Waseem Khokhar v Uber Australia Pty Ltd - [2022] FWC 3374

[2022] FWC 3374

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Waseem Khokhar
v

Uber Australia Pty Ltd

(U2022/10321)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 23 DECEMBER 2022

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

Introduction

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

The Applicant alleges that he was employed by Uber Australia Pty Ltd and his dismissal took effect on 29 August 2022. Rasier Pacific Pty Ltd alleges in its F3 response that it is the proper respondent to the Applicant’s unfair dismissal application and the Applicant’s account on the Uber Rides platform was deactivated on 30 August 2022 following multiple reports of inappropriate behaviour that was inconsistent with Uber’s Community Guidelines.

The Applicant filed his unfair dismissal application in the Fair Work Commission on 25 October 2022.

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 period of 21 days ended at midnight on 19 September 2022. The application was therefore filed 36 days 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 dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.…

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: [2022] FWC 3374
Decision Date: 23 DECEMBER 2022

CaseChat Overview and Summary

Waseem Khokhar filed an unfair dismissal application against Uber Australia Pty Ltd in the Fair Work Commission, alleging that his deactivation from the Uber Rides platform constituted an unfair dismissal. Uber Australia Pty Ltd contested the application, asserting that Rasier Pacific Pty Ltd, not Uber Australia Pty Ltd, was the proper respondent, and that Khokhar's deactivation was due to multiple reports of inappropriate behavior that violated Uber's Community Guidelines. The crux of the legal issues in this case was whether the Fair Work Commission should grant an extension to Khokhar for filing his unfair dismissal application beyond the statutory 21-day period, as stipulated under section 394(3) of the Fair Work Act 2009. This extension could only be granted if the Commission found "exceptional circumstances" to exist.

The Deputy President of the Fair Work Commission, Saunders, examined several factors to determine whether these exceptional circumstances were present. These factors included the reasons for the delay in filing the application, whether Khokhar became aware of the dismissal post its effect, any actions he took to dispute the dismissal, the prejudice to the employer if the extension were granted, the merits of the application, and the fairness between Khokhar and other similarly situated individuals. Ultimately, Saunders concluded that none of the circumstances presented by Khokhar constituted exceptional circumstances. His reasons for the delay, such as needing to travel abroad or seeking information from Uber, were deemed insufficient to justify the late filing. Additionally, the weak merits of Khokhar's claim that he was an employee of Uber, as opposed to a Driver Partner, further undermined his case for an extension. Consequently, the application for an unfair dismissal remedy was dismissed.

In summary, the Fair Work Commission declined to extend the time for Khokhar to file his unfair dismissal application, leading to the dismissal of his application. This decision underscores the stringent requirements for establishing exceptional circumstances under the Fair Work Act 2009 and highlights the importance of timely compliance with statutory deadlines in employment disputes.

Orders