//
[212]
[2026] FWC 48
General information, not legal advice.
Fair Work Commission
2026-01-12
Original judgment source is linked above.
s.536LU - Application for an unfair deactivation remedy
Application for an unfair deactivation remedy - applicant was protected from unfair deactivation - complaints of alleged sexual misconduct - Digital Labour Platform Deactivation Code applied - Code not complied with - deactivation unfair - order for reactivation made - parties to confer on calculation of quantum of order to restore lost pay
"Our guidelines were developed to help make every experience feel safe, respectful and positive. ...
...We believe that everyone should feel supported and welcomed when interacting with others in the Uber community. That's why we've created standards and policies on physical contact, inappropriate conduct and sexual assault and misconduct, threatening and rude behaviour, post-trip contact, discrimination and property damage.
Inappropriate conduct and sexual assault and misconduct
We all value our personal space and privacy. It's OK to chat with other people. But please don't comment on someone's appearance or ask whether they are single or about their personal circumstances. Be mindful that people may not appreciate being asked about their personal life, including about children, work, where they live or their relationship status.
Sexual assault and sexual misconduct of any kind is prohibited. Sexual assault and misconduct refers to sexual contact or behaviour without explicit consent of the other person.
Personal space and privacy should be respected at all times. The following list provides
examples of inappropriate conduct but is not exhaustive:
Losing access to the Uber Marketplace Platform may be disruptive to your life or to your business. That's why we believe it is important to have clear standards that explain the circumstances in which you may lose access to the Uber Marketplace Platform. If you violate any applicable terms of your contractual agreement with Uber, or any other applicable policies, any one of these Community Guidelines or any additional policies and standards that are communicated by Uber to you from time to time, you can lose access to all or part of the Uber Marketplace Platform. ..."
"wanted money, then said he would give me $100 to kiss him and wouldnt take no for an answer and refused to leave and then continued to call me once i had closed the door" (reproduced verbatim)
"oh would much rather communicate through email thank god. \n\numm what happened basically, the deliver driver had called me 2 times while waiting at my door (i specify to leave it) and forced me to come out to collect or else it would be cancelled. i open the door and he shows me money in his hand and asks if i want money and I say no, and he keeps asking if ill kiss him for money. he hasnt yet given me my food so i have to actually reach out towards him to take it from him. \nhe then steps towards me to show me his bank account and the money in it continuously asking for favours. i close the door on him and he calls me again once more and stands there for another 2 mins before leaving. he also sent a message thru the app "em here��" which was just weird in itself." (reproduced verbatim)
"Hi Zeeshan Aslam Khan , This is [name redacted by Uber Eats] from the Community Operations team at Uber. As you may have already read in-app, following the review of the feedback that was received, I am letting you know that your access to the Uber app is now active. If you have not yet read this, please go to the homescreen of the Driver app, tap on the 'Acknowledge Community Guidelines' section, read the information provided and then tap on the 'I confirm my reacknowledgement' button. As mentioned, we received a concerning report from a customer on a recent delivery that you may have made unwanted sexual comments. Please be aware that if we receive further complaints of inappropriate behaviour that breaches our Community Guidelines , either individually or establishing a pattern of inappropriate behaviour while using the Uber app, we may have to review your access to the app in accordance with the agreed-to Terms & Conditions. Ensuring that our users are safe and comfortable while using the Uber app is important to us, and by continuing to use the app, you confirm that you have reread and reacknowledged the Community Guidelines. Thank you for your understanding." (reproduced verbatim)
"Delivery driver asked if I was alone at 1am on a dark road, if I had family near by and asked me for my Snapchat so he could try add me. He is Indian and I felt incredibly unsafe."
"Hi [name redacted by Uber Eats], Thanks for letting us know about this incident. We're
sorry to hear that the delivery person may have asked personal questions that made you feel unsafe. This is not the experience we want you to have. User safety is important to us here at Uber and this behaviour will not be tolerated, so we're happy you reached out to us. We will be looking into this incident and take the appropriate steps to ensure that this experience doesn't happen again. Our technology is a two-way street for both riders
and driver-partners, and driver-partners that behave inappropriately may have their access removed. Because of this, we've gone ahead and refunded the full amount of this rider payment. ..." (emphasis added, otherwise reproduced verbatim)
"UBER OK. Thank you so much for that. So Zeeshan, I'm just calling in relation to the feedback that we recently received. This is regarding that you may have asked personal questions which made the consumer feel uncomfortable. Do you remember anything like this?
DRIVER OK. Hmm. Can you tell like which of the deliveries so I can actually tell you about it?
UBER OK. What I can tell you is just the date when it happened, but I cannot go far beyond that. So this happened July 16th. Do you remember anything that will trigger a report like this?
DRIVER Yes. July 16, it was Wednesday and is it the customer female?
UBER But what I can, but what I can tell you is that the consumer felt uncomfortable with the personal questions that was asked during the delivery.
DRIVER Well, because as you see my profile, I'm doing Uber Eats and keep improving my ratings and like everyone happy with me. Like maybe one of the customer on 16th of July like maybe they are getting late because I was always on time, but maybe sometime in the night time there do not appear to be sober like I try to maintain a distance, but still they are angry. Like I don't know why. So I think on 16th of July like I think one of the customer was like it doesn't appear to be in like OK condition like I was thinking like he was having some drink or anything. So I properly followed the Uber guidelines. I maintain the distance and I, because you know in the in the night time there's darkness and also I also keep the torch with me. So I like even go to the door and drop that Uber order, and then I come back like I didn't talk because I think, the customer was talking something, but I didn't respond to anything. I said that's your order, you have a good night and then just come back. But I think the like customer was not in, you know proper condition like he was, he was like doesn't appear to be sober. This this also happens sometime before as well, because in the night time they are like not much every person not much like that but sometimes the customer appear to be aggressive due to sometimes we get late because there are many people also waiting at the stores, so we get late orders and then deliver to the customer. But so that's why sometimes customers become aggressive and then they in the aggressive they, they report our profile recently like one time also happened to me. So customer reported and then directly I called to Uber and tell them that the customer was aggressive like it doesn't appear to be so. So that's the issue. Other than that there was no, no other reason.
UBER OK, OK. I will be taking note of that. And if ever like that happens, when you mentioned that some of the customers are aggressive because of the late delivery, then please let us know so we can also take the appropriate actions on our end. OK.
UBER So OK, so I will be taking into consider we will be taking into consideration everything that you have shared with me. I will put that in the review of this incident. As at this time, your account is still temporarily placed on hold while we are doing a review of this incident, but since I already got you on the line, we will expedite this and I will get back to you as soon as possible. I cannot give you an exact time, timeframe for this, but rest assured that we will get back to you as soon as possible, OK." (emphasis added, otherwise reproduced verbatim)
This is Patrick from the Community Operations team.
A customer has provided feedback that you may have asked personal questions that made them feel uncomfortable on a recent delivery on 16th of July, which is a breach of Uber's Community Guidelines.
If you disagree with this feedback and have any information to share with us, please do so by replying to this message and our specialised team will take it into account.
Anyone who accesses the Uber app is required to follow our Community Guidelines. Serious or repeated claims of sexual misconduct or reports of inappropriate commentary made may result in the removal of your access to the Driver app.
To know more about the reasons that can lead to the removal of access to the Uber Driver app, please refer to the 'Help keep one another safe' section, specifically 'Be alert' in the Uber Community Guidelines. We also have a course explaining the Community Guidelines that you might find helpful, click here to learn more.
You may seek assistance or support from a person (other than a lawyer acting in a professional capacity) in relation to this message.
We take the safety and well-being of all users seriously, so we hope you understand our position.
This is to let you know that your access to the Uber app has been reactivated. Due to the nature of the report, standard safety measures were taken while we reviewed the matter at hand.
Ensuring that our users are safe and comfortable while using the Uber app is important to us, and we appreciate you for understanding our position. Thank you for your cooperation."
You're receiving this message because a review of your account found that you have previously been reported for multiple instances of sexual misconduct - asking favours and asking personal questions, which is a direct violation of your agreement with Uber and we are considering terminating your access to the Uber Driver app.
Please note that when we were made aware of these previous reports, we also made sure to notify you, these were sent on the following dates:
You should be able to find these in the Messages section of the Uber Driver app. You may also find other safety related notifications we have sent you in the past.
Reports of behaviour of this nature 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...
Respond to this Notice: You may provide an explanation or relevant information regarding the flagged activity. Please respond using the link below within 7 days from the date of this notice to ensure your input is considered.
Request a Discussion: You may also request a discussion with a representative of Uber Eats. If you wish to do so, please submit your request using the link below within 2 days.
Click here to request a discussion ..." (reproduced verbatim)
"I am writing to respectfully address a recent issue regarding the temporary ban on my Uber account, which occurred on July 17. I was deeply concerned to see the restriction placed on my account, as I have always strived to maintain the highest standards of professionalism and service while working with Uber since 2022. Following the ban, I received a call from Uber Support on July 18, during which I explained the situation. That day my uber account back to Active status and than today 20th july again account banned due to the recent flag report. i want to tell you that the customer was not in normal condition and was visibly upset at the time of the delivery and not looking sober. Despite this, I maintained a respectful distance, completed the delivery as required. To my surprise, I later found that a complaint had been filed against me, leading to the suspension of my account. I would like to highlight that I consistently follow Uberʼs community guidelines and take pride in my work." (emphasis added, otherwise reproduced verbatim)
"...So at that time, like that customer on 16 of July, like not was looking in the proper condition, not looking as sober and was looking upset, and like the customer was saying some [00:02:26] but I didn't listen to, I always do the [00:02:29] like everyone quiet and dark and everything like that, so always maintain the distance. I properly like handed over the food and then I stand back to the other deliveries, so like there was nothing, any sort of you know comments from my side, because I facing the [00:02:50] like customers and the nighttime sometime they feel less [00:02:54], so they are usually like this, but they never do that, but next day I see that the customer reported such type of thing, but the customer was not looking sober, like customer was very upset and saying some word...
Customer was looking upset, having anger and something like that. Due to like maybe he's been having drinks or maybe having feeling that order is late or something like that." (reproduced verbatim)
After carefully reviewing your account and the information you submitted as part of your response, we've decided to terminate your access to the Uber Driver app for the reasons outlined in the preliminary deactivation notice previously sent to you. This decision is final.
This deactivation will take effect immediately upon receipt of this email." (reproduced verbatim)
(3) whether the deactivation was consistent with the Code.
(1) Mr Khan filed his application within the statutory time period. It was made on 1 August 2025, two days after his deactivation; and
(2) Mr Khan was an employee-like worker who performed work through or by means of Uber Eats' digital platform, and who had been doing so on a regular basis for a period of at least six months at the time of his deactivation.
The deactivation was not consistent with the Code
(1) specify the reason for the warning (relating to the worker's conduct or capacity);
(2) state that the worker risks being deactivated from the digital labour platform if the reason for the warning is not remedied or repeated, or another conduct or capacity issue arises; and
(3) state that the worker may seek assistance or support from a person (other than a lawyer acting in a professional capacity).
Uber Eats' reliance (in the alternative) on the exception in section 9 of the Code
(1) whether there was a valid reason for the deactivation related to Mr Khan's capacity or conduct; and
(2) whether any relevant processes specified in the Code were followed; and
(1) In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.
(2) It is not enough for a digital labour platform operator to establish that it had a reasonable belief that the worker engaged in particular conduct.
(3) The digital labour platform operator bears the evidentiary onus of proving that the conduct on which it relies took place.
(5) It is necessary to consider whether the digital labour platform operator had a valid reason for the deactivation of the employee-like worker, although it need not be the reason given to the worker at the time of the deactivation.
(6) A "valid" reason for deactivation is one that is "sound, defensible or well founded" and not "capricious, fanciful, spiteful or prejudiced." A reason that is "valid" will involve something more than a minor failing or trivial misdemeanour, and must be of sufficient gravity or seriousness to justify deactivation.
The reason for deactivation given in the final deactivation notice
The reasons for deactivation relied on by Uber Eats at the hearing
Uber's reliance on the messages from the First User and Second User
"The Respondent has processes in place that evaluate the veracity of complaints made by users of the Uber Delivery Platform. This includes assessing whether a complainant has a pattern of bad faith reporting, referred to as 'fraudulent indicators'. When the Respondent conducted a review of each of the following complaints made against the Applicant, no fraudulent indicators were identified on behalf of the relevant complainants."
"So once the respondent receives a complaint - the respondent receives a complaint from a customer one of the checks that is done is to review that customer's details to try and understand, and guess it's a way to verify whether it's a vexatious or otherwise false complaint. So they look back at is what we call fraudulent indicators. ...And that will look at the appeals that the adjustments and appeasements that a customer has raised. So have they, for example, raised a lot of complaints in order to obtain refunds in a certain period? So the system will automatically flag where that has occurred. But also there will be a bit of a look back to see does this customer have the history of raising complaints in general or in similar - sort of a similar nature to the one that the team is considering at the time."
"The Uber Delivery Platform provides options for Users to make complaints. This is an important part of protecting the health and safety of Users as well as supporting the reputation of the Uber Delivery Platform. The Respondent takes measures to verify complaints including speaking with the complainant when required and reviewing its own data where relevant or possible. This ensures the validity of complaints. The Respondent may take action based on the complaints but does not request that any complainant provide statements or give evidence about their complaint.
In this regard the Respondent protects the privacy of its Users, a matter which is reflected in section 17 of the Code. This is also important to the reputation of the Respondent in that Users should have the ability to make reports about conduct on the part of Delivery People which threaten their safety and expect that the Respondent will take action to avoid the conduct being repeated without the User being required to make a statement or give evidence."
Did Mr Khan engaged in the conduct alleged in the 2024 Complaint?
Did Mr Khan engaged in the conduct alleged in the 2025 Complaint?
Conclusion - there was no valid reason for the deactivation
(a) Mr Khan was provided only with the vaguest of descriptions as to what he was alleged to have done. Uber Eats' reference in its message to Mr Khan of 22 August 2024 to "feedback...regarding inappropriate behaviour" was too broad to be of any assistance to him. The invitation in that message for Mr Khan to respond with "any additional information or questions regarding the reported incident" was hollow in the absence of details of the incident. Significantly, that is the only evidence of Mr Khan's views on the incident being sought.
(b) Yet Mr Khan did ask a question: "can you please explain why the account is on hold[?]". There is no evidence that Uber Eats provided a substantive answer.
(c) Uber Eats' reference to "unwanted sexual comments" in the First Warning would similarly have given Mr Khan no inkling as to what was alleged against him. Fairness required that the allegation that he had solicited a kiss from a customer in return for payment to have been put squarely to him.
(d) Mr Khan was not made aware that Uber Eats was relying on the Chronicle data or given an opportunity to respond to the conclusions that Uber Eats apparently drew from it.
(a) As with the 2024 Complaint, Mr Khan was initially informed only that Uber Eats had received a "report...regarding inappropriate behaviour". To invite Mr Khan to provide "any information as to why this feedback may have been received" is meaningless without context.
(b) This was compounded by the way in which the person from the Uber Safety Team conducted their conversation with Mr Khan on 19 July 2025. They referred to feedback that Mr Khan "may have asked personal questions that made a consumer feel uncomfortable", and asked oblique questions such as "Do you remember anything like this?" and "Do you remember anything that will trigger a report like this?"
(c) Further, in that conversation Mr Khan was refused any information which may have allowed him to properly respond to the allegation. He was provided only with the date on which the conduct allegedly occurred. The assistance that this would have given to Mr Khan has to be considered in light of his evidence that he made 15 to 20 deliveries that night.
(d) Mr Khan was left to guess as to what might have prompted the complaint. It is clear from the record of the conversation on 19 July 2025 that Mr Khan was groping to recall any incident on 16 July 2025 that might have prompted a customer to complain about him. He recounted an exchange with a belligerent and possibly inebriated male customer. Despite that incident bearing no resemblance to the one described in the 2025 Complaint, the Uber Eats representative did nothing to suggest to Mr Khan that he was "barking up the wrong tree".
(e) In any event, the language of the message that Uber Eats sent to the Second User on 18 July 2025 suggests that it had determined that Mr Khan had engaged in the conduct alleged against him, before having heard from Mr Khan.
(3) In relation to the preliminary deactivation notice:
(a) Uber Eats again changed its description of the allegations against Mr Khan - wrongly, for the reasons I have explained - to "multiple instances of sexual misconduct - asking favours and asking personal questions", including "soliciting [a] sexual act". However, it once again failed to provide any information to enable Mr Khan to understand and properly respond to the allegations against him.
(b) There is no evidence to support the statement in the preliminary deactivation notice that Uber Eats had notified Mr Khan on 22 August 2024 that he may have been "soliciting [a] sexual act". That particular allegation seems to have been put to Mr Khan for the first time in the preliminary deactivation notice. But again, there was no information as to the "sexual act" that he was said to have solicited and how he allegedly did so. Given that the Community Guidelines refer to "sexual conduct" as including "sexual intercourse, masturbation or touching or exposure of sexual body parts", what would a person in Mr Khan's position have understood by allegations that he had solicited a "sexual act"? The potential breadth of the term called for the allegations to be put to him squarely.
(d) Mr Khan's written response to the preliminary deactivation notice of 21 July 2025, and his comments during his conversation with the person from Uber Support on the same day, continued to be premised on the misunderstanding that the 2025 Complaint had arisen following his interaction with a potentially inebriated male customer. It ought to have been apparent to Uber Eats that Mr Khan was not responding to the circumstances of the 2025 Complaint. Once again, though, Uber Eats did nothing to correct him or to provide him with additional information to enable an informed response.
"I know our agents are trained to be extremely cautious with customer data and I think that would be the root cause of how this conversation would have - or the way that these questions would have been put to Mr Khan. The way that you phrased it in terms of guiding him towards another incident, that may have occurred on the same date, is a possible alternative. So that that's something that Uber could have done. But, yes, as it currently stands the agents are very protective of trying of identifying complainants specifically, given delivery people typically do deliver food to people's houses. And so there is quite a concern on behalf of Uber of giving rise to any sort of retaliation risk."
"...I was not provided with a detailed explanation of the allegations, and details about the complainant, or clarification of the specific delivery trip(s) involved. This lack of transparency severely restricted my ability to respond effectively or present relevant information in my defense [sic]."
(1) the person has made an application under section 536LU;
(2) the Commission is satisfied that the person was protected from unfair deactivation at the time of being deactivated; and
(3) the Commission is satisfied that the person has been unfairly deactivated.
(a) for the purposes of section 536LD(c) of the Act, Mr Khan is deemed to have performed work through or by means of Uber Eats' digital labour platform on a regular basis during the period from 20 July 2025 to the date on which his access to the digital labour platform is reinstated; and
(b) Uber Eats offers to Mr Khan that he be engaged on the same terms and conditions as those on which he was engaged by Uber Eats immediately before his deactivation on 29 July 2025.
(1) the amount of any remuneration earned by Mr Khan from work of any kind during the period between the deactivation and the making of the order for reactivation; and
(2) the amount of any remuneration reasonably likely to be earned by Mr Khan during the period between the making of the order for reactivation and the actual reactivation.
"[131] The purpose of an order to restore lost pay under s 536LQ(3)-(4) of the Act is to place an employee-like worker in the financial position they would have occupied had they not been unfairly deactivated. This will generally involve the following steps:
(a) Assessing lost earnings: Determine the amount of remuneration the worker would have earned from the digital labour platform operator during the period between deactivation and reactivation. In many cases, calculating the average of the worker's weekly earnings from the digital labour platform in the period leading up to the deactivation will provide a reasonable estimate of the earnings they would likely have received had they continued working.
(b) Deducting substitute earnings: Subtract any earnings the worker received from other employment or working arrangements during the period between deactivation and reactivation, but only to the extent that such work would not have been undertaken had the worker remained active on the platform. That is, if the worker had a second job and would, in the counterfactual scenario, have continued working in that job to the same extent, those earnings do not replace remuneration lost because of the deactivation.
There will need to be a slight adjustment to this calculation if the worker's actual reactivation takes place after an order for reactivation is made. In such circumstances, s 536LQ(4) of the Act requires that the Commission take into account:
(i) the amount of any remuneration earned by the person from work of any kind during the period between the deactivation and the making of the order for reactivation; and
(ii) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reactivation and the actual reactivation.
(c) Deducting avoided expenses: Subtract any expenses the worker would have incurred had they continued working through or by means of the platform during the period between deactivation and reactivation. This ensures that any order to restore lost pay under s 536LQ(3) of the Act is confined to 'remuneration lost, or likely to have been lost, because of the deactivation'."
(1) An average of Mr Khan's weekly earnings from Uber Eats in the period leading up to 20 July 2025 - the date on which Uber Eats suspended his access to the Uber Delivery Platform - will provide a proper basis to calculate the earnings he would likely have received had he continued to work on the Uber Delivery Platform in the period between 29 July 2025 and the date on which his account is reactivated. I observe that after 20 July 2025 Mr Khan performed no work on the Uber Delivery Platform. His average earnings ought not be reduced as a consequence.
(1) The parties are to confer with a view to reaching agreement on the quantum of an order to restore lost pay for Mr Khan, using the methodology set out in Hotak to calculate the quantum, having regard to my findings at [92] above.
(2) Uber Eats is to inform me, by email to my Chambers, of the outcome or status of the parties' discussions (as the case may be) by no later than 4.00pm on 27 January 2026.
[1] In this decision, unless otherwise stated, all references to legislation are to provisions of the Act
[3] The Delivery Person Agreement is Exhibit A to Mr Khan's submissions and Annexure A to the Statement of Emilee Fairlie dated 25 September 2025
[6] Exhibit B to Mr Khan's submissions; Annexure B to the Statement of Emilee Fairlie
[7] Respondent's Outline of Submissions, 25 September 2025, par 9
[8] Statement of Emilee Fairlie, Annexure G
[9] Statement of Emilee Fairlie, Annexure I
[10] Statement of Emilee Fairlie, Annexure G
[11] Statement of Emilee Fairlie, Annexure J
[12] Statement of Emilee Fairlie, Annexure K
[13] Statement of Emilee Fairlie, Annexure K
[14] Statement of Emilee Fairlie, Annexure J
[15] Statement of Emilee Fairlie, Annexure M
[16] Statement of Emilee Fairlie, Annexure O (Digital Hearing Book page 184). See also Transcript at PN379
[17] Exhibit D to Mr Khan's submissions; Statement of Emilee Fairlie, Annexure K
[18] Exhibit D to Mr Khan's submissions; Statement of Emilee Fairlie, Annexure N
[19] Statement of Emilee Fairlie, Annexure O
[20] Statement of Emilee Fairlie, Annexure P
[21] Exhibit D to Mr Khan's submissions; Statement of Emilee Fairlie, Annexure Q
[25] Within the meaning of section 536LD
[31] Respondent's Outline of Submissions, par 18(d)
[35] [1938] HCA 34; (1936) 60 CLR 336 at 361-362
[37] Statement of Emilee Fairlie, par 10
[39] Respondent's Outline of Submissions, pars 44 and 45
[40] See Briginshaw v Briginshaw [1938] HCA 34; (1936) 60 CLR 336 at 361-362
[42] Statement of Emilee Fairlie, Annexure P
[43] Statement of Zeeshan Asam Khan, 5 September 2025, par 3
[46] Mohammad Shareef Hotak v Rasier Pacific Pty Ltd [2025] FWCFB 214 at [117]
[48] Noting the prohibition against such an order in section 536LP(3)
[51] Clause 7.4(b)(iv) of the Delivery Person Agreement
[52] Definition of "Tolls" in clause 16.1 of the Delivery Person Agreement
Printed by authority of the Commonwealth Government Printer
Zeeshan Aslam Khan
Portier Pacific Pty Ltd [2026] FWC 48
(1936) 60 CLR 336