s.536LU - Application for an unfair deactivation remedy

Unfair deactivation application filed out of time - circumstances not exceptional - application dismissed.

• [1] This decision concerns an application by Mr Ibrahim Hassan Usman (Applicant) for relief under the unfair deactivation provisions pursuant to s 536LU of the Fair Work Act 2009 (Act).

• [2] The Applicant's engagement with Raiser Pacific Pty Limited (Uber) ended on 14 March 2025 when his account was deactivated. This unfair deactivation application was lodged on 21 August 2025.

• [3] Section 536LU(3) of the Act states that an application such as this must be made 'within 21 days after the deactivation or termination took effect', or within such further period as the Commission allows. The period of 21 days ended at 11:59pm on 4 April 2025. The application was therefore filed 139 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made. The Respondent opposes this request.

• [4] The Act allows the Commission to extend the period within which an unfair deactivation application must be made only if it is satisfied that there are 'exceptional circumstances'. 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.[1] 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.[2]

• [5] The requirement that there be exceptional circumstances before time can be extended under s536LU(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

• [6] Section 536LU(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(b) whether the person first became aware of the deactivation after it had taken effect;

(c) any action taken by the person to dispute the deactivation;

(d) prejudice to the regulated business (including prejudice caused by the delay);

(f) fairness as between the person and other persons in a similar position; and

(g) any process specified in the Digital Labour Platform Deactivation Code.

• [7] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. It is apparent the language contained in s536LU is like the language contained in s394(3) of the Act relating to unfair dismissals and it is accepted the Commission can take guidance from decisions pursuant to those provisions.

• [8] I now consider these matters in the context of the Application.

• [9] The Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an Applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the Applicant's favour, however, all of the circumstances must be considered.[3]

• [10] The Applicant cited two principal reasons for the delay in lodging the application. These reasons include his poor understanding of English as a means of communication and the challenges he faced finding information about his rights and what he could do to dispute Uber's decision.

• [11] In proceedings, Mr Usman made oral submissions in support of both these reasons with the assistance of his daughter who assisted his understanding and communicated on his behalf in the absence of an appropriate interpreter. Mr Usman's daughter made it clear the principal reason for the delay was her father's difficulty understanding and communicating in English and accessing information and resources to exercise his rights in these circumstances. Mr Usman's speaks and understands the Oromo language.

• [12] Mr Usman indicated that since the time he was deactivated he did what he could to talk to others in his community about what he could do and was ultimately directed to the FWC. He also accepted in evidence that Uber made him aware of its preliminary deactivation decision in early March 2025 and that he sought to appeal this decision.

• [13] It is clear to me that Mr Usman has significant difficulty with English. Equally in this case it is clear Mr Usman was able to take steps to understand Uber's preliminary decision and take steps to dispute it with assistance. It is also clear Mr Usman was able to competently make his application to the FWC out of time and organise the assistance of his daughter in proceedings.

• [14] While I accept Mr Usman's understanding of English presented him challenges in making his application on time, I am not persuaded there is anything exceptional in the circumstances that confronted him on the material before me. It is well accepted the test for exceptional circumstances is a high bar and that to be exceptional, circumstances need be unusual, out of the ordinary course, or uncommon. That Mr Usman clearly had difficulty communicating in English is not itself uncommon, considering the proportion of the population in a similar position. The evidence presented of the steps he was able to take after being notified of Uber's preliminary deactivation decision, and subsequently, indicate he had some capacity to engage with what was occurring.

• [15] This being the case, the further reason for the delay Mr Usman relies on his is lack of understanding of, or an awareness, of his rights. In this regard, I note it is well established by this Commission that ignorance or a lack of awareness of one's rights is not usually an acceptable of reason for delay.[4] In the present case, the capacity Mr Usman did demonstrate to engage with his deactivation supports this conclusion. This factor weighs against there being a valid reason for what is a significant delay.

• [16] I do not consider the reasons Mr Usman has presented, individually or together, to be an acceptable or reasonable explanation for the delay. Considering all the above, I do not accept that Mr Usman has presented evidence of "exceptional circumstances" of why he did not file his application with the Commission within the required 21-day period. Nor do I accept there is anything "exceptional, "out of ordinary course" or uncommon about his circumstances that distinguishes his case from many others placed in challenging situations.

• [17] It follows that I am not satisfied the Applicant has provided an acceptable explanation for the delay. This conclusion weighs against the Applicant in this case.

Whether the person first became aware of the deactivation after it had taken effect

• [18] The Applicant was notified of the deactivation on the same day that it took effect and, therefore, had the full period of 21 days to lodge the unfair deactivation application. This is a neutral consideration.

• [19] It is not in dispute that Ms Usman made attempts to contact Uber to dispute his deactivation. He sought to dispute their preliminary decision and made subsequent attempts to contact Uber, with difficulty, once his deactivation was confirmed. This factor weighs in Mr Usman's favour.

• [20] Mr Usman does not accept a prejudice arises in the event his application is permitted to proceed. The Respondent submits that allowing the application to proceed despite its objection gives rise to a prejudice against the employer. I have considered these submissions, and I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. The mere absence of prejudice is not, in my view, a factor that would point in favour of an extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances and consider this a neutral factor.

• [21] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed, and I do not repeat them here. Having examined these materials, it is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed.

• [22] In short, Mr Usman submits he was deactivated unfairly, that he did not engage in the conduct alleged in breach of the Respondent's community guidelines and was not made aware of the significance of Uber's decision until after the event. Uber reject this. They argue Mr Usman has a history of poor performance, was provided notice, right to appeal its preliminary decision and that his deactivation was consistent with the Digital Labour Platform Deactivation Code.

• [23] It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises a defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

• [24] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. In the present case, Mr Usman refers to other people he is aware of that have been provided redress.

• [25] The Respondent submit this is a neutral consideration.

• [26] I have considered Mr Usman's submission. Absent any further evidence, however, I do not consider this to be a relevant factor in the circumstances of this case. I conclude this to be a neutral consideration.

Compliance with the Digital Labour Platform Deactivation Code

• [27] Uber submits it has complied with the Code with respect to its decision to deactivate Mr Usman's account. That he was provided with warnings of its concerns with his conduct and behaviour, advised his account could be deactivated, provided a preliminary deactivation decision and an opportunity to appeal this decision prior to his deactivation being finalised.

• [28] Mr Usman accepts he was notified of Uber's preliminary deactivation decision and sought to appeal it. He submits he otherwise has an unblemished record as a driver, has learnt from his mistakes and should be provided with an opportunity to drive for Uber again.

• [29] I have considered the above submissions and absent any additional evidence from Mr Usman, I am unable to conclude the Respondent has not complied with the Code as it submits. In the circumstances, I consider this a neutral factor.

• [30] Having regard to the matters I am required to take into account under s 536LU(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 536LU(3).

• [31] Accordingly, the application must be dismissed.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[4] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.

Printed by authority of the Commonwealth Government Printer