s.394 - Unfair dismissal

• [1] On 27 May 2025, Mr. Asadallah Maghsoodi's employment with Scotch & Soda Barbers Pty. Ltd. (SSB) ceased.

• [2] On 21 October 2025, he made an application claiming he was unfairly dismissed from his employment. Unfair dismissal applications are required to be made within 21 days of the dismissal taking effect. His application was 126 days late.

• [3] The Commission has power to extend the time for making the application if the Commission is satisfied that there are exceptional circumstances under s 394(2)(b).

• [4] On 16 December 2025, I heard Mr. Maghsoodi's extension of time application by way of a determinative conference by Microsoft Teams. Mr. Maghsoodi appeared and represented himself. SSB was represented by Mr. Con Fabiatos of Dandanis & Associates. Ms. Rosaria Cincotta, Director of SSB, was also present and gave evidence. Mr. Maghsoodi was assisted by a Farsi interpreter.

• [5] For the following reasons, I have decided not to grant an extension of time. The application in this matter is therefore dismissed.

• [6] It is not contested the last day Mr. Maghsoodi attended work was 27 May 2025. The circumstances in which he left are contested.

• [7] Mr. Maghsoodi says he informed Ms. Cincotta that he had earlier suffered a workplace injury. He was told by Ms. Cincotta to immediately leave the workplace.[1] He says he packed up his tools because he was told to go home.

• [8] Ms. Cincotta says that Mr. Maghsoodi came to me "at 12.30PM and said words to the effect I am not fit for work and I am quitting today".[2]

• [9] Ms. Cincotta attached what passes for a joint statement from "Oscar, Cristian and Rose" that they "heard and witness (sic) that Mr. Maghsoodi say "I am not fit for work & quit" and then he "pack his tools and left his work shirt and left the shop".[3] Neither Oscar, nor Cristian nor Rose gave evidence in the hearing.

• [10] The joint handwritten, second-hand hearsay "statement" of Rose, Oscar and Cristian is of negligible probative value. It therefore sheds no light on the issue of whether Mr. Maghsoodi resigned that day.

• [11] There is a direct conflict between the evidence of Ms. Cincotta and Mr. Maghsoodi as to their conversation on 27 May. On the basis of my observation of both Mr. Maghsoodi and Ms. Cincotta giving evidence, I prefer Mr. Maghsoodi's evidence of that exchange. I accept he was told to leave work immediately and did not proffer a resignation.

• [12] Mr. Maghsoodi received no further payments from his employer from 27 May 2025. On 3 June 2025, he received $70 into his bank account. The last contact Mr. Maghsoodi had from Ms. Cincotta was a text message about $70 that had come into his account. She responded that it was "the money from last week Tuesday 27 May for (2 hours)".[4]

• [13] After the 3 June 2025 text message, no further communications were received by Mr. Maghsoodi. From 3 July 2025 until 23 September 2025, he attempted to engage with SSB by WhatsApp message, e-mails and SMS and received no reply.[5] Mr. Maghsoodi being asked to leave the premises, the cessation of payment of wages after 27 May and the failure of SSB to answer correspondence is not consistent with the continuation of his employment relationship. It has a repudiatory character and amounts to a dismissal at the initiative of the employer.

• [14] Given he stopped being paid and SSB ceased communicating with him after he received his last pay, I take his dismissal date to be 27 May 2025.

WAS THE APPLICATION MADE WITHIN 21 DAYS AFTER THE DISMISSAL TOOK EFFECT?

• [15] The 21-day period does not include the day on which the dismissal took effect.[6]

• [16] Mr. Maghsoodi's application was filed on 21 October 2025. His dismissal occurred on 27 May 2025. His application should have been filed on or before 17 June 2025. It was filed 126 days late. I therefore need to consider whether to make an order to extend the period to make the application.

• [17] I may allow a further period for an unfair dismissal application if I am satisfied there are exceptional circumstances, taking into account:

(b) when Mr. Maghsoodi first became aware of the dismissal after it had taken effect.

(c) any action taken by Mr. Maghsoodi to dispute the dismissal.

(d) prejudice to SSB (including prejudice caused by the delay).

(f) fairness as between Mr. Maghsoodi and other persons in a similar position.

• [18] Each of these matters must be considered in assessing whether there are exceptional circumstances.[7] Exceptional circumstances have their ordinary English meaning. They must be out of the ordinary course, unusual, special, or uncommon. They need not be unique, unprecedented or rare.

• [19] In his written submissions, Mr. Maghsoodi explains his reasons for the delay.

• [20] His primary reason for the delay is the lack of communication from his employer:

The delay in lodging my unfair dismissal application resulted directly from prolonged uncertainty caused by the Respondent's complete failure to communicate or clarify my employment status. At no stage was I informed, verbally or in writing, that my employment had ended. As a result, I did not become aware that a dismissal had occurred until significantly later.[8]

• [21] In his witness statement, he then proceeds to give details of the communications he had sent to SSB and its solicitor, which received no response. He goes on:

This complete absence of communication created ongoing uncertainty and made it impossible for me to know whether I had been dismissed. The solicitor's failure to provide the promised response further contributed to the confusion.[9]

• [22] In his witness statement, he says "because the employer never informed me of any dismissal, I did not know my employment had ended I only realised this might be the case after contacting the Fair Work Commission".[10]

Alleged workplace injury, concurrent Workcover dispute and mental health issues

• [23] A further reason he gives is managing his work-related injury, his concurrent Workcover dispute, and other health issues.

During the same period, I was managing a significant work related injury, ongoing medical treatment, pain affecting my concentration, a concurrent Workcover dispute, and language limitations that made navigating the legal system substantially more difficult.[11]

• [24] He filed a medical report of his general practitioner Dr. Farzin Shaykhi dated 28 October 2025 which reports (including the typographical and syntax errors) he had:

Significant improvement in the progression from anxiety, depression and overall mental health. Both the psychologist and patient have significant satisfactory with the treatment plan. I believe there is a lot of room to work with the patient to improve current mental health issues. The patient will benefit from continue of the ongoing treatment plan.[12]

• [25] The plan articulated by the GP includes "CBT, skills training, mindfulness, compassion skills, emotional caping and relaxation to improve mood and to manage anxiety".[13]

Confusion between the role of FWO and FWC, language difficulties and ignorance of the law

• [26] Mr. Maghsoodi says another reason for the delay navigating the roles of Fair Work Ombudsman and Fair Work Commission on limited English and legal knowledge:

I contacted the Fair Work Ombudsman, followed all instructions, and later learned that unfair dismissal matters must be submitted to the Fair Work Commission. The confusion was due to my limited English and lack of legal knowledge[14].

• [27] Mr. Maghsoodi also submits his lack of support and financial hardship contributed to the delay because:

• His income stopped.
  • His family depended entirely on my earnings.
  • His wife's medical condition limited her ability to work.
  • He had no family or support network in Australia.

• • He could not obtain legal assistance due to availability and cost.[15]

Consideration of the reasons for the delay as a factor

• [28] I accept the lack of any direct communication that he had been dismissed, and the failure of SSB to engage about the status of his employment and other matters may have led to some delay. However, in circumstances where he had ceased to be paid and the employer stopped communicating with him, it does not require complex legal understanding to conclude his employment was over. Even someone with limited English should, relatively quickly, understand he was not being treated as an ongoing employee. It follows a delay of this length cannot be justified by the failure of SSB to communicate.

Alleged work-related injury, concurrent Workcover dispute and mental health issues

• [29] In his evidence Mr. Maghsoodi refers to a work-related neck injury which led him to make a Workcover claim. He describes the ongoing symptoms as "pain affecting concentration" and "ongoing medical treatment".[16]

• [30] The medical certificate he filed in this matter did not relate to a neck injury but mental health issues and a mental health plan. I agree with Deputy President Easton in Mamo that "without proper and specific medical evidence it is very difficult for the Commission to make informed findings about an applicant's capacity to complete and file their application within the statutory time limit".[17]

• [31] Mr. Maghsoodi has provided no medical evidence on the nature of his neck injury or its symptoms and therefore I cannot be satisfied that his neck injury contributed to the delay.

• [32] Mr. Maghsoodi says the "concurrent Workcover dispute" was a reason for the delay. No supporting evidence is given as to the hours he was spending on the Workcover dispute, or the nature of the tasks he was undertaking to prosecute it. There is insufficient evidence before me to find the Workcover dispute contributed to the delay.

• [33] The GP report does not articulate whether or not "anxiety and depression" that Mr. Maghsoodi is experiencing reaches the level of a diagnosed medical condition. The treatment required for the anxiety and depression stops short of the prescription of drugs and requires "skills training, psycho education, mindfulness, compassion skills" Mr. Maghsoodi has not articulated how the symptoms of the "anxiety and depression" caused a delay in filing the application. This cannot therefore be a valid reason for delay.

• [34] There is insufficient evidence for me to find that either his work-related injury, his concurrent Workcover dispute or his mental health issues contributed to the lengthy delay in this case.

Confusion between the role of FWO and FWC language difficulties and ignorance of the law

• [35] Mr. Maghsoodi says one of the reasons for the delay was his confusion as to the roles of the Fair Work Ombudsman and the Fair Work Commission. He only later learned the unfair dismissal matter must be lodged in the Commission. He says this confusion was a result of his "limited English proficiency and unfamiliarity with Australian workplace law".

• [36] On the issue of a lack of English proficiency, I adopt the observation of Deputy President Sams in Troung v Elawar & Sons Mechanical Repairs:[18] "I would observe that not every dismissed employee is fluent in English.... I do not see how [this factor] produce[s] a situation which was "out of the ordinary, unusual, or special or uncommon." This cannot provide a sufficient reason for a delay.

• [37] On his unfamiliarity with Australian workplace law, it is common for most people to have little understanding of the operation of the Act. Only a small sect of lawyers, employers and unions are familiar with Australian Workplace law. This cannot provide a good reason for delay.

• [38] It is the universal experience of people who have been dismissed that they experience financial difficulties. It is lamentable, but nonetheless common, that some people who are dismissed lack social or family support in Australia. This also is not a sufficient reason for the delay.

• [39] The reasons for delay given by Mr. Maghsoodi cannot either individually or collectively provide a sufficient reason for the delay. Therefore, this factor counts against a finding of exceptional circumstances.

WHEN DID MR. MAGHSOODI FIRST BECOME AWARE OF THE DISMISSAL AFTER IT HAD TAKEN EFFECT?

• [40] Mr. Maghsoodi argues that he "did not become aware that a dismissal had occurred at the time it took effect because the SSB did not provide a written or verbal notice indicating the end of my employment".

• [41] Mr. Maghsoodi should have realised when he ceased to be paid and the employer stopped communicating with him that his employment was at an end.

• [42] It would be against the scheme of the Act and the significance of the time limit to file an unfair dismissal application if an employee could delay filing his application for months on the basis that he was engaged in a one-way communication with his employer who was not responding. The period over which Mr. Maghsoodi claims to have been unaware he was dismissed defies reason. He had been given his last pay on 27 May and the employer stopped communicating with him on 3 June. This factor is therefore neutral to a finding of exceptional circumstances.

WHAT ACTION WAS TAKEN BY MR. MAGHSOODI TO DISPUTE THE DISMISSAL?

• [43] Mr. Maghsoodi submits the various communication he had with SSB between July and September 2025, following the advice he received from the Fair Work Ombudsman, amounted to a dispute with SSB over the dismissal. He says, "I actively took steps to dispute the dismissal by contacting the employer, following government instructions, and seeking advice."

• [44] An examination of the July to September correspondence reveals it concerns:
  • demands and requests relating to payments and disputes over working hours.
  • demands for pay slips, tax, superannuation and other employment records; and
  • confirmation of his employment status as an employee.

• [45] This correspondence culminated in his e-mail dated 17 August which made various demands in relation to "work hours and wages", "overtime, public holidays and sick leave", "wages based on qualifications" "superannuation", "sham contracting". Lastly it made a demand that that SSB "pay outstanding entitlements and ensure legal compliance in 14 days.

• [46] A demand for a remedy for underpayments, for confirmation of employment status or employment related documents is not taking action to dispute the dismissal. I find that none of the correspondence amounted to action to dispute the dismissal. His engagement with the FWO is not relevant to this factor because it only concerns action to dispute the dismissal with the employer. This factor counts against a finding of exceptional circumstances.

WHAT IS THE PREJUDICE TO SSB (INCLUDING PREJUDICE CAUSED BY THE DELAY)?

• [47] Mr. Maghsoodi claims SSB would suffer no prejudice as a result of the delay in filing this application. SSB claims the lengthy nature of this delay would mean it would suffer a forensic prejudice because of the fading memories of witnesses.

• [48] In a recent appeal decision from a decision of Commissioner Ryan in Shiralee Dollar v. RC Group Holding[19] the Full Bench did not disturb the observation of Commissioner Ryan that "it was well settled that a lengthy delay gives rise to a presumption of prejudice." The Full Bench observed:

That observation was reasonable in the context of a case where delay in the Appellant filing her unfair dismissal application was 101 days. The observation is consistent with the Full Bench in [GHD Pty Ltd v. Kevin Allan Black] where the relevant delay was 168 days.

• [49] This application is 126 days late. The Full Bench decision in Dollar stands for the proposition that it is "reasonable" to presume prejudice to the employer after 100 days. It follows this delay is presumed to cause prejudice for SSB. SSB also claims to have suffered forensic prejudice by reason of the delay. This factor therefore counts against an extension of time being granted.

• [50] In his application Mr. Maghsoodi gives his start date at SSB as 15 July 2024 and his termination date as 27 May 2025, which is about ten months. He estimates the size of the business of SSB is "1-14" employees. I asked Ms. Cincotta, on a head count how many employees SSB employs and she said "four".

• [51] For a person to qualify as protected from unfair dismissal they must have completed "a period of employment with the employer of at least the minimum employment period".[20] The minimum employment period (MEP) for a small business employer (a business with less than fifteen employees) is "one year ending" at the period "immediately before the dismissal".[21]

• [52] On his own admission, Mr. Maghsoodi has not worked the minimum employment period of one year required for a small business of the size of SSB. It follows Mr. Maghsoodi is not a person protected from unfair dismissal. This application has no merit as it does not meet the necessary jurisdictional fact of the MEP. This is an important and weighty factor against an extension of time.

FAIRNESS AS BETWEEN MR. MAGHSOODI AND OTHER PERSONS IN A SIMILAR POSITION

• [53] SSB made no submissions on this factor. Mr. Maghsoodi made submissions there are a number of circumstances that place him at a substantial disadvantage compared to an ordinary employee.
  • Language barriers significantly limited his ability to navigate legal processes.
  • He has no social or family support in Australia.
  • His work-related injury reduced my capacity during the relevant period.
  • SSB provided no transparency and created confusion.
  • He had limited access to legal assistance due to availability constraints.

• [54] The factor of "fairness as between the person and other persons in a similar position" was considered by Deputy President Gostencnik in Morphett v. Pearcedale Egg Farm:[22]

"Cases of this kind will generally turn of their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may be related to matters currently before the Commission or matters which have been previously decided by the Commission."

• [55] Mr. Maghsoodi seeks to draw a comparison between the disadvantages he suffers compared to the "ordinary worker". This submission draws attention to the dissimilarities between himself and the ordinary worker and not the similarities. The decision of the Deputy President in Pearcedale infers what is required is a similar fact comparison between the applicant and the other persons in a similar, not dissimilar, position. Mr. Maghsoodi's submissions are not compelling. This factor is therefore neutral to a consideration of an extension of time.

IS THE COMMISSION SATISFIED THAT THERE ARE EXCEPTIONAL CIRCUMSTANCES, TAKING INTO ACCOUNT THE MATTERS ABOVE?

Factors against an extension of time being granted

• [56] Reasons for Delay: None of these reasons relied on by Mr. Maghsoodi provide a sufficient reason for the delay either individually or collectively. This factor counts against an extension of time under s 394(3)(a).

• [57] Action to dispute the dismissal: None of the action Mr. Maghsoodi took after his dismissal on 27 May can be described as action to dispute his dismissal. This factor counts against an extension of time being granted under s 394(3)(c).

• [58] Prejudice against the employer: The application was 126 days late. This is over 100 days late. The Full Bench in Shiralee Dollar supports the proposition that a delay of this length gives rise to a presumption of prejudice against an employer. This factor counts against an extension of time being granted under s 394(3)(d).
• [59] Merits: Mr. Maghsoodi conceded that he did not meet the minimum employment period required for a small business. He is therefore not entitled to protection against unfair dismissal. This is an important, even fatal, factor against an extension of time being granted under s 394(3)(e).

• [60] The two factors "When the person became aware of the dismissal" under s 394(3)(b) and the "fairness between the person and other persons in a similar position" under s 394(3)(f) are neutral in an assessment of exceptional circumstances.

• [61] I conclude the reasons for the delay under s 394(3)(a), action taken to dispute the dismissal under s 394(3)(c), prejudice to the employer under s 394(3)(d) and, most importantly, the lack of merit in the application under s 394(3)(e) all count against an extension of time granted. The two factors in s 394(3)(b), and (f) are neutral.

• [62] Four factors count against an extension of time being granted including the important factor of the lack of merit in the application. The rest are neutral considerations. Therefore, on balance, considering all the factors under s 394, I am not satisfied there are exceptional circumstances to justify an extension of time. This application is therefore dismissed.[23]

[1] Digital Commission Book (DCB) at p 5: Witness Statement of Maghsoodi at paragraph 4.

[2] DCB at 82: Witness Statement of Cincotta.

[5] DCB at 5: Witness Statement of Maghsoodi.

[6] Singh v BSG Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[17] Mamo v. ICLED Australia Pty Ltd [2021] FWC 3903, [37].

[18] [2021] FWA 9709, [14].

[19] [2025] FWCFB 122, [85].

[20] Section 382(a).

[21] Section 383(b).

[22] [2015] FWC 8885, [29].

[23] PR795141.

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