s.536LU - Application for an unfair deactivation remedy

Application for unfair deactivation remedy - summary dismissal - whether some or all of the matter to be determined on the papers - summary dismissal application dismissed.

• [1] Mr Bansal (Applicant) has made an application pursuant to section 536LU of the Fair Work Act 2009 (the Act), in which he alleges he was unfairly deactivated from a digital labour platform described as Uber Eats. Portier Pacific Pty Ltd has identified itself as the correct Respondent to the Application and has filed a response and additional material in respect of it.

• [2] The Respondent has objected to the application on the basis that the Applicant did not work through or by means of a digital labour platform, or under a contract or series of contracts arranged or facilitated through or by means of a digital labour platform, on a regular basis for a period of at least 6 months. The matter was programmed on the basis that objection would be dealt with first, via a jurisdictional hearing.

• [3] The Respondent provided a witness statement and written submissions in support of its jurisdictional objection. The Applicant provided no material in response at the time required. My chambers raised this via e-mail with Applicant on two occasions, eliciting no response from the Applicant. As a result, the date initially fixed for the hearing of jurisdictional hearing was re-purposed to a non-compliance hearing and the parties informed of same.

• [4] Both parties attended the non-compliance hearing, in the course of which the Respondent was granted permission to be legally represented and gave notice that it wished to pursue an Application under section 536M to dismiss the Application. The Respondent was given leave to file that application orally and directed to file materials in support and the Applicant was given an opportunity to respond to them. Parties were informed that I would "consider the parties' submissions and may deal with the application on the papers, subject to the views of the parties and in the absence of any contested factual matters".

• [5] The Applicant sent an e-mail to my chambers apologising for his non-compliance and claiming that his non-compliance had neither been deliberate or unreasonable because he had not received "the relevant e-mails", which I assume to mean the initial directions and the messages from chambers referred to in paragraph [3] above.

• [6] The Respondent's position was that the Applicant had been warned in the initial directions about the possible consequences of non-compliance, been provided additional time to comply and had failed to provide a reasonable explanation for his non-compliance. The Respondent reiterated its request the 536M application be dealt with on the papers and submitted that there was no evidence that the Applicant could not access his emails and that, even if he could, that would not be a reasonable excuse. I have taken the Respondent's submission by its legal representatives that it seeks the 536M Application to be determined on the papers notwithstanding its view that there is no evidence in support of the Applicant's submission that he could not access his e-mails to be a submission as to weight rather than the Respondent advancing a factual matrix in support of the Applicant actually having access to email or having received e-mails at a particular time.

• [7] The Respondent correctly identifies that the power to dismiss under section 536M is discretionary. It referred me to two previous matters in which it was suggested that applications under section 536LU had been dismissed for non-compliance "in similar circumstances". One of the those matters involved a failure by an applicant not only to comply with directions, in that case to file material in support of an extension of time application, but also a failure to attend a hearing.[1] The other involved an applicant who had not complied with directions and then, having been put on notice of a 536M application and given opportunity to file material in relation to that application, failed to do so.[2] I do not consider the circumstances to be directly comparable to those in the present matter.

• [8] The Respondent seeks in the alternative that if the application is not to be dismissed it should be determined on the papers on the basis of the materials filed to date, essentially depriving the Applicant of any further opportunity to be heard.

• [9] Whilst section 536M is located within a relatively new Part of the Act, it is in similar terms to section 399A of the Act. The latter permits an unfair dismissal application to be dismissed. Both vest the Commission with a discretion to dismiss, on application by an employer, where satisfied that an applicant has unreasonably failed to attend a conference or hearing, unreasonably failed to comply with a direction or hearing or unreasonably failed to discontinue a matter after a settlement agreement has been concluded. Both are also located in Parts of the Act which expressly oblige the Commission to hold a conference or hearing in matters arsing under that Part "...if, and to the extent that, the matter involves the facts the existence of which are in dispute".[3]

• [10] In considering an Application under section 399A Deputy President Clancy in Whittaker v. Total Harvesting[4] considered the following case management principles as useful, although not exhaustive, considerations:

1. the starting point of any consideration an application to dismiss is that an applicant is entitled to have his or her case heard;

2. directions play an important role in case management;

3. accepting the importance of case management principles, only in extreme circumstances should a party be shut out from litigating an issue which is fairly arguable;

5. a history of non-compliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period of time is relevant;

6. continuing non-compliance which causes unnecessary delay, expense or prejudice to the other party is relevant.

• [11] Having regard to the similar formulation and function of section 399A and section 536M, I have also taken those considerations into account.

• [12] In the current matter, there is no suggestion that the Applicant does not wish to have his case heard, and his engagement with the section 536M Application attests to this. His position is essentially that his failure to be in the necessary position to advance his case in accordance with the directions was a result of not knowing those directions were made. There are a lot of unknowns as to the details of his claimed non-receipt of e-mails, but I am prepared to take his position at face value and not penalise him for his lack of precision. In doing so, I take into account the fact that he is unrepresented and the extreme consequences of a summary dismissal ruling. The nature of the difficulty the Applicant claims to have faced is capable of explaining not only his initial non-compliance but also his lack of response to the Commission's efforts to elicit an explanation from him. I don't regard the Applicant as deliberately serially non-compliant. Whilst some inconvenience necessarily accrues to the Respondent by allowing the matter to proceed, it has not mounted a case on prejudice.

• [13] Allowing the case to proceed means allowing the Respondent to agitate its jurisdictional objection on the basis of the materials presented, and allowing the Applicant to respond to it. Recent Full Bench authority[5] on the issue of whether a person has worked "on a regular basis for a period of at least six months" suggests that some balancing is required between periods of absence from work and any pattern of regularity that might have emerged had those absences not occurred. It is not known what the Applicant might have to say about that, let alone whether he accepts the Respondent's evidence about the dates and times that he did work. In the circumstances of the present matter, I am satisfied that it is appropriate for the Applicant to be given that opportunity.

• [14] My chambers will contact the Applicant to confirm the best method of providing written communications to him and to ascertain whether he is in receipt of the materials the Respondent filed in support of its jurisdictional objection on 22 September 2025. It is critically important that the further directions I intend to issue be complied with. These will provide an opportunity for the Applicant to respond to the Respondent's materials on jurisdiction and for the Respondent to reply. If there are contested facts on the face of the material, I will proceed to determine the jurisdictional issue on the papers if the parties desire that I adopt that course.

• [15] Directions and an order giving effect to the correct title of the Respondent and the dismissal of section 536M Application are published separately.[6]

[1] Chirmal Singh [2025] FWC 2042.

[2] Said Aden v. Portier Pacific Pty Ltd [2025] FWC 3053.

[3] s. 536LX, 397.

[4] [2018] FWC 1583.

[5] Panwar v. Portier Pacific [2025] FWC 1578.

[6] PR793284.

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