1 Fair Work Act 2009 s.536LU - Application for an unfair deactivation remedy Maher Abdullatif Mohamed Abdulla v Rasier Pacific Pty Ltd (UDE2025/240) COMMISSIONER MATHESON SYDNEY, 5 DECEMBER 2025 Application for an unfair deactivation remedy [1] On 12 September Maher Abdullatif Mohamed Abdulla (Applicant) applied for an unfair deactivation remedy under Part 3A-3 of the Fair Work Act 2009 (Cth)(Act). Rasier Pacific Pty Ltd (Respondent) is a digital labour platform operator that operates the digital labour platform Uber. [2] The Applicant previously worked as a driver through the digital labour platform from 2 June 2017 until 9 September 2025, the date the Applicant was deactivated. [3] It is not in dispute and I find that the Applicant: • is an employee like worker (s.536LD(a) of the Act); • is a person protected from unfair deactivation (s.536LD of the Act); • made the application within 21 days after the day the deactivation took affect (s.536LU(3) of the Act). [4] The Respondent submitted that the deactivation was not unfair because the Applicant engaged in serious misconduct.1 In this regard, s.536LH(2) of the Act provides that despite s.536LH(1) and any other provision of Part 3A-3, a deactivation that occurs because of serious misconduct is not unfair. [5] Section 12 of the Act provides that ‘serious misconduct’ has the meaning prescribed by the Fair Work Regulations 2009 (Cth)(Regulations). Subregulations 1.07(1) and (4) relevantly provide: ‘Meaning of serious misconduct (1) For the purposes of the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning. Examples of serious misconduct – employee-like workers [2025] FWC 3747 DECISION [2025] FWC 3747 2 (4) For the purposes of subregulation (1), conduct that is serious misconduct includes the following conduct of an employee-like workers performing digital platform work through or by means of a digital labour platform, or under a services contract arranged or facilitated through or by means of a digital labour platform: (a) wilful of deliberate behaviour that is inconsistent with: (i) the employee-like worker continuing to perform that work; or (ii) the employee - like worker's continued access to that digital labour platform; (b) conduct that causes serious and imminent risk to: (i) the health or safety of a person; or (ii) the reputation, viability or profitability of the digital labour platform operator; (c) engaging in theft, fraud, assault or sexual harassment in the course of performing that work or in relation to accessing that digital labour platform; (d) being intoxicated in the course of performing that work (e) refusing to carry out a lawful and reasonable instruction that is consistent with: (i) the employee - like worker continuing to perform that work; or (ii) the employee - like worker's continued access to that digital labour platform. [6] The process in the Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024 (Code) does not apply to deactivation for serious misconduct.2 [7] In the alternative, the Respondent submitted that in the event that the Commission determines that the Applicant’s conduct did not amount to serious misconduct the Respondent submitted that it nevertheless complied with the Code.3 In the further alternative, the Respondent submitted that in the event that the Commission determines that the Respondent needed to comply with the Code and did not, the deactivation was otherwise fair.4 [8] In his submissions the Applicant denied the allegations and submitted that the Respondent: • failed to follow the Code; • acted disproportionately; • breached procedural fairness obligations; • misapplied s.536LH of the Act; and • relied on incomplete or selectively presented evidence.5 [2025] FWC 3747 3 [9] In his submissions, the Applicant disputed making discriminatory remarks and the accuracy of the quoted words.6 However, during the hearing the Applicant indicated that: • he did engage in the email exchange between 16 August 2025 and 9 September 2025 as referred to in Attachment F in Ms Tierney’s statement; • he engaged in the telephone conversations referred to in Attachments H and I of Ms Tierney’s statement; and • he did send the images in Attachment G of Ms Tierney’s statement. [10] The Applicant also submitted that the conduct does not meet the legal threshold for serious misconduct7 because: • it was not wilful or deliberate behaviour warranting exclusion from the platform; • it created no serious or imminent risk to health or safety; • it posed no risk to the reputation, viability, or profitability of Uber; • it was not threatening, discriminatory, or part of a pattern; • it occurred during a period of extraordinary personal stress supported by medical evidence.8 [11] The Applicant submitted that discrimination requires targeting a protected attribute, he did not target any protected attribute, he did not intend to cause harm and any tone or language used was reactive, emotionally charged, during acute stress and not malicious.9 [12] The Applicant submitted that there was no serious or imminent risk because the interactions were remote and there was no evidence of work health and safety reports, complaints, actual threats or suggestion of physical danger.10 [13] The Applicant denied a pattern of conduct and submitted that he did not have a history of warnings, complaints, rider issues, safety concerns, discriminatory conduct or threatening behaviour but rather had nine years of exemplary service.11 [14] The Applicant also said he was undergoing significant personal pressures, including full time care of a child with autism, care of a second child with frequent hospitalisations and care of his father with advanced Alzheimer’s disease.12 The Applicant provided a copy of a letter from his doctor, a general practitioner, who indicated that the Applicant had suffered challenges in his life and experienced transient stress that would have impacted his communication in a high pressure environment. Hearing and witnesses [15] A hearing was held on 2 December 2025 to determine the matter. The Respondent sought to be represented by a lawyer and having considered the submissions of the parties I found there was complexity associated with the matter in that the application is brought under Part 3A-3 of the Act which is a new jurisdiction in which the jurisprudence is continuing to emerge. Taking into account that complexity, I was satisfied the matter would proceed more efficiently with the assistance of a lawyer who is familiar with the emerging legal principles applicable to the relatively new jurisdiction. As such, permission was granted for the Respondent to be presented by a lawyer pursuant to s.596(2)(a) of the Act. [2025] FWC 3747 4 [16] Laura Tierney (Ms Tierney), the Industrial Relations Lead ANZ at Uber Australia Pty Ltd, gave evidence for the Respondent and a witness statement of Ms Tierney was filed on 19 November 2025. The Applicant gave evidence on his own behalf. Summary of evidence [17] The Applicant entered into services agreements with the Respondent on 4 May 2017, 1 December 2027, 31 January 2024 and 31 August 2024.13 The services agreements contained a clause requiring compliance with a document called the Community Guidelines (Community Guidelines).14 The Community Guidelines were last updated on 17 January 2022 and contain a section entitled ‘Treat everyone with respect’.15 This section of the Community Guidelines relevantly stated: ‘Treat everyone with respect Treat everyone in the Uber community as you would like to be treated yourself: with respect. The actions you take while using the Uber Marketplace Platform That's why you are expected to exercise good judgement and behave decently toward other people when using the Uber Marketplace Platform and interacting with others in the Uber community – just as you would in any public place. For example, always try to be on time for your ride or to pick up your delivery. It's also common courtesy not to shout, swear or slam doors… Most importantly, remember that when you interact with others in the Uber community, you may meet people who may look different from you or think differently than you. Please respect those differences. 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're 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: [2025] FWC 3747 5 • Do not engage in behaviours or make comments that could make people feel uncomfortable. … Threatening and rude behaviour Aggressive, confrontational or harassing behaviour is not allowed. Don't use language, make gestures or take actions that could be disrespectful, threatening or inappropriate. For example, don't share graphic images (such as those that are sexually explicit or depict physical violence) with others in the Uber community; this includes unsolicited sharing of such images through Uber’s online support systems or in connection with an Uber Marketplace Platform experience. It is also a good idea to stay away from personal topics that can potentially be divisive, black religion and political beliefs. … Discrimination You should always feel safe and welcome. That's why we don't tolerate discriminatory conduct or behaviour, including toward the Uber Support team or at Greenlight Hubs. Do not discriminate against someone based on traits such as their age, colour, disability, gender identity, marital status, pregnancy, national origin, race, religion, sex, sexual orientation or any other characteristic protected under applicable law. … You can learn more about Uber’s Non-Discrimination Policy here…”16 [18] On 16 August 2025 the Applicant submitted a request to the Uber Support platform for reimbursement of cleaning fees after a rider made his car dusty.17 This included an email from the Uber Support platform on 17 August asking for a photo of the cleaning receipt. The Applicant provided this on 17 August 2025 along with photos.18 [19] Between 17 August 2025 and 9 September 2025, the Applicant and the Uber Support platform exchanged further emails.19 This included 15 emails on 22 August 2025 sent between 9.09 PM and 9:16 PM after the Applicant learned he would be paid only $80 out of the $150 he had spent on cleaning. Many of those emails were laden with expletives and were inappropriate in nature. [20] The Applicant sent a further nine emails between 2:45 AM and 3:20 AM on 23 August 2025 in which he continued to express dissatisfaction about the matter and in two of those emails stated: • “i wish if i was about to talk to you [name] i would have ensured that you never mess around with me in your entire career at uber”; and • “i dare you , you contact me over the phone i dare you”. [2025] FWC 3747 6 [21] The Uber Support platform responded at 6:37 AM on 23 August 2025 in what appears to be an automated message which stated: “…we’re sorry to hear that this trip didn’t go as you would have liked. can you please provide me with a few more details about what happened so that we can look into this and take any appropriate next steps? user safety is important to us here at uber so we will treat this incident very seriously. we look forward to hearing from you.” [22] The Applicant responded stating: “which team are you from , are you from the cleaning fee team” to which it appears an auto-generated email was sent in response stating: “…i'm sorry to hear about the mess in your vehicle. to initiate the cleaning fee process, please respond to this message with a photo of the cleaning receipt. ensure the receipt includes all necessary details, such is the name of the car wash company, the date and time of the service, and the type of service performed. additionally, we require two clear and unique photos of the mess. kindly send these photos so we can proceed with your request. it would also be helpful if you could confirm the substance of the mess and explain how it occurred, as this information will assist us in providing the appropriate cleaning fee and charging the rider accordingly. to identify the trip in question, please provide the following details: rider name – trip date – trip time – pickup/dropoff location(s) – trip face – this information will help us assess the severity of the mess expedite the process of your cleaning fee. we appreciate your patience while we resolve this issue. you can learn more about the cleaning fee process here. thank you for reaching out to us.” [23] The Applicant, clearly dissatisfied at how his concern was being handled, sent a further five emails between 10:51 AM and 10:55 AM on 23 August 2026, including emails stating: • “you idiot , i already make a complaint 8days ago , 16/08 9:49pm uber xl trip , i sent invoice with amount $150 , another idiot agent paid me only $80 with the receipt clearly saying $150 , why did that idiot paid me $80 when the receipt says $150 idiot , go back to your system and check 16/08 dispute is still unsolved , am looking for the full amount , they paid me $80 instead of $150 , invoice says $150 , so where is the remaining amount of $70”; • “16/08 9:40pm idiot”; and • “let me know if you need further detail moron”. [24] That same day the Uber Support platform communicated that the assessment and dollar amount of $80 applied was accurate and that the Applicant would not be reimbursed the full amount. The Applicant, clearly dissatisfied with the outcome, sent a further seven emails between 3:37 PM and 8:22 PM on 23 August including emails stating: • “you idiot”; • “why did i pay $150 you idiot” • “who’s going to cover remaining $70 idiot” [2025] FWC 3747 7 • “why did you ask me for the invoice then if you are going to pay half price , stop saying sorry you idiot” • “and give the full money and explanation idiot [name]”. [25] At 8.15 PM on 24 August 2025 the Uber Support platform reached out, again explaining that the Applicant would only be paid for $80 of the $150 cleaning fee and stating: “we kindly ask you to refrain from using abusive language to ensure a constructive and respectful communication experience”. [26] The Applicant then sent 19 emails on 24 August 2025 between 8:15 PM and 9:08 PM that the reasonable person would consider to be harassing emails if directed at a person. Among them is an email sent at 9:04 PM which suggests the Applicant had also been calling as the Applicant states in that email: “[Name] , i had a rating of 4.93 up until when you responded last Friday , then my rating went down to 4.90 you know why , because i was made and been on the phone with uber team for 17 times back and forth …” [27] On 24 and 25 August 2025 the Uber Support platform notified the Applicant that the matter had been directed to the most appropriate support team who would reach out to him as soon as possible. The Applicant sent a further: • five emails on 25 August 2025; • two emails on 26 August 2025; • two emails on 27 August 2025; • seven emails on 29 August 2025, which included expletives. [28] Communications continued across 30 August 2025 and 8 September 2025 between the Applicant and the Uber Support platform. The Applicant sent: • five emails on 30 August 2025; • 13 emails on 31 August 2025; • one email on 2 September 2025; • 56 emails on 5 September 2025 which included some racially derogatory and other inappropriate comments; • 11 emails on 6 September 2025; • 31 emails on 7 September 2025, which again included some racially derogatory comments; • 3 emails on 8 September 2025. [29] The Applicant also sent two images of faeces on 3 September 2025.20 [30] It is unclear as to precisely when the Applicant was talking to an AI chatbot as distinct from a human during the email exchange. During the hearing the Respondent indicated that some of the responses from the Uber Support platform were AI generated, and others were with real people. During the hearing I asked the Applicant whether he believed he was speaking to a human or a robot and he indicated that he felt he was talking to a robot. However the [2025] FWC 3747 8 communications themselves indicate the Applicant seems to have believed that he was talking to a person for at least some of the communications as he referred to them by their assigned name, appears to have assumed he was communicating with someone from a particular race and in an email of 24 August 2025 said “…stop saying sorry , i will tell you sorry when uber sack you and replace by an ai”. A human also needed to assess the claim for cleaning costs and would have needed to see the Applicant’s communications about this. While the Applicant was clearly frustrated by the responses he was given by the Uber Support platform, perhaps unaware that some of those responses were auto generated, his emails were inappropriate, rude and at times threatening. [31] When the Applicant was able to speak to a human on 6 September 2025, his conduct was clearly inappropriate. When twice asked for his name, the Applicant responded with expletives on both occasions.21 In a second call the Applicant asked what the person’s race was and indicated that he did not want to speak to someone of that race and made racially derogatory comments that would have been offensive to any reasonable person in the position of the person taking his calls. Conclusion [32] In Hotak v Rasier Pacific Pty Ltd 22 a Full Bench of the Commission said: “It is clear from s 536LH(2) of the Act that a deactivation that occurs because of serious misconduct of the person who was deactivated is not unfair. In cases involving allegations of serious misconduct against an employee-like worker, it is not enough for the digital labour platform operator to hold a reasonable belief that the worker engaged in the conduct. The requirement for the deactivation to have occurred “because of serious misconduct of the person who was deactivated” in s 536LH(2) means that the digital labour platform operator has the evidentiary burden to prove that the alleged conduct occurred and that it meets the definition of serious misconduct in the regulations.”23 [33] Between 17 August 2025 and 9 September 2025, the Applicant engaged in email communications that were rude, racially derogatory, at times threatening and otherwise inappropriate. While some of the communications were between the Applicant and a chatbot, at other times he was engaging with a human and in any case the content of the communications suggests that the Applicant believed he was engaging with a human. The Applicant also engaged in two telephone conversations with workers of the Respondent in which he also made rude, inappropriate and, in the second call, racially derogatory comments that would have been offensive to any reasonable person in the position of the person taking his calls. [34] The letter from the Applicant’s doctor, indicated that the Applicant had suffered challenges in his life and experienced transient stress that would have impacted his communication in a high-pressure environment. I accept that the Applicant was frustrated with the way his request for reimbursement of the cleaning fee was dealt with, was experiencing stress and confronted some challenges in his personal life. However, I do not consider that these factors provide a reasonable excuse for the extent of the conduct engaged in, which persisted over a three-week period, and I do not consider that these factors change the character of the conduct. The risk the Applicant’s conduct created to the health and safety of other workplace participants also needs to be considered. While the Applicant has noted that the interactions [2025] FWC 3747 9 happened remotely, I nonetheless accept that the Applicant’s conduct, i.e. engaging in rude, racially derogatory, at times threatening and other inappropriate communications of the nature set out in Ms Tierney’s evidence, created a serious and imminent risk to the health and safety of the Respondent’s workers. The Applicant’s conduct was also in breach of the Community Guidelines that he was required to comply with. I am satisfied that the Applicant engaged in serious misconduct as defined in the Regulations and the deactivation occurred because of that serious misconduct. [35] While I accept that the Applicant has encountered some challenging personal circumstances and apologised for his behaviour, as the Applicant’s deactivation occurred because of serious misconduct, by reason of s.536LH(2) the deactivation cannot be considered unfair. The application for deactivation remedy is therefore dismissed. COMMISSIONER Appearances: Mr M Abdulla on his own behalf. Ms J Leeds for the Respondent. Hearing details: 2025. 2 December. Sydney. Printed by authority of the Commonwealth Government Printer <PR794615> 1 Respondent’s Submissions at [11]. 2 See s.7(2) of the Code. 3 Respondent’s Submissions at [11]. 4 Respondent’s Submissions at [11]. 5 Applicant’s Submissions, part 1. 6 Applicant’s Submissions, part 4. 7 Applicant’s Submissions, part 2. 8 Applicant’s Submissions, part 3. [2025] FWC 3747 10 9 Applicant’s Submissions, part 4. 10 Applicant’s Submissions, part 4. 11 Applicant’s Submissions, part 4. 12 Applicant’s Submissions at 6. 13 Tierney Statement at [6], Annexure C. 14 Tierney Statement at [5], Annexure A. 15 Tierney Statement at [5], Annexure B. 16 Tierney Statement, Annexure B. 17 Tierney Statement at [13]. 18 Tierney Statement at [13], Annexure E. 19 Tierney Statement, Annexure F. 20 Tierney Statement at [15], Annexure G. 21 Tierney Statement at [16], Annexure H. 22 [2025] FWCFB 214. 23 [2025] FWCFB 214 at [95].