Fair Work Act 2009

s.536LU - Application for an unfair deactivation remedy

Application for an unfair deactivation remedy - Application for dismissal under s.536M of the Act - Applicant failed to attend Determinative Conference

[1] On 5 November 2025, Mr Zain ul Abideen (the Applicant) filed an application pursuant to s.536LU of the Fair Work Act 2009 (Cth) (the Act) seeking an unfair deactivation remedy. This Decision relates to the Respondent's application to have the Applicant's unfair deactivation application dismissed under s.536M(1)(a) of the Act.

• [2] In his application, the Applicant named the digital labour platform operator as Uber Australia Pty Ltd. Rasier Pacific Pty Ltd (the Respondent) responded to the application, asserting that it was the proper name of the party that operated the digital labour platform under which the Applicant performed work, being the Uber Driver Platform. This has been confirmed in a number of applications before the Commission.[1] 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).

[3] In correspondence to the Commission, copying in the Applicant, the Respondent made an application pursuant to s.536M(1)(a) of the Act on 3 February 2026. Directions were set for the Applicant's reply to the Respondent's application to dismiss. The Applicant did not file any material in response to these Directions.

[4] The Commission may dismiss a matter under s.536M of the Act, on application by a Respondent, where an Applicant has unreasonably failed to attend conferences or hearings, or comply with directions. The Respondent (as a regulated business) had standing to make the dismissal application.

[5] Section 536M of the Act is as follows:

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 536MB).

(2) The FWC may exercise its power under subsection (1) on application by a regulated business.

(3) This section does not limit when the FWC may dismiss an application."

[6] On 24 November 2025, I organised for my Chambers to list the matter for Determinative Conference to be conducted on 8 January 2026, and Directions were set for the filing of materials in the interim period. On the same day, the Applicant confirmed that he would attend the listing. On 1 December 2025, the Respondent elected to withdraw the jurisdictional objection that the Applicant did not work through or by means of the digital labour platform, or under a contract or series of contracts arranged or facilitated through or by means of the digital labour platform, on a regular basis for a period of at least 6 months. On 2 December 2025, my Chambers issued amended Directions while retaining the date of the proceedings to be conducted on 8 January 2026 at 9:30am.

[7] On 5 January 2026, the Applicant emailed my Chambers requesting the matter be determined on the papers. The Applicant stated that attending the listing would cause him difficulty but did not elaborate on the specific reasons he sought to have the matter determined on the papers. On the same day, my Chambers at my direction emailed the Applicant advising that the Determinative Conference would proceed in the absence of further specifics being provided in relation to the request.

[8] On the morning of 8 January 2026, the day of the Determinative Conference, the Applicant emailed my Chambers requesting that the Commission excuse him from providing oral evidence. The Applicant advised that this request was due to his "current mental health condition" and that he was under "significant stress and mental distress". As a result, the listing on 8 January 2026 was vacated; this was confirmed in written correspondence to the parties. It is noted that given the timing of the Applicant's correspondence, that the Respondent parties had already joined the Determinative Conference by Microsoft Teams.

[9] In his correspondence of the morning of 8 January 2026, the Applicant did not provide any supporting documentation in relation to his mental health condition and therefore he was directed to provide medical evidence to support his request by 13 January 2026.

[10] On 12 January 2026, the Applicant provided a medical certificate to my Chambers that was a GP's "letter of support for Mr. Zain Ul Abideen ,27 year old male patient who has been stressed due to the account deactivation with Uber". No further information was included on the medical certificate. On 14 January 2026, in correspondence from Chambers, the parties were advised that while the medical certificate was recognised, it was not satisfactory to prevent the Applicant attending the Determinative Conference to provide oral evidence. This was because I was not persuaded when the response only referred to the Applicant being 'stressed' and did not refer to satisfactory reasoning why the Applicant could not give his evidence. On this basis, I consider the Applicant's non-attendance at the first listed Determinative Conference should be taken into account.

[11] The matter was relisted to 10:00am on 2 February 2026 and it was set out that failure to attend by the Applicant may mean the dismissal of the Applicant's application. The Applicant confirmed his attendance for this listing on 16 January 2026.

[12] At 10:00am on 2 February 2026, the Applicant had not joined the Microsoft Teams Meeting Room. The two Respondent party attendees had joined the Meeting Room and there were no connection issues with their two devices. My Associate then made a telephone call to Mr ul Abideen's nominated telephone number provided on the originating application form. The Applicant did not answer the call and a voice message was unable to be left. My Associate made a further telephone call at 10:03am which was not answered and a voice message was unable to be left.

[13] At 10:07am, my Chambers emailed the Applicant resending the Microsoft Teams link and requesting that he urgently attend. It was confirmed by email with the Applicant that two attempts to call him had been made, before this piece of correspondence was sent.

[14] At 10:10am a profile named 'Zain Ul Abideen' joined the Teams Meeting Room. After admitting the profile, the user was unable to turn on the camera or place himself off mute. The profile then suddenly left the meeting. This occurred three further times. My Associate then made a further telephone call at 10:13am and was again unable to leave a voice message. At 10:16am, my Associate emailed the Applicant asking him to confirm in relation to the joining of the 'Zain Ul Abideen' device.

[15] At 10:18am, the Applicant emailed my Chambers stating that he was trying to join the meeting. At 10:21am, my Associate emailed the Applicant advising that she was about to telephone him on his nominated telephone number and requested he answer the call. It was also put to the Applicant that if he had an alternative phone number, that he should send this to Chambers on an urgent basis. My Associate then made two further telephone calls which were not answered and a voice message was again unable to be left. At 10:31am, my Associate again emailed the Applicant advising him that since the last correspondence to the Applicant, that two further attempts had been made to phone him and that no alternative phone number had been provided by him. It was also confirmed that the Respondent parties had joined the meeting. The Applicant did not respond to the two final emails.

[16] My Chambers at all times used the email address and telephone number that Mr ul Abideen had provided to the Commission on the originating Form F89 application form. At no time were alternative details sent to the Commission by the Applicant and the Applicant had further confirmed with my Chambers on 5 December 2025 that his contact number was the same one listed on his application form.

[17] No further communication was received from the Applicant that day regarding his failure to attend the Determinative Conference. As a result of the Applicant failing to attend the listed Determinative Conference on two occasions, the Respondent sought the dismissal of the application. After receiving the Respondent's application under s.536M of the Act, I directed the Applicant to provide a response to this application by 5 February 2026. The Applicant did not provide any material or respond to Chambers.

[18] I am satisfied that Mr ul Abideen has unreasonably failed to attend the listed Determinative Conferences, which were for the purposes of dealing with whether Mr ul Abideen was unfairly deactivated. At the time of the second listed Determinative Conference on 2 February 2026, the Applicant was on notice that his application may be dismissed if he did not attend this proceeding.

[19] On multiple occasions, my Chambers informed Mr ul Abideen that he was required to comply with Directions and required to attend the listed Determinative Conference. I am satisfied that the Applicant has unreasonably failed to attend the Determinative Conferences.

[20] The power under s.536M(1)(a) is discretionary and for the reasons above, I am satisfied that I should exercise my discretion in this matter to dismiss the s.536LU application pursuant to s.536M(1)(a) of the Act.

[1] Pallage v Rasier Pacific Pty Ltd [2018] FWC 2579; Suliman v Rasier Pacific Pty Ltd [2019] FWC 4807; Jama v Rasier Pacific Pty Ltd [2022] FWC 2946; and Zhuge v Uber Australia Pty Ltd [2024] FWC 911.

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