Vishal Reddy v Rasier Pacific Pty Ltd - [2025] FWC 1050

[2025] FWC 1050

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Vishal Reddy
v

Rasier Pacific Pty Ltd

(U2025/2230)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 15 APRIL 2025

Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed

Introduction

This decision concerns an application by Mr Vishal Reddy (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

The Applicant alleges that he was employed as an Uber driver by the Respondent and he was dismissed on 28 May 2024. The Respondent contends that the Applicant’s account on the Uber Rides platform was deactivated on 23 May 2024.

The Applicant filed his unfair dismissal application in the Fair Work Commission on 26 February 2025.

The Applicant seeks an extension of time for the late filing of his unfair dismissal application. I have decided the Applicant’s request for an extension of time on the basis of the documentary material filed by the Applicant and the Respondent.

Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3).

The documentary material establishes that the Respondent informed the Applicant of its ‘final’ decision to deactivate his account on 23 May 2024. I therefore find that the Applicant was informed of his alleged dismissal, and it took effect, on 23 May 2024. Accordingly, the period of 21 days ended at midnight on 13 June 2024. The application was therefore filed approximately 8.5 months outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).

The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may 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.[2]

The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the…

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 1050
Decision Date: 15 APRIL 2025

CaseChat Overview and Summary

Vishal Reddy filed an unfair dismissal application against Rasier Pacific Pty Ltd, claiming he was dismissed from his position as an Uber driver. The application was filed approximately eight and a half months after the alleged dismissal took effect. The key legal issue was whether the Commission could extend the time limit for filing the unfair dismissal application due to exceptional circumstances. The Act permits an extension only if there are exceptional circumstances, which are defined as circumstances that are out of the ordinary, unusual, special, or uncommon. The Court assessed various factors, including the reason for the delay, the Applicant's awareness of the dismissal, actions taken to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness between parties.

After considering these factors, the Deputy President found that the Applicant did not provide an acceptable or reasonable explanation for the delay in filing the application. The Applicant's ignorance of the law and the 21-day time limit for filing unfair dismissal claims did not establish exceptional circumstances. Additionally, the Applicant's medical condition did not sufficiently explain the delay. The action taken by the Applicant to dispute the dismissal and the absence of prejudice to the employer were neutral considerations. However, the weak merits of the Applicant's claim and the balance of the relevant considerations weighed against finding exceptional circumstances. Therefore, the Deputy President concluded that the circumstances were not exceptional, and the application for an extension of time was dismissed. Consequently, the unfair dismissal application was also dismissed.

Orders