1 Fair Work Act 2009 s.536LU - Application for an unfair deactivation remedy Muhammad Ashrif v Rasier Pacific Pty Ltd Trading AS Uber (UDE2026/98) DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 20 APRIL 2026 Unfair deactivation application filed out of time – circumstances not exceptional – application dismissed. Introduction [1] This decision concerns an application by Mr Muhammad Ashrif (Applicant) for an unfair deactivation remedy pursuant to s 536LU of the Fair Work Act 2009 against Rasier Pacific Pty Ltd trading as Uber (Respondent). [2] The Applicant seeks an extension of time to lodge his unfair deactivation application in the Fair Work Commission. [3] The Applicant’s deactivation from the Respondent took effect on 31 December 2025. The Applicant lodged his unfair deactivation application in the Commission on 21 February 2026. [4] Section 536LU(3) of the Act states that an application for an unfair deactivation remedy must be made within 21 days after the deactivation took effect, or within such further period as the Commission allows pursuant to s 536LU(4). The period of 21 days ended at midnight on 21 January 2026. The application was therefore filed 31 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 536LU(4). [5] The Act allows the Commission to extend the period within which an unfair deactivation application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.1 Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.2 [2026] FWC 1394 DECISION [2026] FWC 1394 2 [6] The requirement that there be exceptional circumstances before time can be extended under s 536LU(4) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so. [7] Section 536LU(4) requires that, in considering whether to grant an extension of time, the Commission must take into account the following: (a) the reason for the delay; (b) whether the person first became aware of the deactivation after it had taken effect; (c) any action taken by the person to dispute the deactivation; (d) prejudice to the regulated business (including prejudice caused by the delay); (e) the merits of the application; (f) fairness as between the person and other regulated workers in a similar position; and (g) any processes specified in the Digital Labour Platform Deactivation Code, as the case requires. [8] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I will now consider these matters in light of the unfair deactivation application filed by the Applicant, the response filed by the Respondent, the material filed by the Applicant in accordance with the directions I made on 26 March 2026, and the fact that the Applicant was in Pakistan at the time of his deactivation and he returned to Australia on 13 January 2026. The Applicant informed the Commission of this fact at the directions hearing on 26 March 2026. Reasons for the delay [9] The delay required to be considered in s 536LU(4)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the deactivation took effect to the end of the 21 day period.3 However, the circumstances from the time of the deactivation must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.4 [10] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.5 [2026] FWC 1394 3 [11] The Applicant provided the following explanation for his delay in his email to the Commission received at 2:54pm on 31 March 2026: “I respectfully request that the Commission grant me an extension of time for my application regarding my unfair deactivation. I understand that applications are generally required to be submitted within 21 days. However, I would like to explain the circumstances that led to my delay. I initially created my account on 18 January and submitted an enquiry on 19 January, believing that I was proceeding correctly. As this was my first time dealing with this process, I had limited understanding of the appropriate procedure and timelines. After submitting my enquiry, I waited for a response. I also received a call from your office, which unfortunately I was unable to attend at the time. I expected a follow-up call and continued to wait. I also attempted to reach out but did not receive further communication. After approximately 10 days without a response, I became concerned and conducted further enquiries myself. I then contacted Fair Work and was informed that I had submitted my matter through the incorrect channel (Fair Work Ombudsman) instead of the Fair Work Commission. Following this, I was provided with the correct link, and I submitted my application on 17 February. I have attached all relevant correspondence, including my initial enquiry and the email containing the correct submission link, as evidence. The delay was not intentional but occurred due to my lack of knowledge of the process and confusion between different Fair Work bodies. I sincerely apologise for the delay and respectfully request that my application still be accepted. My work with Uber is my primary source of income, and my current financial circumstances are difficult. This matter is extremely important to me, and I kindly request the opportunity to have my case heard.” [12] The documents submitted by the Applicant to support his request for an extension of time establish the following chronology of events: Date Event Reference 21 August 2024 Applicant began working for the Respondent F89A 16 December 2025 Applicant temporarily suspended F89A – Annexure D 23 December 2025 Preliminary Deactivation Notice issued F89A – Annexure A 31 December 2025 Respondent notified Applicant about their deactivation from Uber F89A – Annexure B 31 December 2025 Deactivation took effect. Applicant was in Pakistan at this time F89A – Annexure B 13 January 2026 Applicant returned to Australia from Pakistan 18 January 2026 Applicant registered an account with the Fair Work Ombudsman Email “4” 19 January 2026 FWO sent a text message to the Applicant to inform him that the FWO would be calling him shortly. Applicant missed the call Email “9” 21 January 2026 21 days after deactivation took effect [2026] FWC 1394 4 24 January 2026 The Applicant responded to unmonitored text message from FWO about missing the call and being unaware at the time Email “9” 10 February 2026 The Appicant sent a follow up email to a ‘no reply’ email address at the FWO, stating that he was waiting for a call or email from the FWO Email “1” 17 February 2026 The Applicant made a phone enquiry with FWO, after which he was sent an email from the FWO providing a link to an application for unfair deactivation to be filed in the Commission Email “3” and “8” 20 February 2026 Date of Applicant’s unfair deactivation application F89 – document 6 21 February 2026 Applicant filed his unfair deactivation in the Commission Email “5” [13] I do not accept that the Applicant has provided a reasonable or acceptable explanation for the 31 day delay in filing an unfair deactivation application in the Commission. Although the Applicant’s first language is Urdu, he was able to communicate with the FWO and the Commission during January and February 2026 in relation to his unfair deactivation application. He was also able to prepare his unfair deactivation and file it in the Commission within four days of being sent a link to the application by the FWO on 17 February 2026. The principal reason for the delay in lodging the application in the Commission is, in my assessment, that the Applicant did not make sufficient inquiries after his deactivation to find out where to lodge an unfair deactivation application. There is plenty of publicly available information, including the Commission’s website, which explains in clear and simple terms that a person may challenge the fairness of their deactivation by filing an application in the Commission. If the Applicant had made reasonable efforts to discover this information in the period after his deactivation, I am confident that he would have been able to lodge his unfair deactivation application in the Commission with 21 days of his deactivation taking effect. [14] The absence of an acceptable or reasonable explanation for the 31 day delay weighs against a conclusion that there are exceptional circumstances. Whether the person first became aware of the deactivation after it had taken effect [15] The Applicant was aware of his deactivation on the day it took effect. Accordingly, this is a neutral consideration. Action taken to dispute the deactivation [16] The Applicant took action to dispute his deactivation by communicating with the FWO about his deactivation. This provides some weight to support the Applicant’s argument that there are exceptional circumstances. Prejudice to the Respondent [2026] FWC 1394 5 [17] I am not satisfied that granting an extension of time would cause any significant prejudice to the Respondent. This is a neutral consideration. Merits of the application [18] The Act requires me to take into account the merits of the application in considering whether there are exceptional circumstances. [19] The Applicant contends, in summary, that his deactivation was unfair because: • he was not given a proper opportunity to respond to the allegation made against him. At the time he received the initial deactivation notice, he was overseas in Pakistan and was unable to receive phone calls from the Respondent. The Respondent informed the Applicant that they would contact him, but he was already travelling and could not receive the call. As a result, the Applicant says that his side of the story was never properly heard; • the Respondent appears to have relied only on the customer’s complaint without conducting a fair and balanced investigation. The Applicant says that he was not given a reasonable chance to explain the situation or provide evidence before the decision was made; • deactivating his account without proper communication or procedural fairness has caused him financial hardship, and he believes the process followed was unjust and unreasonable; and • his deactivation was not consistent with the Digital Labour Platform Deactivation Code because he was not given a fair opportunity to respond before the decision was made. [20] The Respondent contends, in summary, that: • complaints had been made that the Applicant had engaged in multiple instances of discriminatory behaviour by denying service to riders due to their assistance animal, which was in violation of the Services Agreement and Community Guidelines; and • the Applicant’s deactivation was consistent with the Code. [21] Having regard to the material before the Commission, I consider the merits of the Applicant’s unfair deactivation application to be a neutral factor. Whether the Applicant was unfairly deactivated will depend on findings of fact that could only be made after the Applicant and other relevant witnesses give evidence and are cross examined. Fairness as between the person and other persons in a similar position [22] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various workers of a digital labour platform operator who were deactivated for the same reason. However, cases of this kind will generally turn on their own facts. [2026] FWC 1394 6 [23] In all the circumstances, I consider this factor to be a neutral consideration. Any processes specified in the Code [24] At this early stage of the proceedings I do not have sufficient information to determine whether the Respondent complied with each element of the processes specified in the Code. Accordingly, I will treat this factor as a neutral consideration. Conclusion [25] Taking into consideration the matters I am required to take into account under s 536LU(4) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. The Applicant does not have a reasonable or acceptable explanation for the 31 day delay in lodging his unfair deactivation application in the Commission. The fact that the Applicant took some action to dispute his deactivation weighs in his favour. The other relevant factors are neutral or of little weight. Having regard to all the material before the Commission, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon. [26] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 536LU(4) of the Act. Accordingly, the application for an unfair deactivation remedy must be dismissed. DEPUTY PRESIDENT Determined on the papers Printed by authority of the Commonwealth Government Printer <PR798849> 1 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]. 2 Ibid. 3 Long v Keolis Downer [2018] FWCFB 4109 at [40] 4 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31] 5 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39]