Thomas Alver [2026] FWC 1181 (8 April 2026)

s.536LU - Application for an unfair deactivation remedy

Unfair Deactivation Application under s 536LU - extension of time refused - application dismissed

[1] On 26 March 2026 I dismissed the applicant's application and delivered my ex tempore reasons on transcript. Below are my reasons revised from transcript.

[2] On 17 December 2025 Mr Alver made an application for an unfair deactivation remedy under s 536LU of the Act. Mr Alver's application form indicated that he was notified of his deactivation on 25 November 2025 and that the deactivation took effect on 25 November 2025. As such, the application was on the face of the form, made one 1 day outside the 21-day period set out in s 536LU(3)(a). However, Mr Alver gave no indication in his application form that his application was out of time.

[3] The application was listed for a Determinative Conference to deal with extension of time on 5 February 2026. A few hours before the Determinative Conference, the applicant requested an adjournment of the matter, claiming a pressing personal circumstance.

[4] The matter was listed for hearing on 26 March 2026 regarding an extension of time. A listing notice was emailed to the parties on 16 February 2026. The parties were then sent an email on 25 March 2026 reminding them of the listing for 26 March 2026.

[5] However, the applicant did not attend the Determinative Conference on 26 March 2026. The respondent appeared.

[6] I am satisfied that the applicant has been given proper notice of the listing. The applicant did not provide any explanation for his non-attendance. The Commission attempted to phone the applicant shortly after the listing was due to commence. The applicant did not answer, and a voicemail was left asking him to attend the listing. The applicant did not attend.

[7] Despite what I have set out in paragraph [1] above, it is necessary for me to initially address whether the application is out of time.

[8] On 20 January 2026, the applicant sent the Commission an email claiming the deactivation took effect on 26 November 2025. This is inconsistent with what he said in his application, which was that the deactivation took effect on 25 November 2025.

[9] On 3 February 2026, the respondent provided the Commission an email to the applicant sent on 25 November 2025 notifying him of his deactivation effective immediately. The respondent has confirmed that the email was sent to an email address that the applicant had nominated for receipt of communications from the respondent.

[10] On 5 February 2026, the applicant sent the Commission an email claiming that the deactivation date was "definitely the 25th" but now claiming that he lodged his application under s 536LU in the Commission on 16 December 2026. Attached to this email was what the applicant claimed was a screenshot of a lodgement email to the Commission purported to be sent on 16 December 2025.

[11] However, the record held by the Commission shows clearly that Mr Alver lodged his application in the Commission by email on 17 December 2025. I note that the applicant indicated in his 20 January 2026 email to the Commission that he lodged his application on 17 December 2025.

[12] Consequent on the above matters, I am satisfied Mr Alver was deactivated effective 25 November 2025 and that the application his application was made on 17 December 2025. Therefore, Mr Alver's application is one day out of time.

[13] Pursuant to s 536LU(4), the Commission has a discretion to accept an unfair deactivation application outside of the 21-day period after a deactivation took effect. However, that discretion is only available to the Commission if it is satisfied that there are exceptional circumstances, taking into account the various matters set out under s536LU(4).

[14] The bar of exceptional circumstances is a high one and must be assessed taking into account the various considerations set out in s 536LU(4). Any one or a combination of those considerations may give rise to a conclusion of exceptional circumstances. Consequently, I will turn to consideration of whether there are exceptional circumstances.

[15] I note that the applicant has not attended the Determinative Conference today. Furthermore, none of his written communications to the Commission specify a reason for the delay. I note also that the applicant has given shifting accounts of the effective date of the deactivation and the date of lodgement of the application.

[16] Consequently, I am not satisfied that there is any acceptable explanation for the delay. This consideration weighs against the grant of any extension of time.

536LU(4)(b) whether the person first became aware of the deactivation after it had taken effect

[17] On the material before me, it would appear that the applicant became aware of the deactivation on or shortly after 25 November 2025.

[18] I regard this matter as a neutral consideration.

536LU(4)(c) any action taken by the person to dispute the deactivation or termination

[19] The respondent contends that the applicant took no action to dispute the deactivation other to file his unfair deactivation application. I accept that unconverted contention.

[20] Consequently, this matter weighs against the grant of an extension of time.

536LU(4)(d) prejudice to the regulated business (including prejudice caused by the delay)

[21] I note that the application is one day out of time.

[22] I do not consider that there would be any prejudice to the respondent from an application being one day out of time. I regard this matter as a neutral consideration.

[23] The respondent has submitted that the applicant was deactivated due to repeated and serious service failures and ongoing breaches of his agreement with the respondent, including sustained performance and conduct issues across 2025. The respondent submits that this culminated in multiple incidents of unresponsiveness and non-attendance. Question 3 of the respondent's F89A contains various matters which seek to make good that proposition.

[24] I do note that the matters referred to by the respondent in relation to non-attendance and unresponsiveness are consistent with the experience of the Commission in endeavouring to deal with the applicant's extension of time.

[25] In the circumstances, I am prepared to consider that the application, has no merit.

536LU(4)((f) fairness as between the person and other regulated workers in a similar position

[26] There is not relevant circumstance which goes to this the fairness consideration.

[27] I regard this matter as a neutral consideration.

536LU(4)((g) any processes specified in the Digital Labour Platform Deactivation Code

[28] There is not specific submission before me regarding this matter, albeit that it is generally put by the respondent that it has given the applicant various warnings in relation to his conduct.

[29] Therefore, I regard this matter as a neutral consideration.

[30] Having considered the above matters, I am satisfied that none of the matters set out in s 536LU(4), either alone or considered in combination, give rise to any exceptional circumstance. There is therefore no discretion enlivened to grant an extension of time.

[31] Consequently, on 26 March 2026 I ordered that the application be dismissed.

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