Uber’s Attempt to circumvent Unfair Deactivation Ruling Fails
A recent Full Bench decision has affirmed that a digital platform operator’s voluntary reinstatement of a worker does not negate a commission’s jurisdiction to address unfair deactivation. The case involved Uber driver Mr. Hotak, who had his platform access deactivated. Following the filing of an request for relief, Uber voluntarily reactivated Mr. Hotak’s account and he resumed driving.
Uber argued this reactivation extinguished the Commission‘s authority to grant a remedy, seeking dismissal of the application. However, the Full Bench rejected this argument, stating that allowing such a tactic woudl undermine the purpose of the relevant legislation and potentially incentivize platforms to reinstate access simply to avoid accountability.
Crucially, Uber conceded it could not demonstrate that Mr. Hotak’s deactivation was justified,either through compliance with the Digital Labor Platform Deactivation Code or othre valid reasons. Consequently, the Commission found the deactivation to be unfair.
the Full Bench ordered Uber to reactivate Mr. Hotak’s platform access, going beyond a simple reinstatement. The order mandates restoring Mr. Hotak to the position he occupied before the deactivation, including deeming him to have continuously worked on the platform from the suspension date, maintaining his original engagement terms, and ensuring the order is enforceable with potential penalties for non-compliance.
Furthermore, the Full Bench indicated it will determine and order compensation for lost earnings, following discussions between the parties regarding the amount.
While the Commission affirmed broad powers regarding reactivation, it clarified that it’s authority does not extend to altering events preceding the deactivation, even if those events influenced the decision to deactivate. Specifically, the Full Bench declined to order the removal of any negative reviews Mr. Hotak may have received on the Uber platform.
Key Implications:
* Filing an application for unfair deactivation relief is not invalidated by a platform’s subsequent voluntary reinstatement of the worker. The focus remains on the fairness of the initial deactivation.
* A prosperous claim for unfair deactivation entitles the worker to comprehensive restoration, returning them to the position they would have held without the deactivation.
Recommendations for Businesses:
Businesses operating digital labour platforms should:
* Identify which members of their non-employee workforce qualify as “employee-like workers” protected by unfair deactivation laws.
* Thoroughly understand the requirements of the Digital Labour platform Deactivation Code.
* Ensure any deactivation is based on a legally valid reason as defined by the relevant Act.
* Implement robust pre-deactivation procedures that fully comply with the Digital Labour Platform Deactivation Code.
