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[2026] FWC 1197
General information, not legal advice.
Fair Work Commission
2026-04-08
Original judgment source is linked above.
s.365 - General protections
General protections - extension of time - whether exceptional circumstances - no exceptional circumstances - application dismissed
[1] Michael Nakulski (the applicant) has applied to the Fair Work Commission (the Commission) to deal with a general protections dismissal dispute under s.365 of the Fair Work Act 2009 (Cth) (the Act). The respondents to the application are his former employer (the employer) and two of its employees.
[2] Section 366(1) of the Act provides that a general protections dismissal application must be made within 21 days after the dismissal took effect or such further period as the Commission allows under s 366(2).
[3] The applicant's employment came to an end on 5 January 2026. The 21-day period for the applicant to make a general protections application in s 366(1)(a), would ordinarily have expired on 26 January 2026. However, Monday 26 January 2026 was the Australia Day public holiday and by operation of s 36(2) of the Acts Interpretation Act 1901 (Cth), the 21-day period expired on Tuesday, 27 January 2026.
[4] The applicant made his general protections application to the Commission on 10 February 2026, which is 14 days outside the 21-day period.
[5] Therefore, it is necessary for the Commission to determine whether it allows the applicant a further period under s 366(2) to make his general protections application. Section 366(2) provides that the Commission may allow a further period if the Commission is satisfied that there are exceptional circumstances taking into account the following matters:
[6] It is clear that the applicant's employment ceased effective 5 January 2026. In that regard, on 5 January 2026 the applicant sent the employer an email entitled "Formal Notice - Constructive Dismissal" in which he stated "... I consider myself to have been constructively dismissed from my employment ... and am therefore forced to resign effective from Monday 5 January 2026".
[7] The applicant's claims of "constructive dismissal" and being "forced to resign" is one which instinctively raises a question whether the applicant was in fact dismissed within the meaning of s 386 of the Act.
[8] However, the terms of the applicant's 5 January email make it entirely possible to determine length of the delay between the expiration of the 21-day time period after the employment came to an end and the making of the general protections dismissal application. Consequently, this matter falls within the recognised category of cases where the Commission may determine an application to extend time on an 'assumed dismissal' basis, without first deciding whether the applicant has been dismissed.
[9] Whilst I am not deciding whether or not the applicant was "dismissed", it is relevant for me to give some consideration to the merit of the applicant's case in this regard, in weighing the merits of the applicant's application (s 366(2)(d)) for the purpose of deciding whether to allow an extension of time.
[10] The applicant's 5 January 2026 email is part of a chain of six emails between the applicant and the employer between 9 December 2025 and 5 January 2026. The applicant provided this email chain to the Commission.
[11] In 2025, there was an international reorganisation or restructure of the employer and its associated entities in other countries. This is evident from an email sent by the applicant to the employer on 9 December 2025 in which he stated, "my previous position ... no longer exists due to significant international organisational restructuring".
[12] It is evident that the restructure had an impact on the applicant's employment. In October 2025, the employer transferred the applicant to a different position with a different reporting manager albeit he retained the same job title, salary and designated position level. The applicant was transferred to a different Business Area, however he still performed business development and sales duties but with a narrower range of products and portfolios.
[13] On 9 December 2025, the applicant emailed a HR representative of the employer (copied to two managers) and conveyed that he considered that the changes affecting his employment constituted a redundancy, made representations as to why he considered this was so and requested that the employer provide him a redundancy package.
[14] On 17 December 2025, the HR representative sent a reply email to the applicant (copied to the two managers) and indicated that the employer did not consider the situation was one of redundancy. The email noted, amongst other things, that while the restructure had impacted the applicant (including a change of reporting lines and Business Areas), the fundamental elements of the applicant's employment remained substantially similar, and the applicant's retained his salary, job title and designated position level.
[15] On 19 December 2025, the applicant emailed the HR representative (copied to two managers) and made further representations in support of a redundancy package and referred to a discussion with a manager in which the applicant claimed that the manager had referred to a mutual separation agreement. The applicant indicated that he was open to "the possibility of using a Mutual Separation Agreement in order to find an efficient solution."
[16] On 18 December 2025, a manager of the employer replied (copied to the HR Representative and the other manager) and noted that the applicant had applied for another position within the employer's Australian operations, that no appointment had been made to that position, and that given the time of year, the employer wouldn't be considering next steps until the new year. The manager suggested organising a meeting in January 2026 after the applicant returned from leave "to reassess."
[17] On 28 December 2025, the applicant emailed the HR Representative asking her reconsider her view that there was no redundancy having regard to the matters raised in the applicant's email of 19 December 2025. The applicant also alleged he had been the subject of age discrimination in two separate job selection interviews conducted by employees of the employer in September and December 2025.
[18] On 5 January 2025, the applicant sent the "Formal Notice - Constructive Dismissal" email referred to in paragraph [6] above. This email is the final email in the chain of six emails provided to the Commission by the Applicant. In the 5 January email, the applicant asserts he was being "constructively dismissed" and "forced to resign" based on three allegations: alleged discrimination in the two job selection processes, alleged '[m]aterial and unilateral changes" to the applicant's role and working conditions and an alleged "absence of proper consultation or a procedurally fair process in the handling of possible redundancy and role change". The applicant asserts that "[t]he cumulative impact of these actions, ... has left me with no reasonable option other than to bring my employment to an end." The email makes a somewhat sweeping claim that "continued employment has been made untenable due to the company's conduct, which [the applicant considered] to be a fundamental breach of the employment relationship and of the duty of mutual trust and confidence." As noted above, the applicant's email asserted a forced resignation effective from 5 January 2026.
[19] I note that the applicant has provided the Commission further emails relating to his age discrimination complaint made to the employer referred to in paragraph [17] above. On 12 February 2026, the applicant followed up his then former employer asking whether the investigation into his age discrimination claim had been finalised. On 13 February 2025, the employer emailed the applicant and advised him that it would be finalised the following week. On 17 February 2026, an HR representative of the employer emailed the applicant noting that his complaint had been investigated and that the outcome of the investigation was to find that "there was no age discrimination alleged".
History of Applications in Fair Work Commission
[20] On 6 January 2026 (a day after the ending of his employment), the applicant made an unfair dismissal application under s.394 of the Act (the Unfair Dismissal Application) with the employer as the respondent. The same day, the applicant made an application under s.365 of the Act (the First General Protections Application) in which the employer was the first respondent and a manager of the employer was another respondent.
[21] On 28 January 2026, the Commission sent the applicant an email notifying him that under s 725 of the Act, he could not make more than one application about the same dismissal. The opening paragraphs to the Commission's email identified that the employee manager was respondent to both the Unfair Dismissal Application and the First General Protections Application. In relation to s 725, the Commission's email stated:
Under section 725 of the Fair Work Act 2009, you cannot make more than one application about the same dismissal. If your first application hasn't concluded or been discontinued, you are not able to submit a second application.
There is more information about multiple applications on the Fair Work Commission website.
or * an email stating you are discontinuing your application to lodge@fwc.gov.au
If you do not discontinue Application Two, and you do not provide a reasonable legal basis to show that the Application can continue, the Commission will consider dismissing the Application under s.587(1)(a) of the Act.
The deadline for providing this information is 4 February 2026.
If we don't hear from your by then, it's very likely your case will be dismissed without further notice.
If you have any questions about this letter, please call us on 1300 799 675 or email lodge@fwc.gov.au.
[22] It is clear that s 725 of the Act prevents an applicant who has made an unfair dismissal application (which has not been withdrawn or failed for want of jurisdiction or failed because the Commission was satisfied the dismissal was a case of genuine redundancy) from making a second general protections application in relation to dismissal. In Dutta v Telstra Corporation Limited [2019] FCAFC 103, a Full Federal Court observed as follows:
The effect of these provisions is, as stated by Rangiah J in Anglo Coal_, that an unfair dismissal application under s 394 of the Fair Work Act falls within s 729 such that a person who has brought such an application (which has not been withdrawn or failed for want of jurisdiction or because the Fair Work Commission was satisfied the dismissal was a case of genuine redundancy) is precluded by s 725 from also bringing a general protections application (s 727). Where such "multiple applications" are sought to be brought, a general protections claim will be precluded by an earlier unfair dismissal claim: cf._ Walsh v Umoona Tjutagku Health Services Aboriginal Corporation (No 2) [2017] FCA 852 at [23] to [25] per Charlesworth J.
[23] On 30 January 2026, the applicant sent an email to the Commission querying the identification in the Commission's 28 January 2026 email of a manager as being a respondent in both the Unfair Dismissal and First General Protections Application. The applicant's email in substance noted his belief (which was correct) that the manager was only respondent to the First General Protections Application.
[24] On 5 February 2026, the applicant sent a further email to the Commission noting that he had not received a response to his 30 January email and restating that the employee manager was only respondent to the First General Protections Application.
[25] On 9 February 2026, the applicant spoke to a client services officer of the Commission by telephone. The Commission's internal records note that in this telephone conversation, the applicant verbally discontinued both the Unfair Dismissal Application and the First General Protections Application.
[26] I note that under r 10 of the Fair Commission Rules 2024, it is permissible for an applicant before the Commission to discontinue their application by means including advising the Commission, or a member of staff of the Commission, by letter, email, fax or telephone, or orally in person, that the applicant wishes to discontinue the application, wishes to withdraw the application or no longer needs the Commission to deal with the application.
[27] As noted above, the applicant made his second general protections dismissal application to the Commission on 10 February 2026.
[28] In his Form F8 application dated 10 February 2026, the applicant contends that in the 9 February 2026 phone call to the Commission, referred to in paragraph [25] above, "I was told that I could cancel the above-mentioned applications and resubmit just one application which would be accepted by the FWC." The applicant further says "[the] FWC person that spoke with me on the 9th February 2026 kindly said that I would be granted an extension of time to submit this application which is based upon the one previously submitted on time."
[29] The Commission retains a record of the applicant's communication with the client services officer on 9 February 2026. That record notes that the applicant verbally discontinued both the Unfair Dismissal Application and the First General Protections Application, that the applicant indicated that he will submit a new general protections application, that client services officer explained the "Multi letter" (evidently being the email of 28 February 2026) and the client services officer explained to the applicant the issue relating to multiple applications.
[30] On 10 February 2026, the applicant sent a follow up email to the Commission which relevantly stated:
I confirm that I have now resubmitted a General Protections Application to replace the two previous applications (C2026/245 & U2026/216) which have now been cancelled by yourselves.
[31] In his Form F8, the applicant gives the following reason as the explanation for the delay:
I had submitted two applications (Unfair Dismissal Case U2026-216 and General Protection Discrimination Case U2026-245) on 6th January 2026 which was within the timeframes specified. I was informed by the FWC via email that I was only able to submit one application. Having emailed and then spoken to FWC on 09 February, I was told that I could cancel the above-mentioned applications and resubmit just one application which would be accepted by the FWC. This is that application.
[32] The reason for the delay is a combination of two factors. Firstly, the making of this second general protections application (the one presently before me) arises from the applicant's decision to make multiple dismissal actions on 6 January 2026, being the Unfair Dismissal Application and then First General Protections Application. This was a course which rendered the First General Protections Application ineffective. Secondly, the applicant's decision on 9 February 2026 to discontinue both prior applications made on 6 January 2026 and to commence a second general protections application knowing that it would be filed outside the 21-day time period requiring an extension of time from a member of the Commission.
[33] Fundamentally, the reason for the delay is the applicant's mistake on 6 January 2026 in making two applications regarding the alleged dismissal in a manner inconsistent with s 725 of the Act. In making the Unfair Dismissal Application first in time and before the First General Protections Application, the applicant, by operation of s 725 in effect elected to contest the alleged dismissal under s 394 (Unfair Dismissal). On 28 January 2026, the Commission informed the applicant of the operation of s 725 in relation to his Unfair Dismissal Application and First General Protections Application and identified relevant options. The 28 January 2026 correspondence from the Commission identified the option of filing a second general protections claim and seeking an extension of time. This correspondence relevantly stated that a "Commission Member will only grant an extension of time in exceptional circumstances" and provided a link to further information about exceptional circumstances.
[34] On 9 January 2026, the applicant decided to discontinue both the Unfair Dismissal Application and the First General Protections Application, in order to commence a second general protections application.
[35] In the above circumstances, I am satisfied that the applicant made the choice referred to immediately above, either on an informed basis or with the relevant information available to him. On either basis, I do not consider that the applicant has shown an adequate explanation for delay. The applicant's mistake in filing dual applications on 6 January 2026 and subsequent decision to discontinue those applications and commence a second general protections application does not constitute an adequate reason for the delay.
[36] I am also not satisfied that on 9 February 2026, a client services officer of the Commission gave the applicant an assurance that he would be granted an extension of time as the applicant suggests in his Form F8 (see par [28] above). In that regard, the conversation with the client services officer on 9 February 2026 arose from the Commission's 28 January 2026 email to the applicant. As set out in paragraph [29] above, the Commission's record of the conversation on 9 February 2026 indicates that the Commission's 28 January 2026 email was explained to the applicant. I note that this email made clear that an extension of time is not granted as matter of course, requires 'exceptional circumstances' and is a matter for a "Commission Member". In that regard, I note the email stated as follows:
A 21-day time limit applies - you will need to apply for an extension of time to lodge the third application more than 21-days from the date of your dismissal and provide evidence to explain why your application is late. A Commission Member will only grant an extension of time in exceptional circumstances. More information on deadlines and extension of time requests can be found [on the Commission's website].
[37] I also note that the Commission's own record of the conversation with the applicant does not record that the client services officer gave the applicant an assurance that an extension of time would be granted. It seems to me inherently unlikely that a client services officer of the Commission would give an assurance to an employee that an application filed out of time would be granted an extension of time by the Commission. That function is one for a member of the Commission and well known as such, especially amongst the staff of the Commission. In that regard, the 28 January 2026 email from the Commission to the applicant made clear that "a Commission Member" will only grant an extension of time if satisfied of exceptional circumstances.
[38] I am mindful that the applicant's emails to the Commission dated 30 January 2026 and 5 February 2026 were not answered. However, I do not consider that this matter constitutes an adequate explanation for the delay or part of the delay. The applicant's query in both such emails related to the identification of an employee manager as respondent to both the Unfair Dismissal Application and the First General Protections Application. This was a collateral matter. The nature of the options available to the applicant were otherwise clearly set out in the Commission's email of 28 January 2026. I also note that the registry staff of the Commission must deal with a very high number of applications relating to dismissals and it cannot reasonably be expected that they will respond or provide an immediate response to all email queries sent regarding dismissal applications.
[39] In these circumstances, I am not satisfied that the applicant has demonstrated an adequate explanation for the delay. This consideration weighs against an extension of time.
Action taken by the applicant to dispute the dismissal (s 366(2)(b))
[40] The applicant filed the Unfair Dismissal Application and the First General Protections Application on 6 January 2026. As such he took action to dispute the dismissal within the 21-day period.
[41] This consideration weight in favour of an extension of time.
[42] The applicant's delay in filing his general protections application is not so inordinate in time that I am satisfied that the employer or the two employee respondents would suffer prejudice.
[43] This consideration is a neutral consideration.
[44] The applicant submits that his general protections application has merit. The applicant alleges he was dismissed (by means of "constructive dismissal" or "forced resignation") by the employer because of his age in contravention of s 351 of the Act. The applicant alleges that he experienced age discrimination on "at least three occasions".
[45] I note that it is not appropriate for the Commission to undertake a conclusive assessment of the merits at the preliminary stage of considering an extension of time. However, s 366(d) requires the Commission to consider the merits of the application, which invariably involves a preliminary assessment of the merits based on limited material.
[46] Two of the three occasions of the alleged age discrimination are directed to comments that the applicant alleges were made by employees of the employer in two separate internal job interviews in September and December 2025. I note that the applicant was unsuccessful in his applications for these two roles. The third allegation of age discrimination appears to be directed to an alleged lack of consultation and redundancy process relating to the restructure.
[47] As noted above, in an email on 17 February 2026, the employer informed the applicant that his complaint of age discrimination relating to the interviews had been investigated and no age discrimination was found to have occurred.
[48] Consequently, it is clearly apparent that the employer disputes the two allegations of age discrimination regarding the job interviews and selection. I infer that the third allegation of age discrimination relating to the consultation and redundancy process would likely also be disputed by the employer and the personal respondents.
[49] Based on the documents alone, the applicant's claims of a constructive dismissal or forced resignation based on age (cumulative with any other matter) appear weak. These documents, constituted by the six emails, appear quite probative as they constitute a record of contemporaneous communications between the applicant and the employer in December 2025 leading to the alleged "constructive dismissal" or "forced resignation" on 5 January 2026.
[50] From the documents before me, it seems a weak contention that as at 5 January 2026, the applicant had no other choice but to resign due (cumulative with any other matter) to the alleged age discrimination at the internal job interviews. I note that on 28 December 2025, the applicant had emailed the HR representative requesting her to reconsider the matter of a redundancy package and also requesting an investigation about alleged age discrimination in the interviews in September and December 2025. In these circumstances, it is not at all apparent to me how the applicant can then claim on 5 January 2026, that he had no effective choice but to resign on that date. As at 5 January 2026, the employer had not yet finalised an investigation into the age discrimination complaint made by the applicant on 28 December 2025 and nor could it reasonably be expected to have done so, noting the time of year and the relatively short period since the applicant first made his complaint.
[51] In relation to age discrimination causing a lack of consultation and deficient redundancy process, thereby forcing (in combination with the other alleged age discrimination) the applicant to resign, the applicant's allegations do not rise above bare assertion. But it seems to me inherently unlikely that the applicant's age would be a reason for a deficit (if any) in the consultation or redundancy process relating to the applicant's employment. In that regard, the restructure or reorganisation was an international restructure of operations of a broader business group which also affected the employer in Australia, being the respondent. In any event, I note that the employer had from October 2025 transferred the applicant to a position with the same job title, salary and designated position level. Furthermore, the material does not disclose any arguable deficiency in the consultation or redundancy process. Prima facie, it seems to me from the email chain, that the applicant's fundamental dissatisfaction in relation to redundancy process is that the employer did not offer him a redundancy package or mutual separation agreement in circumstances where he did not consider that the role had been deployed in after the restructure/reorganisation was as significant as his prior role. There is nothing in the material before me which indicates that that the employer was obliged to make a redundancy package available to the applicant.
[52] Consequently, in my view the applicant's claim that he was dismissed (by virtue of 'constructive dismissal' or 'forced resignation') by the employer because of his age, appears to be weak. This consideration weighs against an extension of time.
Fairness as between the applicant and other person in a like position (s 366(2)(e))
[53] The applicant asserts that the fairness consideration favours a grant of an extension. The applicant asserts that granting an extension of time would "help to prevent similar age discrimination by the employer in the future."
[54] The applicant's assertion is not well founded. The consideration in s 366(2)(e) is really directed to circumstances of fairness as between multiple persons who are dismissed at the same time arising out of the same or similar event, and some or one file within time and some or one file out of time. The issue of fairness as between persons in like positions may be relevant to that circumstance. Based on the material before me, the fairness consideration under s 366(2)(e) is not a matter which arises in the applicant's extension of time application.
[55] Nevertheless, for the sake of completeness and without departing from my view that the applicant's contention regarding fairness is not to the point, I don't accept the applicant's contention that granting the applicant an extension of time would "help to prevent similar age discrimination by the employer in the future." This seems a remote and unlikely consequence of a grant of an extension of time in a general protections dismissal application.
[56] I have considered and weighed each of the matters in s 366(2)(a)-(e). Two of the matters (s 366(2)(a) and (d)) weigh against a finding of exceptional circumstances. One consideration (s 366(2)(b)) weighs in favour of a finding of exceptional circumstances. Two considerations (s 366(2)(c) and s 366(2)(d)) are neutral. I am a not satisfied that these matters, either considered alone or in combination, give rise to exceptional circumstances.
[57] As I am not satisfied that there are exceptional circumstances, there is no basis for me to extend time under s 366(2). The applicant's application under s 365 of the Act is dismissed.
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