He cleared the 85 per cent target after his final warning, the algorithm removed him anyway
Australia's Full Bench has ruled an Uber Eats driver's automated deactivation was unfair, finding human judgment cannot be replaced by algorithms in performance-based dismissals.
On 10 April 2026, a three-member bench of the Fair Work Commission upheld the appeal of Canberra delivery driver Umair Ayyub against Portier Pacific Pty Ltd, trading as Uber Eats. The Commission ruled his deactivation was unfair, ordered his reactivation, and found a lost pay order appropriate, directing the parties to confer on the quantum.
Mr Ayyub had worked on Uber's platform since September 2018, initially as an UberX passenger driver completing over 18,000 trips before transferring to Uber Eats, where he performed over 5,856 deliveries with no recorded complaint about a defective order. His deactivation on 8 July 2025 followed automated warnings triggered by his failure to maintain an 85 per cent minimum satisfaction rating, a threshold introduced in late 2024 and not communicated to him until 21 February 2025.
The rating system relied on a simple thumbs-up or thumbs-down from customers and merchants, and only 7.2 per cent of all deliveries attracted any rating at all. Of his 20 negative ratings across his last 100 rated trips prior to the preliminary deactivation notice (PDN), nine came with no explanation. One had a merchant citing "no delivery bag," despite Mr Ayyub's unchallenged evidence that he always used one.
Central to the ruling was the Commission's finding on how decisions were actually made. "The process up to and including the stage of issuing the PDN is entirely automated; no human is involved in any decision-making in respect of the process," the Commission found. Once that automated notice was issued, a review team in the Philippines or India assessed Mr Ayyub's response but could only consider five prescribed matters. His explanations about Canberra's parking difficulties, traffic conditions, and the challenges of delivering to apartment buildings were excluded from consideration altogether.
The deactivation warnings advised Mr Ayyub he could seek support from a person, but failed to specify that this included a union delegate or employee, which the Full Bench found was required under the applicable Code.
The rating threshold itself was found unreasonable as applied. Drivers were assessed against a standard they had not been told about, based partly on ratings accumulated before it was ever communicated to them. A measurement method combining a cumulative running rating from the date of the educational notification and a separate 85 per cent requirement across the last 10 rated trips was never disclosed to drivers. In the period after his final warning, Mr Ayyub's satisfaction rating actually reached 85.7 per cent, yet the running calculation from earlier ratings still pulled his overall score below the threshold.
The Commission also found a separate procedural breach in how long Portier Pacific took to communicate its decision. Although the decision to deactivate Mr Ayyub was made on 3 June 2025, the final notice was not sent until 8 July 2025, a gap of over five weeks. The Full Bench found this inconsistent with the Code's requirement to notify the worker as soon as reasonably practicable, particularly given the speed with which the same automated system had acted at every earlier stage of the process.
The Full Bench found the Code demanded genuine human judgment in these decisions. As the ruling stated: "This language implies an exercise of judgment on the part of the operator involving a weighing of relevant considerations — a judgment which would need to be made by a human actor."
The decision overturned a 15 January 2026 ruling by Deputy President Dean and departed from two earlier Commission decisions that had found the 85 per cent threshold reasonable. Unlike those earlier applicants, who were self-represented, Mr Ayyub was supported by the Transport Workers' Union and represented by counsel, enabling the Full Bench to examine a range of issues of novelty, principle and general importance that had not been raised before. The case was brought under provisions of the Fair Work Act 2009 introduced by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024, which extended protections against unfair deactivation to gig workers.
The decision crystallises several obligations: performance standards and measurement methodologies must be communicated before they are applied; workers' responses to a potential termination must be genuinely considered by a human with real authority to affect the outcome; termination decisions must be communicated as soon as reasonably practicable after they are made; and deactivation warnings must expressly state that workers can seek assistance from a union delegate or employee, not merely from "a person", as the Full Bench confirmed is mandatory under the Digital Labour Platform Deactivation Code.
