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[121]
[2025] FWC 3779
General information, not legal advice.
Fair Work Commission
2025-12-10
Original judgment source is linked above.
[2025] FWC 3779 [Note: An appeal pursuant to s.604 (C2025/13213) was lodged against this decision.]
s.536LU - Application for an unfair deactivation remedy
Application for an unfair deactivation remedy - applicant was protected from unfair deactivation - deactivation complied with the Digital Labour Platform Deactivation Code - application dismissed.
[1] On 7 October, Mr Lovepreet Sharma (Mr Sharma) made an application pursuant to s 536LU of the Fair Work Act 2009 (Cth) (the Act) seeking an unfair deactivation remedy. In its Form F89A response, Raiser Pacific Pty Ltd (Uber), raised a jurisdictional objection that in deactivating Mr Sharma it complied with the Digital Labour Platform Deactivation Code (the Code).
[2] On 8 December 2025 I conducted a hearing, in advance of which both parties filed material in accordance with the directions issued. Mr Sharma appeared at the hearing and gave evidence. Ms Nicole Ashcroft, Head of Safety ANZ, was called to give evidence for Uber which was represented by Mr Andrew Crocker who was granted permission to appear pursuant to s 596(2) of the Act.
[4] The Community Guidelines include the following relevant requirements;
(a) Under the subheading "inappropriate conduct and sexual assault and misconduct":
"Please don't comment on someone's appearance or ask whether they are single or about their personal circumstances. Be mindful that people may not appreciate being asked about their personal life, including about children, work, where they live or their relationship status....
...Sexual assault and sexual misconduct of any kind is prohibited. Sexual assault and misconduct refers to sexual contact or behaviour without explicit consent of the other person...
...Any sexual conduct. Uber has a no-sex rule regardless of whether you know the person or they give you their consent. This includes activities such as sexual intercourse, masturbation or touching or exposure of sexual body parts...."
"Don't touch strangers or anyone you have just met while using the Uber Marketplace Platform. Limited exceptions are permitted for people needing or requesting physical assistance (for example, riders using Uber Assist who may need help getting into and out of the vehicle). Hurting or intending to hurt anyone is never allowed."
(c) Under the sub-heading "Threatening and rude behaviour":
"Aggressive, confrontational or harassing behaviour is not allowed..."
[5] Mr Sharma conceded during cross examination that he had agreed to the Services Agreement on commencement, was required to comply with the Community Guidelines and that he read both. He maintained that his conduct was consistent with Uber's various requirements. He also accepted that breaching the Community Guidelines in respect of sexual misconduct or aggression towards a Rider would warrant a driver's account being deactivated although denying he had engaged in such conduct.
[7] Ms Ashcroft states that outcomes for Driver Partners and Riders as a result of a safety or interpersonal conflict complaint will generally be one of the following:
(b) Block pairing (i.e. the Rider and Driver Partner will not be connected in future);
(d) Waitlisting (temporarily having access restricted to the Driver App or Rider App); or
[8] Ms Ashcroft explained that Uber has systems in place that evaluate the veracity of complaints made by users of the Platform. Uber's Community Operations Team will review a complainant's profile and history to understand if they have any fraudulent activity, including;
(b) whether the system has automatically flagged the complainant as having a high adjustments and appeasements rate. This occurs when a customer has requested a disproportionate number of refunds within a certain timeframe. Uber's system will add a tag to the customer's account to deny further requests for refunds where this conduct has been identified;
(b) where the customer's account is not currently flagged by the system, whether the customer nevertheless has a historically high refund rate;
(c) the customer's history of safety incidents recorded on Uber's systems; and
[10] Mr Sharma agreed during cross-examination that he had picked up a female Rider at 6.31 am on 16 December 2022. He further agreed that he was familiar with the trip, and the Rider was intoxicated. He rejected that he had sent any text messages to the Rider after the trip and maintained that he would have remembered if he had done so. When pressed he could offer no reason why the Rider would have made up such a complaint.
You're receiving this message because a review of your account found that you have previously been reported for multiple instances of sexual misconduct and physical altercation, which is a direct violation of your agreement with Uber and we are considering terminating your access to the Uber Driver app.
Please note that when we were made aware of these previous reports, we also made sure to notify you, these were sent on the following dates:
You should be able to find these in the Messages section of the Uber app. You may also find other safety related notifications we have sent you in the past.
Reports of behaviour of this nature are extremely concerning and are in violation of our Uber Community Guideline. Before a decision is made we are providing you with the opportunity to respond to this preliminary deactivation notice. During this period, we have suspended your access to the platform which talks effect immediately from the time and date of this notice 15th September 2025. Suspension of your access means that you will be unable to accept or complete trips/deliveries during the suspension period.
Respond to this Notice: You may provide an explanation or relevant information regarding the flagged activity. Please respond using the link below within 7 days from the date of this notice to ensure your input is considered.
Request a Discussion: You may also request a discussion with a representative of Uber Eats. If you wish to do so, please submit your request using the link below within 2 days.
Seek Support or Representation: You are entitled to appoint a person (other than a lawyer acting in a professional capacity) to support or represent you during this process.
[18] Mr Sharma's response to the Preliminary Deactivation Notice was follows;
"kindly investigate both matters again, i have never committed anything wrong in my life. it is a rider who complained against me for saving him to pay the damage he has done to my car. as i have not done anything wrong, i am available to prove my innocence as you
want. kindly let me know how i can prove this. the rider was angry because i finished the trip. i told him that i am going to report this matter to police and i have gone to brunswick police station but police personnel says if no one injured insurance will fix and no complaint registered. i can go police station with any uber representative to prove that i have gone there to report the rider's act. i assure you it is false allegations against me. i told you what happened that night, i don't know how i can prove my side. i hope you will do a proper fair investigation, instead of a false allegations against me destroying my future."[28]
[19] Ms Ashcroft states that on 16 September 2025, a member of Uber's Community Operations team considered the following material and information;
(i) The information provided by the Riders in relation to Complaints 1 and 2 including the telephone calls;
(ii) The information provided by Mr Sharma in relation to Complaints 1 and 2 including the telephone calls;
(iii) Mr Sharma's written and verbal responses to the Preliminary Deactivation Notice;
(iv) that Mr Sharma had been given a warning in relation to The First Complaint;
(iv) Mr Sharma did not provide any physical evidence to refute the reports; and
(vi) Mr Sharma had four other safety-related incidents on his account.[29]
[20] On 23 September 2025, a member of Uber's Community Operations Team notified Mr Sharma via an in-app message of the decision to permanently deactivate his access to the Platform, due to Rider Complaints (the Final Deactivation Notice). That notice stated as follows
After carefully reviewing your account and the information you submitted as part of your
response, we've decided to terminate your access to the Uber Driver app for the reasons outlined in the preliminary deactivation notice previously sent to you. This decision is final.
Your preliminary deactivation notice can be found in your email inbox or the inbox of the Uber Driver app.
This deactivation will take effect immediately upon receipt of this email.
Your final payment will be deposited into your account during the next payment cycle.
As your account has been deactivated, the creation of another account on the Uber platform will be considered fraudulent activity and is prohibited"[30]
[21] Mr Sharma has consistently rejected that he engaged in the conduct subject to the First Complaint and the Second Complaint. In respect of the First Complaint, he states 'to the best of my knowledge, I have not engaged in any communication of an inappropriate nature.' He further states that he has contacted his former mobile service provider and requested records of his sent messages at the time of the First Complaint. He claims that had Uber requested this information at the time of the First Complaint he would have been willing and able to provide it earlier. He further claims that Uber has not provided specific details of the allegation including the date and time of the incident associated with the complaint.
[22] Regarding the Second Complaint, Mr Sharma states he was finishing his shift and had set his destination for home. He then received a trip request with a pickup from Victoria Street in Brunswick which headed in the same direction he was travelling. Mr Sharma says that as he started the trip, the rider closed the door, put on his seatbelt, Mr Sharma began driving but a short distance after he started driving the Rider opened his passenger door while the car was moving. According to Mr Sharma, the opened door then hit a parked vehicle, damaging both his and the parked vehicle. He says he immediately stopped and questioned the Rider on why he had opened the door. Mr Sharma denied having become aggressive or physical towards the Rider. Rather, it was the Rider who became aggressive, according to Mr Sharma, particularly after Mr Sharma ended the trip due to the damage to his vehicle.
[23] Mr Sharma further states that because of the Rider's behaviour, Mr Sharma informed him that he would be reporting the incident to the police. He says he went to the Brunswick Police Station, where three officers spoke with him and advised him that as no one was injured, Mr Sharma should contact his insurer to arrange for repair of his vehicle. No formal report was prepared by the police, so Mr Sharma did not receive a police complaint or reference number. Mr Sharma also reported the incident to Uber following the incident.
[24] Mr Sharma states throughout his nine years of driving and more than 19,000 trips, he has never acted aggressively or rudely towards a rider, the incident on 6 September 2025 was only his second accident, he has no demerit points and has driven safely for approximately 4.5 million kilometres. In support of his evidence on his driving record with Uber, he produced a record of 'compliments' (a collection of customer reviews) received from riders.
[25] Mr Sharma when cross-examined in relation to the Second Complaint gave the following evidence;
[26] It is uncontroversial that Mr Sharma was deactivated by Uber on 23 September 2025 and as such he is able to make an application (s 536LU(1)). Uber confirmed that his earnings from performing work for Uber in the 12-month period immediately preceding his deactivation fell below the contractor high income threshold that if met or exceeded would otherwise preclude the application being made (s 536LU(2)).
[27] Having found Mr Sharma was deactivated and that his earnings were below the contractor high income threshold, I am obliged under s 536LW of the Act to deal with the following initial matters before considering the merits of the application;
(a) whether the application was made within the period required in subsection 536LU(3);
(b) whether Mr Sharma was protected from unfair deactivation within the meaning of s 536 LD; and
(c) whether the deactivation was consistent with the Code.
[28] Relevant to the determination of the initial matters I am satisfied that;
[29] Having regard to the above, I am satisfied that the application was made within the required period (s 536LU(3)) and that Mr Sharma was protected from deactivation at the time he was deactivated (s 536LD). The third initial matter about which I must be satisfied before considering the merits of the application, is whether Mr Sharma's deactivation was consistent with the Code (s 536LW(c)). A person's deactivation will be consistent with the Code, if, at the time of the deactivation, the Digital Labour Platform Operator complied with the Code in relation to the deactivation (s 536LJ(3) of the Act). I now turn to consider whether the Respondent complied with the Code.
Whether deactivation was consistent with the Digital Labour Platform Deactivation Code
[30] Section 536LW(c) requires me to determine whether the deactivation of Mr Sharma was consistent with the Code prior to any assessment of the merits of the application (i.e. whether the deactivation was unfair). In the event Mr Sharma's deactivation is found to have been consistent with the Code, any further consideration of whether the deactivation was unfair becomes unnecessary and the Application must be dismissed. I turn now to consider whether the deactivation of Mr Sharma was consistent with the Code.
[31] Section 8(1) of the Code requires an employee like worker to be given a warning notice in writing before deactivation. Section 8(2) of the Code sets out the matters that must be dealt with in the warning. Section 9 of the Code provides an exception to the requirement to provide such a warning. That is where a digital labour platform operator 'believes on reasonable grounds' that the worker's conduct or capacity warrants immediate modification or suspension of access to the digital labour platform, or it is not reasonable to allow continued access to the platform.
[32] In the present case, Mr Sharma received a Deactivation Warning on 26 December 2022 in relation to the First Complaint that he "may have attempted to solicit sexual acts". It is arguable that the Code had no application to the First Complaint as the alleged conduct occurred prior to the Code commencing operation . It is unnecessary for me to determine this point as I satisfied that the Deactivation Warning given on 26 December 2022 meets the requirements of ss 8(1) & (2) of the Code in circumstances where Mr Sharma was notified he risked deactivation of his access to the Platform due to "behaviour that puts user safety at risk" and risked the deactivation of his access to the Platform if the issue continued.
[34] If I am wrong in my conclusion that the Deactivation Warning was consistent with the Code, I would nonetheless find that Uber was not required to provide a warning in accordance with s 8 of the Code in respect of the conduct that led to the Second Complaint. That is because Uber had reasonable grounds to believe the alleged misconduct engaged in by Mr Sharma, that of being physically aggressive during a trip, presented a risk to the health and safety of riders. The alleged conduct was sufficiently serious that it warranted immediate suspension of Mr Sharma's access to the Platform, and it was not in my view reasonable to allow Mr Sharma to continue performing work via the Platform while an investigation was conducted. I am satisfied that suspension of Mr Sharma's access to the Platform without provision of a warning was permitted by s 9 of the Code having regard to the nature of Mr Sharma's alleged misconduct.
Section 10 - Application of Division 3 - Process for deactivation
[35] Having found that Uber complied with ss 8 and 9 of the Code, I am satisfied Uber was entitled to commence the deactivation process set out in Division 3 of the Code.
[38] It follows from the foregoing that I am satisfied that Uber complied with all of the relevant requirements of s 11 of the Code. Mr Sharma did not contend otherwise.
Section 13 - Steps after Preliminary Deactivation Notice is Given
Section 14 - Outcome of Respondent's Consideration and Inquiries
[42] In order for a deactivation to be consistent with s 14(4) of the Code it is necessary that;
(a) the reason for the termination is a valid reason; and
(b) the operator considers on reasonable grounds that the reason has been established.
[8]...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."
[44] In Mohamed, Deputy President Colman agreed that the requirement of 'valid reason' in the context of s 14(4)(a) of the Code tests the quality of the reason, not its proof. The Deputy President stated as follows:
[4].........In this regard, the expression 'valid reason' in s 14 of the Code differs from its cousin in s387 of the Act, which requires that the Commission be satisfied that the reason is both a good reason and one that is factually substantiated. Of course, what may constitute 'reasonable grounds' will depend on all the circumstances, including the arguments and evidence presented to the operator by the worker about the facts that pertain to the reason in question. In the present case, based on the witness evidence before the Commission, I was satisfied that Uber did consider on reasonable grounds that its reason was established, as required by s 14(4)(b) of the Code.
[45] Turning to the reason for Mr Sharma's Platform deactivation, the alleged conduct that was subject to the First and Second Complaint was in breach of the Services Agreement and the Community Guidelines. Specifically, the First Complaint related to conduct that breached the requirement to not engage in 'inappropriate conduct' towards riders while the Second Complaint related to alleged 'aggressive' or 'confrontational' conduct. The conduct subject to the complaints is in my view sufficiently serious to establish a 'valid reason' within the meaning of s 14(4)(a) of the Code. I note for completeness that s 19 of the Code sets out matters that may constitute a valid reason for deactivation. This includes at s 19(3)....'inappropriate physical or verbal conduct including, without limitation, conduct of a violent, threatening, harassing, discriminatory, sexual or abusive nature.'
"[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. The circumstances include the experience and resources of the small business employer concerned.
[38] Normally in order to hold a belief on reasonable grounds it will be necessary to have a discussion with the employee about the perceived serious misconduct and pay regard to the explanations and views given by the employee. We are concerned in this case that no discussions took place about the implications of Mr Domingo's conduct for his future employment. However this is a very unusual case. The employer was very small. The owners knew Mr Domingo well ..."
[47] Certain principles referred to above in Pinawin are in my view also helpful to assessing whether Uber complied with s 14(4) of the Code in deactivating Mr Sharma. Specifically, it is appropriate to consider the quality of Uber's investigation, whether it held a discussion with Mr Sharma about the alleged conduct, whether it had regard to Mr Sharma's explanations and whether Uber reached a reasonable conclusion in all the circumstances based on the material before it.
[48] The evidence before me discloses that Uber conducted a reasonable investigation into the Second Complaint that involved the following elements. An Uber representative spoke to the Rider on two separate occasions as well as receiving his written complaint. It also discussed the Second Complaint with Mr Sharma on two separate occasions as well as receiving his written response to the Preliminary Deactivation Notice. I am further satisfied that Uber took this information sourced through the various written responses and discussions into account as well as the Services Agreement, the Community Guidelines, the First Complaint and the absence of any indicators that would suggest the Rider had a malicious or ulterior motive for raising the Second Complaint.
[49] I have had the benefit of listening to the recordings as well as reading the transcripts of the discussions held with both Mr Sharma and the Rider involved in the Second Complaint. The strong impression gained from listening to the discussions with the Rider is that of openness, credibility, and the absence of any malicious intent. I would also add that the Rider conveyed a strong sense of unease with what had occurred during the incident on 6 September 2025. By contrast, I found Mr Sharma to be defensive and combative during those recorded discussions.
[50] At this point I note that Mr Sharma steadfastly denied the Second Complaint allegations throughout the investigation conducted by Uber and referred to his reporting of the incident to the Brunswick Police. Beyond that assertion, no evidence was provided to Uber during its investigation such as for example, the names of the relevant police officer/s spoken to if no claim or report number was available. He could also offer no explanation for why the Rider would open a door of a moving vehicle. I further note that the Mr Sharma's initial report of the 6 September 2025 incident made no mention of the Rider's alleged aggression when he got out of the car. Mr Sharma also made a false claim during the 8 September 2025 discussion with an Uber representative when he stated he had not been subject to a previous complaint. That claim was plainly false in light of the First Complaint.
[53] It follows from the foregoing that Uber complied with sections 8-14 of the Code. No issue arises in this case in relation to sections 16, 17, 18, 20, 21 or 22 of the Code.
[54] I am satisfied that Uber complied with the Code in relation to its deactivation of Mr Sharma. Because Mr Sharma's deactivation was consistent with the Code, he has not been unfairly deactivated (s 536LF(c) of the Act). It follows that the application for an unfair deactivation remedy must be dismissed
[55] An order giving effect to this decision will be issued concurrently with this decision.
[1] Exhibit R1, Witness Statement of Nicole Ashcroft, dated 18 November 2025, Annexure D, Business record of Applicant's first trip
[2] Exhibit R1, Annexure A, Services Agreement
[3] Exhibit R1, Annexure E, Record of Applicant's Digital Acceptance of Agreements
[7] Exhibit R8, Trip Details of 16 December 2022 trip
[8] Exhibit R1, Annexure F, First Complaint, dated 20 December 2022
[9] Exhibit R2, Recording of call between Uber representative, Account Holder and Rider on 21 December 2022
[10] Exhibit R1, Annexure G, Transcript of call from Uber representative to Account Holder and Rider on 21 December 2022
[11] Exhibit R3, Recording of call between Uber representative and Mr Sharma , dated 21 December 2022
[12] Exhibit R1, Annexure G, Transcript of call to Applicant, dated 21 December 2022
[13] Exhibit R1, Annexure H, Deactivation Warning, 21 December 2022
[14] Exhibit R1, Annexure J, In-app message to Applicant confirming reactivation, dated 26 December 2022
[15] Exhibit R1, Annexure L, In-app messages between 6-8 September 2025
[16] Exhibit R1, Annexure M, In-app message, dated 7-8 September 2025
[18] Exhibit R5, Recording of call between Uber representative and Rider, dated 8 September 2025
[19] Exhibit R1, Annexure N, Transcript of call between Respondent Representative and Rider, dated 7 September 2025
[20] Exhibit R4, Recording of call between Uber representative and Mr Sharma , dated 8 September 2025
[21] Exhibit R1, Annexure O, Transcript of call between Respondent Representative and Applicant, dated 7 September 2025
[22] Exhibit R7, Recording of call from Uber representative to Rider, dated 11 September 2025
[23] Exhibit R1, Annexure P, Transcript of call between Respondent Representative and Rider - Second Complaint, dated 11 September 2025
[24] Exhibit R1, Annexure Q, In-app messages, dated 9-12 September 2025
[25] Exhibit R1, at [52], Annexure R, Photographs submitted by Applicant
[26] Exhibit R1, Annexure U, Preliminary Deactivation Notice
[27] Exhibit R1, Annexure V, JIRA system recording of Applicant response to Preliminary Deactivation Notice and notes from 16 September 2025 telephone call
[28] Exhibit R1, Annexure W, Applicant response to Preliminary Deactivation Notice, dated 15 September 2025
[30] Exhibit R1, Annexure p, Final Deactivation Notice
[32] As required by s 11(1)(a) of the Code
[33] As required by s 11(2) of the Code
[34] As required by S 11(1)b) of the Code
[35] As required by s 11(1)(c)(i) of the Code
[36] As required by s 11(1)(c)(ii) of the Code
[37] As required by s 11(1)(d) of the Code
[40] As required by s 12(3)(a) of the Code
[41] As required by s 12(3)(b) of the Code
[43] As required by ss 13(1)-(5) of the Code
[44] As required by ss 13(8) & (9) of the Code
[45] As required by s 14(1) of the Code
[46] As required by s 14(2) of the Code
[50] As required by s 14(4) of the Code
[51] As required by s 14(5) of the Code
[52] As required by s 14(6) of the Code
Printed by authority of the Commonwealth Government Printer
Lovepreet Sharma
Rasier Pacific Pty Ltd [2025] FWC 3779