Fair Work Act 2009

s.365 - General protections

Madison Group Enterprises Pty Ltd, Craig Moulin

Application to deal with contraventions involving dismissal

• [1] On 27 June 2025, Mr. Anthony Magris was dismissed from his employment with Madison Group Enterprises Pty Ltd (MGE).

• [2] On 19 July 2025, he made an application alleging he was dismissed from his employment in contravention of Part 3-1 of the Act, and that Mr. Craig Moulin was involved in that contravention (MGE and Mr. Moulin are collectively referred to as the Respondents). General protections applications are required to be made within 21 days of the dismissal taking effect. His application was made at 12:07 AM on the day after the expiry of the statutory time limit.

• [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 366(1)(b).

• [4] On 21 August 2025, I heard Mr. Magris' extension of time application by way of a determinative conference by Microsoft Teams. Mr. Magris appeared and represented himself. The Respondents were represented by Ms. Kate Drew, Head of People. Mr Moulin, the Second Respondent, also attended the conference.

• [5] For the following reasons, I do not grant an extension of time to Mr. Magris and therefore his application is dismissed.

When must an application for the Commission to deal with a dispute be made?

• [6] Before dealing with the dispute, I must be satisfied that the application was made in time.

• [7] Section 366(1) of the Act provides:

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

Was the Application made within 21 days after the dismissal took effect?

• [8] The 21-day period does not include the day on which the dismissal took effect.[1]

• [9] Mr. Magris' dismissal took effect on 27 June 2025. It follows the final day for filing the application was 18 July 2025 and ended at midnight on that day.

• [10] Mr. Magris' application was filed at 12:07 AM (AEST) on 19 July 2025. It was 7 minutes late. I therefore need to consider whether to make an order to extend the period to make the application.

• [11] I may allow a further period for a general protections application if I am satisfied there are exceptional circumstances, taking into account:[2]

(b) any action taken by Mr. Magris to dispute the dismissal.

(c) prejudice to MGE or Mr. Moulin (including prejudice caused by the delay).

(e) fairness as between Mr. Magris and other persons in a similar position.

• [12] Each of these matters must be considered in assessing whether there are exceptional circumstances.[3] I set out my consideration of each matter below.

• [13] 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.[4]

• [14] 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 Mr. Magris has not provided any reason for any part of the delay.[5]

• [15] Mr. Magris' reasons for delay were as follows:

Communication with MGE about his termination payments

• [16] In the period from 27 June 2025 until 15 July 2025, Mr. Magris was attempting to resolve a dispute concerning his termination payments through an exchange of e-mails with People and Culture. That correspondence ended with an e-mail dated 15 July 2025 from Ms. Kate Drew from MGE, which read:

This email serves as final correspondence regarding your termination entitlements.

Your final commission payment has been processed yesterday, 14 July 2025, as per the established payment schedule. Your final payslip, which includes this payment, is attached for your records.

As previously communicated in our detailed email to you, all queries regarding your entitlements have been comprehensively addressed. That correspondence represents the Company's full and final position on the matters you have raised concerning your redundancy and termination payments.

As all financial and informational matters from the Company's side are now concluded with this final payment, we will not be engaging in any further correspondence on these specific queries.

Should you wish to pursue this matter further, you are encouraged to seek independent advice.

• [17] Mr. Magris argues this "final communication for the accounts department... on the 18th day (of the time limit) advising that an error had been made for the superannuation payment. ... gave me less than 3 days to determine how to apply to the FWA".

"The emotional impact of being denied further communication"

• [18] Mr. Magris gave another reason for the delay: the "emotional impact of being denied further communication" with MGE about his pay dispute.

Delay in obtaining advice on his termination payments and on making an application

• [19] Following the 15 July e-mail from Ms. Drew, Mr. Magris sought external advice from the Fair Work Ombudsman. He received written advice on the "twentieth day of the time limit". Mr. Magris then sought advice from the Fair Work Commission on "how to apply to the Fair Work Commission" which he received on the "21st day of the period" advising to "make a general protections application on the Fair Work website".

• [20] It is well settled that in s 366 "exceptional circumstances" means "out of the ordinary course, unusual, special or uncommon". The circumstances are not required to be unique, unprecedented or rare.

Communication with MGE about his termination payments

• [21] Mr. Magris does not explain why the dispute over his termination payments meant he could not commence a general protections application. At best, he made a strategic decision not to pursue a general protections application until he had exhausted communication with MGE. This cannot be a sufficient reason to delay the filing a general protections application.

The emotional impact of being denied further communication

• [22] An "emotional response" to a termination of employment, or its surrounding circumstances, is routine and not special.

Delay in obtaining advice on his termination payments and making an application

• [23] Delays in receiving advice on either the making of an application or on payments related to a termination are not unusual or uncommon.

• [24] The reasons for the delay articulated by Mr. Magris, either individually or collectively, do not provide sufficient reason for the delay. This counts against an extension of time being granted.

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

• [25] Between 27 June 2025 and 15 July 2025, Mr. Magris engaged in correspondence with Ms. Drew questioning and disputing various aspects of his termination pay. Taking action to dispute termination payments is not action to dispute the dismissal.

• [26] At the hearing, Mr. Magris argued that during the correspondence on his termination payments, he also took action to dispute the dismissal. The passage he relies on is a paragraph in an e-mail dated 4 July 2024 where he questioned the redeployment efforts made by his employer:

"Also, I see that a new state manager has been appointed for WA. I recall having asked about what was happening there when we discussed alternative options for redeployment. I would have considered that as an option for redeployment. As the state manager of the highest revenue earning region within MEX I believe I could have remained a significant contributor to the group."

• [27] Ms. Drew responded in relation to this issue in an e-mail dated 11 July 2024:

"Regarding your comments about the State Manager WA role and redeployment, we conducted a thorough redeployment process prior to the decision to make your position redundant. All available opportunities within Madison and its related entities at the time of your redundancy consultation period were thoroughly reviewed and discussed with you. The State Manager WA role was not an available option for redeployment at that time. The decision regarding your redundancy was based on genuine operational requirements."

• [28] In the 4 July 2025 e-mail Mr. Magris raises a question concerning a position he could have taken as an option for redeployment. At no point did Mr. Magris state the failure to redeploy him in this role meant his redundancy lacked genuineness, or that the process of the redundancy was flawed. The plain meaning of this text does not rise to the level of action to dispute his dismissal.

• [29] The main theme of the correspondence of 27 June to 15 July concerned his termination payments. The mention of redeployment as a matter of plain English cannot be regarded as action to dispute his dismissal. I therefore find Mr. Magris took no action to dispute his dismissal. This counts against an extension of time being granted.

WHAT IS THE PREJUDICE TO MGE AND MOULIN (INCLUDING PREJUDICE CAUSED BY THE DELAY_)?_

• [30] The delay here was seven hours. MGE or Mr. Moulin raised no compelling argument they have been prejudiced by this delay. This factor is neutral to a consideration of whether to extend time.

• [31] Mr. Magris in the part of his application where he sets out "the reasons [he] believes apply to their dismissal" states "not paid Commission for the notice period". There is no evidence before me he raised a complaint concerning the failure to pay commission on the notice period before he was dismissed. The first correspondence when he raises concerns about his termination payments is dated 4 July 2025, seven days after his employment ended.

• [32] An application under s 365 requires an argument that an employer dismissed an employee because they exercised a workplace right. It must be arguable the reason the employee was terminated includes the exercise of the workplace right. Logic dictates the exercise of the workplace right must occur before an applicant's employment ends. A reason to dismiss an employee cannot arise from a complaint made after an applicant's employment ends.

• [33] There is no evidence before me Mr. Magris raised a complaint that he had not been paid commission for the notice period before his employment ended. His application is entirely without merit. This is an important factor against the granting of an extension of time.

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

• [34] No compelling arguments were made by either party on this factor. This factor is therefore neutral to an extension of time being granted.

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

Three factors against an extension of time being granted.

• [35] Mr. Magris provides no good reason for the delay under s 366(2)(a), he took no action to dispute his dismissal under s366(2)(b), and his application is entirely without merit under s 366(2)(d). These factors count against an extension of time being granted.

• [36] There is no prejudice to the MGE or Mr. Moulin by reason of the delay under s 366(2)(c) and no compelling arguments were made on the fairness as between Mr. Magris and other persons in a like position under s 366(2)(e). These last two factors are neutral to an extension of time being granted.

• [37] Three factors count against an extension of time being made and two are neutral considerations. Therefore, on balance, taking into account all the factors in s 366(2), most importantly the lack of merit, I am not satisfied there are exceptional circumstances to justify an extension of time. This application is therefore dismissed.[6]

[1] 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.

[2] Section 366(2)(b).

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

[6] PR790984.

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