[4] Under section 536LU(4), additional time may be allowed to a person to make an unfair deactivation application if the Commission is satisfied that there are exceptional circumstances. The meaning of "exceptional circumstances" was considered and summarised in Nulty v Blue Star Group_[[1]](#fn1

s.536LU - Application for an unfair deactivation remedy

Application for an unfair deactivation remedy - application filed out of time - whether an extension of time should be allowed

• [1] Mr Ahmer Noor was delivery driver for Portier Pacific Pty Ltd trading as Uber Eats (Uber Eats). He carried out work through the Uber Eats platform from 19 February 2023 until 13 March 2025. His access to the platform was suspended on 13 March 2025 and finally deactivated on 10 May 2025. On 8 August 2025, Mr Noor applied for an unfair deactivation remedy.

• [2] Section 536LU(3) of the Fair Work Act 2009 (Cth) (the Act) requires applications for an unfair deactivation remedy to be made within 21 days after the deactivation took effect. Mr Noor's application was made 69 days after the end of the 21‑day filing period. The question is whether additional time can and should be allowed for Mr Noor to make the application.

• [3] I have decided that no additional time can be allowed. The application will instead be dismissed. These are my reasons.

• [4] Under section 536LU(4), additional time may be allowed to a person to make an unfair deactivation application if the Commission is satisfied that there are exceptional circumstances. The meaning of "exceptional circumstances" was considered and summarised in Nulty v Blue Star Group[1]:

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."

• [5] Section 536LU(4) contains a list of matters to be taken into account when deciding whether additional time is to be allowed. These are:

• the reason for the delay,
• whether the person first became aware of the deactivation after it had taken effect,
• any action taken by the person to dispute the deactivation,
• prejudice to the regulated business (including prejudice caused by the delay),
• the merits of the application,
• fairness as between the person and other persons in a similar position, and
• any processes specified in the Digital Labour Platform Deactivation Code (the Code).

• [6] Reason for delay: The reason given by Mr Noor for the late filing of his application is that when he received the deactivation notification, he was going back to his home country as his father was seriously ill and required care and support. Mr Noor states that his father was involved in a serious accident on 14 May 2025, that just 'days later' on 1 June 2025, he had to travel to Pakistan to attend to family responsibilities, and that he remained there until 1 August 2025 when his father's condition stabilised and he was able to return to Australia. He also submits that he has had 'some health issues lately'. By 'lately', Mr Noor means the period from 13 to 17 October 2025. Whatever the nature of his health issues at that time, they had no bearing on the late filing of the application.

• [7] There are a number of difficulties with the explanation given by Mr Noor. Firstly, Mr Noor was not 'going back' to Pakistan when he received the deactivation notification. The notification was given on 10 May 2025, and Mr Noor's flights were booked on 11 May 2025. Mr Noor did not travel to Pakistan until 1 June 2025. It is noteworthy that 1 June 2025 was the first day after the expiry of the 21-day filing period.

• [8] Secondly, the only explanation for why the application could not have been made between 10 May 2025 (when his account was deactivated) and 1 June 2025 was that Mr Noor was 'too stressed'. During this period, Mr Noor was able to book (or arrange for the booking of) flights overseas and to communicate with Uber about deleting his account. This indicates capacity to apply to the Commission for an unfair deactivation remedy during the filing period.

• [9] Thirdly, because Mr Noor's travel booking was made on 11 May 2025, it could not have been responsive to an accident his father is said to have sustained three days later. Related to this issue, I have concerns about the veracity of a medical document provided as evidence of the accident suffered by his father. The name of Mr Noor's father, and the date of 14 May 2025, are in different text, and out of alignment, to the rest of the document. Mr Noor says he was given the document on 16 or 17 May 2025 by the hospital manager. If so, it cannot have been given to him in person, because the hospital is in Pakistan and Mr Noor was in Australia. No further information about how Mr Noor received the document has been provided. At the bottom the phrase 'discharge slip' appears. If that is the nature of the document, the timeframes do not make sense, because Mr Noor says his father was in the hospital for about 1.5 months after 14 May 2025. If a discharge slip was cut off the bottom of the document, it seems unlikely that Mr Noor would have the shortened version of the document before the date of discharge. These various discrepancies are not explained, either in the documents or by the evidence given at hearing. They give rise to a concern about the quality of Mr Noor's evidence.

• [10] Fourthly, the travel booking for Mr Noor's return to Australia shows that he returned to Sydney on 29 July 2025, 3 days earlier than stated in his evidence. This was conceded by Mr Noor at hearing.

• [11] Finally, no explanation is given for the delay in filing the application after 29 July 2025 until 8 August 2025 when the application was filed, except that he was attending classes, and that at some point during that period, Mr Noor found a lawyer to assist him. His legal representative confirms that the application form was filled out with its assistance, but there is no evidence about when this happened or why it could not have been done sooner.

• [12] Submissions from the bar table speculated that Mr Noor may not been able to apply to the Commission promptly after deactivation because it was the weekend, and separately that he may not have known about the option of applying for an unfair deactivation remedy. There is no evidence on either point but in any event, applications to the Commission are usually made by electronic means. They can be made at any time, including on the weekends - in this case, Mr Noor's application was submitted by email after business hours on a Friday. Ignorance of the law is a common, rather than exceptional, circumstance.

• [13] Taking these matters together, I do not find the reasons for delay to weigh in favour of a finding of exceptional circumstances. There is no reason to consider that the application could not have been made in time, or relatively soon thereafter. Stress is a common experience associated with the loss of earnings potential and indeed in connection with medical circumstances affecting family members. I consider it unlikely that Mr Noor had no time at all between his arrival in Pakistan and 8 August 2025 to complete and lodge an application to the Commission.

• [14] Mr Noor's travel to Pakistan on 1 June 2025, and any associated family responsibilities while he was overseas, do not explain the filing delay after he returned to Australia. As noted above, applications to the Commission can be filed by email, or if necessary, over the phone. Mr Noor had access to the internet (and so to email) while he was overseas. It took a further 10 days after Mr Noor arrived in Australia to lodge his application in the Commission. This period of the delay is only partly explained, with key facts missing, such as when Mr Noor decided to apply to the Commission, and when he attended his lawyer's offices and gave them relevant instructions in that period.

• [15] Whether the person first became aware of the deactivation after it had taken effect: Mr Noor was aware of the deactivation when he received a copy of the final deactivation notice on 10 May 2025. This is not indicative of any exceptional circumstances, and it would not weigh in favour of additional time to apply to the Commission.

• [16] Any action taken by the person to dispute the deactivation: Mr Noor submits that he provided a response to the preliminary deactivation notice by Uber Eats on 14 March 2025. This is denied by Uber Eats, on the basis that its records show Mr Noor first making contact about an issue with his account on 10 April 2025. On 3 May 2025, Mr Noor asked for his account to be opened so that he could do deliveries in Brisbane. On 4 May 2025, he tried to delete his account. On 5 May 2025, he requested a review of his deactivation, stating that he had requested the review 'since march', and asked for his account to be opened. After the final deactivation took effect on 10 May 2025, the only communications from Mr Noor to Uber Eats were on 21 and 22 May 2025 when he tried to delete his account through 'uber support'. There was an inkling, but no notice of actual or proposed action to dispute the deactivation until the filing of this application. On balance, these matters do not weigh in favour of exceptional circumstances and they would not warrant an extension of time for the application to be made.

• [17] Prejudice to the employer (including prejudice caused by the delay): Other than the time and cost of responding to a legal case, there is no material prejudice to Uber Eats if the application is allowed to proceed late. This is a neutral consideration.

• [18] Merits of the application: Mr Noor's deactivation was triggered by the alleged fraudulent provision of a driver's licence to enable his work as a delivery driver. Mr Noor submits that he submitted his overseas driver's licence to Uber Eats. He says the deactivation caused him significant financial hardship upon his return to Australia to resume his studies as an international student. Uber Eats submits that the licence uploaded by Mr Noor was not found to be genuine when verified against a 'third-party portal'. It alleges that uploading the licence to the Uber Eats platform was serious misconduct. I note a separate record made by Uber Eats on 13 April 2025 identified the reason for deactivation as that its 'system identified multiple accounts registered under' Mr Noor's name.

• [19] It would be for Uber Eats to establish that it had reasonable grounds to consider that there was a valid reason for the deactivation, although support for this contention is found in section 13(9) of the Code. Under that section, termination of access to a platform is taken to have been for a valid reason in circumstances where a preliminary deactivation notice is issued about a matter that if true, would be a valid reason for deactivation, and the worker provides no response to the notice.

• [20] Having made these observations, there is a lack of material evidence before me to permit a proper assessment on the merits at this stage of the proceeding. It is a neutral consideration in relation to the extension of time.

• [21] Fairness as between the person and other persons in a similar position is not a relevant criterion in this case.

• [22] Code processes: No submission has been made to the effect that the Code processes were not followed. Uber Eats submits that the Code processes did not apply because Mr Noor engaged in serious misconduct. It further says that if the Code did apply, it complied with the Code because the reason for deactivation meant that no warning was required (sections 8 and 9), preliminary deactivation notice was given (section 11), and in the absence of a response from Mr Noor, deactivation took effect on 10 May 2025. On the materials, I cannot identify a relevant concern in this regard. This does not weigh in favour of a finding of exceptional circumstances.

• [23] On balance, I am not satisfied that there are exceptional circumstances in this case in connection with the late filing of the application. I cannot, in those circumstances, allow additional time for Mr Noor to make the application.

[1] [2011] FWAFB 975; [2011] 203 IR 1 at [13].

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