which describes itself as operating within the technology industry. It operates a business model that can be described as facilitating passenger transport services, using a software application. The use of the software application is governed by a Services Agreement.
[10] There are three parties to the Services Agreement:
1. Uber B.V.;
2. Rasier Pacific Pty Ltd; and
3. the Driver.
[11] Uber BV is a private, limited liability company established in the Netherlands. It holds the intellectual property over the software application – the Uber Drive app – which facilitates requests for passenger transport from Riders and fulfilment of those requests by Drivers.
[12] Rasier Pacific Pty Ltd is an Australian company that provides the requests (what it terms ‘lead generation services’) to enable the Driver to receive those requests and provide the transport services.
[13] The Driver provides passenger transport services to Riders.”[3]
As is the case in the current application, in Zhuge the Applicant also named Uber Australia Pty Ltd as the Respondent. The reasoning in Zhuge is applicable to the similar circumstances of the current Applicant naming Uber as the Respondent. In the decision in Zhuge regarding the determination of the proper Respondent name being Rasier Pacific Pty Ltd it was set out as follows:
“[14] In his application, Mr Zhuge named Uber Australia Pty Ltd as the Respondent. However, the Respondent says that the proper Respondent is Rasier Pacific Pty Ltd as the entity named in the Services Agreement and is the remitter of all payments to Mr Zhuge. The Respondent says that Uber Australia Pty Ltd is a separate entity, which does promotions and marketing but does not appear in contractual documents and has no role to play in the contracting arrangements.
[15] Mr Zhuge did not agree that Rasier Pacific Pty Ltd is the proper Respondent and did not agree to change the name of the Respondent in his application. It is understandable why he did not think Rasier Pacific Pty Ltd was the Respondent. On all his tax summaries, the word ‘Uber’ appears in large font on the top left; on his tax invoices, the word ‘Uber’ appears in large font on the top right. While Mr Zhuge submitted that as Rasier Pacific Pty Ltd did not appear anywhere on information he received, he provided tax invoices where Rasier Pacific Pty Ltd ABN 27 622 365 833 appears at the bottom of the tax invoice. Also, Mr Zhuge confirmed that he viewed and signed the Services Agreement, which is the contractual document that governs the relationship. (footnotes omitted)
[16] I conclude that the proper Respondent is Rasier Pacific Pty Ltd and amend the name of the Respondent in Mr Zhuge’s application under s 586(a) of the Act, which gives the Commission the power to correct or amend applications and other documents.”[4]
Following Zhuge, and various other decisions of the Commission,[5] I similarly conclude that the proper Respondent is Rasier Pacific Pty Ltd. I adopt the same approach to exercise the discretion pursuant to s586(a) on the facts as set out, to amend the Respondent named in Mr Nabizadeh’s application to Rasier Pacific Pty Ltd.
Recent legislative amendments for review of eligible Unfair Deactivation
Amendments to the Act regarding unfair deactivations of ‘employee-like ‘workers have recently been introduced (s536LU of the Act). However, to be eligible for legislative review, the deactivation must have occurred on or after 26 February 2025. That is the Applicant has to have had regularly worked for 6 months from 26 August 2024, prior to the application being made. There are other eligibility requirements also to be complied with. However, on the basis of the required dates only, it is clear that the Applicant’s application does not fall within the consideration of these new provisions of the Act.
Legislative provisions – No dismissal
In terms of the jurisdictional tests, the Full Court of the Federal Court in the decision of Coles Supply Chain Pty Ltd v Milford[6] requires the Commission to determine whether an Applicant’s employment was terminated by the Employer and if so, the date of such. These findings are required, before the Commission’s jurisdiction under s.365 can be confirmed, to exercise powers under s.368 of the Act. The jurisdiction is enlivened on confirmation that a termination of employment has occurred.
Section 365 of the Act in relation to determining whether a dismissal occurred provides as follows:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
The meaning of “dismissed” is provided at s.386 of the Act:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
This decision deals only with the determination of the jurisdictional objections; that is, whether the Applicant was dismissed and whether an extension of time should be granted. This first issue initially requires a determination of whether the Applicant was an employee.
Consideration – Termination of employment
Under s.386 of the Act, one way that a dismissal can occur is when an employee’s ‘employment’ is ‘terminated on the employer’s initiative’. In other words, where it is the employer that brought about the termination, and this was not agreed to by the employee.[7]
It is well established by the Commission in prior decisions that Uber Driver Partners are not employees of the Respondent or their predecessor.[8] These cases deal with similar fact cases of other Uber driver applications relevant to the Applicant’s case. The Applicant failed to provide any evidence that would illustrate his relationship with the Respondent was any different to the principles established in the prior decisions as referenced; that Uber drivers are not employees. Reasoning for these determinations from some of these decisions also applicable to the circumstances of the current applicant, is set out below.
In Suliman v Rasier Pacific Pty Ltd,[9] the Commission in concluding that Mr Suliman was not an employee of Uber or Rasier Pacific Pty Ltd reviewed the Services Agreement and the circumstances of Mr Suliman as a driver as follows:
“[77] The indicia set out above do not lend themselves to a conclusion that Mr Suliman was an employee of Uber. There is no single item which by itself supports a conclusion that Mr Suliman was an employee and no group of indicia that could lead to this conclusion.
[78] A consideration of the apparent absence of the work-wages bargain in the relationship between Mr Suliman and Uber does not support a conclusion that Mr Suliman was “a servant” of Uber. Mr Suliman was not a casual employee of Uber and he could not otherwise be found to be an employee. As I have found above there are essential elements of the work-wages bargain that are not apparent in his relationship with Uber, even if the comparison is undertaken with a casual employee.
[79] The 2017 Services Agreement is not indicative of an employment relationship and I am not satisfied that Mr Suliman has demonstrated that the actual operations and relationship between Uber, the Driver and Rider was any different to that set out in the 2017 Services Agreement. Mr Suliman has not shown substantial differences between the 2017 Services Agreement and the reality of his work. In this respect there is little difference between the circumstances in this case and those considered in Kaseris and Pallage.
[80] I agree with Mr Suliman that there was a business relationship between himself as a Driver and Uber, but the existence of a business relationship does not create an employment relationship.”[10] (emphasis added)
In Nawaz v Rasier Pacific Pty Ltd T/A Uber B.V. the Commission also concluded that Mr Nawaz is not an employee of Rasier Pacific and discussed factors such as the nature and degree of control within the legal relationship between:
“[240] 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.”[11] (footnotes omitted) (emphasis added)
Further, in Zhuge, the nature of the relationship in terms of the fact that Mr Zhuge was not required to access the app nor perform any work was emphasised:
“[54] Considering the rights and obligations set out in the Services Agreement in the context of all the indicia, and particularly the 3 key or critical elements of employment as detailed in Gupta, I find that Mr Zhuge was not an employee of the Respondent. The Services Agreement did not require Mr Zhuge to access the app at particular times or perform any work at all, even if he did access the app. While the app did tell him to log off or take breaks, the Respondent did not require that he do so. That Mr Zhuge accessed the app regularly, worked conscientiously and long hours was irrelevant to the Respondent. Indeed, the Respondent was entirely indifferent about who Mr Zhuge was and responded to this case without any regard to the individual circumstances of Mr Zhuge.
[55] The unfairness of the Services Agreement and that Mr Zhuge did not have bargaining power to negotiate its terms is not relevant to the consideration of whether or not he was an employee.”[12]
In accordance with these decisions, I find that the Applicant was not an employee and that there was no dismissal; there being no employment relationship to terminate. Accordingly, the Applicant’s s.365 application is jurisdictionally barred and must be dismissed.
Legislative provisions – Extension of time
For completeness, the other limb of the jurisdictional objections is considered, that the application was filed outside of the 21 day statutory time limit. For the jurisdiction to be established for the Commission to deal with this s.365 application, it is necessary for the Applicant to obtain an extension of time to have his application accepted. The application was filed 147 days after the deactivation of the account. In assessing an extension of time, pursuant to s.366 (2) of the Act, for the Commission to allow for a further period of time, to accommodate the delay in filing, the Commission must be satisfied that ‘exceptional circumstances’ exist, taking into account the following criteria in s.366 (2):
“(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 like position.”
In the 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.[13] The Full Bench observed that 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.
The Act does not define ‘exceptional circumstances’ per se, but guidance can be taken from previous decisions. In the decision of 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.[14] ‘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.[15]
In the decision of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (Stogiannidis),[16] a Full Bench of the Fair Work Commission 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”[17]
Consideration – Extension of time
The following statutory criteria are to be considered in the application for the extension of time. The Commission may allow a further period if the Commission is satisfied that there are ‘exceptional circumstances’, taking into account the following criteria:
(2)(a) the reason for the delay
For this consideration there must be an acceptable or reasonable explanation for the delay.[18] As determined in Stogiannidis:
“What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.” [19] (emphasis added)
The Applicant’s reasoning for the delay was that at the time of submitting his application, he had only just found out that he could make an application to the Commission. The Respondent submitted that the Applicant did not provide an explanation for the delay in regard to the whole period of the delay being 147 days out of time and did not identify any ‘exceptional circumstances’ related to the delay in filing. Primarily in terms of the reason for the delay, the Applicant referred to waiting for the review of the decision to deactivate his account and also that he was not aware he could make this type of application. It has been taken into account also that English is not the first language of the Applicant.
However, I am not satisfied that the matters the Applicant relied upon provide reasons substantiating the delay in making his application. Submitting that he was ignorant of his ability to file an application, is not considered to be ‘exceptional circumstances’. It has been concluded by the Commission that ignorance of the timeframe is not a justified defence. This weighs against the granting of an extension of time.
(2)(b) any action taken by the person to dispute the dismissal
Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time.[20]
The Respondent stated that the Applicant had initially sent correspondence to the Respondent requesting a review of the deactivation of his account. The Applicant stated that he had tried to provide to the Respondent with his explanation for the incident he believed caused his account to be deactivated. In the circumstances, whilst this action taken to dispute the deactivation by the Employer of the Applicant’s account weighs in favour of the grant of the application given it showed for a period after the incident the Applicant took action to contest the deactivation, this only explains a small period of time taken to dispute the decision and therefore this does not support the granting of an extension of time.
(2)(c) prejudice to the employer (including prejudice caused by the delay)
Prejudice to the employer will be weighed against the granting of an extension of time.[21]
The mere absence of prejudice is not necessarily a factor that would point in favour of the granting of an extension of time. The Respondent company has a significant number of drivers, no prejudice to the Respondent was demonstrated. This matter is considered to be neutral.
(2)(d) the merits of the application
A conclusion cannot be drawn at this stage on the merits of the matter as to whether the facts relied on in the application, support a determination of the contraventions, as alleged. It would be premature to do so except that taking into account the determination that the Applicant is not an employee would overtake the merits of the matter.
In the decision of Telstra-Network Technology Group v Kornicki,[22] the Full Bench of the Australian Industrial Relations Commission 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.”
Significant evidence on the merits of an application is rarely provided on the consideration in the extension of time matter. Further, the Commission should not embark on a detailed consideration of the substantive case in the jurisdictional proceedings for the purpose of determining whether to grant an extension of time, to an Applicant to lodge her or his application.’[23]
Given a full analysis of the merits and testing of the evidence in relation to the reasons for deactivation of the account cannot be undertaken at this time, the matter is considered to be neutral in the current extension of time assessment.
(2)(e) fairness as between the person and other persons in a like position
This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past.
The Respondent submitted that the Commission has not granted an extension of time in similar cases and circumstances (although there has been similar fact decisions in situations of unfair dismissal matters and the principals are applicable to the current application) such as Waseem Khokhar v Uber Australia Pty Ltd[2022] FWC 3374; Ali Abdurahman Jama v Rasier Pacific Pty Ltd [2022] FWC 2946; Leonaire Lurihosi v Rasier Pacific Pty Ltd[2021] FWC 6349; and Junaid Muhammad v Rasier Pacific Pty Ltd [2024] FWC 153.
There is also a section 365 application on similar facts where an extension of time was not granted in circumstances where the application was made 96 days late.[24] In that case, Senese v Rasier Pacific Pty Ltd,[25] the Applicant was ‘waitlisted’ rather than ‘deactivated’, nevertheless Mr Senese was unable to work since he was ‘waitlisted’ and therefore this difference in status still had a similar effect in both of these cases. Mr Senese gave two reasons for filing out of time including that he made various attempts to engage with the Respondent about being waitlisted and that he was unaware of the timeframe for filing. In the Commission’s discussion of the reasons for delay, it was determined that:
“[22] While Mr Senese’s attempts to resolve his dispute directly with Rasier Pacific are laudable, they do not provide any reasonable explanation for delaying his general protections claim.
[23] In any case, I very much doubt whether Mr Senese’s attempts to resolve his car damage claim had any impact at all because, as he candidly acknowledged at the hearing of the matter, he was unaware of any deadline to make a claim in the Commission, let alone the 21-day limit.
[24] Nonetheless, mere ignorance of the statutory time limit is not an exceptional circumstance and nor is unfamiliarity with the process generally.
[25] The delay in the present case is lengthy –96 days –and I am not satisfied that any of the reasons, taken individually or in combination, for the delay in commencing his claim point to circumstances that would support a finding of exceptional circumstances.”[26]
I consider that the determination of similar fact matters weighs against granting the extension of time.
Exceptional Circumstances
Having considered the evidence and submissions related to each of the criteria as set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period to accept the application under s.366(2). If the Applicant was deemed to be an employee, no extension of time would be granted.
Conclusion
Accordingly, for the reasons as set out, the application is jurisdictionally barred as the Applicant is determined not to be an employee and consequently it is deemed that there has not been a termination of employment. This finding being a requirement arising from the decision in Coles Supply Chain Pty Ltd v Milford.[27] Further, the application is filed out of time and no extension of time is granted for a further period to accept the application under s.366(2). In accordance with the previous similar decisions as cited, Rasier Pacific Pty Ltd is named as the correct Respondent entity. For the aforementioned reasons the Respondent’s jurisdictional objections are upheld, and the application made pursuant to s.365 is dismissed.
I Order accordingly.
COMMISSIONER
[1] Pallage v Rasier Pacific Pty Ltd[2018] FWC 2579; Suliman v Rasier Pacific Pty Ltd[2019] FWC 4807; Jama v Rasier Pacific Pty Ltd[2022] FWC 2946; and Zhuge v Uber Australia Pty Ltd[2024] FWC 911.
[2] [2024] FWC 911.
[3] [2024] FWC 911 at [9]-[13].
[4] [2024] FWC 911 at [14]-[16].
[5] Pallage v Rasier Pacific Pty Ltd[2018] FWC 2579; Suliman v Rasier Pacific Pty Ltd[2019] FWC 4807; Jama v Rasier Pacific Pty Ltd[2022] FWC 2946; and Zhuge v Uber Australia Pty Ltd[2024] FWC 911.
[6] [2020] FCAFC 152.
[7] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 at [75]; see also Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200.
[8] This has been determined in multiple cases such as Kaseris v Rasier Pacific V.O.F.[2017] FWC 6610; Pallage v Rasier Pacific Pty Ltd[2018] FWC 2579; Suliman v Rasier Pacific Pty Ltd[2019] FWC 4807; Nawaz v Rasier Pacific Pty Ltd T/A Uber B.V. [2022] FWC 1189; Jama v Rasier Pacific Pty Ltd[2022] FWC 2946 [19] and Zhuge v Uber Australia Pty Ltd[2024] FWC 911 [54].
[9] [2019] FWC 4807.
[10] Suliman v Rasier Pacific Pty Ltd[2019] FWC 4807 at [77]-[80].
[11] Nawaz v Rasier Pacific Pty Ltd T/A Uber B.V. [2022] FWC 1189 at [240].
[12] Zhuge v Uber Australia Pty Ltd[2024] FWC 911 at [54]-[55].
[13] (2011) 203 IR 1, 6 [15].
[14] Ibid 5 [13].
[15] Ibid 5–6 [13].
[16] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [38].
[17] Ibid.
[18] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
[19] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [45].
[20] [2018] FWCFB 901 at [45].
[21] Brodie-Hanns v MTV Publishing Ltd (1995) 67IR 298, 299-300.
[22] (1997) 140 IR 1.
[23] Kyvelos v Champion Socks Pty Ltd, 10 November 2000 at [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899 at [37]-[38].
[24] Bradden Senese v Rasier Pacific Pty Ltd[2025] FWC 687.
[25] [2025] FWC 687.
[26] Ibid at [22]-[25].
[27] [2020] FCAFC 152.
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