s.536LU - Application for an unfair deactivation remedy

Application for an unfair deactivation remedy - not a person protected from unfair deactivation under 536LD(c) - Work not performed on a regular basis

• [1] Mr Brendan Crowle was a driver with DoorDash Technologies Pty Ltd. On 26 August 2025, Mr Crowle applied to the Fair Work Commission for an unfair deactivation remedy under s 536LU of the Fair Work Act 2009 (Cth).

• [2] DoorDash raised a jurisdictional objection that Mr Crowle is not a person who is protected from unfair deactivation.

• [3] Mr Crowle strongly contests the fairness of his deactivation. In this decision, I do not deal with his submissions in relation to whether the deactivation was unfair, within the meaning of the Act or more broadly. This decision is only about whether Mr Crowle is a person who is protected from unfair deactivation.

When is a person protected from unfair deactivation?

• [4] Section 536LD of the Act sets out when a person is protected from unfair deactivation:

A person is protected from unfair deactivation at a time if, at that time:

(i) performs work through or by means of a digital labour platform operated by a digital labour platform operator; or

(ii) performs work under a services contract arranged or facilitated through or by means of a digital labour platform operated by a digital labour platform operator; and

(c) the person has been performing work through or by means of that 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 6 months.

• [5] There is no dispute that Mr Crowle performed work through or by means of a digital labour platform operated by a digital labour platform operator or under a services contract facilitated by a digital labour platform operator. Mr Crowle confirmed that he accepted a services agreement on his phone before performing work for DoorDash, and agreed with DoorDash that this was around 19 January 2025.

• [6] There is also no dispute that DoorDash deactivated Mr Crowle on 7 August 2025.

• [7] DoorDash provided a Delivery History Report that shows that Mr Crowle worked on 13 days and accepted 36 deliveries across those 13 days. Those days were:

• Saturday, 8 February 2025
• Friday, 20 June 2025
• Thursday, 10 July 2025
• Thursday, 17 July 2025
• Friday, 18 July 2025
• Saturday, 19 July 2025
• Wednesday, 23 July 2025
• Thursday, 24 July 2025
• Saturday, 26 July 2025
• Thursday, 31 July 2025
• Friday, 1 August 2025
• Sunday, 3 August 2025

• [8] Mr Crowle's evidence was that he cannot recall the exact dates but that he agreed they would be roughly accurate, and he agreed that he had completed about 30 deliveries. I accept the evidence provided by DoorDash; Mr Crowle does not dispute the accuracy of the dates nor the number of deliveries he performed.

• [9] Section 536LD(c) requires that the person has been performing work on a regular basis for at least 6 months. The period of time that Mr Crowle performed work has been at least 6 months. However, the work he performed was not on a regular basis.

• [10] The Act does not define 'on a regular basis.' Section 18 of the Digital Labour Platform Deactivation Code provides some circumstances in which work is taken to be work performed on a regular basis. Those circumstances are:
  • on average 60 hours of paid work each month: s 18(2); or
  • paid work on 3 days of each week: 18(3).

• [11] Clearly, Mr Crowle has not performed work that meets the circumstances provided in the Code.

• [12] However, the Code does not provide an exhaustive list of when work is performed on a regular basis. There is some guidance in relation to what 'regular' may mean in the Act, as the term is used in relation to casual employees in Part 3-2 of the Act, which deals with unfair dismissal. In order for a casual employee to be protected from unfair dismissal, s 384 of the Act requires that they had a minimum period of service as a 'regular casual employee,' and had a reasonable expectation of continuing employment during that period of service. 'Regular casual employee' is defined in s 12 of the Act to mean employed on a 'regular and systematic basis.'

• [13] Casual employment and performing work through or by means of a digital labour platform have some similarities. In this matter, there is a key fundamental difference. A casual employee is offered work, which they may refuse. An employee-like worker who performs work through, or by means of a digital labour platform, chooses for themselves whether and when they perform work. Mr Crowle succinctly submitted:

It should be my choice on how much I work, how many deliveries I take. It's my choice and not DoorDash's.

• [14] Parliament has chosen to condition the access to protection from unfair deactivation with the requirement that the employee-like worker performs work on a regular basis. I must interpret 'regular' using its plain and ordinary meaning. As the jurisdiction is a protective one, I consider it appropriate to construe 'regular' in a beneficial way. The plain and ordinary meaning of regular implies some form of repetition or pattern, but frequency, constancy and uniformity are not required.

• [15] That frequency, constancy or uniformity is not required is supported by section 18(5) of the Code, which provides:

An employee-like worker may be taken to perform work on a regular basis through or by means of a digital labour platform even though the worker elects, in some weeks, not to perform any work through or by means of the platform.

• [16] There is no regularity in the work that Mr Crowle has performed for DoorDash. He performed work in February and then performed no work through DoorDash for the months of March, April and May. In June he performed work on one day. In July, he performed work more often, and there appears to be a pattern of work on days towards the end of the week. In August he works for two days. On 7 August 2025, DoorDash deactivated Mr Crowle's account.

• [17] That Mr Crowle did not work at all in the months of March, April and May further supports a finding that he did not perform work on a regular basis. His total period of engagement with DoorDash is 6 months and 19 days but for 3 months of that period he did not work at all.

• [18] I am not satisfied that Mr Crowle has performed work through or by means of a digital labour platform on a regular basis for at least six months. So, he is not a person who is protected from unfair deactivation and his application must be dismissed.

• [19] I order that Brendan Crowle's application for an unfair deactivation remedy under FWC Matter No UDE2025/223 lodged on 26 August 2025 be dismissed.

Mr A Mollison, of Lander & Rogers, with permission, on behalf of the Respondent.

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