s.536LU - Application for an unfair deactivation remedy

Application for an unfair deactivation remedy - applicant was protected from unfair deactivation - low customer satisfaction rating - compliance with the Digital Labour Platform Deactivation Code - application dismissed. Application for an unfair deactivation remedy

• [1] Mr Toldi has made an application (Application) to the Fair Work Commission (Commission) for an unfair deactivation remedy pursuant to s.536LU of the Fair Work Act 2009 (Cth) (Act). The Respondent, Portier Pacific Pty Ltd, trades as Uber Eats (Uber Eats/the Respondent).

• [2] Mr Toldi submits that his deactivation from the Uber Eats digital labour platform (Uber Eats App) is unfair, as circumstances beyond his control contributed to his customer satisfaction rating dropping below the minimum 85%, as provided for in Uber Eats' Community Guidelines. He also alleges that the deactivation was inconsistent with the Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024 (Code).

• [3] Uber Eats submits that it has complied with the Code as Mr Toldi had been sufficiently warned about his sustained low ratings and that he was at risk of deactivation, his rating had continued to decrease, his conduct in relation to these warnings had been established, and that he had continued to fail to meet the minimum satisfaction rating required to maintain access to the Uber Eats App. It submits that there was a valid reason for Mr Toldi's deactivation and that it was not unfair.

• [4] Having considered the evidence filed and submissions made by the parties, I have determined that Mr Toldi's deactivation was not unfair, and that the Respondent complied with the Code.

Hearing, Legal Representation, Evidence and Submissions

• [5] There being contested facts involved, the Commission is obliged by s.536LX of the Act to conduct a conference or hold a hearing.

• [6] After considering the views of Mr Toldi and the Respondent, and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter (per s.536LZ of the Act).

• [7] The Respondent sought to be represented before the Commission by a lawyer. Mr Toldi did not oppose the grant of permission.

• [8] Relevantly, s.596(1) of the Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission.

• [9] Section 596(2) provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter before the Commission only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

• [10] The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with s.596 of the Act. The decision to grant permission is a two-step process. First, it must be determined whether one of the requirements in s.596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.

• [11] On the question of representation, the Respondent submitted under s.596(2)(a)-(c), that permission to be represented ought to be granted on the following bases:

• a) it would assist the Commission to determine the Application more efficiently due to the complexity of the matter,[1] as this is an unsettled area of law without precedent in many respects, including on this particular jurisdictional issue;

b) it would assist the Commission with, among other things, statutory interpretation to give effect to Parliament's intention for Part 3A-3 and identifying where or if settled common law concepts may be usefully employed by the Commission in determining the matter;

c) it would ensure that the hearing is conducted efficiently, streamlining issues and ensuring that the case is determined promptly;

d) the Respondent's in-house lawyers are not engaged to be advocates and are largely providing advisory assistance in relation to the day-to-day operations of the Respondent. As such they do not have adequate remaining time to devote to the work required to prepare matters before the Commission and representation ensures the Respondent is properly and consistently represented;

e) representation would also assist the Commission in conducting a fair hearing and will benefit the Applicant as representatives can assist with identifying relevant arguments, cases considering similar concepts and explanatory material to assist the Commission with the interpretation of Part 3A-3 of the Act.

• [12] Having considered the submissions, I formed a view that this matter does have significant factual and legal complexity. I determined that allowing the Respondent to be represented by a lawyer would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter and decided to exercise my discretion to grant permission for the Respondent to be represented.

• [13] On 3 September 2025, I held a hearing in Sydney in relation to whether Mr Toldi was unfairly deactivated. Mr Toldi gave evidence on his own behalf. Ms Fairlie, Senior Manager, Industrial Relations, gave evidence on behalf of Uber Eats.

• [14] Mr Toldi tendered a bundle of documents including:

(a) the Uber Eats - Delivery Person Agreement Australia, dated 1 February 2024;

(b) the Uber Community Guidelines, last modified 1 July 2022;

(d) screenshots of Mr Toldi's restricted Uber account, deactivation warnings, review correspondence sent by Mr Toldi in response to these warnings and Mr Toldi's satisfaction ratings and feedback;

(e) a breakdown of Mr Toldi's earnings before and after deactivation of his Uber account;

(f) tax summaries from Uber for the 2023/2024 financial year and 1 - 30 June 2025; and

(g) an invoice from Uber Eats issued to Mr Toldi on 4 June 2025.

• [15] Mr Toldi filed evidence and submissions on 20 July 2025. Uber Eats filed submissions on representation on 29 July 2025 and evidence and submissions on 15 August 2025. After the hearing held on 3 September 2025, the parties were directed to file further material with the Commission. The Respondent filed additional evidence as directed on 5 September 2025 and final submissions in reply on 19 September. Mr Toldi filed final submissions as directed on 7 September 2025.

• [16] As required under s.536LW of the Act, I am required to resolve particular matters before considering the merits of the Application.

• [17] There is no dispute between the parties, and I am satisfied on the basis of the evidence before me that:

(a) Mr Toldi filed his unfair deactivation application within the period required by s.536LU(3) of the Act; and

(b) when Mr Toldi was deactivated by Uber Eats, he was protected from unfair deactivation.

• [18] Section 536LW(c) requires me to determine whether Mr Toldi's deactivation was consistent with the Code before I consider the merits of the Application. Mr Toldi's deactivation will be consistent with the Code if, at the time of the deactivation, Uber Eats complied with the Code in relation to the deactivation.[2]

• [19] As provided in s.7(1) of the Code, in order to comply, Uber Eats is required to follow the procedures stipulated by the Code if it is considering deactivating an employee-like worker ('worker') where the reason for the deactivation is for a matter related to the worker's conduct or capacity to perform work. I find that the Code applied to Mr Toldi's proposed deactivation.

• [20] The Code provides in s.8(1)-8(3) that Uber Eats must, before deactivating a worker from the Uber Eats App, give the worker a notice in writing stating that they are at risk of being deactivated from the platform for reasons related to their conduct or capacity. The written warning must specify the reason for the warning relating to their conduct or capacity, state that they are at risk of being deactivated if they do not remedy the reasons for the warning within a reasonable time, or if the reason for the warning continues or is repeated, or if another issue relating to their conduct or capacity arises. The warning must also include enough information to enable a reasonable person in the position of the worker to understand the matters raised in the warning letter and provide specific advice regarding the worker's right to seek assistance or support. Section 9 of the Code prescribes exceptions to the requirements in s.8. Uber Eats does not contend that any of these applied to the proposed deactivation of Mr Toldi, and I find that they did not.

• [21] Should an operator issue a warning pursuant to s.8 of the Code and consider on reasonable grounds that deactivation of the worker is justified because the worker has not remedied the matters the subject of the warning in a reasonable time, or the reason for giving the warning has continued or been repeated, or another issue relating to their conduct or capacity has arisen, an operator is then required to give preliminary notice of the worker's deactivation from the Uber Eats App.[3] This preliminary deactivation notice ('PDN') must be given to the worker and include the reason for the notice relating to the worker's conduct or capacity, the fact that the operator is considering terminating their access to the Uber Eats App, that the worker has a right to respond to the notice and a right to request a discussion with a representative of an operator within a reasonable period as specified in the PDN, and that they may appoint a person to provide them with support or representation.[4] This PDN must also include sufficient information to enable a reasonable person in the position of the worker to understand the matters mentioned in the PDN.[5] An operator can modify or suspend a worker's access to the Uber Eats App provided that they follow the steps required by s.12.

• [22] Once a PDN is given, a worker may respond to the notice, but must do so within the period specified in the PDN, or within a longer period as agreed between Uber Eats and a worker.[6] A human representative of Uber Eats must consider the worker's response and make further enquiries as are reasonably warranted after this consideration.[7] A worker can request a discussion with a representative of an operator to discuss a PDN and, if so requested, an operator must make a representative available.

• [23] After a PDN has been provided, and an operator has complied with the applicable requirements in s.13 of the Code, they are then required to decide whether to terminate access to the Uber Eats App or to take no further action. Either way, Uber Eats must notify the worker in writing of their decision as soon as reasonably practicable.[8]

• [24] A decision to terminate access can only be made if the reason for the termination is a valid reason and Uber Eats considers on reasonable grounds that the reason has been established.[9] Should the decision be made to terminate a worker's access, then Uber Eats must, as soon as reasonably practicable, provide a final written notice ('FDN') that states that the decision to terminate the worker's access has been made, the time and date that the deactivation will take effect, the reason for the termination and specifications of when and how any final payments owing to the worker will be made.[10] This notice must contain sufficient information to enable a reasonable person in the position of the worker to understand the FDN.

• [25] Part 2, Division 4 of the Code sets out matters relating to the Code process generally. Part 3 sets out matters relating to deactivation generally including the circumstances in which work is performed "on a regular basis" and matters that may constitute a valid reason for deactivation.

• [26] I respectfully adopt the reasoning of Deputy President Saunders in Kumar v Portier Pacific Pty Ltd at [6]- [9] as follows:[11]

...section 14(4) of the Code permits a digital labour platform operator to terminate an employee-like worker's access to the digital labour platform only if (a) the reason for the termination is a valid reason and (b) the operator considers on reasonable grounds that the reason has been established. It is arguable that subsection 14(4)(a) of the Code requires an objective determination of whether alleged conduct occurred in order to assess whether a reason "is a valid reason" - similar to the approach under section 387(a) of the Act, which governs unfair dismissal. Under Part 3-2 of the Act (unfair dismissal), it is insufficient for an employer to merely hold a reasonable belief; the Commission must find, on the balance of probabilities, that the conduct occurre[d].1212 Ibid, citing King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213, [24].

However, subsection 14(4)(a) must be read in conjunction with subsection 14(4)(b) of the Code, which introduces both a subjective and an objective element. The subjective element is that the operator must consider that the reason for terminating the worker's access to the digital labour platform has been established. The objective element is that there must be reasonable grounds for the operator's belief that the reason has been established. This indicates that the Code does not require the Commission to make a factual finding about whether or not alleged conduct occurred, but rather to assess whether the operator's belief is supported by reasonable grounds.

In light of this, the requirement in paragraph 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. That is, whether the reason is valid in the sense of being "sound, defensible or well-founded," and not "capricious, fanciful, spiteful or prejudiced".[13] 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.[14] 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.

Section 19 of the Code sets out matters that "may constitute a valid reason for the deactivation of an employee-like worker". One such matter is where the employee-like worker fails or refuses to meet one of the requirements specified in s 19(2)(a) to (e) of the Code, "to the extent that the requirement is reasonable and is known to the worker as a result of communication from the digital labour platform operator or otherwise". Whether such a requirement is "reasonable" must be judged objectively having regard to all the circumstances.[15]4 It is not necessary to show that the requirement is the preferable or most appropriate course of action or in accordance with "best practice" or in the best interests of the parties.1[16]The test is not whether the requirement is so unreasonable that no reasonable person would have made the decision.1[17]There may be a range of options open to a digital labour platform operator within the bounds of reasonableness[s] However, a decision which does not have an evident or intelligible justification will be unreasonable.19[19]

• [27] I make the following findings based on the evidence filed by the parties and the oral testimony of Mr Toldi and Ms Fairlie.

• [28] Mr Toldi entered into a contract, the Uber Eats- Delivery Person Agreement (Australia), with Uber Eats and Uber Technologies, Inc on 5 October 2023 ('Agreement'). In doing so, Mr Toldi confirmed that he had read and acknowledged the Community Guidelines.[20] Clause 5.1(l) of the Agreement provides that Mr Toldi "must comply with the Community Guidelines and other Policies." The Community Guidelines were defined and hyperlinked in the Agreement and tendered into evidence.

• [29] The ratings system used by the Uber Eats App is provided for in Clause 5.3 of the Agreement, which states:

"(a) You, Customers and Delivery Recipients have the option on the Uber apps to provide feedback (including a rating) about the Delivery Services or, in your case, the Customer or Delivery Recipient. If you do provide a rating or feedback, you must provide it in good faith. Feedback and ratings are Uber Data.[21]

(b) Uber, Portier Pacific and their Affiliates are not required to verify any feedback or ratings. ..."

• [30] The restriction or removal of access to the Uber Eats App is dealt with in Clause 14.2 of the Agreement, which states:

"Uber may also immediately restrict or remove your access to the Uber Driver App, and provide you with written notice of the restriction or removal, if:

(i) you commit a material breach of this Agreement; or

(ii) an act or omission by you, in Uber's reasonable judgement, is (a) in breach of applicable Laws; (b) in violation of the Community Guidelines or any other Policy; (c) has the potential to cause issues that could detrimentally impact the reputation, good name or brand of Uber, Portier Pacific or any of their Affiliates (including any Uber Names, Marks or Works), including matters of safety; or (d) creates a risk to health and safety of yourself or others, including in relation to fatigue.

• [31] The first page of the Community Guidelines includes the following:

"Our guidelines were developed to help make every experience feel safe, respectful and positive. They apply to everyone who uses Uber's platform ("Uber Marketplace Platform"), including but not limited to drivers, riders, delivery people, Uber Eats users, merchants and businesses...

Not following any one of our guidelines can constitute a material breach or violation of the terms of your agreement with Uber and may result in the loss of access to part or all of the Uber Marketplace Platform.

• [32] The Community Guidelines relevantly include the following:

"Everyone who signs up for an Uber account is required to follow Uber's Community Guidelines...In addition to following all of Uber's Community Guidelines, users of the Uber Eats platform...must follow the standards below that apply to orders and deliveries...

Drivers, riders, delivery people, Uber Eats users and merchants can give and receive ratings, as well as give feedback on how the trip or delivery went. This feedback system improves accountability and helps create a respectful, safe and transparent environment for everyone. Drivers and delivery people can see their current rating in the app. Merchants can find their Uber Eats user and delivery person rating by signing into Uber Eats Manager. Riders can see their rating displayed under their name by opening the app and touching the menu.

There is a minimum average rating in each city. This is because there may be cultural differences in the way people in different cities rate each other. Drivers, riders, delivery people or merchants that don't meet the minimum average rating for their city may lose access to all or part of the Uber Marketplace Platform. If your rating is approaching this limit, we will let you know and may share information that may help you improve your rating.

If you're looking to keep your average rating high, it's helpful to be courteous and respectful to all people while using the Uber Marketplace Platform and interacting with others in the Uber community. Drivers and delivery people using the Uber Marketplace Platform typically provide excellent service to their riders and recipients, and most riders, delivery people and recipients are courteous and respectful, so most trips and deliveries run smoothly. Contacting Support will not lead to an individual rating being removed. We know that sometimes a trip or delivery doesn't go well-that's why your rating is an average rating.

.....

How Uber enforces our guidelines

Losing access to the Uber Marketplace Platform may be disruptive to your life or to your business. That's why we believe it is important to have clear standards that explain the circumstances in which you may lose access to the Uber Marketplace Platform. If you violate any applicable terms of your contractual agreement with Uber, or any other applicable policies, any one of these Community Guidelines or any additional policies and standards that are communicated by Uber to you from time to time, you can lose access to all or part of the Uber Marketplace Platform. If you have more than one Uber account, such as a rider account and a driver account, violating the Community Guidelines could also lead you to lose access to all Uber accounts. If you believe an error caused you to lose access to your account, you may contact the Uber Support team.

Uber receives feedback through a variety of channels, reviews reports submitted to our Support team that may violate our Community Guidelines, and may investigate through a specialised team. If we are made aware of potentially problematic behaviour, we may contact you so we can look into it. We may, at our sole discretion, put a hold on your account or turn your account inactive until our review is complete.

Not following any one of our guidelines may result in the loss of access to all or part of the Uber Marketplace Platform. This can include reported violations of our Community Guidelines and certain actions you may take outside of the Uber Marketplace Platform, including but not limited to other platforms, if we determine that those actions threaten the safety of the Uber community, our employees and contractors or cause harm to Uber's brand, reputation or business. And if the issues raised are serious or a repeat report, or you refuse to cooperate, you may lose access to the Uber Marketplace Platform. Any behaviour involving violence, sexual misconduct, harassment, fraud or discrimination, or deceptive, illegal or unsafe activity, while using the Uber Marketplace Platform can result in the immediate loss of access to the Uber Marketplace Platform. Additionally, when law enforcement is involved, we will cooperate with their investigation in accordance with our Guidelines for Law Enforcement Authorities, found here."

• [33] On 10 October 2023, Mr Toldi commenced performing work as a Delivery Person for Uber Eats.

• [34] Mr Toldi gave evidence, which I accept, that he was aware of Uber Eats' requirement to comply with the Community Guidelines, that he was aware of the rating system and that customers and delivery recipients could provide feedback about his services.[22] He also confirmed that he was familiar with the ratings system and how to access his own rating.[23] While he claimed not to have been aware of the minimum ratings threshold when commencing with Uber Eats, he gave evidence that "later they sent me an email...they have started the minimum average rating."[24]

• [35] Mr Toldi was able to check his satisfaction rating at any time on his profile via the Uber Eats App. Mr Toldi filed a screenshot of his profile which was taken on 7 June 2025, showing his satisfaction rating at 78%.

• [36] On 20 April 2025, Mr Toldi's satisfaction rate had dropped to 84%.[25] Uber Eats sent Mr Toldi a "Low Ratings Education" notice in the Uber Eats App. This notice provided:

"Your satisfaction rating is low, here's how to improve...

The target minimum rating in your city is 85% and you are required to meet the minimum rating in your city to keep delivering with Uber Eats.

Here are some tips to help improve your ratings:...

Want to learn more? Opt in to the voluntary order accuracy, order quality, or drop-off education module here.

As a reminder, there is a minimum rating in each city. Delivery People are required to maintain ratings above the minimum rating for their city to keep their access to the Uber Eats platform. In your city, the minimum rating for Delivery People is 85%. If you continue to receive ratings below the minimum average ratings threshold, your account may be at risk for deactivation.

Click here for more information about ratings in your city"[26]

• [37] During the period 20 April 2025 to 11 May 2025 Mr Toldi performed 46 rated trips and had a 76% satisfaction rating for those trips. Some of the customer comments included:[27]

"courier_poor_communication"

"courier_missed_instructions"

"rush_unprofessional"

"courier_poor_communication"

"courier missed instructions"

"lad_left_wrong_spot"

"rush_items_damaged"

"rush_unprofessional courier_missed instructions"

• [38] On 12 May 2025, Mr Toldi's satisfaction rating was 81% and Uber Eats sent a deactivation warning to Mr Toldi.[28] It stated:

"Your satisfaction rating is below the minimum threshold of 85% for your city. As a reminder, under Uber's Community Guidelines, Delivery People who do not meet the minimum satisfaction rating for their city may lose their access to the Uber Driver app.

If you continue to receive ratings below the minimum average ratings threshold, your account may be at risk of deactivation. You may seek assistance or support from a person (other than a lawyer acting in a professional capacity) in relation to this message.

For a reminder on how to get great ratings from customers and merchants, read our Delivery Tips and Tricks.

Click here to read the Community Guidelines"[29]

• [39] During the period 12 May 2025 to 21 May 2025 Mr Toldi performed 19 rated trips and had an 84% satisfaction rating for those trips. Some of the customer comments included:[30]

"courier_missed_instructions"

"rush_unprofessionalcourier_poor_communication _courier_missed_instructions"

• [40] On 22 May 2025, Mr Toldi's satisfaction rating was 80% and Uber Eats sent a final deactivation warning to Mr Toldi.[31] It stated:

"We previously let you know that your ratings were below the minimum satisfaction rating for your city. However, you have continued to receive low ratings from consumers and merchants. As a reminder, under Uber's Community Guidelines, Delivery People who do not meet the minimum satisfaction rating for their city may lose their access to the Uber Driver app. The minimum satisfaction rating in your city is 85%.

Your account will be deactivated if you continue to receive ratings below the minimum average ratings threshold.

You may seek assistance or support from a person (other than a lawyer acting in a professional capacity) in relation to this message.

For a reminder on how to get great ratings from customers and merchants, read our Delivery Tips and Tricks.

Click here to read the Community Guidelines"[32]

• [41] During the period 22 May 2025 to 30 May 2025 Mr Toldi performed 17 rated trips and had a 71% satisfaction rating for those trips. Some of the customer comments included:[33]

"rush_unprofessionalcourier_poor_communicationcourier_missed_instructions"

• [42] On 30 May 2025, Mr Toldi's satisfaction rating was 78% and Uber Eats sent a PDN to Mr Toldi.[34] It stated:

According to your agreement with Uber (which includes adhering to our Community Guidelines), which can be accessed through your profile, you are required to maintain a rating above the minimum average rating in your city.

You are receiving this message because your rating has continued to be below the minimum average rating required for Delivery People in your city and we are considering terminating your access to the Uber Driver app.

Before a final decision is made, we are providing you with the opportunity to respond to this preliminary deactivation notice. During this period, we have suspended your access to the platform which takes effect immediately from the time and date of this notice (30 May 2025). Suspension of your access means that you will be unable to accept or complete trips/deliveries during the suspension period.

You may provide an explanation or relevant information regarding the flagged activity. Please respond using the link below within 7 days from the date of this notice to ensure your input is considered.

You may also request a discussion with a representative of Uber Eats. If you wish to do so, please submit your request using the link below within 2 days.

You are entitled to appoint a person (other than a lawyer acting in a professional capacity) to support or represent you during this process.

Once your request has been submitted, a member of our team will begin the review process. Please note, this can take up to 7-10 business days, but it may take longer. We'll send you a message letting you know the outcome of Uber's decision."[35]

• [43] Mr Toldi's access to the platform operated by Uber Eats was suspended from the time and date of the PDN. This meant that he was unable to accept or complete trips/deliveries during the suspension period.

• [44] The same day, on 30 May 2025, Mr Toldi requested a review of the deactivation and sent an initial response. He did not request a discussion with a representative of Uber Eats. On or around 31 May 2025, Mr Toldi provided an additional response to the PDN. These responses were as follows (reproduced as written):[36]

"The drop off locations instructions were not clear and due to this reason the customers were giving dislikes to me and due tho this my ratings were low and other than this i was always interacting with customers and merchants with a smile."

"The issues i went through are the customers communication toward me and the safety concerns like no proper light and no answer from customers even when i call them multiple times during delivery and customer rude behaviour and using foul language towards me. I assure you that i will be maintaining the required ratings so please allow me a fair chance to continue delivering."

• [45] On 4 June 2025, a review of Mr Toldi's deactivation was completed by a human representative of the Respondent, who determined that Mr Toldi's responses did not suggest that any additional lines of enquiry were required. This team member then concluded that Mr Toldi's account should remain deactivated due to the fact that:[37]

• He had consistently received ratings below the minimum average of 85% in the city of Sydney; and
• His response to the PDN did not provide adequate information to address the low ratings.

• [46] On the same day, Mr Toldi was sent an FDN, which provided:[38]

"Your response has been reviewed and your account has been deactivated

After carefully reviewing your account and the information you submitted as part of your response, we've decided to terminate your access to the Uber Driver app for the reasons outlined in the preliminary deactivation notice previously sent to you. This decision is final.

Your preliminary deactivation notice can be found in your email in box or the inbox of the Uber Driver app.

This deactivation will take effect immediately upon receipt of this email.

Your final payment will be deposited into your account during the next payment cycle."

• [47] On 5 June 2025, after he had been deactivated, Mr Toldi requested a secondary account review via email, requesting his immediate reactivation. In this request, Mr Toldi submitted that the circumstances that led to his rating falling below the minimum requirement were outside of his control, as:[39]

• The zone he would regularly work in would experience network disruptions, causing the Uber Navigation System to freeze, losing his ability to access directions to the customer's delivery address and causing delivery delays; and
• He received damaged food items on multiple occasions from restaurant partners.

• [48] Mr Toldi also raised the effect that the deactivation had had on his physical and mental health and raised concerns regarding the substantive and procedural unfairness of his account deactivation.

• [49] In response, Uber Eats advised Mr Toldi that the Community Guidelines stipulated that delivery people who do not meet the minimum satisfaction rating for their city may lose access to the Uber Eats App, that his rating had continuously remained below the 85% rating and that after carefully reviewing his account and information submitted as part of the review completed, his account would remain deactivated.

• [50] Mr Toldi gave evidence at the hearing that his customer ratings dropped due to receiving late orders from restaurants when they were busy, resulting in him waiting for the restaurant to provide the order for an hour.[40] This meant that he would be rated poorly by customers for delayed deliveries. He also claimed that he had reported instances of damaged food being handed to him by restaurants, navigation issues and network errors resulting in the app not working for up to 20 minutes.[41] When this happened, Mr Toldi could not respond to customers' messages asking for updates on their delivery.[42] These network issues also meant that he could not access the delivery address, and so could not simply switch to another navigation app, like Google Maps and instead had to wait for the Uber Eats App to work.[43] His evidence was that he raised these problems with Uber Eats, but that they continued to occur.[44] Uber's records reflect that Mr Toldi only raised one issue demonstrating a problem with his deliveries during the relevant period. However, Mr Toldi did not file any evidence recording any reports and communications regarding these issues between himself and Uber Eats during the period between 20 April 2025, when he received the Low Ratings Education notice, and the date of his deactivation. These records were not referred to in Mr Toldi's response to the PDN. Mr Toldi accepted that these records were not provided to Uber Eats as part of his response to the PDN or FDN.[45] Mr Toldi confirmed that at the time that he was preparing his responses to the PDN and FDN that he had access to everything on the Uber Eats App.[46]

• [51] The Respondent's evidence was that the feedback Mr Toldi received on the Uber Eats App was not in relation to delayed deliveries,[47] and that this option for feedback was not available for customers to rate the person delivering the food, but for customers to review the merchants in relation to the goods received, where customers can give a "too slow" feedback in their rating.[48] Ms Fairlie gave evidence that she had reviewed the records of Uber Eats to identify where Mr Toldi had raised network issues, or food concerns, and had identified that for those particular orders no rating was provided by the customer. Her evidence was that, accordingly, these trips would not have contributed to Mr Toldi's overall rating percentage, as it is only trips that receive a rating that are used to calculate a person's percentage.[49]

• [52] Ms Fairlie gave evidence that she had reviewed a spreadsheet containing data held by the Respondent regarding Mr Toldi's ratings and reports.[50] Following the hearing Uber Eats filed this additional evidence at my direction. This contained a record of:

• All of Mr Toldi's ratings;
• Mr Toldi's last 100 rated trips;
• Trips with reported network issues; and
• Reported packaging/food issues.

• [53] I consider that, pursuant to s.7(1) of the Code, Uber Eats was required to follow the process set out in the Code in proposing to deactivate Mr Toldi's access to the Uber Eats App, as the reason for his proposed deactivation was related to his conduct or capacity to perform work through the Uber Eats App.

• [54] Section 8 of the Code required Uber Eats to provide a deactivation warning to Mr Toldi, in writing, that he was at risk of being deactivated from the platform, for a specified reason. The warning was required to contain various statements stipulated by the Code at s 8(2) and information that met the requisite standard set by s.8(3). Uber Eats was also required to advise Mr Toldi that he could seek assistance or support about the deactivation warnings.

• [55] I am satisfied that Uber Eats has complied with s.8 of the Code. Uber Eats wrote to Mr Toldi on 12 May and 22 May 2025 providing him with warnings that he was at risk of being deactivated as his rating had dropped below the 85% minimum rating threshold for Sydney. These warnings included a note that Mr Toldi could seek assistance or support about the deactivation warnings and that he was at risk of being deactivated from the Uber Eats App if he continued to receive ratings below the minimum satisfaction rating average ratings threshold. I consider that the warnings included sufficient information to enable a reasonable person in Mr Toldi's position to understand the matters mentioned in s.8(2) of the Code.

• [56] I have found at [20] above that s.9 of the Code does not apply to Mr Toldi's proposed deactivation.

• [57] I consider, pursuant to s.10 of the Code, that Uber Eats was required to follow the process set out in the Code in deactivating Mr Toldi's access to the Uber Eats App. Uber Eats, considered on reasonable grounds, after issuing the deactivation warnings to Mr Toldi, that deactivation of Mr Toldi's account was justified due to the fact that his rating continued to be below the 85% rating threshold.[51]

• [58] Therefore, Uber Eats was required under s.11 of the Code, to issue a PDN, which contained the reason for giving the notice, that termination of Mr Toldi's access to the Uber Eats App was being considered and that Mr Toldi had a right to respond to the notice, a right to request a discussion with a representative and could appoint a person (other than a lawyer acting in a professional capacity) to provide him with support or representation during the deactivation process. This notice was also required to include sufficient information to enable a reasonable person in the position of Mr Toldi to understand the matters mentioned above. Mr Toldi was suspended from the Uber Eats App following the PDN being issued on 30 May 2025 and accordingly, I find that the provisions in s.12 did apply to the proposed deactivation of Mr Toldi. In circumstances where Uber Eats proposed to suspend Mr Toldi's access to the Uber Eats App, s. 12 of the Code required Uber Eats to specify the time and date from which Mr Toldi's account would be suspended, and the consequences of this suspension.

• [59] I am satisfied that Uber Eats has complied with s.11 and s.12 of the Code. Mr Toldi was sent two warning notices, one on 12 May and one on 22 May 2025. On 30 May 2025, Uber Eats sent a PDN to Mr Toldi which specified:

1. the reason for the notice - being that Mr Toldi's customer service rating continued to be below the minimum average customer satisfaction rating for Uber Eats' delivery people in Sydney;

1. that Uber Eats was considering terminating Mr Toldi's access to the Uber Eats App;

1. that Mr Toldi could respond to the notice within seven days;

1. that Mr Toldi could submit a request, within two days, for a discussion with a representative of Uber Eats;

1. that Mr Toldi was entitled to appoint a person to provide him with support or representation;

1. that Mr Toldi's suspension was to immediately take effect at the same time as the PDN was sent; and

1. that the consequences of the suspension of Mr Toldi's access to the Uber Eats App were that Mr Toldi would be unable to accept or complete trips/deliveries whilst his access was suspended.

• [60] I consider that the periods contained in the PDN and outlined at [59] (c) and (d) above were reasonable periods of time in the circumstances (per s.11(1)(c) of the Act) and, contrary to Mr Toldi's submissions, that the PDN included sufficient information to enable a reasonable person in the position of Mr Toldi to understand the matters mentioned in s.11(2) of the Code.

• [61] In response to the PDN, Mr Toldi was allowed to respond within the notice period provided and Uber Eats was required to have a human representative consider Mr Toldi's response. Mr Toldi did not request a discussion with a representative of Uber Eats about the PDN. Mr Toldi responded to the PDN on 30 and 31 May 2025, and a human representative considered these responses on 4 June 2025, as required by s.13 of the Code. A human representative of Uber Eats Community Operations decided that no further inquiries were reasonably warranted after considering Mr Toldi's response (s.13(8) of the Code). I consider that this decision was appropriate in the circumstances. I am satisfied that Uber Eats has complied with s.13 of the Code.

• [62] Section 14 (1) of the Code requires Uber Eats to make a decision to either take no further action after issuing a PDN or to terminate the worker's access to the digital labour platform. Once a decision has been made, this must be communicated to the worker in writing as soon as reasonably practicable. The decision to terminate Mr Toldi's access to the Uber Eats App was made on 4 June 2025, the same day that Mr Toldi was notified of this decision. I am therefore satisfied that Uber Eats has complied with s.14(1) and s.14(2) of the Code.

• [63] On 4 June 2025, Mr Toldi was issued the FDN under s.14(5) of the Code, which stated that Uber Eats had decided to terminate his access to the digital labour platform, specified that the reason for this was as provided in the PDN and the termination would take effect from the date of the FDN. It also confirmed that Mr Toldi would receive final payment into his account in the next pay cycle.

• [64] Consistent with s.14(4) of the Code, Uber Eats may terminate Mr Toldi's access only if the reason for termination is a valid reason, and Uber Eats considers on reasonable grounds that the reason has been established. Section 19 (2)-(16) of the Code sets out matters that may constitute a valid reason for Mr Toldi's deactivation.[52] These include whether, under s.19(2) of the Code, an employee-like worker has failed or refused to meet a reasonable requirement imposed by the digital labour platform operator.

• [65] I will therefore consider whether Mr Toldi failed to meet a requirement of the Agreement and, whether the requirement is reasonable. In Mr Toldi's case, this is whether he failed to meet the 85% minimum rating threshold and whether this is a reasonable requirement.

• [66] Ms Fairlie gave evidence, which I accept, regarding the process for rating workers using in the Uber Eats App. This evidence can be summarised as follows:

1. Following the completion of a delivery, consumers are prompted to review the Delivery Person's service through the Uber Eats App by clicking on a thumbs up or thumbs down button on the app interface. Once this has been done a user can select one or more pre-determined feedback buttons about their delivery experience. These include "Great communication", "Delivered with care", "Easy to retrieve order", "Efficient", "Friendly Service", Unprofessional", "Items damaged", "Communication", "Didn't match photo", "Missed instructions", or "Wrong vehicle".
2. Ratings can also be provided regarding a merchant and the goods received from the merchant in the Uber Eats App.
3. Likewise, merchants can review the delivery service provided by a delivery person who completes a delivery of goods from that merchant.
4. If consumers, merchants or delivery people experience a problem with an order or delivery, they are able to click on a 'Help' button within the relevant Uber Eats App (for consumers and Delivery People) or the Uber Eats tablet (for Merchants) and raise their issue via chat with Uber Support.

• [67] Ms Fairlie gave evidence, which I accept, regarding how an individual worker's personal rating is calculated. This evidence can be summarised as follows:

1. The Respondent uses the ratings provided by consumers and merchants of a delivery person's service to calculate an average rating for a Delivery Person, in order to ensure that delivery people are providing services which are satisfactory to consumers, merchants and Uber Eats.
2. From January to June 2025, only about 7.2% of all orders placed on the Uber Eats platform in Australia were rated by consumers or merchants and positive customer and merchant ratings of delivery people constituted 93% of all rated orders.
3. A Delivery Partner's last 100 consumer ratings are used to calculate their average rating.
4. Uber Eats determines a minimum acceptable average rating for Delivery People in each city and requires Delivery People to meet the minimum average rating set for the city in which they are performing deliveries. This is to maintain the quality of the delivery service as well as the customer and merchant experience.
5. The 85% minimum average rating threshold applicable to Mr Toldi in Sydney was identified as the appropriate minimum for Sydney for a couple of key reasons:

1. the 85% threshold is well below the median rating for delivery people active in Sydney, which sat at about 93% between January and June 2025.
2. the multi-stage approach of education and warnings prior to deactivation, whereby delivery people are given a chance at each stage to improve their ratings trajectory above the minimum threshold, means that sustained poor performance is required for deactivation. This ensures that there is an extremely low risk of a 'false positive', i.e. the deactivation of a well performing Delivery Person. This is further demonstrated by the fact that less than 1 per cent of Delivery People active in Sydney between January and June 2025 have been deactivated as a result of low ratings;
3. analysis conducted by Uber Eats demonstrates that the number of defective orders increases significantly (by more than 47%) when delivered by a Delivery Person with an average rating of below 85%. Defective orders includes any orders where a consumer contacts Uber support with an issue. Defects can be raised for issues such as long delivery time, missing items, damaged food, etc. and have a direct impact on consumer experience, as well as the reliability and reputation of the delivery platform and Uber Eats brand.
4. if an Uber Eats Delivery Partner in Sydney has an average customer satisfaction rating which falls below 85%, the Delivery Partner is warned about the requirement to meet the minimum average customer satisfaction rating, given a chance to improve their satisfaction rating, and given educational information to assist them to improve their rating.
5. Delivery Partners can access information about their customer satisfaction ratings in the Uber Eats App at any time.
6. about 9.3% of Delivery People in Australia who have a minimum of 10 rated trips and were 'active' on the Uber Eats platform in July 2025 had a rating below the minimum ratings threshold. Of the Delivery People between January and July 2025 who received education for low ratings, only 5% progressed to deactivation.

• [68] It is not disputed that at the time of deactivation Mr Toldi's rating had dropped to 78%, a rating below the minimum threshold required by Uber Eats,[53] and that he was able to view his rating at any time through the Uber Eats App account.[54] Mr Toldi was on notice of his obligations under the Community Guidelines to maintain a rating above the minimum rating threshold from the time that he accepted the Agreement.

• [69] Mr Toldi did not contend that he had not received the PDN on 30 May 2025. However, Mr Toldi's ratings continued to remain below the minimum threshold required by Uber Eats, even after Mr Toldi completed the voluntary education module provided in the Low Ratings Education on 20 April 2025.[55] Uber Eats also submitted that a significant majority of delivery partners in Sydney maintain an average customer satisfaction rating over the minimum of 85%, and that Mr Toldi's failure to do so placed him in the bottom