s.536LU - Application for an unfair deactivation remedy

Application for an unfair deactivation remedy - application filed out of time - extension of time granted

• [1] Munish Chugh commenced performing work as a driver through the Uber Driver Platform in April 2022. On 29 August 2025, Raiser Pacific Pty Limited ("Uber") deactivated his account.

• [2] Mr Chugh filed an application for an unfair deactivation remedy with the Fair Work Commission.[1] Such an application must be made within 21 days after the deactivation, unless the Commission allows a further period.[2] The 21 day period expired on 19 September 2025, but Mr Chugh's application was filed on 23 September 2025. As a result, he requires the Commission to allow him an extension of time to file the application. He applies for such an extension.

• [3] Uber raised no objection to the application on the basis that it had been filed out of time. It does not oppose the Commission granting Mr Chugh an extension of time.

• [4] Much of the caselaw developed in the Commission over a significant period of time in relation to applications for an extension of time in unfair dismissal and general protections applications is also applicable to late applications for unfair deactivation.[3]

• [5] The Commission may only allow Mr Chugh an extension of time if it is satisfied that there are "exceptional circumstances", taking into account: [4]

• (1) the reason for the delay. The "delay" is the period between the end of the 21 day period and the filing of the application.[5] In this case, four days;

(2) whether Mr Chugh first became aware of the deactivation after it had taken effect. This factor allows the Commission to have regard to whether there was a delay in Mr Chugh being informed of his deactivation, which may account for the delay in filing his application;

• (3) any action taken by Mr Chugh to dispute the deactivation. It will be relevant if an employee has taken action to dispute their deactivation, other than by applying under the Act. It will show, and put the employer on notice, that the employee actively challenges their deactivation. This may support an extension of time; [6]

(4) prejudice to Uber (including prejudice caused by the delay);

(5) the merits of the unfair deactivation application. That is, the prospects of Mr Chugh succeeding on his claim;

(6) fairness as between Mr Chugh and other regulated workers in a similar position; and

(7) any processes specified in the Digital Labour Platform Deactivation Code ("Code").

• [6] The requirement to take these matters into account means that each of them must be treated as significant to the decision-making process and given appropriate weight.[7] However, the requirement to take the considerations into account does not mean that they are conditions to be satisfied.[8]

• [7] Circumstances will be "exceptional" if they are out of the ordinary course, or are unusual, special or uncommon. They do not need to be unique, or unprecedented, or very rare.[9] Exceptional circumstances may include:

• (3) a combination of ordinary factors which, when taken together, are seen as exceptional.[10]

• [8] The test of "exceptional circumstances" establishes a high hurdle for a person seeking an extension.[11] Mr Chugh has to demonstrate that exceptional circumstances exist.[12]

• [9] But a finding that exceptional circumstances exist is not the end of the matter. The Commission still has a discretion whether or not to allow an extension of time.[13]

• [10] Therefore, I need to answer two questions:

(1) Do exceptional circumstances exist in this matter, taking into account the criteria referred to above?

(2) If so, should I exercise my discretion to allow Mr Chugh an extension of time?

• [11] For the following reasons, the answer to both of those questions is yes.

There was an acceptable explanation for the delay

• [12] Mr Chugh does not have to show that the reason for the delay is itself exceptional. It is just one of the factors to be taken into account. But a credible explanation for the entirety of the delay will usually assist an applicant. On the other hand, the absence of an explanation for the delay (or part of it) will generally count against them.[14]

• [13] Mr Chugh submitted that the delay was the result of representative error.

(1) Mr Chugh contacted the Transport Workers' Union of Australia ("TWU") immediately after becoming aware of his deactivation and instructed the union to make an application on his behalf.

(2) On 19 September 2025, the TWU sent an email to the Commission with the subject "Application for an Unfair Deactivation Remedy". The email stated that the TWU was writing to make an application for an unfair deactivation remedy on behalf of Mr Chugh. It referred to a "Form F89 for Mr Chugh" as being attached to the email.

(3) On 23 September 2025, the Commission sent an email to the TWU stating that "[t]here was not a completed form attached to your email".

(4) Less than half an hour later, the TWU sent an email to the Commission apologising for the oversight and attaching Mr Chugh's application.

• [15] The principles that guide the Commission when considering representative error in the context of an application to extend time are well known.[15] Representative error may be a sufficient reason to grant an extension of time. But it is necessary to consider the conduct of the applicant. The Commission will view an applicant who provides clear and timely instructions to a representative, so as to enable an application to be filed within time, differently to one who does not.

• [16] However, it is not necessary for an applicant to show that they were "blameless" for the delay, beyond establishing that they gave appropriate instructions to their representative in a timely fashion.[16] At the same time, having instructed their representative, an applicant cannot then sit on their hands for an extended period while the prescribed time for filing the application passes by.[17]

• [17] The TWU accepted full responsibility for the delay. It acknowledged that the delay was caused by its administrative error in attaching a "blank form" to its email of 19 September 2025 instead of the completed application. Its error was corrected immediately after it was brought to the TWU's attention. There is nothing to suggest that Mr Chugh could or should have done more to ensure that his application was filed in time.

• [18] I am mindful that the TWU initially purported to file Mr Chugh's application reasonably late in the afternoon of 19 September 2025, which was the last day of the 21 day period. That said, there is nothing to suggest that Mr Chugh caused or contributed to the TWU waiting so long to file the application.

• [19] I am satisfied that Mr Chugh has provided an acceptable explanation for the delay. This supports a finding of exceptional circumstances.

Mr Chugh was not informed of his deactivation after it took effect

• [20] The documents attached to Mr Chugh's application suggest that he was notified of the deactivation on the day it took effect. That argues neither for nor against an extension of time.

Mr Chugh took no action to dispute his deactivation

• [21] There is little to suggest that Mr Chugh took any action to dispute his deactivation with Uber prior to filing his application. In his application, he referred to attending a meeting with Uber on 3 September 2025, during which he denied the allegations against him and sought further information to enable him to respond to them. I can infer that Mr Chugh challenged his deactivation at that time, but there is scant detail as to what occurred during the meeting. On the information available to me, this consideration argues neither for nor against an extension of time.

• [22] There is nothing to suggest that Uber would suffer prejudice were I to grant Mr Chugh an extension of time. But even were I to find no prejudice, that would not be a factor which of itself would support a finding that exceptional circumstances exist.[18] This consideration argues neither for nor against an extension of time.

The merits of the unfair deactivation application

• [23] For present purposes, it is sufficient for Mr Chugh to show that his unfair deactivation claim has some merit. The greater the merit, the more weight will be given to this factor.[19] However, the Commission should not embark on a detailed consideration of the substantive case in an extension of time application.[20]

• [24] Uber deactivated Mr Chugh's account on the basis that he had allegedly engaged in serious misconduct, including sexually inappropriate behaviour. It contends that the process by which it determined to deactivate Mr Chugh was consistent with the Code. In the alternative, it argues that as Mr Chugh was guilty of serious misconduct, the Code does not apply[21] and the deactivation cannot have been unfair.[22]

• [25] Mr Chugh denies the allegations against him. He contends that Uber did not have reasonable grounds to substantiate the allegations and as a consequence they could not provide a valid reason for the deactivation of his account. He further contends that in effecting the deactivation, Uber failed to comply with the Code.

• [26] The information available to me does not permit me to draw any conclusions as to the merits of the matter. The parties' evidence will need to be heard and tested.

• [27] It follows that this consideration argues neither for nor against a finding of exceptional circumstances.

Fairness as between Mr Chugh and other persons in a similar position

• [28] This consideration is concerned with the importance of the Commission applying consistent principles in cases of this kind, so as to ensure fairness as between an applicant and other persons in a similar position. That consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[23]

• [29] Neither party brought to my attention any relevant matter concerning this consideration. I am unaware of any relevant matter. Consequently, I consider that this factor argues neither for nor against a finding of exceptional circumstances.

• [30] As I have stated, the parties are in dispute as to whether Uber complied with the Code when it deactivated Mr Chugh. I do not have enough information to offer even a tentative view as to whether Uber complied with the Code (assuming that it applied). This consideration argues neither for nor against a finding of exceptional circumstances.

• [31] Having regard to the matters discussed above, I am satisfied on balance that exceptional circumstances exist. The circumstances of this case are out of the ordinary course, unusual, and special. A member of a union can reasonably expect that if they engage their union to act on their behalf, the union will comply with the 21 day time period.

• [32] The representative error offers an acceptable explanation for the delay. The delay itself is short. There is no consideration that weighs against an extension of time being granted. Further, in the circumstances of this case it is in the interests of justice that Mr Chugh be permitted to pursue his unfair deactivation claim.

• [33] These matters lead me to conclude that it is appropriate that I exercise my discretion to allow the extension.

• [34] I order that the time for Mr Chugh to make his unfair deactivation application be extended to 23 September 2025.

[1] The application was made under section 536LU of the Fair Work Act 2009. All references in this decision to legislative provisions are to provisions of that Act.

[2] Section 536LU(3)

[3] Gopal Bandameeda v Amazon Commercial Services Pty Ltd [2025] FWCFB 182 at [57]. See also, for example, Dylan Wrey Bergh v Portier Pacific Pty Ltd [2025] FWC 3077 at [33] and Application by Kwasi Kyei [2025] FWC 2269 at [8]

[4] Section 536LU(4)

[5] Long v Keolis Downer t/a Yarra Trams [2018] FWCFB 5109 at [40]

[6] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300

[7] See for example Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156; [2018] FWCFB 901 at [19] and [39]

[8] Kuncho Kurtev v KCB Australia Pty Ltd, Toni Telfer [2025] FWCFB 13 at [24]

[9] Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [13]

[10] Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [13]

[11] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]

[12] Romic v Blacktown City Council [2020] FWC 2533 at [8], citing Wemyss v Mission Australia Employment Services [2010] FWA 1798.

[13] Halls v McCardle and Ors [2017] FCCA 316, cited in Nikhil Challa v Australia and New Zealand Banking Group Limited t/as ANZ Bank [2017] FWCFB 436 at [16]

[14] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156; [2018] FWCFB 901 at [39]

[15] Clark v Ringwood Private Hospital (1997) 74 IR 413, 418-419. That case was decided in the context of s 170CE(8) of the Workplace Relations Act 1996, which was in significantly different terms to those of s 394(3). However, the Full Bench has confirmed that Clark provides appropriate guidance for the purposes of the Fair Work Act: Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728 at [24]

[16] Qantas Ground Services Pty Ltd t/a QGS v Simon Rogers [2019] FWCFB 2759 at [17]

[17] Long v Keolis Downer t/a Yarra Trams [2018] FWCFB 5109 at [60]

[18] Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [38], quoted with approval in Miller v DPV Health Ltd (Hume) [2019] FWCFB 6890 at [21]

[19] Long v Keolis Downer (t/as Yarra Trams) (2018) 279 IR 361; [2018] FWCFB 4109 at [71]

[20] Long v Keolis Downer (t/as Yarra Trams) (2018) 279 IR 361; [2018] FWCFB 4109 at [72]

[21] Section 7(2) of the Code

[22] Section 536LH(2)

[23] James Morphett v Pearcedale Egg Farm [2015] FWC 8885 at [29]

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