s.536LU - Application for an unfair deactivation remedy

Unfair deactivation application filed out of time - circumstances not exceptional - application dismissed.

• [1] This decision concerns an application by Mr Muhammad Rizwan Arshad (Applicant) for an unfair deactivation remedy pursuant to s 536LU of the Fair Work Act 2009 (Act) against Rasier Pacific Pty Ltd (Respondent).

• [2] The Applicant seeks an extension of time to lodge his unfair deactivation application in the Fair Work Commission (Commission).

• [3] The parties agree that the Applicant's engagement with the Respondent came to an end on 10 April 2025. The Applicant lodged his unfair deactivation application in the Commission on 10 November 2025.

• [4] Section 536LU(3) of the Act states that an application for an unfair deactivation remedy must be made within 21 days after the deactivation took effect, or within such further period as the Commission allows pursuant to s 536LU(4). The period of 21 days ended at midnight on 1 May 2025. The application was therefore filed 193 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(4).

• [5] The Act allows the Commission to extend the period within which an unfair deactivation application must 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]

• [6] 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.

• [7] 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 after it had taken effect;

(c) any action taken by the person to dispute the deactivation;

(d) prejudice to the regulated business (including prejudice caused by the delay);

(f) fairness as between the person and other regulated workers in a similar position; and

(g) any processes specified in the Digital Labour Platform Deactivation Code, as the case requires.

• [8] 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 will now consider these matters.

• [9] The delay required to be considered in s 536LU(4)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the deactivation took effect to the end of the 21 day period.[3] However, the circumstances from the time of the deactivation must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]

• [10] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. 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.[5]

• [11] The Applicant provided the following explanation for his delay in his witness statement:

"27. Since my deactivation, I have suffered severe financial hardship, as Uber was my sole source of income.

1. I have experienced family issues, including having to travel to Pakistan on multiple occasions.

1. I have also suffered health and mental health issues, including extreme stress; anxiety; and feelings of humiliation and insult due to the disgusting and false allegation made against me.

1. I was emotionally overwhelmed and struggling to cope with the sudden loss of livelihood and reputational damage.

1. I have limited legal knowledge and legal acumen, and I was not aware of the remedy available for unfair deactivation.

1. Uber, as a large digital labour platform in a position of power, did not inform me of my rights or remedies under the unfair deactivation framework.

33. The delay was not deliberate, but caused by a combination of:

• [12] I do not accept that the Applicant has provided a reasonable or acceptable explanation for the long (193 day) delay in filing an unfair deactivation application in the Commission. The Applicant did not provide any supporting documentation in relation to his 'health issues' or how those issues impacted his ability or capacity to lodge an unfair deactivation application in the Commission. Although I accept that the Applicant has suffered financial distress following his deactivation, I do not accept that such distress provides a reasonable or explanation for a long delay in lodging a simple application in the Commission. Nor do I accept, on the basis of the information provided by the Applicant, that his 'family issues' provide a reasonable or explanation for a long delay in lodging a simple application in the Commission. As to the Applicant's 'lack of legal awareness', ignorance of the law is not an acceptable or reasonable explanation for a long delay, nor does it establish an exceptional circumstance.[6]

• [13] The absence of an acceptable or reasonable explanation for a long delay weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the deactivation after it had taken effect

• [14] The Applicant was aware of his deactivation on the day it took effect. Accordingly, this is a neutral consideration.

• [15] The Applicant engaged in correspondence with the Respondent about his deactivation. This constitutes action taken by the Applicant to dispute his deactivation. It provides some weight to support the Applicant's argument that there are exceptional circumstances.

• [16] The Respondent submits that it has dedicated significant time, effort and costs to defend the application and would be required to do so again if the application were to proceed.

• [17] I am not satisfied that granting an extension of time would cause any significant prejudice to the Respondent. Records relating to the deactivation in April 2025 should be readily available. In addition, the events which led to the Applicant's deactivation allegedly took place in March 2025 - a relatively recent event - such that relevant witnesses are likely to retain a recollection of the key facts and circumstances. In all the circumstances, this is a neutral consideration.

• [18] The Act requires me to take into account the merits of the application in considering whether there are exceptional circumstances.

• [19] The Applicant denies that he engaged in the conduct alleged by the Respondent. The Applicant also contends that the Respondent failed to afford him procedural fairness, did not conduct an independent or balanced investigation, failed to consider his long history of good behaviour and performance, did not report the matter to the police, did not produce any evidence to support the allegations made against the Applicant, and did not comply with the Code.

• [20] The Respondent submits that it complied with the Code and it had a valid reason to deactivate the Applicant because he engaged in serious misconduct.

• [21] Having regard to the material before the Commission, I consider the merits of the Applicant's unfair deactivation application to be a neutral factor. Whether the Applicant was unfairly deactivated will depend on findings of fact that could only be made after the Applicant and other relevant witnesses give evidence and are cross examined.

Fairness as between the person and other persons in a similar position

• [22] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various workers of a digital labour platform operator who were deactivated for the same reason. However, cases of this kind will generally turn on their own facts.

• [23] Neither party submitted that I should give this matter any particular weight.

• [24] In all the circumstances, I consider this factor to be a neutral consideration.

• [25] The information provided by the parties establishes that the Respondent issued the Applicant with a preliminary deactivation notice on about 26 March 2025 and the Applicant responded to the notice on the following day. However, I do not have sufficient information to determine whether the Respondent complied with each element of the processes specified in the Code. Accordingly, I will treat this factor as a neutral consideration.

• [26] Taking into consideration 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, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. The Applicant does not have a reasonable or acceptable explanation for the long delay in lodging his unfair deactivation application in the Commission. The fact that the Applicant took some action to dispute his deactivation weighs in his favour. The other relevant factors are neutral or of little weight. Having regard to all the material before the Commission, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.

• [27] 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(4) of the Act. Accordingly, the application for an unfair deactivation remedy must be dismissed.

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

[3] Long v Keolis Downer [2018] FWCFB 4109 at [40]

[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31]

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

[6] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14]

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