1 Fair Work Act 2009 s.365—General protections Application by Mahdi Bahadori (C2026/1441) COMMISSIONER TRAN MELBOURNE, 1 MAY 2026 Application to deal with contraventions involving dismissal – Application made outside of statutory time limit – No exceptional circumstances – Application dismissed [1] This is a decision about whether to allow Mr Mahdi Bahadori further time to make his application under s 365 of the Fair Work Act 2009 (Cth) for the Fair Work Commission to deal with a general protections dispute involving dismissal. Mr Bahadori says that he was dismissed by his former employer on 17 December 2025, which is supported by the termination letter that Mr Bahadori supplied with his application. He made his application on 27 March 2026, which is 100 days after the dismissal took effect and 79 days out of time. [2] To extend time, I must be satisfied that there are exceptional circumstances, having regard to the factors in s 366(2) of the Act. Those factors are: • the reason for the delay; • any action taken by the person to dispute the dismissal; • any prejudice that might be caused to the employer including prejudice caused by the delay; • the merits of the application; and • fairness as between the applicant and other persons in a similar position. [3] The Commission’s application form requires an applicant to address each of the above factors. I provided the applicant with a further opportunity to make submissions (arguments) and provide any other evidence in support of his grounds. As the applicant had raised that he had a medical condition, I specifically requested that he provide detailed medical evidence of his condition and its effect on his capacity to make the application. The applicant took that opportunity. [4] I have considered all the materials provided but am not satisfied that there are exceptional circumstances to allow Mr Bahadori further time to make his application. This is because, while I consider two of the above factors to be neutral (that is, they neither weigh in favour nor against a finding of exceptional circumstances), and two to weigh mildly against a finding of exceptional circumstances, I am not satisfied that Mr Bahadori has provided a [2026] FWC 1586 DECISION [2026] FWC 1586 2 satisfactory reason for the significant delay of 79 days and this weighs heavily against a finding of exceptional circumstances. [5] The neutral factors are s 366(2)(d) – merits of the application and 366(2)(e) – fairness between the applicant and other persons in a similar position. In relation to merits, this is a matter in which the employer has dismissed Mr Bahadori on the grounds that he was unable to perform the inherent requirements of his role. But Mr Bahadori says that the dismissal was because he had applied for workers compensation, which the employer contested. Mr Bahadori can establish the factual basis for an application under s 365 of the Act (that is, the exercise of a workplace right) and has alleged that the reason is in contravention of the general protections’ provisions. It would then be a matter for the employer to rebut the presumption under s 361 of the Act and establish that none of the substantive or operative reasons for the dismissal included Mr Bahadori’s exercise of a workplace right. Mr Bahadori also raises the protection in s 352 of the Act relating to temporary absences or illness. For the sake of efficiency, the Commission is now considering out of time applications ex-parte (that is, without serving the application on or hearing from a respondent) and so the information in relation to this factor is necessarily limited. In relation to fairness between the applicant and other persons in a similar position, I do not have any relevant submissions from the applicant, nor am I aware of any matters with sufficiently similar facts. [6] Two factors weigh mildly against a finding of exceptional circumstances – that the applicant did not take any action to dispute his dismissal (s 366(b)) after it occurred (he did dispute it before) and s 366(c) – prejudice to the employer. The period of the delay is significant, but I do not have any information about what prejudice that might cause to the employer. [7] Mr Bahadori gave 2 interrelated reasons for his delay. One, that he had an ongoing workers’ compensation claim that was still under investigation at the time that he was dismissed. Two, his medical condition of condition of bilateral carpal tunnel syndrome, which he had been experiencing since July 2025. [8] Mr Bahadori says that the uncertain outcome of a medical panel review of his workers’ compensation claim made it difficult for him to assess his legal position, and he did not become aware of the option of a dismissal application until after the medical panel determined that his injury was work-related. He says that he acted promptly once “relevant information” was available. I accept that he acted promptly after he learned of the outcome of the medical panel review. The date of the outcome report was 23 March 2026; he made his application 4 days later. But in effect, this reason is that he was ignorant of the jurisdiction. Although both matters relate to his employment, they are separate matters. Had he remained employed, he would have been engaged in the medical panel review process. Further, Mr Bahadori seems to have simply waited instead of seeking advice or information about his options; information that is readily available from internet searches. [9] I have sympathy for the second reason relating to his medical condition. I accept the medical evidence that his condition affected his physical capacity, but I am not satisfied that it explains the lengthy delay of 79 days. Mr Bahadori provided a letter from his treating doctor that said that his ability to carry out normal day-to-day activities was affected by his [2026] FWC 1586 3 condition, and that his medical condition restricted his ability to engage in “sustained hand use activities.” His treating doctor also said that he reported “persistent and at times severe pain,” which affected his sleep and general wellbeing. His treating doctor identified that this was for the period “November – December 2025 and subsequent months.” I am not satisfied that this adequately explains the delay of 79 days. The application form is reasonably straightforward and simple. Perhaps if the delay was shorter, I would be more persuaded that there was an acceptable reason for it. Conclusion [10] The time limit for applications under s 365 of the Act is strict and short. If missed, an applicant must overcome a high hurdle to be allowed further time to file applications. That high hurdle is exceptional circumstances, which is not defined in the Act. A Full Bench of the Commission in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13] has said that “exceptional circumstances” means out of the ordinary, unusual, special, or uncommon.” Whether the Commission can be satisfied that there are exceptional circumstances is a discretionary decision, requiring a consideration of all the relevant factors: see Dollar v RG Group Holdings Pty Ltd [2025] FWCFB 122 at [61]. I inform applicants of the above, and I provide them with an opportunity to persuade me that there are exceptional circumstances. I ask them to take the opportunity seriously. I have considered the factors singly and together, but am not satisfied that there are exceptional circumstances, so I cannot allow Mr Bahadori further time to have made his application. Order [11] I order that Mr Mahdi Bahadori’s application under s 365 of the Fair Work Act 2009 (Cth) for the Fair Work Commission to deal with a general protections dispute involving dismissal under FWC Matter C2026/1441 made on 27 March 2026 be dismissed. COMMISSIONER Hearing details: Matter determined on the papers. Final written submissions: [2026] FWC 1586 4 2026. 15 April. Printed by authority of the Commonwealth Government Printer <PR799654>