1 Fair Work Act 2009 s.365—General protections Tural Hajizada v Bila Counselling & Support Services Pty Ltd (C2026/4132) COMMISSIONER SCHNEIDER PERTH, 12 JUNE 2026 Application to deal with contraventions involving dismissal [1] Mr Tural Hajizada (the Applicant) made an application to the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant has been dismissed from their employment with Bila Counselling & Support Services Pty Ltd (the Respondent) in contravention of Part 3-1 of the FW Act. [2] The information provided in the application indicates that the application may have been made out of time. [3] Before dealing with the dispute, I must be satisfied that the application was not made out of time. Background [4] The Applicant was employed by the Respondent as a Disability Support Worker in September 2024. The Applicant was initially engaged as a casual employee and later converted to permanent part-time employment in November 2024. [5] The Applicant confirmed that he was last paid by the Respondent, on 20 November 2025, for work completed between 1 and 14 of November 2025. The Applicant confirmed that he has not been paid for work completed between 15 November and 12 December 2025. [6] The Applicant provided several public news media articles confirming that the Respondent was in liquidation and was subject to a dispute between the directors of the Respondent. [7] The Applicant also provided information from the Australian Securities & Investments Commission (ASIC) confirming that, on 11 May 2026, the Respondent filed a notice to wind up the company. [2026] FWC 2188 DECISION [2026] FWC 2188 2 When must an application for the Commission to deal with a dismissal dispute be made? [8] Section 366(1) of the Act provides that such an application must be made: (a) within 21 days after the dismissal took effect; or (b) within such further period as the Commission allows. [9] It is a matter of record that the application was made on 2 April 2026. When did the dismissal take effect? [10] It is not in dispute, and I so find, that the dismissal took effect on 30 December 2025. The Applicant resigned from his employment on 16 December 2025 an provided the Respondent with a two week notice period. The reason for the Applicant’s resignation is that the Respondent had failed to pay the Applicant for work completed. It not controversial to state that the Respondent’s failure to pay the Applicant was for completed as directed, is a course of conduct that left the Applicant with no alternative but to resign. Was the application made within 21 days after the dismissal took effect? [11] As I found above, the dismissal took effect on 30 December 2025. The final day of the 21-day period was therefore 20 January 2026 and ended at midnight on that day. The application was made on 2 April 2026. The application was made 72 days late. [12] The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made. Was the application made within such further period as the Commission allows? [13] Under section 366(2) of the Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and (b) any action taken by the Applicant to dispute the dismissal; and (c) prejudice to the employer (including prejudice caused by the delay); and (d) the merits of the application; and (e) fairness as between the Applicant and other persons in a similar position. [14] Each of the above matters must be considered in assessing whether there are exceptional circumstances.1 [15] I set out my consideration of each matter below. [2026] FWC 2188 3 Reason for the delay [16] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 20 January 2026. [17] The delay is the period commencing immediately after that time until 2 April 2026, although circumstances arising prior to that delay may be relevant to the reason for the delay.2 [18] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.3 [19] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.4 [20] In summary, the Applicant submits the following as contributing to the delay: • The Applicant was seeking to engage with the Fair Work Ombudsman in relation to his outstanding wages and entitlements from the Respondent. • The Applicant ended up lodging an application with the Western Australia Industrial Relations Magistrates Court in relation to his unpaid wages and entitlements. The WAIRC handed down a judgement in that matter on 13 May 2026. • The situation surrounding the end of the Applicant’s employment has exacerbated his pre-existing mental health condition. • The Applicant had relied on personal guarantees from a director/s of the Respondent that his outstanding entitlements would be paid. • The Applicant’s work email access being cut off by the Respondent effective 6 January 2026. • The impact that the Respondent’s conduct has had on the Applicant and his wife and his current visa status in Australia. • The Applicant was self-represented and unaware of the 21-day filing period with the Commission. [21] Having regard to the above, I find that the reasons for the delay are, in part, understandable as contributing to a delay. [22] The reasons regarding the Respondent’s conduct in particular are compelling in the circumstances. Not all of the reasons for delay are especially compelling, however. What action was taken by the Applicant to dispute the dismissal? [23] The Applicant alleges that he took action to dispute the dismissal. [2026] FWC 2188 4 [24] The Applicant submitted that he had attempted to resolve the issue directly with the Respondent. The Applicant provided copies of emails sent to the Respondent in December 2025 and January 2026 regarding his unpaid wages and entitlements. [25] I find that the Applicant did not seek to dispute his dismissal with the Respondent prior to making this application. The Applicant appears to have been seeking confirmation as to the payment of his outstanding wages and entitlements. There is a difference between seeking to challenge or dispute someone’s dismissal, such as seeking an employer make use of an internal review mechanism or similarly expressing disagreement with the dismissal itself, and making an inquiry in relation to the status of unpaid wages or entitlements. It is clear the Applicant has made steps in disputing the financial arrangements surrounding his dismissal. What is the prejudice to the employer (including prejudice caused by the delay)? [26] The Respondent made no submissions regarding this. [27] In the circumstances I find that there would be no prejudice to the Respondent if an extension of time were to be granted. What are the merits of the application? [28] The competing contentions of the parties in relation to the merits of the application are set out in the filed materials. [29] Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”.5 [30] It is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence. [31] In the circumstances, I find that it is not possible to make an assessment of the merits of the application. Fairness as between the Applicant and other persons in a similar position [32] The Applicant’s submissions in respect of this matter misapprehend the intention of this provision. The provision is to draw the Commission’s attention to persons within the applicant’s knowledge who are in a similar position to themselves and have had a finding issued by the Commission. To illustrate, if the Applicant had identified another person in very similar circumstances to his own who had been granted an extension, this would assist his case. [33] In all the circumstances, I do not consider that an issue of fairness as between the Applicant and other persons in a similar position arises. Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above? [2026] FWC 2188 5 [34] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above. [35] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.6 [36] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.7 [37] I understand that the Applicant will be displeased with this decision. However, the Applicant should not take this decision in any way as an endorsement of the conduct of the Respondent throughout these proceedings. [38] I truly sympathize with the Applicant and the circumstances he has found himself and his family in due to the conduct of the Respondent. [39] As the Commission has found on a consistent basis, a lack of awareness or misunderstanding of the 21-day filing period to lodge an unfair dismissal application are not an exceptional circumstance warranting an extension of time. [40] The Commission notes that the termination of employment is a stressful life even. However, the assertion that a termination caused distress in itself is not supportive of a finding of exceptional circumstances warranting an extension of time. [41] Whilst I am sympathetic to the Applicant and the impact the termination has had on his personal circumstances, the Applicant has not provided any evidence that suggests he was incapacitated or incapable of filing his application with the Commission within the required time period due to the reasons advanced or his circumstances. [42] There is no suggestion or evidence that the Applicant was notably hindered or prevented in some compelling way of lodging his application with the Commission. Rather, the Applicant was able to engage directly with the Respondent as well as the Fair Work Ombudsman in relation to his unpaid wages and entitlements. [43] Having regard to all of the matters listed at s.366(2) of the Act, I am not satisfied that there are exceptional circumstances. Conclusion [44] Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The Applicant’s application for the Commission to deal with a dismissal dispute is therefore dismissed. [2026] FWC 2188 6 [45] In the event that I have erred and there were exceptional circumstances, I would not have elected to use my discretion and grant the Applicant additional time for the filing of his application. [46] This is not because I believe that the application is without merit or that the Applicant has not be wronged by his former employer. But rather, from a practical standpoint, the Respondent has commenced proceedings to wind up the company with ASIC. Given the duration of any proceedings in a court of higher jurisdiction, I cannot foresee a situation whereby the Applicant would receiving any meaningful outcome to justify the grant of an extension in these circumstances. I would be satisfied that doing so would simply give the Applicant false hope and result in further expenditure of resources and effort on the Applicant and Commission’s behalf to little utility or meaningful outcome. I do not consider this to be an appropriate use of the Commission’s powers. [47] The application is dismissed, an Order to this effect is issued concurrently.8 COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR810971> 1 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]. 2 Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP). 3 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]. 4 Ibid, [40]. 5 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36]. 6 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13]. 7 Ibid. 8 [PR810972].