Fair Work Act 2009

s.536LU - Application for an unfair deactivation remedy

Application for an unfair deactivation remedy - compliance with Code - application dismissed

• [1] At a determinative conference earlier today I considered an application by Mohamed Mohamed for an unfair deactivation remedy under s 536LU of the Fair Work Act 2009 (Act). I concluded that the respondent, Portier Pacific Pty Ltd (Uber), had complied with the Digital Labour Platform Deactivation Code (Code). In summary, my reasons were as follows.

• [2] First, Uber gave Mr Mohamed a deactivation warning that met the requirements of s 8 of the Code. Secondly, Uber was entitled to commence the deactivation process because it met the requirements of s 10(b) of the Code. Uber considered, on grounds that in my view were reasonable, that deactivation was justified, as Mr Mohamed had not remedied the matters in the warning within a reasonable time. His low satisfaction rating (below 85% average in Melbourne) had continued after the warning, and had been persistently low for some 16 weeks. Thirdly, Uber gave Mr Mohamed a preliminary deactivation notice that I considered to have complied with s 11 of the Code. Fourthly, when it suspended Mr Mohamed's access to its platform, Uber complied with s 12, as it had the right to suspend his access and the preliminary deactivation notice complied with the Code's requirements. Fifthly, the steps taken by Uber after issuing the preliminary deactivation notice met the requirements of s 13, including by allowing Mr Mohamed an opportunity to respond to the preliminary deactivation notice, and having a human representative consider his response of 30 May 2025.

• [3] As to the requirements of s 14 of the Code, I considered that Uber complied with ss 14(1) and (2) by deciding to terminate access and notifying Mr Mohamed of this as soon as reasonably practicable. I was satisfied that the reason for termination was a valid one (s 14(4)(a)), as Mr Mohamed had failed to meet his platform obligation to maintain an average rating of 85%. In my view, based on the evidence of Mr Colak, which I accept, this was a reasonable requirement, particularly in light of the evidence as to how this average rating was determined by Uber and the impact of deficient service on Uber's business. In my assessment, the valid reason was one contemplated by s 19(2) of the Code.

• [4] I agree with the observations of Saunders DP in Kumar v Portier Pacific Pty Ltd [2025] FWC 2275 at [8] that the requirement of a 'valid' reason in the context of s 14(4)(a) of the Code tests the quality of the reason, not its proof. This is clear from the requirement of s 14(4)(b) that the operator consider 'on reasonable grounds' that the relevant reason has been established. In this regard, the expression 'valid reason' in s 14 of the Code differs from its cousin in s 387 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.

• [5] Mr Mohamed said that Uber had wrongly and falsely accused him of things he did not do, including failing to deliver meals, and that it had not produced proof that any of the adverse customer ratings or comments were warranted. However, Mr Colak said that the poor ratings of Mr Mohamed related to a range of customer concerns including delays in delivery, missed instructions and damaged items, and that Mr Mohamed had persistently low satisfaction ratings. He said that on 6 February 2025, Mr Mohamed was given a low rating warning, and that for the period to 25 March 2025 his rating average was a mere 56%; for the period to 18 April 2025 it had dropped to 40%; and for the period to 30 May 2025, it was 31%. Mr Colak said that this information was collated from Uber's systems and reflected the input of its customers.

• [6] The evidence of Mr Colak and Ms Tierney was detailed and convincing and I accept it. The evidence bears out Uber's compliance with each element and sub-element of the Code (not all of these are recorded above), including Uber's reasonable grounds for considering that its reason for termination had been established. There was no direct evidence from the customers who made complaints or gave low ratings. But it is not appropriate, realistic or necessary to involve Uber's customers in deactivation disputes, at least in cases like this one which relates to a failure to maintain minimum average satisfaction ratings over time.

• [7] As Uber complied with the Code, the third necessary condition for an unfair deactivation in s 536LF is not met, and the application is therefore dismissed.

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