1 Fair Work Act 2009 s.536LU - Application for an unfair deactivation remedy Salman Mehdi Syed v Rasier Pacific Pty Ltd trading as Uber (UDE2025/232) COMMISSIONER ALLISON MELBOURNE, 9 JUNE 2026 Application for an unfair deactivation remedy – whether deactivation complied with the Digital Labour Platform Deactivation Code – whether serious misconduct established – deactivation unfair – order for reactivation and lost earning. [1] This decision relates to an application by Mr Salman Mehdi Syed for an unfair deactivation remedy pursuant to section 536LU of the Fair Work Act 2009 (Cth) (Act) against digital labour platform operator, Raiser Pacific Pty Ltd, trading as Uber (Uber). [2] Mr Syed performed work as a driver for Uber, using Uber’s digital labour platform to obtain customers. On 16 August 2025, Uber deactivated Mr Syed’s account on its digital labour platform. Uber did this following receipt of two complaints by separate customers relating to alleged touting. [3] Mr Syed argues that Uber has failed to follow the Digital Labour Platform Deactivation Code (DLPD Code) and that, in any event, his deactivation is unfair because he did not engage in the conduct alleged in the complaints. Uber argues the application should be dismissed. Uber raises a jurisdictional objection to the application, being that the deactivation was consistent with the DLPD Code. Alternatively, Uber contends the deactivation was not unfair because Mr Syed engaged in serious misconduct. [4] On 3 February 2026, I conducted a hearing, in advance of which both parties filed material in accordance with directions issued. At the hearing, Mr Syed was represented by the Transport Workers Union (TWU) and Mr Boncardo of Counsel. Uber was represented by Dentons Australia and Mr Crocker of Counsel. At the hearing Mr Syed gave evidence on behalf of himself. Ms Emilee Fairlie, Senior Manager, Industrial Relations, gave evidence on behalf of Uber. [2026] FWC 1859 DECISION [2026] FWC 1859 2 Relevant Background [5] Uber (including the businesses generally known as Uber and Uber Eats) engages approximately 150,000 driver partners across Australia.1 Driver partners provide transport and delivery services to Uber’s customers using Uber’s digital labour platform. [6] Mr Syed commenced work as a driver partner for Uber on 6 December 2023 providing transport services to Uber customers. [7] Prior to commencing with Uber, Mr Syed accepted the Uber Service Agreement, and pursuant to clause 5.1(f) of the Service Agreement, agreed to comply with the Uber Community Guidelines dated 17 January 2022. Under the Community Guidelines street hailing and other soliciting of payments for rides outside the Uber App is not allowed.2 The Community Guidelines states: “Street hails and off-platform pickups To enhance the safety of each experience, off-app pickups are prohibited. The law also prohibits street hails or touting while using the Uber Marketplace Platform, so never solicit or accept payment outside the Uber Marketplace Platform. Riders, merchants and Uber Eats users should not pay for trips or deliveries in cash, and riders should not request trips from drivers outside of the Uber Marketplace Platform.” 27 March 2025 Complaint and Response [8] On 27 March 2025, Uber received a complaint from a customer regarding a trip performed by Mr Syed on the same date. In the complaint the customer stated: “The driver asked how much I paid on Uber. He then asked if I could cancel and pay him direct which I declined.”3 [9] When Uber asked the complainant to provide further details about the identity of the driver the customer states: “The driver’s name was Salman in a red Toyota Camry. He was the one that completed my last trip, you should have his details. Just wanted to raise that he tried asking me to cancel my trip and pay him direct while I was already in the car and on route to my destination.”4 [10] On 28 March 2025, an Uber Agent notified Mr Syed of the complaint by a in-app message on the Uber Driver Platform. “Hi Salman, We wanted to reach out to you because we have received a report that 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. We want to make sure [2026] FWC 1859 3 that the Uber experience is a safe and comfortable one for all users, so we hope you understand our position.” [11] Mr Syed replied to this notification as follows:5 “I received your message regarding the report that my vehicle was used to provide rides outside of the Uber driver app. I would like to clarify that this report is entirely incorrect. I have not engaged in any activities that violate Uber’s policies or state regulations. I understand and respect Uber’s commitment to safety and comfort for all users, and I appreciate your efforts to maintain a secure and compliant platform. However, I am concerned that this false report has negatively impacted my ratings, which could potentially harm my account and livelihood. As an Uber driver, I believe it’s essential to have a safe and fair platform for both drivers and riders. False reports can have severe consequences for drivers, and I hope you will take necessary steps to verify the accuracy of such reports in the future. I would appreciate it if you could investigate this matter further and correct my ratings accordingly. I am committed to providing excellent service to my riders and would like to continue doing so without being unfairly penalized. Thank you for your attention to this matter.” [12] The Uber Agent then responded: “Thank you for following up and for sharing your perspective and additional details. We truly appreciate it. We understand there are always two sides to every story, and it’s important for us to hear yours. Please know this message wasn’t sent as an accusation, but simply to inform you of the report we received and to gently remind you to continue following our Community Guidelines moving forward. Rest assured, no further action is being taken on your account, and you continue to have full access to the app. We appreciate your understanding and cooperation on this matter.” [13] Uber did not with-hold payment for this trip or pursue the matter any further with Mr Syed. 26 and 27 July 2025 Complaint, Deactivation Process [2026] FWC 1859 4 [14] On 26 July 2025, Uber received another complaint from a different customer regarding Mr Syed. [15] The complaint states: “I do not want to be charged. The driver wanted me to cancel the ride to pay cash. I said no as it was a business ride and I need a receipt. I require a refund immediately. Drivers should not have the right ati (sic) accept and then deny rides.” [16] Uber’s trip data in relation to the customer booking shows the follows:6 • The trip was booked at 11.09pm; • The customer’s trip request was assigned to Mr Syed at 11:11:07 pm; • Mr Syed arrived at the pick-up point at 11:12:06 pm and the pickup was completed at 11:14:11 pm; and • The customer then cancelled the trip at 11:15:02 pm. [17] After cancelling the ride, the customer re-booked another Uber, and completed a trip to his intended destination with another Uber driver.7 Suspension Process [18] On 27 July 2025, a member of Uber’s Community Operations team notified Mr Syed of Complaint 2 and that Mr Syed’s access to the digital labour platform was temporarily removed as Uber investigated the complaint. The message from Uber to Mr Syed states:8 “We’ve received a concerning report where you may have been involved in Street hail or Touting. Due to the nature of this feedback, we’ve temporarily removed your access to the Uber app while we investigate further. If you have any information as to why this feedback may have been received, you can let us know by replying to this message and we’ll take this onboard.” [19] Mr Syed responded the same day objecting to the complaint: “I’m writing to express my concern and disappointment regarding the recent report filed against me, alleging involvement in street hailing or touting. I strongly deny these accusations and would like to provide context. On the day of the incident, I had a passenger who was behaving inappropriately and erratically and appeared to be intoxicated. I felt uncomfortable and unsafe, so I decided to cancel the ride and asked him to book another ride. It’s possible that this passenger, due to his behaviour and state of mind, may have misinterpreted the situation and filed a false complaint. As a full-time Uber driver with a good rating over the past 2 years, I take pride in following Uber’s rules and guidelines. I’m aware that street hailing and touting are against Uber’s polices, and I would never engage in such activities…” [2026] FWC 1859 5 [20] On 28 July 2025 a member of the Community Operations Team and Mr Syed had a telephone discussion regarding the Complaint and the investigation. [21] Following the telephone conversation Mr Syed sent Uber another message attaching a photo of his car door covered in vomit. Mr Syed stated that: “This incident led to my decision to cancel the ride and ask the passenger to book another ride. However, the passenger became angry and started behaving inappropriately…. I’m attaching the photos for your reference. I’m confident that the accusations leading to my account block are false, and the passenger’s intoxication may have led to a misunderstanding.” 9 [22] From 28 to 30 July 2025, Mr Syed contacted the Uber driver-partner support hotline a number of times regarding this matter.10 [23] On 31 July 2025, Uber sent a Preliminary Deactivation Notice (PDN) to Mr Syed. The notice was titled “Preliminary deactivation notice: Your account is at risk of deactivation”. [24] The PDN states: “You’re receiving this message because a review of your account found that you have previously been reported for multiple instances of having offered or completed a ride outside of the Uber app, which is a direct violation of your agreement with Uber and we are considering terminating your access to the Uber Driver app. Please note that when we were made aware of these previous reports we also made sure to notify you, these were sent on the following dates: March 28th 2025: Notified you of a report that you may have used your vehicle to provide rides outside of the Uber driver app that occurred on a trip on March 27th 2025 07.51pm July 27th 2025: Notified you of a report that you may have used your vehicle to provide rides outside of the Uber driver app that occurred on a trip on July 26th 2025 11.09pm. …. Reports of behaviour of this nature are extremely concerning and are in violation of our Uber Community Guidelines, before a final decision is made, we are providing you with the opportunity to respond to this preliminary deactivation notice. During this period, we have suspended your access to the platform which takes effect immediately from the time and date of this notice 31 July 2025. Suspension of your access means that you will be unable to accept or complete trips/deliveries during the suspension period. Your Options: Respond to this Notice: You may provide an explanation or relevant information regarding the flagged activity. Please respond using the link below within 7 days from the date of this notice to ensure your input is considered. [2026] FWC 1859 6 Request a Discussion: You may also request a discussion with a representative of Uber Eats. If you wish to do so, please submit your request using the link below within 2 days. Seek Support or Representation: You are entitled to appoint a person (other than a lawyer acting in a professional capacity) to support or represent you during the process.” [25] Mr Syed responded in writing to the PDN. Mr Syed again reiterated his position that a disgruntled customer made the complaint after Mr Syed had refused to drive him. Mr Syed re- submitted the photo of the car door covered in vomit and stated: “On Saturday night, July 26th, 2025, at 11.09 pm, the passenger was heavily intoxicated and vomited at my car. This decision led to my decision to cancel the ride and ask the passenger to book another ride. However, the passenger became angry and started behaving inappropriately.”11 [26] In addition, Mr Syed asked Uber to consider the following: • The deactivation was placing his family under considerable financial stress. • The customer had not given any evidence, and Uber should investigate the passengers file. • Uber should consider his excellent driving record with a 4.95 star rating, 92% satisfaction rate, and 89% acceptance rate. [27] Between 31 July 2025 and 12 August 2025, Mr Syed provided further written responses to Uber. In these responses Mr Syed re-stated his position that he believed a disgruntled intoxicated customer who threw up on his car made the complaint after the ride was refused. Mr Syed offered to provide his bank transactions which he claimed showed no record of any suspicious transactions and again reiterated the stress the deactivation was causing his family physically and financially. [28] On 16 August 2025, Mr Syed was sent a Final Deactivation Notice permanently deactivating his account. Evidence on Uber Process [29] Uber’s Community Operations team is responsible for dealing with complaints made against Uber driver partners in Australia. The Community Operations team is made up of approximately 1000 staff throughout Asia Pacific (including 50 staff in Australia). Reviewing Complainant’s History [30] Ms Fairlee gave evidence that Uber has processes in place to “evaluate the veracity of complaints made by users.”12 A complainant’s profile and history will be reviewed to understand if they have any “fraudulent indicators”, including whether a complainant has requested a high number of refunds; whether the complainant has any safety incidents, and whether the complainant has raised previous concerns of the same or similar content and nature. [2026] FWC 1859 7 [31] In relation to the complainants in Mr Syed case, neither of the complainants had fraudulent indicators.13 Pro forma documents [32] Ms Fairlee gave evidence regarding a number of pro forma documents used by the Community Operations team in dealing with a complaint. These documents guide Community Operation agents on “how to categorise how severe a particular complaint might be and what needs to happen as a result.”14 [33] These documents categorise Street Hail/Touting as a Law Enforcement/Regulatory incident, rated at Level 2 (with Level 4 being the most serious types of incidents). [34] The pro forma documents provide the following guidance in relation to a reported incident of Street Hail/Touting: • In relation to a first complaint, Uber sends a warning notification. • In relation to a second complaint, Uber waitlists a driver, raises a JIRA report and recommends deactivation. [35] It is clear on the evidence that the process outlined in the pro forma documents was followed to the extent that Mr Syed was sent a notification after the first complaint, and after the second complaint he was automatically waitlisted (or suspended), a JIRA report was raised and his deactivation was recommended.15 JIRA Report [36] Uber has provided evidence of two JIRA reports detailing its response to the complaints against Mr Syed. [37] The first JIRA report– completed prior to the issuing of the PDN – records an allegation relating to touting (though it is not entirely reflective of the actual complaint against Mr Syed)16 and states that the driver partner denies the allegation. The report provides a summary of Mr Syed’s response to date. The report recommends deactivation as it is the second complaint of street hail/touting.17 [38] The second JIRA report (the JIRA appeal) 18 - after the PDN - records that there have been two reports against Mr Syed, and the complainants have been reviewed and no fraudulent indicators found. [39] The Second JIRA report provides a summary of Mr Syed’s response to the preliminary deactivation notice:19 In his appeal, the Earner writes to appeal a preliminary deactivation notice for allegedly providing rides outside the Uber app. They are shocked by the allegations and are requesting a review, emphasizing that they take Uber’s Community Guidelines [2026] FWC 1859 8 seriously. The Earner stated that he has no recollection of the alleged incident on March 27, 2025. For the July 26, 2025 incident, he claims that the accusation is false and believes that it stems from a confrontation with an intoxicated passenger who vomited in their car. The Earner canceled the ride and asked the passenger to book a new one, which led to the passenger becoming angry and filing a false complaint. He wants to emphasize their good rating and lack of previous complaints and that their livelihood and ability to provide for their family, including an expectant wife, depend on their Uber account. He expresses concern over the lack of protection for Earner against false accusations and is begging Uber to review their case, reconsider the deactivation, and grant them a chance to prove their innocence. In his previous warnings, Earner strongly denied the claims against him. He believed it was made by a passenger who was acting erratically and appeared intoxicated. He also submitted a photo evidence of his vehicle showing what looked like vomit on his left passenger window. The Earner’s tenure is 2 years and 5 months with a rating of 4.95 and a total of 5921 trips/orders. Earner also has 3 Interpersonal Incidents and 3 Driving Incidents. Despite his ratings and number of trips, reports indicate a consistent pattern of intentionally bypassing the app. To maintain the transparency and safety of the Uber platform for all users, activities conducted outside of the monitored system of the Uber app—like anonymous pickups—are prohibited. Furthermore, there is also no substantial information on his submitted appeal to dispute the allegations. As such, the decision to uphold the deactivation is final since the threshold has been met. [40] The JIRA appeal report also notes that Mr Syed has submitted a photo to support his position and the photo appears to be20: • Relevant. • Corroborative – “corroborates the Earners’ Appeal Statement because the Earner claims that the Rider false [sic] accused him after he asked them to cancel the trip after they vomited in his vehicle.” • Complete and • Authentic - because there are “no signs of digital alteration”. Other Matters [41] Mr Syed was the sole income earner for his household at the time of deactivation. [42] At the time of his deactivation Mr Syed had undertaken nearly 70 – 80 trips each week.21 Between December 2023 and August 2025, he completed almost 6000 trips.22 Mr Syed had a 4.95 star rating.23 Initial Matters – Section 536LW [43] Prior to considering the merits of an unfair deactivation application, s 536LW of the Act requires the Commission to have regard to certain matters. Section 536LW provides: [2026] FWC 1859 9 “The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application: (a) whether the application was made within the period required in subsection 536LU(3); (b) whether the person was protected from unfair deactivation or unfair termination, as the case requires; (c) whether the deactivation or termination was consistent with the Digital Labour Platform Deactivation Code or the Road Transport Industry Termination Code, as the case requires.” [44] With regards to s 536LW(a) of the Act, it is uncontested that Mr Syed’s application was made within the 21 – day period required under s 536LU(3)(a). [45] With regards to s 536LW(b), it is uncontested that Mr Syed meets the requirements of a person protected from unfair deactivation, being an employee – like worker who performed work through Uber’s digital platform on a regular basis for a period of at least 6 months at the time of his deactivation (s 536LD). In addition, it is uncontested that Mr Syed had annual earnings less than the contractor high income threshold under s 536LU(2). [46] Section 536LW(c), the third initial matter about which I must be satisfied of before considering the merits of the application, requires me to consider whether the Applicant’s deactivation was consistent with the DLPD Code. A person’s deactivation will be consistent with the DLPD Code if, at the time of the deactivation, the digital labour platform operator complied with the DLPD Code in relation to the deactivation (s 536LJ(3)). If Uber complied with the DLPD Code, Mr Syed will not have been ‘unfairly deactivated’, as per s 536LF. [47] I now turn to consider whether Uber complied with the DLPD Code. Was Mr Syed’s deactivation consistent with the Digital Labour Platform Deactivation Code? Submissions - DLPD Code [48] Mr Syed contends Uber failed to comply with the DLPD Code on a number of grounds, which include: • Uber failed to provide Mr Syed with a warning in accordance with s. 8 of the DLPD Code. • Uber failed to establish that a human considered matters under ss. 9(1), 13(7) and 14(4)(b) of the DLPD. • The PDN was inaccurate, misleading and did not provide specify the conduct with sufficient detail for Mr Syed to respond to. • Uber failed to allow Mr Syed to speak to a representative in breach of s. 13(5). • Uber failed to consider the responses provide by Mr Syed in accordance with s. 13(7). [2026] FWC 1859 10 • Uber failed to make ‘further inquiries’ that are ‘reasonably warranted’ in accordance with s. 13(8). • Uber failed to establish that it acted as soon as reasonably practical as required by ss. 14(2) and 14(5). [49] Uber submits that it complied with DLPD Code. [50] Uber submits it was not required to issue Mr Syed with a deactivation warning based on the exception in s 9 of the Code, given the seriousness of the conduct. The Respondent submits this approach is consistent with other decisions of the Commission and relies on the decision of Bilawal Khan v Rasier Pacific Pty Ltd24 where Deputy President Beaumont found, in that particular case, two complaints regarding touting meant the exception in s. 9 of the DLPD Code applied and a deactivation warning was not required. [51] In response to Mr Syed’s argument that no human considered matters at s 9(1)(a), Uber submits there is not a requirement for a human representative in s. 9, as opposed to later in the provision. [52] Uber submits the PDN met the requirements of the DLPD Code in that it included sufficient information to enable a reasonable person in the position of the employee–like worker to understand the matters. In relation to Mr Syed’s argument that the PDN is not accurate or specific, Uber contends that there is no evidence to suggest that Mr Syed would have responded differently had different information been provided on the PDN.25 [53] Uber rejects Mr Syed’s argument that it failed to provide him with an opportunity to speak to a representative. Uber contends Mr Syed did not request a discussion with an Uber representative with the provided mechanism. [54] Uber further submits that the JIRA reports provide evidence of a human representative considering Mr Syed’s response and determining no further inquiries were necessary. In this regard, Uber submits that requiring Uber to request metadata from photos goes beyond a reasonable requirement.26 [55] Uber contends it considered on reasonable grounds that a valid reason for deactivation had been established in circumstances where Uber had received two similar reports of the Applicant engaging in street touting. Uber relies on Rahul Kumar v Portier Pacific Pty Ltd27 (Kumar) and Mohamed v Portier Pacific Pty Ltd28, which Uber contends upheld the deactivation of applicants under the DLPD Code in similar circumstances. [56] Finally, Uber contends it complied with ss. 14(2) and 14(5) by notifying Mr Syed as soon as reasonably practical of its decision. Consideration – DLPD Code [57] In Ayyub v Portier Pacific Pty Ltd t/a Uber Eats29 (Ayub), the Full Bench of the Commission found that s 536LF(c) requires “complete compliance” with the DLPD Code: [2026] FWC 1859 11 “We do not accept, for the purpose of the consideration required under s 536LF(c), that consistency with the Code tolerates less than complete compliance with it. Section 536LJ(3) makes it clear that consistency with the Code requires compliance with it.” 30 [58] While Uber acted consistently with the DLPD Code in many regards, I am of the view that it did not act consistently with all required provisions of the DLPD Code. [59] In particular, I am not satisfied Uber acted in accordance with ss. 13(7) and (8) of the DLPD Code. Section 13 of the Code deals with the driver’s right to respond to the PDN and requires that a “human representative” of the digital labour platform operator must consider the response. Section 13(8) of the DLPD provides that after a PDN has been issued and a driver responds: “The digital labour platform operator must make such further inquiries (if any) as are reasonably warranted after considering the employee-like worker’s response.” [60] After receiving the PDN on 31 July 2025, Mr Syed responded multiple times claiming, in effect, that he refused to drive a passenger who was intoxicated and that it may be this passenger who made the complaint against him. Mr Syed’s responses clearly proposes that a disgruntled passenger may have made a fraudulent, vengeful complaint against him. In support of his defence, Mr Syed provided a photograph of his car door covered in vomit. The photograph does not include any time or date stamp. [61] Uber’s own assessment of the photograph in the JIRA appeal report was it was “relevant”, “corroborates the Earner’s Appeal Statement because the Earner claims that the Rider false [sic] accused him after he asked them to cancel the trip after they vomited in his vehicle”, “complete” and “authentic because no signs of digital alteration”.31 [62] While Uber’s JIRA reports show that Uber recorded Mr Syed’s response, there is no clear evidence that a human representative considered Mr Syed’s response. In Ayub the Full Bench contemplated the meaning of “consider” in the context of the DLPD Code at [126]: “The ordinary meaning of ‘consider’ relevantly includes ‘to regard as or deem to be, to think, suppose’: Macquarie Online Dictionary. … This language implies an exercise of judgment on the part of the operator involving a weighing of relevant considerations — a judgment which would need to be made by a human actor. The judgment made is one that must be based on objectively reasonable grounds — that is, grounds which are at least other than arbitrary or capricious.” And again at [134]: “‘Consider’, in the context of s 13(7), means ‘to contemplate mentally; meditate or reflect on’ or ‘to view attentively, or scrutinise’: Macquarie Online Dictionary.” [63] Uber could have called the Community Operations team member who completed the JIRA report to give evidence on how they considered Mr Syed’s response. Uber chose not to do this. Short of witness evidence on how the response was considered, Uber needed to produce other evidence to demonstrate “a particular individual undertook the necessary [2026] FWC 1859 12 consideration”32. It is hard to see on the evidence provided by Uber in this case, in particular the JIRA reports, how there was any consideration of the response. There is no weighing up of relevant considerations, there is no comment as to why Uber did not accept Mr Syed’s response. And perhaps most obviously, Uber fails to make further inquiries regarding Mr Syed’s relevant, corroborative, complete and authentic photograph. [64] It is certainly possible that a disgruntled passenger who has been refused a ride may make a fraudulent complaint against an Uber driver. On reading Mr Syed’s multiple responses to Uber, the obvious, reasonable inquiry would be to ask for evidence of the time that the relevant submitted photograph was taken. If the photograph was taken between 11.09 pm and 11.20 pm on the relevant night, it would be strong evidence in support of Mr Syed’s version of events. [65] However, despite finding that the photo was relevant, corroborative, complete and authentic, Uber made no such inquiry. Rather, Uber proceeded to follow the recommendation to deactivate Mr Syed. [66] The provisions in the DLPD Code give an employee the opportunity to defend themselves. In Wadey v YMCA Canberra33 Moore J recognised that an employee does not have the opportunity to defend themselves unless the employer actually considers their response: [T]he opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.34 [67] I can understand given the scale of Uber’s business, it may need pro forma documents to ensure a uniform approach is taken to dealing with complaints against drivers. However, Uber must make sure that following the pro forma documents does not become a tick and flick exercise where the outcome is already determined regardless of a driver’s response. [68] On the evidence before me, including the JIRA reports and the fact that Uber failed to make further inquiries into the photograph provided by Mr Syed, I am not satisfied that Uber acted consistently with ss. 13(7) or 13(8) of the DLPD Code. [69] As I have found that Uber did not act consistently with provision ss. 13(7) or (8) of the DLPD Code, Uber cannot rely on its compliance with the DLPD Code as a jurisdictional objection to Mr Syed’s Application. [70] I note for completeness, that I also have concerns regarding whether the PDN meets the requirements of the DLPD Code in regard to including sufficient information to enable a reasonable person in the position of the employee-like worker to understand the reasons for the notice (as per s. 11(2) of the DLPD Code). The PDN includes some inaccuracies regarding the allegations made against Mr Syed. In particular, the allegations included in the previous reports on 28 March 2025 and 27 July 2025 are not entirely accurate. I accept that in this matter Mr [2026] FWC 1859 13 Syed appeared to have understood the allegations against him despite the inaccuracies in the PDN. However, it is incumbent on Uber to make sure that allegations (particularly of serious misconduct) are accurate and clear, so a driver has a proper opportunity to respond. Merits of the Application - Section 536LF [71] Having dealt with the initial matters under s 536LW of the Act, I now turn to the merits of the Application. In considering whether the Mr Syed’s deactivation was unfair, it is useful to first set out the relevant statutory requirements. Section 536LF defines where a person has been unfairly deactivated in the following terms: “536LF What is an unfair deactivation A person has been unfairly deactivated if the FWC is satisfied that: (a) the person has been deactivated from a digital labour platform; and (b) the deactivation was unfair; and (c) the deactivation was not consistent with the Digital Labour Platform Deactivation Code.” [72] It is uncontested that Mr Syed has been deactivated from Uber’s digital labour platform (s 536(a)). [73] For reasons given above, the deactivation was not consistent with the DLPD Code (s 536LF(c)). [74] I will now consider s 536LF (b) – was the deactivation unfair? Was the Deactivation unfair? [75] Section 536LH of the Code lists the criteria to be considered by the Commission in determining whether a deactivation was unfair: “536LH Criteria for considering whether a deactivation was unfair etc. (1) In considering whether it is satisfied that a person’s deactivation was unfair, the FWC must take into account: (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 Digital Labour Platform Deactivation Code were followed; and (c) any other matters that the FWC considers relevant. (2) Despite subsection (1) and any other provision of this Part, a deactivation that occurs because of serious misconduct of the person who was deactivated is not unfair. ……………..” [2026] FWC 1859 14 [76] It is clear that if serious misconduct is established, the deactivation will be taken not to be unfair. That is regardless of the digital platform operator’s compliance with the DLPD Code or any other matters the Commission may otherwise consider relevant. [77] The approach of the Commission in applying the term ‘valid reason’ in dealing with an application for an unfair deactivation by an employee–like worker pursuant to s 536LH(1)(a) of the Act was dealt with by a Full Bench in Hotak v Raiser Pacific Pty Ltd35 (Hotak). In Hotak the Full Bench relevantly stated as follows: “[94] Turning now to the merits of the application. We must take into account each of the matters specified in s 536LH of the Act. As to whether there was a valid reason for the deactivation related to the person’s capacity or conduct (s 536LH(1)(a)), the same language is found is s 387(a) of the Act. For that reason, we consider that the same principles should apply in determining whether there was a valid reason within the meaning of s 536LH(1)(a) of the Act. They may be summarised as follows: (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. [95] 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 [2026] FWC 1859 15 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.” (Citation omitted) [78] I have applied the above principles to my approach in this matter. Does the Briginshaw standard apply? [79] As stated in Hotak in cases where allegations of serious misconduct are made, the Briginshaw36 standard applies. Applying the Briginshaw standard requires that when the Commission is considering whether, on the balance of probabilities, an employee-like worker has engaged in alleged serious misconduct: • The Commission should not lightly make a finding that the applicant has engaged in serious misconduct.37 • The Commission should start with the presumption that members of society do not ordinary engage in fraudulent or criminal behaviour.38 • Regard should be had to the quality of evidence, and the Commission should not rely on inexact proofs, indefinite testimony or indirect inferences.39 • A determination that an applicant engaged in serious misconduct should only be made if the Commission feels “a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with [appropriate] fair processes”40 or an actual persuasion41 on the evidence that the misconduct occurred. [80] Uber argued that I should not be quick to apply the Briginshaw standard in this matter.42 Uber submits that the rules of evidence do not bind the Commission, so the Commission can choose whether it is appropriate to apply the standard. Moreover, Uber submits that the Briginshaw standard does not stand for the principle that all matters that are serious automatically attract application of that principle. Regard must also be had not just to the seriousness of the allegations, but also to the seriousness of the consequences for the Applicant of a finding of serious misconduct. In this respect Uber contends that deactivation from a digital platform is not comparable to losing employment, and Mr Syed is free to join another driver platform. [81] I do not accept Uber’s argument that the Briginshaw standard should not apply in this instance. [82] First, the allegations against Mr Syed are serious. Mr Syed was deactivated for allegedly engaging in street touting on two occasions. Uber has repeatedly confirmed these are serious allegations in submissions and evidence. In evidence Ms Fairlee confirmed the complaints against Mr Syed were of a “very serious nature.”43 If Mr Syed is found to have engaged in the alleged behaviour, he has not only breached Uber’s community Guidelines, but he has also engaged in behaviour that: [2026] FWC 1859 16 • Is potential criminal conduct44 as touting is a criminal offence in Victoria under section 267B of the Commercial Passengers Vehicle Industry Act 2017 (Vic) Victoria; 45 • Amounts to fraudulent or dishonest conduct;46 • Results in financial lose for Uber payment of fees;47 • Placed himself and the rider in a potentially unsafe situation;48 and • Impacted Uber’s reputation.49 [83] Second, I do not accept Uber’s submissions that the consequences of a finding that Mr Syed engaged in the alleged behaviour are not serious for Mr Syed. Mr Syed has given uncontested evidence about the significant impact the deactivation has had on him. In addition, a finding in a published decision that an applicant engaged in what amounts to serious misconduct, including potentially criminal conduct, may well have significant implications for Mr Syed. Accordingly, I am of the view the Briginshaw standard applies. Was there a valid reason for deactivation? [84] Uber submits there was a valid reason for deactivation being street touting as set out in the Complaint of 27 March 2025 and the Complaint of 26 July 2025. The crux of Uber’s argument was set out as follows: “on the balance of probabilities, the street touting alleged in Complaint 1 and Complaint 2 occurred, in circumstances where two separate Riders reported, that the Applicant requested they cancel the trip on the Uber App and pay him directly (demonstrating repeated street touting).”50 [85] Mr Syed adamantly denies that he engaged in touting. Mr Syed submits Uber has not provided any direct evidence from the individuals who alleged Mr Syed was engaged in street touting. Consideration - valid reason [86] I have found it difficult to come to a decision regarding whether there is a valid reason. This is, in part, because I recognise the challenging situation facing Uber. Uber needs to take complaints seriously and act on legitimate complaints to keep its riders and drivers safe and to protect its business. I also understand why Uber, for legitimate business reasons, may choose not to request any complainant to provide statements or give evidence about their complaint.51 [87] However, whilst relying on complaints alone may, in some instances, support Uber’s position that it had a reasonable belief that the alleged conduct occurred, it will be far more difficult to meet the evidentiary onus of proving that the conduct on which it relies actually took place on the balance of probabilities. This is particularly so for circumstances of serious misconduct where the Briginshaw standard applies. [88] I have had regard to all the submissions and evidence before me, and in particular have regard to the following matters: • Uber has produced two anonymous complaints against Mr Syed. I have no reason to doubt that the complaints were actually made to Uber. • Uber provided evidence that Uber found neither of the complainants had any ‘fraudulent indicators’. It was unclear on the evidence whether this meant the complainants had never made a previous complaint, or just that Uber did not view [2026] FWC 1859 17 previous complaints relevant or detect a concerning pattern of behaviour from their point of view. • The complaints are specific and very similar. Both complainants allege Mr Syed asked them to cancel their trip and pay him directly. • It would seem unusual for a vindictive rider lodging a fraudulent complaint to come up with such a specific complaint. • The complaints are approximately four months apart. • No other evidence, such as other complaints or an unusual pattern of ride cancellations, was provided in support of the position that Mr Syed engaged in street touting. • It appears unlikely to me that the intoxicated rider who vomited on Mr Syed’s car was the second complainant. This is because it is unlikely that someone intoxicated enough to throw up in public, would minutes later be able to cancel a ride and make a coherent complaint to Uber. In addition, the complainant then successfully booked and completed another ride. It is also unclear on the evidence before me whether the photograph was taken around the time of the second complaint. Mr Syed was unable to provide a time stamped photo. Mr Syed provided a statutory declaration that he purchased a new mobile phone on 28 October 2025. The photo Mr Syed submitted to Uber of his vehicle was not transferred on his iCloud account. Mr Syed states he gave his previous phone to his cousin, who reset the phone, and the photo is unrecoverable. • Mr Syed has given sworn testimony in the Commission that he did not engage in the alleged misconduct. • Mr Syed has been an Uber driver for over 18 months and completed 6000 trips. He has a rating of 4.95 stars. [89] Having considered all of the evidence and submissions before me, and applying the Briginshaw standard, I have determined that I do not feel a comfortable level of satisfaction that on the balance of probabilities Mr Syed engaged in street touting. [90] The allegations against Mr Syed are serious. Ultimately, Uber is alleging Mr Syed engaged in fraud and potentially criminal conduct. I must start from the presumption that members of society do not engage in fraudulent or criminal behaviour. I do not think that two anonymous complaints, albeit similar complaints, are enough to establish these serious allegations on the balance of probabilities. The complaints are almost four months apart. There is no other evidence relating to Mr Syed’s almost 6000 trip career that would suggest he has engaged in touting. Whilst it seems unlikely to me that a complainant would make up such a complaint, it is certainly plausible that there was some kind of misunderstanding or miscommunication that led to the complaint. However, as the complainants were not called to give evidence, this is not something that was tested. [91] Accordingly, on the evidence before me I am not satisfied that Mr Syed engaged in the alleged conduct, and I find that there was no valid reason for deactivation. Whether any relevant processes specified in the DLPD Code were followed (s 536LH(b)) [92] Uber argues that when there has been substantial compliance with the Code, this may weigh in favour of finding that a person’s deactivation was not unfair.52 I take into account that some of the processes in the Code were followed. I have also taken into account that not all the processes were followed. [2026] FWC 1859 18 Any other matters that the FWC considers relevant (s 536LH(c)) [93] Uber submits that Commission should take into account the nature of the jurisdiction and have regard to the broader context in which digital platform operators operate – including the low barriers to entry in the first place, practical limitations on obtaining direct evidence from riders and, importantly, the need to ensure public safety.53 As discussed above at [86], these factors are matters of which I am mindful. However, ultimately, if Uber intends to deactivate a driver on the grounds of serious misconduct, it needs to ensure it follows the DLPD Code. If it does not, Uber will need to bear the evidentiary onus of proving that the conduct on which it relies actually took place. [94] I have taken into account the substantial financial impact that the deactivation has had on Mr Syed. [95] Having taken into account all the matters under s 536LH of the Act, I have determined that Mr Syed was unfairly deactivated. Conclusion [96] For the reasons given, I have determined that Mr Syed was unfairly deactivated from Uber’s digital labour platform on 16 August 2025. I consider it appropriate to exercise my discretion to make an order for the Applicant’s reactivation together with an order to restore lost earnings in the following terms. Order [97] I make the following order: 1. Pursuant to s 536LP(1) of the Fair Work Act 2009 (Cth) the Fair Work Commission orders that the Respondent reinstate the Applicant’s access to the digital labour platform operated by the Respondent within 7 days of this decision on the basis that he be engaged on the same terms and conditions as those on which he was engaged by the Respondent immediately before his deactivation. 2. This order commences in operation on 9 June 2026. [98] An order for Mr Syed’s reactivation will be issued concurrently with this decision [PR810589]. An order to restore lost pay will be made after the parties have been given an opportunity to confer in relation to the quantum of the order. [2026] FWC 1859 19 COMMISSIONER Appearances: P Boncardo, for the Applicant A Crocker, for the Respondent Hearing details: 2026 3 February Melbourne Final written submissions: Applicant, 11 February 2026 Respondent, not applicable Printed by authority of the Commonwealth Government Printer <PR810255> 1 PN72 – PN 81. 2 DHB 96 Community Guidelines. 3 DHB 103. 4 DHB 103. 5 DHB 105. 6 DHB 108 and DHB 68 Fairlee Statement at [25]. 7 DHB 147. 8 DHB 113. 9 DHB 114. 10 DHB 226. 11 DHB 202. 12 Fairlee Statement at [11]. 13 Ibid. 14 PN 123. 15 PN 342 Fairlie. [2026] FWC 1859 20 16 The allegation in the first JIRA report is not entirely accurate – it records that Mr Syed requested cash in addition to the amount already paid. 17 DHB 116. 18 DHB 121. 19 DHB 122. 20 DHB 122. 21 PN 630. 22 PN 642. 23 DHB 101 Driver Profile. 24 Bilawal Khan v Rasier Pacific Pty Limited [2025] FWC 3347. 25 PN1024. 26 PN1027. 27 [2025] FWC 2275. 28 [2025] FWC 2337. 29 Umair Ayyub v Portier Pacific Pty Ltd t/a Uber Eats [2026] FWCFB 81. 30 Ibid at [90]. 31 DHB 122. 32 Ayub at [131]. 33 Wadey v Y.M.C.A. Canberra [1996] IRCA 568, cited in Dover-Ray v Real Insurance Pty Ltd [2010] FWA 8544 (Thatcher C, 5 November 2010) [85], [(2010) 204 IR 399]. 34 Ibid. 35 Mohammad Shareef Hotak v Rasier Pacific Pty Ltd [2025] FWCFB 214. 36 Briginshaw v Briginshaw[1938] HCA 34, (1938) 60 CLR 336. 37 Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at [216] per Dixon J. 38 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at [449] – [450]. 39 Briginshaw per Dixon J at [362]. 40 Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [35]; approved in Karakatsanis v Racing Victoria Ltd (2013) 306 ALR 125 at [35] – [37]. 41 NOM v Director of Public Prosecutions [2012] VSCA 198 at [124]. 42 PN 911. 43 PN477. 44 PN476. 45 DHB 57 Respondent’s Submissions at [15]. 46 DHB 57 Uber’s Submissions at [15]. 47 DHB 66 Fairlee Statement at [9(c]). 48 DHB 66 Fairlee Statement at [9(a)]. 49 DHB 66 Fairlee Statement at [9(e)]. 50 DHB 63 at [47]. 51 DHB 62 Respondent’s Submissions at [42]. 52 DHB 142 at [44]. 53 PN 921.