Fair Work Act 2009

s.536LU - Application for an unfair deactivation remedy

[1] Mr Mokhtar (Applicant) has made an Application to the Commission pursuant to section 536LU of the Fair Work Act 2009 (the Act). The Applicant named the Respondent to the application as Uber Australia Pty Ltd. Rasier Pacific Pty Ltd received the application and identified itself as the correct Respondent and operator of the Uber digital platform that the Applicant had been deactivated from. The Applicant's application was taken to be amended accordingly.

• [2] In his application, the Applicant identifies the date of the deactivation as 15 October 2025. It is not in dispute that the Applicant's Uber account was suspended on that date and never re-activated. It is also not in dispute that the Applicant was permanently deactivated from the Uber platform on 28 October 2025. The application however was not made until 23 December 2025. The application was therefore made outside of the 21 day time limit applicable to matters of this type, irrespective of which alleged deactivation was sought to be challenged in the proceeding. Whilst it must be accepted that the Applicant must be held to the deactivation he has chosen to challenge, absent any application for an amendment[1], the Respondent engaged with the application on the basis that it was the final deactivation that was challenged[2]. I have allowed an amendment to the application to capture both events.

[3] The Respondent submitted that the suspension of 15 October 2025 could not be considered a deactivation. The Respondent submitted that if the Applicant had not received preliminary and final deactivation notices and remained suspended for more than seven business days, the suspension could be considered a deactivation - but not otherwise.

[4] I do not accept that submission. What constitutes a deactivation must logically follow the meaning of "deactivated", which is defined by section 536LG of the Act as follows:

"A person has been deactivated from a digital labour platform if:

(a) the person performed digital platform work through or by means of the digital labour platform; and

(b) the digital labour platform operator modified, suspended, or terminated the person's access to the digital labour platform; and

(c) the person is no longer able to perform work under an existing or prospective services contract, or the ability of the person to do so is so significantly altered that in effect the person is no longer able to perform such work."

[5] There is nothing in the definition of deactivated that suggests that the giving of preliminary or final deactivation notices, or the duration of a suspension, is material to the question of whether or not a deactivation has occurred. The duration of a suspension is relevant to the question of whether a deactivation can be taken to be unfair, pursuant to section 536LH(3) and (4):

"(3) Despite subsection (1) and any other provision of this Part, a deactivation of a person from a digital labour platform is not unfair if:

(a) the deactivation is constituted by the modification or suspension of the person's access to the digital labour platform for a period of not more than 7 business days; and

(b) the FWC is satisfied that the digital labour platform operator concerned believes on reasonable grounds that one or more of the matters in subsection (4) is applicable.

(4) For the purposes of subsection (3), the matters are as follows:

(a) that the deactivation of the person is necessary to protect the health and safety of a user of the digital labour platform or member of the community;

(b) that the person has engaged in fraudulent or dishonest conduct including, but not limited to, by misrepresenting or falsifying information provided to the digital labour platform operator;

(c) that the person has not complied with licensing and accreditation requirements imposed by or under a law of the Commonwealth, a State or a Territory, whether:

(i) the requirements relate to the licensing or accreditation of the person; or

(ii) the requirements relate to the licensing or accreditation of the digital labour platform operator, and the person's conduct causes, or may cause, the digital labour platform operator to breach the requirements;

(d) that the deactivation of the person is necessary to enable the digital labour platform operator to do one or more of the following in relation to a matter specified in paragraph (a), (b) or (c):

(ii) refer the matter to a law enforcement agency (however described) for the purposes of conducting an investigation."

[6] Plainly, it would not be necessary to make the proscriptions above as to species of suspensions that are not to be taken to be unfair deactivations unless they were otherwise capable of being considered to be deactivations. Certainly, in the present matter, there is no dispute that the suspension imposed on the Applicant's account had the effect that the Applicant was unable to perform any work on the Uber platform from the date it was implemented. That state persisted unaltered until the Respondent issued and gave effect to its final deactivation notice, on 28 October 2025. The issuing of preliminary deactivation notice made no difference as to the persistence and continuity of the suspension.

• [7] The deeming of a deactivation to be not unfair by reference to how many "business days" it has persisted for invites consideration as to what that expression means in the circumstances. Whilst that expression is defined in the Acts Interpretation Act 1901 as presently in force as "a day that is not a Saturday, a Sunday or a public holiday in the place concerned"[3], s. 40A of the Fair Work Act 2009 requires that the Acts Interpretation Act 1901 as in force on 25 June 2009 applies. That point in time version of the Acts Interpretation Act 1901 contains no definition of "business day", nor does the Fair Work Act 2009 contain one. Subsections (3) and (4) of section 536LH were introduced via amendments to the Fair Work Legislation (Closing Loopholes) Amendment Bill 2023, prior to the Bill being split. The Supplementary Explanatory Memorandum which accompanied that amendment provides no guidance in relation to the intended meaning. The context and purpose of subsection (3) and (4) is however evident as shielding a digital platform operator from liability for a reasonable time where the matters giving rising to the suspension are reasonably believed to be serious, including where it is investigating those matters. That is, it might reasonably be expected that the digital platform operator could determine to proceed to a final deactivation or alternately lift a suspension reasonably quickly where the matters referred to in subsection (4) are involved. In the context of a digital labour platform that operates 24/7, it seems somewhat artificial to tie such a time period to an external normative standard of what a business day means, although it must be accepted that if the Parliament intended that a "business day" and a "day" were indistinguishable, the reference to "business" would be superfluous.

[8] In the circumstances of the present matter, it is not necessary to reach a concluded view on what a "business day" means, because as noted above the suspension was continuous in effect from 15 October to 28 October. Even if one removes the four weekend days that fell within that period from consideration, there were still 9 days of continuous suspension. I see no reason not to treat the application before me as relating to two deactivations.

[9] As the Application was filed out of time, an extension of time is required in order for the Application to proceed. This decision deals with the issue of whether such an extension will be provided. Section 536LU(4) of the Act provides that the Commission may allow a further period for an unfair deactivation application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(b) whether the person first became aware of the deactivation after it had taken effect; and

(c) any action taken by the person to dispute the deactivation; and

(d) prejudice to the regulated business (including prejudice caused by the delay); and

(f) fairness as between the person and other regulated workers in a similar position; and

(g) any processes specified in the Digital Labour Platform Deactivation Code or the Road Transport Industry Termination Code, as the case requires.

• [10] The requirement to consider whether there are any exceptional circumstances in determining whether an extension of time ought be granted is not novel nor is it unique to matters relating to the deactivation of employee-like workers. An exceptional circumstances test also applies to the making of unfair dismissal applications under section 394 of the Act, and to the making of general protections-dismissal applications pursuant to section 366 of the Act, where those applications have been brought outside of the relevant 21 day time limit that applies to them. Notwithstanding that some of the individual matters that must be considered under the various extension of time provisions are different, the Commission has approached the construction of the expression "exceptional circumstances" in unfair deactivation matters on the basis that its meaning in those other contexts is instructive.[4] I take the same approach here.

• [11] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters)[5] a Full Bench of this Commission considered the similar test for extending time for applications for the Commission to deal with disputes over dismissal involving a contravention of Part 3-1, which appears in s. 366(2) of the Act, and said:

"[14] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant for an extension. A decision whether to extend time under s.366(2) involves the exercise of a discretion."

Furthermore, the Full Bench in that case described the task of discerning exceptional circumstances in a manner that was not consistent with a mere "tick a box" approach to the enumerated considerations, but rather involved an evaluation taking into account matters of weight and degree.[6]

• [12] The meaning of 'exceptional circumstances' in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty)[7] as follows:

"[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."

[13] The matter before me proceeded by way of hearing on 19 March 2026, wherein the Applicant represented himself and the Respondent was granted permission to be represented. The only witness in the proceeding was the Applicant and he was cross examined. Pursuant to directions issued on 13 February 2026, the Applicant provided a witness statement and submissions, and also provided some further responsive submissions. The Respondent filed written submissions pursuant to the directions. The hearing was conducted with the assistance of a Somali interpreter.

• [14] Consistent with the approach taken to the examination of reasons for a delay in the context of dismissal related matters, the "delay" that must be considered is the period occurring after the 21 day period for bring an application, and does not include the period from the date the deactivation took effect to the end of the 21 day period. Nonetheless, circumstances from the time of the deactivation may be relevant to contextualising and assessing whether there is an acceptable reason for the delay, or some part of the delay, beyond the 21 day period.[8] In the current circumstances, the Application was lodged 69 days after the first deactivation complained of (representing a delay of 48 days), and 56 days after the final deactivation (representing a delay of 35 days).

[15] Having had regard to the matters stated in the Applicant's F89 application form and the materials filed since, I understand that the Applicant's reasons for not filing the application within time related to the Respondent not informing him of how to "escalate" his deactivation, his limited understanding of English, his lack of understanding of his rights to challenge the deactivation, his need for assistance, and the Respondent blocking his access to the Uber App so he could not correspond with it about the deactivation, and also blocking his telephone number so that he was unable to contact them via phone. The Applicant says that it was not until around five weeks after his deactivation that he met somebody who informed him of the right to challenge a deactivation in the Fair Work Commission and assisted him to complete the application form and subsequent written materials that he ultimately relied on.

• [16] A misapprehension of one's rights or how to pursue them is not considered an explanation that - without more - assists the finding of exceptional circumstances in the Applicant's favour.[9] There is also however a language barrier to contend with here, which is likewise not a matter that in and of itself necessarily provides a satisfactory explanation for a delay.[10] Having had the benefit of observing the Applicant during the hearing, I have no doubt that language barrier is significant. It is often the case that a language barrier is connected with ignorance or misunderstanding of one's rights. Had the Applicant provided any evidence that he had promptly and actively attempted to engage some kind of professional assistance to bridge that language barrier in order to get advice in his native language and experienced delays in doing so, this might have gone some way to providing an acceptable reason for delay. However, in the current circumstances, the assistance he did receive occurred through a friend who was a taxi driver who happened to be aware of the Commission's jurisdiction in these matters, rather than as a result of any efforts on the Applicant's part to seek professional assistance. The first interaction between the pair did not occur until around five weeks after the preliminary deactivation notice was issued[11], thus it occurred at a time the Applicant was already outside of the relevant time limit to challenge either his initial suspension or his final deactivation. The only other assistance the Applicant received was through a person he met in a shop, who assisted him to participate in a telephone conversation with a representative of the Respondent on 16 October 2025. The evidence in relation to that conversation suggested that the Applicant misunderstood the nature of some of the complaints that were being raised against him and that he answered questions based on what that other person suggested he should say.[12]

• [17] Insofar as the Applicant suggests the delay was attributable to the Respondent not informing him of his rights to challenge a deactivation in the Commission, I would merely observe that it is not obliged to.[13] Rather, the Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024 (the Code) is quite prescriptive about what must be contained in various notifications to a person in the Applicant's position where a deactivation is being considered and there is no prescription of any requirement to convey information about the jurisdiction of the Commission in respect of deactivations that are considered to be unfair.

• [18] The Applicant accepted in his evidence that he had received the "preliminary deactivation notice" dated 21 October 2025 and that he had it translated for him[14]. Whilst this occurred after the event that the Applicant contended was a deactivation, it nonetheless contained information, as it was required to, concerning his rights to respond to it.

[19] The Applicant also accepted that he had received, via e-mail, the final deactivation notice. At the hearing, it became apparent that the Applicant responded to that e-mail seeking that his account be activated, however as the e-mail address was not capable of receiving replies that message never reached the Respondent. The response that was attempted to be sent was circulated during the hearing and the Respondent was given the opportunity to make additional submissions after the hearing in relation this material, but chose not to do so.

• [20] I am not satisfied on the evidence before me that the Respondent took any active steps to "block" the Applicant from communicating with it by phone. The extent of the Applicant's evidence on this point was that when he tried to call Uber, he could not get through.[15] The basis for the claim that e-mail communication was blocked was that replies were not received and information from an identified friend that the Respondent's practice is to block all forms of communication when access to the Uber App has been blocked.[16] I do not consider that there is a solid foundation for a finding that the Respondent did in fact block telephone or e-mail communications from the Applicant.

• [21] A deactivation will not take effect unless or until the Applicant at least has a reasonable opportunity to become aware of it.[17] I am required to consider whether the Applicant only became aware of the deactivation, as a matter of fact, after it occurred. Accordingly, the analysis requires me to reach a state of satisfaction as to whether there was any gap between the Applicant having a reasonable opportunity to become aware of the deactivation he contests and him in fact become aware of that deactivation.

• [22] At the hearing, the Applicant said that he was working using the Uber App on 15 October when the suspension took effect and that he received a telephone call from the Respondent on the same day. He said that he did not have an interpreter and was driving and so arranged to talk to the Respondent the following day.[18] This is sufficient to satisfy me that the Applicant became aware of the suspension on the date it took effect.

[23] As to the permanent deactivation, the attempt to reply to the final deactivation notice referred to at paragraph [19] above occurred on the same day the notice was given via e-mail. This is sufficient to satisfy me that that Applicant became aware of that deactivation on the date it took effect.

[24] Where a person takes steps to dispute their deactivation, this puts the other party on notice of that dispute. This is relevant to the overall assessment of whether an extension of time ought to be granted, including in the exercise of the discretion to do so where exceptional circumstances have been established.

• [25] As noted in paragraph [22] above, the Applicant on 15 October arranged to have a telephone conversation with the Respondent on 16 October 2025. The Applicant participated in that telephone conversation without the assistance of an interpreter, instead relying on a person whom he had met in a shop to assist him. That assistance appears to have been of little genuine assistance to the Applicant's cause, and merely consisted of not being told much about what was being said by the Respondent but being given in indication of what he should say in response during that discussion. At the hearing, the Applicant regretted not having the assistance of an interpreter duri[19] that call.19 The Applicant said that he did not understand during that call that the issue that the Respondent want to speak to him about was an allegation that he had been touching his own "private areas" whilst transporting a passenger, but rather thought the complaint was that he had touched the body parts of t[20] passenger,20 although he now understands what the true allegation was. His explanation for the conduct is a fungal infection that c[21]ses an itch21 and he produced during the hearing a tube of ointment that he applies for the purposes of managing that infection. In the circumstances, I am satisfied that the Applicant did put the Respondent on notice that he disputed his suspension, even if his responses were guided somewhat unhelpfully by a third party

[26] I am not satisfied that the Applicant put the Respondent on notice of a dispute concerning the Final Deactivation Notice, because (as noted in paragraph [19] above) his reply to that that notice was not received and there is no other evidence of the steps he took in that regard.

[27] The Respondent submits that it would be prejudiced if the matter were allowed to proceed, and claims to have dedicated significant time, effort at cost in defending the matter today and would be forced to do so again in the context of a further jurisdictional hearing, noting that it has also objected to the application on the basis that the Code has been complied with.

• [28] The delay in this case is not so extensive as to lead to a presumption of prejudice. A material prejudice is essentially one that would not arise had the proceedings been commenced in time.[22] I do not envisage such prejudice arising on the basis of the material presented. However, the absence of prejudice in this regard is best regarded as neutral factor in the overall analysis.

• [29] In determining this extension of time application, the parties have not been required to provide detailed evidence on the merits of the substantive matter. This would not have been an appropriate course. Rather, the instant task insofar as it concerns the merit of the matter is to determine whether the Applicant can establish the matter is not without merit.[23]

[30] The Respondent's reasons for deactivating the Applicant relate to complaints it received concerning inappropriate behaviour in December 2017, January 2018 and October 2025. The Applicant's position is that he does not recall any incidents in December 2017 or January 2018 but denies any inappropriate behaviour.

• [31] The Respondent brought no evidence to suggest that any action was taken in relation to the alleged incidents in 2017 or 2018 other than the issuing of warnings, which in any event were expressed in the reasonably equivocal terms that the "..rider has let us know that there may have been an incident...."[24], rather than expressing a conclusion or demanding an explanation. In relation to the complaint in October 2025, which relates to allegations that the Applicant touched himself in his "private areas", the Applicant's explanation is that he does do this when his fungal infection is itching, particularly during hot weather.[25] Based on the material presented, it appears the Respondent first became aware of the explanation at the hearing.

[32] No matters were brought to my attention that are relevant to this consideration. I regard it as neutral in my considerations.

• [33] Part 2 of the Code sets out detailed requirements that are expected to be followed where deactivation is being considered by a digital platform operator, outside of cases of serious misconduct. The Respondent has not at this stage made any submission to the effect that the conduct alleged against the Applicant did fall within the definition of serious misconduct prescribed in the regulations[26]. This is a submission that the Respondent might conceivably have ventilated at a later time not only as a Code compliance matter but as insofar as it arises under subsection 536LH(2), however the Respondent submitted at the hearing that it had chosen not to advance that submission.[27]

• [34] Where the Code does apply, it is reasonable to expect that it would be followed. Accordingly, it would be out of the ordinary course or unusual were this not the case. At this early stage of the proceedings it will generally be inappropriate to fully investigate whether the processes specified in the Code have been complied with. However, obvious strengths and weaknesses concerning compliance with those processes may be a factor weighing in support of or against extending time.[28]

• [35] The obvious weakness in this regard is the failure of Preliminary Deactivation Notice relied on by the Respondent to make any mention of the complaint the Respondent said it received on 15 October 2025, notwithstanding that this was the only complaint received since 2018 that the Respondent submits led to it issuing the preliminary deactivation notice.[29] A preliminary deactivation notice is required by paragraph (a) of subsection 11(1) of the Code to specify "the reason, relating to the capacity or conduct of the employee-like worker, for which the notice is given".

• [36] I express no concluded view on Code compliance matters in relation to matters preceding the first deactivation. I accept that the application of the Code may be problematic in cases of suspension, although it appears to operate on the basis that warnings should precede suspensions other than where warnings are not required under section 9 thereof; and that suspensions are permitted prior to a preliminary deactivation notice being issued provided there has been such a warning or the warning exemption applies. In submissions in relation to question of whether the event on 15 October was a deactivation, the Respondent submitted that the exemption in section 9 of the Code applied.[30] The issue was not fully argued before me.

[37] Exceptional circumstances are found in the failure of the Respondent to refer to the October complaint in the preliminary deactivation notice issued to the Applicant. This is sufficient to enliven the discretion to extend time in this case.

[38] However, I do not consider this is an appropriate matter for the discretion to be exercised. The delay in this case could not be described as minor in respect of either of the deactivations in issue. I am not satisfied of an acceptable reason for those delays nor is there a basis for finding that the Applicant would have acted any more promptly, or differently, had the failure of the Respondent to properly specify its concerns in preliminary deactivation not occurred. Whilst the Respondent was on notice of the Applicant disputing the first deactivation, it was not on notice of the dispute as to the final deactivation, which on any view is the more material matter with respect to the application for a remedy.

[39] Given my decision to not provide the Applicant with an extension of time, the substantive application must be dismissed. An order giving effect to this decision is published separately.

[40] Notwithstanding my decision on the extension of time, the communication difficulties experienced by the Applicant, and quality of assistance relied upon by him, have led to a situation where the Applicant's explanation for the conduct that was the subject of the October complaint, first became known to the Respondent at the hearing of the extension of time application (see paragraphs [25] and [31] above). It would be remiss of me, having regard to the Act's overarching objective of providing for cooperative workplace relations, not to encourage the Respondent to reflect on whether, had that explanation been given earlier, a final deactivation would have followed.

[1] Bandameeda v. Amazon Commercial Services [2025] FWCFB 182 at [44].

[4] See for example Alli [2026] FWC 20 at [5]; Arshad v. Rasier Pacific [2026] FWC 71 at [5]; Ahmad v. Rasier [2025] FWC 3224 at [10]; Bergh v. Portier Pacific [2025] FWC 307 at [33]; Bandameeda v. Amazon Commercial Services [2025] FWCFB 182 at [57] and [60].

[5] [2018] FWCFB 901

[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters) [2018] FWCFB 901 at [38]- [39].

[7] [2011] FWAFB 975.

[8] Bandameeda v. Amazon Commercial Services [2025] FWCFB 182 at [64].

[9] Mundell v. Avon Products [2013] FWC 1368, at [21], Nicolas v. Nortask [2014] FWC 5324 [62].

[10] Guite v. Inghams Enterprises [2024] FWC 2216 [25]-[30].

[13] Ali v. Rasier Pacific [2026] FWC 503 at [22].

[17] Bandameeda v. Amazon Commercial Services [2025] FWCFB 182 at [45].

[22] Clarke v. Service to Youth Council Incorporated [2013] FCA 1018 at [31]

[23] Withers v. Contare [2022] FWC 967 at [33]- [37].

[24] Exhibit R1 at hearing book pages 39 and 40.

[26] See 1.07(4)(c) of the Fair Work Regulations 2009.

[28] Bandameeda [2025] FWCFB 182 at [79].

[29] Respondent's F89A at paragraph 7-14 (Hearing Book page 32-33), as adopted at paragraph 42 of its written submissions (Hearing Book page 45).

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