1 Fair Work Act 2009 s.536LU - Application for an unfair deactivation remedy Shah Nawaz v Portier Pacific Pty Ltd (UDE2026/10) COMMISSIONER PERICA MELBOURNE, 23 APRIL 2026 Application for an unfair deactivation remedy [1] On 23 December 2025, Mr. Shah Nawaz made an application to the Fair Work Commission under s 536LU of the Fair Work Act 2009 (Cth) (the Act) alleging he was unfairly deactivated by Portier Pacific Pty Ltd (Uber). Procedural history [2] On 18 February 2026, I conducted a mention in this matter. Mr. Nawaz attended that mention. Mr. Hugh Cranendonk, Associate at Dentons Australia Limited appeared on behalf of Uber. After the mention, I issued directions for the parties to file material on whether Mr. Nawaz was unfairly deactivated and a notice of listing for a determinative conference on 30 April 2026. [3] Mr. Nawaz was due to file his material on 3 April 2026. No material was received by the Commission. [4] On 7 April 2026, my Chambers sent an email to Mr. Nawaz seeking an update and providing a further opportunity to file his material. No response was received. Two days later on 9 April 2026, my Chambers contacted Mr. Nawaz by telephone. Mr. Nawaz answered and stated he could not speak as he was currently working. My Chambers told Mr. Nawaz an email had recently been sent and to review that email. After the telephone call, my Chambers sent another email providing a further opportunity to provide an update. The email also noted in the absence of a reply, “this matter will be listed for a non-compliance hearing, meaning your application may be at risk of being dismissed under s 587.” No response was received from Mr. Nawaz. [5] On 10 April 2026, my Chambers issued a notice of listing for a non-compliance hearing on 16 April 2026 to hear directly from Mr. Nawaz as to his failure to comply with the directions. My Chambers attempted to call Mr. Nawaz afterwards that day and left a voice message advising Mr. Nawaz an email had been sent and made a further attempt to contact him on 14 April 2026. [2026] FWC 1461 DECISION AND ORDER [2026] FWC 1461 2 [6] On 16 April 2026, Mr. Nawaz did not attend the non-compliance hearing. Mr. Cranendonk attended on behalf of Uber. Uber applied to have Mr. Nawaz’s application dismissed under s 587. I decided to list this matter for a show-cause hearing on 23 April 2026. My Chambers advised Mr. Nawaz by email that Uber had applied under s 587 for the application to be dismissed, that the matter was listed for a show-cause hearing and that his attendance was mandatory. [7] On 22 April 2026, My Chambers attempted to contact Mr. Nawaz by telephone, however, no response was received. [8] On 23 April 2026, Mr. Nawaz did not attend the show-cause hearing. Mr. Joshua Clarke, Senior Associate at Dentons appeared for Uber. At the end of the hearing, I indicated I would dismiss Mr. Nawaz’s application and would subsequently publish my reasons. Relevant Law [9] Section 587 of the Act provides as follows: 587 Dismissing applications (1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if: (a) the application is not made in accordance with this Act; or (b) the application is frivolous or vexatious; or (c) the application has no reasonable prospects of success. Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A. (2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application: (a) is frivolous or vexatious; or (b) has no reasonable prospects of success. (3) The FWC may dismiss an application: (a) on its own initiative; or (b) on application. [10] In Stewart v Enable Western Australia [2022] FWC 2238, Deputy President Binet provided a relevant analysis of the applicability of this section to this instance, as follows: “[8] Sub-section 587(2) prohibits the FWC relying on section 587 to dismiss an application made pursuant to section 365 on the grounds that the application is frivolous, vexatious or with no reasonable prospects of success. It does not however prevent the FWC from relying on section 587 to dismiss an application made pursuant to section 365 per se. [9] Nor does sub-section 587(2) limit the grounds on which the FWC may dismiss an application made pursuant to section 365 to only those circumstances in which the application is not made in accordance with the FW Act. [2026] FWC 1461 3 [10] For example, in McLeod v Kulgera Trading Company Pty Ltd [2014] FWC 2112, Vice President Catanzariti dismissed a section 365 application on his own initiative pursuant to section 587 on the grounds that the applicant had not responded to the FWC’s repeated attempts to get in contact with her and had failed to participate in a teleconference. [11] In doing so, the Vice President relied on a decision of Commissioner Gooley (as she was then) in Rebecca Tomas v Symbion Health [2011] FWA 5458 in which she stated: ‘[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and (c) do not limit Fair Work Australia’s power to dismiss matters for other reasons. [58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter.’” Consideration and Order [11] Mr. Nawaz has not responded to the Commission’s repeated attempts to contact him following his appearance at the mention on 18 February 2026. He did not comply with directions to file material in this matter and to attend two subsequent listings. I have decided to dismiss his application. [12] Applying the principle of a fair go all round to both employers and employees, I find Mr. Nawaz’ failure to participate in the Commission’s processes has required Uber to expend resources in responding to a claim that he does not appear to intend to follow through with. Further, taking into account fairness, justice, equity and good conscience, I find Mr. Nawaz has been given ample opportunity to make contact with the Commission but has failed to do so. [13] Uber has made an application under s 587(3)(b) seeking that the Application be dismissed. I find the Application should be dismissed. I order it to be dismissed. COMMISSIONER Appearances: Mr. Joshua Clarke, of Dentons Australia Limited, on behalf of the Respondent. [2026] FWC 1461 4 No appearances was made by Mr. Shah Nawaz or any person on his behalf. Hearing details: 23 April 2026 Microsoft Teams Printed by authority of the Commonwealth Government Printer <PR799004>