Ana Luisa Gerhson Tavares Gentil v Portier Pacific Pty Ltd T/A Uber Eats Summary

[2025] FWC 1360

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.536LU - Application for an unfair deactivation remedy

Ana Luisa Gerhson Tavares Gentil
v

Portier Pacific Pty Ltd T/A Uber Eats

(UDE2025/32)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 15 MAY 2025

Application for an unfair deactivation remedy – application dismissed

Ms Gerhson Tavares Gentil has lodged an application in the Fair Work Commission claiming that she was unfairly deactivated by Portier Pacific Pty Ltd trading as Uber Eats.

Uber contends that Ms Gerhson Tavares Gentil is not protected from unfair deactivation because she did not work for Uber for at least six months before her deactivation.

Ms Gerhson Tavares Gentil agrees that her engagement by Uber spanned less than six months, but she requests that the Commission “allow this matter to proceed to a full consideration on the merits, in the interests of fairness and to uphold the principles intended by the Fair Work Act”.

The Commission may only order a remedy for unfair deactivation if it is satisfied that the person was protected from unfair deactivation (s 536LP(1) of the Act).

A person is protected from unfair deactivation at a time if, at that time, the person, amongst other things, has been performing work through or by means of a digital labour platform, or under a contract, or a series of contracts, arranged or facilitated through or by means of the digital labour platform, on a regular basis for a period of at least six months (s 536LD(c) of the Act). There is no dispute that Ms Gerhson Tavares Gentil has not met this requirement. Accordingly, Ms Gerhson Tavares Gentil was not, at the time of her deactivation, a person protected from unfair deactivation. It follows that the Commission does not have jurisdiction or power to consider or determine the fairness of Ms Gerhson Tavares Gentil’s deactivation.

For the reasons stated, Ms Gerhson Tavares Gentil’s unfair deactivation application against Uber must be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Ms. Ana Luisa Gerhson Tavares Gentil has lodged an application with the Fair Work Commission, alleging that she was unfairly deactivated by Portier Pacific Pty Ltd, trading as Uber Eats. Uber Eats contends that Ms. Gerhson Tavares Gentil is not shielded from unfair deactivation because she did not work for Uber Eats for at least six months prior to her deactivation. Ms. Gerhson Tavares Gentil acknowledges that her engagement with Uber Eats was less than six months but requests that the Commission allow the matter to proceed to a full consideration on the merits for reasons of fairness and to uphold the principles of the Fair Work Act.

The legal issues before the Commission revolve around whether Ms. Gerhson Tavares Gentil was protected from unfair deactivation under the Fair Work Act. Specifically, the Commission needed to determine if the six-month period of regular work through or by means of a digital labour platform, as required by the Act, was met by Ms. Gerhson Tavares Gentil. The Commission noted that Ms. Gerhson Tavares Gentil did not meet this requirement, as her engagement with Uber Eats was less than six months. Consequently, the Commission concluded that Ms. Gerhson Tavares Gentil was not protected from unfair deactivation at the time of her deactivation, and thus, the Commission lacks the jurisdiction or power to consider or determine the fairness of her deactivation.

Given that Ms. Gerhson Tavares Gentil was not protected from unfair deactivation, the Commission dismissed her application. The Deputy President Saunders ruled that since the statutory criteria for protection against unfair deactivation were not satisfied, the application could not proceed further. This decision underscores the importance of the six-month work period requirement for protection under the Act.

Ana Luisa Gerhson Tavares Gentil v Portier Pacific Pty Ltd T/A Uber Eats

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established