Kwasi Kyei [2025] FWC 2269 (5 August 2025)

Application seeking remedy for unfair deactivation - section 536LU - application out of time - extension of time - whether exceptional circumstances exist - Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024 - extension granted.

• [1] Mr. Kwasi Kyei (Applicant) has made an application for an unfair deactivation remedy under Part 3A-3 of the Fair Work Act 2009 (Cth) (Act) against Rasier Pacific Pty Ltd (Respondent). The application had been made outside the 21-day statutory period prescribed by the Act. This decision concerns the issue of whether that time period should be extended to allow the application to proceed.

• [2] For the reasons below, I am satisfied that there are exceptional circumstances as contemplated by the relevant provisions of the Act and that the time period mat therefore be extended. I have also determined that it is appropriate to exercise my discretion to grant an extension of time.

• [3] The Applicant worked as a driver through the Uber Driver platform which was made accessible to him by the Respondent. Prior to his deactivation, he had worked on that platform since approximately 2014.

• [4] The present application was filed by the Applicant on 8 June 2025. Under s.536LU(3) of the Act, applications of this kind must be made within 21-days after the deactivation took effect or within such further period as the Fair Work Commission (Commission) allows under s.536LU(4).

• [5] The Applicant contended in his written submissions that he was notified of the deactivation on 19 March 2025 and the deactivation from the Uber platform took effect on 9 April 2025.[1] This appears to be a typographical error and the Applicant's contention in substance is that the deactivation took effect on 19 April 2025 which is the date on which he was advised that an internal review of the deactivation decision had concluded and that he would not be reactivated to allow him to have access to the Uber Driver platform.

• [6] The Respondent submitted that the deactivation took effect on 19 March 2025.[2] On either version of events, the application was made outside the 21-day time period prescribed by s.536LU(3) of the Act and the Applicant accepted that this was the case. If the Applicant is correct as to the deactivation date, the time period expired on 10 May 2025 and the application would be outside that time period by 29 days. If the Respondent is correct, the time period expired on 9 April 2025 and the application would be outside the time period by 60 days.

• [7] Under s.536LU(3)(b) and s.536LU(4) the Commission can extend the period within which an unfair deactivation application is made only if it is satisfied that there are exceptional circumstances. Section 536LU(4) sets out the matters which are to be taken into account in determining whether exceptional circumstances exist. It provides:

(4) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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

(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 or the Road Transport Industry Termination Code, as the case requires.

• [8] The provisions of Part 3A-3 have been enacted relatively recently.[3] The language adopted by the legislature in enacting the provisions in s.536LU specifically, is in similar terms to that contained in s.394(3) of the Act which relates to unfair dismissal proceedings. The re-enactment presumption favours reading the provisions consistently with the earlier enacted provisions in s.394(3).[4] I propose to use the authorities relating to s.394(3) as a guide to the approach to be taken to s.536LU.[5]

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

• [10] The delay is the period between the end of the 21-day time period and the date the application is filed. An applicant does not need to provide a reason for the entire period of the delay. 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.[6]

• [11] In order to assess the reason for the delay it is necessary to establish the period of the delay. This requires a determination of the date on which the deactivation took effect. I am of the view that the relevant date is 19 March 2025. This is because the initial deactivation notice sent on the evening of 10 March 2025 stated that the Respondent was considering terminating the Applicant's access to the Uber Driver app. It said that the Applicant had an opportunity to respond to the allegations and that his access to the app would be suspended from that point. This notice was in nature of a temporary or preliminary deactivation notice. The notice sent to the Applicant on 19 March 2025 was a final deactivation notice. It made it clear that the account had been deactivated with immediate effect, that final payment would be made to the Applicant and that the decision to deactivate was final. I do not accept that the deactivation occurred on 19 April 2025 when the Applicant was advised that his requested review of the deactivation decision would not proceed. The deactivation had already been put into effect by that time. The requested review did not change that fact. The Applicant's request did not alter his status in the period between the requested review and the advice that the review would not proceed. I accept the Respondent's contention that the deactivation took effect for the purposes of s.536LU(3), on 19 March 2025. The delay is therefore the period between 9 April 2025 when the 21-day period expired and 8 June 2025 when the application was made.

• [12] The Applicant submitted that the reasons for the delay related to his actions in seeking an internal review of the decision by the Respondent to deactivate his account and the circumstances surrounding his communication with Fair Trading and an entity called 'Point to Point' regarding potential challenges to his deactivation. The Applicant also referred to his lack of awareness of Part 3A-3 and the recent introduction of those provisions. He submitted that there was an obligation on the Respondent to provide him with information about his appeal rights and time limitations. He submitted that the lack of clarity in the deactivation notices sent by the Respondent caused confusion and contributed to the delay.

• [13] The Applicant gave evidence as to the steps he took upon receipt of the initial notice from the Respondent at 1.30am on 10 March 2025. That notice alleged that a report had been received from a passenger alleging that the Applicant appeared to be 'impaired by substance abuse.' The Applicant responded in writing by requesting an opportunity to dispute the allegations. I accept that steps were taken by the Applicant to challenge the original notice. The response that he received from the Respondent is discussed in further detail below.

• [14] The Applicant's evidence was that between the period of 19 March 2025 and 15 April 2025 he sought advice from various persons and organisations as to what he could do about the deactivation. He said no-one could provide him with an answer given the deactivation provisions had only recently commenced. The Applicant said he did not have the funds to seek legal advice.

• [15] The Applicant said he contacted the Respondent on 2 and 3 April 2025 and received an automated response directing him to the Respondent's chat function. The evidence shows that the Applicant took steps to have the decision reviewed by engaging with the Respondent in the period 15 to 19 April when the 'review' was completed. He was told that the matter was being handled by a specialist team who would 'reach out' to the Applicant as soon as possible. The review was finalised against the Applicant's interests on 19 April 2025.

• [16] The Applicant also gave evidence that he contacted 'Fair Trading' twice about his situation on 13 May 2025 and was told they did not deal with deactivation matters. He said that between 13 May and 8 June 2025 he contacted 'Point to Point' who suggested to him that he refer his inquiries to the Fair Work Commission (Commission). He also said that he contacted the Commission on 13 May 2025.[7]

• [17] I am of the view that the reasons for the delay provided by the Applicant do not provide an adequate explanation for the delay. It was open to the Applicant to lodge an application notwithstanding his request for an internal review. Further, the Applicant's contact with third parties about his options does not adequately explain the delay. The Applicant was not prevented from filing an application because of these contacts and in substance, this is a submission that the Applicant was unaware of how he could exercise his (albeit recently introduced) right to challenge his deactivation and the time limitations that applied to the exercise of those rights. It has long been held that mere lack of knowledge of statutory limitation periods is commonplace and does not amount to an exceptional circumstance.[8]

• [18] Further, there are long periods within the period of the delay that are not explained. For example, the Applicant's own evidence was that his first contact with the Commission was on 13 May 2025. There was evidence to show that the Applicant was provided with information about applications for unfair deactivation matters by the Commission on that day, but he did not adequately explain why he did not file the application until over three weeks later. The reasons provided by the Applicant for the delay do not weigh in favour of a conclusion that exceptional circumstances exist.

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

• [19] The Applicant did not dispute that he had been made aware of the deactivation on the date it took effect, i.e. 19 March 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

• [20] The Applicant 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 the Applicant 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

• [21] The Respondent contended that there would be a material prejudice to them if the application were 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)(f) - Fairness as between the person and other regulated workers in a like position

• [22] There was no evidence about fairness considerations as between the Applicant 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)(e) and (g) - Merits of the application and any processes specified in the Digital Labour Platform Deactivation Code

• [23] An unfair deactivation is defined in s. 536LF as follows:

A person has been unfairly deactivated if the FWC is satisfied that:

(a) the person has been deactivated from a digital labour platform; and

(c) the deactivation was not consistent with the Digital Labour Platform Deactivation Code.

• [24] It was not in issue that the Applicant had been deactivated from the platform. The criteria for considering whether a deactivation was unfair are set out, relevantly, in s.536LH as follows:

Criteria for considering whether a deactivation was unfair etc.

(1) In considering whether it is satisfied that a person's deactivation was unfair, the FWC must take into account:

(a) whether there was a valid reason for the deactivation related to the person's capacity or conduct; and

(b) whether any relevant processes specified in the Digital Labour Platform Deactivation Code were followed; and

(c) any other matters that the FWC considers relevant.

(2) Despite subsection (1) and any other provision of this Part, a deactivation that occurs because of serious misconduct of the person who was deactivated is not unfair.

• [25] It is not ordinarily necessary or desirable to make findings on all contested matters of fact for the purposes of an assessment of the merits of the matter at this preliminary stage. These are matters that are dealt with at a full hearing in the event the substantive application is dealt with. Nonetheless, it is necessary in the present assessment to give some consideration to whether there was a valid reason for the deactivation and whether the processes specified in the Code were followed, in addition to other relevant matters.

• [26] In this case the Applicant contends that there was no valid reason because he denied the allegations that had been levelled against him. On the other hand, the Respondent submitted that the Applicant's prospects were limited given that he had been the subject of multiple complaints over an extended period and that the Applicant had been notified on each occasion on which a report was made against him. As the evidence stands, I am unable to come to a view on the question of whether there was a valid reason for the deactivation. This is a matter which would need to be tested by more detailed evidence at a full hearing. However, on the available material, there does appear to be some deficiencies in the processes adopted by the Respondent in bringing about the deactivation and following the requirements of the Digital Labour Platform Deactivation Code (Code).

• [27] The Respondent contended that the Code had been complied with when making the decision to deactivate the Applicant's account. In general terms, s.8 of the Code provides that a deactivation warning should precede a deactivation.[9] The evidence shows that the Applicant was given no fewer than three previous warnings that his access to the platform might be removed because of reports of alleged substance abuse. These warnings occurred on 30 June 2019, 25 November 2024 and 10 March 2025 (at 1.30am). The Applicant denied the allegations on each occasion.

• [28] Section 8 also prescribes that a pre-deactivation warning should include particular content. Amongst the requirements specified is a requirement that the warning must state that the worker may seek assistance or support from a person (other than a lawyer acting in a professional capacity) who may be a delegate or employee of an organisation.[10] At the very least, the warnings, including the warning of 10 March 2025, which was issued after the Code came into operation,[11] do not contain that information and appear deficient in this respect. There were no submissions made by the Respondent that s.8 of the Code did not apply because of the exemption in s.9.

• [29] Division 3 of the Code applies where a digital platform operator is exempt from the requirement to give a deactivation warning because of the operation of s.9, or where a deactivation warning is given but the operator considers on reasonable grounds that the deactivation is justified for the reasons specified in s.10(b).

• [30] The Respondent submitted that the Applicant had complied with the requirements of the Code in Division 3, including in relation to preliminary deactivation notices as described in s.11. A notice was issued to the Applicant at 11.57pm on 10 March 2025. Central to notices of that kind is the obligation to notify that the employee-like worker has a right to respond to the notice and a right to request a discussion with a representative of the digital platform operator. The notice of 10 March 2025 served as a notice of suspension of access to the platform[12] as well as being a preliminary deactivation notice. It advised the Applicant of the right to respond and to request a discussion. The Applicant said he wanted an opportunity to dispute the allegations against him. He provided his contact details and nominated a support person, twice, on 11 March and again on 12 March 2025.

• [31] On 11 March 2025 the Applicant was told that his request was 'under review' and that no action was required by the Applicant while the matter was reviewed. The Respondent also apparently accepted that the Applicant had made a request to discuss the matter. On 12 and 13 March the Applicant received two messages from the Respondent in identical terms saying that the help section he was using was only available for those who had received a preliminary deactivation notice and he was ineligible for a discussion about the matter. On the Respondent's own case, the Applicant had been provided with a preliminary deactivation notice on 10 March 2025 and would therefore have been eligible to request a discussion. Instead, he was told twice to 'raise another request through the correct help node.'

13 Steps after preliminary deactivation notice is given

Worker's response to preliminary deactivation notice

(1) An employee-like worker may respond to a preliminary deactivation notice given

to the worker by a digital labour platform operator.

(2) The response must be given within the period specified in the preliminary

deactivation notice, or within such longer period as is agreed between the

(3) The response may be in writing or may be given orally (including as part of the

(4) The employee-like worker may, within the period mentioned in paragraph

11(1)(c), request the digital labour platform operator to make a representative of

the operator available to discuss the preliminary deactivation notice.

(5) If an employee-like worker makes such a request, the digital labour platform

operator must make a representative available for the discussion within a

(6) A person appointed by the employee-like worker for support or representation

(see section 16) may participate in the discussion.

(7) A human representative of the digital labour platform operator must consider the

employee-like worker's response (if any), including the discussion (if any)

between the worker and the digital labour platform operator's representative.

(8) The digital labour platform operator must make such further inquiries (if any) as

are reasonably warranted after considering the employee-like worker's response.

(a) a preliminary deactivation notice is issued to an employee-like worker after

a report or complaint about the worker is made to the digital labour

(b) the report or complaint concerns a matter that, if true, would constitute a

valid reason for the deactivation of the worker; and

(i) the worker's response to the notice under this section does not provide

adequate information to address the report or complaint; or

(ii) the worker provides no response to the notice under this section;

then, if the operator terminates the worker's access to the platform, the termination is taken, for the purposes of subsection 14(4), to be termination for a valid reason that the operator considers on reasonable grounds has been established.

• [33] On 11 March 2025 the Applicant was told that no action was required of him while a review was undertaken. On 12 and 13 March he was told that he was 'ineligible' for a discussion about the matter. On 14 March 2025 the Applicant was told that his account was being reviewed and that the 'team (was) carefully reviewing the information (the Applicant had) shared.' Five days later the Applicant was issued with the final deactivation notice. He had not spoken to anyone from the Respondent about his deactivation prior to this decision being made.

• [34] The Respondent gave evidence that a 'human agent' considered the Applicant's alleged conduct and his response before making the decision to permanently deactivate his account on 19 March 2025. Section 14(4) of the Code provides that a digital platform operator may terminate access to the platform only if the reason for the termination is a valid reason and the operator considers on reasonable grounds that the reason has been established. Presumably the decision-maker would have been aware of the communications between the parties to that point. The Applicant had provided a notification that he disputed the allegations, his contact details and the name of a support person. He had been told twice that he was ineligible for a discussion even though he had been issued with a preliminary deactivation notice. This should have attracted the decision-maker's attention. There was no evidence to suggest that the decision-maker had made further inquiries as might be reasonably warranted having regard to the limited communications that had occurred to that point, including the Applicant's response.[13] Despite the provisions of s.13(5) of the Code, there was no evidence to suggest that the Applicant was given the opportunity to speak to anyone about the allegations despite making contact with the Respondent seeking an opportunity to dispute the claims. Moreover, the decision to deactivate was taken based on limited information and no substantive input from the Applicant in relation to the most recent allegations.

• [35] For the purposes of ss.536LU(4)(e) and (g) my assessment is that the merits of the application and a consideration of the processes specified in the Code weigh in favour of a conclusion that exceptional circumstances exist.

• [36] In circumstances such as these, the Applicant must satisfy the Commission that there are exceptional circumstances which warrant the Commission exercising its discretion in favour of granting an extension of time.

• [37] 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.[14]

• [38] Having taken into account the matters set out above, I am satisfied that there are exceptional circumstances in this case. I am also satisfied that it is appropriate to exercise my discretion to extend time for the making of the application. An order extending time to 8 June 2025 will issue separately.

• [39] The matter will be relisted for further directions on a date to be fixed.

By video using Microsoft Teams at 2pm AEST on Wednesday, 23 July 2025.

[1] In the originating application the Applicant said the deactivation took effect on 19 March 2025.

[2] In the Form F89A the Respondent originally contended that the deactivation took effect on 10 March 2025.

[3] Fair Work Legislation Amendment (Closing Loopholes No.2) Act 2024 commenced 26 August 2024 - See Clause 123 of Part 18 of Schedule 1 of the Act.

[4] See Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34; (1994) 181 CLR 96 at 106-107, 200, Workcover Authority of New South Wales (Inspector Belley) v. Freight Rail Corporation [2002] NSWIRComm 281; (2002) 117 IR 99.

[5] See also Derow v. Raiser Pacific Pty Ltd [2025] FWC 2062 at [5].

[6] 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.

[8] Miller v. Allianz Insurance Australia Ltd [2016] FWCFB 5472 at [23].

[11] Section 2.

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