s.536LU - Application for an unfair deactivation remedy

Application for an unfair deactivation remedy - whether compliant with the Digital Labour Platform Deactivation Code - application dismissed

• [1] On 14 August 2025, Mr Saad Ali applied in time under s.536LU of the Fair Work Act 2009 (the Act) for an unfair deactivation remedy from Portier Pacific Pty Ltd trading as Uber and Uber Eats (together, Uber). A person has been 'unfairly deactivated' for the purposes of the Act if the Commission is satisfied that:

(a) the person has been deactivated from a digital labour platform; and

(b) the deactivation was unfair; and

• (c) the deactivation was not consistent with the Digital Labour Platform Deactivation Code[1] (the Deactivation Code).[2]

• [2] In dealing with an application for an unfair deactivation remedy, the Commission may order a person's reactivation if satisfied that the person was protected from unfair deactivation at the time of being deactivated, and that the person has been unfairly deactivated.[3] The Commission cannot order the payment of compensation to the person except that in appropriate cases, an order may be made to restore lost pay (s.536LQ).

• [3] There is no dispute in this case that Mr Ali has been deactivated from Uber's driver and delivery platforms within the meaning of s.536LG of the Act; that the final deactivation took effect on 12 August 2025; and that Mr Ali was protected from unfair deactivation at that time.

• [4] The question is whether I am satisfied that the deactivation was consistent with the Deactivation Code. The answer is 'Yes' for the reasons given below. Given this conclusion, it is not separately necessary to consider whether the deactivation was unfair. The application will be dismissed.

Was the deactivation consistent with the Deactivation Code?

• [5] For deactivation to be consistent with the Deactivation Code, the digital labour platform operator must have complied with the Deactivation Code in relation to the deactivation (s.536LJ). This requires the platform operator to follow the 'code process' in Part 2 of the Deactivation Code in relation to a proposed deactivation for reasons of work-related conduct or capacity to work (Deactivation Code, s.7). The code process does not apply to deactivation for serious misconduct.

• [6] Uber's reason for Mr Ali's proposed deactivation was low satisfaction ratings. As this was a reason related to his conduct in performing work through the Uber platform, the code process must have been followed for the deactivation to be consistent with the Deactivation Code. The various requirements of the code process are considered in turn below.

• [7] Section 8 (warning before deactivation): On 16 and 30 May 2025, Uber gave Mr Ali notice in writing that his account was at risk due to low satisfaction ratings. This was a reason related to Mr Ali's conduct in the performance of work on the Uber platform. The warnings stated that his satisfaction rating was below the minimum (85%) threshold for his city, and that under its Community Guidelines, delivery people who did not meet the minimum satisfaction rating may lose their access to the 'Uber Driver app'. The warnings stated that Mr Ali risked being deactivated from the Uber Driver app if he continued to receive ratings below the minimum average ratings threshold. They also stated that Mr Ali may seek assistance or support from a person (other than a lawyer acting in a professional capacity) in relation to the warning. I am satisfied that Uber complied with section 8 of the Deactivation Code and that the exceptions to section 8 found in section 9 of the Deactivation Code did not apply.

• [8] Section 10 (Process for deactivation): Division 3 of the Deactivation Code applied to the proposed deactivation because Mr Ali was given deactivation warnings and Uber considered on reasonable grounds that deactivation was justified because Mr Ali's low satisfaction ratings continued after the warnings were given (Deactivation Code, s.10(b)). There is no dispute that Mr Ali's satisfaction ratings did not rise to the minimum required standard before Uber commenced the deactivation process.

• [9] Section 11 (giving preliminary deactivation notice): A preliminary deactivation notice was given to Mr Ali on 30 July 2025. The specified reason for the notice was that his rating continued to be below the minimum customer satisfaction rating for the City of Sydney. It said that Uber was considering terminating Mr Ali's access to the Uber Driver app and that Mr Ali had a right to respond to the notice within 7 days and to submit a request within 2 days for a discussion with a representative of Uber Eats. I agree with the decision in Kumar v Portier Pacific Pty Ltd[4] (Kumar) that these were reasonable periods of time in the circumstances (which were very similar to the circumstances of this case). The notice also specified that Mr Ali was entitled to appoint a person (other than a lawyer acting in a professional capacity) to provide him with support or representation. The information contained in the notice was sufficient to enable a reasonable person in Mr Ali's position to understand the reason for the notice, that Uber was considering terminating his access to the Uber platform, that Mr Ali had rights to respond and request a discussion about the notice, and that he had the right to appoint someone to support or represent him. I am satisfied that Uber complied with section 11 of the Deactivation Code.

• [10] Section 12 (modification or suspension of platform access): Under section 12, Uber was entitled to suspend Mr Ali's access to the Uber Driver app in connection with the preliminary deactivation notice. It did so on 30 July 2025, and the suspension took effect 'immediately from the time and date of' the preliminary deactivation notice. The suspension was notified to Mr Ali as part of the preliminary deactivation notice, including when it would take effect and that Mr Ali would be unable to accept or complete trips/deliveries during the suspension period. I am satisfied that Uber complied with section 12 of the Deactivation Code.

• [11] Section 13 (steps after preliminary deactivation notice): On 31 July 2025, Mr Ali responded in writing to the preliminary deactivation notice. He suggested that he had received bad ratings for 'missing items' because of restaurant errors, stated that he had been working through the Uber platform for 2 years, promised to do better including by taking photos of deliveries to ensure he was delivering to the right place, and asked Uber not to end his living as he was an international student and had to earn money. Mr Ali did not request to discuss the notice with a representative of Uber. A (human) member of Uber's Community Operations team considered Mr Ali's response and decided that no further inquiries were warranted. This was a reasonable decision in the circumstances. None of the ratings connected to Mr Ali were for missing items and the response from Mr Ali otherwise provided no additional information about his ability to achieve the minimum satisfaction rating. I am satisfied that Uber complied with section 13 of the Deactivation Code.

• [12] Section 14 (outcome of consideration and inquiries; valid reason): On 12 August 2025, Uber communicated its decision to Mr Ali that his access to the Uber Driver app would be terminated. The decision was notified to Mr Ali in writing 'as soon as reasonably practicable' being the same day as the decision to terminate was made. The decision was communicated in a final deactivation notice, stating that Uber had decided to terminate Mr Ali's access to the Uber Driver app because he was required to maintain a rating above the minimum average rating in Sydney. The notice advised Mr Ali that the deactivation would take effective immediately upon receipt of the email. It also advised that Mr Ali's final payment would be deposited into his account during the next payment cycle. This was sufficient information for a reasonable person in Mr Ali's position to understand what he was being told in the final deactivation notice.

• [13] I am satisfied that Uber had a valid reason for the termination of the kind described in section 19(2) of the Deactivation Code. Under section 19(2), failure to meet a reasonable requirement that is known to the worker as a result of communication from the digital labour platform operator may constitute a valid reason for deactivation if it arises in relation to the performance of work through the platform. Communication of such a requirement may be either directly, or through the requirements of a services contract, platform conditions of use, quality, service level or performance standards or requirements, a platform code of conduct, or any other legally binding requirements on the worker's use of the platform.

• [14] The evidence establishes that Mr Ali failed to meet a reasonable requirement imposed by the Uber to achieve the minimum average customer satisfaction rating of 85% while performing work through the Uber Driver app. Achieving at least the minimum rating was a legally binding requirement of the services contract between Mr Ali and Uber and its Community Guidelines, which are standards imposed in relation to quality, service level and performance. The requirement was reasonable in the circumstances. It was sound, defensible and well-founded rather than capricious, fanciful, spiteful or prejudiced, and it was sufficiently serious to justify deactivation.

• [15] Clause 5.1(l) of the services contract required Mr Ali to comply with the Community Guidelines. The Guidelines notified Mr Ali that he may lose access to the Uber Driver app if he did not meet the minimum average rating for the city in which he operated. Clause 14.2(b)(ii) of the services contract permitted Uber to terminate the agreement if Mr Ali acted in violation of the Community Guidelines. These matters may not have been known to Mr Ali in fact (because he did not read them) but they were communicated to Mr Ali in writing in advance. This put Mr Ali in a position to know what was required of him while performing work through the Uber Driver app.

• [16] The average minimum customer satisfaction rating required for drivers in Sydney is 85%. At the time of his first warning, Mr Ali had an average customer satisfaction rating of 76%. His actual satisfaction ratings in the period sat at 50% with an average rating by 30 May 2025 of 73%. From 30 May 2025 to 30 July 2025, Mr Ali's actual satisfaction rating was 80%, but his average over the prior 100 rated trips remained at 73%. By 11 August 2025, it had dropped to 65.2%. These figures could not have been influenced by responsive action prompted by the deactivation warnings because Mr Ali did not read them or access links to information provided to him about how to lift his ratings in the relevant period.

• [17] According to Uber, Mr Ali's rating put him in the bottom 1% of Sydney drivers from a customer satisfaction perspective. Internal data analysis indicates that the lower a driver's customer satisfaction rating, the more likely it is to result in 'defective orders' (where a customer contacts Uber support with an issue). Drivers' ratings are averaged over their last 100 rated trips to reduce the risk of distorted feedback.

• [18] Accepting that some reasons for 'thumbs down' ratings are outside the control or responsibility of drivers, I am not satisfied this was the case in relation to Mr Ali. The potential explanation given by Mr Ali for his lower‑than‑average customer satisfaction rating ('missing items') did not align with feedback provided by those who gave him a 'thumbs down' rating.

• [19] For similar reasons to those given in Kumar, I find that the requirement to maintain an average customer satisfaction rating of at least 85% was objectively reasonable in all the circumstances. Firstly, drivers are on notice that there is a minimum average rating requirement from the outset of their entry into a services agreement with Uber, at which time they are asked to confirm if they have read and acknowledged the Community Guidelines. Drivers can check their ratings on their profile at any time in the Uber Driver app. If a concern arises about ratings levels, warnings give drivers an opportunity to improve their ratings to the minimum level required.

• [20] Secondly, in the 6 months to June 2025, most Uber drivers achieved a satisfaction rating of approximately 92% based on ratings given in 7.2% of all orders on the Uber Eats platform. Ratings can be given from either customers or merchants (such as restaurants offering meal delivery through the platform). Statistically, drivers achieve many more 'thumbs up' than 'thumbs down' ratings. This indicates that for the majority of drivers, an 85% satisfaction rating is both reasonable and achievable.

• [21] In Mr Ali's case, two warnings were given that he was not meeting the minimum average customer satisfaction rating of 85% and that this was necessary to avoid deactivation. He had the opportunity to improve his overall rating from 16 May 2025 to 30 July 2025, including access to information about how to achieve higher ratings. During this period of approximately 6 weeks, Mr Ali received a further 19 ratings: 11 'thumbs up' and 8 'thumbs down'. Reasons for negative ratings were consistent with those given in earlier periods, including being in a rush/unprofessional, items damaged, leaving things in the wrong place and missing instructions.

• [22] The information relied upon by Uber to make its decision was the available data collected through Mr Ali's account on the Uber Driver app. There is no objective basis for considering that the data relied upon by Uber is not an accurate reflection of its records. Acknowledging that subjective user experiences might be reflected in satisfaction ratings and not always in a reasonable way, there is no report made by Mr Ali seeking to explain or dispute customer or merchant ratings during the relevant period.

• [23] Mr Ali gave evidence of interaction with customer support as and when issues arose. There is no documentary record of those interactions. My impression is that these were interactions seeking to resolve, rather than dispute, issues as required. On the evidence, it was reasonable for Uber to consider that Mr Ali's average satisfaction ratings were lower than its Community Guidelines required and that despite warnings given to him, this circumstance continued.

• [24] I am satisfied that Uber complied with section 14 of the Deactivation Code.

• [25] Section 15 (reasonable timeframes): I am satisfied that Uber used reasonable endeavours to ensure that the code process it carried out in relation to Mr Ali was carried out in a reasonable timeframe and that Mr Ali had a reasonable time to exercise his right of response under section 13. The code process was carried out over a period of approximately 2 months. Mr Ali exercised his right to respond to the preliminary deactivation notice within the timeframe provided.

• [26] Section 16 (representation): Mr Ali did not appoint another person to provide him with support or representation in relation to the deactivation.

• [27] Section 20 (communications): All communication with Mr Ali about the proposed deactivation, and the deactivation decision, was through the Uber platform with a copy sent separately to his email address. This was reasonable in circumstances where Mr Ali's primary interaction with Uber was through the Uber Driver app, and the email address used by Uber was provided to it by Mr Ali. There is no evidence that Mr Ali did not have sufficient access to the platform to enable him to access and respond to the communications and information. Mr Ali says he received so many messages from Uber that he did not realise they included important information about his access to the Uber Driver app. No data or other supporting evidence was produced. I accept that Mr Ali likely received various communications from Uber and that many may not have been of particular relevance or interest to him. However, clause 15.1(b) of the services contract put him on notice that formal communications would be sent by Uber either by email to the email address associated with his account or by posting on the portal available to him on the Uber Driver App. This is what occurred in relation to the warnings and deactivation notices. To the extent that Mr Ali did not access communications and information given to him, this was a circumstance of his own making. I am satisfied that Uber complied with section 20 of the Deactivation Code.

• [28] Section 22 (record-keeping): The evidence provided by Uber was consistent with appropriate record-keeping for the purpose of establishing compliance with the Deactivation Code.

• [29] For the reasons above, I am satisfied that Uber complied with the Deactivation Code in relation to the deactivation of Mr Ali's account. Because the deactivation was consistent with the Deactivation Code, Mr Ali has not been unfairly deactivated (s 536LF(c) of the Act). The application for an unfair deactivation remedy must be dismissed.

Ms R Nocka of Dentons Australia for the Respondent.

[1] Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024

[2] Fair Work Act 2009 (Cth), s.536LF

[4] [2025] FWC 2275

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