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[2026] FWC 503
General information, not legal advice.
Fair Work Commission
2026-02-19
Original judgment source is linked above.
s.536LU - Application for an unfair deactivation remedy
Application for an unfair deactivation remedy-application lodged outside 21-day timeframe-application dismissed
[1] Mr Jibran Ali (the Applicant) commenced engagement with Rasier Pacific Pty Limited (the Respondent or Uber) in or around June 2022. He was deactivated from the Respondent's platform on 22 May 2025.
[2] The reason given by the Respondent for the decision to deactivate the Applicant was alleged street hailing or touting which is a breach of the Respondent's community guidelines.
[3] The Applicant has applied for an unfair deactivation remedy under s.536LU of the Fair Work Act 2009 (the Act). The application was lodged on 28 January 2026.
[4] The matter was listed for Hearing on 18 February 2026 by video using Microsoft Teams.
[5] Dentons Australia Limited filed submissions on 15 February 2026 in support of their request for permission to appear on behalf of the Respondent at the Hearing pursuant to s.596 of the Act. The Applicant subsequently filed submissions objecting to the Respondent's representative being granted permission to appear on 16 February 2026.
[6] I considered both of these submissions, and my chambers wrote to the parties on 17 February 2026 indicating that the request for permission to appear was not granted. In that email I indicated that I would provide short reasons for this decision at the commencement of the Hearing and these are reflected in the transcript of the proceeding.
Application was filed outside the statutory timeframe
[7] Applications for an unfair deactivation remedy must be made within 21 days after the deactivation took effect.
[8] The Applicant was deactivated by the Respondent with effect from 22 May 2025.
[9] Based on a deactivation date of 22 May 2025, the application for a remedy should have been lodged by no later than 12 June 2025.
[10] The application was therefore lodged outside of the time prescribed. The application was made in effect, 230 days after the last date on which it could have been made. The Act allows the Fair Work Commission (the Commission) to consider extending the period within which an application for an unfair deactivation remedy may be made if it is satisfied that there are exceptional circumstances.
[11] Before dealing with the evidentiary matters, let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of s.536LU of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.
[12] The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:
[15] I now consider these matters in the context of the Application.
[17] The reasons advanced by the Applicant for the delay included:
[18] None of these reasons, either singularly or collectively are acceptable reasons for the lengthy delay.
[19] Ignorance of the ability to lodge an application is not an acceptable reason. In any event the Applicant became aware on 4 December 2025 of the ability to lodge an application, yet he still did not lodge the application until 28 January 2026.
[20] Statements of medical capacity related to the knee injury where provided. The knee injury was clearly leading to discomfort, particularly when climbing stairs, but it is not an acceptable reason for the significant delay. Indeed, his certificate of capacity stated that he could perform office work.
[21] While the Applicant was no doubt experiencing some family and financial pressure, there was no evidence that this was having such an impact that he could not lodge an application and is not an acceptable reason for the lengthy delay.
[22] Finally, there is no requirement for Uber to have informed the Applicant of his ability to lodge an application.
[23] The Applicant provided material prior to the hearing which repeated some of these reasons and added additional reasons. These additional reasons are largely directed at activities the Applicant said he engaged in to dispute the deactivation, and I have considered them below.
[24] The Applicant also stated that he had a genuine belief that the deactivation may not be permanent. However, there is nothing in the deactivation notice to suggest that it is interim in nature. I do not accept that the Applicant had any sound basis to hold a belief that it was not a permanent deactivation. In any event, his evidence is that he attempted to regain access to the platform in September and November 2025 and failed. Despite this confirmation that he was deactivated the Applicant did not take action to lodge this application until 28 January 2026.
[25] In the circumstances, I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.
b) Whether Applicant first became aware of the deactivation after it had taken effect
[26] Turning then to the question of whether the Applicant first became aware of the deactivation after it had taken effect, the evidence is that the Applicant was advised on 22 May 2025 via email that he would be deactivated with effect from 22 May 2025. The Applicant in his Form F89 indicated that the deactivation took effect on 22 May 2025. While the Applicant, as stated above, submitted he believed the deactivation may not be permanent, there was no sound basis for that belief.
[27] In the circumstances, that is a matter that weighs against the Applicant.
[28] Turning next to the question of the action taken by the Applicant to dispute his deactivation. The Applicant submitted that he had requested information from the Respondent as to the details of the alleged incidents and disputed that they had occurred. The Applicant also stated that he made an application under freedom of information/privacy principles and lodged a complaint with the Office of the Australian Information Commissioner. The Applicant claims he believed that access to this information was necessary before he could commence legal action. This is inconsistent with Applicant's admission that he did not know until December that he could lodge an application for unfair deactivation. However, I accept to the extent that the Applicant engaged in these activities, after the deactivation, including trying to reactivate his platform access, that it represents some action to dispute the deactivation.
[29] In the circumstances, that weighs in favour of the Applicant.
[30] Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time.
[31] The Respondent submitted that there would be prejudice to the Respondent as the Applicant's case is likely to fail on a further jurisdictional basis, that is that the Applicant did not perform regular work for a period of 6 months prior to the deactivation and that the Respondent complied with the Digital Labour Platform Deactivation Code (the Code). The Applicant said the Respondent will not suffer any prejudice.
[32] The further jurisdictional objection is a factor that is relevant to the consideration of the merits of the application and is considered below. However, I do not consider there to be any evidence of prejudice nor was it advanced that it should be presumed given the lengthy delay.
[33] In the circumstances, that is a matter that is neutral in the instant case.
[34] As to the merits of the application, in cases such as this, where the substantial merits of an application are not fully examined into or agitated, it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant's case at its most favourable.
[35] The Applicant was deactivated for alleged street hailing or touting in breach of the Respondent's community guidelines. The Applicant disputes that he engaged in the alleged conduct. The Respondent submits that it complied with the Code which I deal with below.
[36] The Respondent also submits a further jurisdictional objection that the Applicant had not been performing work for at least 6 months on a regular basis. That in the 6 months prior to his deactivation he did not perform any work for 13 of the 26 weeks prior to the deactivation. In the weeks he did work, he completed 18.7 hours on average per month and 2.19 days per week on average. The applicant agreed he did not work at all for 13 weeks of the 26-week period as he was overseas visiting family. He did not know if the average hours worked were accurate.
[37] As stated, the merits are not fully examined or agitated in a matter such as this. However, the jurisdictional objection that the applicant had not been performing work on a regular basis appears strongly arguable. Therefore, it seems to me that his claim is, on a preliminary basis weak. That is not to suggest it will fail, but I am satisfied that there is little merit.
[38] In the circumstances, that is a matter that weights against the Applicant.
f) Fairness as between the Applicant and other regulated workers in a similar position
[39] As to fairness between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts; however, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like position. 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 regulated workers of a regulated business responding to an unfair deactivation application.
[40] The Applicant states that he acted in good faith, was not deliberately delaying proceedings and it would be disproportionate to deny access where he was seeking to resolve matters directly with the Respondent. This is essentially a restatement of matters considered elsewhere in the decision and is not particularly relevant to a consideration of fairness as between the Applicant and other regulated workers in a similar position.
[41] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
(g) Any processes specified in the Digital Labour Platform Deactivation Code
[42] As to any processes specified in the Digital Labour Platform, the Respondent contends that it complied with the Code when making the decision to deactivate the Applicant's account.
[44] In response the Respondent says in their F89A that they complied with the Code and cited the following:
[45] I am not able to nor is it appropriate to form a concluded view in relation to compliance with the Code however, based on the material currently before me it appears more likely than not that the Respondent has followed the process specified in the Code and this weighs against the Applicant.
[46] Statutory time limits that are applicable to the exercise of a person's right to bring an unfair deactivation remedy application are an expression of the Parliament's intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a deactivation, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.
[47] A person who seeks relief from an unfair deactivation must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in s.536LU(4) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.
[48] As I have indicated, the lack of acceptable reason for the delay, awareness of the deactivation after it had taken effect, merits and consideration of processes specified in the Code all weigh against the Applicant. Action to dispute the deactivation weighs in favour of the Applicant. All other factors are neutral.
[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]
Printed by authority of the Commonwealth Government Printer
Jibran Ali
Rasier Pacific Pty Limited [2026] FWC 503