Fair Work Act 2009

s.536LU - Application for an unfair deactivation remedy

• [1] Mr Omar Al Boridi made an unfair deactivation application pursuant to s 536LU of the Fair Work Act 2009 (Cth) (Act) on 3 April 2025 in respect of the deactivation of his driver account with Uber. Section 536LU(3) of the Act prescribes that an application for unfair deactivation must be made within 21 days after the deactivation took effect or within such further period as the Commission allows under s 536LU(4).

• [2] Mr Al Boridi's Form F89 application records that the deactivation took effect on 28 February 2025,[1] but his position at the hearing was that he was deactivated with effect on 13 March 2025. The respondent contends that the deactivation took effect on 12 March 2025,[2] with the result that the 21-day period concluded at midnight on 2 April 2025 and the application was filed one day outside the 21-day statutory timeframe.

• [3] For the reasons that follow, I am satisfied that Mr Al Boridi's deactivation took effect on 12 March 2025 and that Mr Al Boridi requires an extension of time in order for his application to proceed. However, for the reasons that follow, I am not satisfied that there are exceptional circumstances, meaning that the discretion to extend the time in which the application may be made is not enlivened.

• [4] The Commission has the power pursuant to s 536LU(4) of the Act to extend the time within which this application can be made only if it is satisfied that there are exceptional circumstances. The language in s 536LU(4) is similar to the language contained in s 394(3) of the Act, which relates to extensions of time in unfair dismissal applications. I consider that decisions made under s 394(3) of the Act provide relevant guidance to the application of s 536LU(4).

• [5] The meaning of the term exceptional circumstances was considered by the Full Bench in Nulty v Blue Star Group Pty Ltd.[3] In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. Exceptional circumstances can 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.[4]

• [6] Under s 536LU(4) of the Act, the matters the Commission must take into account in order to determine whether exceptional circumstances exist are as follows:

(a) the reason for the delay; and

(b) whether the person first became aware of the deactivation after it had taken effect; and

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

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

(e) the merits of the application; and

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

(g) any process specified in the Digital Labour Platform Deactivation Code.

[6] I consider these matters in the analysis that follows.

• [7] Mr Al Boridi disagrees that his application was filed out of time.[5] While Mr Al Boridi acknowledges that the material before the Commission indicates that Uber concluded its internal review process on 12 March 2025,[6] he contends that he saw Uber's final response advising him of the immediate deactivation of his account[7] on 13 March 2025. Accordingly, Mr Al Boridi has calculated the 21-days from this later date.

• [8] The evidence before the Commission demonstrates that Uber's internal review was completed on 12 March 2025.[8] In an email sent by Mr Al Bordi to Commercial Passenger Vehicles Victoria (CPVV) on 13 March 2025, Mr Al Boridi stated, amongst other things, that he was informed by Uber that his account would remain permanently deactivated on 12 March 2025.[9] I am satisfied and I find that the deactivation took effect on 12 March 2025 and that Mr Al Boridi's application was filed one day out of time when it was filed with the Commission on 3 April 2025.[10]

• [9] The Act does not specify what reason for delay might tell in favour of granting an extension. Decisions of the Commission have referred to an acceptable or credible,[11] or reasonable[12] 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.[13]

• [10] The period of the delay to be considered is the period commencing immediately after the 21-day timeframe for lodging the application has expired.[14] However, the circumstances from the time the dismissal took effect must be considered in order to determine whether there is a reason for the delay beyond the 21-day period.[15]

• [11] Mr Al Boridi submits that the delay in filing the application was caused by the following matters:

(a) Mr Al Boridi took action by seeking an internal review of the decision by Uber;

(b) Mr Al Boridi made a complaint to the CPVV on 13 March 2025 and there was a delay of seven days in receiving CPVV's response, which directed him to the Commission; and

(c) Mr Al Bordi was unaware that there was a 21-day timeframe for making the application in the Commission.

• [12] I am not persuaded that Mr Al Boridi has provided an acceptable or reasonable explanation for the delay. Mr Al Boridi's evidence was that he complained to the CPVV on 13 March 2025 and a response was received after seven days. While the CPVV's response is not in evidence, Mr Al Boridi said that it directed to him to the Commission. Assuming that Mr Al Boridi had received this guidance by around 20 March 2025 or in the days thereafter, Mr Al Boridi has provided no explanation for why he did not take immediate steps to file his application in the Commission, in accordance with CPVV's direction, at this time.

• [13] In this respect, Mr Al Boridi's evidence was that the forms required by the Commission to commence an application were very long and took him a few days to complete the application. I do not accept this contention, having regard to the brief responses to the short Form F89 application filed by Mr Al Boridi, noting also that it enquires whether the application was being made within 21 days after the day the deactivation took effect.[16]

• [14] While I acknowledge that Mr Al Boridi sought to progress his concerns through an internal review process with Uber, Mr Al Boridi has provided no explanation for why he did not file an application in the Commission, in accordance with CPVV's direction, while simultaneously pursuing his right of internal review. In these circumstances, I am not persuaded that the internal review process provides a reasonable explanation for the delay in lodging his application.[17]

• [15] I have taken into consideration Mr Al Boridi's submission that his application is only one day out of time and he was not aware of the statutory timeframe for lodgment. However, I note that the Commission's website - which Mr Al Boridi accessed in order to commence the process of preparing his application - provides a range of information addressing the lodgment of applications in the Commission, including in relation to the timeframes within which to make them. While I acknowledge that Mr Al Boridi was not familiar, nor experienced with the procedures of the Commission, such unfamiliarity is not exceptional, and ignorance of one's rights will not usually provide an acceptable reason for the delay.[18]

• [16] For the reasons given, I do not find that any of the matters relied upon by Mr Al Boridi as reasons for the delay, individually or collectively, provide an acceptable or reasonable or credible explanation for the delay. This weighs against the grant of an extension of time.

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

• [17] Mr Al Boridi was notified, in writing, that his driver partner account had been permanently deactivated on 12 March 2025. Uber's position is that Mr Al Boridi was aware of the deactivation on 12 March 2025 because he received the message.

• [18] Mr Al Boridi's evidence that while his account was permanently deactivated on 12 March 2025, he did not become aware of it immediately. However, Mr Al Boridi accepted during cross examination that he checked his account multiple times per day and commenced taking action to dispute his deactivation the following day.

• [19] I consider that Mr Al Boridi had a reasonable opportunity to become aware of the deactivation on 12 March 2025. Mr Al Boridi corresponded with CPVV the following day, 13 March 2025, advising that his account had been permanently deleted the day prior. Accordingly, I regard this matter as a neutral consideration in my assessment of whether to grant an extension of time.

Any action taken by the person to dispute the deactivation

• [20] I am satisfied that Mr Al Boridi disputed the deactivation by lodging an internal review application with Uber. As such, Uber was on notice that the deactivation was actively contested by Mr Al Boridi.[19] This weighs in favour of an extension of time.

Prejudice to the regulated business (including prejudice caused by the delay)

• [21] I cannot identify any prejudice that would accrue to Uber were an extension of time to be granted in Mr Al Boridi's favour, notwithstanding Uber's submissions otherwise. However, the mere absence of prejudice to the regulated business is not in itself a factor that would point in favour of the grant of an extension of time.[20] I consider this to be a neutral factor.

• [22] For this consideration to weigh in favour of an extension of time, it must be shown that there is some merit in the substantive application.[21] However, an application to extend time is essentially interlocutory in nature and does not enable a fulsome examination of the substantive merits of Mr Al Boridi's application. Nor should the Commission embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time.[22]

• [23] In his application, Mr Al Boridi contends that he was not provided with an opportunity to respond or defend himself, as Uber's process is one-sided and automated. Mr Al Boridi contends that there was no context provided, nor any evidence presented to him in support of the concerns raised and this violates fairness, transparency and due process. Mr Al Boridi contends that to the extent Uber relies upon warnings it issued to him, they are general in nature. Mr Al Boridi rejects the contention that his deactivation was consistent with the Digital Labour Platform Deactivation Code on the basis that there was no proper investigation or dialogue with him, no evidence to support Uber's claims and no appeal process offered, which compromised his procedural fairness.

• [24] Uber submits that the merits of the application are weak, given that Mr Al Boridi was not performing work on a regular basis for a period of at least six months prior to deactivation pursuant to s 536LD(c) of the Act. Uber contends that Mr Al Boridi is not therefore protected from unfair deactivation (s 536LW(b)) and it has raised this as an additional objection to Mr Al Boridi's application.[23] Further, it contends that Mr Al Boridi was the subject of repeated reports of serious misconduct whilst on the Uber driver platform. Uber contends that this is likely to be deemed a valid reason for the deactivation, and Mr Al Boridi received multiple warnings regarding similar incidents, but his behaviour did not improve.

• [25] The parties hold substantially different views as to the matters that preceded the deactivation. The allegations turn on contested points of fact, which have not been the subject of evidence before me or tested under cross-examination. Accordingly, I am unable to form a concluded view about these matters. In the circumstances, I regard the merits of Mr Al Boridi's substantive application to be a neutral factor in my assessment of whether to grant an extension of time.

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

• [26] Applications to extend time generally turn on their own facts. Neither party has brought to my attention any matters of fairness relevant to this consideration. Accordingly, this factor is neutral in my consideration.

Any process specified in the Digital Labour Platform Deactivation Code

• [27] Mr Al Boridi accepted during the hearing that he received warnings (albeit, he said that such warnings were issued in general terms and over a lengthy period of time) and that he was issued with a preliminary deactivation notice and provided with an opportunity to respond (which he did). Mr Al Boridi otherwise submits that the evidence before the Commission demonstrates that he had a 100% satisfaction rate, an 88% acceptance rate, a 4.88 star rating and only a 1% cancellation rate.[24]

• [28] Uber contends that the evidence demonstrates that it complied with the Digital Labour Platform Deactivation Code when making the decision to deactivate Mr Al Boridi's account. It rejects the contention that Mr Al Boridi was not provided with sufficient information to enable a reasonable understanding of the issues outlined.

• [29] Consistent with my view with respect to the merits, I am not able to form a concluded view in relation compliance with processes specified in the Digital Labour Platform Deactivation Code. I regard this as a neutral factor in my consideration.

• [30] The statutory time limit that applies to the exercise of a person's right to bring an application for an unfair deactivation remedy reflects the parliament's intention that such rights be exercised promptly. The test of exceptional circumstances in s 536LU(4) of the Act establishes a high hurdle for an applicant for an extension of time.[25] Whether an application is lodged one day outside the statutory time limit (such as in this case) or more, the Commission must be satisfied that there are exceptional circumstances supporting an extension of time.[26]

• [31] In this case, Mr Al Boridi has not provided an acceptable or reasonable explanation for the delay. This weighs against a further period being granted. While Uber was on notice that the deactivation was contested by Mr Al Boridi by reason of the internal review process, the other factors weigh neutrally. Having regard to my consideration of the statutory criteria and the conclusions reached, I am not satisfied that the matters raised amount to exceptional circumstances, either when the various circumstances are considered individually or together.

• [32] As I am not satisfied that there are exceptional circumstances, the power to extend the

time in which Mr Al Boridi's application may be made is not enlivened.

• [33] Mr Al Boridi's application for an unfair deactivation remedy is dismissed.

[1] Exhibit 1, Digital Hearing Book (DHB) 22 at [1.3]

[3] [2011] FWAFB 975, 203 IR 1

[11] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974 at [9]

[12] Roberts v Greystanes Disability Services; Community Living [2018] FWC 64 at [16]

[13] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901; 273 IR 156 at [39]

[14] Mr Keith Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [40]

[15] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]

[17] See e.g Zhan Gao v Department of Human Services [2011] FWAFB 5605 at [10]; Zhan Gao v Department of Human Services [2011] FWA 8072 at [15]

[18] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; 203 IR 1 at [14]

[19] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298

[20] Gellel v Uber [2024] FWC 3218 at [21]

[21] Long v Keolis Downer (t/as Yarra Trams) [2018] FWCFB 4109 at [71]

[22] Kyvelos v Champion Socks Pty Ltd [2000] AIRC 540, Print T2421 at [14]

[25] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901; 273 IR 156 at [14] citing Lombardo v Commonwealth [2014] FWCFB 2288 at [21]

[26] See Cem Ozsoy v Monstamac Industries Pty Ltd [2014] FWC 479, upheld on appeal in C Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149

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