Mr Musharaf Waheed v Rasier Pacific Pty Ltd - [2025] FWC 2787

[2025] FWC 2787

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.536LU - Application for an unfair deactivation remedy

Mr Musharaf Waheed
v

Rasier Pacific Pty Ltd

(UDE2025/160)

COMMISSIONER TRAN

MELBOURNE, 18 SEPTEMBER 2025

Application for an unfair deactivation remedy – Whether application made out of time under s 536LU(3) of the Act – Date deactivation took effect – Application made within time.

Before considering whether a deactivation is unfair the Commission must first be satisfied that an application was made within time or allow a further period of time under section 536LU(4) of the Fair Work Act 2009 (Cth) (the Act).

On 8 July 2025, the Transport Workers Union, on behalf of Mr Musharaf Waheed (the applicant) applied for an unfair deactivation remedy under section 536LU of the Act by lodging a Form F89 with the Fair Work Commission. Mr Waheed had previously filed an application using the Form F2 on 20 June 2025. That form is an application for an unfair dismissal remedy. Mr Waheed then sent an email to the Commission on 21 July 2025, filing his own Form F89; it was allocated to this matter number. To further complicate matters, the Commission’s administrative staff incorrectly accepted the application on 8 July as an unfair termination application; this was corrected on 15 July 2025.

To be clear, I find that Mr Waheed’s application was made on 8 Jul 2025 and that the application was for an unfair deactivation remedy.

The applicant says – in both the forms completed by him and the form completed by the Union – that he was deactivated by Rasier Pacific Pty Ltd on 17 June 2025. Mr Waheed’s application form dated 21 July 2025 named the respondent as Uber Australia; the application form completed by the Union on 8 July 2025 named Raiser Pacific Pty Ltd. For the sake of completeness, I note that the correct name of the respondent is Rasier Pacific Pty Ltd.

The respondent says that based on its information, it had deactivated Mr Waheed on 16 June 2025.

I intend to answer the following questions

1. On what date did Mr Waheed’s deactivation take effect;
2. If the deactivation took effect on 16 June 2025, are there exceptional circumstances to extend the time for the filing of Mr Waheed’s application.

While the Commission’s jurisdiction relating to unfair deactivation is new, much of the reasoning in case law relating to unfair dismissals can be applied to the jurisdiction because of the similarity in the language chosen by the legislature in drafting these provisions.

The language used in s 536LU(3) about when an application must be made is in the same terms as that in s 394(2), which is “within 21 days after the deactivation or termination took effect.”

The Full Bench in Foyster v Bunnings Group Ltd[2017] FWCFB 3923 at [17] has said that a dismissal does not take effect until an employee is aware that the employee has been dismissed or has had a reasonable opportunity…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 2787
Decision Date: 18 SEPTEMBER 2025

CaseChat Overview and Summary

Mr Musharaf Waheed, represented by the Transport Workers Union, applied to the Fair Work Commission for an unfair deactivation remedy against Rasier Pacific Pty Ltd. The application raised the issue of whether Mr Waheed's application was made within the statutory time frame, and if not, whether exceptional circumstances existed to warrant an extension. The Commission needed to determine the effective date of Mr Waheed's deactivation and whether the application was lodged within 21 days of that date, as required by section 536LU(3) of the Fair Work Act 2009.

The primary legal issue was whether Mr Waheed's application for an unfair deactivation remedy was made within the 21-day statutory period stipulated by section 536LU(3) of the Act. The Court needed to ascertain the exact date when Mr Waheed's deactivation took effect and compare it with the date the application was filed. Additionally, if the application was outside the statutory period, the Court had to decide whether exceptional circumstances existed to justify an extension under section 536LU(4) of the Act.

The Fair Work Commission found that Mr Waheed's deactivation took effect on 17 June 2025, based on the evidence of an email sent to him on that date. This meant the application filed on 8 July 2025 was within the required 21-day period. The Commission acknowledged that if the deactivation had occurred on 16 June 2025, exceptional circumstances might have warranted an extension, considering Mr Waheed's unawareness of the deactivation until 17 June 2025. However, as the deactivation was confirmed on 17 June, the application was timely.

The Fair Work Commission held that the application was timely, and no extension of time was necessary. The case will proceed to a case management conference.

Orders