Fair Work Act 2009

s.536LU - Application for an unfair deactivation remedy

Application for an unfair deactivation remedy - low customer satisfaction rating - non-compliance with the Digital Labour Platform Deactivation Code - whether there was a valid reason for deactivation - deactivation not unfair - application dismissed.

[1] Mr Shaharyar Ali has applied under s 536LU of the Fair Work Act 2009 (Cth) (Act) alleging that he was unfairly deactivated by the respondent, Portier Pacific Pty Ltd T/A Uber Eats. It is not in dispute that Mr Ali was entitled to make an application for an unfair deactivation remedy under s 536LU, that his application was made within 21 days after the deactivation took effect (s 536LW(a)) and that he was protected from unfair deactivation (s 536LW(b))). However, the respondent objects to the application on the basis that it says that it complied with the Digital Labour Platform Deactivation Code (Code).

[2] A person's deactivation will be consistent with the Code if, at the time of the deactivation, the digital labour platform operator complied with the Code in relation to the deactivation (s 536LJ(3) of the Act). For the reasons that follow, I have found that the respondent did not comply with the Code because it failed to use reasonable endeavours to ensure that the process was carried out within a reasonable timeframe (s 15(a) of the Code). However, I am satisfied that the deactivation was not unfair. On that basis, the application is dismissed.

• [3] Mr Ali entered into a services agreement with the respondent on 1 May 2023 and commenced performing work as a delivery person on 16 May 2023. On 6 February 2025, the respondent sent Mr Ali an in-app message informing him that his satisfaction rating was below the minimum threshold for the city of Melbourne. Mr Ali was reminded that he was required to maintain ratings above the minimum satisfaction rating (in Melbourne, 85%) to retain his access to the Uber delivery platform.[1]

• [4] On 6 March 2025, the respondent gave Mr Ali a written deactivation warning[2] that met the requirements of s 8 of the Code. This warning was given because of Mr Ali's low satisfaction rating. At this time, Mr Ali's overall rating was 77%.[3] A final warning was given to Mr Ali by the respondent on 21 March 2025 in relation to these matters.[4] At this time, Mr Ali's overall rating was 76%.[5] This placed him below the respondent's minimum average rating requirement of 85%. Each of these warnings informed Mr Ali that he risked the deactivation of his access to the delivery platform if the issue continued. The exceptions in s 9 of the Code did not apply.

• [5] For deliveries performed between 22 March and 30 May 2025, Mr Ali's satisfaction rating was 84% and his overall rating was 78%.[6] As this remained below the minimum ratings threshold of 85%, the respondent provided Mr Ali with a preliminary deactivation notice that complied with s 11 of the Code on 30 May 2025.[7] The respondent complied with s 12 of the Code when suspending Mr Ali's access to the delivery platform from this date. The respondent was entitled to commence the deactivation process because it met the requirements of s 10(b) of the Code. The respondent considered, on grounds that I consider to be reasonable, that Mr Ali had not, within a reasonable time after the warnings, remedied his below average rating, which remained below the 85% minimum ratings threshold in Melbourne.

• [6] The steps taken by the respondent after issuing the preliminary deactivation notice met the requirements of s 13 of the Code, including by allowing Mr Ali an opportunity to respond to the preliminary deactivation notice, and having a human representative consider his responses, which the respondent submits were provided in writing on 30 May, 5 June, 8 June, 11 June, 18 June and 7 July 2025.[8] Mr Ali requested a discussion with a representative of the respondent, which occurred on 4 June 2025.

[7] Section 14 of the Code provides that after giving a preliminary deactivation notice and complying with the requirements in s 13, a digital labour platform operator must decide whether to (1) take no further action, or (2) terminate the worker's access to the digital labour platform. Its decision must be notified to the employee-like worker in writing as soon as reasonably practicable once made. I am satisfied that the respondent complied with both ss 14(1) and (2) of the Code.

[8] Section 15 of the Code required the respondent to ensure that reasonable endeavours were taken to ensure that the process is carried out within a reasonable timeframe (s 15(a)) and that Mr Ali was given a reasonable time to exercise his right of response under s 13 (s 15(b)). Mr Ali contends that the timeframe between the preliminary deactivation notice and his suspension on 30 May 2025 and the respondent's decision to terminate Mr Ali's access on 10 July 2025 was unreasonably lengthy. I agree. In this case, there is no material before the Commission addressing this matter and on any objective view, the passage of time between 30 May and 10 July 2025 was not reasonable, noting Mr Ali's period of suspension during this time. While I note that the respondent contends that Mr Ali provided written responses to the preliminary deactivation notice on 30 May, 5 June, 8 June, 11 June, 18 June and 7 July 2025, the latter three such responses raised what I consider to be reasonable concerns with the timeframe taken by the respondent to consider his response.

[9] It follows that I am satisfied that Mr Ali's deactivation was not consistent with the Code by reason of the respondent's failure to discharge its evidential burden to demonstrate compliance with s 15(a) of the Code.

• [10] I turn now to consider the merits of Mr Ali's application.[9] Pursuant to s 536LH, in considering whether Mr Ali's deactivation was unfair, the Commission must take into account:

(1) whether there was a valid reason for the deactivation related to the person's capacity or conduct; and

(2) whether any relevant processes specified in the Code were followed; and

(3) any other matter the Commission considers relevant.

• [11] As to whether there was a valid reason for the deactivation, the same language is found is s 387(a) of the Act concerning unfair dismissal applications. For that reason, the Full Bench in Hotak v Rasier Pacific Pty Ltd[10] considered that the same principles should apply in determining whether there was a valid reason within the meaning of s 536LH(1)(a). These principles may be summarised as follows:[11]

(1) In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.

(2) It is not enough for a digital labour platform operator to establish that it had a reasonable belief that the worker engaged in particular conduct.

(3) The digital labour platform operator bears the evidentiary onus of proving that the conduct on which it relies took place.

(4) In cases where allegations of serious misconduct are made, the Briginshaw standard applies so that findings that a worker engaged in the misconduct alleged are not made lightly.

(5) It is necessary to consider whether the digital labour platform operator had a valid reason for the deactivation of the employee-like worker, although it need not be the reason given to the worker at the time of the deactivation.

(6) A 'valid' reason for deactivation is one that is 'sound, defensible or well founded' and not 'capricious, fanciful, spiteful or prejudiced.' A reason that is 'valid' will involve something more than a minor failing or trivial misdemeanour and must be of sufficient gravity or seriousness to justify deactivation.

• [12] The respondent's decision to terminate Mr Ali's access on 10 July 2025[12] was for a reason that I consider to be valid, being Mr Ali's failure to meet the respondent's requirement to maintain the minimum ratings threshold of 85%. In this respect, the respondent's Senior Manager, Industrial Relations, Ms Emilie Fairlie gave evidence in the proceeding that the 85% minimum rating requirement in Melbourne is reasonable, noting that the average minimum rating in Melbourne in the first six months in 2025 was 93%.[13] I accept Ms Fairlie's evidence, which was not the subject of any real challenge. I consider that a failure to meet this platform obligation constitutes a valid reason for deactivation. The requirement to maintain an average customer service rating of at least 85% was objectively reasonable in all the circumstances. Mr Ali was on notice of the requirement and could check his ratings on his profile at any time in the Uber Driver app.

[13] With respect to the question of whether any relevant processes in the Code were followed (s 536LH(1)(b)), I note that absent the respondent's non-compliance with s 15(a) of the Code, all other relevant aspects of the Code were met, as the matters at [4] to [7] of this decision demonstrate.

• [14] As to any other relevant matters (s 536LH(1)(c)), Mr Ali says that after receiving the 6 March 2025 warning, he 'immediately improved,' which was noted by the respondent on 28 March 2025 with advice that he was 'trending positive.'[14] However, on 16 March 2025, Mr Ali says that he suffered a leg injury and his weekly trips for the respondent 'reduced from over 100 to around 15.' [15] Mr Ali's position is that because he was completing fewer trips, 'even a single thumbs down started to have a much larger impact' upon his rating,[16] which Mr Ali acknowledges dropped to 78%.[17] Mr Ali says that the respondent did not provide him with sufficient time to fully address the issue[18] and that on 16 May 2025, the respondent had acknowledged that he was again 'trending positive.'[19]

• [15] Further, Mr Ali says that his account was deactivated on 30 May 2025 'without any final warning' while he was asleep and he 'was not given the opportunity to respond.' Mr Ali says that his 'significant injury' limited his ability to complete deliveries and was not taken into account before his account was deactivated.[20]

• [16] Mr Ali's position is that he 'regularly reported unfair ratings to Uber Support when they were due to merchant delays or abusive customers' and was told by the respondent that the ratings would not affect him 'but they later did.'[21] Mr Ali points to factors involving customers requiring delivery on the 50th floor, adding to delivery time, and merchants regularly delayed by 10 to 15 minutes resulting in customers unfairly providing him with a 'thumbs down.' Mr Ali further contends he experienced racism and poor feedback based on prejudice and not on service.[22]

• [17] Ms Fairlie gave evidence that she reviewed the respondent's business records which demonstrated that at the time of the deactivation Mr Ali's rating placed him in the bottom