1 Fair Work Act 2009 s.365—General protections Joanne Dinov v Sydney Catholic Schools Ltd (C2024/8521) COMMISSIONER MCKINNON SYDNEY, 18 FEBRUARY 2025 Application to deal with a general protections dismissal dispute – late application – whether extension of time should be allowed [1] Ms Joanne Dinov was employed as a Learning Support Officer by Sydney Catholic Schools (SCS) from 18 March 2024 until 13 September 2024. On 27 November 2024, Ms Dinov applied for the Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (the Act). Ms Dinov alleges that she was dismissed by SCS in contravention of the general protections because of her foot injury. SCS objects to the application on the basis that the application is filed out of time. The application is 54 days late. [2] This decision is about whether additional time can and should be allowed for the application to be made. For the reasons that follow, I am not satisfied that there are exceptional circumstances of relevance to the late filing of the application. No additional time for the application to be made can be allowed. The application will instead be dismissed. Consideration [3] An application under s.365 of the Act must usually be filed within 21 days of dismissal. The Commission can extend the filing period if there are exceptional circumstances (s.366(1)(b)) after taking into account the following matters set out in s.366(2): “(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.” [4] These are considered in turn as they relate to Ms Dinov’s application. [2025] FWC 474 DECISION [2025] FWC 474 2 [5] Reason for delay: Ms Dinov initially applied for an unfair dismissal remedy under s.394 of the Act on 4 October 2024. This was the 21st day after her dismissal by SCS took effect. When making the unfair dismissal application, Ms Dinov genuinely but wrongly assumed that she had served the minimum employment period of at least 6 months with SCS, by counting her period of employment in weeks rather than months. Her actual period of employment was less than 6 months, rendering Ms Dinov ineligible for an unfair dismissal remedy. The defect in her application was brought to her attention during a staff conciliation conference on 5 November 2024. [6] After the conference, Ms Dinov promptly sought advice from Redfern Legal Centre about her options. On 11 November 2024, Ms Dinov applied for the Commission to deal with a general protections dispute under s.365 of the Act. She had not yet withdrawn her application for an unfair dismissal remedy, and nor had it failed for want of jurisdiction, although that was a likely outcome. These circumstances combined meant that at the time of the first general protections application, s.725 of the Act prohibited Ms Dinov from making the application. Ms Dinov knew that she could not make an unfair dismissal application and a general protections application at the same time, but says she thought her unfair dismissal application had been dismissed in the staff conciliation conference on 5 November 2024. [7] On 19 November 2024, the Commission informed Ms Dinov of the prohibition on multiple actions in s.725 of the Act. On 26 November 2024, Ms Dinov withdrew both her unfair dismissal application and her initial general protections application. On 27 November 2024, she filed this (second general protections) application. [8] Action to dispute the dismissal: The reasons given for delay also describe the matters relied upon by Ms Dinov as the actions she took to dispute the dismissal. [9] Prejudice to the employer: There is some limited prejudice to SCS if additional time is allowed for the application to be made later than usually allowed. This is due to the additional time, cost and effort of responding to a third application to the Commission after the earlier two applications, which each sought a remedy for the same alleged conduct, were withdrawn. [10] Merits: On the face of the record, the merits of the application are arguable but not strong. There is a dispute about whether the dismissal was because Ms Dinov had a foot injury or because she was dishonest about why she was resigning from one SCS school. Subsequent events brought her foot injury to light after another SCS school offered her the same job, commencing two weeks later, at a location with fewer stairs. SCS alleges that Ms Dinov failed to engage constructively when SCS sought to address its concern about dishonesty with Ms Dinov, and that her conduct was contrary to its core value of truth. The merits could only be properly assessed on a hearing of the application. [11] Fairness as between Ms Dinov and another person in a like position is not a relevant consideration in this case except to the extent that SCS seeks the consistent application of precedent having regard to cases with similar facts. [12] Overall: Ms Dinov made an initial calculation error in relation to the minimum employment period of 6 months that applied to her unfair dismissal application. Why she thought this period was counted in weeks rather than months remains unclear. Ms Dinov says [2025] FWC 474 3 she did some research about the minimum employment period and discovered that it was “6 months”. This is consistent with both the words of s.383 of the Act, which defines “minimum employment period”, and information about the minimum employment period found on the Commission’s website. Each is expressed in terms of months and not weeks. [13] Ms Dinov says she acted on the basis that 6 months equated to 26 weeks. Even on that metric, Ms Dinov’s service would have fallen short of the minimum employment period. For this reason, I do not accept her submission that absent the error, Ms Dinov would have applied under the general protections provisions of the Act to begin with, and her application would have been in time. [14] Ms Dinov made a choice about the application she wished to make. After realising she was ineligible to make that application, Ms Dinov sought legal advice about her options and was told she could make a general protections application instead. The contents of her first general protections application confirm that by this time she had been made aware of the prohibition on multiple actions. Ms Dinov did not take any steps to withdraw or confirm the status of her unfair dismissal application before making her first general protections application. Ms Dinov says she thought her unfair dismissal application had been dismissed in the staff conciliation conference, but there is nothing before me about what led to this belief, and I find it implausible. The Commission’s file indicates that one outcome of the staff conciliation conference was additional time for Ms Dinov to get advice on the minimum employment period. The subsequent contents of her first general protections application describe her understanding by that time that she could not “proceed” with the unfair dismissal application. [15] It was only after the issue of multiple actions was raised again by the Chambers of Deputy President Easton (and after the first general protections application had been filed) that Ms Dinov withdrew the unfair dismissal application and the first general protections application. She then filed this application, seeking an extension of time due to the earlier jurisdictional issues. Conclusion [16] Can an extension of time be allowed to Ms Dinov to make the second general protections application? In this case, the jurisdictional issues arose from an ignorance of the law. That is not an exceptional circumstance, even if the misunderstanding was genuine. It is also not an exceptional circumstance to file one application and then another in a bid to overcome a jurisdictional hurdle. Ms Dinov acted promptly to dispute the dismissal by her initial unfair dismissal application, and SCS can be taken to have known that that the dismissal was in dispute since shortly after 4 October 2024 when that application was filed. The twists and turns involved have caused some prejudice to SCS in responding to multiple claims over the same set of facts. The merits appear arguable but not strongly in favour of Ms Dinov. On balance, these matters do not satisfy me that exceptional circumstances exist in connection with the late filing of this application. [17] There are no other circumstances raised by Ms Dinov in support of her application for an extension of time that might support a conclusion of exceptional circumstances. In the period after the second general protections application was filed, there was a delay in communication as between Ms Dinov and the Commission. The delay was caused by Ms Dinov’s travel [2025] FWC 474 4 overseas to look after her mother who was unwell. But it had no bearing on the delay in filing this application. [18] In the absence of exceptional circumstances, no additional time can be allowed for Ms Dinov to make her application. The result is that the application was not filed within 21 days after the dismissal took effect and was not made in accordance with the Act. Order [19] The application is dismissed under s.587(1)(a). COMMISSIONER Hearing details Sydney via Microsoft Teams. February 17. J Dinov on her own behalf. D Boyle of the respondent. 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