s.536LU - Application for an unfair deactivation remedy

Application for an unfair deactivation remedy - application filed out of time - applicant not a 'regular employee' - application dismissed.

• [1] On 15 October 2025, Syed Mohammed Abbas (the Applicant) filed an application with the Fair Work Commission (the Commission) pursuant to s.536LU of the Fair Work Act 2009 (the FW Act) for an unfair deactivation remedy. The Applicant claims that he was unfairly deactivated by Rasier Pacific Pty Ltd T/A Uber (the Respondent) on 7 August 2025.

• [2] The Applicant signed his first services agreement with the Respondent on 25 February 2020, and his most recent services agreement with the Respondent on 4 September 2024.

• [3] The Applicant was deactivated on 7 August 2025, and lodged his unfair deactivation claim with the Commission on 15 October 2025, some 48 days after the statutory time limit of 28 August 2025.

• [4] I note that the Applicant first challenged his deactivation with the Respondent on 11 September 2025, some two weeks after the statutory time limit had lapsed.

• [5] The Respondent has challenged the jurisdiction of the Commission to deal with this application on three grounds:

(i) The Applicant lodged his application out of time;

(ii) The Applicant was not a regular employee for at least the six months prior to his deactivation; and

(iii) The Respondent complied with the Digital Labour Platform Deactivation Code when deactivating the Applicant.

• [6] An unfair deactivation remedy application must be made within 21 days after the deactivation took effect, or within such further period as the Commission allows.[1] The Commission may extend the period for filing, if it is satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, I must consider the factors set out in subsections 536LU(4)(a)-(g) of the FW Act, as outlined below.

• [7] The Applicant submitted, without any documentary evidence, that he travelled overseas on 2 August 2025 to care for his father before and after gallbladder surgery. Further, the Applicant's grandmother passed away on 12 August 2025. The Applicant claimed that his grandmother had raised him since he was born. The Applicant remained overseas until 7 September 2025.

• [8] Upon returning to Australia, the Applicant claims that he was experiencing stress, anxiety and emotional fatigue. I note that the Applicant has not tabled any evidence in relation to his father's operation or his mental health conditions since his return to Australia.

• [9] I note that the Applicant received his deactivation notice on 7 August 2025. Relevantly, the Applicant claims that he was not aware of his unfair deactivation rights until after the statutory time limit had lapsed.

• [10] Finally, the Applicant claims that he could not lodge his application whilst he was overseas.

• [11] The meaning of 'exceptional circumstances' was considered by a Full Bench of the Commission in Nulty v Blue Star Group Pty Ltd,[2] where it was 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."

• [12] Whilst the decision in Nulty v Blue Star was considered in the context of a general protections dismissal application, it remains the relevant precedent when considering whether 'exceptional circumstances' exist to warrant an extension for filing an unfair deactivation claim.

• [13] It is not in dispute that the Applicant was not aware of his unfair deactivation rights, however, ignorance of the provisions of the FW Act have been held in the past not to be grounds for establishing an 'exceptional circumstance'.

• [14] I note that the Applicant had been made aware of the potential for his deactivation from the Uber app as early as 23 July 2025, when he was issued a 'Temporary Suspension Notice', in response to a complaint from a rider that he had been physically aggressive. The Applicant responded to the 'Temporary Suspension Notice' message on that same date. The Applicant was advised on 24 July 2025 that his access to the app would remain restricted whilst the Respondent reviewed the information gathered in relation to the incident. The Applicant and the Respondent exchanged messages in relation to his restricted access up to 30 July 2025.

• [15] The Applicant was then provided with a Preliminary Deactivation Notice on 30 July 2025, which advised that his account was at risk of deactivation which basically acted like a 'show cause letter':

"Preliminary deactivation notice: Your account is at risk of deactivation

This is [redacted] from the Community Operations teams.

You're receiving this message because a review of your account found that you have previously been reported for multiple instances of sexually inappropriate behaviour and physical aggression, which is a direct violation of your agreement with Uber and we are considering terminating your access to the Uber Driver app.

Reports of behaviour of this nature are extremely concerning and are in violation of our Uber Community Guidelines, before a final decision is made, we are providing you with the opportunity to respond to this preliminary deactivation notice. During this period, we have suspended your access to the platform which takes effect immediately from the time and date of this notice 30 July 2025. Suspension of your access means that you will be unable to accept or complete trips/deliveries during the suspension period.

• [16] The Applicant responded to this notice, providing 'further supporting information' on 1 August 2025 as follows:

"New information submitted on Aug 01, 2025 05:09:12PM UTC:

• Details: Additionally, I would like to inform you that I am traveling to India tomorrow and will be returning by start of the next month. I remain fully committed to resolving this matter and am happy to assist in any way I can during this time. If I am not reachable by phone, please contact me through the app or via email, and I will make sure to respond promptly."

• [17] I note that the Applicant did not refer in this response that he was travelling overseas to care for his father or that such care would be so debilitating that he would not be able to respond. On the contrary, the Applicant indicated that he would respond via the app or via email, therefore, confirming that he had internet access at his location overseas. As a result, the Applicant could have filed his unfair deactivation application inside the statutory timeframe.

• [18] I am satisfied that the Applicant did not have an exceptional circumstance which would warrant the granting of an extension of time.

• [19] I consider that this factor weighs against the granting of an extension.

Whether the Applicant became aware of the deactivation after it had taken effect

• [20] The Applicant was issued the Final Deactivation Notice on 7 August 2025, which he received electronically via an in-app Uber message. The Applicant had access to his Uber app whilst overseas, and he has not made any submissions to suggest that he did not receive the notice on this date.

• [21] I consider that this factor weighs against the granting of an extension.

Action taken by the Applicant to dispute the deactivation

• [22] As noted above, the Applicant did not take any steps to dispute his deactivation until 11 September 2025.

• [23] Even if the statutory timeframe was applied from this date, his application was still filed out of time.

• [24] I consider that this factor weighs against the granting of an extension.

• [25] The Respondent did not make any material submissions in relation to any prejudice that it would suffer if an extension was granted.

• [26] I consider this to be a neutral factor.

• [27] Whilst the FW Act requires me to take into account the merits of the application in considering whether to extend time, in the matter of Kornicki v Telstra-Network Technology Group (Kornicki)[3] the Commission considered the principles applicable to the extension of time discretion under the formers.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."

• [28] For the purposes of determining whether to grant an extension of time the Commission "should not embark on a detailed consideration of the substantive case".[4]

• [29] I note that the Applicant had five allegations of misconduct against him. The Applicant denies the seriousness of these allegations. However, I note that the Respondent conducted an enquiry into each of these allegations.

• [30] Following the decision in Kornicki, I make no finding in relation to the merits of the application. I consider this to be a neutral factor.

Fairness as between the Applicant and other persons in a similar position

• [31] No submissions were made in relation to 'fairness'.

• [32] I consider this to be a neutral factor.

Any processes specified in the Digital Labour Platform Deactivation Code

• [33] The Respondent submitted that it complied with the Code in deactivating the Applicant's account.

• [34] I consider this to be a neutral factor.

• [35] Taking into account all of the matters set out in subsections 536LU(4)(a)-(g) of the FW Act, I am satisfied and find that the Applicant has not established an exceptional circumstance that would warrant the Commission granting an extension of time for him to file his application.

• [36] Therefore, the first jurisdictional objection of the Respondent is upheld.

• [37] If I am wrong and the Applicant did have an exceptional circumstance to warrant an extension of time, I find that the Applicant was not a regular employee in accordance with s.536LD(c) of the FW Act. Relevantly, the Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024 (the Code) provides the circumstances in which work is performed on a regular basis, at section 18 as follows:-

"(2) An employee-like worker who completes, on average, 60 hours of paid work each month through or by means of a digital labour platform is taken to perform that work on a regular basis.

(3) An employee-like worker who completes, on average, paid work on 3 days of each week through or by means of a digital labour platform is taken to perform that work on a regular basis."

• [38] The Respondent submitted that in the 6 months prior to deactivation, the Applicant only completed, on average, 27.1 hours of paid work each month and completed paid work, on average, on 2.03 days per week.

• [39] The Respondent provided a log of the Applicant's trips from 8 February 2025 to 20 July 2025.[5] The Respondent provided a collation of this information as follows:[6]

• [40] The Respondent also provided a table of the number of days worked over the 6 months prior to deactivation, which clearly indicates that the Applicant worked anything from 0 to 3 days per week over the 26-week period:[7]

• [41] On the other hand, the Applicant simply stated that he worked more hours and days than identified by the Respondent. It is not in dispute that the Applicant worked for the Respondent on a part time basis. The Applicant claims that he worked weekends, public holidays and periods of high demand, but provided no evidence as to the actual days or hours that he worked.

• [42] I am satisfied and find, based on the evidence that was provided by the Respondent, which was not contradicted by any documentary evidence from the Applicant, that the Applicant was not working as an employee-like worker on a regular basis for the respondent.

• [43] Therefore, the second jurisdictional objection of the Respondent is upheld.

• [44] Based on my findings above, the Applicant's unfair deactivation application cannot proceed.

• [45] As a result, Mr Abbas's application is dismissed.

[1] Fair Work Act 2009 (Cth) s.536LU(3)(a) and (b).

[2] [2011] FWAFB 975.

[3] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[4] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

[5] Witness Statement of Ms Tierney dated 14 November 2025, Annexure J.

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