Dylan Wrey Bergh v Portier Pacific Pty Ltd
[2025] FWC 3077
•15 OCTOBER 2025
| [2025] FWC 3077 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s 536LU - Application for an unfair deactivation remedy
Dylan Wrey Bergh
v
Portier Pacific Pty Ltd
(UDE2025/207)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 15 OCTOBER 2025 |
Application for an unfair deactivation remedy –application filed out of time –extension not granted –application dismissed – background check
Issue and outcome
On 19 August 2025, Dylan Wrey Bergh (the Applicant) made an unfair deactivation application to the Fair Work Commission pursuant to s 536LU of the Fair Work Act 2009 (Cth) (the Act) by filing a Form F89 – Application for an unfair deactivation remedy (application).
Section 536LG of the Act outlines that a person has been deactivated from a digital labour platform if they performed digital platform work through or by means of the digital labour platform, and the digital labour platform operator modified, suspended, or terminated their access to the digital labour platform, and the person is no longer able to perform work under an existing services contract. The statutory period for making the unfair deactivation application is 21 days, as prescribed in s 536LU(3)(a) of the Act.
The application outlined that the deactivation of the Applicant from the Respondent’s digital labour platform took effect on 12 August 2025, therefore, according to the Applicant, the application was made in time. However, the Respondent contends that the deactivation took effect on 3 July 2025, with the result that the 21-day period concluded at midnight on 24 July 2025 and the application was filed 26 days outside the statutory timeframe.
In addition, the Respondent contends that the Applicant is not protected from unfair deactivation because the Applicant did not perform work on a regular basis for at least six months prior to deactivation as required by s 536LD(c) of the Act, and that the Respondent complied with the Digital Labour Platform Deactivation Code (Code) when deactivating the Applicant’s account.
Briefly stated, I find that the Applicant had been deactivated from the digital labour platform effective 3 July 2025. The Applicant therefore requires the Commission to allow him an extension of time in which to file his unfair deactivation application pursuant to s 536LU(3)(b) of the Act. The Act allows the Commission to extend the period within which an application for an unfair deactivation remedy must be made only if it is satisfied that there are ‘exceptional circumstances’, taking into account the factors in s 536LU(4)(a)–(g). For the reasons that follow, I am not satisfied that there are exceptional circumstances, meaning that the discretion to extend the time in which the application may be made is not enlivened. The application is therefore dismissed and an Order[1] issues concurrently with this decision.
My detailed reasons follow.
Effective date of deactivation
To determine the date the deactivation took effect, it is appropriate to reflect on the events that unfolded in the lead up to the deactivation(s).
Emilee Fairlie (Fairlee), Senior Manager Industrial Relations for the Respondent, gave evidence that on or around 25 June 2025, the Respondent sought to verify the Applicant’s licensing, accreditation and screening requirements to perform work on the Uber delivery platform. It did so by the provision of an ‘in-app’ message reminding the Applicant that his ‘Background Check’ was expiring in 14 days and was due for renewal, and that to continue receiving delivery requests he would need to apply for and pass a new ‘Background Check’. The ‘in app’ message provided an ‘Apply Now’ hyperlink to commence the application for the ‘Background Check’.
As part of that process, the Applicant uploaded his latest criminal background check to the Uber delivery platform on 26 June 2025 for assessment and, upon that assessment, it became apparent to the Respondent that there was an offence in the Applicant’s background check disqualifying him from being able to perform delivery services on the Uber delivery platform with his registered car.
According to the Respondent, the results of the Applicant’s mandatory screening or registration requirements constituted an exceptional circumstance under subsection 9(1)(a) of the Code and therefore, the Respondent considered it was immediately entitled to modify or suspend the Applicant’s access to the Uber delivery platform without providing deactivation warnings to the Applicant.
On 26 June 2025, the Applicant was provided with a preliminary deactivation notice (Preliminary Deactivation Notice) on the basis that the Applicant had not met the Respondent’s background check and driving record requirements. The Respondent sent the Preliminary Deactivation Notice to the Applicant’s email address, and at hearing, the Applicant acknowledged that the email address was his personal email and that it was active.
In accordance with the Preliminary Deactivation Notice, the Applicant had: (a) seven days to provide a response to the Preliminary Deactivation Notice; and (b) two days to request a discussion with a representative of the Respondent.
On 26 June 2025, the Applicant wrote to the Respondent twice, stating on the first occasion, ‘hi not sure what is happening? i have been using uber for a few years now. please let me know what is required’. On the second occasion the Applicant wrote, ‘i am unsure if its[sic] the bac that was 2010 and no other.’
On 27 June 2025, the Applicant again wrote to the Respondent stating:
hello, i understand what your reply is but i don’t understand my record having any affect [sic] to the related offences mentioned? i have a bac from 15years ago in 2010. i have been using uber for over 3 years with the same results on each npc report. could I please discuss this and review
Fairlee said that as of 26 June 2025, the Applicant’s account was suspended pending the Respondent’s final decision, and, at hearing, the Applicant acknowledged that his account was suspended on or around this time.
The Respondent submits that based on the information available and the Applicant’s responses to the Preliminary Deactivation Notice, the Respondent decided to terminate the Applicant’s access to the digital labour platform and provided the Applicant with written notice to that effect on 3 July 2025 (Deactivation Notice). The Deactivation Notice stated, amongst other things, the following:
Further to your preliminary deactivation notice (which can be found in your email inbox or the inbox of the Uber Driver app), we are writing to inform you that because the background check that was provided does not meet our eligibility requirements, we have decided to terminate your access to the Uber Driver app.
This deactivation will take effect immediately upon receipt of this email.
Whilst the Deactivation Notice is absent a date, based on the materials before the Commission, and the Applicant’s concession, which I will detail shortly, I find that the Deactivation Notice was provided on 3 July 2025.
The Applicant concedes that he received a ‘general notice’ on 3 July 2025 to his email address, as stated by the Respondent, but that this was not when his ‘unfair dismissal’ took effect.[2]
To explain further, the Applicant relies, in part, upon an ‘online’ or ‘in app’ discussion with the Respondent to support his contention that the deactivation took effect on 12 August 2025.
At Appendix A of the Applicant’s materials, appears to be a copy of the purported ‘chat’. It is dated 12 August 2025, and the title of the ‘chat’ is ‘[Chat with us] Account Waitlisted or Deactivated’. The Applicant writes:
Hello my account has been deactivated for the national police clearance. I have a new police clearance from the western [sic] Australian police force with no outcomes.
Could I get assistance to review my document and activate my account…
The Applicant had, on 12 August 2025, provided to the Respondent a ‘National Police Certificate’ from the Western Australia Police Force Office of Interagency Access which certified that the Applicant was not recorded by the Australian police jurisdictions with any disclosable court outcomes and/or pending charges. However, on sharing the National Police Certificate with the Respondent, the Applicant received the following response:
At this time we only accept background check from NCC (National Crime Check) that are run for the specific purpose of determining if you meet the requirements to partner with Uber.
The following ‘in app’ messaging continued:
So what do I do now? I have been working uber over 4 years then this year I am deactivated … and even though I went and got a cleared police check I am still being told I am out of work?
Dylan, you can contact NCC they will help you in updating your background check document.
If you have further concerns about your background check result, please contact National Crime Check. Their details are as follows….
I see I am not going to get support on this at all. I will seek advice then… Thanks
The Applicant further relies upon an ‘email’ dated 16 September 2025 time stamped 8:26AM, which he asserts is a follow up email to raise the dispute he lodged with the Respondent on 12 August 2025. The ‘email’ appears to have been extracted from the ‘Uber’ platform and reads ‘A message from Uber’:
Hello Dylan Bergh,
We are following up on your recent background check submission.
Unfortunately, we are unable to verify the police certificate you provided. Please not that we only accept background checks from approved third-party providers, such as National Crime Check (NCC).
If you believe your background check results are inaccurate or out of date, you can request a new background check here.
If you believe there is an error in the results, you can also dispute them directly with the National Crime Check (NCC).
Please let us know if you have any questions.
Section 536LG of the Act informs as to the meaning of ‘deactivated’. Relevant for current purposes, it is understood that a person has been deactivated from a digital labour platform if the digital labour operator modified, suspended, or terminated the person’s access to the digital labour platform, and the person is no longer able to perform work under an existing or prospective services contract. It is uncontroversial that the Applicant performed digital platform work (s 15N of the Act) through or by means of a digital labour platform (s 15L of the Act).
The Respondent initially suspended the Applicant’s access on 26 June 2025 and then, ultimately terminated the Applicant’s access altogether on 3 July 2025. Each of these actions led to the Applicant being unable to perform work under the services contract and it follows that each may constitute a separate instance of deactivation under s 536LG of the Act.
As was noted in the Full Bench decision of Bandameeda, an employee-like worker may choose to challenge only the final act of termination, or they may seek to contest each individual act of deactivation.[3] The calculation of the 21-day period within which an unfair deactivation application must be filed in the Commission will depend on which specific act of deactivation – modification, suspension, or termination – the worker alleges to be unfair.[4]
In Bandameeda, the Full Bench stated that the restricted 21-day timeframe under s 536LU(3)(a) for an employee-like worker to lodge an unfair deactivation application in the Commission, combined with the high threshold of ‘exceptional circumstances’ required to justify an extension, reflected a clear legislative intent to strictly limit the period within which such applications may be made.[5] With this context in mind, the Full Bench stated that a deactivation within the meaning of s 536LG of the Act will not take effect until the employee-like worker is aware, or at least has had a reasonable opportunity to become aware, of the matters set out in all three elements of the definition of ‘deactivated’ in s 536LG(a)–(c).[6] The Full Bench said that this means that a deactivation will not take effect in circumstances where an employee-like worker’s access to the relevant app has been modified, suspended or terminated and they are unable to perform work under a services contract, unless they are aware, or have had a reasonable opportunity to become aware, of these matters.[7]
On 26 June 2025, the Applicant received the Preliminary Deactivation Notice. The Preliminary Deactivation Notice set out that the Applicant’s background check did not meet the Respondent’s eligibility requirements and the Respondent was considering terminating the Applicant’s access to the Uber Driver app. It also advised that pending a final decision, the Applicant’s access to the platform was suspended effective immediately (as of 26 June 2025).
In accordance with the Preliminary Deactivation Notice, the Applicant responded to the Notice. However, it is apparent from the Applicant’s evidence that it was not until the Applicant received the Deactivation Notice of 3 July 2025, that the Applicant sought to challenge that his deactivation from the digital labour platform was unfair. In this regard, I observe that on 12 August 2025, having provided the National Police Certificate and that not having been accepted by the Respondent, the Applicant advised the Respondent on the ‘in app’ messaging that he ‘would seek advice’. It follows that I find that it is the deactivation of 3 July 2025 that the Applicant alleges to be unfair.
It is accepted that in a situation where a digital platform worker is informed by email of deactivation, the digital platform worker can usually be regarded as knowing, or having had a reasonable opportunity to know, of the deactivation when the email is received in the inbox of the employee’s usual email address.[8] As has been observed, the Deactivation Notice was sent via email to the Applicant on 3 July 2025. Whilst the Applicant appeared to suggest that he had not seen the Deactivation Notice until 12 August 2025 and relies upon the ‘in app’ messages of 12 August 2025 and a later email dated 16 September 2025, given the direct evidence before me, and in circumstances where the Applicant acknowledged that the Deactivation Notice had been sent to his active email account, and that email was sent on 3 July 2025, I hold the view that the Applicant had a reasonable opportunity to find out about the deactivation from the digital labour platform as of 3 July 2025.
The calculation of the 21-day period within which an unfair deactivation application must be filed in the Commission will depend on which specific act of deactivation – modification, suspension, or termination – the worker alleges to be unfair, in this case that act of deactivation was on 3 July 2025, and therefore the application was due to be filed on 24 July 2025. Having been filed on 19 August 2025, the application was lodged 26 days out of time.
As noted, the Commission may extend the period within which an application for an unfair deactivation remedy must be made if satisfied that that there are exceptional circumstances. The statutory framework for unfair deactivation is set out at Part 3A-3 of the Act. The parts relevant to this application are set out below.
Statutory framework for an extension of time
The Commission has the power under s 536LU(4) of the Act to extend the time within which this application can be made only if it is satisfied that there are exceptional circumstances. The language in s 536LU(4) is similar to the language contained in ss 394(3) and 366(2) of the Act, which relate to extensions of time in unfair dismissal applications and general protections dismissal disputes respectively. Therefore, I consider it appropriate, as have other members of the Commission,[9] to refer to decisions of this Commission that have considered the criterion in ss 394(3) and 366(2), by way of guidance.
The meaning of ‘exceptional circumstances’ in s 366(1) of the Act was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (‘Nulty’),[10] as follows:
[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.
Under s 536LU(4) of the Act, the matters the Commission must take into account in order to determine whether exceptional circumstances exist are as follows:
(a) the reason for the delay; and
(b) whether the person first became aware of the deactivation after it had taken effect; and
(c) any action taken by the person to dispute the deactivation; 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 persons in a similar position; and
(g) any process specified in the Digital Labour Platform Deactivation Code.
At the commencement of the hearing, the parties were referred to s 536LU(4) of the Act. Both were invited to make any further submissions in relation to the question of whether there were ‘exceptional circumstances’ by reference to those factors at paragraph [36] of this decision. Each of these factors are considered below and were outlined to the parties before the hearing.
Exceptional circumstances
The assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[11]
4.1 Reason for the delay
It has been observed that the Act does not specify what reason for delay might tell in favour of granting an extension.[12] However, decisions of the Commission have referred to an acceptable[13] or reasonable[14] explanation. The absence of any explanation for any part of the delay may weigh against an applicant in the assessment of whether there are exceptional circumstances, whilst a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[15]
The relevant period required to be considered is the period commencing immediately after the 21-day timeframe for lodging the application has expired.[16] However, the circumstances from the time of the dismissal (albeit in this case it was a deactivation) are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[17]
As the Applicant was focused upon an argument that he had made his application within the requisite statutory period, his evidence and submissions in respect to a reason for the delay were fairly limited.
It would appear that the Applicant relies, in part, on having sought an internal review of the decision to deactivate him from the digital labour platform.
It is well established that a request for a review of a dismissal (albeit in this case it was a deactivation) does not constitute a circumstance excusing the delay in lodging the application.[18] However, the circumstances of this case are idiosyncratic. Having confronted circumstances where his background check did not meet the Respondent’s eligibility requirements, on 12 August 2025 the Applicant provided to the Respondent a ‘National Police Certificate’ from the Western Australia Police Force Office of Interagency Access, which certified that the Applicant was not recorded by the Australian police jurisdictions with any disclosable court outcomes and/or pending charges.
It would appear that having been informed that the Respondent considered that the Applicant did not meet eligibility requirements due to a previous conviction, the Applicant sought, as he was entitled to do, the removal of that conviction from appearing on a National Police Certificate. Hence, allowing the Applicant, on 12 August 2025, to provide to the Respondent the National Police Certificate.
As an aside and whilst not admitted into evidence, the Applicant’s application included a copy of a Certificate of Spent Convictions issued by the Western Australian Police Office of Information Management, signed by the Executive Manager of Interagency Access as of 8 August 2025. It is therefore perhaps surprising that the Respondent, on 16 September 2025, having received the Applicant’s application with a copy of the Certificate of Spent Convictions within it, continued to assert that it could not verify the police certificate the Applicant had provided and did not alter its position on the Applicant’s deactivation on 3 July 2025 from the digital labour platform. It is simply observed that in the State of Western Australia it is unlawful to discriminate on the ground of a spent conviction.[19]
Returning to 12 August 2025, I consider it reasonable to infer and therefore am satisfied that more likely than not, between 26 June or 27 June 2025 and 12 August 2025, the Applicant sought a National Police Certificate that he could provide to the Respondent that would identify that he did not have any ‘disclosable court outcomes and/or pending charges’. It follows that between 24 July 2025 to 12 August 2025 there was a plausible explanation for this period of the delay. However, I am not satisfied that there was a credible explanation for the period of delay between 12 August 2025 and the date of lodgement – little to no persuasive explanation having been proffered by the Applicant.
I have considered that there is a reasonable explanation for part of the delay period albeit I find that there is no credible reason for the remaining part of the delay period. On balance, I am satisfied that this factor ultimately weighs neither in favour nor against a finding of exceptional circumstances.
4.2 Whether the person first became aware of the deactivation after it had taken effect
The Applicant was notified, in writing, that his driver partner account had been permanently deactivated on 3 July 2025. The Respondent’s position is that the Applicant was aware of the deactivation on 3 July 2025 because he received the message to his personal email (an email address that was both active and was the Applicant’s usual email account).
It is the Applicant’s evidence that while his account was deactivated on 3 July 2025, he did not become aware of it immediately. However, the Applicant accepted during cross examination that he had received the email dated 3 July 2025 and had, in addition, received the Preliminary Deactivation Notice.
I consider that the Applicant had a reasonable opportunity to become aware of the deactivation on 3 July 2025. Accordingly, I regard this matter as a neutral consideration in my assessment of whether to grant an extension of time.
4.3 Action taken to dispute the deactivation
I am satisfied that the Applicant disputed the deactivation by raising the issues that he did with the Respondent on 12 August 2025. It follows that the Respondent was on notice that the deactivation was actively contested by the Applicant. This weighs in favour of an extension of time.
4.4 Prejudice to the regulated business (including prejudice caused by the delay)
I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted and therefore consider this criterion to be a neutral factor, noting that the mere absence of prejudice is not a factor that would point in favour of the grant of extension of time.[20]
4.5 Merits of the application
For this consideration to weigh in favour of an extension of time, it must be shown that
there is some merit in the substantive application. However, an application to extend time is
essentially interlocutory in nature and does not enable a fulsome examination of the substantive
merits of the Applicant’s application. Nor should the Commission embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time.
In Nulty, the Full Bench of the then Fair Work Australia considered the principles applicable to the extension of time discretion under s 366 of the Act. In that case the Full Bench said in respect to the merits of an application:
[36] It ought be regarded as well established that on an extension of time hearing it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d).
In Telstra-Network Technology Group v Kornicki, the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth).[21] In that case, the Full Bench said in respect to the merits of an application:
If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[22]
Before considering the merits of the Applicant’s application there are two further jurisdictional objections relied upon by the Respondent that would require consideration and determination.
The first is that the Applicant had not performed work on a regular basis for at least six months prior to the deactivation. Under s 536LW of the Act the Commission must decide whether the Applicant was protected from unfair deactivation before considering the merits of the matter. To be protected from unfair deactivation, the Applicant will be required to show that he has been performing work through the Respondent’s digital labour platform on a regular basis for a period of at least six months.
It has been said that the emphasis on determining, at the time of deactivation, whether the person ‘has been performing work…for a period of at least 6 months’, indicates that s 536LD(c) focuses on the period of work immediately preceding the deactivation, rather than any earlier period.[23] Additionally, the reference to ‘a period’ in s 536LD(c) suggests that the inquiry is concerned with a single period of work, not multiple periods of work that cumulatively add up to ‘at least 6 months’.[24]
In Bakar v Rasier Pacific Pty Ltd (‘Bakar’), it was acknowledged that the expression ‘performing work on a regular basis’ in s 536LD is not defined in the Act.[25] However, in Bakar, the Deputy President noted that there is a long line of authority to support the proposition that the expression is intended to imply some form of repetitive pattern.[26] At paragraph [9] of Bakar, the Deputy President further explained:
Further, although the word “regular” is not being used as a synonym for “uniform”, “constant”, “frequent” or “often”, the frequency with which a person works may be relevant to the regularity of the performance of their work. If a person works frequently or often (e.g. six days a week), it is likely that they will be regarded as performing work on a regular basis. But it is not necessary for work to be performed frequently or often in order for the work to be performed on a regular basis. For example, a person who works from 6am until 6pm every Thursday is likely to be regarded as performing work on a regular basis even though the work may not be considered to be performed frequently or often. Conversely, if a person performs work sporadically, occasionally or on an ad hoc basis, they would not be regarded as performing work on a regular basis.
In addition, the Code, which has been made in accordance with s 536LJ(1) of the Act, deals with ‘the circumstances in which work is performed on a regular basis’ (s 536LJ(2)(a) of the Act). The Code relevantly provides:
Part 3 – Matters relating to deactivation generally
18 Circumstances in which work is performed on a regular basis
(1) This section sets out, for the purposes of paragraph 536LJ(2)(a) of the Act, some circumstances in which work is taken to be performed by an employee-like worker on a regular basis.
(2)
Note: To be protected from unfair deactivation from a digital labour platform, and employee-like worker must have performed work through or by means of the platform on a regular basis for at least 6 months (see paragraph 536LD(c) of the Act).
(3) An employee-like worker who completes, on average, 60 hours of paid work each month through or by means of a digital labour platform is taken to perform that work on a regular basis.
(4) An employee-like worker who completes, on average, paid work on 3 days of each week through or by means of a digital labour platform is taken to perform that work on a regular basis.
(5) A reference in this section to time spent completing paid work is a reference to the time spent in undertaking the work for which the employee-like worker is entitled to be paid. Note: An effect of this subsection is that time spent waiting for work, or between tasks constituting the work, is not counted.
(6) An employee-like worker may be taken to perform work on a regular basis through or by means of a digital labour platform even though the worker elects, in some weeks, not to perform any work through or by means of the platform.
(7) This section does not limit the circumstances in which work is taken to be performed by an employee-like worker on a regular basis.
As was noted in Bakar, the Explanatory Statement issued by the authority of the Minister for Employment and Workplace Relations in relation to the Code provides guidance in relation to the concept of the performance of work on a regular basis. It relevantly provides:
…
110. The overarching framework in which paragraph 536LJ(2)(a) sits is intended to protect employee-like workers who perform work through or by means of a digital labour platform sufficiently often, or in a readily identifiable pattern of work. It is not intended that workers who only perform work through or via a platform occasionally, or on an ad hoc basis, should be protected from unfair deactivation under the Act…[27]
At Annexure E to Fairlie’s witness statement was the Respondent’s record of payments made to the Applicant between 6 December 2021 and 30 June 2025. For the period of 2 December 2024 to 30 June 2025, the Applicant had received the following payments:
Payment Date Amount 2024-12-02 160.83 2025-03-24 39 2025-05-05 7.35 2025-06-02 26.18 2025-06-16 27.14 2025-06-30 105.45
The Respondent submitted that in the six months prior to deactivation, the Applicant completed, on average, paid work on 0.19 days per week; and 1.1 hours per month.
To the extent that it is relevant, neither the Applicant nor the Respondent has provided evidence of the days of the week or the dates upon which, the Applicant worked (albeit payment dates are provided), it is difficult to conceive of any circumstances where the abovementioned evidence and submissions would give rise to a readily identifiable pattern to the manner in which the Applicant performed work. I note further the operation of the Code at s 18 in this respect.
I am very much appreciative that the parties have not had the opportunity to fulsomely test the evidence in respect of the Respondent’s jurisdictional objection regarding the six months period and have not provided comprehensive submissions on the subject. Further, in his application, the Applicant contends that he had worked on a regular basis for a period of at least six months, and in his evidence the Applicant stated:
I have been working on the platform for over 4 years, and as promoted by the platform, this is my second income. I don’t think the Respondent included my hours on the app, waiting for a delivery. My regular working would be every fortnight I would have the Monday to Thursday 9 am to 1:30 pm to be able to work in the platform (during school hours), for example, if after school drop off and I turned on the app, if I did not get a delivery by the time I got home I would then switch if off and spend the day helping with all the household choirs and gardening (Working in my own time).
On the face of the materials filed, in circumstances where the Applicant did not contest that the hours of paid work differed to those that were presented by the Respondent, it is the case that the Applicant will be fundamentally challenged to show that he performed work on a regular basis. It is apparent that the Applicant misapprehends what is required by s 536LD(c) of the Act. It is not the case that when considering whether the Applicant performed work on a regular basis that the Commission considers periods where the Applicant held himself out for work. The consideration turns to the performance of paid work when making an assessment or evaluation of whether the Applicant performed work on a regular basis.
As has been observed, if the application has no merit, then it would not be unfair to refuse to extend the period for lodgement. Similarly, if the Applicant is unable to show that he was protected from unfair deactivation, then again, it would not be unfair to refuse to extend the period for lodgement.
At this stage, based on the evidence before me, I am satisfied that the Applicant would, as noted, be fundamentally challenged in establishing that he performed work on a regular basis for a period of at least six months. It follows that this factor weighs against a finding of exceptional circumstances.
4.6 Fairness as between the person and other persons in a similar position
The Commission’s consideration of this factor under the unfair dismissal regime and the general protections framework, is concerned with the consistent application of principles in applications of this kind.[28] This ensures fairness as between an applicant and other persons in a similar position. However, applications for an extension of time generally turn on their own facts, and, in circumstances where neither the Applicant nor Respondent have drawn my attention to comparable cases, I am satisfied that this factor is a neutral consideration.
4.7 Any process specified in the Digital Labour Platform Deactivation Code
The Respondent contends that it complied with the Code when deactivating the Applicant’s account. It argues that the Applicant’s failure of mandatory screening or registration requirements constitutes an exceptional circumstance under s 9(1)(a) of the Code and accordingly, the Respondent was immediately entitled to modify or suspend the Applicant’s access to the Uber delivery platform without providing deactivation warnings to the Applicant.
The Respondent further asserts that it provided the Preliminary Deactivation Notice to the Applicant on 26 June 2025 and the Applicant responded to the same – and based on the information available to the Respondent including the Applicant’s response to the Preliminary Deactivation Notice, the Respondent decided to terminate the Applicant’s access to the platform.
As to whether s 9(1)(a) of the Code was enlivened in the circumstances, I am unable to provide a concluded view. I simply observe that on 25 June 2025, the Respondent sent the Applicant an ‘in app’ message reminding him that his criminal background check needed to be updated as it was set to expire in 14 days. For the previous three years, the background check had proved unproblematic – albeit the Respondent noted in the ‘in app’ message that ‘Uber’s Background Check requirements may have changed since your last check’. By 3 July 2025, the Applicant had been deactivated from the platform.
As I am unable to form a concluded view in relation to compliance with the Code, I regard this as a neutral factor in my consideration.
Conclusion
The statutory time limit that applies to the exercise of a person’s right to bring an application for unfair deactivation remedy reflects the Parliament’s intention that such rights be exercised promptly. The test of exceptional circumstances in s 536LU(4) of the Act establishes a high hurdle for an applicant for an extension of time.
In this case, the Applicant has provided a plausible explanation for part of the period of the delay although for the remaining period there is an absence of plausible and persuasive explanation. It is, however, to be appreciated that a finding of exceptional circumstances is not dependent on an applicant providing a credible explanation for the whole of the delay period. In this case, I consider this factor to be neutral. Factors for consideration are otherwise neutral with two exceptions. The Applicant did, in the period of delay, place the Respondent on notice that he sought to contest his deactivation, which weighs toward there being exceptional circumstances. However, as has been detailed at paragraphs [56]–[67] of this decision concerning the merits of the application, I consider that the Applicant will face a fundamental challenge in showing that he was protected from unfair deactivation – a factor that necessarily weighs against a finding of exceptional circumstances.
Having regard to my consideration of the statutory criteria and the findings reached and conclusions drawn, I am not satisfied that the matters raised amount to exceptional circumstances, when the circumstances are considered together.
It follows that the power to extend the time in which the application may be made is not enlivened, and the application is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
D Bergh, the Applicant
L Leeds, for the Respondent
Hearing details:
2025.
By telephone:
26 September.
[1] PR792646.
[2] Digital Hearing Book, 3.
[3] Bandameeda v Amazon Commercial Services Pty Ltd[2025] FWCFB 182, [44] (‘Bandameeda’).
[4] Ibid.
[5] Ibid [45].
[6] Ibid.
[7] Ibid.
[8] Ayub v NSW Trains[2016] FWCFB 5500 [50]; Bandameeda (n 3) [54].
[9] Al Boridi v Rasier Pacific Ltd[2025] FWC 2225; Derow v Rasier Pacific Pty Ltd[2025] FWC 2062.
[10] [2011] FWAFB 975.
[11] Ibid.
[12] Pottenger v Department of Caffeine [2018] FWC 3403, [31].
[13] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, [9].
[14] Roberts v Greystanes Disability Services [2018] FWC 64, [16].
[15] Stogiannidis v Victorian Fozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[16] Long v Keolis Downer[2018] FWCFB 4109, [40].
[17] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12].
[18] Gao v Department of Human Services[2011] FWAFB 5605, [10].
[19] See Spent Convictions Act 1988 (WA) ss 17–24, particularly s 20 pertaining to contract workers.
[20] Gellel v Uber[2024] FWC 3218, [21].
[21] (1997) 140 IR 1.
[22] Ibid 11.
[23] Bakar v Rasier Pacific Pty Ltd [2025] FWC 1874, [8] (‘Bakar’), citing Application by Jibril [2025] FWC 1289, [5].
[24] Ibid.
[25] Bakar (n 23) [9].
[26] Ibid, citing Yaraka Holdings Pty Ltd v Giljevic (2006) 149 IR 339 at [65]–[69], [89]–[91], Chandler v Bed Bath N’ Table Pty Ltd[2020] FWCFB 306 [11]–[18], Pang Enterprises Pty Ltd ATF Pang Family Trust v Sawtell[2006] FWCFB 4438 [15]–[17], Bronze Hospitality Pty Ltd v Hansson[2019] FWCFB 1099 [24], Roche v Trustee for the Dolphin Unit Trust[2024] FWC 606 [17]–[19], and WorkPac Pty Ltd v Skene [2018] FCAFC 131 [150]–[152].
[27] Bakar (n 23) [11], citing Explanatory Statement, Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024 (Cth), 5 December 2024, 20–22.
[28] GHD Pty Ltd v Black[2023] FWCFB 38, [94].
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