s.536LU - Application for an unfair deactivation remedy

Application for an unfair deactivation remedy - whether deactivation consistent with the Digital Labour Platform Deactivation Code - whether deactivation otherwise unfair

• [1] The applicant in this matter, Mr. Kyei, previously worked as a driver for the respondent through the Uber Driver platform from January 2014 until his deactivation from that platform on 19 March 2025. Mr. Kyei has since applied for an unfair deactivation remedy under Part 3A Division 3 of the Fair Work Act 2009 (Cth) (Act). It was not in issue that the applicant was a person protected from unfair deactivation[1] and that he had been deactivated from a digital labour platform.[2]

• [2] The background to the application is set out in an earlier decision[3] in which I determined to extend time for the applicant to allow the application to proceed. It is unnecessary to repeat those details here.

• [3] In response to the present application the respondent contended that the deactivation was not unfair because the Commission could be satisfied[4] that the deactivation was consistent with the Digital Labour Platform Deactivation Code (Code) and further and in the alternative, the deactivation was not unfair having regard to the matters set out in s.536LH of the Act.

• [4] Section 536LW requires the Commission to determine certain matters before considering the merits of an unfair deactivation application. Relevantly here, I am required to determine whether or not the deactivation was consistent with the Code prior to considering the merits of the application.

• [5] Section 8 of the Code requires that, generally, a deactivation warning of a certain kind is to be given prior to the deactivation of an employee-like worker from a digital platform. The respondent conceded that the warning provided to the applicant on 10 March 2025 did not meet the formal requirements of s.8 of the Code because it did not state that the worker may seek assistance or support from a support person in relation to the deactivation warning. However, the respondent submitted that it was able to proceed with deactivation under Division 3 of the Code because of the exception provided for in s.9 of the Code. Section 9 provides, in summary, that a warning is not required if the platform operator considers on reasonable grounds that the matter relating to the worker's conduct or capacity is such that it warrants immediate modification or suspension of access to the platform or it is not reasonable to expect the operator to continue to allow the worker to perform work through the platform.

• [6] I am satisfied on the unchallenged evidence of Ms. Fairlie for the respondent that the provisions of s.9(a) and (b) apply to the present circumstances. The respondent had received three serious separate complaints of dangerous driving by the applicant, including allegations that the applicant may have been affected by drugs or alcohol while driving. Those complaints were made on 30 June 2019, 26 November 2024 and 10 March 2025. These complaints provided a reasonable basis for the respondent to consider that immediate suspension was warranted or that it was not reasonable to be expected to allow the worker to continue on the platform. The respondent was therefore able to proceed with deactivation processes notwithstanding the absence of a Code-compliant warning on 10 March 2025. Division 3 of the Code applies to that deactivation process.[5]

• [7] The applicant was sent a preliminary deactivation notice and was notified of his suspension from the platform on 10 March 2025. The written notice complied with s.11 of the Code and amongst other things, advised the applicant, as required by s.11 of the Code, of his right to respond to the notice and to request a discussion with a representative of the respondent within a reasonable period. When the respondent suspended the applicant's access to the platform it did so in conformity with s.12 of Code. The suspension took place at the same time as the preliminary deactivation notice was given, was part of that notice and contained the required information as to the consequences of the suspension and the timing of its effect.

• [8] The applicant said he wanted an opportunity to dispute the allegations that had been made against him in the notice of 10 March 2025. On 11 March and again on 12 March 2025 the applicant provided his contact details and nominated a support person. On 12 and 13 March the respondent told the applicant that the help section he was using was only available to those who had received a preliminary deactivation notice and that he was ineligible for a discussion. The respondent accepted that the applicant had been provided with a preliminary deactivation notice on 10 March 2025 and was therefore eligible to and did request, a discussion[6] but instead was told twice to raise another request through the correct help node. The respondent also accepted that no such discussion occurred but suggested that there was nonetheless consistency with the Code because the applicant had an opportunity to respond and did respond, and that the response was considered by the respondent before the final decision to deactivate was made. I reject that submission. Section 13(5) of the Code says:

(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 reasonable time.

• [9] In my view the respondent has plainly not complied with s.13(5) of the Code. The section is in mandatory terms. It says the platform operator must make a representative available on request. Contrary to the requirements of s.13(5) the request was not accommodated and the consequence was the applicant was deprived of the opportunity envisaged by the Code to present his response in his chosen form. This is sufficient to conclude that the deactivation of the applicant was not consistent with the Code and to allow me to then consider the merits of the application. However, because I am required to consider whether any relevant processes specified in the Code were followed in determining whether the deactivation was unfair,[7] I also propose to briefly refer to other provisions of the Code at this point and the extent to which those other provisions were followed by the respondent.

• [10] Section 13 of the Code also provides as follows:

(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.

• [11] Section 13(7) required a human representative of the respondent to consider the applicant's response to the preliminary deactivation notice. Ms. Fairlie gave evidence that this occurred and that the representative determined that no further inquiries were necessary.[8] I accept that to be the case. However, s.13(8) imposes an obligation to make such further inquiries as are reasonably warranted after considering the worker's response. Given the obligation on the respondent's representative to consider the applicant's response/s, it would have been apparent to the representative from those responses that the applicant was seeking an opportunity to dispute the allegations through a discussion with the respondent involving his support person. However, there was no consideration of any response by the applicant given through discussions because no such discussions occurred. This was despite the fact that the applicant had a right to have a representative of the respondent made available for discussions on request. In those circumstances, even though the applicant provided a written response to the preliminary deactivation notice,[9] a further inquiry was, in my view, reasonably warranted to see if the applicant had anything else to say given the discussions contemplated by the Code had not occurred. The result is that the requirements of s.13(5) of the Code were not met by the respondent.

• [12] As to s.14 of the Code, the requirement that the digital platform operator must decide to either take no action or terminate the worker's access to the platform, must only occur after a preliminary deactivation notice is given and the applicable requirements of s.13 are met.[10] I have concluded above that not all of the requirements of s.13 of the Code were met in this case. It follows that s.14(1) also has not been satisfied here. Nonetheless the respondent did notify the applicant of the decision to terminate access as soon as reasonably practicable[11] and did issue a final deactivation notice to the applicant that met the requirements of s.14(5) of the Code.

• [13] Section 14(4) of the Code provides that termination of access to the platform can only occur if the reason for the termination is a valid reason and the platform operator considers on reasonable grounds that the reason has been established. In Rahul Kumar v Portier Pacific Pty Ltd[12] Deputy President Saunders recently noted the following:

"...the requirement in paragraph 14(4)(a) of the Code - that the reason is a valid reason - should be understood as a test of the quality of the reason. That is, whether the reason is valid in the sense of being "sound, defensible or well-founded," and not "capricious, fanciful, spiteful or prejudiced". A reason that is "valid" will involve something more than a minor failing or trivial misdemeanour and must be of sufficient gravity or seriousness to justify deactivation. This is a question of characterisation, not proof. The Commission's role under the Code is to evaluate whether the reason being relied on by the operator for deactivation meets this standard of being a "valid reason", rather than to determine whether the alleged conduct occurred."[13]

• [14] Section 19 of the Code sets out various matters that may constitute a valid reason for deactivation. These include a refusal or failure to meet the requirements of the worker's services contract with the operator, the conditions of use of the platform or the operators standards of service,[14] or engaging in unsafe driving practices.[15] I am satisfied on the evidence of Ms. Fairlie that the reason for the termination of access was a valid reason for the purposes of s.14(4)(a) of the Code and that the respondent considered, on reasonable grounds, that the reason had been established. The three complaints referred to at [6] above evidence such reasonable grounds. In addition to these, the respondent received 21 further complaints against the applicant, including serious complaints of dangerous driving, between the period June 2017 to February 2025. The vast majority of these were notified to the applicant through the respondent's in-app messaging system. The respondent found no indicators in its system to suggest that any of these complaints which had been made by various complainants had been made in bad faith. The respondent could justifiably come to the view that it was reasonable to terminate the applicant's access to the platform in the interests of protecting the safety of those using the platform as passengers and that the applicant's conduct was inconsistent with the services agreement entered into by the applicant and the respondent and the community guidelines that the applicant had agreed to comply with while using the platform.

Unfair deactivation and whether there was a 'valid reason' under s.536LH(1)(a)

• [15] The criteria for considering whether a deactivation was unfair[16] are set out in s.536LH(1) which provides:

536LH 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.

• [16] Unlike the situation when considering the concept of 'valid reason' for the purposes of s.14(4) of the Code, the valid reason referred to in s.536LH(1)(a) requires the Commission to make a finding as to whether the evidence establishes, on the balance of probabilities, that the conduct occurred. It is not sufficient for the respondent to show that it had a reasonable belief that the worker engaged in the conduct.[17] The evidence here shows that 3 complaints were made against the applicant and received by the respondent on 30 June 2019, 26 November 2024 and 10 March 2025 respectively. The complaints allege serious issues with the standard of the applicant's driving. The evidence also shows that 21 additional complaints were made about the standard of the applicant's driving or the service provided in the period June 2017 to February 2025. The applicant denied that any of the complaints were justified. He denied ever using drugs and alcohol at all including when he was transporting passengers using the respondent's platform.

• [17] I am satisfied on the evidence that the applicant engaged in multiple instances of unsafe driving in the period referred to above as evidenced by the complaints and as a result, the respondent had a valid reason[18] to deactivate the applicant related to his capacity or conduct. The complaints were numerous. Many of the complaints raised serious safety concerns. I accept the evidence of the respondent that the persons making the complaint were not identified by the respondent as having fraudulent indicators. Such indicators would have supported the view that one or more of them had made groundless complaints for ulterior purposes such as obtaining a refund. I also consider it unlikely that the same passenger would be matched with the applicant on more than one occasion and would therefore make multiple groundless complaints against him. Some complainants actually requested not to be paired with the applicant again. I note that the complaints stopped during the period when the applicant accepted that he took a break from driving due to ill health and recommenced after the applicant returned to work. I also note that there were common themes in a number of the complaints such as erratic or distracted driving and sudden braking or turning which supports the view that the applicant had on multiple occasions, engaged in unsafe driving. As to the three specific complaints that raised the prospect that the applicant was driving under the influence of drugs or alcohol, the applicant was strenuous in his denials, and I do not think the evidence goes so far as to establish that the applicant was affected by drugs or alcohol. The matters described in the complaints could be as readily attributable to very poor driving skills, lack of concentration and/or fatigue.

• [18] These unsafe practices had contractual consequences. The applicant accepted that he was bound by the terms of the services agreement he entered into with the respondent. That agreement required the applicant to drive safely and in a professional manner with due skill, care, courtesy and diligence.[19] It required compliance by the applicant with the terms of the respondent's community guidelines (guidelines). It provided for restricted access or removal of access to the platform for a material breach of the agreement or acts that inter alia, created a risk to health and safety of others, including in relation to fatigue.[20] The guidelines provided that any behaviour involving unsafe activity while using the platform can result in loss of access to the platform. The applicant accepted that he understood these obligations and that he knew unsafe behaviour in breach of the terms of these documents could result in deactivation.

Whether any processes in the Code were followed (s.536LH(1)(b))

• [19] I have set out my conclusions above in relation to whether relevant processes in the Code were followed. Without repeating those matters, I record that I have taken the following of Code processes into account for the purposes of assessing whether the deactivation was unfair.

Any other matters that the Commission considers relevant (s.536LH(1)(c))

• [20] The applicant commenced working through the respondent's platform in 2014. I have taken into account this lengthy period during which the applicant worked using the respondent's platform and the absence of evidence of complaints or alleged breaches of the services contract prior to 2017.

• [21] I have also taken into account the evidence that the applicant was notified by the respondent of the complaints that had been made against him. In relation to the additional 21 complaints, I accept that the applicant was notified of 18 of these by the respondent through the 'in-app' messaging system. In relation to the three drug and alcohol-related complaints, even though the applicant said he had not seen the previous warnings prior to the preliminary deactivation warning I conclude that this is because the applicant simply failed to read all of the notifications that he was sent. I am satisfied on the evidence of Ms. Fairlie that the applicant was notified of the complaints of 30 June 2019 and 26 November 2024 through the 'in-app' system.[21] In combination, these notifications meant that the respondent took reasonable steps to forewarn the applicant that complaints had been made against him and he was at risk of having his account deactivated.

• [22] Having considered the evidence and weighed all of the relevant factors in this matter, on balance I have concluded that the applicant's deactivation was not unfair. Although there were deficiencies in relation to the process followed by the respondent, the respondent provided ample warning to the applicant to allow him to rectify the issues. The complaints continued. The applicant did have an opportunity to respond to the prospect of deactivation and did so in writing even though he was not given an opportunity to speak to a respondent representative about the preliminary deactivation notice. Further, the respondent had a valid reason for the deactivation. There were numerous complaints over an extended period that raised serious and legitimate safety concerns relating to the applicant's driving. It was reasonable that steps be taken to address what was a genuine road safety issue and a matter of concern to the reputation and business interests of the respondent. I observe that in the circumstances, even if I had concluded that the deactivation was unfair, having regard to the safety-related nature of the issues leading to deactivation, I would not have exercised my discretion to order reactivation under s.536LP.

Ms Fairlie, solicitor of Dentons Australia, on behalf of the respondent

[3] [2025] FWC 2269.

[12] [2025] FWC 2275.

[13] At [8]. See also Mohamed v Portier Pacific Pty Ltd [2025] FWC 2337.

[17] Hotak v. Rasier Pacific Pty Ltd [2025] FWCFB 214 at [94].

[19] Exhibit R1 Annexure A clause 5.1(f).

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