Allsenn Magaisa [2026] FWC 1024

1 Fair Work Act 2009 s.365 - General protections Allsenn Magaisa (C2026/2253) COMMISSIONER CLARKE MELBOURNE, 20 APRIL 2026 Application to deal with contraventions involving dismissal– out of time – no exceptional circumstances – application dismissed [1] Mr Allsenn Magaisa (the Applicant) has made an application under s.365 of the Fair Work Act 2009 (Cth) (the Act) in which he alleges that he was dismissed in contravention of Part 3-1 of the Act. [2] The material filed by the Applicant states that his dismissal took effect on 6 January 2026. The application was lodged on 19 February 2026, outside of the 21-day statutory timeframe prescribed under s.366(1)(a) of the Act. As the Application was filed out of time, an extension of time is required in order for the Application to proceed. This decision deals with the issue of whether such an extension will be provided. Section 366(2) of the Act provides that the Commission may allow a further period for an Application to be made if it is satisfied that there are exceptional circumstances, taking into account the following: (a) the reason for the delay; and (b) any action taken by the person 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 person and other persons in a similar position. [3] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters)1 a Full Bench of this Commission considered the provisions in s.366(2) of the Act, and said: “[14] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant for an extension. A decision whether to extend time under s.366(2) involves the exercise of a discretion.” Furthermore, the Full Bench in that case described the task of discerning exceptional circumstances in a manner that was not consistent with a mere “tick a box” approach to the enumerated considerations, but rather involved an evaluation taking into account matters of weight and degree.2 [2026] FWC 1024 DECISION -- 1 of 5 -- [2026] FWC 1024 2 [4] The meaning of ‘exceptional circumstances’ in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty)3 as follows: “[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” [5] I have determined the extension of time matter on the papers based on the F8 application and accompanying documents submitted by the Applicant. The application has not been served on the Respondent. Reason for delay [6] Where paragraph (a) of subsection 366(2) requires the reason for “the delay” to be taken into account, the relevant delay is to be taken to be the period between the expiry of the time limit (in this case 27 January 2026) and the filing of the application (in this case 19 February 2026), and does not include the period from the date the dismissal took effect to the end of the 21 day period. Nonetheless, events and circumstances preceding “the delay” may be considered for the purposes of determining the reason for “the delay” and ultimately whether that reason supports a finding that there are exceptional circumstances.4 An acceptable explanation of the entirety of the delay is not required to make a finding of exceptional circumstances, however it is relevant to have regard to whether the applicant has provided an explanation for the entirety or any part of the delay.5 [7] The extension of time is sought by the Applicant in respect of the third application he has brought in respect of the same employment. The Applicant relies on the circumstances associated with the making of multiple applications as a reason for delay. [8] The Applicant had initially filed an Unfair Dismissal application on 27 January 2026. The Applicant states that after realising that he did not have the minimum period of employment necessary to file for an unfair dismissal claim, he sought to file for a General Protections application and discontinue his first application. Due to what the Applicant calls ‘administrative overlap’, his second application was made before he had discontinued the first. [9] The Applicant was informed by the Commission on 10 February 2026 that he cannot submit more than one application, and if he wished to continue with a General Protections application, he may need to discontinue both applications and file a second application, noting -- 2 of 5 -- [2026] FWC 1024 3 he may be required to request an extension of time. The Applicant acted in accordance with that guidance: On 13 February 2026 he discontinued his first General Protections application and on 19 February 2026, he filed the current General Protections application. [10] The Applicant attributes the filing of multiple applications, and the consequent delay, to ignorance of the law, the lack of financial means to obtain legal advice, and administrative overlap. He also identifies that the financial distress caused by the loss of employment led to some unspecified domestic instability. The Applicant submits that he made a bona fide attempt to commence a compliant application on time. I accept that to be the case. Action taken by the person to dispute the dismissal [11] Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.6 [12] As noted above, the Applicant has initiated multiple applications. However, because the Commission had identified defects in each, none of them have yet been served by the Commission on the Applicant’s former employer. [13] The Applicant says that he provided a “formal written complaint” to his employer challenging his dismissal and other matters that he was aggrieved by that arose during the employment. I accept on the basis of this that the employer was on notice that the Applicant actively challenged his dismissal. Prejudice to the employer (including prejudice caused by the delay) [14] The delay in this case is not significant enough to warrant a presumption of prejudice, and the Applicant submits there is no prejudice. [15] Self-evidently, the granting of an extension of time disadvantages the Respondent in the sense that it neutralises the strategic advantage that the mere lateness of the filing arms the Respondent with, but that can hardly be said to be exceptional. A material prejudice is most likely to be one that would not have arisen had the application been brought within time.7 In the absence of any more detailed material I am prepared to treat this matter as neutral in my considerations. Merits of the application [16] In determining this extension of time application, the parties have not been required to provide detailed evidence on the merits of the substantive matter. This would not have been an appropriate course. Rather, the instant task insofar as it concerns the merit of the matter is to determine whether the Applicant can establish the matter is not without merit.8 [17] The Applicant asserts that the Respondent contravened the general protections provisions of the Act on the basis that he raised an inquiry about alleged underpayments or non- payments of wages. The Applicant further states that his race was also a substantial factor in -- 3 of 5 -- [2026] FWC 1024 4 the Respondent’s decision to terminate his employment based on the assertion that he was subject to heightened scrutiny compared to other drivers. [18] Taking the Applicant’s case at its highest, I am satisfied that it is not without merit. I make no adverse finding toward either party on the merits and treat the matter as neutral in my considerations. Fairness as between the person and other persons in a like position [19] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. However, cases of this kind will generally turn on their own facts. [20] The Applicant says that the extension of time should be provided to ensure “that meritorious General Protection claims are not barred by technical errors made under duress” and that to refuse the extension of time would signal that “procedural complexity can shield employers from scrutiny regarding fundamental workplace rights”. [21] The Applicant has perhaps not understood that the fact of applications being delayed because of previous matters falling foul of the prohibition on multiple applications in section 725 of the Act, and /or because of the minimum employment period, often result in the ultimate application being out of time and no extension of time being awarded. Consideration and conclusion [22] I am not satisfied there are any exceptional circumstances having had regard to the above matters individually, collectively and cumulatively. The predicament that the Applicant found himself in is primarily the unfortunate consequence of lack of understanding of the limits and formal thresholds applicable to the making of Applications under section 394 and 365 of the Act. This is sadly not exceptional. [23] To the extent that there was a level of financial and domestic distress occasioned by the dismissal, there was nothing identified that rose beyond the stress, shock and similar conditions that typify the experience of dismissal from employment to something that might have suggested an actual incapacity to act more promptly.9 Moreover, the Applicant self-evidently was able to file application in the Commissioner earlier than he did, and did so. [24] Whilst I acknowledge the Respondent was put on notice of the Applicant’s disputing of the dismissal, this fact would be most relevant to the discretion to extend time in the event that exceptional circumstances were found to exist. Putting the former employer on notice does not add much to the initial assessment of exceptional circumstances. Nor do the remaining matters as discussed at paragraphs [14] to [21] above. [25] In the absence of a finding of exceptional circumstances, the discretion to extend time is not enlivened. If follows that the application to extend time must be dismissed, as must be the substantive application. [26] The matter is dismissed accordingly. -- 4 of 5 -- [2026] FWC 1024 5 COMMISSIONER Determined on the papers Printed by authority of the Commonwealth Government Printer <PR798036> 1 [2018] FWCFB 901 2 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters) [2018] FWCFB 901 at [38]-[39]. 3 [2011] FWAFB 975. 4 Kurtev v. KCB Australia & Anor [2025] FWCFB 13 at [24], Ghishing v. Nurse Aid Australia [2023] FWC 1016 at [17]. 5 Ghishing v. Nurse Aid Australia [2023] FWC 1016 at [18]. 6 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298. 7 Clarke v Service to Youth Council Inc [2013] FCA 1018 at [31]. 8 Withers v. Contare [2022] FWC 967 at [33]-[37]. 9 See Bianca Mamo v. ICLED Australia [2021] FWC 3903. -- 5 of 5 --