s.536LU - Application for an unfair deactivation remedy

Application for an unfair deactivation remedy - date that deactivation took effect - extension of time - extension of time refused - application dismissed

[1] This decision determines two questions concerning an application made by Mr Redowan Khan under section 536LU of the Fair Work Act 2009 (Cth) (FW Act) for an unfair deactivation remedy (Unfair Deactivation Application) against Amazon Commercial Services Pty Ltd (the Respondent).

[2] The first question concerns the date that Mr Khan's deactivation took effect. In the Form F89 - Application for an unfair deactivation remedy that Mr Khan filed with the Fair Work Commission (the Commission), Mr Khan identified 20 August 2025 as the date that his deactivation took effect.[1] Mr Khan also identified that the application was made more than 21 days after his deactivation took effect and set out the basis upon which an extension of time was sought.[2] The Respondent agreed that Mr Khan's deactivation took effect on 20 August 2025.[3] The Unfair Deactivation Application was made with the Commission on 10 October 2025, which was 50 days after 20 August 2025. Directions were made in the usual terms to facilitate the hearing as to whether an extension of time should be granted under section 536LU(4) of the FW Act. In his written submissions submitted in advance of the hearing, Mr Khan changed course and contended that 27 September 2025 was the date that his deactivation took effect and that the Unfair Deactivation Application was made within the 21 day period required by section 536LU(3)(a) of the FW Act.[4]

[3] The second question only arises for consideration if the date that deactivation took effect is determined to be 20 August 2025. The second question is whether an extension of time should be granted under section 536LU(4) of the FW Act.

[4] Both questions were the subject of a hearing that I conducted on 6 November 2025. Mr Khan appeared for himself. Ms Erin Hawthorne appeared for the Respondent with permission granted under section 596(2)(a) of the FW Act. Mr Khan gave evidence and was cross-examined. Mr Khan cross-examined the Respondent's sole witness, Ms Noreen Coldigado Gomez. All the evidence and submissions made by the parties has been considered.

[5] For the reasons explained below, I have determined the date that Mr Khan's deactivation took effect was 20 August 2025. I have decided not to grant the extension of time. Consequently, I have dismissed Mr Khan's Unfair Deactivation Application.

[6] The meaning of deactivated is set out in section 536LG of the FW Act, which is reproduced below:

A person has been deactivated from a digital labour platform if:

(a) the person performed digital platform work through or by means of the digital labour platform; and

(b) the digital labour platform operator modified, suspended, or terminated the person's access to the digital labour platform; and

(c) the person is no longer able to perform work under an existing or prospective services contract, or the ability of the person to do so is so significantly altered that in effect the person is no longer able to perform such work.

[7] A Full Bench of the Commission in Gopal Bandameeda v A_mazon Commercial Services Pty Ltd_[5] considered section 536LG of the FW Act, including its interaction with the requirements to file such an application within the 21 days specified in section 536LU(3)(a) of the FW Act. The Full Bench held:

[38] It is clear from s 536LG of the Act that the deactivation of an employee-like worker

takes effect, as contemplated by s 536LU(3)(a), once all elements of the definition of

"deactivated" in paragraphs (a), (b) and (c) of s 536LG have been satisfied.

[39] The first element of the definition of "deactivated" in s 536LG(a) addresses whether the employee-like worker "performed digital platform work through or by means of the digital labour platform." This element directs attention to both the nature of the work undertaken and the method by which the employee-like worker accessed or was engaged to perform that work.

[40] The second element of the definition of "deactivated" in s 536LG(b) considers whether the digital platform operator has taken action to modify, suspend, or terminate the employee- like worker's access to the digital labour platform. As defined in s 15L of the Act, a digital labour platform is an online enabled application, website, or system that employee-like workers use to discover and, where suitable, accept offers of work.

[41] The third limb of the definition of "deactivated" in s 536LG(c) centres on whether the employee-like worker retains the ability to perform work under a services contract. When read in context, it is evident that the "work" referred to in s 536LG(c) is the "digital platform work [undertaken] through or by means of the digital labour platform" mentioned in s 536LG(a) of the Act. Ordinarily, when an employee-like worker's access to the digital labour platform is suspended or terminated, they will no longer be able to perform work under their services contract. This is because the platform typically serves as the sole conduit through which the worker becomes aware of, and accepts, offers of digital platform work. However, exceptions may arise. For instance, a delivery worker may have the capacity to perform work finalising deliveries of goods which were offered to and accepted by the worker prior to the suspension or termination of access to the digital labour platform

[42] Where the modification, suspension, or termination of access to the digital labour platform does not render the worker unable to perform work under the services contract, a broader inquiry is required. Invariably, a worker will be unable to perform such work if a termination of a services contract has come into effect. Alternatively, even if the contract remains on foot, the worker may be prevented from performing work within the meaning of paragraph (c) due to the exercise of a contractual right or other action by the digital labour platform operator that substantially alters the worker's ability to perform work under the contract. Examples may include:

(a) The exercise of a contractual right to suspend performance, potentially following notice of termination, even before the termination takes effect.

(b) A direction from the digital labour platform operator prohibiting the worker from performing work.

(c) A specific instruction from the digital labour platform operator barring the worker from doing something which effectively means they cannot perform work under their services contract. For instance, a direction from an operator to a delivery worker barring the worker from collecting goods from operator's distribution facilities, thereby effectively preventing the performance of work via the platform.

[43] Because a deactivation may result from a modification, suspension, or termination of an employee-like worker's access to a digital labour platform, it is possible for a worker to be deactivated on multiple occasions by the same platform operator. For example, the operator may initially modify the worker's access, later suspend it during an investigation, and ultimately terminate access altogether. If each of these actions leads to the worker being unable to perform work under their services contract, then each may constitute a separate instance of deactivation under s 536LG of the Act.

[44] An employee-like worker may choose to challenge only the final act of termination, or they may seek to contest each individual act of deactivation. The calculation of the 21-day period within which an unfair deactivation application must be filed in the Commission will depend on which specific act of deactivation - modification, suspension, or termination - the worker alleges to be unfair.

[45] The restricted 21 day timeframe under s 536LU(3)(a) for an employee-like worker to lodge an unfair deactivation application in the Commission, combined with the high threshold of "exceptional circumstances" required to justify an extension, reflects a clear legislative intent to strictly limit the period within which such applications may be made. Having regard to this context, we consider that a deactivation within the meaning of s 536LG of the Act will not take effect until the employee-like worker is aware, or at least has had a reasonable opportunity to become aware, of the matters set out in all three elements of the definition of "deactivated" in s 536LG(a) to (c).14 This means that a deactivation will not take effect in circumstances where an employee-like worker's access to the relevant app has been modified, suspended or terminated and they are unable to perform work under a services contract, unless they are aware, or have had a reasonable opportunity to become aware, of these matters.

[46] Further, we note that notices given to employee-like workers in relation to the matters dealt with in paragraphs 536LG(b) and (c) of the Act may affect legal rights under a services contract. We therefore consider that any notice given to an employee-like worker about their access to the digital labour platform or their ability to perform work under a services contract should be construed according to how it would be understood by a reasonable person in the position of the recipient who had knowledge of the background of the dealings between the parties.15 The subjective beliefs or understandings of the parties is not relevant. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe.

[8] On application of the principles explained by the Full Bench in Bandameeda, I am satisfied that Mr Khan's deactivation took effect on 20 August 2025.

[9] It was not contested, and I am satisfied that, the first element of the definition of deactivated is satisfied. That is, Mr Khan performed digital platform work through or by means of the digital labour platform (section 536LG(a)).

[10] It is quite clear that the second element and third element of the definition of deactivation was satisfied on 20 August 2025.

[11] On 14 August 2025, the Respondent provided to Mr Khan an email, which was headed Preliminary Deactivation Notice.[6] In very summary terms, the notice advised that a review had commenced into Mr Khan's access to the Respondent's digital labour platform and that Mr Khan's ability to deliver with the Respondent had been paused until the completion of that review. The notice also said that the Respondent was considering permanently terminating Mr Khan's access to the Respondent's digital labour platform. Mr Khan was given a period of 48 hours to respond to the notice.

[12] On 20 August 2025, the Respondent provided to Mr Khan an email, which was headed Final Deactivation Notice. That notice is reproduced below:

We previously notified you that we were considering the deactivation of your Amazon Flex account for violating Amazon's requirements for providing delivery services.

We sent you a Preliminary Deactivation Notice on 14-August-2025 which set out the reason why Amazon was considering deactivation. We provided you with the opportunity to respond, which included the opportunity to request a discussion with Amazon, if you wanted one.

Because of your delivery history, and your breach of the Terms of Service (as described in the Preliminary Deactivation Notice sent on 14-August-2025), Amazon has decided to terminate your access to the Amazon Flex program.

As a result, we are terminating the Agreement, effective immediately on 20-August-2025 at 01:42 AET. You are no longer eligible to deliver with Amazon Flex and will not be able to sign into the Amazon Flex app.

You will be paid any amounts owed to you within 48-hours to the preferred payment method on file.

[13] The uncontested evidence of Ms Gomez[7] was that Mr Khan's Amazon Flex account on the Amazon Flex App was 'offboarded' (i.e. deactivated) on 19 August 2025 (Pacific Standard Time), which is 20 August 2025 (Australian Eastern Standard Time). On and from 20 August 2025 (Australian Eastern Standard Time), Mr Khan has not been able to log into the Amazon Flex App or accept or perform any blocks via the Amazon Flex App. I accept Ms Gomez's evidence. The facts clearly demonstrate that the digital labour platform terminated Mr Khan's access to the digital labour platform on 20 August 2025. The facts clearly demonstrate that Mr Khan was no longer able to perform work under the services contract on and from 20 August 2025. The facts clearly demonstrate that Mr Khan was advised of these matters on 20 August 2025.

[14] In contending that the date his deactivation took effect was on 27 September 2025, Mr Khan argued that was 'the date I received clear written confirmation that my deactivation was final and permanent'.[8] I reject that argument. Mr Khan received clear written confirmation that his deactivation was final and permanent on 20 August 2025. On the material before me, Mr Khan was clearly aware of his deactivation on and from 20 August 2025.[9] That is evident from Mr Khan appealing his deactivation through the Respondent's internal process. Mr Khan commenced that appeal on 20 August 2025.[10] The relevance of 27 September 2025 is that was the date the Respondent advised Mr Khan that the original decision had not been changed and his appeal through the Respondent's internal process would be closed.[11] In the period from 20 August 2025 - 27 September 2025, Mr Khan did not have access to the digital labour platform nor was he able to work under an existing or prospective services contract. That is because Mr Khan was deactivated on - and only on[12] - 20 August 2025.

[15] My finding that Mr Khan's deactivation took effect on 20 August 2025 means that the second question must be considered.

[16] Section 536LU(3) of the FW Act provides that an unfair deactivation application must be made:

(a) within 21 days after the deactivation or termination took effect; or

(b) within such further period as the Fair Work Commission allows under subsection (4).

[17] Section 536LU(4) provides that the Commission may allow a further period for the application to be made by a person under subsection (1) if the Commission is satisfied that there are exceptional circumstances taking into account:

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

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

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

(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 or the Road Transport Industry Termination Code, as the case requires.

[18] The requirement to take into account the matters set out at section 536LU(4)(a) - (g) of the FW Act means that each of those matters, insofar as they are relevant, must be treated as a matter of significance in the decision making process.[13]

[19] In an appeal arising from a general protections application involving dismissal that was made after the period specified in section 366(1)(a) of the FW Act (which necessitated consideration of an application for an extension of time to be determined by the matters set out in section 366(2) of the FW Act), a Full Bench of the Commission in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Nulty) held:

[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of "exceptional circumstances". In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[20] The ultimate conclusion as to the existence of exceptional circumstances will turn on consideration of the matters set in section 536LU(4)(a) - (g) of the FW Act and the assignment of appropriate weight to each of those matters.[14]

[21] The delay required to be considered under section 536LU(4)(a) is the period after the prescribed 21 day period for filing an application. However, the circumstances from the date that the deactivation took effect must be considered in taking into account the reason for the delay.[15]

[22] Mr Khan offered several reasons for the delay. Those reasons are considered below.

[23] One reason put forward by Mr Khan concerns the appeal of his deactivation through the Respondent's internal process. Mr Khan says that he engaged in the process in good faith with the Respondent.[16] I have no doubt that is true. Mr Khan is critical of the Respondent's engagement with him throughout the process. It is unnecessary for me to express any view about that. In his written material, Mr Khan explained that he decided to proceed with the Unfair Deactivation Application after the Respondent advised him on 27 September 2025 that the original decision had not been changed and his appeal through the Respondent's internal process would be closed.[17]

[24] A second reason put forward by Mr Khan was based on what was said to be a genuine misunderstanding. In his written material, Mr Khan explained 'any delay was due to genuine misunderstanding of when the deactivation became final, not due to neglect'.[18] Mr Khan made a similar point in closing oral submissions. Those submissions are inconsistent with Mr Khan's evidence under cross-examination. In cross-examination, Mr Khan confirmed that he understood that his account had been deactivated on 20 August 2025. As such, I do not accept that Mr Khan misunderstood that had been deactivated or the date that the deactivation took effect.

[25] In any event, the first reason and the second reason put forward by Mr Khan do not explain the delay in making the Unfair Deactivation Application from 27 September 2025 to 10 October 2025. In cross-examination, Mr Khan was asked why he waited until 10 October 2025 to make the Unfair Deactivation Application. Mr Khan answered that he was not aware that the Fair Work Commission dealt with these sorts of matters. I do not accept that. On 12 September 2025, Mr Khan sent an email to the Respondent,[19] which expressed his dissatisfaction with the Respondent's communication with him in relation to his appeal. Mr Khan's email is reproduced below:

It's really not acceptable while give me schedule for discussion further and no communication with is a false and misinformation to me also against the digital platform breaching the laws

Last 10.9.25 schedule me for call and i didnt get any response from amazone representative whole day from 10 am to 5pm.

And this time same emails send below again send the new time for discussion if failed this time i will lodged complaint again this issues with fair work commission for giving false and misleading information from amazone representative ....

I will represent kay bruce working in fair work commission who will handle my case with all my evidence and documents where amazon did very Unfair deactivation for regulated workers

[26] I am satisfied based on that email that Mr Khan was aware - at least by 12 September 2025 - that could challenge his deactivation through an application to the Commission. It is unclear whether Mr Khan had such awareness prior to 12 September 2025, which was 22 days after Mr Khan's deactivation. It is entirely possible that Mr Khan knew that he could challenge his deactivation through an application to the Commission within the 21 day period, however, elected not to make the application within time.

[27] The difficulties with Mr Khan's explanation for the reasons for the delay are not fatal to his application for an extension of time. After all, an applicant does not need to provide a credible reason for the delay - or in fact any reason - at all.[20] The simple point is that there is nothing exceptional about the reasons for the delay relied upon by Mr Khan. That is the case irrespective of whether the reasons for the delay are considered individually or collectively. There is nothing exceptional if the delay or at least part of the delay can be attributed to Mr Khan electing to appeal his deactivation through the Respondent's internal process and only making the decision to make the Unfair Deactivation Application with the Commission once that process was complete. It appears that Mr Khan did not make the Unfair Deactivation Application within the 21 day time period because he either elected to focus on the appeal made through the Respondent's internal process or because he was unaware within the 21 day period that such an application could be made to the Commission. There is nothing not out of the ordinary course, or unusual, or special about either reason. An election made to focus on the Respondent's internal appeal process does not weigh towards an overall conclusion that there are exceptional circumstances. There is nothing exceptional about an employee-like worker making an application 'out of time' because they are unaware that an unfair deactivation application can be made to the Commission or of the requirement to make such an application with the 21 day time period.

[28] Taking into account the reasons for the delay, I am not satisfied that any and / or all those reasons in combination amount to exceptional circumstances. This weighs against a finding that there are exceptional circumstances to warrant the grant of an extension of time.

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

[29] I am satisfied that Mr Khan first became aware of his deactivation on 20 August 2025. Mr Khan had the full 21 days to make the Unfair Deactivation Application with the Commission. I am not satisfied that this matter points towards there being exceptional circumstances. This weighs against a finding that there are exceptional circumstances to warrant the grant of an extension of time.

Any action taken by the person to dispute the deactivation or termination

[30] Mr Khan actively disputed his deactivation through the Respondent's internal appeal process. This weighs in favour of a finding that there are exceptional circumstances to warrant the grant of an extension of time.

[31] I am unable to identify any prejudice sustained by the Respondent arising from the delay. An absence of prejudice does not necessarily weigh in favour of an extension of time being granted.[21] An absence of prejudice is unsurprising where the delay is short.[22] That the Respondent did not sustain any prejudice arising from the Unfair Deactivation Application being filed 29 days late does not support a finding that there are exceptional circumstances. In the circumstances of this application, I regard the absence of prejudice as a neutral factor.

[32] When considering the merits of a matter in the context of an application for an extension of time, the member at first instance should not embark upon a detailed consideration of the substantive case.[23]

[33] In addition to objecting to the application on the basis that it is 'out of time', the Respondent contends that Mr Khan was not a person protected from unfair deactivation, which is a term defined at section 536LD of the FW Act.[24] In particular, the Respondent contends that Mr Khan has not been performing work through or by means of the Respondent's digital labour platform, or under a contract, or a series of contracts, arranged or facilitated through or by means of the Respondent's digital labour platform, on a regular basis for a period of at least 6 months (section 536LD(c)). The Respondent also contends that Mr Khan's deactivation was consistent with the Digital Labour Platform Deactivation Code. Section 536LW of the FW Act provides that those matters must be determined before the merits of the application are considered. The merits of the application are assessed by reference to the criteria in section 536LH of the FW Act. I have little doubt that Mr Khan strongly disputes each of these matters. A factual dispute about each of these matters is evident from the material put before me.

[34] Given the disputed facts, I am unable to make a full or firm assessment of the merits of the application. In the circumstances of this application, I regard this matter as a neutral factor.

Fairness as between the person and other regulated workers in a similar position

[35] The parties did not make detailed submissions with respect to this matter. In the circumstances of this application, I regard this matter as a neutral factor.

Any processes specified in the Digital Labour Platform Deactivation Code

[36] It appears from the material before me that there is likely to be a factual dispute as to whether the processes associated with Mr Khan's deactivation were consistent with the processes specified in the Digital Labour Platform Deactivation Code.

[37] Given the disputed facts, I am unable to make a full or firm assessment with respect to this matter. In the circumstances of this application, I regard this matter as a neutral factor.

[38] Having considered and weighed each of the matters in section 536LU(4) of the FW Act, I am not satisfied that there are exceptional circumstances to warrant an extension of time. Consequently, I am required to decline Mr Khan's application for an extension of time under section 536LU(4) of the FW Act and dismiss Mr Khan's Unfair Deactivation Application. An order to that effect will be issued separately to this decision.

[5] [2025] FWCFB 182.

[13] Woolworths Limited v Ms Yu Duo (Lynda) Lin [2018] FWCFB 1643 at [68].

[14] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [39].

[15] Shaw v Australian and New Zealand Banking Group Corporation Limited [2015] FWCFB 287 at [12], Keith Long v Keolis Downer t/a Yarra Trams [2018] FWCFB 4109 at [40].

[20] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [40].

[21] Gail Miller v DPV Health Ltd (Hume) [2019] FWCFB 6890 at [21].

[23] Thomas Cosgrove v Clarity Interiors [2020] FWCFB 5464 at [32].

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