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

1. 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).

1. 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.

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

1. 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).

1. 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]

1. 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.

1. 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.

1. 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. I will now consider these matters.

Reasons for the delay

1. The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]

1. The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[5]

1. In his unfair dismissal application the Applicant provided the following explanation for the delay in lodging his unfair dismissal application in the Commission:

“I am making this application on the grounds that I was Uber Employee and was not presented with my work rights and dispute resolution mechanism by the UBER, which needs to be independent, unbiased, and contains contact details required by the state or territorial law for Public Transport services providers in Australia like UBER.

Reasons for Late Submission:

I had to travel out of the country to see my family members for their health and well being compassionate grounds.

I am not sure, what is the right Jurisdiction or State I need to apply my application with. I am based in ACT though.

I am not sure, if working with Uber in ACT, Uber is considered as Ride Sharing company, having local Business Representation like ABN or company number in Australia, and income provider, therefore considered as employer in Australia with the state and Territory law and respective Jurisdiction in Australia allows the workers to have their right to dispute and access to information upon which decision has been made.

These were my reasons, to follow up with Uber first, to provide me with details of what I require for un-fair dismissal, which they failed to provide. The Details of conversation with customer demonstrates that they failed to provide me detail of the conversation which was deemed as private.

I am born overseas, therefore my english Level is not Legal Level, and am not sure, if I am capable of representing myself against Uber.

There are numerous surveys I have filled in favour of Uber before to say, it’s a great company. You can request that evidence from them as well.

So therefore there is no employer prejudice as well.”

1. The Applicant declined the opportunity provided to him by the Commission to expand on his reasons for requesting an extension of time.

1. Having regard to all the circumstances, I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the delay in filing his unfair dismissal application. Making an initial approach to, and seeking information from, an alleged former employer before lodging an unfair dismissal application in the Commission does not provide an acceptable or reasonable explanation for a delay of more than 30 days. Nor does a lack of familiarity with the process for lodging an unfair dismissal application or the time within which such an application must be lodged.[6] Further, I am not satisfied on the information provided by the Applicant in his application that his need to travel outside Australia to see “family members for their health and well being [on] compassionate grounds” provided him with an acceptable or reasonable explanation for the delay in filing his unfair dismissal application. It is apparent from the application that the Applicant has a sufficient level of English to be able to prepare and lodge his unfair dismissal application in the Commission. I do not consider the Applicant’s “English level” to provide an acceptable or reasonable explanation for the delay. Finally, I do not consider that any failure on the part of any entity within the Uber group of companies to provide the Applicant with a statement concerning his “work rights” or an applicable “dispute resolution mechanism” gave the Applicant an acceptable or reasonable explanation for the significant delay in lodging his unfair dismissal application in the Commission.

1. The absence of an acceptable or reasonable explanation for the delay in lodging the application on 25 October 2022 weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

1. According to his application, the Applicant became aware of his dismissal on the day it took effect. The Applicant therefore had 21 days to lodge his unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal

1. I accept that the Applicant took steps to dispute his alleged dismissal by “follow[ing] up with Uber first”. This weighs in support of the Applicant’s contentions that there are exceptional circumstances.

Prejudice to the employer

1. I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

1. The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory. Indeed, as s 396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s 394(2) (which includes deciding whether a further period should be allowed under s 394(3)), before considering the merits of the application. Nonetheless some assessment of the merits is required because the merits of the application is a material consideration in determining whether there are exceptional circumstances. It is appropriate therefore that I make an assessment about the merits of the case based on the limited material that is available.

1. In his unfair dismissal application form, the Applicant effectively contends that his dismissal was unfair because no evidence was shared with him about the conversations which were allegedly inconsistent with Uber’s Community Guidelines, he promoted generic conversations with customers and did not discuss sensitive issues, customers usually started conversations with him, and a person might have unfairly perceived a word or sentence to be private or unsuitable.

1. The Respondent contends that the Applicant was not an employee. The Respondent submits that the Applicant, as a Driver Partner, was not and has never been an employee of Rasier Pacific Pty Ltd or any of its affiliates. It is contended that Driver Partners enter into a Services Agreement with Rasier Pacific Pty Ltd which is a comprehensive agreement containing the rights and obligations of each of the parties. The proper characterisation of the relationship between the parties under the Services Agreement is, so the Respondent submits, not one of employment. The Respondent contends that the Commission has conclusively determined on four separate occasions that Driver Partners are not employees of Rasier Pacific Pty Ltd or its predecessor entity (Rasier Pacific V.O.F.): see 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, Asim Nawaz v Rasier Pacific Pty Ltd T/A Uber B.V. [2022] FWC 1189; and see also Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd T/A Uber Eats [2019] FWC 5008 (Uber driver on the Uber Eats platform).

1. On the information presently available to the Commission, I am of the view that the Applicant has a weak claim insofar as he contends that he was an employee of an entity in the Uber group of companies; only an employee can pursue a claim for unfair dismissal. The decisions of the Commission on which the Respondent relies in relation to this point provide the basis for my opinion as to the merits of the case.

1. In all the circumstances, the merits of the Applicant’s unfair dismissal application weigh against his application for an extension of time.

Fairness as between the person and other persons in a similar position

1. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

1. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

1. Taking into consideration the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Although the Applicant took some action to dispute his dismissal, the Applicant does not have an acceptable or reasonable explanation for the delay in lodging his application, the merits of his claim are weak, and the balance of the relevant considerations are not of any significant weight. Having regard to all the circumstances, I do not consider this case to be out of the ordinary course, unusual, special or uncommon.

1. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed

DEPUTY PRESIDENT

[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

[2] Ibid.

[3] Long v Keolis Downer[2018] FWCFB 4109 at [40]

[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

[6] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14]

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