Gopal Bandameeda v Amazon Commercial Services Pty Ltd
[2025] FWCFB 182
•15 AUGUST 2025
| [2025] FWCFB 182 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.536LU - Application for an unfair deactivation remedy
Gopal Bandameeda
v
Amazon Commercial Services Pty Ltd
(UDE2025/62)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 15 AUGUST 2025 |
Application for an unfair deactivation remedy – when a deactivation takes effect – consideration of exceptional circumstances in the exercise of discretion to extend time for a late application.
Introduction and background
Mr Bandameeda worked for Amazon Commercial Services Pty Ltd as a delivery person from March 2023 until he was deactivated in April or May 2025. During that period, Mr Bandameeda completed almost 22,000 deliveries for Amazon.
On 4 May 2025, Mr Bandameeda filed an application for an unfair deactivation remedy in the Fair Work Commission. Amazon contended in its response that Mr Bandameeda’s application was filed out of time because it was lodged in the Commission more than 21 days after the deactivation took effect.
Pursuant to ss 582 and 615 of the Fair Work Act 2009 (Cth), Justice Hatcher directed that this matter be dealt with by this Full Bench.
On 10 June 2025, we informed the parties that the Full Bench would deal with the following Questions:
- When did Mr Bandameeda’s deactivation by Amazon take effect?
- If the Full Bench determines that Mr Bandameeda’s deactivation took effect on 8 April 2025, as contended by Amazon, the Full Bench will determine whether an extension of time should be granted to Mr Bandameeda in respect of his unfair deactivation application filed in the Fair Work Commission on 4 May 2025.
We also issued directions for the parties to file and serve material in relation to the Questions. Both parties filed and served written submissions and witness statements in compliance with our directions. Both parties also informed the Commission that they were content for the Questions to be decided on the basis of the material filed and served by the parties, without any need for a hearing.
After reviewing the written submissions and witness statements filed by the parties, we notified the parties that we were considering whether Mr Bandameeda’s deactivation took effect on 7 April 2025. The parties were given an opportunity to make supplementary submissions on this issue, together with any impact it may have on the request by Mr Bandameeda for an extension of time. Mr Bandameeda filed a further statement by him and submissions on 7 August 2025. Amazon filed further submissions dated 8 August 2025. We have read and considered those materials.
Because there are no relevant factual disputes to resolve in relation to the Questions, we have decided to determine the Questions on the basis of the material filed and served by the parties.[1]
Relevant facts
The Amazon Flex app is used by delivery partners such as Mr Bandameeda to find out about delivery work which is available for acceptance.[2]
On 4 April 2025, Mr Bandameeda arrived at a residential property to deliver an envelope on behalf of Amazon. Mr Bandameeda says that the front door to the premises was wide open, so he stood at the door and called out “Amazon delivery”. Mr Bandameeda says that a male voice replied with words to the effect, “Yeah, drop it inside”. Mr Bandameeda says that he then took two or three steps towards a table inside the premises, at which point he could see a man who smiled at him. Mr Bandameeda then placed the envelope on the table, took a photograph of it, and left the premises. After making the delivery, Mr Bandameeda uploaded to the Amazon app his photograph of the envelope on the table.
Amazon received a complaint from the customer to whom Mr Bandameeda had delivered the envelope. The customer alleged that Mr Bandameeda had entered his house to deliver the envelope. Amazon reviewed the photograph taken by Mr Bandameeda of the envelope he had delivered to the customer. Amazon determined that Mr Bandameeda had breached his obligations under the Amazon Flex Terms of Service Agreement by entering the customer’s house.
On 7 April 2025, Mr Bandameeda received an email in the following terms from Amazon:
“Hi Gopal,
We’ve reviewed your Amazon Flex account and determined that you have committed a serious violation of the Amazon Flex Terms of Service. As an independent contractor, Amazon expects that you will comply with the Terms of Service and perform services in a professional manner.
On 4 April 2025, we received information alleging that you entered a customer’s residence to deliver a package while delivering with Amazon Flex. Entering a customer's home or garage without specific instructions to complete an Amazon Key in-garage or Packaging-Free delivery is a violation of the Terms of Service.
We have received the following evidence regarding this issue: Picture. If you have any further questions about this matter, please be aware that privacy requirements may limit the further details we can share with you.
You have the right to (a) respond to this notice, and (b) request a discussion with Amazon within 48 hours of when this notice was sent to you. You may appoint a person (other than a lawyer acting in a professional capacity) to provide you with support and representation in respect of this notice. For example, this could include a friend or family member, or someone who may be a delegate or an employee of an organisation. You can read more about the role of your support person or representative here…
If you want to respond to this notice, please email … within 48-hrs of the notice being sent. We will then provide you with details of how you can request a discussion if you want one and how this will be arranged (if you would like your support person or representative to attend).
You do not have to provide a response to this notice. However, if you do not respond within 48-hrs of it being sent, we will proceed to make our final decision about the deactivation of your Flex account on the basis of the information we have without the benefit of your input.
While the above process is underway, your ability to deliver with Amazon Flex has been paused. The suspension is effective on 07-April-2025 at 11:46 AET. As a consequence come out you will not be able to deliver with Amazon Flex until we finish our review of this matter.
The Amazon Flex Team
Best regards
Amazon.com.au”
The email sent by Amazon to Mr Bandameeda on 7 April 2025 contained a hyperlink to an Amazon website which, among other things, contained the following question and answer:
“Am I eligible to file an unfair deactivation claim with the Fair Work Commission?
You can find more information about the Fair Work Commission unfair deactivation process here.”
The word “here” in that website is hyperlinked to the Commission webpage: “Unfair deactivation for employee-like workers”.
In accordance with the email sent to Mr Bandameeda on 7 April 2025, his access to the Amazon Flex app was suspended on that day.[3]
On 8 April 2025, Mr Bandameeda received an email from Amazon with the subject “Final Deactivation Notice from Amazon Flex”. The email stated:
“Hi Gopal,
We previously notified you that we were considering the Deactivation of your Amazon Flex account for violating Amazon's requirements for providing delivery services.
We sent you a Preliminary Deactivation Notice on 07 April 2025 Which set out the reason why Amazon was considering deactivation. We provided you with the opportunity to respond, which included the opportunity to request a discussion with Amazon, if you wanted one.
Because of your delivery history, and your breach of the Terms of Service (as described in the Preliminary Deactivation Notice sent on 07-April-2025) even after you were warned, Amazon has decided to terminate your access to the Amazon Flex program, effective immediately on 08-April-2025 at 08:40 AET.
Your eligibility to deliver with Amazon Flex will cease in 31 days on 09-May-2025 when we formally terminate the Amazon Flex Terms of Service Agreement. From that day onward, you will no longer be able to sign into the Amazon Flex app. You will be paid any amounts owed to you within 48-hours to the preferred payment method on file.
The Amazon Flex Team
Best regards,
Amazon.com.au”
The Amazon Flex program, to which reference is made in the third paragraph of the email sent to Mr Bandameeda on 8 April 2025, is described in paragraph [3] of Ms Jesse Strauss’s witness statement as “a program operated by the Respondent to facilitate delivery of online goods purchased on its website to its customers where packages are collected from a distribution facility by independent contractor owner-drivers (known as ‘delivery partners’, or DPs) and delivered directly to customers of the Respondent. Mr Bandameeda participated as a DP in the Amazon Flex program”.
The Amazon Flex app obviously forms part of the overall Amazon Flex program.
Mr Bandameeda remained unable to access the Amazon Flex app after receiving the final deactivation notice on 8 April 2025.[4]
On 7 and 8 April 2025, Mr Bandameeda contacted Amazon to ask, in effect, that Amazon reconsider his situation and activate his account.[5] Amazon reviewed the matter again and determined that deactivation was warranted.[6] On 9 April 2025, Mr Bandameeda received an email from Amazon in the following terms:
“Thank you for your patience as we reviewed your Amazon Flex account inactivation appeal. After further review, our original decision hasn't changed and you remain ineligible to deliver with Amazon Flex and will not be able to sign in to the Amazon Flex app.
As a result, we are closing this appeal. Any further contacts will not receive a response.”
The period between 8 April 2025 and 9 May 2025 was the notice period for the termination of the Amazon Flex Terms of Service Agreement.
Initially, Mr Bandameeda believed when he received the final deactivation notice on 8 April 2025 that, as had happened in the past, there would be an investigation by Amazon and he would be reactivated onto the Amazon Flex app. However, after a few days Mr Bandameeda started to feel like something different was happening.[7]
Mr Bandameeda’s physical and mental health deteriorated significantly from 9 April 2025. On 16 April 2025, Mr Bandameeda had a range of tests undertaken in relation to his health concerns. Mr Bandameeda continued to experience illness through until at least the middle of May 2025.[8]
At the time he was physically ill and had medical tests undertaken in mid-April 2025, Mr Bandameeda was also having suicidal ideation. This was reported to Amazon by Mr Bandameeda and his wife.[9]
In addition to dealing with his own ill health, at this time Mr Bandameeda’s wife was suffering from lupus, which made her fatigued, requiring bedrest and care from Mr Bandameeda. As a result, Mr Bandameeda was required to feed and care for their newborn baby.[10]
Immediately after the most acute decline in his mental health, Mr Bandameeda formed the view that Amazon was not considering his circumstances or his emails, so he started to look into his legal rights. Mr Bandameeda became aware through online searches that the Victorian Small Business Commission could help some gig workers in Victoria. On about 19 April 2025, Mr Bandameeda lodged an application in the Victorian Small Business Commission.[11]
On 2 May 2025, the Victorian Small Business Commission informed Mr Bandameeda, in writing, that he would need to submit an application in the Fair Work Commission and he “must apply within 21 calendar days after the deactivation”.[12]
Mr Bandameeda says that despite his ill health and the need to look after his wife and children, he made the effort to prepare his unfair deactivation application and lodge it in the Commission on 4 May 2025.[13]
Statutory scheme
Part 3A-3 of the Act governs the unfair deactivation or unfair termination of regulated workers. The objects of Part 3A-3 include establishing a framework for dealing with unfair deactivation of employee-like workers that balances the needs of regulated businesses and the needs of regulated workers (s 536LC(1) of the Act).
A person who has been deactivated may apply to the Commission for an order under Division 4 of Part 3A-3 (s 536LU(1) of the Act). Any such application must be made within 21 days after the deactivation took effect (s 536LU(3)(a) of the Act). However, the Commission has a discretion to extend time for an unfair deactivation application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the matters specified in s 536LU(4)(a) to (g) of the Act.
The Commission may order a remedy for unfair deactivation if it is satisfied that the person was protected from unfair deactivation and the person has been unfairly deactivated (s 536LP(1) of the Act). Section 536LD of the Act governs when a person is protected from unfair deactivation. It provides:
“536LD When a person is protected from unfair deactivation
A person is protected from unfair deactivation at a time if, at that time:
(a)the person is an employee-like worker; and
(b)the person:
(i)performs work through or by means of a digital labour platform operated by a digital labour platform operator; or
(ii)performs work under a services contract arranged or facilitated through or by means of a digital labour platform operated by a digital labour platform operator; and
(c) the person has been performing work through or by means of that 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 6 months.”
The expression “employee-like worker” is defined in s 15P of the Act. It provides:
“Meaning of employee-like worker
(1) A person is an employee-like worker if:
(a) the person is:
(i)an individual who is a party to a services contract in their capacity as an individual (other than as a principal), and performs work under the contract; or
(ii)if a body corporate is a party to a services contract (other than as a principal)--an individual who is a director of the body corporate, or a member of the family of a director of a body corporate, and performs work under the contract; or
(iii)if a trustee of a trust is a party to a services contract in their capacity as a trustee (other than as a principal)--an individual who is a trustee of the same trust and performs work under the contract, whether or not the individual is a party to the contract; or
(iv)if a partner in a partnership is a party to a services contract in their capacity as a partner (other than as a principal)--an individual who is a partner in the same partnership and performs work under the contract, whether or not the individual is a party to the contract; and
(b) the person performs all, or a significant majority, of the work to be performed under the services contract; and
(c) the work that the person performs under the services contract is digital platform work; and
(d) the person does not perform any work under the services contract as an employee; and
(e) the person satisfies 2 or more of the following:
(i)the person has low bargaining power in negotiations in relation to the services contract under which the work is performed;
(ii)the person receives remuneration at or below the rate of an employee performing comparable work;
(iii)the person has a low degree of authority over the performance of the work;
(iv)the person has such other characteristics as are prescribed by the regulations.
(2) In this Part, a reference to an independent contractor includes a reference to an individual who is an employee-like worker within the meaning of subsection (1).
(3) Regulations made for the purposes of subparagraph (1)(e)(iv) may specify that a person must have all or only one or some of the characteristics prescribed.(4) For the purposes of determining whether an individual satisfies the criteria specified in paragraph (1)(e), the effect of a minimum standards order, minimum standards guidelines or a collective agreement applying to, or covering, the individual is to be disregarded.”
A “services contract” is relevantly defined as follows in s 15H of the Act:
“Meaning of services contract
General meaning
(1) A services contract is a contract for services:
(a) that relates to the performance of work under the contract by an individual; and
(b) that has the requisite constitutional connection specified in subsection (2) or (3)…”
The meaning of “deactivated” is governed by s 536LG of the Act. It provides:
“Meaning of deactivated
A person has been deactivated from a digital labour platform if:
(a) The person performed digital platform work through or by means of the digital labour platform; and
(b) The digital labour platform operator modified, suspended, or terminated the person’s access to the digital labour platform; and
(c) The person is no longer able to perform work under an existing or prospective services contract, or the ability of the person to do so is so significantly altered that in effect the person is no longer able to perform such work.”
The expression “digital platform work” is defined in s 15N of the Act. It provides:
“Meaning of digital platform work
(1) Digital platform work means:
(a) work performed by an independent contractor, where:
(i)the work is performed under a services contract through or by means of a digital labour platform, or the services contract under which the work is performed was arranged or facilitated through or by means of a digital labour platform; and
(ii)payment is made for that work; or
(b) work prescribed by the regulations for the purposes of this subsection.
(2) Digital platform work does not include work prescribed by the regulations for the purposes of this subsection.
(3) For the purposes of paragraph (1)(b) and subsection (2), work may be specified by name or by inclusion in a specified class or specified classes.”
The expression “digital labour platform” is defined in s 15L of the Act. It provides:
“Meaning of digital labour platform
(1)A digital labour platform means an online enabled application, website or system operated to arrange, allocate or facilitate the provision of labour services, where:
(a) the operator of the application, website or system:
(i)engages independent contractors directly or indirectly through or by means of the application, website or system; or
(ii)acts as an intermediary for or on behalf of more than one distinct but interdependent sets of users who interact with the independent contractors or the operator via the application, website or system; and
(b)any of the following processes payments referable to the work performed by the independent contractors:
(i)the operator of the application, website or system;
(ii)an associated entity of the operator;
(iii)a person contracted, whether directly or through one or more interposed entities, by the operator or an associated entity of the operator to process the payments.
(2) A digital labour platform also means an online enabled application, website or system that is prescribed by the regulations for the purposes of this subsection.
(3) A digital labour platform does not include an online application, website or system prescribed by the regulations for the purposes of this subsection.
(4) For the purposes of this section:
(a) an online application, website or system may be specified by name or by inclusion in a specified class or specified classes;
(b) an online application, website or system may be specified in respect of all forms of digital platform work, or in respect of specified forms of digital platform work.”
The expression “digital labour platform operator” is defined in s 15M of the Act. It provides:
“Meaning of digital labour platform operator
A digital labour platform operator means the operator of a digital labour platform, being an operator that enters into or facilitates a services contract under which work is performed by employee-like workers.”
The criteria for considering whether a deactivation was unfair are governed by s 536LH of the Act. Relevantly, s 536LH(3) provides that a deactivation of a person from a digital labour platform is not unfair if “the deactivation is constituted by the modification or suspension of the person’s access to the digital labour platform for a period of not more than 7 business days and…” It is apparent from this provision that a short term modification or suspension of a person’s access to the digital labour platform may constitute a deactivation within the meaning of Part 3A-3 of the Act.
It is clear from s 536LG of the Act that the deactivation of an employee-like worker takes effect, as contemplated by s 536LU(3)(a), once all elements of the definition of “deactivated” in paragraphs (a), (b) and (c) of s 536LG have been satisfied.
The first element of the definition of “deactivated” in s 536LG(a) addresses whether the employee-like worker “performed digital platform work through or by means of the digital labour platform.” This element directs attention to both the nature of the work undertaken and the method by which the employee-like worker accessed or was engaged to perform that work.
The second element of the definition of “deactivated” in s 536LG(b) considers whether the digital platform operator has taken action to modify, suspend, or terminate the employee-like worker’s access to the digital labour platform. As defined in s 15L of the Act, a digital labour platform is an online enabled application, website, or system that employee-like workers use to discover and, where suitable, accept offers of work.
The third limb of the definition of “deactivated” in s 536LG(c) centres on whether the employee-like worker retains the ability to perform work under a services contract. When read in context, it is evident that the “work” referred to in s 536LG(c) is the “digital platform work [undertaken] through or by means of the digital labour platform” mentioned in s 536LG(a) of the Act. Ordinarily, when an employee-like worker’s access to the digital labour platform is suspended or terminated, they will no longer be able to perform work under their services contract. This is because the platform typically serves as the sole conduit through which the worker becomes aware of, and accepts, offers of digital platform work. However, exceptions may arise. For instance, a delivery worker may have the capacity to perform work finalising deliveries of goods which were offered to and accepted by the worker prior to the suspension or termination of access to the digital labour platform.
Where the modification, suspension, or termination of access to the digital labour platform does not render the worker unable to perform work under the services contract, a broader inquiry is required. Invariably, a worker will be unable to perform such work if a termination of a services contract has come into effect. Alternatively, even if the contract remains on foot, the worker may be prevented from performing work within the meaning of paragraph (c) due to the exercise of a contractual right or other action by the digital labour platform operator that substantially alters the worker’s ability to perform work under the contract. Examples may include:
(a)The exercise of a contractual right to suspend performance, potentially following notice of termination, even before the termination takes effect.
(b)A direction from the digital labour platform operator prohibiting the worker from performing work.
(c)A specific instruction from the digital labour platform operator barring the worker from doing something which effectively means they cannot perform work under their services contract. For instance, a direction from an operator to a delivery worker barring the worker from collecting goods from operator’s distribution facilities, thereby effectively preventing the performance of work via the platform.
Because a deactivation may result from a modification, suspension, or termination of an employee-like worker’s access to a digital labour platform, it is possible for a worker to be deactivated on multiple occasions by the same platform operator. For example, the operator may initially modify the worker’s access, later suspend it during an investigation, and ultimately terminate access altogether. If each of these actions leads to the worker being unable to perform work under their services contract, then each may constitute a separate instance of deactivation under s 536LG of the Act.
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. 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.
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, reflects a clear legislative intent to strictly limit the period within which such applications may be made. Having regard to this context, we consider 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) to (c).[14] 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.
Further, we note that notices given to employee-like workers in relation to the matters dealt with in paragraphs 536LG(b) and (c) of the Act may affect legal rights under a services contract. We therefore consider that any notice given to an employee-like worker about their access to the digital labour platform or their ability to perform work under a services contract should be construed according to how it would be understood by a reasonable person in the position of the recipient who had knowledge of the background of the dealings between the parties.[15] The subjective beliefs or understandings of the parties is not relevant. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe.[16]
Summary of submissions
Mr Bandameeda submits that his deactivation took effect on 9 May 2025 because Amazon provided written notice on 8 April 2025 which effectively stated that all three of the requirements in s 536LG of the Act would apply on 9 May 2025, at the expiry of the 31 day notice period.
Mr Bandameeda submits that deactivation the subject of his unfair deactivation application did not take effect when he was suspended on 7 April 2025 because the suspension of his access to the digital labour platform did not have the practical result of significantly altering his ability to perform work under an existing or prospective services contract such that he was unable to do that work. In the alternative, Mr Bandameeda submits that any deactivation constituted by the suspension is a separate and distinct deactivation to the one constituted by the termination for which notice was provided on 8 April 2025.
Amazon submits that Mr Bandameeda’s deactivation took effect on 8 April 2025, with the result that his application was filed outside the 21 day time limit provided for in s 536LU(3)(a) of the Act. Amazon submits that 8 April 2025 was the date Mr Bandameeda’s deactivation took effect because this was the time at which Amazon modified, suspended or terminated Mr Bandameeda's access to the Amazon Flex app and Mr Bandameeda was no longer able to perform work under an existing or prospective services contract.
Amazon submits that all steps necessary to take to terminate the Amazon Flex Terms of Service Agreement had been taken by or on 8 April 2025. Mr Bandameeda’s access to the Amazon Flex app had been suspended on 7 April 2025. Amazon contends that the decision to terminate was made and communicated to Mr Bandameeda on 8 April 2025. The notice period concluded on 9 May 2025 and the Terms of Service Agreement was formally terminated on that day. However, Amazon submits that nothing occurred on 9 May 2025 to alter the position of Mr Bandameeda in any substantive way. For these reasons, Amazon submits that nothing on 9 May 2025 amounted to a further, separate, “deactivation” within the meaning of s 536LG.
Consideration – when did Mr Bandameeda’s deactivation take effect?
There is no doubt in the present case that Mr Bandameeda was protected from unfair deactivation at the time he was deactivated by Amazon. The first Question we need to determine is when Mr Bandameeda’s deactivation by Amazon took effect.
The notices given by Amazon to Mr Bandameeda on 7, 8 and 9 April 2025, as set out in paragraphs [11] - [19] above, were confusing and ambiguous in numerous respects. For example:
(a)The 7 April 2025 communication informed Mr Bandameeda that his “ability to deliver with Amazon Flex has been paused” and the suspension will continue until Amazon finishes its review of the matter.
(b)The communication sent on 8 April 2025 informed Mr Bandameeda that Amazon had decided to terminate his “access to the Amazon Flex program, effective immediately.” However, the following paragraph introduced ambiguity by stating that his “eligibility to deliver with Amazon Flex will cease in 31 days on 09-May-2025 when we formally terminate the Amazon Flex Terms of Service Agreement. From that day onward, you will no longer be able to sign into the Amazon Flex app.” The communication did not clarify the distinction or relationship between the “Amazon Flex program,” to which Mr Bandameeda immediately lost access on 8 April 2025, and his “ability to deliver with Amazon Flex” or “sign into the Amazon Flex app,” both of which were set to cease on 9 May 2025. The implication of the statement that Mr Bandameeda’s eligibility to deliver with Amazon Flex would cease on 9 May, and that he would no longer be able to sign into the app “from that day onward”, is that he may retain access to the app and the ability to deliver with Amazon Flex during the interim period between 8 April and 9 May 2025. Another way of interpreting the 8 April 2025 email is that Mr Bandameeda’s access to the Amazon Flex program, including the Amazon Flex app, was terminated, effective immediately at 8:40am on 8 April 2025, and the Amazon Flex Terms of Service Agreement would terminate on 9 May 2025, from which time onward Mr Bandameeda would have no ability to sign in to the Amazon Flex app.
(c)The communication sent to Mr Bandameeda on 9 April 2025 was arguably inconsistent with part of the message he received the previous day. The 9 April communication stated that “our original decision hasn’t changed and you remain ineligible to deliver with Amazon Flex and will not be able to sign in to the Amazon Flex app.” This arguably contradicts that part of the 8 April communication which indicated that Mr Bandameeda’s eligibility to deliver with Amazon Flex would cease on 9 May 2025 and he would no longer be able to sign into the Amazon Flex app from 9 May 2025. The inconsistency between the two communications creates ambiguity regarding the timing and effect of the deactivation.
In addition to the communications between Amazon and Mr Bandameeda in the period between 7 and 9 April 2025, the undisputed objective facts include that Mr Bandameeda lost access to the Amazon app on 7 April 2025, and as a result he was unable to perform delivery work for Amazon from 7 April 2025 onwards.[17]
Regarding the first element of the definition of “deactivated” in s 536LG(a) of the Act, there is no doubt that Mr Bandameeda performed digital platform work through a digital labour platform, having completed nearly 22,000 deliveries via the Amazon Flex app prior to 8 April 2025. The second and third elements – under s 536LG(b) and (c) – are less straightforward in light of the ambiguous communications sent by Amazon to Mr Bandameeda in the period from 7 to 9 April 2025. However, we consider that a reasonable person in Mr Bandameeda’s position would have understood from the following paragraph in the email sent to Mr Bandameeda on 7 April 2025,[18] together with the fact that his Amazon account was disabled on the same day,[19] that 7 April 2025 is the date on which Mr Bandameeda’s access to the Amazon app was suspended and he was unable to perform delivery work under his services contract with Amazon:
“…While the above process is underway, your ability to deliver with Amazon Flex has been paused. The suspension is effective on 07-April-2025 at 11:46 AET. As a consequence, you will not be able to deliver with Amazon Flex until we finish our review of this matter.”
It follows that the requirements of s 536LG(b) and (c) were satisfied on 7 April 2025, marking the point at which Mr Bandameeda’s first deactivation took effect. However, it is clear from Mr Bandameeda’s supplementary statement and submissions that although his suspension on 7 April 2025 “was worrying”, he filed his unfair deactivation application to challenge the fairness of the termination of his access to the Amazon Flex app.[20]
We consider that Mr Bandameeda was deactivated, for a second time, on 9 April 2025 in relation to the termination of his access to the Amazon Flex app. The ambiguities which we have identified above in relation to the email sent by Amazon to Mr Bandameeda on 8 April 2025 would have led a reasonable person in Mr Bandameeda’s position to be unsure as to whether, on 8 April 2025, his access to the Amazon Flex app had been terminated and he no longer had the ability to perform work under the Amazon Flex Terms of Service Agreement. On 9 April 2025, however, the notice from Amazon to Mr Bandameeda that he “remain[ed] ineligible to deliver with Amazon Flex and will not be able to sign in to the Amazon Flex app” was sufficiently clear to lead a reasonable person in Mr Bandameeda’s position to understand that his access to the Amazon Flex app, being the digital labour platform through which he performed work for Amazon, had been terminated and he no longer had the ability to perform his delivery work under the Amazon Flex Terms of Service Agreement. It follows that s 536LG(b) and (c) of the Act were satisfied on 9 April 2025 in relation to the termination of Mr Bandameeda’s access to the Amazon Flex app.
Consideration - extension of time
Much of the caselaw developed in the Commission over a significant period of time in relation to applications for an extension of time in unfair dismissal and general protections applications is also applicable to late applications for unfair deactivation.
Section 536LU(3) of the Act states that an application for unfair deactivation must be made “within 21 days after the deactivation … took effect”, or within such further period as the Commission allows under to s 536LU(4).
In the present case, the period of 21 days after Mr Bandameeda’s deactivation on 9 April 2025 ended at midnight on 30 April 2025. Mr Bandameeda filed his unfair deactivation application in the Commission on 4 May 2025. It was therefore filed four days outside the 21 day period. Mr Bandameeda asks the Commission to grant a further period for the application to be made under s 536LU(4) of the Act.
The Act allows the Commission to extend the period within which an unfair deactivation application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[21] Exceptional circumstances may 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 can be considered exceptional.[22]
The requirement that there be exceptional circumstances before time can be extended under s 536LU(4) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 536LU(4) of the Act requires that the Commission must take into account the following in considering whether it is satisfied that there are exceptional circumstances:
(a) the reason for the delay;
(b) whether the person first became aware of the deactivation after it had taken effect;
(c) any action taken by the person to dispute the deactivation;
(d) prejudice to the regulated business (including prejudice caused by the delay);
(e) the merits of the application;
(f) fairness as between the person and other regulated workers in a similar position; and
(g) any processes specified in the Code, as the case requires.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. We will now consider these matters.
Reason for the delay
The delay required to be considered in s 536LU(4)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the deactivation took effect to the end of the 21 day period.[23] However, the circumstances from the time of the deactivation must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[24]
The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and 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.[25]
We are satisfied that Mr Bandameeda has a reasonable explanation for the four-day delay in filing his unfair deactivation application in the Commission. We accept the unchallenged evidence from Mr Bandameeda that in the period from about mid-April 2025 he was suffering from (a) significant physical and mental health difficulties, including suicidal ideation, and (b) the need to care for his ill wife and newborn child. There is no doubt that these matters would have impacted Mr Bandameeda’s ability and capacity to prepare and lodge his unfair deactivation application in the Commission within 21 days of his deactivation. We note that the significant mental health difficulties suffered by Mr Bandameeda in the period following his deactivation from the Amazon Flex app far exceed feelings of stress, anger, shock, distress, humiliation, or other analogous hurt, which workers commonly experience following a termination of their working arrangements.
The existence of a reasonable explanation for the four-day delay in lodging the application on 4 May 2025 weighs in favour of Mr Bandameeda’s contention that there are exceptional circumstances.
Whether the person first became aware of the deactivation after it had taken effect
For the reasons explained in paragraph [45] above, we consider that a person will become aware that a deactivation has taken effect within the meaning of s 536LU(4)(b) when they are made aware, or at least have had a reasonable opportunity to become aware, of the matters dealt with in all three elements of the definition of “deactivated” in s 536LG(a) to (c).[26] 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.
On 9 April 2025, Mr Bandameeda was made aware by the notice sent to him on that day that his access to the Amazon Flex app had been terminated and he was unable to perform delivery work under his services contract with Amazon. It follows that Mr Bandameeda became aware of his deactivation on the day it took effect. Accordingly, we consider this to be a neutral consideration in our assessment of whether there are exceptional circumstances.
Action taken to dispute the deactivation
On 19 April 2025, Mr Bandameeda filed an application in the Victorian Small Business Commission in relation to his deactivation from the Amazon Flex app. This constitutes action to dispute his deactivation. Mr Bandameeda also took action to dispute his deactivation by sending at least 25 emails to Amazon in the period between 8 April 2025 and 2 May 2025 appealing its decision or otherwise seeking leniency.
This factor weighs in favour of a finding of exceptional circumstances.
Prejudice to the regulated business
We cannot identify any significant prejudice that would accrue to Amazon if an extension of time were to be granted. The mere absence of prejudice is not in our view a factor that would weigh to any significant extent in favour of the grant of extension of time.
Merits of the application
At this early stage of the proceedings, which are essentially interlocutory, it will generally be inappropriate to fully investigate the merits of the substantive claim. However, obvious strengths and weaknesses may be a factor weighing in support of or against extending time.[27]
Mr Bandameeda submits that he only entered the customer’s premises after he announced his arrival at the open front door, at the request of the customer. Mr Bandameeda understood that he was entitled to enter a customer’s premises in such circumstances. Mr Bandameeda also points to concessions by Amazon that delivery drivers are permitted to enter premises in certain circumstances, such as for “packaging free” deliveries. It is further submitted that Mr Bandameeda did not engage in serious misconduct, he completed about 22,000 deliveries for Amazon without prior incident, and Amazon failed to follow processes specified in the Code.
Amazon submits that, based on the unfair deactivation application, the response filed to that application and the materials filed in the Commission by the parties to date, there are likely to be factual disputes about what occurred, including Mr Bandameeda’s delivery history and his compliance with requirements imposed by Amazon. Amazon submits that this should be a neutral factor in the circumstances.
We consider that there are a number of genuine factual and legal disputes concerning a range of matters that would need to be addressed at a final hearing of this matter, including whether Mr Bandameeda breached Amazon’s Terms of Service Agreement by entering the customer’s house, whether any requirement not to enter a customer’s house (even if invited to do so) was reasonable, whether Amazon complied with the processes in the Code, and Mr Bandameeda’s work history with Amazon. Having regard to all the circumstances, we consider the merits of the application to be a neutral factor.
Fairness as between the person and other regulated workers in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employee-like workers of a digital labour platform operator who were deactivated at about the same time or for the same reason. However, cases of this kind will generally turn on their own facts.
In all the circumstances, we consider this factor to be a neutral consideration in Mr Bandameeda’s case.
Any processes specified in the Code
As is the case with considering the merits of the application, at this early stage of the proceedings it will generally be inappropriate to fully investigate whether the processes specified in the Code have been complied with. However, obvious strengths and weaknesses concerning compliance with those processes may be a factor weighing in support of or against extending time.
Mr Bandameeda submits that Amazon failed to comply with processes in the Code including failures to:
(a)give a deactivation warning under section 9 of the Code without a legitimate basis for such an omission;
(b)provide a reasonable period within which to formally respond to the preliminary deactivation notice;
(c)provide sufficient information to Mr Bandameeda in the final deactivation notice, as required by s 14(6) of the Code, to enable a reasonable person in his position to understand the matters mentioned in s 14(5), specifically:
·the ambiguous statements about when the termination of access and/or deactivation was to occur and take effect; and
·the unparticularised references to Mr Bandameeda’s “delivery history” and a “warning”, in circumstances where Mr Bandameeda had a “fantastic” status on his delivery dashboard and no prior deactivation warnings.
Amazon denies that it failed to follow the procedures in the Code. Amazon submits that it is sufficient to note that, based on the unfair deactivation application, the response filed to that application and the materials filed in the Commission by the parties to date, there will be disputes about whether Amazon’s processes complied with the Code. Amazon submits that this should be a neutral factor.
We consider that there are genuine disputes between the parties concerning compliance with processes in the Code. The position of each party in relation to these matters is arguable. We will therefore treat this matter as a neutral factor.
Having regard to all the circumstances and taking into account each of the matters specified in s 536LU(4)(a) to (g) of the Act, we are satisfied that there are exceptional circumstances in this case. We consider it to be out of the ordinary course, unusual, and uncommon for an applicant in an unfair deactivation proceeding to be four days late in filing their application in the Commission in circumstances where they:
have a reasonable explanation for the delay because they suffered significant health difficulties and had to care for their ill partner and a newborn baby in the period following their deactivation; and
took action to challenge their deactivation within 21 days of it taking effect.
For the same reasons, we consider it appropriate to exercise our discretion to extend time by four days to permit Mr Bandameeda to file his unfair deactivation application in the Commission on 4 May 2025.
Conclusion
For the reasons given, the answers to the Questions are as follows:
1. Relevantly, 9 April 2025.
2.The Full Bench has decided to exercise its discretion to extend the time for Mr Bandameeda to file his unfair deactivation application in the Commission to 4 May 2025. An order to this effect will be issued together with this decision.
DEPUTY PRESIDENT
[1] Section 536LX of the Act.
[2] Statutory declaration made by Mr Bandameeda on 24 June 2025 at [2]
[3] Statutory declaration made by Mr Bandameeda on 24 June 2025 at [7]-[8], [17] and Annexure A
[4] Ibid at [17]-[19]
[5] Witness statement of Jess Strauss dated 14 July 2025 at [12]
[6] Ibid at [13]
[7] Statutory declaration made by Mr Bandameeda on 24 June 2025 at [19]
[8] Ibid at [20]
[9] Ibid at [21]
[10] Statement made by Mr Bandameeda on 7 August 2025 at [7]
[11] Ibid at [22]
[12] Ibid at [23]
[13] Ibid at [23]
[14] See, by analogy, Ayub v NSW Trains[2016] FWCFB 5500 at [36]
[15] Koutalis v Pollett [2015] FCA 1165; 235 FCR 370 at [43]-[44]; Fardell v Coates Hire Operations Pty Ltd (2010) 201 IR 64 at [82]; Ayub v NSW Trains[2016] FWCFB 5500 at [17]-[24]
[16] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179 [40]
[17] Statutory declaration made by Mr Bandameeda on 24 June 2025 at [7]-[19] and Annexure A
[18] Statutory declaration made by Mr Bandameeda on 24 June 2025 at Annexure B
[19] Statutory declaration made by Mr Bandameeda on 24 June 2025 at Annexure A
[20] Statement of Mr Bandameeda on 7 August 2025 at [4]; submissions filed on behalf of Mr Bandameeda on 7 August 2025 at [1.13]
[21] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[22] Ibid.
[23] Long v Keolis Downer[2018] FWCFB 4109 at [40]
[24] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]
[25] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[26] See, by analogy, Ayub v NSW Trains[2016] FWCFB 5500 at [36]
[27] SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [49]
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