Rob Monaco [2025] FWC 3811 (11 December 2025)

s.365 - General protections

Application to deal with contraventions involving dismissal - application filed out of time - no exceptional circumstances - application dismissed.

• [1] Mr Rob Monaco has made an application under s 365 of the Fair Work Act 2009 (Act) in which he alleges that he was dismissed by his employer in contravention of Part 3-1 of the Act. Section 366(1)(a) requires such applications to be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s 366(2). Mr Monaco's application stated that he commenced employment on 12 May 2025, and the effective date of dismissal was 5 November 2025. The 21-day period for filing the application therefore ended on 26 November 2025 (see s 40A of the Act, and s 36 of the Acts Interpretation Act 1901 as in force on 25 June 2009).

• [2] Mr Monaco's application was lodged in the Commission on 5 December 2025. For the application to proceed, Mr Monaco requires an extension of time, and this decision deals solely with this matter. The Commission may grant an extension of time only if it is satisfied that there are exceptional circumstances, taking into account the matters in s 366(2)(a) to (e) of the Act.

• [3] As to the reason for the delay (s 366(2)(a), Mr Monaco submitted that he has been on personal leave since 31 October 2025 due to concerns about intimidation and harassment from his employer, which resulted in Mr Monaco "blocking some employees on my phone and emails." Mr Monaco said he had been "verbally abused" in the workplace on two occasions "plus many other instances" of treatment contrary to the Code of Conduct." Mr Monaco said that these matters affected him such that he had been unable to return to work without a "workplace safety plan" in place. As such, Mr Monaco has "predominantly stayed out of Melbourne" to create distance from his employer. Mr Monaco says he has an acquired brain injury and his employer's impact has affected his wellbeing, reducing him to tears on three occasions.

• [4] Mr Monaco has not provided any connection between the above reasons he relies upon to explain the delay, and the late filing of his application in the Commission. This weighs heavily against the grant of an extension of time. I note that Mr Monaco's application states that after his 5 November 2025 dismissal, he received further correspondence from his employer on 17 November 2025 directing him to the notice of dismissal that had been provided to him on 5 November 2025 and confirming his termination payments had been provided to him. Notwithstanding this post-dismissal correspondence, Mr Monaco took no action to lodge his application until 5 December 2025. To the extent that Mr Monaco relies upon the state of his mental health as a reason for the delay, I do not accept that these matters prevented or seriously impeded the possibility of timely lodgment of his application, noting there is no medical evidence before the Commission which explains the nature of any health condition, or which advises that Mr Monaco was incapacitated and unable to lodge the application at any earlier time. In my assessment, the reasons for delay relied upon by Mr Monaco weigh against a conclusion that there are exceptional circumstances in this case.

• [5] Mr Monaco contends that he took action to dispute his dismissal (s 366(2)(b)) by:

(a) providing a "brief yet comprehensive response" to his mid-probation report which he says was ignored;

(b) requesting a meeting "on a number of occasions" to highlight concerns about his employer's "practices";

(c) providing a response to "4 broad and vague allegations" raised by his employer, which necessitated a response "or else my employment would be terminated." Mr Monaco said, in summary, that he advised his employer that his treating general practitioner advised him not to have any contact with work. Mr Monaco said he also raised concerns about the reasonableness of a request to respond to a letter of allegations, noting he was an unwell employee with a disability.

• [6] Section 366(2)(b) requires consideration of whether Mr Monaco took action to dispute the dismissal, not whether he took steps to raise concerns with his employer about events prior to the dismissal taking effect. In the absence of any information from Mr Monaco that he took steps after his dismissal to raise concerns with his employer, then this factor weighs against the grant of an extension of time.

• [7] As to the other mandatory considerations, I do not consider there to be any prejudice to the employer associated with nine day delay in this case (s 366(2)(c)), nor do I consider that there are any matters that are relevant to fairness between Mr Monaco and other persons in a like position (s 366(2)(e)). I consider these to be neutral factors.

• [8] In relation to the merits of Mr Monaco's substantive general protections case (s 366(2)(d)), Mr Monaco submitted that he advocated strongly for "following the right approach," including compliance with the relevant enterprise agreement and contemporary workplace standards. He said that his approach was met with "silence, undermining behaviour and an urgency to dismiss" him prior to the end of his six-month probationary period. Mr Monaco contends in his application that he was dismissed for lodging two incident reports against managers, and refers to the failure of his director to advise him that he could bring a support person to a meeting to discuss his mid-probation report, being precluded from sharing his mid-probation report without the consent of persons named in the report, and contended that the executive director used a false and misleading mid-probation report as a justification to remove him as a mentor.

• [9] Mr Monaco further states that his employer breached s 352 of the Act as he was temporarily absent from work when he was directed to provide a response to a letter of allegations, and he was regularly subjected to behaviours inconsistent with the enterprise agreement.

• [10] These matters may demonstrate that Mr Monaco has an arguable general protections case but having regard to the limited information before me, a more detailed assessment of the strength of Mr Monaco's claim is not possible. The merits of the matter would also depend on findings made by a court after hearing the evidence. In the circumstances, I regard the merits of Mr Monaco's substantive general protections application to be a neutral factor in my assessment of whether to grant an extension of time.

• [11] The Commission can extend the time for making a general protections application only if it is satisfied that there are exceptional circumstances. Taking into account all of the matters in s 366(2), I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.

• [12] As I am not satisfied that there are exceptional circumstances, the power to extend time is not enlivened. Mr Monaco's application is therefore dismissed.

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