Fair Work Act 2009

s.536LU - Application for an unfair termination remedy

Application made under s.536LU - extension of time - application dismissed

[1] Mr Muhmmad Hummas Aftab (Applicant) has made an application under s.536LU of the Fair Work Act 2009 (Act) in which he alleges that he was unfairly terminated by Uber Pacific Pty Ltd in contravention of Part 3A-1 of the Act. Section 536LU(3)(a) requires such applications to be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.536(3)(b). The Applicant's termination occurred on Sunday 7 December 2025. The 21-day period ended on Monday 29 December 2025 (see s.40A of the Act, and s.36 of the Acts Interpretation Act 1901 as in force on 25 June 2009). The application was lodged on 11 February 2026, 44 days out of time. For the application to proceed, the Applicant requires an extension of time. The Commission may allow a further period only if it is satisfied that there are 'exceptional circumstances', taking into account the matters in s.536LU(4)(a) to (g).

[2] As to the reason for the delay (s.536LU(4)(a)), the Applicant said that he was making his application within 21 calendar days after the termination took effect. This is incorrect. The Applicant also stated that his reason for delay was because he first submitted his complaint to "AFCA" but after their investigation that he had been referred to "Fair Work". The Applicant said he would attach the referral letter from AFCA however he did not. Despite being asked again to provide more evidence in support of his request for an extension of time, the Applicant failed to provide any further information to the Commission. The making of another complaint about the conduct does not preclude the Applicant from making this claim on time. If anything, it demonstrates the Applicant had capacity to make a complaint. In weighing these reasons, I do not accept that the lodging of an unsubstantiated complaint against AFCA (even if evidence was provided to support that such a complaint had been made) prevented or seriously impeded the possibility of timely lodgement of the F90 application form. In my assessment, the reasons for delay weigh against a conclusion that there are exceptional circumstances in this case.

[3] As to the other mandatory considerations, I find that the Applicant, on his own evidence first became aware of the termination before it had taken effect on 24 November 2025 per s.536LU(4)(b). This provided the Applicant with a further 14 days to prepare his claim. This weighs against the granting of an extension of time. There was no evidence before the Commission that the Applicant took other action to dispute the dismissal (s.536LU(4)(c)). This weighs marginally against an extension. I consider there to be some prejudice to the regulated business associated with the relatively lengthy delay in this case of 44 days (s.536LU(4)(d)), nor were there are any matters that are relevant to fairness between the Applicant and other persons in a like position put before the Commission (s.536LU(4)(f)). I consider these to be factors that weight against an extension of time being granted.

[4] As to the merits (s.536LU(2)(e)), the Applicant submitted that his termination was unfair because he was falsely accused of fighting with another driver and he was not provided with any proof by the Respondent. I consider that the Applicant may or may not have an arguable case, however a more detailed assessment is not possible given the limited information before me. I regard the merits as a neutral consideration.

[5] Finally, as to whether the deactivation or termination was consistent with the Digital Labour Platform Deactivation Code or the Road Transport Industry Termination Code, as the case requires s.536LU(4)(g), I find that no evidence or material has been put before me that would support any finding of a breach of codes. Nevertheless, I do not accept that these matters prevented or seriously impeded the possibility of timely lodgement of the F90 application form. In my assessment, the reasons for delay weigh against a conclusion that there are exceptional circumstances in this case.

[6] The Commission can extend the time for making an unfair termination application only if it is satisfied that there are exceptional circumstances. Taking into account all of the matters in s.536LU(4), I am not satisfied that there are exceptional circumstances in this case. There is no basis for the Commission to extend time. The application is dismissed.

Printed by authority of the Commonwealth Government Printer