Uber gave driver his job back and he completed 150 trips but unfair deactivation application survives dismissal attempt
The Fair Work Commission (FWC) recently dealt with an unfair deactivation application involving an Uber driver.
The worker worked for Rasier Pacific Pty Ltd (Uber) as an Uber driver from 18 November 2020 until he was deactivated by Uber on 8 April 2025.
On 19 May 2025, Uber reactivated the worker's access to the Uber driver platform and the worker recommenced performing work as an Uber driver.
Baseball bat allegation and police report
The worker and Uber agreed on facts, including that the worker was an 'employee-like' worker and that Uber was a 'digital labour platform operator'.
On 18 November 2020, the worker commenced performing work through the Uber driver platform, subject to a services agreement.
It was a term of the services agreement that the worker provide transport services safely and in a professional manner and comply with Uber's Community Guidelines.
It was a term of Uber's Community Guidelines that drivers were prohibited from carrying weapons while using the platform.
On 24 March 2025 at about 11.00 pm, the worker picked up a rider and two guests from Hindley Street. Uber received reports from the worker and rider regarding an alleged physical altercation.
The rider complained that the worker threatened them with a baseball bat. The worker complained that they required the riders and guests to stop using drugs in their vehicle and asked them to leave. They assaulted the worker from behind and exited the car.
The worker denied possession of a weapon or threatening the rider and guests. The worker immediately called triple zero and formally reported their version of the incident to the police.
On 27 March 2025, the worker provided Uber with further details regarding the incident over the phone.
On 29 March 2025, Uber issued a preliminary deactivation notice to the worker. On 29 March 2025, the worker responded in writing to the preliminary deactivation notice.
Uber received the worker's response and, on 8 April 2025, issued a final deactivation notice notifying the worker of their deactivation from the platform. On 9 April 2025, the worker commenced proceedings in the Fair Work Commission to apply for an unfair deactivation remedy.
On 24 April 2025, the worker commenced new proceedings for an unfair deactivation remedy.
On 28 April 2025, the worker discontinued the earlier matter. On 19 May 2025, Uber reactivated the worker's access to the platform and the worker recommenced performing work. Since reactivation, the worker had completed over 150 trips.
Uber's no reasonable prospects argument
Uber argued that the worker's unfair deactivation claim should be dismissed because the worker's account was reactivated on 19 May 2025, allowing him to resume work.
Therefore, he was no longer "deactivated" within the meaning of section 536LG(c) of the Act. As a result, the Commission could not find that the worker "has been deactivated" under section 536LF(a) of the Act, which was a prerequisite for determining unfairness and granting relief.
Uber contended that the application had no reasonable prospects of success and must be dismissed.
Uber also argued that the Act provided only one remedy for unfair deactivation: reactivation. Only after an order for reactivation was made could the Commission consider ordering lost remuneration.
The Act explicitly prohibited the Commission from ordering the payment of compensation to an applicant in unfair deactivation proceedings. The worker, who was represented by the Transport Workers' Union, submitted that he "has been deactivated" within the meaning of section 536LG of the Act.
The worker submitted that an "order for reactivation" involved restoring the person to the position they would have been in but for the deactivation. The conferral of power was cast in broad terms and permitted the Commission to make orders that achieved that restoration.
After the parties' written submissions were received, a communication was sent to the parties. The Full Bench noted that the power for the Commission to dismiss an application on the basis that it had no reasonable prospects of success was found in section 587(1) of the Fair Work Act 2009.
However, section 587(2) of the Act was amended by the Fair Work Amendment (Closing Loopholes No. 2) Act 2024. Section 587(2) of the Act now provided: "Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365, 536LU or 773... on the ground that the application: (a) is frivolous or vexatious; or (b) has no reasonable prospects of success."
Legislative barrier to dismissal
The worker's unfair deactivation application was an application under section 536LU of the Act. Accordingly, section 587(2) of the Act seemed to prevent the Commission from dismissing the worker's unfair deactivation application on the basis that it had no reasonable prospects of success.
The worker submitted that the clear import of section 587(2) of the Act was to carve out from the power under section 587(1) applications premised on certain grounds in relation to specific classes of application. Uber's application for dismissal was grounded on section 587(1)(c).
The Commission was precluded from dismissing the worker's application on the basis contended for by Uber, and the matter should be programmed for a hearing on the merits.
Uber's reply submissions submitted that it did not rely on section 587(1) of the Act as the basis for dismissing the worker's application. Uber did not make any reference to section 587(1) in its response or its written submissions in chief.
Uber accepted that its written submissions included a submission that the worker's "application has no reasonable prospects of success and must be dismissed", and said that the use of this phrase did not indicate reliance on section 587(1) but reflected Uber's assessment of the relative weakness of the worker's case.
Uber contended that the Commission had a suite of powers available to it to determine the questions referred to the Full Bench. Section 587(1) provided that the grounds set out in paragraphs (a) to (c) did not limit when the Commission might dismiss an application.
This recognised that the Commission might dismiss an application based on other grounds. The Commission might make a decision as to how, when and where a matter was to be dealt with. Moreover, the Commission was not bound by any rule of procedure in relation to a matter before it.
Uber submitted that this conferred a broad discretion on the Commission to determine the timing and procedure adopted in dealing with a matter.
Full Bench rejects dismissal application
The Full Bench decided not to list the matter for hearing at this stage so that the parties could make oral submissions.
The Full Bench considered that the parties were given a fair opportunity to make submissions in writing. Further, the parties would be given another chance at the final hearing to make oral submissions on any point they wished to raise.
The Full Bench stated: "This is not a case in which the Commission has been asked to embark on the separate determination of a particular issue in the proceedings. Instead, [Uber] is seeking the summary disposal of the proceedings on the basis that [Uber] reactivated [the worker's] access to the Uber driver platform on 19 May 2025."
The Full Bench stated: "[Uber's] written submissions in chief contend that [the worker's] 'application has no reasonable prospects of success and must be dismissed'. [Uber's] submissions do not make any reference to s 587(1) of the Act. But s 587(1) of the Act is the only source of power which the Commission has to dismiss an application on the basis that it has no reasonable prospects of success. The Commission may dismiss an application on other grounds. However, we do not consider that any other grounds have been identified or relied on by [Uber]."
The Full Bench stated: "Section 587(2) of the Act imposes a clear injunction on the Commission not to dismiss an unfair deactivation application made under s 536LU of the Act on the ground that the application has no reasonable prospects of success. It follows that we must not dismiss [the worker's] unfair deactivation application on the ground that the application has no reasonable prospects of success."
The Full Bench rejected Uber's contention that the worker's unfair deactivation application should be dismissed on the basis that Uber had reactivated the worker's account.
The matter would now be programmed for final hearing to deal with the merits of the application and the relief sought by the worker.
