Ifraah Alii v [2026] FWC 20

s.536LU - Application for an unfair deactivation remedy

Application seeking remedy for unfair deactivation - application made out of time under s536LU - whether exceptional circumstances exist - application dismissed - extension denied.

• [1] Mr Ifraah Alii has made an application for an unfair deactivation remedy pursuant to s536LU of the Fair Work Act 2009 (Cth) (Act) against Portier Pacific Pty Ltd (Respondent). Mr Alii performed work as a driver for the Respondent through the Uber Driver platform. On 3 June 2025, Mr Alii's engagement to perform work as a driver ended when the Respondent deactivated Mr Alii's account. Mr Alii filed an application for an unfair deactivation remedy (the Application) on 26 November 2025.

• [2] Section 536LU(3)(a) of the Act states that applications of this kind must be made within 21-days after the deactivation took effect. Mr Alii's Application was not made within 21-days. The 21-day statutory period expired on 24 June 2025, and Mr Alii's application was filed 155 days outside of the time prescribed by s.536LU(3) of the Act.

• [3] If an application is not made within the required 21-days, it will generally be dismissed. The only exception to this is when the Commission is satisfied that exceptional circumstances exist[1] and the Commission chooses to exercise its discretion under s536 LU(3)(b) to extend the period for the Application.

• [4] Mr Alii contends exceptional circumstances exist to warrant an extension of time. In support of his position Mr Alii provided written submissions in his initial Application and further submissions dated 23 December 2025. The Respondent provided written submissions opposing an extension of time dated 23 December 2025. In a Case Management Conference dated 15 December 2025, both parties consented to me determining this matter on the written material without the need for a hearing. Accordingly, I have considered all the material submitted.

• [5] 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. 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]

• [6] Section 536LU(4) requires that, in considering whether exceptional circumstances exist, the Commission must take into account the following:

(a) the reason for the delay; and

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

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

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

(e) the merits of the application; and

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

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

• [7] I deal with each of the matters referred to in s.536LU(4) below.

• [8] 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 delay is the period between the end of the 21-day time period and the date the application is filed. A credible explanation for the entirety of the delay would weigh more heavily in favour of a finding of exceptional circumstances. On the other hand, a failure to provide a credible explanation for any part of the delay tends to weigh against a finding that exceptional circumstances exist.[3]

• [9] Mr Alii submits that the reasons for delay in filing were:

1. Mr Alii was unaware he could challenge his deactivation through the Commission and he did not understand the 21-day time limit.

1. Mr Alii took action to seek an internal review of the decision by the Respondent.

• [10] I am of the view that the reasons for the delay provided by Mr Alii do not provide an adequate explanation for the delay. It was open to Mr Alii to lodge an application notwithstanding his requests for an internal review with the Respondent directly. In any event, action taken to pursue an internal review does not explain significant parts of the delay.

• [11] The primary reason for the delay, as acknowledged by Mr Alii, is that Mr Alii was unaware of he could challenge his deactivation through the Commission and the time limitations that applied to the exercise of those rights.

• [12] Unfortunately for Mr Alii, a lack of knowledge of unfair deactivation laws and the applicable time limits for the filing of unfair deactivation applications is not considered exceptional circumstances. Accordingly, I do not find being unaware of the unfair deactivation laws an acceptable reason for the delay between 3 June 2025 and 26 November 2025.

• [13] The reasons for delay weigh against the granting of an extension of time.

Section 536LU(4)(b) - Whether the person became aware of the deactivation after it had taken effect

• [14] Mr Alii did not dispute that he had been made aware of the deactivation on the date it took effect, i.e. 3 June 2025. He was made aware of the deactivation by electronic notification on that day. He had the full benefit of the 21-day period for making an application. There is nothing under this heading that weighs in favour of a conclusion that exceptional circumstances exist.

Section 536LU(4)(c) Any action taken by the person to dispute the deactivation

• [15] Mr Alii did take steps to dispute the deactivation. He challenged the allegations by asking to be heard in relation to the allegations shortly after he was made aware of them. He asked for the decision to be reviewed. He made repeated attempts to speak with someone from the Respondent to discuss his situation. He expressed a willingness to provide further information. There could have been no doubt on the Respondent's part that the deactivation was disputed, although that understanding is likely to have dissipated somewhat over time given the delay in filing the application. Nonetheless, the steps that were taken by Mr Alii weigh in his favour in considering whether exceptional circumstances exist.

Section 536LU(4)(d) - Prejudice to the regulated business, including prejudice caused by the delay

• [16] The Respondent contends that there would be a material prejudice to them if the application was permitted to proceed. I do not consider that such prejudice would exist in this case. However, it is well-settled that a mere absence of prejudice is not, of itself, sufficient to establish exceptional circumstances. I regard this as a neutral consideration in the overall assessment.

Section 536LU(4)(e) - Merits of the application

• [17] For this consideration to weigh in favour of an extension of time, it must be shown that there is some merit in the substantive application. However, an application to extend time is essentially interlocutory in nature and does not enable a fulsome examination of the substantive merits of Mr Alii's application. Nor should the Commission embark upon a detained assessment of the merits of the substantive application in determining whether to grant an extension of time.[4]

• [18] In this case Mr Alii contends that his deactivation was unfair because there was no valid reason for his deactivation. Mr Alii contends he has mistakenly been accused of holding multiple accounts, when this is not the case.

• [19] The Respondent contends Mr Alii was deactivated after receiving multiple warnings relating to order cancellations. The Respondent also submits that Mr Alii is jurisdictionally barred from bringing an application for an unfair deactivation remedy because Mr Alii was not performing work on a regular basis for a period of at least 6 months prior to the deactivation.

• [20] Ultimately, the merits of the Application are likely to turn on contested points of fact, such as whether Mr Alii performed work on a 'regular basis'.[5] Evidence in respect of these contested points would need to be heard and weighed in a hearing of this matter, if an extension of time were granted. It is well established that it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of an extension of time hearing.[6]

• [21] Accordingly, 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.

Section 536LU(4)(f) - Fairness as between the person and other regulated workers in a like position

• [22] There was no evidence about fairness considerations as between Mr Alii and other persons in a like position. Neither party submitted that it was a consideration that weighed for or against a conclusion of exceptional circumstances. This is a neutral factor here.

Section 536LU(4)(g) any processes specified in the Digital Labour Platform Deactivation Code

• [23] The Respondent contends it complied with the Digital Labour Platform Deactivation Code (the Code) when making the decision to deactivate Mr Alii's account. Mr Alii contends he was not given a proper opportunity to respond and have his response considered.

• [24] Consistent with my view with respect to the merits, I am not able to form a concluded view in relation to compliance with the Code. I regard this as a neutral factor in my consideration.

Conclusion - Taking the above matters into account, are there exceptional circumstances justifying an extension of time?

• [25] I will now take into account all the matters under s 536LU(4) to determine if I am satisfied exceptional circumstances exist.

• [26] I have found that Mr Alii's reasons for delay weigh against a finding of exceptional circumstances. While the Respondent was on notice that the deactivation was contested by Mr Alii by reason of the internal review process, the other factors weigh neutrally. Having regard to my consideration of the statutory criteria and the conclusions reached, I am not satisfied that the matters raised amount to exceptional circumstances. The test for exceptional circumstances is a high bar and when I consider all the factors under ss.536LU(4), individually, in combination or as a whole, I am not satisfied that exceptional circumstances exist.

• [27] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. Mr Alii's application for a remedy for unfair deactivation is therefore dismissed.

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [39] in relation to similar provisions in Part 3-1 of the Act.

[4] Kyvelos v Champion Socks Pty Ltd [2000] AIRC 540, print T2421 at [14].

[6] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

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