Ahtasham Ul Haq v Rasier Pacific Pty Ltd [2026] FWC 2580

1 Fair Work Act 2009 s 394—Unfair dismissal Ahtasham Ul Haq v Rasier Pacific Pty Ltd (U2026/2422) DEPUTY PRESIDENT BEAUMONT PERTH, 7 JULY 2026 Application for an unfair dismissal remedy – circumstances not exceptional – extension not granted – application dismissed – applications from Uber or Uber Eats drivers that date back multiple years – suspected use of generative Artificial Intelligence (gen AI) 1 Issues and outcome [1] On 5 March 2026, Ahtasham Ul Haq (the Applicant) made an unfair dismissal application after his work with Rasier Pacific Pty Ltd concluded on 30 November 2020, when he was deactivated from the Respondent’s digital labour platform. It is uncontroversial that the Applicant was an ‘Uber’ driver partner. [2] This application raises two jurisdictional issues. First, previous decisions of this Commission have found that driver partners of Uber1 are not employees and it appeared the Applicant pressed he was an employee. Second, the application was lodged some 1,900 days outside the statutory timeframe.2 [3] On 30 June 2026, directions were issued for the filing of materials to determine the jurisdictional issues and the Applicant was directed to file any material he wished to rely upon in respect of the jurisdictional issues. The directions explained to the Applicant that I would consider the factors in s 394(3) of the Fair Work Act 2009 (Cth) (the Act) when determining whether there were exceptional circumstances that justified the grant of an extension of time for filing the application. The directions provided a hyperlink to the factors considered under s 394(3) of the Act. [4] Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. This includes whether the application was made within the period required under s 394(2)(a) of the Act. Notwithstanding the jurisdictional issue of whether the Applicant was an employee and thus 1 Kaseris v Rasier Pacific V.O.F. [2017] FWC 6610 (‘Kaseris’), Pallage v Rasier Pacific Pty Ltd [2018] FWC 2579 (‘Pallage’), Suliman v Rasier Pacific Pty Ltd [2019] FWC 4807 (‘Suliman’), Nawaz v Rasier Pacific Pty Ltd [2022] FWC 1189 (‘Nawaz’). 2 Fair Work Act 2009 (Cth) s 394(2)(a). [2026] FWC 2580 DECISION -- 1 of 7 -- [2026] FWC 2580 2 protected from unfair dismissal, it appears uncontroversial that the Applicant’s work through the Respondent’s Uber application concluded on 30 November 2020. Further, this preliminary matter is the first of the four matters referred to in ss 396(a)-(d) of the Act that the Commission must decide before considering the merits of the application.3 I therefore considered it appropriate to consider this jurisdictional issue first. [5] Having regard to and weighed each of the matters I am required to take into account under s 394(3) of the Act, and having considered them collectively, I am not satisfied that there are exceptional circumstances. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. It follows that I decline to grant an extension of time under s 394(3). Accordingly, the unfair dismissal application is dismissed. 2 Extension of time [6] Under s 394(2)(b) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made, if it is satisfied that there are ‘exceptional circumstances’. The meaning of this term was considered in Nulty v Blue Star Group Pty Ltd (‘Nulty’), where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.4 It is accepted that exceptional circumstances can 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.5 [7] Section 394(3) of the Act provides that in determining whether there are exceptional circumstances, the Commission is to take into account the following: (a) the reason for the delay; and (b) whether the person first became aware of the dismissal after it had taken effect; and (c) any action taken by the person to dispute the dismissal; and (d) prejudice to the employer (including prejudice caused by the delay); and (e) the merits of the application; and (f) fairness as between the person and other persons in a similar position. 2.1 Reason for the delay [8] In respect of the first factor, the Act does not specify what reasons for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable,6 reasonable,7 or credible8 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 3 Gondal v Uber Australia Pty Ltd [2024] FWC 300, [7]. 4 [2011] FWAFB 975, [13]. 5 Ibid. 6 Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, [9]. 7 Roberts v Greystanes Disability Services [2018] FWC 64, [16]. 8 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]. -- 2 of 7 -- [2026] FWC 2580 3 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.9 [9] The relevant period required to be considered under s 394(3)(a) of the Act is the period after the 21-day timeframe for lodging the application.10 However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.11 [10] The Applicant, in his submissions, acknowledged that his ‘deactivation’ from the Uber platform occurred on 30 November 2020. The Applicant stated that he had been notified through the Uber application that he had been deactivated due to a rider complaint. [11] The Applicant asserted two main reasons for delay. The first, that the Applicant was seeking to resolve the matter internally through the Respondent in the hope that reinstatement of his account would be possible, and the second reason - the Applicant’s lack of legal knowledge combined with the fact that English was his second language. [12] With respect to the first reason, the Applicant submits that he pursued his deactivation internally through appeal and review mechanisms and sought clarification regarding the allegations made against him. The Applicant did not put any evidence or material before the Commission of specific attempts to resolve his ‘deactivation’, only submitting that: For several years I actively pursued every avenue available to me within Uber. This included: • repeated in-app support requests; • numerous email communications; • written correspondence; • requests for review; • requests for further information regarding the allegation; [and] • requests that Uber reconsider its decision. [13] In Gao v Department of Human Services, the Full Bench of Fair Work Australia accepted that a delay due to an employee seeking an internal resolution of the dismissal was not a reasonable explanation for the delay: ...Furthermore, Mr Gao’s request that DHS further review the dismissal did not constitute a circumstance excusing the delay in lodging the application. A further review could have been sought even after an application had been lodged.12 [14] The Applicant’s argument that the delay was in part caused by his pursuit of review mechanisms offered by the Respondent, must be considered against the context of a delay period that is excessive. In my view, a request for a further review by the Respondent of the deactivation of the Uber account does not constitute a circumstance that excuses the delay in 9 Ibid. 10 Long v Keolis Downer [2018] FWCFB 4109, [40]. 11 Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287, [12]. 12 [2011] FWAFB 5605, [10]. -- 3 of 7 -- [2026] FWC 2580 4 making the unfair dismissal application. It was, at all material times, open to the Applicant to make the enquiries he did and seek a review of the ‘deactivation’ whilst simultaneously pursuing the ‘relevant’ application in the Commission, should there have been one open to him. [15] Regarding the Applicant’s lack of legal knowledge and representation, in the decision of Nulty, the Full Bench considered the statutory time limit in the context of the discretion to extend time for making such applications on the existence of ‘exceptional circumstances’. The Full Bench said that: In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.13 [16] It is accepted that ignorance of an available remedy and associated time limits does not, in the absence of other circumstances, establish that there are circumstances which would lead to a finding of exceptional circumstances.14 Furthermore, a lack of legal knowledge does not provide a plausible basis for the delay period of some 1,900 days, particularly in circumstances where the Commission accommodates self-represented applicants by providing comprehensive resources on unfair dismissal applications. [17] Decisions of this Commission have held that a lack of English proficiency, even in combination with ignorance of an available remedy, will struggle, without more, to constitute exceptional circumstances.15 In this case, the Applicant merely asserted that English is his second language. He has not provided any evidence of a lack of English proficiency which could explain a delay of some 1,900 days in lodging the application, particularly in circumstances where the Commission provides a number of means by which an unfair dismissal application can be lodged and provides resources for non-English speaking parties. These resources mitigate language barriers experienced by applicants from non- English speaking backgrounds. [18] The Applicant's reasons for delay, whether considered individually or cumulatively, do not amount to plausible reasons for the delay period and therefore weigh against a finding of exceptional circumstances within the meaning of section 394(3) of the Act. 2.2 Whether the person first became aware of the dismissal after it had taken effect [19] If it were the case that the Applicant was dismissed, and I note that I am of the view that it would be exceedingly difficult for the Applicant to succeed with such argument, the Applicant, in his own words, became aware that his work had concluded with the Respondent on 30 November 2020 when his ‘Uber’ account was said to have been permanently deactivated. I therefore consider this to be a neutral consideration. 2.3 Action taken by the person to dispute the dismissal 13 Nulty (n 4) [14]. 14 Rose v BMD Constructions Pty Ltd [2011] FWA 673, [11]. 15 See e.g. Wu v AAA Fresh Pty Ltd [2021] FWC 5144, [18]-[21]. -- 4 of 7 -- [2026] FWC 2580 5 [20] The Applicant submitted that he consistently and continuously attempted to resolve the dispute directly with the Respondent but provides no evidence in support of such contention. In all the circumstances, I am satisfied that this action does not weigh toward the grant of an extension of time. 2.4 Prejudice to the employer [21] When considering the factor of prejudice to the employer, the Commission considers whether the delay has caused the employer to suffer prejudice and whether the purported prejudice would not have been suffered had the application been made within 21 days of the dismissal taking effect. [22] In GHD Pty Ltd v Black, it was said that it is well accepted that a lengthy delay gives rise to a general presumption of prejudice.16 In that case, the Full Bench held on appeal that a 168-day delay may impair the recollection or availability of witnesses and thereby give rise to a relevant prejudice.17 The length of the delay in this matter is approximately five years. I am therefore content to adopt the general assumption that the delay period may impair the recollection and availability of witnesses in this case. This is so, notwithstanding that the Applicant purports that the Respondent retains relevant trip data, account records and communications in electronic format. Whilst that may be the case, should the matter proceed, the Respondent would arguably face significant difficulties if only business records were able to be drawn upon because witnesses were unavailable due to turnover in the preceding five- year period. I am therefore of the opinion that this factor weighs against a conclusion that the circumstances are exceptional. 2.5 Merits of the application [23] In Telstra-Network Technology Group v Kornicki,18 the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said in respect to the merits of an application: If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.19 [24] Evidence on the merits is not commonly traversed in the context of determining whether to grant an extension of time. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an 16 [2023] FWCFB 38, [51] (‘GHD’), citing Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556, and Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300. 17 GHD (n 16) [51]. 18 (1997) 140 IR 1. 19 Ibid 11. -- 5 of 7 -- [2026] FWC 2580 6 extension of time to an applicant to lodge her or his application.20 The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. [25] However, it is evident from the application that the Applicant contends he was an employee. [26] The Commission has concluded on several occasions that Uber’s ‘Driver Partners’ are not employees.21 [27] It is a truism that each case will turn on its own facts. However, when regard is had to previous decisions of the Commission in matters related to the Respondent and its Driver or Delivery partners in unfair dismissal applications and to the likelihood of finding that the Applicant was not a national system employee and is therefore not protected from unfair dismissal, the application appears to have minimal merit. This factor weighs against the grant of an extension of time. 2.6 Fairness as between the person and other persons in a similar position [28] The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by Deputy President Gostencnik (as he then was) in Morphett v Pearcedale Egg Farm, where it was said: [C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.22 [29] It is necessary to highlight at this juncture that the Commission has received multiple applications from former ‘Uber’ driver partners or ‘Uber Eats’ driver partners that date back several years. The responsive materials provided with these applications indicate the use of generative AI. On receipt of the unfair dismissal application, the Applicant was referred to the following decisions and informed that the applications resembled the Applicant’s unfair dismissal application (albeit the Applicant was an Uber driver partner and the applicants in the following decisions were Uber Eats delivery partners) and that the applications in those cases had been dismissed: Shahzad v Portier Pacific Pty Ltd [2026] FWC 1920 Jasoliya v Portier Pacific Pty Ltd [2026] FWC 1792 20 Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, [37] – [38]. 21 Kaseris (n 1); Pallage (n 1); Suliman (n 1); Nawaz (n 1). 22 [2015] FWC 8885, [29]. -- 6 of 7 -- [2026] FWC 2580 7 [30] Based on the abovementioned cases, I am satisfied that the criterion of fairness between the Applicant and other persons in a similar position weighs against a finding of exceptional circumstances. 3 Conclusion [1] The test of exceptional circumstances in s 394(3) of the Act is a stringent one. I observe that most factors weigh against a finding of exceptional circumstances, with the exception of one which is neutral. Having concluded that there are no exceptional circumstances, it is therefore unnecessary for me to consider whether it is fair and equitable to grant the extension. As indicated at the beginning of this decision, it follows that the Applicant’s application for an unfair dismissal remedy must be dismissed. An Order23 to that effect issues concurrently with this decision. DEPUTY PRESIDENT Matter determined on the papers Printed by authority of the Commonwealth Government Printer <PR811867> 23 PR811868. -- 7 of 7 --