s 536LU - Application for an unfair deactivation remedy

Application for an unfair deactivation remedy - compliance with the Code - application dismissed

• [1] On 21 August 2025, Mr Bilawal Khan (the Applicant) made an application pursuant to s 536LU of the Fair Work Act 2009 (Cth) (the Act) seeking an unfair deactivation remedy. In its Form F89A response, Rasier Pacific Pty Ltd (the Respondent) raised that it had complied with the Fair Work (Digital Labour Platform Code) Instrument 2024 (the Code). Whilst the Respondent initially pressed in its Form F89A that the Applicant had engaged in serious misconduct and therefore the Code did not apply to the deactivation, that jurisdictional objection was later withdrawn.

• [2] Briefly stated, I have concluded that the Respondent complied with the Code. It follows that the application is dismissed and on Order[1] issues concurrently with these reasons. My detailed reasons follow.

• [3] The broader background to this application has been extracted from the evidence of the Applicant, and, on behalf of the Respondent, Emilee Fairlie (Fairlie), Senior Manager, Industrial Relations. Where it has proved necessary to do so, I have drawn conclusions regarding the evidence or otherwise made findings.

• [4] The Applicant gave evidence that he had been a delivery driver on the Uber Eats platform from 2022 up until March 2025, when he worked as an Uber rideshare driver.

• [5] Fairlie stated that the Applicant entered into a driver partner services agreement (Services Agreement) with the Respondent on 29 March 2025 and commenced performing work as a driver (Driver Partner) on the digital labour platform operated by the Respondent (Uber Driver Platform) on 31 March 2025. The Applicant agreed that he had entered into the Services Agreement with the Respondent and took no issue with having been identified as a Driver Partner or that he utilised the Uber Driver Platform.

• [6] Clause 7.1 of the Services Agreement provided at subclause (a):

You may charge a Transportation Fee for each completed Trip provided to a Rider. Except as otherwise stated in this Agreement, the Transportation Fee is the only payment you will receive from Riders for the provision of Transportation Services to Riders.

• [7] Fairlie noted that by accepting the Services Agreement, the Applicant agreed to comply with the Community Guidelines, which were referred to at clause 5.1(f) of the Services Agreement in the following terms:

When you provide Transportation Services using the Uber Driver App, you must at all times do so safely and in a professional manner with due skill, care, courtesy and diligence. In addition, you must comply with the Community Guidelines and other Policies, and all laws that regulate or apply to you as a provider of point to point transport. This includes:

1. applicable discrimination laws, including requirements to provide Transportation Services to Riders with assistance animals. These apply in each State and Territory of Australia; and

• ii. applicable safety and point to point legislation, including in relation to fatigue management and fitness to drive. This may also include complying with reasonable instructions issued by Rasier Pacific as a provider licensed under applicable point to point legislation.[2]

• [8] The Community Guidelines set out, amongst other things, the following:

To enhance the safety of each experience, off-app pickups are prohibited. The law also prohibits street hails or touting while using the Uber Marketplace Platform, so never solicit or accept payment outside the Uber Marketplace Platform. Riders, merchants and Uber Eats users should not pay for trips or deliveries in cash, and riders should not request trips from drivers outside of the Uber Marketplace Platform.[3]

• [9] Insofar as the operations of the Respondent were concerned, Fairlie gave evidence that the Respondent has in place processes to evaluate the veracity of complaints made by users (Rider(s)) of the Uber Rider Platform. The Respondent's Community Operations Team is said to review a complainant's profile and history to understand if they have any 'fraudulent indicators', including:

(a) whether the system has automatically flagged the complainant as having a high adjustments and appeasements rate. This occurs when a customer has requested a disproportionate number of refunds within a certain timeframe. The Respondent's system will add a tag to the customer's account to deny further requests for refunds where this conduct has been identified;

(b) where the customer's account is not currently flagged by the system, whether the customer nevertheless has a historically high refund rate;

(c) the customer's history of safety incidents recorded on the Respondent's systems; and

• (d) whether the customer has raised several concerns of the same or similar content and nature.[4]

• [10] According to Fairlie on 16 July 2025 (complaint one) and 23 July 2025 (complaint two), the Respondent received two separate complaints from Riders that the Applicant had engaged in street touting, relevantly that he had requested them to cancel the trip on the 'Uber App' and pay him directly.[5]

• [11] Complaint one centred on a trip performed by the Applicant on 15 July 2025.

• [12] According to Fairlie the Rider responded 'true' to the Uber 'in-app' question 'My driver refused my destination'.[6] Complaint one was received by the Respondent from the Rider on 16 July 2025 at 2:18:44AM, it stated:

My driver's language was inappropriate / threatening : false My driver refused my destination : true Do not pair me with this driver again : false What did the driver partner say or do? : Hi. This is not a complaint about this trip. I cannot select the relevant trip. It is for Bilawal Khan Toyota Camry (1GEK980).\n\nHe accepted trip from airport. Once bags in boot and I am in the car, he then asked to see the price on my phone, and complained about the uber commission. He then demanded that I cancel the trip and tried to solicit that I pay him directly outside of Uber. When I refused he said I needed he would not take me and to get out the car. This is an obvious unacceptable safety issue. I have supporting information to submit to Uber as a part of this incident (e.g. photos, audio, video or documents to share) : true[7]

• [13] Following receipt of complaint one, on 16 July 2025, a member of Uber's Community Operations team (Community Operations team) notified the Applicant of complaint one by an in-app message on the Uber Driver Platform. The following passages are extracts of the correspondence between the Applicant and the Community Operations team on 16 July 2025:

hi bilawal, we wanted to reach out to you because we have received a report that your vehicle was used to provide rides outside of the uber driver app. if this is not the case, please let us know by replying to this message. just so you know, uber rides can only be requested through the app; 'street hail' and touting is not permitted under state regulations. driver-partners who ignore this policy may be deactivated. you can see our deactivation policy here . we want to make sure that the uber experience is a safe and comfortable one for all users, so we hope you understand our position. thank you for understanding.

dear uber support,\ni am writing to respond to a false complaint made against me, alleging that i was offering rides for cash outside the uber platform. i want to firmly deny this accusation.\n\nthe incident in question involved a passenger with excess luggage. as per uber's guidelines, i informed them that their number of bags exceeded the limit for a standard uberx ride and advised them to book an uberxl instead. i did not proceed with the trip and never asked for or accepted any cash.\n\nit seems the rider may have made this complaint in retaliation after i denied the ride. i take uber's policies and safety standards very seriously. i never allow anyone into my vehicle without a properly matched trip on the uber platform, and i fully understand that our insurance and safety protections only apply during official uber trips.\n\nthis situation has caused me considerable stress and concern, as i always strive to follow uber's rules and maintain high standards of professionalism.\n\nthank you for your understanding, and i kindly ask that this matter be reviewed fairly.\n\nbest regards

hi bilawal, thank you for following up and for sharing your

perspective and additional details. we truly appreciate it. we understand there are always two sides to every story, and it's important for us to hear yours. please know this message wasn't sent as an accusation, but simply to inform you of the report we received and to gently remind you to continue following our community guidelines moving forward. rest assured, no further action is being taken on your account, and you continue to have full access to the app. we appreciate your understanding and cooperation on this matter.

• [14] Fairlie gave evidence that on 16 July 2025 the Applicant was warned that his account could be deactivated if the conduct persisted (Deactivation Warning). The Respondent considered that its message to the Applicant dated 16 July 2025 at 02:31:24 AM constituted a 'Deactivation Warning'.

• [15] The Applicant and a member of the Community Operations team exchanged further correspondence in relation to complaint one.[8]

• [16] Fairlie explained that the Respondent utilises a system called Chronicle to record trip details and data, including a map and timeline of the trip on the 'Uber App'.[9] Fairlie gave evidence that she had reviewed the Chronicle trip data for complaint one following a review of the materials the Applicant had submitted for these proceedings.[10] It was Fairlie's evidence that upon her review of the Chronicle trip data for complaint one, the following had occurred:

(a) On 15 July 2025, the Rider's trip request was assigned to the Applicant at 11:55:46pm;

(b) On 16 July 2025, the Applicant arrived at the pick-up point at 12:00:28am and the Applicant cancelled the trip at 12:02:35am;

• (c) The Rider's trip request for an "UberX" trip (not an "UberXL" trip) was reassigned to another Driver Partner (whose name has been redacted for privacy reasons) at 12:07:09am, the second Driver Partner arrived at the pick-up point at 12:10:40am, commenced the trip at 12:11:34am and completed the trip for the Rider at 12:39:32am.[11]

• [17] Fairlie further explained that after receipt of the Applicant's materials for these proceedings, she reviewed the Respondent's records of the vehicles used by the Applicant and the second Driver Partner who completed the Rider's trip request on 16 July 2025, and the respective car manufacturer's specifications for luggage capacity for these vehicles.[12]

• [18] It was Fairlie's evidence that the Respondent records showed that the Applicant's vehicle was a 2016 Toyota Camry and the second Driver Partner's vehicle was a 2024 Subaru Crosstrek.[13] At hearing the Applicant agreed that his vehicle at the relevant time was a 2016 Toyota Camry (hybrid).

• [19] According to the specifications set out in the official Toyota Australia brochure for the 2016 Camry (as at October 2016 and provided by Fairlie), the 'cargo/boot capacity' is '421' litres for a hybrid model or '515' litres for a petrol model.[14] The Applicant did not disagree with these vehicle specifications. In respect of the Subaru 2024 Crosstrek, the cargo volume is '291' litres for a petrol model or '315' litres for a hybrid model.[15]

• [20] The Applicant submitted that complaint one arose after a customer requested an UberXL ride due to excess luggage. The Applicant stated that as he (presumedly his vehicle) did not have that capacity, he cancelled the trip in accordance with the Respondent's rules. The Applicant speculated that the customer appeared to have taken this personally and falsely reported him. The Applicant then gave evidence in his 'draft witness statement' that complaint one arose when a customer requested a ride with excess luggage and that he explained to the customer that they required an UberXL ride. The Applicant stated that he informed the Respondent that the complaint was false and provided clarification.

• [21] There is a disparity between what the Applicant provided in his submissions dated 1 October 2025 - that is, the Rider requested an UberXL ride due to excess luggage[16] - and his reply statement dated 22 October 2025, wherein the Applicant said that the Rider requested a ride with excess luggage, and that he explained to the Rider that they required an UberXL ride.[17] The latter explanation was mirrored in the Applicant's response to the Community Operations team.[18]

• [22] The Applicant submits that immediately after the cancellation, he accepted another trip through the Uber Driver Platform - which is recorded in Uber's own trip data and earnings record. According to the Applicant this proves that he continued to work through the Uber Driver Platform and did not engage in any cash transactions outside the 'App'. Furthermore, the Applicant presses that the complaint was made whilst he was on another active trip, which shows the complaint was mistaken or fabricated.

• [23] That the Applicant did not contravene his Services Agreement for subsequent work he performed through the Uber Driver Platform on 15 July 2025 does not demonstrate or 'prove' that the conduct referred to in complaint one did not occur. Furthermore, that complaint one was made whilst the Applicant was on another active trip does not evince a mistaken or fabricated complaint. In fact, the Rider in complaint one detailed that the complaint did not arise from the trip the Rider was on, but rather that the relevant trip (which the Rider could not select) was for 'Bilawal Khan Toyota Camry (1GEK980)'.

• [24] Fairlie stated that on 24 July 2025, the Respondent received a complaint from a different Rider about a trip performed by the Applicant on 23 July 2025.[19]

• [25] Complaint two purportedly received by the Respondent on 24 July 2025 at 11:24:47AM stated the following:

Amount paid/charged by taxi driver: : 0 Was the taxi trip

metered? (Yes/No) : No Can you please provide a detailed description of what the Driver asked? : As soon as I hopped into this car the driver straight away asked me how much uber had charged me and if I would like to cancel and pay him that amount directly, I refused and said that isn't how this works and I don't have any cash anyway in which he replied pay ID is fine. The whole trip home I was worried about him trying to scam more money from me when I got there. I expect better service than this especially being an uber one member and I'm not sure I'll use uber again now after this incident.[20]

• [26] The Applicant stated that he completed this trip fully through the Uber Driver Platform and was paid by Uber for the same, which, according to the Applicant, can be verified from the Respondent's payment records.

• [27] However, complaint two is not that the Applicant completed the trip absent the use of the Uber Driver Platform. The Applicant further noted that had he requested or accepted a cash payment, he would not have received the fare via Uber. I do not consider that this assertion assists the Applicant. Again, complaint two does not suggest that the Applicant accepted payment absent the use of the Uber Driver Platform and it does not follow that a request in and of itself would result in the Applicant not receiving the fare via Uber.

• [28] The allegation that the Applicant offered a 'PayID' option to the Rider, was, according to the Applicant untrue.

• [29] Fairlie stated that on 24 July 2025, a member of the Community Operations team notified the Applicant of complaint two by an in-app message on the Uber Driver Platform and the Applicant's access to his account was temporarily removed while the Respondent investigated complaint two (Suspension Notice).[21]

(a) between 24 July 2025 and 28 July 2025, the Applicant and members of the Community Operations team exchanged further correspondence in relation to complaint two;

(b) on 29 July 2025, a member of the Community Operations team and the Applicant had a telephone discussion regarding complaint two and the Respondent's investigation;

(c) following the telephone call, a member of the Community Operations team sent the Applicant an in-app message stating that his account would remain restricted while the Respondent reviewed the information it had gathered as part of its investigation;

• (d) between 29 July 2025 and 1 August 2025, the Applicant and members of the Community Operations team exchanged further correspondence in relation to complaint two and the Respondent's investigation.[22]

3 Preliminary Deactivation Notice and Final Deactivation Notice

• [31] Fairlie explained that the Respondent communicates to its Driver Partners through two means.[23] For important messages, such as warnings, preliminary deactivation notices and final deactivation notices, the Respondent will send an email to the Driver Partner's email address that is linked with their account, as well as an in-app message to the inbox on the Uber Driver Platform.[24]

• [32] On 4 August 2025, the Respondent sent an in-app message to the Applicant containing a preliminary deactivation notice (Preliminary Deactivation Notice).[25]

• [33] In accordance with the Preliminary Deactivation Notice, the Applicant had:

(a) seven days to provide a response to the Preliminary Deactivation Notice; and

• (b) two days to request a discussion with a representative of the Respondent.[26]

• [34] On 5 August 2025, the Applicant provided a written response to the Preliminary Deactivation Notice, and on the same date, the Applicant requested a telephone discussion with a representative of the Respondent.[27] On 6 August 2025, the Applicant and a member of the Community Operations Team had a telephone discussion regarding the Preliminary Deactivation Notice.[28]

• [35] Fairlie stated that she had reviewed the Respondent's internal system (JIRA record) to understand the process taken by the team member in the Community Operations team who assessed whether to proceed with the deactivation of the Applicant's account.[29] Fairlie made the following observations in respect of the JIRA record for the Applicant:

(a) On 11 August 2025, a member of the Community Operations team considered the Applicant's written and verbal responses to the Deactivation Warning, Suspension Notice, and the Preliminary Deactivation Notice.

(b) The Applicant's responses to the Preliminary Deactivation Notice did not require any additional lines of enquiry.

(c) The team member decided that the Applicant's access to the Uber Driver Platform should be deactivated because:

1. the Respondent had received two similar reports of the Applicant engaging in street touting only eight days apart;

1. there were no fraudulent indicators found in relation to the Riders who made the complaints; and

• iii. the Applicant's responses did not provide adequate information to refute the allegations made against him.[30]

• [36] Fairlie stated that on 12 August 2025, a member of the Community Operations team notified that Applicant via an in-app message, of the decision to permanently deactivate his access to the Uber Driver Platform due to complaint one and complaint two (Final Deactivation Notice).[31]

• [37] Fairlie gave evidence that an additional Rider complaint about the Applicant came to her attention in the process of preparing her witness statement.[32]

• [38] On 5 August 2025, the Respondent received a complaint from a Rider about a trip performed by the Applicant on 20 July 2025 (complaint three). Correspondence from the Rider regarding complaint three reads as follows:

Share what happened? : I was charged the time and distance fee because the driver made a mistake when entering the highway incorrectly, all because he was talking on his cell phone and not paying attention to the route. It is totally inappropriate and deceitful.

The App partner did not choose the best route : true I should not have been charged wait time fees : true

We encountered extra traffic or road construction : false

As I mentioned earlier, the driver was on his phone, like most of the Uber drivers I took at that time after work. If you look at the route, it's completely illogical, especially at almost 3 a.m. when there's no traffic at that time. It truly infuriates me because this isn't the first time I've had similar issues due to inappropriate behavior from the platform's drivers.[33]

• [39] It is uncontroversial that the Applicant was deactivated by the Respondent on 12 August 2025 and as such he is able to make an application (s 536LU(1) of the Act). His earnings from performing work for the Respondent in the 12-month period immediately preceding his deactivation were $24,271.55. These earnings fall below the contractor high income threshold that, if met or exceeded, would otherwise preclude the application being made (s 536LU(2) of the Act).

• [40] Having found that the Applicant was deactivated and that his earnings were below the contractor high income threshold, I am obliged under s 536LW of the Act to deal with the following initial matters before considering the merits of the application:

(a) whether the application was made within the period required in subsection 536LU(3);

(b) whether the Applicant was protected from unfair deactivation within the meaning of s 536LD; and

(c) whether the deactivation was consistent with the Code.

• [41] Relevant to the determination of the initial matters, I am satisfied that the Applicant was deactivated on 12 August 2025 and filed his unfair deactivation application on 21 August 2025, that latter date being within 21 days of the date of his deactivation.

• [42] The Applicant was an employee like worker, he performed work through or by means of the Respondent's digital platform and had been performing work for the Respondent on a regular basis for a period of at least 6 months at the time of his deactivation.

• [43] Having regard to the above, I am satisfied that the application was made within the required period (s 536LU(3)(a) of the Act) and that the Applicant was protected from deactivation at the time he was deactivated (s 536LD of the Act).

• [44] The third initial matter about which I must be satisfied before considering the merits of the application, is whether the Applicant's deactivation was consistent with the Code (s 536LW(c) of the Act).

• [45] Section 536LF informs that a person has been unfairly deactivated if the Commission is satisfied that the person has been deactivated from a digital labour platform, and the deactivation was unfair and the deactivation was not consistent with the Code.

• [46] A person's deactivation will be consistent with the Code, if, at the time of the deactivation, the digital labour platform operator complied with the Code in relation to the deactivation (s 536LJ(3) of the Act). I now turn to consider whether the Respondent complied with the Code.

• [47] The Code requires an employee like worker to be given a warning notice in writing before deactivation and sets out the matters that must be dealt with in the warning.[34] Section 9 of the Code provides an exception to the requirement to provide such a warning. That is where a digital labour platform operator 'believes on reasonable grounds' that the worker's conduct or capacity warrants immediate modification or suspension, or it is not reasonable to allow continued access to the platform.

• [48] On 16 July 2025, the Applicant received the Deactivation Warning in response to complaint one. Returning to s 8(2) of the Code, the deactivation warning must include the following:

(a) the reason, relating to the employee-like worker's conduct or capacity for which it is given; and

(b) state that the worker risks being deactivated from the digital labour platform if:

(i) the worker does not, within a reasonable time, remedy the matters that are the subject of the warning; or

(ii) the reason for giving the warning continues or is repeated; or

(iii) another issue, relating to the worker's conduct or capacity, arises; and

(c) state that the worker may seek assistance or support from a person (other than a lawyer acting in a professional capacity), who may be a delegate or an employee of an organisation, in relation to the deactivation warning.

Note 1: For organisation in paragraph (c), see section 12 of the Act.

Note 2: The worker may also appoint a person to provide the worker with support or representation (see section 16).

• [49] The Code contains various mandatory requirements including those dealt with above. The mandatory nature of those obligations is made clear by use of the term must when describing specific actions that must be taken by digital platform operators in complying with relevant requirements of the Code. Compliance with s 8(2) of the Code constitutes a pre-requisite for finding compliance with the Code in circumstances where the exceptions in s 9 of the Code do not apply.

• [50] It is evident that the Deactivation Warning did not comply with s 8(2)(c) of the Code. That is, there is no reference in the Deactivation Warning to the Applicant being able to seek assistance or support from a person (other than a lawyer acting in a professional capacity) - whether a delegate or an employee organisation.

• [51] However, the Respondent submits that the Deactivation Warning met the requirements of s 8(1) and (2) of the Code in circumstances where it notified the Applicant that he risked the deactivation of his access to the Uber Driver Platform due to street touting, and he risked deactivation if the issue continued. The Respondent presses that the Deactivation Warning provided sufficient information to enable a reasonable person in the position of the Applicant to understand the matters in the notice[35] because it was written in plain English and clearly set out the risk of deactivation from complaint one (touting) and the continuation of the risk of deactivation if the issue continued.

• [52] According to the Respondent, a reasonable person in the position of the Applicant would understand from the Deactivation Warning that his conduct on the Uber Driver Platform was in breach of the Community Guidelines, posed a safety risk to riders and other road users, and that he needed to take steps to improve.

• [53] Whilst I am unpersuaded that the Respondent met the mandatory requirement in s 8(2)(c), I am nevertheless of the view that the Deactivation Warning complied with s 8(3) of the Code. On any objective level the Applicant had been placed on notice that the conduct complained of in complaint one was not tolerated and that continued touting risked his deactivation from the Uber Driver Platform.

5.1.2 Exception to the provision of a deactivation warning

• [54] With respect to complaint two, the Respondent does not rely upon s 8 of the Code, noting that it was not required to issue the Applicant a deactivation warning given the seriousness of the Applicant's conduct and its reliance on the exception in s 9 of the Code.

• [55] As noted, s 9 of the Code provides an exception to the requirement to provide such a warning. That is where a digital labour platform operator 'believes on reasonable grounds' that the worker's conduct or capacity warrants immediate modification or suspension of access to the digital labour platform, or it is not reasonable to allow continued access to the platform.

• [56] It is uncontroversial that the Applicant was sent a written notice on 24 July 2025, detailing that due to complaint two his access to the Uber Driver Platform was temporarily removed while the Respondent investigated the complaint. The Applicant pressed that he did not receive any in-app message or warning from the Respondent immediately after the trip the subject of complaint two. According to the Applicant his account was suddenly suspended the next morning without any prior opportunity to respond or clarify the situation.

• [57] Regarding the Respondent's reliance on the exception in s 9 of the Code, the Respondent considered that the street touting, which it said occurred on 24 July 2025, was such that it:

(a) warranted immediate suspension to the Applicant's access to the Uber Driver Platform because of the risk to riders' health and safety, as could be seen in the in-app message sent to the Applicant on 24 July 2025; and

(b) it was not reasonable for the Respondent to allow the Applicant to continue to perform work through or by means of the Uber Driver Platform.

• [58] According to the Respondent, it was reasonable for it to immediately suspend the Applicant's access to the platform in circumstances where the Applicant's conduct amounted to fraudulent or dishonest conduct.[36] It is observed that the 'Note:' to s 9 of the Code sets out examples of when s 9(1) might apply, those examples include where immediate suspension is required for health or safety reasons or whether the conduct is fraudulent or dishonest.

• [59] The Respondent highlighted that street hailing and touting is deemed fraudulent conduct under the Community Guidelines as it involves a Drive Partner 'accepting trip... requests without the intention to complete, including provoking riders... to cancel for fraudulent purposes... claiming fraudulent fees or charges...' and can result in financial loss to the Respondent.[37]

• [60] The Respondent considered that the Applicant's fraudulent or dishonest conduct disposed of its requirement to provide a deactivation warning.

• [61] Whilst the Applicant did not receive a warning prior to deactivation, I am satisfied that the Respondent was not required to provide a warning in accordance with s 8 of the Code. I am of the view that the Respondent had reasonable grounds to believe the alleged misconduct engaged in by the Applicant fell foul of the requirement in the Services Agreement that the 'Transportation Fee is the only payment' the Driver Partner 'will receive from Riders for the provision of Transportation Services to Riders'.[38] Further, whilst the Community Guidelines in question appear to reflect the guidelines provided to the Applicant when he was initially an Uber Eats Driver Partner, those Community Guidelines from 2022 set out a prohibition on accepting a trip without the intention to complete and provoking riders to cancel for fraudulent purposes.[39]

• [62] It follows that the alleged conduct warranted immediate suspension of the Applicant's access to the platform, and it was not in my view reasonable to allow the Applicant to continue to perform work via the Uber Driver Platform while an investigation was conducted. I am satisfied that the suspension of the Applicant's access to the platform without provision of a deactivation warning was permitted by s 9 of the Code having regard to the nature of the Applicant's alleged misconduct.

• [63] Under s 11 of the Code, the Respondent was required to give the Applicant a preliminary deactivation notice that specifies those matters in s 11(1)(a)-(d) of the Code.

• [64] The Preliminary Deactivation Notice issued to the Applicant on 4 August 2025 set out the reason relating to the conduct of the Applicant, for which the notice had been given in accordance with s 11(1)(a) of the Code. In particular, it specified multiple instances of street hailing or touting and provided the dates of complaint one and complaint two.

• [65] Furthermore, the Preliminary Deactivation Notice expressly stated that 'we are considering terminating your access to the Uber Driver app', in accordance with s 11(1)(b) of the Code.

• [66] The Preliminary Deactivation Notice set out that prior to the Respondent making a final decision, the Applicant had an opportunity to respond to the Preliminary Deactivation Notice. This accords with s 11(1)(c)(i) of the Code. It further provided that the Applicant may request a discussion with a representative of the Respondent (s 11(1)(c)(ii) of the Code) and that the Applicant could seek support or representation during the process (ss 11(1)(d) and 16 of the Code). It follows that the Preliminary Deactivation Notice included sufficient information that would enable a reasonable person in the position of an employee like worker, such as the Applicant, to understand the matters that are mentioned in s 11(1) of the Code (s 11(2) of the Code). I am consequently satisfied that the Respondent complied with all the relevant requirements of s 11 of the Code.

• [67] Section 12 of the Code allows a digital labour platform operator to modify or suspend an employee-like worker's access to the digital labour platform. I am satisfied that the Respondent complied with s 12, as it had a right to suspend the Applicant's access and the Preliminary Deactivation Notice complied with the Code's requirements.

• [68] The Preliminary Deactivation Notice specified the time and day from which the suspension was to take effect.[40] That is, the suspension took effect immediately from the time and date of the notice, being 4 August 2025.[41] In addition, the Preliminary Deactivation Notice outlined the consequences of the suspension, being that the Applicant would be unable to accept or complete trips during the suspension period.[42] It is apparent that the notice of the Applicant's suspension was given as part of the Preliminary Deactivation Notice, as required by s 12(4)(b) of the Code.

5.1.5 The Applicant's response to the Preliminary Deactivation Notice

• [69] Section 13 of the Code provides that the employee-like worker may respond to a preliminary deactivation notice given to the worker by a digital labour platform operator - noting that the response must be given in the period specified on the preliminary deactivation notice, or within a longer period as agreed between the operator and the worker.[43] Furthermore, the response may be given by the employee-like worker orally or in writing.[44] If provided by the employee-like worker orally, the response may be given in a discussion held between a representative of the operator with the employee-like worker within the period stipulated in the preliminary deactivation notice.[45] The digital labour platform operator is obliged to make a representative available for the purpose of the discussion within a reasonable time[46] - noting that it is open to the employee-like worker to request the discussion.[47]

• [70] The evidence shows that the Respondent complied with s 13 of the Code in affording the Applicant an opportunity to respond to the Preliminary Deactivation Notice. In accordance with s 13(2) and (3) of the Code, the Applicant provided a written response to the Preliminary Deactivation Notice on 5 August 2025, and on that same date the Applicant requested a discussion with a representative of the Respondent. The evidence shows that on 6 August 2025, a representative of the Respondent called the Applicant and held a discussion with him about his Preliminary Deactivation Notice. The steps taken by the Respondent after issuing the Preliminary Deactivation Notice, in this respect, met the requirements of s 13 of the Code.

5.1.6 Consideration of the Applicant's response by the Respondent

• [71] Section 13(7) of the Code sets out that a human representative of the digital labour platform operator must consider the employee-like worker's response (if any), including the discussion (if any) between the worker and the digital labour platform operator's representative. There also rests an obligation on the digital labour platform operator to make further inquiries as are reasonably warranted after considering the employee-like worker's response.

• [72] I am satisfied, based on the evidence that has been given, that a human representative of the Respondent considered the Applicant's responses including the written responses to the Deactivation Warning and the Supsension Notice, the telephone call on 29 July 2025, the written response to the Preliminary Deactivation Notice and the telephone call on 6 August 2025, and determined, as it was open to do, that no further enquiries were reasonably necessary.

• [73] As to the requirements of s 14 of the Code, I consider that the Respondent complied with ss 14(1) and (2) by deciding to terminate access and notifying the Applicant of this as soon as reasonably practicable. The Applicant was provided with a Final Deactivation Notice on 12 August 2025, which contained sufficient information to enable the Applicant to understand the issues as it was in plain English.

• [74] I am satisfied that the reason for termination of the Applicant's access to the Uber Driver Platform was a valid one (see s 14(4)(a) of the Code), as the Applicant had failed to meet his obligation under the Services Agreement and the Community Guidelines.

• [75] In the decisions of Kumar v Portier Pacific Pty Ltd[48] ('Kumar') and Mohamad v Portier Pacific Pty Ltd[49] ('Mohamed') the term 'valid reason' as referred to in the context of s 14(4)(a) of the Code, has been interpreted differently to the term as referred to in s 387(a) of the Act and in s 536LH(1)(a) of the Act.[50] In Kumar, Deputy President Saunders explained that the requirement in s 14(4)(a) of the Code - that the reason is a 'valid reason' - should be understood as a test of the quality of the reason, he continued at paragraph [8]:

...That is, whether the reason is valid in the sense of being "sound, defensible or well-founded," and not "capricious, fanciful, spiteful or prejudiced". A reason that is "valid" will involve something more than a minor failing or trivial misdemeanour, and must be of sufficient gravity or seriousness to justify deactivation. This is a question of characterisation, not proof. The Commission's role under the Code is to evaluate whether the reason being relied on by the operator for deactivation meets this standard of being a "valid reason", rather than to determine whether the alleged conduct occurred.

• [76] In Mohamed, Deputy President Colman agreed that the requirement of 'valid reason' in the context of s 14(4)(a) of the Code tests the quality of the reason, not its proof. The Deputy President explained that this was clear from the requirement in s 14(4)(b) that the operator consider 'on reasonable grounds' that the relevant reason has been established. At paragraph [4], the Deputy President further explained:

...In this regard, the expression 'valid reason' in s 14 of the Code differs from its cousin in s 387 of the Act, which requires that the Commission be satisfied that the reason is both a good reason and one that is factually substantiated. Of course, what may constitute 'reasonable grounds' will depend on all the circumstances, including the arguments and evidence presented to the operator by the worker about the facts that pertain to the reason in question. In the present case, based on the witness evidence before the Commission, I was satisfied that Uber did consider on reasonable grounds that its reason was established, as required by s 14(4)(b) of the Code.

• [77] In my view, based on the evidence of Fairlie, which I accept, the Respondent had, through its Services Agreement, stipulated that an employee-like worker was only entitled to charge a rider a 'Transportation Fee for each completed Trip provided to a rider' and that the 'Transportation fee is the only payment' an employee-like worker will receive from a Rider for the 'provision of Transportation Services to Riders'. This prohibition was further articulated in the Community Guidelines which expressly disallow 'off-app' pickups and the acceptance of payment outside of the platform. The Community Guidelines expressly preclude provoking riders, merchants or Uber Eats users to cancel for fraudulent purposes.

• [78] The abovementioned requirements of the Respondent are reasonable requirements in light of the risk that street hailing and touting (including soliciting cash payment from Riders even if they do not accept a Driver Partner's request) pose to the Respondent and Riders. These risks, as articulated in the witness statement of Fairlie, which I accept, are as follows:

(a) the safety of Riders who use the Uber App. This is because trips are cancelled and taken 'offline' by the Driver Partner. This results in a lack of driver accountability as there is limited information and no tracking of the trip by the Uber App, and it impacts the Rider's ability to contact the Respondent's safety support team should anything go wrong;

(b) the Respondent's reputation. Riders who have been asked by Driver Partners to take trips off the Uber App typically have a negative experience and it impacts consumer trust in the Respondent;

• (c) the profitability of the Respondent. The Respondent does not receive the payment it is entitled to for facilitating the trip between the Rider and the Driver Partner.[51]

• [79] In my assessment, the valid reason relied upon by the Respondent was one contemplated by s 19(2), (4) and (7) of the Code.

• [80] To explain further, in respect to complaint one and complaint two, the Respondent considered the veracity of the complaints. The complainants (Riders) were separate individuals both of whom demonstrated no 'fraudulent indicators'. From the Respondent's JIRA record, it appears that the Rider in complaint one had been using the 'Uber App' for eight years and five months and had no fraudulent history.[52] Regarding complaint two, the second Rider had been using the 'Uber App' for 11 years, also with no fraudulent history.[53]

• [81] Within the course of eight days, the Respondent received two complaints from Riders with no fraudulent indicators concerning the same subject matter. That subject matter was purported dishonest conduct of the Applicant - such that the Applicant had sought to procure from the Riders the cancellation of their trips on the 'Uber App' and that they would then pay him directly.[54] As identified by Fairlie, this reported conduct had safety, reputational and profitability risks for the Respondent.

• [82] In respect to complaint one, I find the Applicant's explanation for the cancellation of the trip implausible given the evidence adduced by the Respondent. I am unpersuaded by the Applicant's explanation for the trip cancellation in light of the evidence adduced about the luggage capacity of the Applicant's vehicle and the vehicle that subsequently accepted the trip, the complaint itself, and the veracity of the Rider. The Respondent's Chronicle trip data demonstrates that after the Applicant cancelled the trip, another Driver Partner accepted and completed the Rider's 'UberX' (and not 'UberXL') trip. The Applicant's 'UberX' trip request was completed by a second Driver Partner and the second Driver Partner's vehicle had, in fact, less luggage capacity than the Applicant's vehicle. The evidence of the Respondent is compelling when compared to the evidence proffered by the Applicant.

• [83] Following complaint one, the Respondent warned Applicant about the conduct, placing the Applicant on notice that the conduct complained of in complaint one was not tolerated and that continued touting risked his deactivation from the platform.

• [84] However, within a short period of eight days, the Respondent received complaint two, this was despite the Deactivation Warning that had been provided to the Applicant. The evidence before the Respondent at this stage warranted, as noted, the immediate suspension of the Applicant's access to the platform.

• [85] Two separate Riders reported, only eight days apart, that the Applicant requested they cancel the trip on the 'Uber App' and pay him directly (demonstrating repeated street touting). Those Riders had no fraudulent indicators, and both had an extended period of use of the 'Uber App'. The Applicant's version of events in relation to complaint one lacks any supporting evidence and is contrary to the Respondent's documentary evidence. The second incidence occurred subsequent to the Deactivation Warning. These factors provide solid foundation for the Respondent having reasonable grounds that the 'valid reason' had been established. The evidence of Fairlie was detailed and convincing and, as noted, I accept it.

• [86] The Respondent had a valid reason for deactivating the Applicant's account because:

(a) the evidence before the Respondent supported that the Applicant had engaged in dishonest conduct (see s 19(7) of the Code), by soliciting cash payments for trips facilitated by the Uber Driver Platform so that they would not be processed through the Uber Driver Platform; and

(b) the abovementioned conduct of the Applicant gave rise to an unacceptable health and safety risk for Riders (see s 19(4) of the Code), constituted a failure to meet the Uber Driver Platform obligations (see s 19(2)(c) of the Code) and breached the Community Guidelines (see s 19(2)(d) of the Code), whilst posing a risk to the Respondent's reputation.

• [87] The evidence bears out the Respondent's compliance with each element and sub-element of the Code (not all of these are recorded above), including the Respondent's reasonable grounds for considering that its reason for termination had been established. In arriving at this conclusion, it has proved unnecessary to refer to complaint three. Whilst there was direct evidence of the Riders' complaints in respect of complaint one and complaint two, there was no evidence from the Riders in person (viva voce evidence) or in the form of witness statements. However, I do not consider it appropriate, realistic or necessary to involve the Respondent's customers in a deactivation dispute of this kind, where the evidence before me has been sufficient to make out the Respondent's case.

[1] PR793524.

[2] Witness Statement of Emilee Fairlie dated 15 October 2025 (Fairlie Statement), [Attachment A].

[7] Ibid [16]-[17], [Attachment E].

[16] Digital Hearing Book (DHB), 6.

[34] Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024 (Code), s 8(1)-(2).

[36] As per the note contained in s 9 of the Code.

[37] Respondent's Submissions dated 15 October 2025 [21], quoting Fairlie Statement (n 2) [Attachment B]; DHB (n 16) 70.

[38] Fairlie Statement (n 2) [Attachment A, clause 7.1(a)].

[39] Ibid [Attachment B]; DHB (n 16) 70.

[40] Fairlie Statement (n 2) [Attachment N].

[48] [2025] FWC 2275, [8].

[49] [2025] FWC 2337, [4].

[50] See Hotak v Rasier Pacific Pty Ltd [2025] FWCFB 214, [94].

[52] Ibid [Attachment O]; DHB (n 16) 103.

[53] Fairlie Statement (n 2) [Attachment O]; DHB (n 16) 103.

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