Fair Work Act 2009

s.536LU - Application for an unfair deactivation remedy

Application for an unfair deactivation remedy - Whether application made out of time under s 536LU(3) of the Act - Date deactivation took effect - Application made within time.

• [1] Before considering whether a deactivation is unfair the Commission must first be satisfied that an application was made within time or allow a further period of time under section 536LU(4) of the Fair Work Act 2009 (Cth) (the Act).

• [2] On 8 July 2025, the Transport Workers Union, on behalf of Mr Musharaf Waheed (the applicant) applied for an unfair deactivation remedy under section 536LU of the Act by lodging a Form F89 with the Fair Work Commission. Mr Waheed had previously filed an application using the Form F2 on 20 June 2025. That form is an application for an unfair dismissal remedy. Mr Waheed then sent an email to the Commission on 21 July 2025, filing his own Form F89; it was allocated to this matter number. To further complicate matters, the Commission's administrative staff incorrectly accepted the application on 8 July as an unfair termination application; this was corrected on 15 July 2025.

• [3] To be clear, I find that Mr Waheed's application was made on 8 Jul 2025 and that the application was for an unfair deactivation remedy.

• [4] The applicant says - in both the forms completed by him and the form completed by the Union - that he was deactivated by Rasier Pacific Pty Ltd on 17 June 2025. Mr Waheed's application form dated 21 July 2025 named the respondent as Uber Australia; the application form completed by the Union on 8 July 2025 named Raiser Pacific Pty Ltd. For the sake of completeness, I note that the correct name of the respondent is Rasier Pacific Pty Ltd.

• [5] The respondent says that based on its information, it had deactivated Mr Waheed on 16 June 2025.

• [6] I intend to answer the following questions

1. On what date did Mr Waheed's deactivation take effect;
2. If the deactivation took effect on 16 June 2025, are there exceptional circumstances to extend the time for the filing of Mr Waheed's application.

• [7] While the Commission's jurisdiction relating to unfair deactivation is new, much of the reasoning in case law relating to unfair dismissals can be applied to the jurisdiction because of the similarity in the language chosen by the legislature in drafting these provisions.

• [8] The language used in s 536LU(3) about when an application must be made is in the same terms as that in s 394(2), which is "within 21 days after the deactivation or termination took effect."

• [9] The Full Bench in Foyster v Bunnings Group Ltd [2017] FWCFB 3923 at [17] has said that a dismissal does not take effect until an employee is aware that the employee has been dismissed or has had a reasonable opportunity to become aware. Where emails are used to advise an employee of their dismissal, there is a presumption that an employee will have had a reasonable opportunity to become aware of their dismissal if it is received in their inbox at their usual email address, see Ayub v NSW Trains [2016] FWCFB 5500 at [50].

• [10] Mr Waheed supplied an email with the subject, "Final deactivation notice: your account has been deactivated." His email has a date stamp that indicates that it was sent to him on 17 June 2025 at 3:41am.

• [11] The respondent has provided evidence that the deactivation took effect on 16 June 2025 and supplied a screenshot of what it called the final deactivation notice sent to the applicant. The screenshot does not have a date stamp.

• [12] I prefer the evidence of Mr Waheed which includes a date stamp and so find that Mr Waheed's deactivation took effect on 17 June 2025. This means that his application made on 8 July 2025 was on the 21st day after the dismissal took effect and was therefore within the statutory period for the making of such applications. No extension of time is therefore required.

• [13] For the sake of completeness, I indicate that if the dismissal had taken effect on 16 June 2025, I consider that there would be exceptional circumstances to extend the time for filing and I would exercise my discretion to allow a further period for the filling of the application to 8 July 2025. This is because Mr Waheed's evidence is that he did not become aware of the deactivation until 17 June 2025, and this factor would weigh in favour of a finding of exceptional circumstances. Mr Waheed's reason for delay would be because he did not consider that there was a delay, given the date that he became aware of his deactivation, and this is an acceptable reason that would also weigh in favour of a finding of exceptional circumstances. I am of the view that all other factors in 536LU(4) neither weigh in favour nor against a finding of exceptional circumstances.

• [14] This matter will now proceed to case management conference.

Ms A. Owens-Strauss, Transport Workers Union for the Applicant.

Ms C. Murray-Baptista, Dentons Australia Limited with permission for the Respondent.

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