s.536LU - Application for an unfair deactivation remedy

Unfair deactivation - objection that respondent complied with the Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024 - whether there was a valid reason for deactivation based on frequent detours and delays - compliance with the Digital Labour Platform Deactivation Code - application dismissed

• [1] On 21 June 2025, Mr Ravinder Singh filed an application in the Fair Work Commission claiming that his deactivation from a digital platform was unfair. Mr Singh performed work for Menulog Pty Ltd (Menulog) receiving and delivering food and other items from restaurants and other vendors to customers. His role is described by Menulog as a "courier". Mr Singh was an "employee-like worker" for the purposes of section 15P of the Fair Work Act 2009 (Cth) (the Act) and Menulog is a "digital labour platform operator" within the meaning of section 15M of the Act. Mr Singh is a person protected from unfair deactivation[1].
• [2] Mr Singh seeks from the Commission a remedy pursuant to s 536LQ of the Act which may include his reactivation and an order for lost pay. To obtain a remedy in respect of unfair deactivation, an employee-like worker such as Mr Singh must have been unfairly deactivated which in turn requires it to be established that (a) he was deactivated, that (b) the deactivation was unfair and that (c) the deactivation was not consistent with the Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024 (the Code) in relation to the deactivation[2]. If one of these elements are not met, the Commission cannot make an order for a remedy in relation to the deactivation.
• [3] Menulog say the deactivation of Mr Singh's account was consistent with the Code and therefore his application should be dismissed.
• [4] The matter was originally allocated to Millhouse DP but transferred to my chambers on 3 November 2025. Prior to this occurring the matter had been the subject of a short hearing on 28 August 2025 which was adjourned when an interpreter did not arrive as scheduled. Nothing of substance occurred before the hearing was adjourned. Prior to the hearing the parties had filed and served outlines of argument and evidence. I conducted a further hearing on 5 November 2025 in person in the Commission in Melbourne. Mr Singh did not attend the hearing in person but participated via video from his parked car. He was assisted at the hearing by a Punjabi interpreter. Previously the Deputy President had granted Menulog permission to be represented by a lawyer or paid agent pursuant to s 596 of the Act and I confirmed the grant of that permission at the commencement of the hearing. Ms Sweatman appeared for Menulog.
• [5] At the hearing Mr Singh affirmed the veracity of the factual assertions he had made in the material he has filed in this matter, supplemented those assertions with some short oral evidence in chief, and was subject to cross examination. Mr Millican, the Global Health and Safety Manager gave evidence for Menulog and Mr Singh was afforded the opportunity to ask him questions which was declined.
• [6] I was not enamoured with the quality of Mr Signh's evidence in this matter. To some extent, Mr Singh provided a rolling set of excuses in response to the allegations about frequent delays in the conduct of his work. It was not ideal that he did not attend the Commission in person, as directed, and in circumstances where an in-person interpreter had been arranged to assist him. He explained he had become confused over whether the hearing was occurring on- line or in person, but also apparently had to work at 1:00PM or thereabouts, when the hearing had been listed to occur all day. He attended the hearing from his car. I found his explanation as to why he did not attend in person less than convincing. In circumstances where his case depends on the acceptance of several assertions he makes, which strain the limits of plausibility, he did himself no favours in the way he conducted himself in the proceeding.

• [7] Mr Singh commenced performing work for Menulog in October 2020. The deactivation of his account took effect on 17 June 2025.
• [8] The reason the account was deactivated was because Menulog considered that in performing his delivery duties, Mr Singh had in the course of his work engaged in unexplained detours and delays to an unacceptable level. The nature of the delays about which it was particularly concerned can be summarised as follows:
  1. When a Menulog courier is able through their account to "accept" a job of work, they may do so through an app they have access to by clicking on the acceptance of the offer.
  2. Menulog's systems can track the movement of the courier after they have accepted a job. It uses GPS tracking to monitor the courier's movements which is in turn used to provide information to customers about estimated delivery times and vendors about matters such as when food should begin to be prepared.
  3. Once having accepted a job of work, Menulog requires that the courier to proceed quickly and efficiently to take delivery of the items from the vendor and convey them to the customer. The reason for this requirement is obvious, especially when food is concerned. The acceptance of the job will in due course trigger the commencement of the preparation of the food. Customers are provided with information about estimated delivery time. Thus, the courier must proceed efficiently and directly to the vendor, to take delivery of the item so that it is conveyed to the customer in appropriate order and consistent with the information being provided about estimated time for delivery.
• [9] The system can track, and measure delay caused by, for example, the courier failing to proceed to the vendor via the most direct route, by making a detour.
  1. In this matter, Menulog said that a delay of more than ten minutes past the time its systems calculated was the reasonable time for arrival at a vendor (based on estimated travel time), taken from when a courier "accepts" a job, was for it, a cause for concern.
  2. These requirements are made reasonably clear to Menulog Couriers, including in a Courier Agreement provided which couriers are apparently required to agree to. It was not entirely clear to me whether the ten-minute threshold I have referred to is made as clear as the more general expectation as to efficiency and expediency in the conduct of the work appears to be.
• [10] Obviously, various things could cause a courier to travel to a vendor via a route different from what might be considered the most obvious, quickest, or most efficient course. Sometimes the reason for a diversion might be out of their control, such as, for example, as a result of a traffic impediment or roadworks. Conceivably, a courier could experience car trouble. Weather might cause delay. The process requires the courier to interact with the app several times during the process - thus network connectivity is required. Conceivably, a detour might be necessary to obtain a network connection - indeed, in this matter, Mr Singh claimed he experienced trouble getting network connectivity and said that a reason for him taking what might have appeared to be odd diversions was for the purposes of seeking network access.
• [11] Menulog do not prohibit couriers from having access to other digital platforms that may involve goods delivery, such as Uber Eats. Conceivably, when working a shift, a courier might be managing digital platform-based deliveries on more than one platform. Whilst Menulog does not prohibit this practice, it continues to expect that once a job on its platform is "accepted", the courier proceeds quickly and efficiently to the vendor, and thereafter to the customer with the delivery. Delay caused by interference with this process by an obligation to make a delivery in relation to a different digital platform is not tolerated and is identified in Menulog's internal systems for the management of couriers as a "red flag" known as "multi-apping".
• [12] In this matter, in some circumstances Mr Singh made what Menulog considered to be odd diversions, resulting in delay, and when doing so, was proximate to large retail hubs. It believes some of the delays engaged in by Mr Singh was because he was making deliveries on other platforms - "multi-apping" - having taken deliveries from one of the many other food outlets within those large retail hubs. Mr Singh denies this suggestion, although he does not dispute that he has an Uber Eats account from which he makes deliveries.
• [13] On the evidence before me, between March 2025 and June 2025, Mr Singh made deliveries involving delays of greater than ten minutes (calculated in the manner described above) on 114 occasions or in 24.68 per-cent of the jobs he accepted. Mr Millican said that the average instance of delay of this kind exceeding the ten-minute threshold for couriers in the area was just over 2 per cent.
• [14] Mr Singh was first warned about Menulog's concerns on 9 April 2025. On this day he was sent an email which relevantly included:
  1. a statement that he was at risk of being deactivated from the platform for reason of his conduct;
  2. an explanation of the reason for the risk of deactivation, namely, "a pattern of delayed orders without reason";
  3. a statement that Mr Singh was at risk of being deactivated if he did not correct his actions within a reasonable period of time, including by not continuing to have unexplained delays or detours whilst completing deliveries or if another issue arose in relation to his conduct or capacity;
  4. a statement that Mr Singh could seek assistance from another person in relation to the warning who could be a delegate or employee of an employee organisation.
• [15] Mr Singh was sent another warning in almost the same terms on 6 May 2025.
• [16] Mr Singh said he did not read either of these two emails. He said he received frequent emails from Menulog about various matters and did not appreciate the significance of these emails and thus did not open them or read them properly. There is no doubt however that he received them.
• [17] On 30 May 2025, Mr Singh was advised by Menulog that it considered a person who had been permanently deactivated from its platform had used his account. This practice - described by Menulog as "ban evasion" - is a serious matter because it may give rise to people who have engaged in undesirable behaviour accessing its platform by using someone else's account. Menulog sent Mr Singh a preliminary deactivation notice about this allegation and suspended his account. Mr Singh availed himself of an option offered to him to ask for this decision to be reviewed. This led to a verbal discussion he had on 3 June 2025 with Ms Poka, a member of Mr Millican's team. In this discussion Mr Singh said he was not sure who or what was using his account and said that it may have something to do with poor network connectivity. Ms Poka did not give evidence in this proceeding, but Menulog provided copies of what were apparently her notes, and an email she sent Mr Singh on 4 June 2025. In the email, Ms Poka advised Mr Singh that Menulog had decided to reinstate his account, but he was warned about the incident.
• [18] Between about 6 May 2025 and 11 June 2025, nearly fifty jobs Mr Singh took on were the subject of a "delay" (calculated on the basis of the methodology identified above).
• [19] Three of these jobs were the subject of more detailed evidence provided by Menulog and to which Mr Singh's attention was taken in cross examination for his explanation. As I understood it, these three incidents exemplified the nature of Menulog's concerns leading to its deactivation of Mr Singh's account.
• [20] The first of these incidents occurred on 16 May 2025. On this occasion, the GPS information showed Mr Singh taking on a delivery, but then not proceeding direct to the vendor, instead spending an additional 13 minutes apparently travelling to a residential location in the opposite direction. Under cross examination, Mr Singh said several times could not recall this job. But later in his evidence he also said he said he had to stop during his trip to get a drink because he felt like vomiting. The manner in which this evidence was given was not believable, and I found it to be an example of what I have described above as Mr Singh's tendency towards providing rolling excuses for his conduct.
• [21] The second incident occurred on 18 May 2025. The GPS tracking map again shows Mr Singh taking on a delivery but then proceeding in a different direction that the vendor's location, to another apparently residential area. The delay attributed by Menulog to the trip was 19 minutes. When asked to explain this detour, Mr Singh said there were roadworks. I also found this explanation difficult to accept when the map shows Mr Singh having diverted in the wrong direction such that he avoided several major roads which would have presented a direct route to the vendor location.
• [22] The third incident occurred on 22 May 2025. On this occasion, the GPS information again showed Mr Singh accepting a delivery at a particular location, and then travelling away from the vendor location, where a delay of 61 minutes ensued. Mr Singh said in relation to this matter that he was assisting a colleague who was experiencing car trouble, with a jump-start. He conceded he did not inform Menulog of this interruption.
• [23] On 11 June 2025, Menulog sent Mr Singh a preliminary deactivation notice. The notice relevantly provided as follows:
  1. It said that Menulog had decided to issue the preliminary deactivation notice because of the pattern of delayed orders without acceptable justification.
  2. It said Menulog was considering permanently deactivating Mr Singh's account.
  3. It said Mr Singh had a right to respond to the notice, providing a link for him to submit his request or to request for a meeting with a Menulog representative.
  4. It said Mr Singh could seek assistance from another person in relation to the notice who could be a delegate or employee of an employee organisation.
• [24] The preliminary deactivation notice also advised Mr Singh that his access to the platform was suspended for seven days (as part of the notice).
• [25] Later, on 11 June 2025, Mr Singh sent an email to Menulog in which he asked for the reactivation of his account and appeared to seek a discussion as offered. He referred in the email to his detours being as a result of "poor network and bad reception", and "road work and traffic". On 16 June 2025 he spoke to Ms Poka again. The notes provided apparently taken by Ms Poka during that conversation indicate Ms Singh said that the reason for his diversions and delays was the difficulty he was experiencing getting network access in the locations he was frequently making deliveries.
• [26] Menulog submits that Ms Poka gave consideration to Mr Singh's explanations but did not consider them credible. Mr Singh was asked under cross examination whether he agreed that Menulog had considered his response and he appeared to say he did, although I did not place much store in this apparent concession, given Mr Singh is hardly in a place to know how his explanations were dealt with by Menulog and its staff.
• [27] On 17 June 2025, Ms Poka sent Mr Singh an email confirming the decision to deactivate his account was final.
• [28] Mr Singh submitted that the reason for his delays or detours was poor network and bad reception. He said usually "the network is fine but sometimes I don't know what happened ...", and whether the cause was "rain or a server problem". He also mentioned being stuck in traffic, road works and road accidents. He said he was working at night and appeared to suggest he was not "tracked properly" as a result. He also said for some orders, he had asked customers for their home wi-fi or mobile hotspot because of his network difficulties and appeared to suggest that on some occasions they had been provided to him. He also said he had not been the subject of complaints from restaurants when arriving late, nor customers. He said he had done more than 7800 orders and had always followed guidelines, completed his tasks professionally and maintained good ratings.

• [29] In this matter, I must determine whether the decision to deactivate Mr Singh's account was consistent with the Code, or not. I consider that the decision was consistent with the Code, on the basis of the following.

• [30] Section 8 of the Code requires a deactivation warning to be provided before deactivation. An exception to this rule exists in some circumstances which are not relevant to the matter before me[3]. A warning must contain several matters as set out in s 8 of the Code. I am satisfied that the warnings provided to Mr Singh by Menulog on 9 April 2025 and 6 May 2025 (described in more detail above) fulfilled these requirements.
• [31] Mr Singh claimed that because of the number of emails he received from Menulog on a weekly basis, he did not read these emails. However, there was no doubt that Menulog gave these emails to Mr Singh by sending them to his personal email address and I consider his having disregarded them does not alter my finding that this part of the Code has been met.

• [32] Section 11 of the Code requires that the digital labour platform operator provide the employee-like worker with a preliminary deactivation notice specifying, among other things, the reason relating to the conduct or capacity of the worker that consideration is being given to terminating their access to the platform. The notice must contain several elements, each of which were contained in the notice sent to Mr Singh on 11 June 2025. This part of the Code has been met.

Modification or suspension of access to platform

• [33] Section 12 of the Code provides that if an employee-like worker's access to the digital platform is suspended at the same time as the preliminary deactivation notice is given, the worker must be notified in writing as to the time and day from which the suspension takes effect and the consequences of the modification or suspension, and that this must be, in these circumstances, as part of the preliminary deactivation notice. That is what occurred in this matter - these matters were noted in the preliminary deactivation notice sent to Mr Singh on 11 June 2025.

Discussion with a representative and consideration of response

• [34] Section 13(4) of the Code requires that the employee-like worker be able to make a request that a representative of the operator be made available to discuss the preliminary deactivation notice, and that if such a request is made, a person be made available withing a reasonable time. I am satisfied Mr Singh was afforded this opportunity and did indeed speak to Ms Poka on 16 June 2025 about the preliminary deactivation notice.
• [35] A human representative of the digital labour platform operator must consider the response provided by the employee-like worker (which may be in writing and also in a discussion with a representative). The digital labour platform operator must make such further inquiries (if any) as are reasonably warranted after considering the employee-like worker's response[4].
• [36] While Ms Poka did not give evidence in this proceeding, I have no reason not to accept Menulog's submission that Ms Poka considered the response provided by Mr Singh. The notes she apparently made reflect her consideration. In the circumstances, I do not consider any further inquiries were reasonably warranted. I accept that a human representative of Menulog considered the response provide by Mr Singh.

• [37] Section 14 of the Code requires that after complying with the preceding steps, the digital labour platform operator must decide whether to take no further action or terminate the worker's access to the digital labour platform. As soon as practicable, the worker must be notified of the decision. If there is a decision to terminate access, the worker must be given a final deactivation notice specifying several prescribed matters.
• [38] Mr Singh was sent a final deactivation notice by Menulog on 17 June 2025. The notice stated Menulog had decided to terminate his access to its platform, for the reason that Mr Singh had been significant delayed and detoured in arriving at the "partner customer" and had thus breached his Courier Agreement, that the deactivation was to take place immediately and final payments would be made into his nominated bank account in the following Menulog payment cycle. I consider this notice fulfills the requirements of s 14 of the Code.

Sufficient information to enable a reasonable person in the position of the employee-like worker to understand the communications

• [39] Both in respect to the requirement that a warning be given (s 8 of the Code), in relation to the preliminary deactivation notice (s 11 of the Code), and in relation to the final deactivation notice (s 14 of the Code) the information provided must be sufficient to enable a reasonable person in the position of the employee-like worker to understand the matters required to be contained within those communications.
• [40] I consider that the notices provided to Mr Singh by Menulog fulfilled these requirements: they were stated in plain English in a "question and answer" format. This appears to have led to Mr Singh being able to engage with the preliminary deactivation notice, to which he submitted a written and verbal response attempting to address the nub of the concerns raised with him, suggesting there is no doubt he understood the matters raised in the communication.

Time frame, representation and communications

• [41] I consider that Menulog used reasonable endeavours to ensure that the process concerning Mr Singh's deactivation was carried out within a reasonable time frame, and Mr Singh was given a reasonable time to exercise his right of response[5]. I also consider Mr Singh was able to appoint a person to provide him with support or representation in relation to the deactivation process[6]. I also consider that communications with Mr Singh relating to the deactivation were made in writing using an appropriate method - in particular the use of Mr Singh's personal email address, which he obviously had access to[7].

• [42] Section 14(4) of the Code provides that a digital labour platform operator may terminate an employee-like worker's access to the digital labour platform only if the reason for the termination is a valid reason, and if the operator considers on reasonable grounds that the reason has been established. A valid reason is one which "sound, defensible or well-founded", and not "capricious, fanciful, spiteful or prejudiced"[8] and will involve something more than a minor failing or trivial misdemeanour and must be of sufficient gravity or seriousness to justify deactivation[9]. But determining compliance with the Code does not require the Commission to make a factual finding about whether or not alleged conduct occurred, but rather to assess whether the operator's belief as to the existence of a reason which is valid is supported by reasonable grounds[10].
• [43] Section 19 of the Code sets out examples of what may constitute a valid reason for the deactivation of an employee-like worker. These include failure to meet platform obligations, health and safety matters, the misuse of information, fraud, dishonesty or deliberate damage, a breach of law or regulatory requirements, licensing, accreditation and screening requirements and inactivity. In relation to the failure to meet platform obligations, s 19(2) of the Code says:

"The employee like worker fails or refuses to meet one or more of the following requirements, to the extent that the requirement is reasonable and is known to the worker as a result of communication from the digital labour platform operator or otherwise:

(a) the requirements of the worker's services contract with the digital labour platform operator;

(b) the conditions of use of the digital labour platform;

(c) the operator's standards or requirements in relation to quality, service level or performance;

(d) the operator's code of conduct for the platform;

(e) any other legally binding requirements on the worker's use of the platform not mentioned in an earlier paragraph of this subsection."

• [44] I consider that Menulog had reasonable grounds to believe that Mr Singh engaged in the conduct upon which its decision to deactivate his account was based, and that its reason was valid, and related something more than a minor failing or trivial misdemeanour. Several aspects of his conduct inform my consideration in this regard.
• [45] First, the nature of the concern Menulog had in relation to Mr Singh's conduct is not an insignificant one for its business. Its entire business is based on the timely delivery of product in good order. Inordinate and frequent delay strikes at the heart of the enterprise. It is entirely reasonable for it to impose appropriate standards in this regard and enforce them in a reasonable manner.
• [46] Second, Menulog had a basis to believe that the instances of delay engaged in by Mr Singh were frequent. In this regard I observe that Menulog's definition as to what is "acceptable" is its own. The formulation used is based on the notion that there is a reasonable route between the place at which a courier accepts a job, and the vendor's location, and that a delay beyond that time of more than ten minutes is not acceptable. This is a somewhat arbitrary construction. A more objective assessment of acceptability might sometimes be required - and might depend on a more forensic examination of the particular circumstances involved in each delay. I do not consider that necessary in this matter because on the evidence before me, Menulog had a reasonable basis to believe there were frequent instances of delay of much more than ten minutes, extending over a period of some months, together with several detailed examples in relation to which Mr Singh's explanations lacked credibility. I consider that in those circumstances, the basis upon which Menulog formed its concern is reasonable even without a more forensic examination of the cause of each of the delays.
• [47] Third, I consider that it was obvious Mr Singh is well aware of these expectations and knows they are part of the requirements of his role. They were made clear to him in several pieces of correspondence sent to him during April and May 2025 but in my view, they were obviously already known to him.
• [48] I will however note that I am not entirely convinced that it is clear a delay of the kind discussed above which measures more than ten minutes according to Menulog's methodology is a threshold which, on the evidence before me, is made as clear as it could be to couriers such as Mr Singh. It is also not clear that persons in the position of Mr Singh know that if they set out on a route that is unorthodox, for some reason, their conduct may be scrutinised. Perhaps Menulog provides its couriers with more information than was provided in evidence before me as to the manner in which their route and travel time will be scrutinised against measures such as the ten-minute threshold. If it does not do so, this may be something it might consider.
• [49] Fourth, Mr Singh's explanations for his frequent delays and detours are weak. I accept his evidence that there were some circumstances in which he took an odd route after accepting a job in order to find network coverage or reception. I do not accept this is a credible explanation for all of the instances of delay or indeed a substantial portion of those instances. I also do not consider the other collection of excuses he provided to be credible. His explanations provided to Menulog were similarly inadequate. A more forthright explanation may have assisted Mr Singh in this matter, but it was not forthcoming.
• [50] It is not necessary for me to form a conclusion as to whether Mr Singh was indeed engaged in what Menulog describe as multi-apping, although I can understand why, on the evidence, it holds this suspicion.
• [51] I find that Menulog's decision to terminate Mr Singh's access to its platform was for a reason that was valid, and that it considered on reasonable grounds that the reason had been established.

• [52] Having considered each of the aspects of the Code relevant to this matter, on the evidence before me I consider the deactivation of Mr Singh's digital account by Menulog was consistent with the Code. He has therefore not been unfairly deactivated within the meaning of the Act, and his application is dismissed. An Order[11] will issue to that effect.

Ms Sweatman, solicitor, appearing on behalf of the Respondent

[1] Fair Work Act 2009 s 536LD; Respondent's Outline of Submissions, 13 August 2025, [3.7]

[2] Fair Work Act s 536LF

[3] Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024, s 9

[4] Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024 ss 13(7) and (8)

[5] Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024 s 15

[6] Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024, s 16

[7] Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024, s 20(1)(b)

[8] Rahul Kumar v Portier Pacific Pty Ltd [2025] FWC 2275 [8] (Kumar); Hasnain Ali v Portier Pacific Pty Ltd [2025] FWC 3243 [11] (Hasnain)

[10] Kumar [8]; Hasnain [12]; Mohamed Mohamed v Portier Pacific Pty Ltd [2025] FWC 2337 [4]

[11] PR793452

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