Umair Ayyub v Portier Pacific Pty Ltd t/a Uber Eats [2026] FWCFB 81

[2026] FWCFB 81

Umair Ayyub v Portier Pacific Pty Ltd t/a Uber Eats [2026] FWCFB 81 | Case summary | Zoe

[6]

[1] Mr Umair Ayyub, the appellant in this matter, was born in 1993 in Pakistan. His first language is Urdu, but he gained some exposure to the English language though watching television and movies when growing up. He subsequently learnt English prior to coming to Australia in December 2017 on a student visa. He enrolled as a student in Information Technology and Cybersecurity at Western Sydney University. He married in January 2025. He currently lives in Canberra, and is on a Temporary Graduate (subclass 485) visa, which allows international students who have recently graduated in Australia to continue to live, work and study in Australia and to explore pathways to permanent residency.

[2] From September 2018 until May 2025, Mr Ayyub earned income by using his own car to work on a digital delivery platform operated by the Uber group of companies in Australia (Uber Group). The technology for this platform is owned and licensed by Uber Technologies, Inc. (Uber), and various entities in the Uber Group use this platform for the provision of passenger services and the delivery of meals, grocery items and parcels. The platform is accessible by the providers and users of the services through smartphone apps. Mr Ayyub used his earnings from his work with the Uber platform to support himself in Australia, to provide remittances to his family in Pakistan and, since his marriage, to support his wife.

[3] Mr Ayyub initially worked as a passenger driver on the 'UberX' part of the digital platform in 2018 using his own car. He undertook over 18,000 trips on the platform and achieved a 4.87 star customer rating. After a series of incidents involving abusive customers, which Mr Ayyub reported but without any meaningful action being taken in response, he decided to transfer to the 'Uber Eats' business operated by the Uber Group because he considered that this would provide a safer working environment albeit result in lower earnings.

[4] The Uber Eats business operates by customers accessing the Uber delivery platform through the Uber Eats app. Through this app, consumers can order food and other items from restaurants, supermarkets and other businesses (merchants) and have the order delivered to an address nominated by them. Delivery is effected by delivery drivers who have entered into a services contract with Portier Pacific Pty Ltd, the respondent to this appeal, and Uber. Delivery drivers access the platform by a separate app. Once an order is made and accepted by a merchant, the respondent offers the delivery job to a nearby driver, who may choose to accept it via the driver app.

[5] One feature of the customer app for Uber Eats is that the customer can rate their delivery driver using a thumbs-up or thumbs-down button. The customer can also, if they rate the driver, select a reason for their rating using a number of pre-defined tags. The driver's app shows their 'satisfaction rating', being the percentage of positive thumbs-up ratings which they have received out of all rated jobs. Only about 7.2 per cent of all Uber Eats deliveries are rated by customers.

[6] On 21 February 2025, the respondent sent Mr Ayyub a notice advising him that he was not meeting the minimum average satisfaction rating for Canberra of 85 per cent. Mr Ayyub had not previously been advised by the respondent that a minimum rating of 85 per cent existed. His rating at that time was 81 per cent. On 21 March 2025, the respondent sent Mr Ayyub a further notice advising him that his satisfaction rating remained below 85 per cent and warning that, if this continued, he was at risk of being 'deactivated' - that is, denied access to the Uber Eats driver app. On 16 May 2025, Mr Ayyub received a 'final' warning to similar effect as the 21 March 2025 notice. However, on the same day he was separately advised that he was 'trending well towards a positive satisfaction rating'. On 30 May 2025, Mr Ayyub was sent a 'preliminary deactivation notice' (PDN) which advised him that because his rating had remained below the 'minimum average rating in your city', his access to the Uber Eats platform was immediately suspended and consideration was being given to his permanent deactivation. He was invited to respond to this notice by 'provid[ing] an explanation or relevant information' within seven days or by requesting a discussion with an Uber Eats representative within two days.

[7] Mr Ayyub took advantage of both these opportunities, but to no avail. On 8 July 2025, he was advised that he had been deactivated. By the time of his deactivation, he had performed over 5,856 deliveries for Uber Eats.

[8] On 29 July 2025, Mr Ayyub filed an application for an unfair deactivation remedy under s 536LU of the Fair Work Act 2009 (Cth) (FW Act). He was represented in this application by the Transport Workers' Union of Australia (TWU). His application was heard by Deputy President Dean on 20 November 2025. On 15 January 2026, the Deputy President issued a decision [2026] FWC 108 in which she found that Mr Ayyub's deactivation was not unfair and dismissed his application.

[9] Mr Ayyub has appealed the Deputy President's decision and order. For the reasons which follow, we grant permission to appeal, uphold the appeal, and quash the Deputy President's decision and order. We further make an order pursuant to s 536LQ(1) of the FW Act requiring Mr Ayyub's reactivation by the respondent. We also direct Mr Ayyub and the respondent to confer as to the quantum of an order for lost pay to be made pursuant to s 536LQ(3).

[45]

[22] Pursuant to s 536LJ(1), the then Minister for Employment and Workplace Relations made the Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024 (Code) on 3 December 2024. The Code came into effect on 25 February 2025. The operative parts of the Code are reproduced in Annexure A to this decision. We shall set out the relevant provisions of the Code in due course, but, in broad summary, the Code provides as follows. Part 2 of the Code establishes a process by which a worker may be deactivated from a digital labour platform (code process). Section 7 of the Code identifies the circumstances in which the code process applies. Section 8 (in Division 2 of Part 2) provides that a 'deactivation warning' (Warning) must generally be provided to a worker notifying them that they risk being deactivated from the platform 'for a reason related to the worker's conduct or capacity', and specifies the mandatory content of the Warning. This includes, in s 8(2)(a), specification of 'the reason, relating to the ... worker's conduct or capacity, for which it is given' and, in s 8(2)(c), a statement concerning the worker's capacity to seek assistance or support in relation to the Warning. Section 8 operates subject to exceptions specified in s 9 which are not relevant to this appeal.

[23] Division 3 of Part 2 of the Code provides for the process for deactivation. Section 10 sets out when Division 3 applies, and includes a requirement that the operator 'considers, on reasonable grounds, that deactivation of the worker is justified' for one of three prescribed reasons. Section 11 provides that, if the Division applies, the operator must give the worker a PDN and prescribes the content of such a notice. Section 12 allows the operator to modify or suspend access to the platform if Division 3 applies. Section 13 sets out the steps to be taken once the PDN is issued and provides for a procedure by which a worker may respond to a PDN and have their response considered by the operator and subjected to further inquiries. Section 14 provides for the available outcomes of the operator's consideration and inquiries, including termination of the worker's access to the platform. Section 14(4) specifically provides that the operator may terminate access only if the reason for the termination is a 'valid reason' and 'the operator considers on reasonable grounds that the reason has been established'. Section 14(5) relevantly provides that if the operator decides to terminate the worker's access to the platform, it must provide the worker with a 'final deactivation notice' to that effect 'as soon as reasonably practicable', and prescribes the content of such a notice.

[24] Division 4 of Part 2 of the Code sets out matters relating to the code process generally and, in s 16, prescribes the worker's right to support or representation in the process. Part 3 of the Code set out matters relating to deactivation generally. The only provision of relevance is s 19, which sets out a range of matters which may constitute a 'valid reason' for deactivation of a worker for a platform. These include, in s 19(2), a failure or refusal on the part of the worker to meet any of a number of specified requirements, to the extent that the requirement is reasonable and is known to the worker as a result of communication from the operator or otherwise. These requirements include, in s 19(2)(c), 'the operator's standards or requirements in relation to quality, service level or performance' and, in s 19(2)(e), 'any other legally binding requirements on the workers' use of the platform...'. Section 19(17) makes it clear that the requirements specified in the section are not intended to be exhaustive.

[25] The Code is a legislative instrument (s 536LJ(1) of the FW Act) and, consequently, the Acts Interpretation Act 1901 (Cth) (AI Act) applies to it as if it were an Act and as if the provisions of the instrument were a section of an Act: s 13(1)(a) of the Legislation Act 2003 (Cth) (Legislation Act).

[26] The Minister has published an Explanatory Statement in relation to the Code (Explanatory Statement), which was registered pursuant to s 15H(1) of the Legislation Act on 5 December 2024. The Explanatory Statement may be considered in the interpretation of the Code pursuant to s 15AB(1) of the AI Act.

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[35] The evidence explains the practical operation of the ratings system in the following way. After the completion of a delivery, consumers are prompted to review the delivery driver's service through the Uber Eats app. If a consumer chooses to rate a delivery driver, the initial step is to click a 'thumbs up' or 'thumbs down' button on the app interface. The consumer then has the option to select one or more pre-determined feedback buttons about their 'delivery experience'. If the 'thumbs up' button is selected, the available feedback buttons are:

Great communication;

Delivered with care;

Easy to retrieve order;

Efficient; and

Friendly service.

[36] If the 'thumbs down' button is selected, the options are:

Unprofessional;

Items damaged;

Communication;

Didn't match photo;

Missed instructions; and

Wrong vehicle.

[37] Merchants who supply the goods for delivery can also rate the delivery driver's service using the thumbs up or down method. However, they have different feedback buttons on the app: 'Friendly service', 'Great communication', or 'Quick & efficient' as positive feedback, or 'Ignored pickup note', 'Unprofessional', or 'Arrived too late' as negative feedback.

[38] Consistent with cl 5.3(b) of the Agreement, the respondent does not take any steps to verify customer or merchant ratings in terms of whether they have any objective justification.

[39] Delivery drivers are informed of the percentage of their positive ratings in their last 100 rated trips via the app. This is known as the 'in-app rating'. They are also advised of the feedback buttons which have been selected for negatively-rated trips in the last 100 rated trips. However, they are not advised which particular deliveries have been negatively rated.

[40] Separate from the satisfaction rating system, the respondent maintains a system whereby customers can contact Uber Eats support with an issue about their order such as an extended delivery time, non-delivery, missing items or damaged food. When a direct complaint of this nature is made, the respondent characterises this as a 'defective order'.

[41] As earlier explained, Mr Ayyub's deactivation proceeded on the basis that he had not met the 85 per cent minimum average satisfaction rating for delivery drivers working in Canberra. The evidence given by Ms Emilee Fairlie, the Senior Manager, Industrial Relations for Uber Australia Pty Ltd, disclosed that this minimum average satisfaction rating is in fact applied across all capital cities in Australia. She further disclosed that the decision to establish the minimum average satisfaction rating of 85 per cent was only made in late 2024 for implementation in 2025. This evidence is consistent with the fact that, while the Guidelines refer to a minimum average satisfaction rating, they make no reference to this being quantified at 85 per cent. It is also consistent with Mr Ayyub's evidence that he had no recollection of ever being told, prior to February 2025, that the minimum average satisfaction rating for Canberra was 85 per cent.

[42] The respondent has established a multi-stage process of warnings to deal with persons who do not meet the minimum average satisfaction rating of 85 per cent but have a rating above 60 per cent. The respondent describes this as the 'slow path' process to distinguish it from the expedited 'fast track' process applying to delivery drivers with a rating below 60 per cent. The evidence does not make clear whether this process was established at the same time as the implementation of the 85 per cent requirement in early 2025 or had some prior existence. In any event, the 'slow path' process has four stages prior to deactivation: an educational notification, a soft warning, a final warning and a PDN. The initial educational notification to the delivery driver is triggered when the driver's in-app rating is below 85 per cent over the last 100 rated trips. Once this notification is given, two measures of the satisfaction rating come into play in addition to the in-app rating; first, the 'running rating', which measures the percentage of rated trips which have a positive rating since the time the educational notification was given and, second, the percentage of positively-rated trips in the last 10 rated trips undertaken by the driver. If both the running rating and the percentage for the last 10 rated trips fall below 85 per cent, then the next stage of the process is triggered. The process up to and including the stage of issuing the PDN is entirely automated; no human is involved in any decision-making in respect of the process. There is no evidence that Mr Ayyub, or any delivery driver, was informed about any aspect of this process at any relevant time.

[43] Once the PDN is issued to a delivery driver, the driver is automatically suspended from use of the Uber Eats driver app. This also triggers a piece of software known as 'Jira' which records all information concerning the deactivation process. The driver may respond to the PDN in writing or request a discussion. Any written response is then considered by members of the Uber Group's Community Operations Team (COT) who, for Australian drivers, are located in the Philippines or India. Any discussion is likewise conducted with, recorded by, and considered by a member of the COT. The consideration which is permitted to be undertaken by the COT is limited. It checks the satisfaction rating data upon which the PDN has proceeded, and then may only consider any explanation given by the delivery driver in response if it raises one of five matters that may have impacted the driver's ratings, namely safety incidents, vehicle breakdowns, illicit requests from the consumer, fraudulent eaters and wrong addresses. The driver is not informed that these are the only matters to which consideration will be given. Members of the COT are not permitted to consider any other matter raised by the driver. If none of these matters is raised, the driver is required to be deactivated.

[44] Ms Fairlie's evidence was that the rationale for the establishment of the 85 per cent average satisfaction rating threshold for Canberra included that:

the 85 per cent threshold is well below the median rating of 94 per cent for all delivery drivers in Canberra for January-June 2025;

the multi-stage approach of education and warnings prior to deactivation, which gives drivers a chance at each stage to improve their 'ratings trajectory' above the average threshold, means that sustained poor performance is required for deactivation, and ensures that there is an extremely low risk of a 'false positive' where a well-performing driver is deactivated; and

analysis conducted by Uber's Consumer Pricing and Delivery Experience team shows that the number of defective orders increases significantly (by more than 40 per cent) when delivered by a driver with a minimum average satisfaction rating of below 85 per cent.

[71]

[46] The notification also gave him some generic 'tips' to help improve his ratings, such as following drop-off instructions, confirming with customers when the instructions are confusing, being respectful to customers, avoiding unnecessary detours, pauses and long trips, and taking care that the order arrives in good condition. The notification did not advise of any specific problems with Mr Ayyub's performance or indicate that these tips had any relevance to the way he performed his work.

[47] The next notice, which constituted the 'soft warning', was sent to Mr Ayyub on 21 March 2025. An analysis prepared by the TWU of the work undertaken by Mr Ayyub in the period after the educational notification was issued shows that, in the period between the educational notification and the soft warning, Mr Ayyub undertook 308 trips, of which 17 or 5.52 per cent were rated. Four of these 17 trips had a 'thumbs down', constituting 1.3 per cent of all the trips undertaken in this period. For the 17 rated trips, the running rating was 76 per cent, and seven of the last 10 rated trips were positive. It was because both these measures were below the 85 per cent threshold that the soft warning was sent automatically. The soft warning was expressed in similar terms to the educational notification and contained a hyperlink to similarly generic 'Delivery Tips and Tricks'. Again, no specific problems with Mr Ayyub's performance were identified. The soft warning stated that 'You may seek assistance or support from a person (other than a lawyer acting in a professional capacity) in relation to this message'.

[48] The 'final warning' was sent to Mr Ayyub on 16 May 2025 at 4:01 pm. In the period between the soft warning and the final warning, Mr Ayyub undertook 206 trips, of which 19 or 9.13 per cent were rated. Three of these 19 trips were negatively rated, constituting 1.5 per cent of all the trips undertaken in this period. Mr Ayyub achieved a rating of 84.2 per cent between the issue of the soft warning and 16 May 2025, only fractionally below the 85 per cent threshold. However, his running rating, measured from the educational notification, was 80.56 per cent, and he was positively rated for only seven of his last 10 trips, which triggered the automatic issue of the final warning.

[49] The final warning was headed 'Clarification: Low satisfaction ratings - Final warning', and stated:

[118]

[68] The amended notice of appeal raises eight grounds of appeal. Ground 1 alleges that the Deputy President erred by failing to consider and engage with substantial and clearly articulated arguments advanced by Mr Ayyub that the respondent's satisfaction rating system was arbitrary, flawed on unreasonable in various respect. It also alleges that Division 3 of Part 2 of the Code was incapable of application in the absence of evidence that a human being, whose conduct and state of mind was attributable to the respondent, had considered on reasonable grounds that deactivation was justified for one or more of the reasons identified in s 10(b)(i)-(iii) to the Code. Grounds 2-7 allege error in the Deputy President's findings concerning compliance with the Code. Ground 8 alleges that the Deputy President erred in holding that Mr Ayyub's deactivation was not unfair.

[69] It is convenient first to outline Mr Ayyub's submissions concerning grounds 2-7 by reference to specific provisions of the Code. These submissions also raise in tandem aspects of ground 1.

[70] First, Mr Ayyub submits that the Deputy President erred in finding that ss 8(1) and 8(2)(a), s 11(1)(a) and s 14(4)(a) of the Code had been complied with for related reasons (appeal grounds 2(a), 4 and 6(a)). Section 8(1) requires, prior to deactivation, that a Warning be given as to the risk of deactivation 'for a reason related to the worker's conduct or capacity' (emphasis added), and s 8(2)(a) requires a Warning to specify 'the reason, relating to the employee-like worker's conduct or capacity' (emphasis added) for which it is given. Section 11(1)(a) requires that a PDN specify 'the reason, relating to the conduct or capacity of the employee-like worker' (emphasis added) for which it is given. Mr Ayyub submits that the warnings and the PDN given to him did not specify any relevant reason relating to his conduct (there being no question arising in the matter concerning Mr Ayyub's capacity). He submits that 'conduct' means 'personal behaviour, way of acting, deportment', captures physical acts or omissions engaged in by a person, and connotes particular positive acts or failures to act by the worker. Any reference to a minimum average satisfaction rating in the warnings or deactivation notices said nothing about the conduct of a worker, understood in this way, since it simply indicated the 'unsophisticated, unattributable and un-scrutinised opinions by a self-selecting group'. As a corollary of this, it is submitted, s 14(4)(a) was not complied with. Section 14(4) requires a 'valid reason' for termination of access to a digital labour platform. In the context of the notification regime effected by ss 8 and 11, this 'reason' must be the reason - that is, a reason related to the worker's conduct or capacity - identified in the Warning required by s 8 and the PDN required by s 11. Because no such reason had been specified in the warnings and the PDN given to Mr Ayyub, there could be no valid reason for the purpose of s 14(4)(a).

[71] Second, Mr Ayyub contends that the Deputy President erred in finding that s 8(2)(c) of the Code had been complied with (appeal ground 2(b)). He submits that the provision is to be construed as requiring that all the information identified, including that assistance and support may be obtained from a person 'who may be a delegate or an employee of an organisation', must be included in the Warning required by s 8(1). The requirement in s 8(3) for a Warning to include 'sufficient information' about, among other things, the matter in s 8(2)(c) builds on this requirement. The warnings provided by the respondent to Mr Ayyub did not say anywhere that Mr Ayyub could seek assistance or support from a delegate or employee of a union. The Deputy President incorrectly ignored the requirement in s 8(2)(c) to include important information that a person providing support or assistance may be a union representative.

[72] Third, Mr Ayyub contends the Deputy President erred in not making a finding that the requirement in s 10(b) that the operator 'considers, on reasonable grounds' that deactivation is 'justified' had not been complied with (appeal grounds 1(c) and 3). He submits that these expressions in s 10(b) require evidence that some human actor, whose state of mind can be attributed to the corporate entity constituting the operator, thought that the deactivation was justified. The 'consideration' required that deactivation is justified must be one formed by reference to circumstances that are known to, and taken into account by, a human agent of the operator on grounds which the Commission considers reasonable. The evidence before the Deputy President demonstrated that the process for issuing the warnings and the PDN was wholly automated, meaning that there was no potential that the respondent could have had the state of mind required by s 10. Mr Ayyub advanced these clearly articulated and substantial arguments before the Deputy President but they were not considered by her, nor did she give any consideration to s 10.

[73] Fourth, it is contended that the Deputy President erred by failing to find that the requirement in s 13(7) that a human representative of an operator 'consider' the response given to a PDN was not complied with (appeal ground 5(a)). Mr Ayyub submits that the necessary consideration under s 13(7) requires that the person considering it read, understand and evaluate it and bring their mind to bear on whether deactivation should occur. In Mr Ayyub's case, the COT team representative was not permitted to give actual consideration to any of the matters raised by him in response to the PDN, and its role was confined to the mathematical task of checking whether the ratings recorded for Mr Ayyub met the prescribed average satisfaction rating threshold. This argument was advanced before the Deputy President but not considered in her decision.

[74] Fifth, Mr Ayyub alleges the Deputy President erred by finding that the respondent had complied with the requirement in ss 14(2) and 14(5) to communicate the decision to deactivate 'as soon as reasonably practicable' (appeal ground 6(c)). The decision was (as earlier stated) made on 3 June 2025 but was not communicated to Mr Ayyub until 8 July 2025. Mr Ayyub submits that this 36-day delay was inexplicable and unreasonable, and the Deputy President's finding that the decision was communicated shortly after it was made was plainly wrong. Sections 14(2) and 14(5) were not complied with.

[75] Sixth, in his written submissions and oral submissions in chief, Mr Ayyub contended that the Deputy President erred by not finding that the precondition for deactivation in s 14(4)(b) that the operator 'considers on reasonable grounds' that the relevant valid reason has been established had not been complied with (appeal grounds 1(g) and 6(b)). Mr Ayyub submits that the respondent did not identify and adduce evidence from any person who reached the state of mind required by s 14(4)(b) in a way attributable to the respondent. However, in his oral reply submissions, Mr Ayyub said that, on reflection, it was not necessary to press ground 6(b): Transcript, 26 February 2026 PN910. It follows that ground 1(g) also follows by the wayside.

[76] Seventh, it is contended that the Deputy President erred, in respect of her conclusion that the respondent had complied with s 19(2), by not engaging with Mr Ayyub's argument that that the 85 per cent average satisfaction rating threshold was not reasonable (appeal grounds 1(a) and 7) because:

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[78] Mr Ayyub submits that there was no valid reason for his deactivation because his minimum satisfaction rating said nothing about any act or omission on his part and the threshold of 85 per cent was unreasonable. He submits that the Deputy President erred in determining that he was afforded procedural fairness in circumstances where he was never informed that the 85 per cent threshold requirement would be applied via a running rating and in relation to his last 10 deliveries at unspecified randomly-selected points in time after receipt of the educational notification, and where the matters he raised in response to the PDN were not actually considered by the respondent. He also submits that the Deputy President failed to consider his case as to the harshness of his deactivation.

[79] The respondent submits that s 536LF of the FW Act required the Deputy President to reach a state of satisfaction as to whether Mr Ayyub had been deactivated, whether the deactivation was unfair in the sense contemplated by s 536LH, and whether the deactivation was consistent with the Code. The formation of this state of satisfaction involves a discretionary value judgment and tolerates a range of outcomes in a manner that is inconsistent with the correctness standard applying on appeal. Accordingly, the House v The King standard of appellate review applies to each of Mr Ayyub's appeal grounds.

[80] In respect of the appeal grounds concerning the application of the Code, the respondent initially submitted in its written appeal submissions that s 536LF(c) of the FW Act should not be construed as requiring strict compliance. It submitted that the word 'consistent' in s 536LF(c), on its ordinary meaning ('agreeing or accordant; compatible; not self-opposed or self-contradictory') does not suggest absolute compliance but rather contemplates a scenario where a departure from the express terms of the Code may occur whilst not necessarily rendering a deactivation 'unfair' - that is, a deactivation can be 'consistent' with the Code but not comply with it in absolute terms. In this respect, the respondent pointed to ss 536LF and 536LH(1)(b) as requiring a state of satisfaction concerning Code consistency/compliance, indicating that a discretionary value judgment which might involve different decision-makers arriving at different outcomes was contemplated. It submitted that the contrary construction requiring strict compliance would require the respondent to adhere to matter of form over substance and be problematic as a result of internal inconsistencies in the Code. However, at the commencement of its oral submissions in the appeal hearing, the respondent indicated that it did not press this part of its written submissions: Transcript, 26 February 2026 PN6.

[81] In respect of appeal grounds 2(a), 4 and 6(a), the respondent submits that the relevant 'conduct' to which the PDN was directed was Mr Ayyub's failure to maintain the minimum satisfaction rating. The relevant act or omission was tied directly to the terms of the Agreement and the Guidelines. To artificially narrow the scope of 'conduct' for the purposes of the 'valid reason' requirement is inconsistent with the terms of s 19(2) of the Code, which expressly contemplates that a 'valid reason' for the purposes of an unfair deactivation includes a failure to meet certain 'requirements' imposed on a worker by a operator, including requirements with respect to 'the operator's standards or requirements in relation to quality, service level or performance' (s 19(2)(c)) or 'any other legally binding requirement' (s 19(2)(e)). Accordingly, these grounds should be rejected.

[82] As to appeal ground 2(b), the respondent submits that the Deputy President correctly construed s 8(2)(c) as only requiring a Warning to state that the relevant worker 'may seek assistance or support from a person (other than a lawyer acting in a professional capacity)', and does not require the inclusion of a reference to 'a delegate or an employee of an organisation'. The use of the comma after the parenthesis in s 8(2)(c) of the Code, followed by the use of the word 'who', suggests that the balance of the provision speaks only to the identity of the person who the worker may enlist to provide assistance, rather than any mandatory requirement that Warnings contain that information. This is supported by the 'sufficient information' requirement in s 8(3). Any reasonable person would know that 'a person' is of such broad remit that it would naturally include a person 'who may be a delegate or an employee of an organisation'.

[83] The respondent also submits that appeal grounds 1(c) and 3 should be rejected. Evidence as to whether s 10(b) has been complied with may be given directly by the particular person who formed the relevant state of mind, or it may be given in some other way (for example, by way of document). The question then is whether that evidence, properly considered, is capable of being accepted by the Commission. Ms Fairlie's evidence, which was accepted by the Deputy President, identified that a member of the COT team considered Mr Ayyub's responses to the PDN, which did not suggest that any additional lines of inquiry were required, and decided that he should be deactivated because he had consistently received ratings below the 85 per cent minimum average satisfaction rating for Canberra and his responses did not provide adequate information to address these low ratings. Mr Ayyub's submissions at first instance did not directly advance an argument that a human representative was required to form a view, on reasonable grounds, that deactivation was justified before the PDN was issued. Therefore, there can be no complaint that this was not considered by the Deputy President, nor can this argument now be agitated in the appeal.

[84] The respondent submits that appeal ground 5(a) misconceives the evidence at first instance: Ms Fairlie's evidence as earlier outlined demonstrated that a person did in fact consider Mr Ayyub's response to the PDN. The respondent's representative is required to review the driver's responses to the PDN, if they raise concerns about some factors outside of their control, before making a decision to deactivate, and they can deviate from the standard process if they 'contact the ANZ sort of ratings consumer team'. Mr Ayyub's responses rose no higher than bare assertion, and his explanations concerning working in the Canberra city centre and issues with telephone reception were not meaningful responses to his low ratings. The Deputy President was, accordingly, capable of being satisfied that s 13 of the Code had been complied with.

[85] As to ground 6(c), the respondent submits that the Deputy President's characterisation that he received the deactivation notice shortly after the decision was made was correct and he suffered no prejudice as a result.

[86] In relation to grounds 1(a) and 7 concerning the reasonableness of the minimum average rating, the respondent first submitted that the correctness standard of appellate review should not apply to this question; rather, this question was relevant to the Deputy President's inquiries for the purposes of forming the state of satisfaction required by s 536LF(c) (and the formation of her state of satisfaction as to 'valid reason' for the purposes of s 536LH(1)(a) to the extent relevant). The matters raised by Mr Ayyub in his appeal did not demonstrate any House v The King error. The Deputy President had a rational basis to conclude that Mr Ayyub's failure to meet the minimum average rating over time constituted a 'valid reason' for the purposes of the Code (or more broadly for the purposes of ss 536LF and 536LH(1)(a)) because:

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[97] Section 7(2), to which s 7(1)(b)(i) is subject, provides that the code process does not apply to a deactivation for serious misconduct by the worker.

[98] Section 7(1)(b)(i) uses a wider formulation to describe a conduct-related reason for deactivation than do ss 8(1), 8(2)(a) and 11(1)(a). The reason is not confined to the worker's conduct as such; it extends to a 'matter related to the worker's conduct in performing work'. The term 'matter' is of wide import, as is 'related to', such that anything which has a connection to the worker's behaviour, acts or omission in the course of the performance of work by use of a digital labour platform is encompassed: Tooheys Ltd v Commissioner of Stamp Duties [1961] HCA 35, 105 CLR 602, at 620 (Taylor J); Re Dingjan; Ex parte Wagner [1995] HCA 16, 183 CLR 323, at 354 (Toohey J), 370 (McHugh J); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355 at [87] (McHugh, Gummow, Kirby and Hayne JJ). This language is, in our view, of sufficient breadth to capture customers' subjective opinions about how a worker has conducted themself in the performance of work, since those opinions may be characterised as 'relating to' the worker's performance of the work.

[99] If the narrower conception of what may constitute a conduct-related reason for deactivation proposed by Mr Ayyub is preferred in construing the Code, it means that the code process established by Part 2 of the Code would simply not be applicable to him. A number of difficulties would follow from this. First, it would mean that the code process would not apply to the type of 'conduct or capacity issues' to which the Minister, by his Explanatory Statement, plainly intended it to apply. Second, it would mean that he is not entitled to the procedurally fair process for which the code process is intended to provide. Third, if the code process does not apply to Mr Ayyub, or to workers in a like position to him, it is difficult to consider how non-compliance with the Code could ever be demonstrated such as to meet the condition for an unfair deactivation in s 536LF(c). These matters are persuasive against the adoption of the approach urged by Mr Ayyub.

[100] Section 8(1) refers to 'a reason related to the worker's conduct or capacity', s 8(2)(a) refers to 'the reason, relating to the employee's conduct or capacity', and s 11(1)(a) refers to 'the reason, relating to the conduct or capacity of the employee-like worker'. We consider that all of these expressions are intended to reflect, in a somewhat shorthand way, the description of the categories of reasons for deactivation set out in s 7(1)(b) (subject to the exception in s 7(2)) and are to be construed in the same way. It is apparent that the Code, particularly the code process, is intended to operate as an integrated scheme, and this must guide the construction of particular provisions of the Code. Insofar as s 7 prescribes the field of operation of the code process by reference to reasons for deactivation relating to conduct or capacity, the requirements for notification of the reasons to the worker in ss 8(1), 8(2)(a) and 11(1)(a) can hardly be given a narrower field of operation since that would artificially restrict the scope of the procedural fairness obligations for which the code process provides.

[101] As earlier stated, Mr Ayyub submits that the requirement in s 14(4)(a) that the reference in s 14(4)(a) to a reason for deactivation being a 'valid reason' must be read as referable back to the reason notified to the worker pursuant to ss 8(1), 8(2)(a) and 11(1)(a), so that the valid reason must have the same character as the reason notified to the worker - that is, it must relate to the worker's conduct or capacity. We accept that s 14(4)(a) must be construed in the context of the code process as a whole, so that a 'valid reason' must necessarily be a reason of the type prescribed by s 7(1) (subject to s 7(2)) to which the code process applies. Therefore, in cases not involving capacity, a 'valid reason' under s 14(4)(a) must be 'a matter related to the worker's conduct in performing work through or by means of the platform'. We further accept that because the code process is intended to provide the worker with opportunities to respond to the reason for potential deactivation, the 'valid reason' will ordinarily be the same reason that is notified pursuant to ss 8(1), 8(2)(a) and 11(1)(a). There is only a limited exception to this: the effect of s 10(b)(iii) is that a PDN (upon which a deactivation may proceed) may be given on the basis of an additional issue which has arisen since the Warning under s 8 was given (and hence was not identified in the Warning).

[102] Importantly, s 19 of the Code prescribes in a non-exhaustive way (see s 19(7)) matters that constitute a 'valid reason'. In this way, the Code as made complies with the requirement in s 536LJ(2)(b) that the Code deal with 'matters that constitute or may constitute a valid reason for deactivation'. The Code content requirement in s 536LJ(2) is, in the context of Part 3A-3 of the FW Act, explicable by the requirement in s 536LH(1)(a) that the Commission take into account 'whether there was a valid reason for the deactivation related to the person's capacity or conduct' when considering, for the purpose of s 536LF(b), whether it is satisfied that a deactivation was unfair. Therefore s 19 of the Code must be applied by the Commission when undertaking the consideration required by ss 536LF(b) and 536LH(1)(a) (as [117] of the Explanatory Statement confirms). Additionally, although there is no explicit linkage in the Code between s 14(4)(a) and s 19, we consider that the Code can only reasonably be read as making s 19 additionally applicable to the expression 'valid reason' in s 14(4)(a). Neither party contended otherwise. Therefore s 19 serves as a contextual guide as to what may constitute a reason for deactivation relating to conduct or capacity within the meaning of ss 7(1), 8(1), 8(2)(a), 11(1)(a) and 14(4)(a). That is, we would not read the valid reasons prescribed by s 19 as falling outside the scope of any of these provisions.

[103] The valid reasons described in ss 19(3)-(16), to the extent that they do not bear on capacity, would readily fall within the narrower conception of reasons relating to conduct proposed by Mr Ayyub. However, s 19(2) is more problematic for Mr Ayyub's case. It provides:

[187]

[114] This requirement to provide 'sufficient information' about the matters in s 8(2) is not qualified or limited in any way with respect to paragraph (c). Therefore, while compliance with s 8(3) would not require repetition of the precise words of s 8(2)(c) (since 'sufficient information' to allow the worker to reach the required state of understanding might allow for alternative linguistic formulations of the matter in paragraph (c)), what must be communicated is the substance of the whole of the matter identified in s 8(2)(c). This favours Mr Ayyub's approach.

[115] Turning directly to s 8(2)(c), we consider that because the requirement for which it provides is a procedural one about what must be communicated to the worker, the words 'who may be a delegate or an employee of an organisation' are more naturally to be read as part of what must be communicated. The characterisation of these words as a notation explaining what is included in the expression 'a person (other than a lawyer acting in a professional capacity)' leaves them serving no purpose if this is not to be communicated to the worker. As already explained, s 16(2) already makes it clear that the substantive right to support or representation includes support or representation by a union delegate or employee. Additionally, the style of the Code is that where a notation is required to explain matters in a provision but is not intended to form part of the substantive provision, a 'Note' is added for this purpose. Section 8(2)(c) itself has two notes: the first defines 'organisation' by reference to the definition in s 12 of the FW Act, and the second cross-references s 16.

[116] For these reasons, s 8(2)(c) is to be construed as requiring the operator to include in any Warning an express statement to the effect that 'a person' from whom assistance and support may be obtained includes a 'delegate or employee of an organisation'.

[117] The Explanatory Statement confirms this conclusion. At [32], it states generally in relation to s 8(2):

[201]

[122] It may be accepted that the notions of consideration on reasonable grounds and justification embedded in the chapeau to s 10(b) imply the formation of a state of mind. Where, as here, the operator is a corporation, that requires a state of mind to have been formed by an individual which is capable of attribution to the corporation: Australian Securities and Investments Commission v Westpac Banking Corporation (No 2) [2018] FCA 751, 266 FCR 147 at [1658]-[1660]. As earlier recited, no human being was involved in deciding on behalf of the respondent that Mr Ayyub should be issued with a PDN because, despite the earlier warnings given, his running rating and the rating from his last 10 rated deliveries remained below the 85 per cent threshold. The question is therefore whether the respondent complied with the precondition established by s 10(b) in those circumstances.

[123] It is necessary first to deal with the respondent's submission that Mr Ayyub did not, at first instance, directly advance submissions that a human representative was required to form a view, on reasonable grounds, that deactivation was justified before the PDN was issued and accordingly, that he should not be permitted to raise this argument in the appeal (citing Metwally v University of Wollongong [1984] HCA 74, (1985) 158 CLR 447). We do not accept this submission. Mr Ayyub's written submissions below plainly argued that s 10(b) was a precursor to the issue of the PDN and that the consideration that deactivation is justified required by s 10(b) 'must be one formed by reference to circumstances that are known to, and taken into account by, a human agent of the operator': applicant's submissions, 22 September 2025, [48]-[50]; applicant's reply submissions, 6 November 2025, [9]-[10].

[124] The respondent otherwise answers appeal grounds 1(c) and 3 by submitting that the relevant consideration may take the form of an automated implementation of a standing requirement earlier developed by human actor(s) on behalf of the corporation. In this respect, the respondent submitted at the appeal hearing (Transcript, 26 February 2026, PNs 826-827):

[204]

[125] It may be accepted that where, as here, there is a standing performance standard which is mathematically calculated, the task of determining whether the preconditions in s 10(b)(i) or (ii) are satisfied may be undertaken automatically. In this case, it did not require an individual to determine on behalf of the respondent corporation that Mr Ayyub had not achieved a running rating, or a rating on his last 10 rated deliveries, that met the 85 per cent threshold, and had thus not remedied but continued the matter identified in the previous warnings.

[126] However, it is not enough that one of the three preconditions in s 10(b)(i)-(iii) is satisfied. Section 10(b) then requires, on the basis of satisfaction of at least one of these three preconditions, that the operator considers that the deactivation of the worker is justified on reasonable grounds. The ordinary meaning of 'consider' relevantly includes 'to regard as or deem to be, to think, suppose': Macquarie Online Dictionary. 'Justified' means 'acceptable or having good cause or reason': ibid. This language implies an exercise of judgment on the part of the operator involving a weighing of relevant considerations - a judgment which would need to be made by a human actor. The judgment made is one that must be based on objectively reasonable grounds - that is, grounds which are at least other than arbitrary or capricious.

[127] The approach taken by the respondent effectively treats satisfaction of any one of the matters in ss 10(b)(i)-(iii) as determinative of whether it can proceed to issue a PDN on the basis that Division 3 applies. This renders superfluous the requirement for consideration and justification on reasonable grounds which the chapeau to s 10(b) establishes as a precondition for proceeding with that part of the code process for which Division 3 provides. It removes any possibility of countervailing considerations being taken into account that might render deactivation unjustifiable notwithstanding that one of the matters in ss 10(b)(i)-(iii) is satisfied. In Mr Ayyub's case, for example, the fact that he had exceeded the 85 per cent threshold for work done since the 16 May 2025 final warning was not taken into account because the respondent's automated system simply did not permit this.

[128] We therefore prefer the position advanced by Mr Ayyub that because of the automated nature of the respondent's process and the absence of any human involvement up to and including the issue of the PDN, no consideration of the type required by s 10(b) occurred. The Explanatory Statement supports this position; at [49], it states:

[216]

[138] Section 14(5) of the Code requires that, if an operator decides to terminate a worker's access to its platform, it must 'as soon as reasonably practicable' give the worker a written 'final deactivation notice' informing them of the termination of access, the reasons for the termination, the time and day of effect of the termination, and when and how any final payments will be made. 'As soon as reasonably practicable' is a compound temporal expression that recognises that the time by which the event is to occur is affected by considerations of what is capable of being put into practice, carried out in action, effected, accomplished, or done: Al-Kateb v Godwin [2004] HCA 37, 219 CLR 562 at [226] (Hayne J).

[139] As earlier stated, the evidence demonstrated that the decision to deactivate Mr Ayyub was made on 3 June 2025, but he was not given the final deactivation notice until 8 July 2025. The Deputy President's finding that the notice was given 'shortly after' the decision was made was, in the context of the evidence concerning the way in which the respondent conducted the deactivation process, in error. The highly automated nature of the respondent's system demonstrates that it is capable of providing speedy responses to any relevant events in the deactivation process. For example, after Mr Ayyub was given his final warning on 16 May 2025, he first failed to achieve an 85 per cent satisfaction rating for his last 10 trips on 29 May 2025. The PDN, which suspended him immediately, was sent the following day on 30 May 2025. Mr Ayyub provided written responses to the PDN on 31 May and 3 June 2025, and the discussion he requested with a representative of the respondent occurred on 3 June 2025. The decision to deactivate him was made on the same day as his final written response and the discussion. In the context of this timeline, the communication to him of the decision to deactivate over five weeks later was not 'shortly after' the decision was made. There was no evidence explaining the delay or demonstrating that the respondent was not capable of providing the final deactivation notice at a much earlier time.

[140] The respondent did not comply with s 14(5) of the Code. The Deputy President erred in finding otherwise. Appeal ground 6(c) is upheld.

[218]

[141] Ground 1(a) of the appeal contends that the Deputy President erred by failing to consider and engage with the arguments advanced by Mr Ayyub at first instance that the 85 per cent satisfaction rating requirement was not reasonable for the purpose of s 19(2) of the Code and therefore could not constitute a valid reason for deactivation. It is clear that the Deputy President made a finding about this issue at [36] where she found that the requirement was 'a legitimate threshold' and referred to Kumar and Ali to support the proposition that the requirement was reasonable. That represented, in our view, a consideration and rejection of Mr Ayyub's case that the requirement was not reasonable. It is true that the Deputy President did not give reasons for rejecting the specific arguments advanced by Mr Ayyub. However, the Deputy President was not required to refer in her decision to every submission, and the fact that a submission was not expressly addressed does not mean it was not considered: Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157, 240 IR 178 at [47]; WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, 236 FCR 593 at [46]-[47].

[142] More substantively, by ground 7 Mr Ayyub contends that the Deputy President's finding that the 85 per cent satisfaction rating requirement was reasonable was in error. In assessing this appeal ground, it is first necessary to identify what the requirement was. Section 19(2) identifies five categories of requirement which, if reasonable and communicated to the worker, will constitute a valid reason for deactivation if the worker fails or refuses to meet it. At first instance and in the appeal, the respondent submitted that the requirement was in the category of valid reason specified in s 19(2)(c): 'the operator's standards or requirements in relation to quality, service level or performance'. It also relied on s 19(2)(e) on the basis that the Agreement, read with the Guidelines, established a 'legally binding requirement for the worker's use of the platform' for the delivery driver to meet the average minimum satisfaction rating for their city.

[143] The minimum average satisfaction rating requirement for each city stated in the Guidelines did not constitute the totality of the 'quality, service level or performance' standard or 'legally binding requirement' relied upon to justify the deactivation of Mr Ayyub, since the Guidelines do not specify what the actual rating required is in any case, nor do they identify the method by which compliance with this requirement is to be measured. As Ms Fairlie's evidence demonstrated, the actual 85 per cent requirement was not introduced until early 2025, and its existence was not communicated to Mr Ayyub until he received his educational notification on 21 February 2025. At the same time, the evidence also showed that a particular method of measuring compliance with this minimum satisfaction rating requirement was adopted, apparently at the same time, but never disclosed to Mr Ayyub. As we have earlier explained, this involved three different measures of the satisfaction rating operating at different times. First, the measure used to determine whether an educational notification should be issued was based on the last 100 rated trips. Once the educational notification was issued, two different measures of the satisfaction rating operated: the running rating, calculated by reference to all rated trips conducted after the educational notification, and a rating based on the last 10 rated trips. At any time that both measures fell below 85 per cent, the next step in the process was triggered. These methods of measurement are, we consider, essential elements of the respondent's minimum satisfaction rating requirement which require assessment as to their reasonableness pursuant to s 19(2) of the Code.

[144] Whether a requirement is 'reasonable' for the purpose of s 19(2) of the Code must be assessed objectively. The relevant ordinary meaning of 'reasonable' is 'agreeable to reason or sound judgement': Macquarie Online Dictionary. The Code is to be read and construed subject to the statutory scheme which enables it in Part 3A-3 of the FW Act (s 13(1)(c) of the Legislation Act) and, in that respect, the object of the scheme in s 536LC(2) to ensure a 'fair go all round' informs the broad legal standard of reasonableness in s 19(2), and imports notions of fairness and equity in considering what may be 'agreeable to reason or sound judgement'. In that sense, we consider that 'reasonableness' should be assigned a meaning broadly corresponding to that given to 'unreasonable' in then s 326(1)(c)(ii) of the FW Act by the Federal Court (Bromberg J) in Australian Education Union v State of Victoria (Department of Education and Early Childhood Development) [2015] FCA 1196, 239 FCR 461, 255 IR 341 at [148]-[149].

[145] The following considerations, in cumulation, lead us to conclude that the 85 per cent satisfaction requirement as we have described it was not reasonable.

[146] First, the 'trigger' for the issue of the educational notification, which launches the driver on the path to potential to deactivation, effectively operates retrospectively on the evidence in this case. The Guidelines do not specify any quantification of the minimum average satisfaction rating, and delivery drivers are not informed about the 85 per cent requirement prior to receiving the educational notification. Because the rating is calculated on the last 100 trips, the 85 per cent requirement is applied during a period when the driver does not know about it. That makes the expectation for compliance with the requirement prior to the issue of the educational notification fundamentally unreasonable.

[147] Second, once the educational notification is issued, the two new measures of the satisfaction rating also operate unreasonably. Because the running rating operates from the date of the educational notification, it diminishes the capacity of the driver to improve their satisfaction rating after each warning because their rating continues to be dragged down by their performance prior to each warning. This difficulty is illustrated clearly in Mr Ayyub's case: from the educational notification to the soft warning, his satisfaction rating was 76 per cent; from the soft warning to the final warning it was 84.2 per cent, and from the final warning to the PDN, it was 85.7 per cent. This demonstrates an upward trajectory and ultimately achievement of the 85 per cent target after the final warning. However, because the running rating is measured from the date of the educational notification, Mr Ayyub had insufficient opportunity to also bring this up to the 85 per cent threshold. Thus, contrary to what Ms Fairlie stated was part of the rationale for the threshold requirement, the use of the running rating meant that drivers did not have a reasonable chance to improve their ratings trajectory above the threshold and might be deactivated even if poor performance was not sustained.

[148] The simultaneous requirement for the 85 per cent rating to be achieved for the last 10 trips once the educational notification has been issued has no obvious rationale. Ms Fairlie did not give evidence of any such rationale. It operates unreasonably because the chance sequencing of negatively-rated trips can result in the driver being deactivated. Again, that difficulty is illustrated here: after he was issued with the final warning, Mr Ayyub was rated negatively for two out of 14 rated trips. Because these two fell into the last 10 rated trips, he was issued with a PDN. Had the two negatively-rated trips been differently sequenced so there were at least nine positively-rated trips between them, he would not have been issued with the PDN and subsequently deactivated, even though this would have made no difference to his running rating or his rating since the final warning was issued. This is illogical and arbitrary.

[149] Third, the 85 per cent requirement is applied as a blunt instrument and does not take into account other more verifiable measures of performance, particularly instances of defective orders. As earlier stated, Ms Fairlie gave evidence that part of the rationale for the requirement was that the number of defective orders increased by over 40 per cent for drivers with an average rating below 85 per cent. However, a driver's record of actual defective orders is simply not taken into account in the application of the 85 per cent requirement. In Mr Ayyub's case, there was no evidence that he had ever had a defective order despite having made over 5,856 deliveries for the respondent by the time he received the educational notification. Nor does the application of the average satisfaction rating threshold take into account differences in the urban environment which might make it more difficult to reach the threshold. A number of these were identified by Mr Ayyub in his response to the PDN and in his evidence before the Deputy President, including the parking and traffic problems associated with working in built-up areas and the problems with customers likely to arise in delivering to apartment buildings as distinct from detached dwellings.

[150] Further, the application of the 85 per cent threshold takes no account of the proportion of a driver's total trips which are negatively rated. Because only a minority of trips are rated at all, the number of negatively-rated trips will usually be very small. In Mr Ayyub's case, negatively-rated trips only constituted 1-2 per cent of all the trips he undertook. The overwhelming majority of deliveries attracted no merchant or customer feedback and there is nothing to suggest that the client or customer had any concern at all in relation to the manner in which Mr Ayyub undertook the delivery. This was ignored. When combined with the manner in which the running rating and the requirement to maintain an 85 per cent rating for the last 10 trips operate, this means whether a driver meets the average satisfaction rating threshold will inevitably turn on a minute number of negative ratings amongst potentially many hundreds of trips. Out of more than 700 deliveries made by Mr Ayyub after 22 February 2025, only nine thumbs down ratings were received. If two of those ratings had not been recorded, Mr Ayyub's running rating would have been above 85 per cent. As we have observed, if just one of the negative ratings received in the last 10 rated trips had not been recorded or recorded in a different sequence, Mr Ayyub's rating for his last 10 trips would have been above 85 per cent. In either eventuality, Mr Ayyub would not have been deactivated. That outcome is particularly unreasonable in circumstances in which, as we will now turn, individual ratings are frequently unexplained, wholly unverified and may well have been arbitrary, unreasonable or have no foundation.

[151] Fourth, the 85 per cent threshold is applied without any regard to the reasons, or lack thereof, given in relation to each negative rating. This manifests itself in two ways. The first is that negative ratings which give no reason for the rating are included in the measure. In such cases, there is nothing to link the rating to any deficient conduct or omission on the part of the driver, and thus no information is provided about what the driver needs to do to improve their rating. In Mr Ayyub's case, if these negative ratings had been excluded from the count, he would have easily passed the 85 per cent threshold. The second is that neither the educational notification, the warnings nor the PDN disclose the customers' reasons, where given, for the negative ratings which are included in the count. This means that the driver is not put in a position by the warnings to be able to identify any form of conduct which might have caused them not to achieve the 85 per cent threshold which they can endeavour to improve upon in the future. The 'tips' provided in the educational notification and the warnings are generic in nature and have no necessary relationship to any actual or alleged conduct or omission on the part of the driver. In the case of the PDN, this makes it extremely difficult for the driver to give a meaningful response to the notice which might allow them to avoid deactivation since they do not know, even in the most general terms, what conduct has been alleged against them by the customer.

[152] As stated, the Deputy President followed Kumar and Ali in concluding that the 85 per cent satisfaction rating requirement is reasonable. Both of these decisions were made by single members. In Kumar, Deputy President Saunders said at [40]-[41]:

[220]

[41] Notwithstanding the scope for a thumbs down rating given by a particular customer to Mr Kumar to be an unfair rating, I am satisfied that the requirement for Mr Kumar to maintain an average customer satisfaction rating of at least 85% was, judged objectively, reasonable in all the circumstances. First, there is an evident and intelligible justification for the requirement to maintain an average customer satisfaction rating of at least 85%. In particular, the rating system 'improves accountability and helps create a respectful, safe and transparent environment for everyone.' Secondly, Mr Kumar was, at all times, on notice through the terms of his agreement with Uber and Uber's Community Guidelines of the requirement to maintain a minimum average customer satisfaction rating and that he may lose access to the Uber app if he failed to meet the minimum average customer satisfaction rating for the city in which he was operating. Thirdly, 97% to 98% of Uber Eats Delivery Partners in Brisbane maintain an average customer satisfaction rating of at least 85%. This puts Mr Kumar into the bottom 2% to 3% of Uber Eats Delivery Partners in Brisbane. Fourthly, data analysed by Uber shows that where an Uber Eats Delivery Partner's average customer satisfaction rating fails to meet the minimum requirement, being 85% in Brisbane, there will be a significant increase in defective orders (i.e. missing items or damaged items), customers complaints and unprofessional conduct issues by Uber Eats Delivery Partners. Fifthly, the fact that an individual customer rating may have been unreasonable is ameliorated by the fact that the minimum required customer satisfaction rating for Delivery Partners is an average, calculated on the basis of the Delivery Partner's last 100 customer ratings. Sixthly, even if a Delivery Partner's customer satisfaction rating falls below the 85% threshold, they are not automatically or immediately deactivated. Instead, the Delivery Partner is warned by Uber about the level of their customer satisfaction rating, given a chance to improve their rating, given educational information to assist them to improve their customer satisfaction rating, and can monitor their customer satisfaction rating at any time in the Uber app. Mr Kumar's customer satisfaction rating worsened after he was warned about the issue. Uber considered, rightly, that his performance was trending in the wrong direction at the time he was deactivated. Seventhly, most of the reasons put forward by Mr Kumar at different times for his poor customer satisfaction rating related to delays in making deliveries, yet when the last 100 customer satisfaction ratings are analysed, the reason of 'rush' only appears on about four occasions and there are no other reasons complaining of a delay in delivering goods to a customer. Common reasons provided by customers for their thumbs down rating of Mr Kumar over his last 100 customer ratings include 'poor communication', 'missed instructions', and 'left in wrong spot'. Where the reason of 'missing items' was given by a customer to support their thumbs down rating of Mr Kumar in his last 100 customer ratings, it is apparent from the other reasons given by these customers, such as 'packed poorly' and 'bad replacements', that the delivery was for items from a store such as a supermarket, not the delivery of food from a restaurant. Accordingly, any such errors of 'missing items' could not have been the responsibility of a third party such as the restaurant that prepared food for delivery by Mr Kumar.

[227]

[160] We consider it appropriate to redetermine the matter ourselves rather than remitting the matter to a single member for rehearing. In reaching that conclusion, we take into account that the respondent has confirmed that it does not seek the opportunity to adduce any further evidence in the matter upon a rehearing.

[161] There is no dispute that Mr Ayyub has been deactivated from the respondent's digital labour platform and is a person protected from unfair deactivation. For the reasons already stated, we find for the purpose of s 536LF(c) that Mr Ayyub's deactivation was not consistent with the Code.

[162] In our consideration of whether the deactivation was unfair, we deal with the mandatory considerations in s 536LH(1) as follows. As to s 536LH(1)(a), the respondent did not have a valid reason for deactivation relating to Mr Ayyub's capacity or conduct. For the reasons earlier stated, the 85 per cent minimum average satisfaction rating requirement relied upon by the respondent was not a valid reason within the meaning of s 19(2) of the Code because it was not reasonable. The respondent did not identify any other basis for a finding that there was a valid reason.

[163] As to s 536LH(1)(b), the relevant processes in the Code were not followed. We note that there may be a question as to whether there is a distinction to be made between following the relevant processes specified in the Code for the purpose of s 536LH(1)(b) and consistency with the Code for the purpose of s 536LF(c). On one view, the former is less concerned with strict compliance with all aspects of the Code and focuses upon whether the code processes intended to ensure procedural fairness were adhered to. This issue was not the subject of submissions before us. In any event, having regard to our earlier conclusions, we consider that the code process in the Code which was applicable in this case was the subject of a substantial degree of non-compliance which resulted in Mr Ayyub not being afforded procedural fairness.

[164] In respect of s 536LH(1)(c), we consider the following matters to be relevant and weighing in favour of a finding that the deactivation was unfair:

At a glance

Court

Decision date

Source

Judgment (354 paragraphs)

Umair Ayyub v Portier Pacific Pty Ltd t/a Uber Eats [2026] FWCFB 81 (10 April 2026)

Parties

Legislation Cited (3)

Cases Cited (1)