s.536LU - Application for an unfair deactivation remedy

Application for an unfair deactivation remedy - out of time - no exceptional circumstances - application dismissed

• [1] Fahad Memon commenced performing delivery work for Portier Pacific Pty Ltd (Uber) using the Uber Delivery Platform on around 18 June 2025. Mr Memon's account was deactivated by Uber on 5 October 2025 because he allegedly failed to deliver orders. Mr Memon strongly disputes any wrongdoing and says he always followed advice from Uber's Support Centre. Mr Memon filed an application for an unfair deactivation remedy on 8 November 2025. The application was filed 13 days after the 21-day lodgement period ended on 26 October 2025. As a result, Mr Memon requires an extension of time to be able to proceed with the application.

• [2] An extension of time can be granted on a discretionary basis if the Commission is satisfied there are exceptional circumstances taking into account the factors listed in s.536LU(4) of the Fair Work Act 2009 (FW Act). This decision concerns whether an extension of time should be granted to Mr Memon.

• [3] The reason identified by Mr Memon for not filing his application within 21 days of being deactivated is that he was disputing the deactivation internally with Uber and was not aware he could make an application to the Commission.

• [4] It is well established that ignorance of the statutory provisions is not a satisfactory explanation for filing an application late.[1]

• [5] I do not consider Mr Memon has a satisfactory explanation for the delay. I consider this factor weighs against finding there are exceptional circumstances.

Whether Mr Memon became aware of the deactivation after it had taken effect

• [6] Mr Memon became aware of his deactivation on 5 October 2025, which is the day the deactivation took effect. I consider this is a neutral factor.

• [7] Mr Memon has provided evidence that he has been raising his concerns about being deactivated directly with Uber since 6 October 2025. Mr Memon has provided detailed emails explaining why he considers his deactivation was unfair. Unfortunately, it does not appear that Uber has taken the time to provide Mr Memon with an adequate response. I consider Mr Memon has taken actions to dispute the deactivation.

• [8] I consider this factor weighs strongly in favour of finding there are exceptional circumstances.

• [9] I do not consider there is significant prejudice to Uber. I consider prejudice is a neutral factor.

• [10] Mr Memon accepts that he only worked for Uber from around 18 June 2025 until 5 October 2025. That means Mr Memon is not a person protected from unfair deactivation because he did not perform work on a regular basis for at least 6 months as required by s.536LD(c) of the FW Act. Mr Memon is not eligible to make an unfair deactivation application. The Commission does not have the power to reinstate Mr Memon to working for Uber.

• [11] I find the merits of the application weigh extremely heavily against a finding of exceptional circumstances.

Fairness between Mr Memon and other workers in a similar position

• [12] I do not consider this factor to be very relevant in this case. I consider this is a neutral factor.

Processes specified in the Digital Labour Platform Deactivation Code

• [13] Uber provided Mr Memon with notice that his account was at risk of deactivation on 26 September 2025. However, it is not clear that Uber has given any genuine consideration to the responses provided by Mr Memon. I consider the processes in the Digital Labour Platform Deactivation Code to be a neutral factor.

• [14] Briefly, exceptional circumstances are 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 test of "exceptional circumstances" establishes a "high hurdle" for an applicant for an extension.[4]

• [15] I have found Mr Memon took several actions to dispute his deactivation. However, I do not consider these actions are sufficient in isolation to justify a finding of exceptional circumstances. The merits of the application weigh heavily against finding exceptional circumstances because Mr Memon accepts that he had not completed the minimum work period of 6 months. Mr Memon has also not provided a sufficient explanation for the delay.

• [16] Mr Memon suggested he had identified an article which indicates a deactivation can be found to be unfair even if the person has not completed the minimum working period of 6 months. If such an article exists, it is wrong. There is no discretion in relation to the application of the minimum 6-month working period, the period has either been completed or it has not. If the minimum working period has not been completed, the person is not eligible to make an unfair deactivation application.

• [17] Mr Memon misunderstood statements I made about his case during the hearing on 10 December 2025. I indicated to Mr Memon that if his version of events is correct, I can see why he feels aggrieved about the deactivation. However, I also stated that I cannot determine whether Mr Memon's version of events is correct because I have not heard Uber's evidence about the deactivation. There is no point in making any findings in relation to the fairness of Mr Memon's deactivation in this case because Mr Memon was not a person protected from unfair deactivation.

• [18] Having regard to all the matters identified in s.536LU(4) of the FW Act, I am not satisfied that there are exceptional circumstances.

• [19] I decline to grant an extension of time for the filing of Mr Memon's application.

• [20] Mr Memon's application is dismissed.

Ms L Sim from Dentons Australia Limited representing Uber with permission.[5]

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1 at [14].

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

[3] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[4] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

[5] Mr Memon did not oppose permission being granted for Uber to be represented. I was satisfied granting permission would enable the matter to be dealt with more efficiently.

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