Fair Work Act 2009

s.365 - General protections

MNI Electrospark All Trades Services Pty Limited & Downer Edi Limited

Application to deal with a general protections dismissal dispute - late application - whether extension of time should be allowed

• [1] On 11 September 2025, Mr Maghames applied for the Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (Cth) (the Act). Mr Maghames alleges that he was dismissed on 11 August 2025 by MNI Electrospark All Trades Services Pty Limited (Electrospark) and that Downer EDI Limited (Downer) was involved in that contravention. The application is made in the context of Mr Maghames' period of employment of approximately 2 months as a painter for Electrospark on a building site managed by Downer. Mr Maghames says he was dismissed for exercising a workplace right to report an incident on 4 August 2025 and because of his national extraction or social origin.

• [2] The Respondents object to the application on the basis that it was made after the end of the statutory 21‑day filing period. Although there is some suggestion in the materials that Mr Maghames was dismissed orally on 4 August 2025, the parties agree (to the extent that they know) that the date of termination was 11 August 2025 and that the dismissal took effect immediately. I find that the application is 10 days late.

• [3] The question is whether to allow additional time for the application to be made. It is not necessary to deal separately with an objection by Downer that Mr Maghames was not its employee (which in any event, does not seem to be in dispute).

• [4] I have decided not to grant an extension of time for the application to be made. The application will be dismissed. These are my reasons.

• [5] Application under s.365 of the Act must usually be made within 21 days of dismissal. The Commission can extend the filing period if satisfied that there are exceptional circumstances (s.366(1)(b)), taking into account the matters listed in s.366(2). Section 366(2) provides:

"(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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 like position."

• [6] Reason for delay and action to dispute the dismissal: On 20 August 2025, Mr Maghames lodged an unfair dismissal application (U2025/13605) in relation to the same facts and circumstances that are the subject of this application. On 21 August 2025, he lodged a general protections involving dismissal application (C2025/8288), again in relation to those same facts. On 9 September 2025, Mr Maghames was informed by the Commission that he did not appear to be eligible for an unfair dismissal remedy because of his short period of employment, and that s.725 of the Act (multiple actions prohibition) applied to his general protections application. On 11 September 2025, Mr Maghames subsequently discontinued his unfair dismissal and general protections applications before filing this application later the same day, but out of time.

• [7] In short, the reason for delay is ignorance of the law. Mr Maghames' initial attempt to dispute the dismissal resulted in the filing of two applications he was not entitled to make. The reasons for this are not clear. Once the Commission identified difficulties with his applications, he acted promptly in a bid to overcome the difficulties he faced. Although indicating a commitment to his claim, the reasons for delay, and the actions taken to dispute the dismissal, are not matters weighing in favour of a finding of exceptional circumstances.

• [8] Prejudice to the employer: Contrary to the submissions of Electrospark, I find no apparent prejudice if the application proceeds 10 days late. Electrospark has been on notice of a dispute about the dismissal since shortly after Mr Maghames was dismissed.

• [9] Merits: Mr Maghames was dismissed for alleged safety breaches on 4 August 2025, and for shouting at a manager tasked with managing safety issues who then told him to leave the site. Mr Maghames does not admit the safety breaches and denies shouting. He says he was calm, and that he was the one confronted with rudeness and aggression on the day by a person he did not know. Whether the events of 4 August 2025 involved any breach of the general protections is in dispute, and in doubt. Mr Maghames was sent off site before he made the complaint about how he had been treated. Electrospark says it then conducted an investigation before deciding to terminate the employment. The allegation of racial or religious discrimination seems to be that Mr Maghames was asked to give his name, to which he replied 'Mohammad', after which he was sent off site. Given the disputed facts and the lack of evidentiary material before the Commission, the merits of the case are a neutral consideration.

• [10] Fairness as between Mr Maghames and another person in a like position is not a relevant consideration in the circumstances. It is a neutral consideration.

• [11] I am not satisfied that there are relevant exceptional circumstances in connection with the late filing of the application. Ignorance of the law is not an exceptional circumstance, particularly given the amount of information widely available about the options to deal with a dismissal dispute, including on the Commission's website. The other considerations are either neutral or not relevant in relation to whether exceptional circumstances can be found.

• [12] It follows that no additional time for the application to be made can be allowed.

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