Australia’s unfair dismissal-style laws for gig economy workers trigger flood of appeals from Uber drivers
Uber drivers accused of sexual harassment and threatening behaviour are being allowed back on the roads through unfair termination cases because the ride-sharing giant is not asking alleged victims to testify about their experiences.
New laws introduced by the Albanese government a year ago allowing gig economy workers to claim unfair dismissal-style protections have triggered a flood of appeals from Uber drivers claiming bans on them were unwarranted, and that the company’s investigation processes were insufficient.
In multiple cases seen by this masthead, the Fair Work Commission has ordered that a driver’s access to Uber must be reinstated largely because the company did not offer first-hand testimony from the passenger who complained.
The $210 billion company argues that letting the predominantly female passengers testify would risk re-traumatising them, but the company’s practices have prompted concerns from anti-sexual harassment and women’s rights advocates.
They say the ride-share giant must do more to investigate complaints so that evidence can be properly tested during appeals, ensuring potentially unsafe drivers don’t get back behind the wheel and threaten passenger safety. And the government is now looking at how its unfair dismissal code is working with accusations of serious misconduct.
Before the avenue of appeal was introduced, drivers who had their accounts deactivated by Uber found themselves suddenly out of work – sometimes after just one complaint alleging behaviour that they denied – with no avenue for recourse once the company had made its decision.
The worker protections brought in by Labor granted gig economy workers the right to appeal their deactivation from a platform if they believed it was unfair or did not follow due process, and to seek a commission-ordered resolution similar to conventional unfair dismissal rules.
Proponents say the reforms recalibrated the power dynamic in the gig economy away from large companies and towards the contractors they assign jobs to, after years of frustrations among workers who claimed they had never been able to talk to a real person or been granted the opportunity to air their side of the story.
“It’s not unreasonable to expect a review of a decision to essentially sack or suspend a gig worker to be made by a real person, not a robot,” then-employment minister Murray Watt said ahead of the reforms.
Since the laws came into effect last February, dozens of cases appealing Uber deactivations that have been referred to the commission have followed a similar pattern: a customer lodges a brief complaint about a driver, alleging inappropriate behaviour through an in-app chat, Uber then notifies the driver of the claim, the driver denies the claim, and then Uber ultimately deactivates their account, effectively barring them from working.
Some of the drivers then appeal to the commission. Drivers have at various points claimed that racism or discrimination, as well as grumpy or drunk passengers seeking refunds from Uber, are behind false complaints.
Many cases are thrown out because drivers don’t meet the eligibility threshold – for example, they did less than six months’ regular work for Uber, or they lodged their appeal after the 21-day limit had passed.
But drivers that have met the eligibility threshold for their appeals to be considered by the commission have met little resistance from Uber.
In dozens of cases, Uber has reinstated drivers before their cases get to the commission. Michael Kaine, national secretary of the Transport Workers’ Union, said Uber had restored access to 53 workers when his organisation got in contact on their behalf. “They don’t reach a hearing because we call Uber and they just reactivate it.”
When Uber does take cases to the commission, they have often been unsuccessful.
In one case that ended up before the commission in October, a driver was deactivated after a rider complained that he was masturbating, though she claimed she did not see him doing this from the back seat but inferred it from his behaviour. It was the fourth complaint lodged against the driver in his years on Uber; other allegations included sexualised comments and dangerous driving.
When the matter was heard, the driver denied the allegation. “I do touch my hair and beard, my weight is 114kg, due to big tummy I do adjust my seatbelt most of time,” the driver told Uber. “How the hell I know customer is thinking who is sitting behind me.”
Uber “brought no direct evidence from the rider”, Fair Work deputy president Ian Masson’s decision noted, which made the commission’s finding all but inevitable. The deputy president found in the driver’s favour, ordering reinstatement and that $6073 in lost earnings be paid.
Another appeal, heard in January, was lodged by a food delivery driver who Uber banned after two customer complaints. One woman claimed he had offered her $100 to kiss him while withholding her meal outside. The other, occurring the following year, claimed that during a middle-of-the-night delivery, he asked if she was alone, had family nearby and what her Snapchat was.
The driver denied the allegations at the hearing.
Commissioner Damian Sloan found that Uber had “failed to provide any information to enable (the driver) to understand and properly respond to the allegations against him”. An allegation “was never squarely put to him”.
The commission ordered Uber, which had brought a written account from the female customer to the hearing, to reinstate the driver and pay him lost wages.
Uber even lost the very first case under the new rules. It was heard by the commission in September, from an Adelaide driver who was banned after customers complained that he had threatened them with a baseball bat.
The driver, who had achieved a positive rating of 4.99 out of 5 from more than 6000 trips, denied this. He said he had demanded his passengers stop using drugs and leave his vehicle. He claimed they assaulted him as they exited, and the driver immediately reported the incident to police.
Six weeks later, and only after he lodged the appeal, did Uber reactivate his account. He continued to seek remedies through the FWC, which heard the matter and ordered Uber repay lost wages.
“(The driver’s denial) was not challenged in cross-examination, and there is no reason to doubt its reliability,” the full bench decision said.
Uber relied on the initial written complaints from each customer. None provided further evidence for use at the tribunal or appeared at the hearing.
This masthead has decided not to name these drivers, nor does it suggest the allegations against them are true. Rather, these cases are detailed to draw attention to the broader issue of how misconduct allegations are examined under the new laws and Uber’s legal approach. Several further appeals are now continuing through the commission.
An Uber spokesman said its “robust case review processes are human-led by a specialist” team, including “outreaching to all parties”. The company cannot compel alleged victims to testify at the commission.
The spokesman said the company, which has not gathered further evidence from complainants in the matters reported, said that since the laws came into effect, it had become concerned about the “evidentiary standards regarding serious misconduct and safety cases” in some of the Fair Work Commission’s decisions.
“We are especially worried by statements made by members of the commission that written or verbal complaints by victims hold ‘no weight’ and that Uber is required to call victim-survivors as witnesses in order for a deactivation to be upheld,” the spokesperson said.
“This runs counter to expert guidance, including by our long-standing partners WESNET, on survivor-centric responses to reports of sexual assault. We will continue to rigorously defend our commitment to a victim-first approach, prioritising safety and protecting the dignity, privacy and wellbeing of those who come forward,” Uber’s spokesperson said.
Transport union boss Kaine said the legal change to give more protections to drivers has been broadly positive. In an interview, he acknowledged that “genuine driver misconduct is of course out there”, but noted that such a problem plagues many sectors.
Only a small minority of drivers engage in serious misconduct, Kaine said, while deactivations stemming from false complaints continue to be a large problem. But, having represented several drivers, Kaine said there were stark flaws in Uber’s approach.
“They know the systems they put in place are totally inconsistent with providing the package of evidence they need to satisfy a tribunal,” he said.
Tara Hunter, director of clinical and client services at sexual violence prevention advocate Full Stop Australia, said that fears of sexual harassment, assault and violence were common among women using ride-share apps.
Hunter noted that reporting rates for sexual assault are below actual occurrences because “people often don’t feel safe to come forward”, but said she wanted to see Uber and other ride-share companies have strong complaints processes.
She said this was especially true where drivers banned for serious allegations are being reinstated due to a lack of evidence.
”Unless Uber sets up systems that are proactive and trauma-informed to meaningfully gather complaints and do something with those complaints, it will be hard to gather evidence for a fair hearing,” Hunter said.
Observers said Uber’s decision not to ask victims to provide live testimony at unfair terminations hearings to avoid re-traumatising them also fits in with its broader legal strategy.
The company has long argued in a range of legal contexts, from wage deals to working conditions, driver misbehaviour to refusals to accept assistance pets. that its drivers are contractors, not employees. It has mostly succeeded.
In general, contractors get much more flexibility than employees, such as choosing when to work and offering their services to multiple companies, but they receive very few legal protections, making them cheaper to use.
Uber also maintains that it is not a transport services company, but rather a technology company that provides users with a smartphone application that matches riders with independent contractor drivers and facilitates payments.
“This is a company that never wanted to play the game of regulation, that wanted to bend the rules to suit it,” says Dr Michael Rawling, an associate professor of law at the University of Technology Sydney who has authored a book on regulating gig economy work.
Rawling says that “it looks as though Uber is completely unfamiliar with what’s required of them under the deactivation code”. “They’re not doing their due diligence on complaints, it could be because they don’t want to be subject to this regulation or that they also don’t want to generate the internal processes required to do it properly.”
Uber employed 507 staff in Australia at the end of 2024, its most recent documents lodged with the Australian Securities and Investments Commission show, a number dwarfed by the roughly 150,000 active riders and drivers on its apps.
Rawling said: “They’re trying to minimise back office workforce, so it can be an attractive thing for Uber if the commission does this work for them.”
Alex Veen, professor of employment relations at the University of Sydney’s business school, said the fact that Uber’s behaviour at the FWC was so consistent suggested the company had a deliberate strategy that could be based in part on weighing up the cost of fighting cases against losing them.
While traditional unfair dismissal appeals can lead to compensation payments, the deactivation appeals for gig economy workers only allow for lost wages.
“It could be a deliberate strategy, a case that it’s not worthwhile defending the matter,” Veen said, noting an order in one case for $6000 in lost pay pales in comparison with a salary for just one full-time employee to bolster its complaint investigation team.
However, Veen cautioned that a company would be unwise to make such decisions solely on cost. “There is significant reputational risk for an organisation if they don’t deal with such complaints properly,” Veen said.
In response to questions sent to Employment Minister Amanda Rishworth, a spokesperson for the government said it was “carefully considering these matters, including how the deactivation code enables platforms to address serious accusations of this nature”.
“Everyone should be safe while catching an Uber or utilising Uber’s services,” they said.
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Elias Visontay is a National Consumer Affairs Reporter at The Sydney Morning Herald and The Age.Connect via email.
