1 Fair Work Act 2009 s.536LU - Application for an unfair deactivation remedy Mr Muhammad Usman Rafique v Rasier Pacific Pty Ltd (UDE2025/311) COMMISSIONER CLARKE MELBOURNE, 16 MARCH 2026 Application for unfair deactivation remedy – whether relevant code complied with – whether deactivation unfair - application dismissed. [1] Mr Rafique (Applicant) had made an application pursuant to section 536LU of the Fair Work Act 2009, seeking an unfair deactivation remedy. The application was filed on 6 November 2025, in respect of a deactivation that was alleged to have occurred on that day, and thus was within the time permitted for the making of applications of this type. By the application, the Applicant sought reactivation of his Uber account. [2] The application incorrectly identified Uber Australia Pty Ltd as the respondent. At their request, Rasier Pacific Pty Ltd were substituted as the Respondent, during a case conference on 13 January 2026, which the Applicant failed to attend. [3] In its Response to the Application, the Respondent conceded that the Applicant had been deactivated on 6 November 2025, indicated that it opposed the application and wished to press a jurisdictional objection on the basis that it had complied with the Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024 (Code). Directions were issued to permit the determination of that objection and the merits of the matter concurrently. [4] The matter proceeded by way of a hearing on 24 February 2025, at which the Respondent was granted permission to appear. The Applicant provided minimal written material in support of his claim, but gave evidence and was cross-examined. The Respondent relied on a witness statement from Ms Tierney, an Industrial Relations Lead employed by it. She was minimally cross examined. Preliminary matters [5] To obtain a remedy in respect of an unfair deactivation, the Applicant must be both protected from unfair deactivation within in the meaning of section 536LD of the Act and have been unfairly deactivated within the meaning of section 536LF. There was no dispute that the Applicant was protected from unfair deactivation. But in order to find that the Applicant was unfairly deactivated, I must be satisfied of all three of the following matters: [2026] FWC 821 DECISION [2026] FWC 821 2 a) That the applicant was deactivated from a digital labour platform (which the Respondent has conceded); b) That the deactivation was unfair (which is disputed); and c) That the deactivation was not consistent with the Code (which is disputed). [6] This decision will address the last matter first, as is required by section 536LW of the Act. Before doing so, I set out some relevant background. Background [7] The Applicant commenced performing work on the Respondent’s digital labour platform as an Uber driver in or about July of 2021. The deactivation of his account occurred on 6 November 2025. [8] The Respondent’s reason for deactivating the account was that it believed the Applicant had engaged in street hailing and touting on two occasions. In particular, as set out in its response to the application, the Respondent considered that the Applicant had sought payments to be paid directly to himself for trips facilitated by its platform, and that such conduct was fraudulent or dishonest and posed a risk to safety. The Applicant, at least initially, disputed that this conduct occurred. [9] Street hailing or touting is dealt with in the Respondent’s “Community Guidelines”, in the sense that there are prohibitions on drivers accepting trip requests that they do not intend to complete, provoking passengers to cancel trips for fraudulent purposes, engaging in off-app pickups, and soliciting or accepting payments outside of the platform. The service agreement between the Applicant and the Respondent provided that the Respondent was entitled to terminate it if the Applicant breached the Community Guidelines or any other policy. The Applicant accepted in cross examination that he had entered into the Service Agreement and that the Community Guidelines were applicable to him. The first allegation [10] The first allegation of street hailing or touting was made in respect of conduct that the Respondent said had been reported to it on 21 September 2025, in relation to a passenger that the Applicant had interacted with that day. The extent of the complaint received from that passenger was as follows: “The driver asked us to pay him in cash after booking the uber. He said he wanted to skip the app charge. When we said we were more comfortable with bring [sic] dropped off and not paying any money he cancelled the ride on us” [11] The Respondent provided data from its systems in relation to this particular trip, which indicated that the Applicant cancelled the trip one minute and forty four seconds after picking up the passenger. [12] At the hearing, the Applicant did not recall the events the subject of the first allegation.1 [13] The Applicant was provided by the Respondent with an opportunity to, but was not required to, give an explanation for what occurred at the relevant time. The matter was disposed [2026] FWC 821 3 of from the Respondent’s point of view by issuing an “in-app message” to the Applicant the same day: “We wanted to reach out to you because we have received a report your vehicle was used to provide rides outside of the Uber driver app. If this is not the case, please let us know by replying to this message. Just so you know, Uber rides can only be requested through the app; ‘street hail’ and touting is not permitted under state regulations. Driver-partners who ignore this policy may be deactivated. You can see our deactivation policy here [hyperlink omitted]. We want to make sure that the Uber experience is a safe and comfortable one for all users, so we hope you understand our position. Thank you for your understanding” [14] This message bespeaks at the very least an openness on the Respondent’s part to being persuaded that the complaint was unwarranted. The Respondent was able to produce from its systems a record of the Applicant responding to that message, and its response to him.2 The Applicant’s response was: “what does this mean? im providing uber service within the platform and never the touching the phone while driving” [15] The Respondent’s reply to this included an acknowledgement that the Applicant “may disagree with the nature of its complaint” and noted that “we are not undermining your side of the report”. It concluded with a comment that “your patience and professionalism in this matter are worth mentioning”. The second allegation and the deactivation [16] The second allegation of street touting or hailing was made in relation to conduct the Respondent said was reported to it on 5 October 2025, relating to a passenger the Applicant had interacted with on 4 October 2025. The complaint the Respondent received relevantly said that the passenger had been charged twice, once via its platform and once via an Eftpos machine that the passenger said the driver had asked him to use. The passenger said that his driver had asked him for a verification code but his Uber app did not display one. The passenger said the driver drove him anyway but asked him to cancel the trip as they approached his destination, then pay via his efpos machine. [17] The Respondent provided some data from its systems in relation to the trip concerned. This data indicated, according to Ms Tierney, that this was not a trip in relation to which a PIN verification applied,3 however the passenger was picked up and the trip concluded at the intended drop off location.4 [18] Following the complaint, the Respondent on 6 October 2025 sent the Applicant a message via the Uber app, notifying him of a “concerning report that you may have been involved in street hail or touting” and of the suspension of his account “while we investigate further”. From 6 to 22 October the Applicant attempted to engage with the Respondent through [2026] FWC 821 4 the Uber app, and in that period he asked for his account to be reactivated no less than 53 times, receiving through the platform numerous repetitive and seemingly automated responses, some of which were illogical and unresponsive to the nature of the concern being raised. Ms Tierney acknowledged that some of the responses provided on behalf of the Respondent in that period were automated.5 Numerous times, the Applicant was told through this platform that his inquiry was being directed to specialists, but it was not until 23 October that a person from the Respondent actually had a telephone conversation with him. [19] The telephone conversation was recorded and transcribed. During that call, the Applicant told the Respondent’s representative that the passenger who had made the complaint was drunk - something that the Applicant raised with the Respondent a further three times before his final deactivation. The Applicant also told the Respondent that the customer had cancelled the trip when they arrived at the drop off location, then requested to go to another location and it was the journey to that other location that the Applicant had charged him for. [20] On 28 October 2025, the Respondent sent the Applicant a “preliminary deactivation notice”. Notwithstanding this, the notice said, inter alia “…we have suspended your access to the platform which takes effect immediately from the date and time of this notice 25 October 2025”. The notice gave the Applicant the option to respond in writing and to request a discussion. The Applicant did both, and the discussion took place on 30 October 2025. The final deactivation notice was provided on 6 November 2025. [21] During his evidence, the Applicant was taken to his application form in this matter and the statement therein that “I ask him to pay for the trip as I already drop him at the destination” and how this could be reconciled with his Statements elsewhere in the application that the customer’s complaint was false and that he did not ask for cash. At that point in his oral evidence, the Applicant made admissions: “And then, when I ask him – I tell him that I wouldn't get paid 'because you've cancelled', and I was worried about maybe he made a complaint for me and just asked for the refund from Uber and if then Uber refund the customer. So that is why when I ask him for, like, 'Pay for the trip because I drop you at your destination', he said, like, 'Okay, this amount is Uber is charging me, so I'm giving you this amount.' So this is all happened. I did not, like, charge intentionally, it was totally like he cancelled the trip and then I asked him for whatever he's paying to Uber. He was happy to pay me that – that amount.”6 [22] It became apparent that many of the Applicant’s statements to the Respondent through the chat feature of the Uber App, to the effect that the customer’s complaint must be false, that he had done nothing wrong and hadn’t sought a payment from the customer, were dishonest. The same can be said of the following exchange with the Respondent’s representative during a telephone discussion: “UBER Yes, but just to confirm … DRIVER You can see he cancelled the trip. UBER Yes, but just to confirm, you did charge them at the end. They did pay a price directly to you. DRIVER No, I did not charge them. [2026] FWC 821 5 UBER So, once they cancelled the ride, that was it. You did not ask for any payment, any type of payment. DRIVER No, I did not. I did not ask for any payment. I charged them zero dollars.”7 [23] Whilst there are conflicting accounts as to whom instigated the cancellation of the trip in question, the Applicant has now admitted that he did take direct payment from the passenger concerned. Further, he acknowledged in cross examination that the reason he did so was because he was concerned that he would not get paid by the Respondent for the trip.8 Compliance with the Code [24] I am required to determine whether the decision to deactivate the Applicant’s account was consistent with the Code. Part 2 of the Code sets out the requirements that are relevant to a deactivation process. I consider each of the relevant matters in this respect below. Warnings [25] Section 8 of the Code requires that a deactivation warning is given prior to deactivation. However section 9 of the code provides an exception to this rule if the operator of the platform considers on reasonable grounds that the matter of concern relating to the worker’s conduct or capacity is such that it warrants immediate modification or suspension of access to the platform, or it is not reasonable to expect the operator to allow the worker to continue to perform work through or by means of the platform. [26] It was part of the Respondent’s case that they did provide such a warning, on 21 September 2025 (which was before the subject matter of the second allegation was brought to its attention). The difficultly with this submission is that the Code is specific as to what such a warning must contain, and the communication of 21 September 2025 did not set out all matters that it was required to contain. In particular, it did not state that the worker could seek assistance in relation to the warning, which is a content requirement under paragraph (c) of subsection (2) of the Code. At the hearing, the Respondent submitted that the message on that day achieved substantial compliance with the Code. In my view, substantial compliance is not sufficient. [27] The Code is a legislative instrument which, by force of subsection 536LJ(2) of the Act is required to deal with matters including: rights of response to deactivations, internal processes of digital labour platform operators, communication between the employee-like worker and the digital labour platform operator in relation to deactivation and the accessibility in practice of the internal processes of digital labour platform operators in relation to deactivation. The legislature has also chosen to define, in subsection 546LJ(3), when a deactivation is consistent with the Code so as to enliven the exclusion in section 536LF: “A person’s deactivation was consistent with the Digital Labour Platform Deactivation Code if, at the time of the deactivation, the digital labour platform operator complied with the Digital Labour Platform Deactivation Code in relation to the deactivation” (emphasis in original). This definition could reasonably have indicated that substantial compliance with the Code was sufficient, if that were the legislature’s intent. But the purposes to which the Code is directed clearly encompass matters in the nature of procedural fairness standards, in a context of the [2026] FWC 821 6 ending of relationships which the legislature has chosen to describe as “employee-like”. Having regard to the statutory context, I do not consider it is open to me to treat substantial compliance with the Code as sufficient for the purposes of determining that a deactivation is consistent with that Code.9 [28] In the alternative, the Respondent submitted that a warning was not required in the circumstances, in reliance on the exception in section 9 of the Code. In particular, the Respondent adopted the position that the two complaints about street touting or hailing which it had received in relation to the Applicant, were reasonable grounds for forming a view that the Applicant’s conduct was sufficiently serious to warrant immediate suspension. Certainly, street hailing or touting was prohibited by the agreement the parties had reached, and there is precedent in this Commission for such conduct being regarded as sufficiently serious to justify immediate termination because it is fundamentally incompatible with allowing the Respondent the benefit of the agreement it has reached with its drivers and is dishonest.10 I accept that a warning was not required by the Code in the circumstance. Preliminary Deactivation Notice and suspension [29] As with a deactivation warning, the Code specifies content requirements for a preliminary deactivation notice. The notice that was titled a “preliminary deactivation notice” and sent to the Applicant on 28 October 2025 complied with those content requirements. [30] However, the preliminary deactivation notice was sent 22 days after the Applicant’s account had been suspended. This raises an issue of whether paragraph (a) of subsection (4) of section 12 of the Code was complied with. The issue of concern is evident once that provision is read alongside subsection (3) of section 12: “(3) If the digital labour platform operator modifies or suspends the employee‑like worker’s access to the digital labour platform, the operator must notify the worker, in writing, of the following matters: (a) the time and day from which the modification or suspension takes effect; (b) the consequences of the modification or suspension for the worker’s access to the platform. (4) The matters under subsection (3) must be notified as follows: (a) if the modification or suspension takes effect before the digital labour platform operator gives a preliminary deactivation notice to the employee‑like worker—as part of the preliminary deactivation notice to be given to the worker as soon as reasonably practicable after the modification or suspension takes effect; (b) if the modification or suspension takes effect at the same time as the preliminary deactivation notice is given—as part of the preliminary deactivation notice; (c) (c) if the modification or suspension takes effect after the preliminary deactivation notice is given—before the modification or suspension takes effect.” [31] The process the Code envisages is thus that a preliminary deactivation notice is sent to an already suspended worker as soon as reasonably practicable after their suspension takes [2026] FWC 821 7 effect. There was no evidence provided that satisfied me of compliance with this requirement. The evidence of Ms Tierney in respect of that period was that the “time frame does feel long”,11 and the submission was made more generally that the Respondent has many drivers to deal with and sometimes its capacity is tested in terms of responding to complaints efficiently.12 Be that as it may, the sending of a preliminary deactivation notice is not an onerous step, particularly given its standard content requirements and the fact that it may be (and in this case, was)given electronically. In my view, in sending the preliminary deactivation notice 22 days after the suspension of the Applicant’s account, the Respondent did not send the notice as soon as reasonably practicable after that suspension took effect. Procedure following the preliminary deactivation notice [32] As noted in paragraph [20] above, the preliminary deactivation notice offered the Applicant an opportunity to respond in writing and to discuss the matters raised therein, and the Applicant utilised both those opportunities. These events reflect that some requirements of section 13 of the Code were complied with. [33] However, subsections (7) and (8) of section 13 require further consideration on the facts of this matter. Those subsections provide: “(7) A human representative of the digital labour platform operator must consider the employee-like worker’s response (if any), including the discussion (if any) between the worker and the digital labour platform operator’s representative. (8) The digital labour platform operator must make such further inquiries (if any) as are reasonably warranted after considering the employee-like worker’s response.” [34] Putting the Applicant’s admissions at the hearing aside, the complexity here is that, on any sensible reading, one of the important pieces of information contained in the transcript of the telephone call of 23 October between the Applicant and the Respondent was that the Applicant said he had not charged the passenger for his uber trip. Rather, it seems the Applicant’s position was that after the passenger cancelled the uber trip on arriving at the destination booked in the uber app, he requested to be taken somewhere else and it was for that second journey that he was charged on the eftpos machine. The Appicant had also said in that call - and in the call on 30 October prompted by the preliminary deactivation notice, and in the written response to the preliminary deactivation notice, and in messages through the app - that he believed the passenger was drunk. The question is, how are these statements to be weighed in assessing the Respondent’s compliance with its limited duty to make further inquiries as expressed in subsection (8) of section 13. In particular, does that subsection only cast a duty to make further inquires where they are indicated in the terms of the workers’ responses to the preliminary deactivation notice (and thus allow the totality of any exculpatory evidence from other sources that the Respondent might have been given, such as daschcam footage, to be wilfully ignored), or does it merely impose a duty that is temporally located, that is, the duty to make such further inquiries only arises after considering those responses. I consider the second reading to be more consistent with the language, object and purpose of the Code. [35] Division 3 of Chapter 3A of the Act is concerned with providing remedies against deactivations that are unfair, which is a judgement under section 536LH to be based largely on whether there was a valid reason for a deactivation and whether “relevant processes” specified [2026] FWC 821 8 in the Code were complied with. The Code is required, among other things, to deal with “rights of response to deactivations”, “matters that constitute or may constitute a valid reason for deactivation”. A corollary of the right to respond to have that response considered. One would expect the Code to use clear, direct language if it had intended to permit the operators of digital platforms to “put out of mind” a worker’s responses during an investigative process. And indeed, it does use such direct language elsewhere, at subsection (9) of section 13: “(9) If: (a) a preliminary deactivation notice is issued to an employee-like worker after a report or complaint about the worker is made to the digital labour platform operator; and (b) the report or complaint concerns a matter that, if true, would constitute a valid reason for the deactivation of the worker; and (c) either: (i) the worker’s response to the notice under this section does not provide adequate information to address the report or complaint; or (ii) the worker provides no response to the notice under this section; then, if the operator terminates the worker’s access to the platform, the termination is taken, for the purposes of subsection 14(4), to be termination for a valid reason that the operator considers on reasonable grounds has been established.” (emphasis added) [36] By a clear linguistic choice to refer to a “response to the notice under this section”, paragraph (c) of subsection (9) means that the effect of that subsection is that a subsequent deactivation is taken to be for a valid reason if it emanates from a report or complaint referred to in paragraph (a) for something that would be a valid reason and is not challenged by the “response to the notice under this section” – it does not matter if it is challenged by other information. Be that as it may, that does not excuse any non-compliance with the other provisions of the Code. [37] In this matter, armed with the Applicant’s explanation on 23 October and his repeated claims that the complainant was drunk, it would have been reasonable to make further inquiries of the complainant. These ought rationally and reasonably have included asking the complainant whether he considered himself intoxicated and impaired at the relevant time and if the sequences of events that the Applicant claimed had occurred were possible in his view. Process generally [38] Division 4 of Part 2 of the Code regulates the timing of processes required under the Code and the right of workers to be represented, while also making provision for dealing with personal and other information and giving primacy to directions by law enforcement and regulatory agencies. The Applicant did not seek to involve a representative and there is no issue raised around the inappropriate disclosure of information or cooperation with directions by law enforcement. However, I am concerned about the issue of timing in the facts of the present matter, having regard to paragraph (a) of section 15 of the Code, which requires that a digital [2026] FWC 821 9 platform operator must use reasonable endeavours to ensure that a process required to be conducted in accordance with Part 2 of the Code is carried out within a reasonable timeframe. [39] Compliance with this provision was not addressed in the Respondent’s written submissions, nor was the issue of “reasonable endeavours” dealt with directly in the evidence the Respondent presented. The Respondent’s submissions on this issue acknowledged that the evidence indicated a “long time frame”13 and, as noted before, that sometimes its capacity is tested when responding to complaints. [40] What is apparent is that the Applicant was suspended from 6 October, became clearly frustrated with the lack of response he was receiving, and didn’t get to have a discussion with anybody from the Respondent until 23 October. Five days later, he received a preliminary deactivation notice, and had a further conversation in short order on 30 October, but then again heard nothing until 6 November. The whole process of putting the Applicant on notice of a concern in relation to the second allegation, leading to the deactivation, took a calendar month. I do not consider that is a reasonable time frame, because it doesn’t appear to me that there was much activity spread out across that period. Reasonable endeavours to deal with a matter of this type, where a suspension is in place, are clearly important because a person in the Applicant’s position is deprived of their income from the platform during this time. The Respondent ought not be indifferent to this predicament, even if a driver concerned may have some alternate income sources. In the absence of any evidence that the Respondent took any steps to try and deal with the matter in less than the month it took, I am unable to reach a state of satisfaction that this element of the Code was complied with. Conclusion on compliance with the Code [41] On the basis of the above, my finding is that the Respondent did not comply with the Code. In particular, I have found that they did not comply with paragraph (a) of subsection (4) of section 12, subsection 8 of section 13 and paragraph (a) of section 15 thereof. As a result, I must now turn to the question of whether the deactivation of the of the Applicant was unfair. Was the deactivation unfair? [42] Section 536LH of the Act requires the Commission to take the following matters into account in determining whether a deactivation was unfair: a) Whether there was a valid reason for the deactivation related to the person’s capacity or conduct; and b) Whether any relevant processes specified in the Code were complied with; and c) Any other matters that the Commission considers relevant. It is to those matters which I now turn. Valid reason [43] In Hotak v. Rasier Pacific Pty Ltd14, a Full Bench of the Commission set out the following principles as relevant to a determination as to whether there was a valid reason related to capacity or conduct: [2026] FWC 821 10 (a) 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. (b) 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. (c) The digital labour platform operator bears the evidentiary onus of proving that the conduct on which it relies took place. (d) In cases where allegations of serious misconduct are made, the Briginshaw standard applies so that findings that a worker engaged in the misconduct alleged are not made lightly. (e) 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. (f) 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. [44] It should also be noted that in Hotak15 and cases since,16 the limitations of indirect evidence about whether conduct alleged to have occurred did in fact occur have been recognised. [45] The Respondent submits that a valid reason lies in the conduct the subject of the first and second allegations collectively. However, it seems that the first allegation was dealt with from the Respondent’s perspective by the issuing of a warning, which was given in terms that were not conclusionary as to a finding or belief that the conduct complained of had occurred. [46] The Applicant does not have any recollection of the conduct the subject of the first complaint. I accept that the making of a complaint by a customer that the Applicant cancelled the trip promptly after arriving at the pick up point, is corroborated geographically and temporally with the data extracted from the Respondent’s systems. In circumstances where the Applicant contributes no explanation at all, I am prepared to accept on balance that the conduct complained of occurred. However, the decision of the Respondent to treat the matter with a warning suggests that its relevance is contextual for making a judgment about the seriousness of subsequent touting or hailing activity, rather than being an independent valid reason for termination. [47] In relation to the second allegation, I am satisfied on the basis of the Applicant’s admissions at the hearing that he did request and accept payment outside of the Uber app for a trip the Uber App had facilitated. This was inconsistent with his obligations under the Service Agreement and the Community Guidelines with which he was required to comply, and was an effort by him to profit from the Uber platform without regard to the Respondent’s interests in that arrangement. [48] In the circumstances, I consider that there was a valid reason for the deactivation of the Applicant’s account. The Code [2026] FWC 821 11 [49] I have made findings in relation to non-compliance with the Code above. These findings do not assist the Respondent in defending the allegation that the deactivation was unfair. Other matters [50] The Applicant submits that his deactivation has placed him in significant financial distress and that the now admitted conduct in respect of the second allegation is the only mistake made by him during the several years that he has worked on the Uber platform. I understood the Applicant’s submission to effectively be that the deactivation was harsh and/or disproportionate. [51] I accept in general terms that a failure to comply with the Service Agreement and Community Guidelines might occur innocently, and that some breaches might be addressed by way of a discussion between the contracting parties about what was required to be done to remedy the non-compliance or to reset expectations. One can conceive of circumstances where there has been some non-compliance which is dealt with in that way, depending on its seriousness. And one of the relevant considerations in the decision making process would legitimately be the length of the contracting relationship and any issues that had arisen during it. [52] In the circumstances of the present case, whatever benefit might otherwise be available to the Applicant on the grounds of a history of compliance or the severity of the personal impact must be weighed against two things. Firstly, as I have found, it is more likely than not that the conduct described in the first allegation occurred, so the record may not be as unblemished as the Applicant suggests. More significantly though, it is clear that at material times, the Applicant has not been honest with the Respondent in his account relating to the subject matter of the second allegation. [53] But what is one to make of lack of honesty in dealings under what our domestic law, by force of statute, considers to be a commercial contract? This is not a fiduciary relationship, and it would be inappropriate to make any findings about the implication of any duty of good faith (mutual or otherwise) on the strength of the material provided in this case. It has not been suggested that a duty of trust and confidence (mutual or otherwise) is implied into the agreement between the Applicant and the Respondent either. The Services Agreement between the parties requires, at clause 5.1(g), a driver to cooperate and provide information to the Respondent in respect of particular incidents. This carries with it the implication in my view that the information so provided should be truthful. However, it was not suggested that either of the allegations at issue in this matter fell within the remit of that clause. In my view, the Applicant’s conduct in this case likely fulfilled three of the necessary five elements of the tort of deceit in the Magill17 sense, in that what was lacking was reliance by the Respondent on the Applicant’s denials and accordingly a lack of damage caused by such reliance. However, the above incomplete analysis of square pegs and round holes does not mean that the Applicant is free to make dishonest representations to the Respondent with impunity, so far as the statutory conception of what constitutes an “unfair” deactivation is concerned. That concept involves a balancing of interests directed to ensuring a “fair go all round”, as noted in section 536LC of the Act. The making of statements that are intentionally misleading in response to an investigation of a customer complaint, as occurred here, is in my view entirely appropriate to take into account as one of the species of “other matters” that must be weighed. [2026] FWC 821 12 Finding on fairness of the deactivation [54] Having considered the matters I am required to under section 536LH of the Act, including the presence of a valid reason, the failure to comply with aspects of the Code, and the other matters dealt with at paragraphs [50] - [53] above, I find that the deactivation of the Applicant was not unfair. Accordingly, the application must be dismissed. [55] An order giving effect to the correct title of the Respondent and the dismissal of the proceeding is published separately.18 COMMISSIONER Appearances: Mr M. Rafique, Applicant. Mr S. Beer, for the Respondent. Hearing details: 24 February. 2026. Printed by authority of the Commonwealth Government Printer <PR797613> 1 PN92-94 2 Exhibit R1. 3 PN372-375, 428. 4 PN359-362. 5 PN389-391. 6 PN169. 7 Annexure K to Exhibit R2, at hearing book page 115. 8 PN175. 9 See also the discussion in Otswald Bros v. CFMEU [2012] FWAFB 9512 at [37]-[65]. 10 Idrees v. Rasier Pacific Pty Ltd [2025] FWC 3412 at [26]. [2026] FWC 821 13 11 PN422. 12 PN571. 13 PN569. 14 [2025] FWCFB 214. 15 At [97]. 16 Warraich v Rasier Pacific [2025] FWC 3338 at [7]-[8], [71]; Khan v. Portier Pacific [2026] FWC 48 at [60]; Mansoor v. Rasier Pacific [2025] FWC 3111 at [34]-[35]; Al Hussein v. Rasier Pacific [2025] FWC 3176 at [42]-[43]. 17 Magill v. Magill [2006] HCA 51 at [114]. 18 PR797614.