Fair Work Act 2009

s.536LU - Application for an unfair deactivation remedy

Application for an unfair deactivation remedy - application dismissed

• [1] Ms Gerhson Tavares Gentil has lodged an application in the Fair Work Commission claiming that she was unfairly deactivated by Portier Pacific Pty Ltd trading as Uber Eats.

• [2] Uber contends that Ms Gerhson Tavares Gentil is not protected from unfair deactivation because she did not work for Uber for at least six months before her deactivation.

• [3] Ms Gerhson Tavares Gentil agrees that her engagement by Uber spanned less than six months, but she requests that the Commission "allow this matter to proceed to a full consideration on the merits, in the interests of fairness and to uphold the principles intended by the Fair Work Act".

• [4] The Commission may only order a remedy for unfair deactivation if it is satisfied that the person was protected from unfair deactivation (s 536LP(1) of the Act).

• [5] A person is protected from unfair deactivation at a time if, at that time, the person, amongst other things, has been performing work through or by means of a digital labour platform, or under a contract, or a series of contracts, arranged or facilitated through or by means of the digital labour platform, on a regular basis for a period of at least six months (s 536LD(c) of the Act). There is no dispute that Ms Gerhson Tavares Gentil has not met this requirement. Accordingly, Ms Gerhson Tavares Gentil was not, at the time of her deactivation, a person protected from unfair deactivation. It follows that the Commission does not have jurisdiction or power to consider or determine the fairness of Ms Gerhson Tavares Gentil's deactivation.

• [6] For the reasons stated, Ms Gerhson Tavares Gentil's unfair deactivation application against Uber must be dismissed.

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