1 Fair Work Act 2009 s.773—Termination of employment Myrjun Hiso v Somerville Retail Services Pty Ltd (C2026/615) DEPUTY PRESIDENT CLANCY MELBOURNE, 29 MAY 2026 Application made under s.365 – delay of 680 days- application for extension of time dismissed. [1] An application under s.365 of the Fair Work Act 2009 (Act) for the Commission “to deal with” a dismissal dispute is commenced upon an applicant completing and filing of a Form F8 – General protections dismissal application (Form F8). Mr Myrjun Hiso has made an application under s.365 (the s.365 Application) in which he alleges that he was dismissed by Somerville Retail Services Pty Ltd (Respondent) in contravention of Part 3-1 of the Act. [2] Section 366(1)(a) requires such applications to be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2). In completing the Form F8, Mr Hiso answered question 1.4, “Is your application within 21 days?”, in the affirmative. This was not accurate because in material he subsequently filed on 10 February 2026, Mr Hiso asserted that his dismissal took effect on 19 February 2024. The Respondent maintains that in resigning from his employment on 19 February 2024, Mr Hiso was not “dismissed” within the meaning of s.386 of the Act. [3] In Coles Supply Chain Pty Ltd v Milford (Milford)1 the Full Federal Court considered whether, in a general protections application involving dismissal, the Commission was always required to determine a jurisdictional objection that there has been no dismissal, when an out of time objection is also made. The Full Court observed as follows: [59] As discussed later in these reasons, there may be cases where the FWC may avoid drawing a conclusion as to whether or not an employment relationship has ended in circumstances that amount to a dismissal, and proceed to determine an application for an extension of time on the assumption that it has so ended. But on an application for an extension of time, ascertainment of the length of the delay between the date that the relationship ended and the expiration of the statutory time limit must be identified. … [2026] FWC 1985 DECISION [2026] FWC 1985 2 [86] In an appropriate case, it may also be permissible for the FWC to determine that the employment came to an end on a particular date without deciding whether or not the applicant was “dismissed” with the meaning of s 386 of the FW Act. In such a case it may be permissible to refuse to grant an extension of time even assuming, for the employee’s benefit, that there was indeed a dismissal. [4] These observations from Milford were considered by a Full Bench of the Commission in Graham Taylor v Department of Justice and Community Safety2 in the context of an unfair dismissal application made under s.394 of the Act. Relevantly, however, I consider that it can be discerned from the observations of the Full Court in Milford that an “appropriate case” in which it will be permissible for the Commission to assume that employment came to an end on a particular date, without deciding whether or not the applicant in question was “dismissed” with the meaning of s.386 of the Act, will be one where the applicant in question has alleged dismissal and the purported employer maintains there has been no termination on its initiative. The Full Court in Milford at [59] also considered it plain that that the length of a delay, which I consider is to be understood as commencing from the expiration of the 21-day time limit,3 must be ascertainable in order for the Commission to determine an application for an extension of time. In this case, there appears to be no dispute as to when Mr Hiso resigned, with both parties agreeing that this occurred on 19 February 2024. Having regard to Milford, I consider it permissible for me to proceed to determine Mr Hiso’s application for an extension of time assuming, for his benefit, that there was a dismissal on 19 February 2024. This approach was recently endorsed by a Full Bench of the Commission in Pathirana v Reshma Services Pty Ltd.4 [5] On the basis that the 21-day period therefore ended at midnight on 11 March 2024, the s.365 Application was lodged 680 days late, on 20 January 2026. As such, for the s.365 Application to now proceed, Mr Hiso requires an extension of time. The Commission may allow a further period only if it is satisfied that there are ‘exceptional circumstances’, taking into account the matters in ss.366(2)(a) to (e). [6] At the outset, it must be noted that the s.365 Application is the fourth application that Mr Hiso has lodged in relation to the alleged dismissal on 19 February 2024. Mr Hiso firstly lodged an unfair dismissal application under s.394 of the Act on 29 September 2024 which was given the matter number U2024/11579 and allocated to Commissioner Yilmaz (the Unfair Dismissal Application). As the Unfair Dismissal Application was filed 202 days outside of the 21-day period, Mr Hiso was required to seek an extension of time for the application to be made under s.394(3) of the Act. Whereas Mr Hiso asserted before the Commissioner that the reason for the (then 202-day) delay included his lack of awareness regarding his rights and his attempts to persuade the Respondent to accept his withdrawal of his resignation, the Commissioner concluded that these reasons failed to credibly explain the (then) delay. The Commissioner also cited material before her that she considered enabled her to infer that Mr Hiso was hoping to alter the reason for the termination of his employment so that he could access Transport Accident Commission (TAC) benefits. The Commissioner published a Decision dated 11 November 20245 determining that an extension of time was not warranted and that the Unfair Dismissal Application should be dismissed. [7] On 20 October 2024, Mr Hiso had filed a second dismissal dispute application, this time under s.773 of the Act. This application was given the matter number C2024/7458 (the [2026] FWC 1985 3 Unlawful Termination Application). On 27 November 2024, I dismissed the Unlawful Termination Application on the basis that it had not been made in accordance with the Act.6 [8] Mr Hiso subsequently lodged an appeal against the decision to dismiss the Unlawful Termination Application. The Full Bench of the Commission constituted to deal with this appeal noted that Mr Hiso’s Form F7 suggested that he was also seeking to appeal the decision made in relation to the Unfair Dismissal Application and determined that it would also consider whether Mr Hiso should be granted permission to appeal the Unfair Dismissal Application decision. The Full Bench therefore dealt with two appeals, noting that they were both lodged outside of the 21-day period for filing that is prescribed by rule 128(2)(a) of the Fair Work Commission Rules 2024. On 23 January 2026, the Full Bench refused to grant further periods for the filing of both of Mr Hiso’s appeals and dismissed both applications for permission to appeal. The Full Bench also outlined that it would in any event have refused Mr Hiso permission to appeal in both appeals.7 [9] With the s.365 Application file having been allocated to me, I caused an email to be sent to the nominated email address of Mr Hiso on 13 April 2026. This email advised that the matter was listed for an Extension of Time Determinative Conference at the Commission at 9.30am on 19 May 2026 and attached a Notice of Listing. A follow-up confirmation email was then sent on 7 May 2026 and this prompted a reply from Mr Hiso. Notwithstanding this correspondence, Mr Hiso did not attend the Determinative Conference. Having initially refrained from commencing the Determinative Conference in case Mr Hiso was running late, I subsequently instructed my Associate to attempt to make made telephone contact with Mr Hiso. There was no answer to the telephone calls made and nor could a voice mail message be left. I was nonetheless satisfied that Mr Hiso had been appropriately notified of the Determinative Conference and I do not accept Mr Hiso’s contentions, outlined in an email he sent later on 19 May 2026, that he was not aware of any scheduled hearing time for this matter and that he had not received any “recent notice” from the Commission about the listing details. The Commission is entitled to, and indeed must, rely on the contact details a party provides and is entitled to assume, in the absence of notification of a ‘bounce back’, that correspondence and listing notices sent to a party’s nominated email address have been received. [10] In this case, I am satisfied Mr Hiso was notified of, and had the opportunity to attend, the Determinative Conference. I would also observe that s.368 of the Act does not make the conduct of a hearing or determinative conference compulsory for an application made under s.365. It instead simply requires the Commission “to deal with” the dispute before it. Accordingly, I will proceed “to deal with” the question of whether an extension of time should be allowed based on the material before the Commission. [11] In the material filed in the s.365 Application, Mr Hiso asserts that his delay in filing was caused by his medical incapacity and severe pain, his reliance on TAC processes, the Respondent’s failure to consult his general practitioner and “WHS failures.” Notwithstanding these disclosures, I note that Mr Hiso has already prosecuted grievances associated with his resignation at the Commission on three previous occasions and, as outlined above in [6], he relied upon different reasons for the delay when he previously sought the extension of time for the making of the Unfair Dismissal Application. In considering the s.366(2)(a) factor, I do not accept that Mr Hiso’s latest assertions provide a credible reason for the 680-day delay because he has clearly demonstrated the capacity to make an application and argue a case on three [2026] FWC 1985 4 previous occasions. In my assessment, the reasons given by Mr Hiso for the delay weigh against a conclusion that there are exceptional circumstances in relation to the s.365 Application. [12] As to the other mandatory considerations: 1) I am prepared to accept Mr Hiso’s contention that in addition to lodging the s.365 Application and his previous Commission applications, he took other action which may be characterised as disputing the alleged dismissal when he attempted to withdraw his resignation, such that the s.366(2)(b) factor weighs marginally in favour of an extension of time. 2) In dealing with the question of prejudice (s.366(2)(c)), I am persuaded that there is prejudice to the Respondent in this case because this is the fourth occasion upon which the Respondent has had to respond to an application made by Mr Hiso in relation to matters that pertain to his resignation on 19 February 2024. I also consider it is by now not unreasonable to assume that there would be at least some prejudice to the Respondent caused by the 680-day delay, given the effluxion of time and the impact this may have on witness recollection. These matters weigh against an extension of time. 3) The s.366(2)(d) merits factor would appear to be a neutral factor. Given Mr Miso’s claim that he has an arguable case is very much disputed by the Respondent, the merits are ultimately dependant on such findings a court may make after hearing the evidence. 4) I do not consider that there are any matters that are relevant to fairness between Mr Hiso and other persons in a like position, such that I consider the s.366(2)(e) factor to be neutral. [13] The Commission can extend the time for making a general protections application only if it is satisfied that there are exceptional circumstances telling in favour of an extension. Taking into account all of the matters in s 366(2), I am not satisfied that there are exceptional circumstances in this case and therefore decline to extend time. Regardless, I would not have exercised the discretionary power granted by s.366(2) because Mr Hiso has largely sought to reagitate matters he has previously put before the Commission without success, in search of a different result. The s.365 Application is dismissed. DEPUTY PRESIDENT Appearances: No appearance by M Hiso. C Broadbent for Somerville Retail Services Pty Ltd. [2026] FWC 1985 5 Hearing details: 2026. Melbourne. May 19. Printed by authority of the Commonwealth Government Printer <PR810535> 1 (2020) 279 FCR 591. 2 [2025] FWCFB 173. 3 Ibid at [66]. 4 2026 FWCFB 64 at [7]. 5 [2024] FWC 3105 6 [2024] FWC 3261. 7 [2026] FWCFB 16.