Fair Work Act 2009

s.536LU - Application for an unfair deactivation remedy

Application for an unfair deactivation remedy - application filed 12 days out of time - extension not granted - application dismissed - Respondent's communication methodology discussed.

• [1] Mr Abdirahman Ibrahim Derow (the Applicant) has made an unfair deactivation application to the Fair Work Commission pursuant to s.536LU of the Fair Work Act 2009 (the Act) by filing a Form F89 - Application for an unfair deactivation remedy (Form F89). No respondent was named in the Form 89 but reference was made to 'Uber'. The Commission subsequently sent correspondence to Uber Australia Pty Ltd attaching the Form F89. In reply, a Form F89A - Response to an Application for an unfair deactivation remedy (Form F89A) was received. The Form F89A indicated that the proper legal name of the digital labour platform operator responding to the unfair deactivation application is Raiser Pacific Pty Ltd. Accordingly, I have determined that it is appropriate to exercise the discretionary power in s.586 of the Act and correct the name of the respondent to the Applicant's unfair deactivation application so that it is henceforth recorded as being Raiser Pacific Pty Ltd (Respondent).

• [2] Section 536LG of the Act outlines that a person has been deactivated from a digital labour platform if they performed digital platform work through or by means of the digital labour platform, and the digital labour platform operator modified, suspended, or terminated their access to the digital labour platform, and the person is no longer able to perform work under an existing services contract. The Form F89 outlined that the deactivation of the Applicant from the Respondent's digital labour platform took effect on 6 March 2025. This was confirmed by the Respondent in the Form F89A. The character of the deactivation in this case was the suspension of the Applicant's access to the Uber Driver app on 6 March 2025.

1. The period of 21 days in s.536LU(3)(a) of the Act for the Applicant to make an unfair deactivation application ended, therefore, at midnight on 27 March 2025 and the Applicant's application filed on 8 April 2025 was made 12 days outside of the required 21-day period. As such, the Applicant requires the Commission to allow him an extension of time in which to file his unfair deactivation application (s.536LU(3)(b)). This decision deals with the Respondent's objection that the Applicant's application was lodged out of time.[1]

• [4] The Act allows the Commission to extend the period within which an application for an unfair deactivation remedy must be made only if it is satisfied that there are "exceptional circumstances", taking into account the factors in s.563LU(4)(a) to (g). In unfair dismissal proceedings and general protections applications involving dismissal exceptional circumstances have previously been found to be 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.[2] 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.[3] The requirement that the matters outlined in s.563LU(4)(a) to (g) be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Applicant's application for an extension of time.

• [5] The Act does not specify what reason for the delay might tell in favour of granting an extension, however, decisions of the Commission in extension of time applications relating to unfair dismissal proceedings and general protections applications involving dismissal have referred to an acceptable or reasonable explanation. In unfair dismissal proceedings and general protections applications involving dismissal, 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 the circumstances must be considered.[4] I will adopt these principles in relation to this unfair deactivation application.

• [6] As I have outlined, there is no dispute that the Applicant was deactivated with immediate effect on 6 March 2025 and in the Form F89, the Applicant has disclosed he was aware this was the case on that day. Commission decisions have established that the delay required to be considered in an extension of time application is the period beyond the prescribed 21-day period. Applied to this case, the delay does not include the period from the 6 March 2025 date of deactivation to the end of the 21-day period, which ended at midnight on 27 March 2025. However, consistency with the authorities also requires the consideration of the circumstances from the time of the Applicant's deactivation when assessing whether there is a credible reason for the 12-day delay, or any part of that delay, beyond the 21-day period.[5]

• [7] In large part, the Applicant seeks to explain the 12-delay by reference to his attempts to persuade the Respondent to reverse his suspension during the 21-day period that followed the notification of the deactivation on 6 March 2025. These attempts started almost immediately after the Respondent had advised the Applicant that he could request a discussion about his deactivation with a representative of Uber Eats by clicking on a specific link within two days. The message notifying the Applicant of the deactivation concluded with:

"Once your request has been submitted, a member of our team will begin the review process. Please note, this can take up to 7-10 business days, but it may take longer. We'll send you a message letting you know the outcome of Uber's decision."

• [8] When I directed the Respondent to produce its records of the correspondence that passed between the parties after the deactivation, the Respondent produced a "Bliss communication" record of the electronic communications between the parties during the period from the Applicant's deactivation on 6 March 2025 until 25 March 2025.[6] The "Bliss communication" record indicates that the Applicant initially replied to the notification of the deactivation message with messages sent at 9.43pm on 6 March 2025 and 3.44am on 7 March 2025. The Applicant also appears to have telephoned 'Uber Support', which prompted a reply outlining, "I have notified our specialized team about this incident and they'll be in touch with you as soon as possible" and "If you have any additional questions or concerns you can respond directly to this message". The "Bliss communication" record indicates that the Applicant contacted the Respondent through different channels and on numerous occasions between 7 March 2025 and 25 March 2025, only to receive similar replies which appear to have been largely automated.

• [9] On 9 March 2025, the Applicant was advised that he was able to appeal the Respondent's deactivation decision by following a specific link and that this would (usually) take 7-10 business days. There was a message that appears to have sent by the Applicant in reply on 10 March 2025, which stated:

"Good evening, the aforementioned link above is not applicable on my end. I will contact fair work Australia commission in regards to the matter and will provide all necessary information and evidences to prove my innocence. I will also seek legal counsel for the case of sexual harassment against the customer claimed by me and I will consider a law suit against the platform and the individual accused me. Please contact me for all evidence that the customer may provide. Thank you, kind regards."

• [10] In addition to receiving an automated response to his reply, the Applicant also received a further message on 10 March 2025, which included:

"If you believe that our decision to deactivate your account should be reviewed, you are able to request for an appeal by logging in through the driver webpage in your internet browser... Once your request has been submitted, a member of our team will begin the review process. Please note, this can take up to 7-10 business days, but it may take longer. Rest assured, we'll send you a message letting you know the outcome of your request..."

• [11] There followed a further 6 messages from 'Uber' and two further efforts at contact from the Applicant before the Respondent sent two messages on 14 March 2025, which stated:

1. "Hi, Abdirahman‍. It looks like you've sent in another message about this. I'm going to close out this thread so we can assist you in one conversation. To streamline communication, please revert to the email with a subject line "Request a discussion". Please refrain from submitting additional support tickets as this may delay your account status review time. Thank you for your understanding."

1. "Hi Abdirahman‍, Here are the original messages regarding the issue you contacted us about in another thread. Feel free to reply to this message if you'd like to add any other questions regarding your report. We appreciate your patience while we get this resolved for you."

• [12] The Respondent replied to subsequent messages from the Applicant on 18 March 2025, by outlining:

"Hi, Abdirahman. Thank you for reaching out to us about your account deactivation. We've looked into this further and can see that you are currently writing in to us from your rider account. For us to review your account further please write in and access the provided link from your driver account. You may provide additional information or documents, however, please ensure that they are relevant, or have not been previously shared with us..."

• [13] The Applicant responded on 19 March 2025, outlining the following points:

a) It was disheartening that no one from the Respondent had contacted him; and

b) While he had contacted the Respondent's support team on 19 March 2025, and was told that someone from another department would reach out to him later, no one had contacted him.

• [14] In response, the Respondent sent a message on 20 March 2025, which included advice that the Applicant's 'concern' had been escalated to a different team which would be getting in touch with him within the next 24 hours, before stating "Just a reminder, you can also reach out to Uber support through the Help section of the app or via help.uber.com."

• [15] This prompted further attempts by the Applicant to pursue his line of enquiry before there was a final response from the Respondent, on 25 March 2025, which outlined:

"Hi Abdirahman, I can see that you have requested a review by our specialised team. Once the review is completed, we'll let you know of the outcome through a message in the app. Please note, this can take up to 7-10 business days, but it may take longer. We'll send you a message letting you know the outcome of Uber's decision."

• [16] Ultimately, it took 19 days for the Respondent's system to both recognise that the Applicant sought a review of his suspension and provide confirmation that a review would occur. At that point, the Applicant still had two days within which to make an unfair deactivation application within time.

• [17] The Applicant contends that he was left to make a late unfair deactivation application to the Commission because nothing had eventuated from his contact with the Respondent during the 21-day period following his deactivation on 6 March 2025. The Applicant says that he was trying to contact the Respondent but he was not able to make any progress. He asserted that the delay can be explained by his reliance on the repeated representations made by the Respondent that it would consider reactivation and help him, all of which ultimately amounted to nothing.

• [18] On one level, it is hard not to be highly critical of the inane manner in which the Respondent seeks to communicate with the drivers who perform work through its digital labour platform. The "Bliss communication" record makes for a farcical read. An individual trying to communicate with the Respondent is forced to do so using a system that seems to spit out a series of automated replies until such time as something in particular finally triggers human interaction. In the Applicant's case, it was only after he had sent six messages that he received (on 10 March 2025) a response that resembled something relevant to his particular circumstances. However, the communications from the Respondent then regressed back to automated replies despite three further messages from the Applicant. The message sent by the Applicant on 12 March 2025 encapsulates the farcical nature of the Respondent's communication system:

"I haven't heard anything from you how long is gana [sic] take to solve this matter every time I contact you. You asked me same things I'm trying to corporate [sic] with you but there is not out come [sic] if you can't please let me know I want take [sic] further action against that person I don't need anything from you..."

• [19] The nature of the Respondent's communication system drove the Applicant into adopting a scatter-gun type approach in his multiple attempts to elicit a meaningful, personalised response to his communications. By 14 March 2025, something finally triggered some recognition within the Respondent's communication system. At this point, one might have expected that someone from the Respondent's organisation would have simply telephoned the Applicant using the phone number he had supplied but instead, the Applicant was directed to send yet another email.

• [20] However, notwithstanding the mind-numbing fashion in which the Respondent attempts to communicate with its drivers, I do not consider that either this, or the failure of the Respondent to confirm that it would consider the Applicant's request for a review of his deactivation until 25 March 2025, provide acceptable reasons for the delay. Nor does the Applicant's request that the Respondent review the deactivation constitute a circumstance excusing his delay in lodging the application. The Applicant could, and should, have simultaneously sought a review of his deactivation and taken the steps required to make an unfair deactivation application. He did not have to wait until the Respondent had conducted its review into the deactivation before lodging his unfair deactivation application.

• [21] The Applicant also asserted that if he had known he was able to seek redress at the Commission, he would have made an application earlier than 8 April 2025. In this regard, he says that it was not until either 6 or 7 April 2025, when some friends recommended that he do so, that he realised that he could make application to the Commission. I have noted above, however, that there appears to have been a message sent by the Applicant to the Respondent, in which he foreshadows contacting the Commission as early as 10 March 2025. When asked about this at the determinative conference, the Applicant said that the 10 March 2025 message had been sent to the Respondent by one of his friends and the friend had not explained to him what he was actually sending. I do not find this explanation convincing but in any event, I note that it is well established that ignorance of one's rights will not usually provide an acceptable explanation for a delay in lodging an application.[7] Unfamiliarity is not exceptional.

• [22] The Applicant also asserted that he was mentally unwell and stressed following the deactivation. Even though I accept, in the absence of any compelling medical evidence, that the Applicant may have experienced a negative reaction as a result of his deactivation, this is not of itself unusual. Stress, anxiety, shock and a degree of trauma from a dismissal are not uncommon reactions.

• [23] Accordingly, having regard to the evidence before me, I am not persuaded there were circumstances within the 21-day period prescribed for making the application that provide a credible reason for the 12-day delay. Nor do I consider there was an acceptable or reasonable explanation for the 12-day delay. I consider the delay is almost wholly attributable to the Applicant's decision to pursue an internal review before turning his mind to other available options, such as the making of an unfair deactivation application. That decision was the Applicant's. I do not consider the Applicant's decision or his reaction to his deactivation constitute an acceptable or reasonable explanation for the delay in this case. The absence of an acceptable or reasonable explanation weighs against granting an extension of time.

Whether the Applicant first became aware of the deactivation after it had taken effect - s.536LU(4)(b)

• [24] I am satisfied that the Applicant became aware of the deactivation with immediate effect on the day it occurred. The Applicant therefore had the full period of 21 days to lodge his unfair deactivation application. This consideration is a neutral consideration.

Action taken to dispute the deactivation- s.536LU(4)(c)

• [25] I am satisfied that after being notified of his deactivation, the Applicant disputed it when sending the series of communications to the Respondent during the period from 6 March 2025 until 25 March 2025. As the Applicant this action to dispute his deactivation, I consider this factor weighs in favour of a finding that there are exceptional circumstances.

Prejudice to the regulated business- s.536LU(4)(d)

• [26] The Applicant made no submission on the question of prejudice to the Respondent, while the Respondent submitted that prejudice would be occasioned if an extension of time was granted and it then had to incur more costs in responding to the Applicant's disclosure in the Form F89 that he has commenced other proceedings in relation to his deactivation, particularly when the Applicant has already failed to comply with the Commission's direction that he identify the other proceedings.

• [27] The Commission's consideration of this criterion looks to prejudice beyond the usual requirement of having to respond to a claim. In this case, I cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. However, the mere absence of prejudice is not in my view a factor that would point in favour of granting an extension of time. The consideration is a neutral one.

• [28] I am required to "take into account" the merits of the application in considering whether to extend time so some assessment of the merits must be made. However, the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding. The Applicant alleges he was deactivated on baseless grounds, for conduct he did not engage in. The Respondent submitted that the Applicant's deactivation was due to his serious misconduct.

• [29] I am not able to form a concluded view about the merits of the application. I consider the evidence would need to be tested, including under cross-examination, if an extension of time was granted and the matter was to proceed. The merits of the application would depend on factual findings made at the final hearing. Because I do not consider the merits to tell for or against an extension of time, I regard them as a neutral consideration.

Fairness as between the person and other regulated workers in a similar position - s.536LU(4)(f)

• [30] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. The Applicant did not bring to my attention any relevant matter concerning this consideration and the Respondent submitted that this is a neutral consideration. Cases of this kind will generally turn on their own facts and as I am unaware of any matter relevant to this consideration in this case, I consider it to be neutral.

Any processes specified in the Digital Labour Platform Deactivation Code - s.536LU(4)(g)

• [31] As with the merits consideration above, I am only required to "take into account" any processes specified in the Digital Labour Deactivation Code (the Code), as the case requires. The Applicant made no submission concerning this consideration. The Respondent's primary submission was that the Code process for deactivation did not apply to the Applicant's deactivation because his deactivation occurred because of his serious misconduct in violating the Respondent's community guidelines. In the alternative, the Respondent maintains that it complied with the Code when implementing the Applicant's deactivation. For the reasons I gave in relation the merits consideration, I am not able to form a concluded view in relation to the application of the Code and regard this factor as a neutral consideration.

• [32] The requirement is that there be exceptional circumstances before time can be extended under s.563LU(4) of the Act. This contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act 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. Having considered each of the considerations in s.563LU(4) of the Act, I have found that while paragraph (c) weighs in favour of the granting of an extension, paragraphs (b) and (d) - (g) are neutral and paragraph (a) weighs against the granting of an extension. Having considered these factors collectively, I am not satisfied that that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. 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.536LU(4).

• [33] Accordingly, I dismiss the application of the Applicant to the Commission to deal with an unfair deactivation application. An order[8] to that effect will be issued with this decision.

Melbourne (in person and by Video using Microsoft Teams).

1. [1] In the Form F89A, the Respondent also objected to the Applicant's application on the basis of the Applicant's disclosure in the Form F89 that he has commenced other proceedings in relation to his deactivation.

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

[4] This was first outlined in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[5] For the genesis of this requirement, see 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].

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

[8] PR789717.

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