Zohaib Hassan v Uber
[2023] FWC 1622
•5 JULY 2023
| [2023] FWC 1622 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Zohaib Hassan
v
Uber
(U2023/3233)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 5 JULY 2023 |
Application for an unfair dismissal remedy – directions and further directions – non-responsive and non-compliant applicant – unnotified travel overseas – s 587 motion to dismiss – belated attendance – jurisdictional objection – despite egregious non-compliance and non-responsiveness until 3 July procedurally unfair to dismiss given belated appearance – inappropriate to summarily determine jurisdictional issue – directions to be issued
On 17 April 2023 Mr Zohaib Hassan (the applicant or Mr Hassan) made an application to the Commission under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) to deal with an unfair dismissal dispute in relation to an alleged dismissal by Uber (Uber or the respondent).
Uber, by response dated 18 May 2023, opposed the application and raised a jurisdictional issue. It claimed that Mr Hassan was not dismissed as he was not an employee. It claims that for this reason, and given previously decided cases, the application has no reasonable prospects of success and should be dismissed summarily under s 587 of the FW Act. It also claims that the respondent “Uber” is not the correct name of the entity with whom Mr Hassan had a service agreement. The proper entity is said to be Raiser Pacific Pty Ltd.
Background
The matter was listed for conciliation before a Commission staff member on Thursday 15 June 2023. A Notice of Listing confirming the date and time of the conciliation was sent to the parties on 19 May 2023 at their nominated email addresses.
On 15 June 2023 a Commission staff conciliator attempted to telephone Mr Hassan four times to commence the conciliation. Mr Hassan did not answer on either occasion and the telephone was switched off and no voice message service available.
Despite the respondent being in attendance, the conciliation listed on 15 June 2023 ultimately did not take place as a result of Mr Hassan being unable to be contacted on the telephone number he provided.
The applicant did not attempt to contact the conciliator prior to or following the listed conciliation.
The matter was subsequently allocated to me.
On 22 June 2023 I issued directions and listed the matter for a directions hearing on 28 June 2023. The Notice of Listing stated:
“It is your responsibility to attend a proceeding; proceedings conducted by telephone or video conference are no exception. The Deputy President will not dial you into the proceeding. It is your responsibility to be present at the appointed time. Parties not attending proceedings risk the matter being dealt with in their absence.”
The Notice of Listing was sent to parties at their nominated email addresses.
My directions of 22 June 2023 directed Mr Hassan to advise chambers by 26 June 2023 whether the email address and telephone number provided in his application for contact purposes is correct or has otherwise been changed, and to attend the directions hearing listed for 28 June 2023.
Mr Hassan did not provide the advice as directed by 26 June 2023 or otherwise.
The directions hearing took place on 28 June 2023. Three representatives of the respondent appeared. No appearance was made by Mr Hassan or any person on his behalf. My associate attempted to contact Mr Hassan three times by telephone and each attempt failed. The telephone was switched off and had no voice message service.
The applicant did not attempt to contact my chambers prior to or following the 28 June 2023 directions hearing.
After the directions hearing on 28 June 2023, I issued the following Further Directions and listed the matter for a non-compliance hearing:
“[1] Further to the Commission’s Directions of 22 June 2023 and in light of the applicant Mr Hassan having failed to notify contact details as directed (Direction [2]) and having failed to attend the directions hearing of 28 June 2023 as directed (Direction [3]), the following FURTHER DIRECTIONS are issued:
[2] The application is listed for non-compliance hearing at 9.30am (ACST) Monday 3 July 2023 (by audio) at which time the Commission will on its own motion consider whether the application should be dismissed under s 587 of the Fair Work Act 2009 (Cth) (FW Act). At this hearing the application may be dismissed without further notice to the applicant or without further hearing on the ground that it is not being actively prosecuted by the applicant in accordance with minimum obligations required of the applicant or on such other ground as considered appropriate. A Notice of Listing is attached.
[3] Service of these Further Directions and Notice of Listing on the applicant is due notification of the s 587 proceedings for the purposes of the Fair Work Commission Rules 2013.
[4] The applicant Mr Hassan is DIRECTED to attend the non-compliance hearing listed at 9.30am (ACST) Monday 3 July 2023.
[7] The applicant Mr Hassan is FURTHER DIRECTED to advise the chambers of Deputy President Anderson (copied to the respondent) by close of business 5.00pm (ACST) Thursday 29 June 2023 whether the email address and mobile telephone number provided by the applicant in his application for contact purposes is correct or has otherwise been changed.
[9] Compliance with these directions is mandatory and a failure to comply is likely to disadvantage the party concerned including that applications may be dismissed without further notice under ss 587 or 399A of the FW Act.”
The Further Directions were sent to the nominated email addresses of each party.
Mr Hassan did not provide the advice as directed by 29 June 2023.
The respondent filed submissions, as directed, on 30 June 2023. It sought that the application be summarily dismissed under s 587 on the ground of alleged unresponsiveness and non-compliance with directions, and separately on the ground that the application has no reasonable prospects of success given the jurisdictional issue raised by Uber.
At 9.30am on 3 July 2023 when the non-compliance hearing was scheduled to commence Mr Hassan was not in attendance. Uber was. My associate again attempted to contact Mr Hassan three times by telephone and each attempt failed. The telephone was switched off and had no voice message service.
Mr Hassan joined the non-compliance hearing at 9.39am.
Mr Hassan had at 9.25am on 3 July 2023 sent the following email to my chambers:
“To respective fair work department I want to raise your attention I am overseas at the moment so I couldn’t contact via phone so I am coming back end of this month so kindly hold my hearing till end of this month thanks.”
At the non-compliance hearing, in answer to questions from myself, Mr Hassan:
advised that he was in Pakistan where he was two months into an intended three month holiday;
that after having his Uber account deactivated he travelled to Pakistan to be with friends and family;
that he currently intends to return to Australia at the end of July 2023 but does not currently have a return flight booked;
that he filed the application prior to travelling to Pakistan;
whilst in Pakistan he has not engaged international roaming on his mobile telephone despite having notified the Commission of that contact number;
whilst in Pakistan he has had access to the email account that he had notified the Commission in his application but because he was on holiday and wanted to relax he did not wish to engage with correspondence concerning his legal claim against Uber;
apologised for his non-responsiveness and non-compliance with directions and his prior non-attendance;
provided a variety of explanations for his non-responsiveness and non-compliance with directions including that he mistakenly believed the listed hearings to be Sydney time not Adelaide time, that he was stressed by having his Uber account deactivated, was on holidays, wanted to relax with friends and family, had not read emails about his application, speculated that the emails may have gone to his spam filter, and in recent days had celebrated the religious observance of Eid that occupied his time; and
undertook to be compliant and responsive in the future.
Consideration
I now deal with whether Mr Hassan’s application should be summarily dismissed under s 587 of the FW Act.
Statutory provisions
Section 587 provides:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
Non-compliance and non-responsiveness
Should the application be dismissed on the Commission’s own initiative for non-compliance and non-responsiveness to directions and obligations to attend hearings?
There is no doubt that Mr Hassan has, until appearing (late) at the 3 July 2023 non-compliance hearing, been non-responsive. He failed to respond to multiple telephone calls by the conciliator on 15 June 2023. He failed to attend the conciliation as listed on 15 June 2023. He failed to respond to multiple telephone calls by my associate on 28 June 2023. He failed to attend the directions hearing as listed on 23 June 2023. He failed to respond to multiple telephone calls by my associate on 3 July 2023.
There is also no doubt that Mr Hassan has been non-compliant with directions. He failed to advise of the correctness of his contact details by 26 June 2023, as directed on 22 June 2023. He failed to attend the directions hearing on 28 June 2023, as directed on 22 June 2023. He again failed to advise of the correctness of his contact details by 29 June 2023, as directed on 28 June 2023.
These failures by Mr Hassan have not been consequence free. They have caused the respondent to appear at its cost and expense on 15 June 2023 (for conciliation) and on 28 June 2023 (for directions) only to have those proceedings stymied by Mr Hassan’s non-attendance. It has caused the Commission to list matters and issue directions to deal with his non-responsiveness, thus expending public resources of a busy tribunal on his application in circumstances where other compliant and responsive litigants have had my attention diverted to deal with Mr Hassan’s non-compliance.
The explanations provided by Mr Hassan are unconvincing.
He has chosen to litigate knowing that he had decided to travel on a one way ticket to Pakistan for a prolonged holiday to relax with family and friends. Moreover, he has chosen to not engage international roaming on his mobile device despite advising the Commission of his mobile telephone as a contact point. Further, he has chosen to not read or respond to emails received from the Commission despite those being sent to his in-box.
Mr Hassan’s speculation that Commission emails may have gone into a spam folder is disingenuous given that the Notice of Listing he belatedly responded to on 3 July was sent to that same email address. Mr Hassan’s claim that he was confused by the Australian time zones is equally disingenuous. There is no record of Mr Hassan calling into Adelaide scheduled hearings half an hour earlier (Sydney time), as he claims. Moreover, the Notices of Listing issued by my chambers identified the time zone as central time. Mr Hassan’s application states his residential address as Adelaide. My directions indicated likewise. Nothing would suggest that he could have reasonably assumed an eastern States time zone for attendance at hearings.
Put simply, Mr Hassan has for more than two months recklessly failed to engage with the legal action he commenced in the Commission because he travelled overseas and wanted to have a prolonged and indeterminate break from Australian affairs. He could have but failed to advise the Commission of his whereabouts or availability.
This decision serves as a clear statement on the Commission’s part that filing an application then travelling overseas for extended holidays and without notice and expecting the Commission and the party being sued to hold themselves in abeyance until it suits the applicant traveller is wholly unacceptable, a selfish abuse of process and to be deplored.
This matter is an egregious case of an applicant failing, until 3 July 2023, to meet minimum obligations associated with actively and attentively prosecuting one’s claim.
Section 587 contains a general power to dismiss applications summarily. The power is able to be exercised on the Commission’s own motion (s 587(3)(a)). In this matter the power is enlivened given Mr Hassan’s non-compliance and non-responsiveness. Applications not being actively or responsibly prosecuted have no reasonable prospects of success (s 587(1)(c)).
Had Mr Hassan not emailed my chambers five minutes before the non-compliance hearing at 9.25am on 3 July 2023 and then entered the non-compliance hearing at 9.39am that day I would have had no hesitation in dismissing his application summarily under s 587. That said, the contents of Mr Hassan’s email (advising that he was “coming back end of this month so kindly hold my hearing till end of this month thanks”) is as unacceptable as it is naive.
However, belatedly indeed very belatedly, Mr Hassan has been responsive.
In the circumstances, despite being non-compliant and non-responsive for two and a half months without reasonable excuse, procedural fairness requires that Mr Hassan’s application not be summarily dismissed given his belated responsiveness and undertakings on the record to comply with what he has been clearly advised by me are his obligations as an applicant.
I observe that should Mr Hassan be non-compliant or non-responsive without reasonable excuse in the future then, given what has transpired, the discretion I have exercised not to dismiss summarily could readily be readily reversed.
No reasonable prospect of success
I now deal with the respondent’s application and submission that Mr Hassan’s unfair dismissal application be summarily dismissed under s 587 on the ground that it has no reasonable prospects of success given the jurisdictional issue raised by Uber. That jurisdictional issue is that Mr Hassan is said not to have had an employment relationship with Uber and therefore is not able, at law, to have been dismissed within the meaning of the FW Act.
In support of the application the respondent filed an affidavit from its legal representative appending the services agreement between Raiser Pacific Pty Ltd and Mr Hassan, and a variety of decided matters where it is contended that persons in the same circumstances as Mr Hassan were said to have been found not to be employees for the purposes of the FW Act.
For the following reasons, I do not consider it appropriate to summarily dismiss the application under s 587 on this ground.
Firstly, Mr Hassan has not had proper opportunity to put evidence or submissions in response. It would be procedurally unfair to determine the application in those circumstances.
Secondly, no assumption can or should be made that factual circumstances in one matter necessarily equate to the factual circumstances of an earlier decided matter. The relevant factual findings in this matter will be a product of the overall body of evidence presented. Submissions can be made on the relevance of earlier decided matters, either as to the relevance of facts or the application of facts to the law. The decided cases referenced by Uber may well be relevant to the determination of this matter, but it is premature to conclude that this is so.
Thirdly, the jurisdictional objection by Uber is a substantive jurisdictional objection based on what are said to be the relevant legal principles applied to jurisdictional facts. This contention is best dealt with as a jurisdictional matter heard and determined in the orthodox manner in advance of any merits hearing of applications under s 394, rather that as a summary application under s 587.
I decline to summarily determine the jurisdictional issue.
Conclusion
Despite the discretion to summarily dismiss the application under s 587(1)(c) on the ground of non-compliance and non-responsiveness being enlivened, it is not appropriate to do so given Mr Hassan’s belated responsiveness.
It is not appropriate to summarily determine the jurisdictional objection in the context of s 587 in circumstances where a full and procedurally fair hearing of the jurisdictional objection has not been conducted.
Disposition
The application will, in light of this decision, be listed for further directions. The directions hearing will be conducted by telephone at 2.15pm Wednesday 12 July 2023 (Australian Central Standard Time). I direct that Mr Hassan attend. A Notice of Listing is sent to the parties in conjunction with the publication of this decision.
At the further directions hearing, subject to Mr Hassan meeting his obligations as he has undertaken to do, I propose to list the application for hearing on the jurisdictional issue raised by Uber, namely that Mr Hassan was not dismissed because (it says) that he was not in an employment relationship with Uber.
At that directions hearing I propose to deal with the proper naming of the respondent.
At that directions hearing I propose to issue directions for the filing of materials on the jurisdictional matter.
The matter will proceed accordingly.
DEPUTY PRESIDENT
Appearances:
Mr Z Hassan on his own behalf
Mr T Sebbens with Ms N Mao with permission on behalf of Uber with Ms L Tan of Uber
Hearing details:
Adelaide (by telephone)
3 July 2023
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