Fair Work Act 2009

s.536LU - Application for an unfair deactivation remedy

Application for an unfair deactivation remedy - Application made out of time under s 536LU(3) of the Act - Date deactivation took effect - Extension not granted - Application dismissed

• [1] Mr Simranpreet Singh was a driver with Uber. On 1 May 2025, Mr Singh could not access his account. He received a notification that said that his account was restricted but that he could appeal that decision by using a link. He used the link, and he also called 'Uber,' to try to get his account reactivated. On 29 May 2025, Mr Singh received an email that said his account had been reviewed and it would remain deactivated. That email also said the decision was final.

• [2] On 17 June 2025, Mr Singh applied to the Fair Work Commission for an unfair deactivation remedy under s 536LU of the Fair Work Act 2009 (Cth).

• [3] The Act says that applications for unfair deactivation remedies must be made within 21 days after the deactivation took effect. If an application is not made within 21 days, then the Commission may extend time for the making of the application if the Commission is satisfied that there are exceptional circumstances.

• [4] In this decision, I conclude that Mr Singh's deactivation took effect on 1 May 2025. This means that his application on 17 June 2025 was 26 days after the end of the required time period. I do not consider that there are exceptional circumstances to allow Mr Singh a further period of time to file his application. I therefore dismiss his application. My reasons follow.

• [5] In his application, Mr Singh named Uber Australia Pty Ltd as the digital labour platform operator. Rasier Pacific Pty Ltd responded to the application, asserting that it was the proper name of the party that operated the digital labour platform under which Mr Singh performed work, being the Uber Driver Platform.

• [6] At the determinative conference, Mr Singh did not agree that Rasier Pacific Pty Ltd is the proper respondent or that he had performed work for Rasier Pacific. Mr Singh did not agree to change the name of the respondent in his application. It is understandable why he did not think Rasier Pacific Pty Ltd was the Respondent. All Mr Singh's communications with the respondent are marked with Uber, or from "Uber Support," or an email address with Uber, but not 'Rasier Pacific' in it.

• [7] I requested that the respondent provide me with a copy of the Services Agreement and an invoice of payment to Mr Singh. Having reviewed those documents, I am of the view that the name of the proper respondent which is the operator of the digital labour platform that entered the services contract under which Mr Singh performed work is Rasier Pacific. Under s 586(a)of the Act, I order that the name of the respondent to this application be amended to Rasier Pacific Pty Ltd (ABN:27 622 365 833).

• [8] Section 536LG of the Act defines 'deactivated':

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.

• [9] There are 3 elements of the definition, and all of them are required to be met (see Bandameeda v Amazon Commercial Services Pty Ltd [2025] FWCFB 182 at [38]).

• [10] There is no dispute that Mr Singh performed work through or by means of the digital labour platform, known as the Uber Driver Platform.

Element 2 - Modified, suspended or terminated access

• [11] There is also no dispute that on 1 May 2025, the respondent took some action that prevented Mr Singh from accessing his account.

• [12] Mr Singh's evidence is that on 1 May 2025, he could not access his account. Mr Singh also said that he telephoned Uber on the same day that he realised he could not access his account, and he spoke to someone who told him that his account had been deactivated. Mr Singh does not speak fluent English and gave his evidence via an interpreter. Mr Singh says that his wife assisted him to communicate with the respondent.

• [13] Shortly after, he received a notification via the platform. The notification included a link for him to click to have the decision reviewed, which he did. Mr Singh's and the respondent's evidence demonstrates that a review was started on 4 May 2025. The respondent also provided evidence from its communications with Mr Singh that demonstrates him saying that his account has been blocked and requesting that his account be reviewed. Mr Singh requested that his account be reviewed, and requested updates from the respondent on 15, 16 and 19 May 2025.

• [14] There is no dispute that Mr Singh received an email on 29 May 2025 that said his deactivation was final. This is the date that Mr Singh says his deactivation took effect, because that is when he knew it was final. However, by using the words 'modified' and 'suspended,' the Act clearly contemplates that a deactivation can include temporary deactivation (Bandameeda at [37]).

• [15] Mr Singh's evidence is that he has not performed work for Uber since April 2025 and that this was because he could not access the Uber Driver Platform. The respondent provided payment records that show the last payment it made to Mr Singh was on 5 May 2025.

Conclusion about when Mr Singh was deactivated

• [16] I find that Mr Singh was deactivated on 1 May 2025, as this was when his access to the Uber Driver Platform was modified, suspended or terminated and he was not able to, and did not, perform work under his services contract with the respondent from that date.

• [17] The respondent did not provide Mr Singh with any warning or notice. The date that Mr Singh's deactivation took effect was therefore1 May 2025. Mr Singh's application was not filed within 21 days and can only continue if I allow a further period in accordance with s 536LU(3)(b) of the Act.

• [18] The Commission has discretion to allow a further period within which to make unfair deactivation applications if satisfied that there are exceptional circumstances taking into account the factors in s 536LU(4):

(a) the reason for the delay; and

(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

(e) the merits of the application; 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.

• [19] While these provisions are new, they mirror the factors for extensions of time for making unfair dismissal remedy applications (s 394(3)) and general protections dismissal applications (s 366(2)). I will apply the principles applicable to extension of time matters in the context of unfair dismissal remedy and general protections dismissal applications to this matter.

• [20] Case law in relation to the meaning of 'exceptional circumstances' establishes the following (see Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975at [13] and Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901at [39]):

• the Commission must consider all of the circumstances;
• the phrase's ordinary meaning means out of the ordinary, or unusual, or special, or uncommon;
• but the phrase does not require circumstances to be unique, nor unprecedented, nor even very rare;
• a single event can be exceptional;
• a combination of factors or events which, individually are not exceptional, but viewed together could be viewed as out of the ordinary, unusual, special, or uncommon
• whether there are exceptional circumstances requires a consideration of all the relevant matters, assigning appropriate weight to each.

• [21] The relevant delay is the period between the end of the time limit and the date the application was filed. The relevant delay does not include 21 days after the deactivation took effect. However, circumstances and events before the end of the 21 days may be relevant to the reasons for the delay after 21 days. In this matter, the relevant delay is from 23 May 2025 to 17 June 2025.

• [22] Mr Singh's key reason for the delay was that he was participating in the respondent's internal review process. The reasons Mr Singh gave for the delay after he learned his deactivation was final were that he was shocked by the deactivation, experiencing stress and panic, and that he was ignorant of the Commission's process. Mr Singh says he was "stressed and in a panic," as he was unable to work. Mr Singh then spoke with friends, and learned from them about the Commission and made this application.

• [23] One of Mr Singh's reasons for the delay in filing his application was that he was engaged in the respondent's internal review process and awaiting its outcome. Mr Singh was also aggrieved that he did not hear anything from the respondent, despite notifications or emails that informed him that the review would be completed "in 7 - 10 business days, but it may take longer." Mr Singh was clearly frustrated by this process and aggrieved by how long it took for the respondent to respond to him.

• [24] The respondent's review process is deficient. A person may request a review by clicking a link. After this, it is not clear what the respondent actually does prior to informing the applicant that the decision is final.

• [25] In Mr Singh's circumstances, the respondent did not inform him of its reasons for a decision that deprived him of his ability to make a living. The only communication he received that included a reason was the following:

"In accordance with our policies around multiple accounts, your access has been removed."

• [26] A communication from the respondent does invite Mr Singh to provide further information. However, where the respondent does not provide any specifics about its reasons, it would be challenging for any person to provide relevant information that could influence or lead to a reversal of the initial decision.

• [27] Mr Singh engaged in the respondent's internal review process within the 21 days after his deactivation took effect. He learned of the outcome one week after the end of the 21 days but then did not file his application for a further 3 weeks.

• [28] I have a lot of sympathy for Mr Singh, and the frustrating situation he found himself in. I understand too why he felt he needed to await the outcome of the review process. However, I do not consider that he has provided acceptable reasons for the delay beyond the 21-day period.

• [29] In relation to the internal review processes, the respondent relied upon a decision of the Full Bench in Gao v Department of Human Services [2011] FWAFB 5605 at [10], where the Bench observed that a request for further review of the dismissal could have been sought after an application is lodged and that the request for a further review "did not constitute a circumstance excusing the delay in lodging the application."

• [30] In Gao, the applicant filed his unfair dismissal remedy application 7 months after the dismissal took effect in April 2010. He requested a review of the decision to dismiss him in July 2010 (after the expiry of the then 14-day period for making applications for an unfair dismissal remedy) and again in December 2010, shortly before making his application to the Commission. Unlike in this matter, the delay is significant in Gao. Further, there appears to be little basis for the applicant in Gao to believe that he should await an outcome; he hears nothing from the Department when he initially asked for a review and the first time he asked for a review was outside the time limit.

• [31] Mr Singh asked for a review immediately. He was initially informed that the review would take 24 hours (on his first call with Uber), then 3 business days (in a notification dated 4 May 2025), then 7-10 business days but that it might take longer (in messaging communications). He was told on multiple occasions that he would be informed of the outcome. As misguided as he was, there was a basis for Mr Singh to think that the deactivation might be reversed once he heard from the respondent. I am of the view that Mr Singh awaiting an outcome is an acceptable reason for part of his delay.

• [32] I do not, however, consider Mr Singh's reasons relating to being shocked and experiencing stress to be acceptable reasons for the balance of his delay. Assertions about stress and shock are not of themselves exceptional circumstances (See Mamo v ICLED Australia Pty Limited T/A SignsNational Group [2021] FWC 3903 at [24] - [25]). Mr Singh did not provide cogent evidence about how stress and shock may have impacted his ability to make an application (Underwood v Terra Firma Pty Ltd [2015] FWCFB 3455 at [16]).

Ignorance of time limit and unfamiliarity with the Commission's jurisdiction

• [33] In the context of unfair dismissal and general protections applications, the Commission has said ignorance of the time limit, unfamiliarity with the Commission's processes and language barriers are not necessarily acceptable reasons for the delay (Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14]). Some of the commentary in cases where ignorance is relied upon refers to the ready availability of information about unfair dismissal applications.

• [34] This is a different matter. Unfair deactivation is an entirely new jurisdiction of the Commission's. Further, there are many prior decisions where Uber drivers have unsuccessfully attempted to access the Commission's unfair dismissal jurisdiction. I am of the view that ignorance and unfamiliarity should be factored in differently in the context of unfair deactivation applications. In Mr Singh's matter, however, his ignorance of the Commission's new jurisdiction was one part of his reasons for the delay but I am not satisfied that it is an acceptable explanation for the delay.

• [35] In the context of unfair dismissal and general protections dismissal applications, the absence of an acceptable explanation for any part of the delay would usually weigh against a finding of exceptional circumstances. A credible explanation for the entirety of the delay would usually weigh in favour of a finding of exceptional circumstances. However, all the circumstances must be considered (see Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901at [39]). While Mr Singh has provided an acceptable reason for part of the delay, he has not provided an acceptable reason for the majority of the period of the delay. I consider that this factor does not weigh in favour of a finding of exceptional circumstances.

536LU(4)(b) - Whether first became aware of deactivation after it occurred

• [36] Mr Singh clearly first became aware of the deactivation after it occurred. He gave cogent evidence that he knew he was prevented from accessing the Uber Driver Platform on 1 May 2025 and that he did not work after April 2025. I consider that this factor does not weigh in favour of a finding of exceptional circumstances.

536LU(4)(c) - Action taken to dispute deactivation

• [37] In the context of unfair dismissal and general protections dismissal applications, this factor is about whether the respondent is on notice that the applicant actively contests the decision, and so the action must be taken after the deactivation took effect (see Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, at 299 and Nicolas JR v Nortask Pty Ltd [2014] FWC 5324 at [67]). Mr Singh very clearly actively contested the deactivation. He requested a review immediately and followed up on multiple occasions. I consider that this factor weighs in favour of a finding of exceptional circumstances.

536LU(4)(d) - Prejudice to Digital Labour Platform Operator

• [38] The respondent submitted that there was prejudice to it because of the cost that it would incur in having to respond to Mr Singh's application if an extension of time was granted. The period of the delay is short. I do not consider that there is any greater prejudice that the respondent would experience if Mr Singh's application was granted an extension, than if he had filed within the 21-day period. However, an absence of prejudice is not enough. I consider that this factor neither weighs in favour nor against a finding of exceptional circumstances.

• [39] My assessment of the merits of a substantive application for the purposes of the question before me (whether to grant an extension of time) is primarily whether the applicant has an arguable case. The respondent submits that it deactivated Mr Singh due to his serious misconduct; Mr Singh denies that the misconduct occurred. There is clearly a contest of facts, that would require that evidence is tested.

• [40] I consider that this factor neither weighs in favour nor against a finding of exceptional circumstances.

536LU(4)(f) - Fairness between person and other persons in similar position

• [41] Neither party made relevant submissions in relation to this factor.

• [42] The respondent submitted that the Code processes were not relevant as its deactivated Mr Singh because of his alleged serious misconduct. Similarly to the merits factor, I cannot reach a firm conclusion on this factor without hearing and testing evidence. I consider that this factor neither weighs in favour nor against a finding of exceptional circumstances.

• [43] I have found that one factor weighs in favour of a finding of exceptional circumstances (the action taken by Mr Singh to dispute his deactivation). I have found that most factors are neutral (prejudice to the employer; merits, fairness and Code processes). Last I find that 2 factors weigh against a finding of exceptional circumstances (the reasons for the delay and when Mr Singh first became aware of his deactivation). Considering the factors individually and collectively, I am not satisfied that there are exceptional circumstances. I cannot extend time to allow this application to be made.

• [44] I order that Mr Simranpreet Singh's application for an unfair deactivation remedy under Fair Work Commission matter U2025/130, filed on 17 June 2025, be dismissed.

Ms J Leeds, of Dentons Australia, with permission, on behalf of the Respondent.

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