Adnan Afsar v Rasier Pacific Pty Ltd [2024] FWC 319

1 Fair Work Act 2009 s.394—Unfair dismissal Adnan Afsar v Rasier Pacific Pty Ltd (U2023/13248) DEPUTY PRESIDENT COLMAN MELBOURNE, 6 FEBRUARY 2024 Application for an unfair dismissal remedy – whether to extend time – application dismissed [1] The following is an edited version of a decision given on transcript earlier this morning. Adnan Afsar (applicant) has made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Act). The applicant contends that he was dismissed by Rasier Pacific Pty Ltd (respondent) on 7 August 2023. The respondent submits that the applicant was not its employee and was not dismissed, and that instead it deactivated the applicant’s account as an Uber driver on 7 August 2022. The respondent submitted correspondence between the parties which confirms that the applicant’s account was deactivated in 2022. I find that this is what occurred. I will proceed on the basis that, if the applicant was an employee of the respondent, and if he was dismissed, the dismissal occurred on 7 August 2022. Section 394(2) states that an unfair dismissal application must be made ‘within 21 days after the dismissal took effect’, or such further period as the Commission allows pursuant to s 394(3). The 21-day period ended on 28 August 2022. The application was lodged on 30 December 2023. In order for the application to proceed, the applicant requires an extension of time. [2] I listed the matter for 10.00am today. The notice of listing directed the parties to attend and noted that s 600 of the Act allows the Commission to determine a matter in the absence of a party who has been required to attend before it. Last night, the applicant sent a message to chambers stating that he was unable to attend ‘due to some conflicting information’ that he had received that suggested that the hearing date needed to be changed, and that therefore he was ‘not prepared’. This statement did not make sense. There has been no suggestion from the Commission that the hearing date might change. I replied to the applicant last night, stating that he was required to attend and that if he did not do so I may determine the matter in his absence. The applicant did not comply with my directions that he attend the proceeding. Despite repeated attempts, he could not be contacted. He also failed to comply with directions to file materials. [3] The Act permits the Commission to extend time only if it is satisfied that there are ‘exceptional circumstances’, taking into account the matters in s 394(3)(a) to (f). As to the reason for the delay (s 394(3)(a)), the applicant stated in his F2 that he did not know that he could make an unfair dismissal application and that the respondent did not inform him that he could do so. In a message to the registry, he also stated that he was unable to lodge his application earlier due to a ‘technical error’, and that the respondent had not provided him with any information about contesting the dismissal. As to these matters, unawareness of the unfair [2024] FWC 319 DECISION -- 1 of 2 -- [2024] FWC 319 2 dismissal framework and the 21-day lodgement requirement is not an acceptable reason for delay; it is not credible to suggest that over such a lengthy period, an unspecified ‘technical error’ prevented timely lodgement; and it was not the respondent’s job to advise the applicant how to challenge his alleged dismissal. The applicant has not established an acceptable reason for any part of the very lengthy delay in lodging his application. This weighs against an extension of time. [4] I consider ss 394(3)(b), (d) and (f) to be neutral matters: the applicant does not contend that he became aware of his dismissal after it took effect; there is no prejudice to the employer; and I do not consider that there are any matters that are relevant to fairness between the applicant and other people. I note that the applicant took steps to challenge his dismissal by asking the respondent to review its decision (s 394(3)(c)), however I attribute this matter little weight. [5] As to the merits (s 394(3)(e)), the applicant stated in his F2 that his dismissal was unfair because his account was deactivated without justification and that he was not told by the respondent what he had done wrong. The respondent submitted that it was well-established that Uber drivers are not employees, and that the claim had no merit for this reason. More generally, it said that the applicant was informed that his account was deactivated following a series of incidents in which the respondent concluded that his behaviour was inconsistent with its community guidelines. In my view, the application appears to have no merit because the applicant was not an employee and was not dismissed, for the reasons explained by the Full Bench in Gupta v Portier Pacific Pty Ltd [2020] FWCFB 1698, which reasons appear to me to be applicable in this case. But even putting this to one side, and treating the merits as a neutral consideration for present purposes, it would not alter my conclusion in this matter. [6] The Commission can extend time only if it is satisfied that there are exceptional circumstances. Taking into account the matters in s 394(3), I am not satisfied that there are exceptional circumstances. The application is therefore dismissed. DEPUTY PRESIDENT Appearances: No appearance for the applicant T. Sebbens for the respondent Hearing details: 2024 Melbourne (by telephone) 6 February Printed by authority of the Commonwealth Government Printer <PR771025> -- 2 of 2 --