1 Fair Work Act 2009 s.536LU - Application for an unfair deactivation remedy Paul Singh (UDE2025/307) DEPUTY PRESIDENT FAROUQUE MELBOURNE, 8 JANUARY 2026 Application for an unfair deactivation remedy – extension of time – no exceptional circumstances – application dismissed [1] Mr Paul Singh has made an application to the Commission for an unfair deactivation remedy under s 536LU of the Fair Work Act 2009 (Cth) (the Act). The applicant was deactivated by Raiser Pacific Pty Ltd (Uber) in August 2025. However, the application to the Commission was not made within 21-days of the deactivation and this decision deals with whether the Commission should allow him an extension of time to make his application. [2] On 27 July 2025, Uber sent the applicant a preliminary deactivation notice arising from complaints made by customers including the subject of the conduct complained of and the dates when it which was alleged to have occurred. The notice indicated that Uber was considering terminating the applicant’s access to the platform, gave the applicant seven days to respond and suspended his access to the Uber Platform in the interim. On 28 July 2025, the applicant responded in writing to the Preliminary Deactivation Notice. On 28 July 2025, the applicant had a discussion with an Uber representative in response to the preliminary deactivation notice. On 4 August 2025, a member of the Community Operations Team of Uber reviewed the applicant’s responses and determined that his access to the Uber Driver App should be permanently deactivated. [3] On 4 August 2025, Uber issued the applicant a final deactivation notice which stated that “deactivation will take effect immediately upon receipt of this email”. Mr Singh does not recall whether he received the final deactivation notice on 4 August 2025. However, on 5 August 2025, Mr Singh sent Uber a message seeking a review of the final deactivation. This message from the applicant clearly indicates that he was aware of the deactivation at least on 5 August 2025. I consider that the deactivation took effect on 4 August 2025, as the applicant received the message on that day. [4] Thereafter, the applicant sent various messages directly to Uber via the Uber Platform between 5 August 2025 and 28 October 2025 seeking internal review of his deactivation or protesting his deactivation. I note that on 14 August 2025 and 22 August 2025, Uber sent the applicant messages regarding his request for a review. The Uber message of 14 August 2025 indicated that its review upheld the deactivation. The Uber message of 22 August 2025, sent in response to a message from the applicant, indicated that it would not undertake another review [2026] FWC 40 DECISION [2026] FWC 40 2 of the deactivation. On 6 October 2025, the applicant sent a further message to Uber which protested his deactivation, indicated that he would be “lodging a complaint with the Fair Work Commission” if this issue was not resolved promptly and sought reinstatement of his Uber account or a fair resolution. [5] On 29 October 2025, the applicant filed his Form F89 in the Commission. The applicant’s application was filed 86 days after the deactivation took effect. The 21-day period for the applicant to file his application in the Commission lapsed on 25 August 2025. [6] Under s 536LU(3) of the Act, 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. Under s 536LU(4), the Commission may allow a further period for an application if it is satisfied that there are “exceptional circumstances” taking into account: a) the reason for the delay; and b) whether the person first became aware of the deactivation or termination after it had taken effect; and c) any action taken by the person to dispute the deactivation or termination; and d) prejudice to the regulated business (including prejudice caused by the delay); and e) the merits of the application; and 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 or the Road Transport Industry Termination Code, as the case requires. [7] A determinative conference was conducted on 22 December 2025 in relation to the extension of time. The applicant filed a submission in support of an extension which addressed the considerations under s 536LU(4). The applicant gave evidence in support of the extension. Uber filed a submission and a witness statement of Ms Emilee Fairlee (Senior Manager, Industrial Relations). Ms Fairlee gave evidence at the determinative conference on behalf of Uber. [8] I am not satisfied that there are exceptional circumstances having regard to the considerations in s 536LU(4), whether each of those considerations is considered alone or in combination. My reasoning in that regard is set out below. The Reason for the Delay (s 536LU(4)(a)) [9] In his written submission and at the determinative conference, the applicant says that he was not aware of the 21-day time period to file an application under s 536LU(3)(a). This is not an acceptable reason for the delay. It is well established that ignorance of the 21-day time period is not an acceptable reason for delay. [10] The applicant said in his evidence, oral and written submissions that Uber failed to notify him of the 21-day time period to apply to the Commission and this is a further reason for the delay. This also is not an acceptable reason for the delay. Uber was under no obligation to inform the applicant of the 21-day period to make an application to the Commission. [11] The applicant said in his evidence and oral submissions that he was endeavouring to resolve his deactivation through direct communications with Uber including internal review. [2026] FWC 40 3 However, this is not an acceptable reason for the delay. There is no requirement for an applicant to seek or obtain internal review or endeavour to resolve a matter directly with a digital labour platform operator such as Uber before making an application to the Commission under s 536LU. An application to the Commission under s 536LU may be made whilst contemporaneously seeking internal review. Consequently, the fact that the applicant was seeking to resolve the matter directly with Uber is not an acceptable explanation for the delay. The applicant in his oral evidence and submissions complained that Uber had not been responsive to his attempt to seek internal review or to his attempts to speak on the telephone to someone from Uber regarding his deactivation. Any lack of responsiveness by Uber is not an acceptable explanation for the delay, noting further that Uber sent the applicant messages on 14 and 22 August 2025, within the 21-day period, which clearly indicated that Uber had decided not to reverse the final deactivation by internal review. [12] In any event, as disclosed by the applicant’s message to Uber on 6 October 2025, he was aware as of that date, of his right to ‘complain’ to the Commission regarding deactivation. However, he did not make any application to the Commission until 29 October 2025. The applicant said in evidence that he was not able to do so as he was caring for his dependent and did not have time to make any inquiries regarding pursing the matter in the Commission which would have drawn his attention to a 21-day time limit. The applicant also said that at the time of his 6 October message, he was operating on a misunderstanding that the Commission was an advocacy body and did not understand that it was a decision-making body. I am not satisfied that any of these matters constitute acceptable reasons for the delay. [13] In his evidence and oral submissions, the applicant referred to being stressed and a health impact of deactivation. Based on the material before me, I am not satisfied that these matters are acceptable reasons for the delay. Deactivation of a regulated worker will invariably be a stressful event for the worker. However, stress in of itself, is not an acceptable explanation for delay. Furthermore, there is no probative evidence before me that the applicant had a medical condition arising from his deactivation or otherwise, which rendered the applicant him unable to or seriously impeded his ability to file an application within the 21-day period or indeed at any time thereafter prior to 29 October 2025. [14] The applicant’s Form F89 refers to other circumstances which the applicant proffers as reasons for the delay. However, the applicant did not provide any detail regarding these other circumstances at the determinative conference when given an opportunity to do so. Save as set out in paragraphs [10]–[13] above, these matters were not mentioned as reasons for the delay in his written submission, oral evidence or oral submissions. For completeness, I note that I am not satisfied that anything set out in the applicant’s application provides an acceptable reason for the delay. [15] The absence of an acceptable reason for the delay tends against the grant of an extension of time. Whether the person first became aware of the deactivation after it had taken effect (s 536LU(4)(b)) [16] As noted above, Uber sent the applicant the final deactivation notice on 4 August 2025 and applicant acknowledges that he was aware of the final deactivation on 5 August 2025. [2026] FWC 40 4 [17] This consideration is a neutral factor. Any action taken by the person to dispute the deactivation (s 536LU(4)(c)) [18] The applicant requested internal review of the deactivation or protested the deactivation by sending various messages to Uber between 5 August 2025 and 28 October 2025. [19] This matter weighs in favour of an extension, but only marginally so, as Uber told the applicant by messages dated 6 August and 22 August 2025 that Uber would not reverse the deactivation by internal review. Prejudice to the regulated business (including prejudice caused by the delay) (s 536LU(4)(d)) [20] Uber submits that it will suffer prejudice. However, Uber does not identify any prejudice caused by the delay, save for making a general assertion that it has dedicated significant time, effort and costs to defending the application to date and would be required to do so again, in a further hearing, if the application were to proceed. [21] I am not satisfied that Uber has suffered prejudice. I regard this consideration to be a neutral factor. Merits of the application (s 536LU(4)(e)) [22] There is a factual contest between the parties as to the merits of the application. [23] Uber submits the merits of the application are low as the applicant was deactivated due to two customer complaints which Uber considered to breach its Community Guidelines. The applicant submits that his application has merit as he denies that he engaged in the conduct alleged by Uber and that Uber failed to provide sufficient detail of the alleged conduct such that he could properly respond to the allegations against him. [24] If Uber’s allegations were correct, or it complied with the Digital Labour Platform Deactivation Code (Code) and the matters in s 13(9) of the Code were fulfilled, it would have a strong case that the deactivation is not unfair. However, there is a factual contest between the parties which cannot be resolved at the preliminary stage of the extension of time. [25] In these circumstances, I regard the merits to be a neutral factor. Fairness Between Persons in Similar Positions (s 536LU(4)(f)) [26] I do not consider that there are any matters before me that are relevant to fairness between the applicant and other persons in a like position. I consider this to be a neutral factor. Processes Specified in the Digital Labour Platform Deactivation Code (s 536LU(4)(g)) [27] Uber says it complied with the Code. Uber refers to the following matters: [2026] FWC 40 5 (a) on 16 April 2024, it sent the applicant a deactivation warning in relation to a ‘Rider’ complaint reported to the Respondent on 14 April 2024, but Uber notes the Code had not commenced at that time; (b) on 27 July 2025, it sent a deactivation warning in relation to a ‘Rider’ complaint reported to the Respondent on 26 July 2025; (c) that it was not in any event not required to follow the Code in relation to suspension of the applicant under the preliminary deactivation notice, which occurred on 26 July 2025, and it was entitled to modify or suspend the applicant pursuant to s 9(1) of the Code; (d) on 27 July 2025, it sent the applicant the preliminary deactivation notice, providing the applicant an opportunity to respond, the applicant responded and Uber decided to terminate the applicant’s access to the platform based on the information available to it and the applicant’s response. [28] In relation to the second warning, I am not certain how that warning is relevant to Code compliance. This is the because the second warning and the preliminary deactivation notice were both issued on 27 July 2025 and raised the same alleged conduct of 26 July 2025. However, Uber may have a reasonable argument that it was not required to provide a warning because of the operation of s 9(1) of the Code. [29] The applicant acknowledges that he received the preliminary deactivation notice provided a response. The applicant’s written response is not before me in evidence. However, the applicant says that Uber did not provide him sufficient information about the allegations such that he could respond as it did not identify which particular customer interaction the alleged interactions involved in circumstances where he had many customers on the relevant days. However, I do note that the preliminary deactivation notice identifies the date and the subject of the allegations. [30] I note that the Code requires a preliminary deactivation notice to contain sufficient information to enable a reasonable person in the position of the worker to understand, amongst other things, the reason relating to the conduct of the worker, for which the notice is given (s 11 of the Code). Accepting the applicant’s case at the highest, and based on the incomplete record before me, whether the preliminary deactivation notice included sufficient information so to enable a reasonable person in the position of the applicant to understand the alleged conduct, is a proposition which is not without merit. However, Uber submits that it did not provide the applicant specificity of customer information for privacy reasons of the customers. I do note that the Code does not require a digital labour hire provider to disclose to a worker information relating to an individual if, amongst other things, disclosure would contravene protection of personal information under the Privacy Act 1988 (Cth) (see s 17 of the Code). [31] In these circumstances, based on the information before me and having regard to the competing contentions of the parties, I consider the matter of the processes specified in the Code to be a neutral factor. Conclusion [32] In conclusion, I am not satisfied that there are exceptional circumstances having regard to the factors in s 536LU(4), whether each of those factors is considered alone or in combination. I am not satisfied that the applicant has an acceptable reason for the delay. The [2026] FWC 40 6 action taken by the applicant to dispute the deactivation only marginally favours the applicant. The first awareness of deactivation, prejudice, merits, fairness and Code considerations are neutral. [33] Consequently, in the absence of being satisfied of exceptional circumstances, I do not have jurisdiction to extend time under s 536LU(4). [34] I order that the applicant’s application under s 536LU be dismissed. DEPUTY PRESIDENT Appearances: Mr P Singh, Applicant Mr A Liskowski, solicitor, for the Respondent Hearing details: 2025. Melbourne (by video using Microsoft Teams): December 22. Printed by authority of the Commonwealth Government Printer <PR795543>