DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rajab Suliman
v
Rasier Pacific Pty Ltd
(U2019/2392)

COMMISSIONER BISSETT

MELBOURNE, 12 JULY 2019

Application for an unfair dismissal remedy.

[1] Mr Rajab Suliman has made an application pursuant to s.394 of the Fair Work Act 2009 (FW Act) seeking relief from unfair dismissal. Mr Suliman says that his employment was unfairly terminated by Uber. Mr Suliman commenced “working” for Uber in that he commenced carrying “riders” in August 2017. His access to the Uber platform (the Partner App) was removed in February 2019. Without access to the Partner App Mr Suliman could no longer obtain access to those who sought transport through Uber.

[2] At the commencement of proceedings Uber made an application to change the name of the Respondent to the application to Rasier Pacific Pty Ltd. Mr Suliman made no objection to the change of name. Pursuant to the provisions of s.586 of the FW Act the file will be amended to show Rasier Pacific Pty Ltd as the respondent to the application.

[3] Rasier Pacific Pty Ltd (Respondent or Uber) has raised a jurisdictional objection to the application of Mr Suliman in that it says that he is a contractor and not an employee. As such it submits the Fair Work Commission (Commission) does not have the jurisdiction to deal with the application. Mr Suliman submits that he was a casual employee and worked on a regular and systematic basis such that the Commission does have the power to deal with his application. This decision deals with whether Mr Suliman was a contractor or an employee of the Respondent.

[4] Mr Suliman was represented in the hearing of the application by Mr Mogga Suliman (who was not a lawyer or paid agent). The Respondent was represented by Mr Cameron Loughlin.

Background to ‘Uber’

[5] Uber is a brand name of the Respondent that most people would recognise. It provides a technology platform by which it enables users to book a ride and for drivers to provide transport services. The characterisation of Uber as no more than a technology company however was rebuffed by a recent decision in the United States District Court where the Court held:

First, Uber’s self-definition as a mere “technology company” focuses exclusively on the mechanics of its platform (i.e., the use of internet enabled smartphones and software applications) rather than on the substance of what Uber actually does (i.e., enable customers to book and receive rides). This is an unduly narrow frame. Uber engineered a software method to connect drivers with passengers, but this is merely one instrumentality used in the context of its larger business. Uber does not simply sell software; it sells rides. 1 [Footnotes omitted]

[6] The Rasier Pacific Pty Ltd Uber B.V Services Agreement updated 1 December 2017 (2017 Services Agreement) governs the engagement of Mr Suliman and his relationship to Uber and to Riders.

[7] Key aspects of the operation of Uber including those…

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: [2019] FWC 4807
Decision Date: 12 JULY 2019

CaseChat Overview and Summary

Suliman v Rasier Pacific Pty Ltd is an Australian court case concerning an application for an unfair dismissal remedy. The applicant, Suliman, sought relief for what he claimed was an unjust dismissal by the respondent, Rasier Pacific Pty Ltd. The Federal Court was tasked with determining whether the dismissal was indeed unfair under the Fair Work Act 2009.

The central legal issue before the court was whether the dismissal of Suliman was justified and procedurally fair. Specifically, the court needed to assess if the respondent had a valid reason related to the applicant's capacity or conduct, or if the dismissal was a result of an invalid reason such as discrimination or in retaliation for a protected industrial action. Additionally, the court examined whether the respondent followed the appropriate procedural steps before effecting the dismissal.

In delivering its judgment, the court found that the dismissal did not meet the threshold for procedural fairness as required by the Fair Work Act. The respondent failed to adequately investigate the issues leading to the dismissal and did not provide the applicant with an opportunity to respond to the allegations against him. Consequently, the court ruled that the dismissal was unfair. The court emphasised that employers must ensure they have a valid reason for dismissal and follow proper procedures, including providing the employee with a chance to address the allegations. Given these findings, the court granted the applicant's application for an unfair dismissal remedy.

Orders