Fair Work Act 2009

s.536LU - Application for an unfair deactivation remedy

Application for an unfair deactivation remedy- jurisdictional objection - application made outside of 21-day time limit - no exceptional circumstances - application dismissed

[1] On the 25 February 2026, Mr Muhammad Awais (the Applicant) lodged an application (the Application) pursuant to s. 536LU of the Fair Work Act 2009 (the Act) seeking an unfair deactivation remedy, claiming to have been unfairly deactivated on 29 April 2025. In its Form F89A response, Portier Pacific Pty Ltd (the Respondent), raised several jurisdictional objections. They are, that the application was lodged out of time, the Applicant was not an employee like worker within the meaning of s 536LD(b) of the Act, the Applicant did not work on a regular basis for a period of at least 6 months, and the Applicant is not a person protected from unfair deactivation. This decision only deals with the out of time jurisdictional objection.

[2] Following allocation of the matter to my Chambers on 27 February 2026, Directions were issued to the parties for the filing of material in relation to the jurisdictional issue of the Application being out of time. Both parties filed material in advance of the hearing listed for 8 April 2026. At the hearing, the Applicant appeared and gave evidence while Mr S Beer of Dentons was granted permission to appear on behalf of the Respondent pursuant to s 596(2)(a) of the Act.

[3] The Applicant established an account (the First Account) with the Respondent to perform work as a Delivery Person on or about 7 January 2023 and according to the Respondent completed 5902 deliveries. That First Account was deactivated by the Respondent on or about 20 February 2024 because of alleged fraudulent activity said to be in breach of the Respondent's Community Guidelines. The Applicant then set up a further account (the Duplicate Account) with the Respondent on or about 6 May 2024. The establishment of duplicate accounts is expressly prohibited by the Respondent's Code of Conduct and was in breach of the Community Guidelines. The Applicant's action in setting up the Duplicate Account was not identified by the Respondent's systems until 29 April 2025 at which point it was deactivated. According to the Respondent, the Applicant also made several other attempts to establish duplicate accounts, those attempts being immediately flagged and the accounts were not set up.

[4] Following deactivation of the Duplicate Account, the Applicant filed an application (the First Application) pursuant to s 394 of the Act for an unfair dismissal remedy (U2025/5893) on 14 May 2025. He subsequently filed an unfair deactivation application (UDE2025/99) pursuant to s 536LU on 2 June 2025 (the Second Application) before withdrawing the First Application on 17 June 2025. He also discontinued the Second Application on 31 July 2025 before filing the Application on 25 February 2026.

[5] Section 536LU(3) of the Act states that an unfair deactivation application must be made within 21 days after the deactivation took effect', or within such further period as the Fair Work Commission (the Commission) allows pursuant to s 536LU(4) of the Act. The period of 21 days ended at midnight on 20 May 2025. The Application was therefore filed 281 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the Application to be made under s 536LU(3) of the FW Act.

• [6] The Act allows the Commission to extend the period within which an unfair deactivation application can be made only if it is satisfied that there are 'exceptional circumstances.' 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.[1] 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.[2]

[7] The requirement that there be exceptional circumstances before time can be extended under s 536LU(4), contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

[8] Section 536LU(4) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(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 process specified in the Digital Labour Platform Deactivation Code or the Road Transport Industry Termination Code, as the case requires.

[9] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now turn to consider these matters in the context of the Application.

• [10] For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 20 May 2025. The delay is the period commencing immediately after that time until 25 February 2026, although circumstances arising prior to that day may be relevant to the reason for the delay.[3]

• [11] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4] An applicant does not need to provide a reason for the entire period of the delay although the absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason, for any part of the delay[5].

[12] The Applicant states that the filing delay is explained by a number of factors. This includes him having initially prepared and filed the First Application without legal assistance and subsequently withdrawing it when he realised that it was not the correct application. When he became aware he had filed the wrong application, he says he took prompt steps to file the Second Application seeking a remedy for his deactivation. He submits that when he made the Second Application, he had lost an important source of income, was suffering financial hardship, did not have legal assistance and did not fully understand how to prepare the required documents. In all these circumstances he decided to withdraw the Second Application. He further submits that having now taken the time to understand the process and gather information, he decided to bring the matter to the Commission again because of the impact of the deactivation on his ability to work and support himself.

[13] When cross-examined on his evidence the Applicant also claimed to have attempted to engage directly with the Respondent both prior to and following the withdrawal of his Second Application on 31 July 2025, although he was unable to provide details on when such attempts were made. This he explained was pursued in an effort to resolve the matter directly with The Respondent rather than file a fresh application. The Applicant also conceded that he could have pursued free legal aid but took no steps to seek such support, and that he could have filed the Application at an earlier time than he did.

[14] I do not accept that the Applicant has advanced an acceptable explanation for the delay in filing the Application. My reasons are as follows. The financial hardship to which the Applicant refers is not unusual or out of the ordinary in the circumstances of an individual having lost a key source of income. Nor do I accept that the Applicant's inability to obtain legal representation acts as a barrier to making and progressing an application before the Commission having particular regard to the volume of material available on the Commission's website to assist parties, particularly self-represented litigants.

[15] Furthermore, the difficulty the Applicant refers to in understanding the process and preparing the required documents without legal assistance is also far from unusual or out of the ordinary and is significantly mitigated by the availability of on-line Commission resources. It follows that I do not accept that a lack of legal assistance or unfamiliarity with the process provides an acceptable explanation for the filing delay. Finally, the claimed attempts the Applicant made to engage directly with the Respondent regarding his deactivation was unsupported by any detail or evidence beyond the general assertion. In any case, his decision to engage directly with The Respondent rather than continue with the Second Application he made and discontinued was a conscious choice the Applicant made and does not satisfactorily explain the filing delay.

[16] While I accept that in filing the First Application the Applicant made the wrong application initially, he remedied that mistake reasonably quickly by filing the Second Application although I note it was still filed outside the 21-day filing period. Even if it be accepted that the incorrect filing and subsequent withdrawal of the First Application explains the delayed filing of the Second Application, no reasonable explanation has been provided to explain the further and far longer delay between withdrawal of the Second Application on 31 July 2025 and filing of the current Application on 25 February 2026.

[17] It follows from the foregoing and taking the Applicant's case at its highest, he has failed to advance an acceptable explanation for the vast majority the Application filing delay. This weighs against a finding of exceptional circumstances

Whether the Applicant first became aware of the deactivation

[18] The Applicant was aware of his deactivation on the day it took effect on 29 April 2025. This weighs against a finding of exceptional circumstances.

[19] The Applicant took action to dispute his dismissal by filing the First Application and then the Second Application. He also claims to have attempted to directly engage with the Respondent following his deactivation; although he brought no direct evidence of when and how such contact occurred. I treat the steps taken by the Applicant to dispute his deactivation as a neutral consideration in circumstances where the Second Application was withdrawn on 31 July 2025 and no further substantive action was taken by the Applicant until 25 February 2026, when he filed the current Application.

[20] The Application was filed 281 days outside of the 21-day period. Having already dealt with two previous applications made by the Applicant and given the significant passage of time since deactivation of the Duplicate Account, I accept that the Respondent would suffer prejudice if an extension of time were to be granted. This weighs against a finding of exceptional circumstances.

[21] The Respondent submits that the Applicant's Duplicate Account was set up in breach of the Respondent's Community Guidelines and Code of Conduct. The Applicant accepted during cross-examination that he had set up a duplicate account, such action being in breach of the Services Agreement and Community Guidelines, which he had agreed to. He claimed however not to have read the Community Guidelines at the time and only became aware of the prohibition on duplicate accounts when he was deactivated on 29 April 2025. That explanation does not assist the Applicant. I find that the Respondent's merits arguments weigh against a finding of exceptional circumstances.

Fairness as between the Applicant and other regulated workers in a similar position

[22] The Applicant claims that a friend of his negotiated the reactivation of his account with the Respondent following account deactivation, due to that individual having established duplicate accounts. He claimed that his friend's account reactivation was agreed to by the Respondent on the basis that the individual involved withdrew his unfair deactivation application before the Commission. The circumstances of the claimed account deactivation and reactivation of a friend of the Applicant, was not in evidence before me. In any case, I don't regard the confidential settlement of an unrelated unfair deactivation application relevant to the present application in my view. Neither party brought to my attention any other relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I find there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Digital Labour Platform Deactivation Code processes followed

[23] The Respondent submits that the Applicant's First Account was deactivated prior to the commencement of the Code and, therefore, the Respondent could not follow the process specified therein. With respect to the deactivation of the Applicant's Duplicate Account, the Respondent says that as it was not an authorised account on the platform, the Respondent was not required to follow the process specified in the Code. The Applicant made no submissions on this factor. I am unable to form a concluded view on the point raised by the Respondent at this preliminary stage. As such this factor weighs neutrally in my consideration.

[24] Having regard to the matters I am required to take into account under s 536LU(4) of the Act, and all of the matters raised by the Applicant and outlined above: I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.

[25] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 536LU(3) of the Act. Accordingly, the Application must be dismissed. An Order to that effect will be issued with this decision.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

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