Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

APS Plumbing and Gas Pty Ltd ATS APS Plumbing Trust

• [1] Mr Anthony Fasulo has made an application to the Fair Work Commission pursuant to s 394 of the Fair Work Act 2009 (Cth) (FW Act) seeking a remedy, alleging that he was unfairly dismissed by an entity called "The Trustee for APS Plumbing Trust". During the course of this proceeding, it was ascertained the correct name of his former employer is APS Plumbing and Gas Pty Ltd ATF APS Plumbing Trust (APS Plumbing) and I have exercised my power pursuant to s 586 of the Act to amend the application to reflect this named Respondent.
• [2] Mr Fasulo commenced working for APS Plumbing on 20 February 2020 as a qualified plumber.
• [3] Mr Fasulo's employment with APS Plumbing was terminated on 18 December 2024 in the manner outlined below.
• [4] Mr Fasulo filed a Form F2 Unfair Dismissal Application on 7 February 2025.
• [5] APS Plumbing filed a Form F3 Employer Response on 18 February 2025. Two jurisdictional objections were raised in relation to Mr Fasulo's application. Firstly, APS Plumbing submitted that Mr Fasulo's application was not filed within 21 days of his dismissal taking effect. Secondly, APS Plumbing submitted that that the termination of Mr Fasulo's employment was consistent with the Small Business Fair Dismissal Code.
• [6] I programmed the matter for a hearing or conference to determine whether to allow a further period for Mr Fasulo's unfair dismissal application to be made, after having first issued directions for the filing of material in relation to that matter.
• [7] The matter was heard on 12 March 2025. The proceeding was conducted by way of determinative conference. Both parties were self represented at the determinative conference - APS Plumbing by its Director - Mr Paul Sipidias.
• [8] Prior to the determinative conference both parties filed submissions, together with documentary material.

• [9] On 18 December 2024 Mr Paul Sipidias, the Director of APS Plumbing, told Mr Fasulo that his employment was terminated. This occurred at about 2:00PM as they were leaving a job site. Mr Sipdias said "I am going to let you go" or words to that effect. Mr Fasulo asked "why" and Mr Sipidias said "for misconduct". Mr Sipidias asked him to explain what he meant by misconduct. Mr Sipidias said it was because you "leave early" or words to that effect. Mr Fasulo disputes that he habitually left early. Mr Fasulo asked about "redundancy". Mr Sipidias said that "misconduct doesn't entitle you to notice or redundancy". Mr Fasulo was therefore summarily dismissed, without notice.
• [10] Later, Mr Fasulo sent Mr Sipidias a text message which was provided in evidence, which asked that Mr Sipidias send Mr Fasulo a letter of termination stating "the reason" (presumably for the termination), requesting that "entitlements" including pay in lieu of notice (2 weeks) and outstanding annual leave be paid within 7 days and "to avoid further action 5 weeks redundancy pay". Mr Sipidias replied and said:

"Yes I will send you your termination letter when I get home. You getting paid you wages owing and your annual. You're not entitled to redundancy or leave notice for misconduct, yesterday was prime example. I've been paying you for 8 hours every day and you continue to leave at 2pm."

• [11] Mr Sipidias said in his evidence that he sent a letter confirming the termination of Mr Fasulo's employment to him on 18 December 2024 via email. A copy of an email apparently dated 18 December 2024 sent by Mr Sipidias to Mr Fasulo was provided in evidence as part of a forwarding chain. Mr Fasulo said he did not receive this email or letter on 18 December 2024. This was consistent with the fact, not disputed by Mr Sipidias, that Mr Fasulo again asked Mr Sipidias to provide him with a letter, not having received one, on 28 December 2024.
• [12] Mr Fasulo appeared to treat what Mr Sipidias told him on 18 December 2024, and confirmed in a text message, as the termination of his employment. He did not attempt to report for work following this date.
• [13] It is claimed by Mr Fasulo that his "official termination letter was provided ten days after I received a verbal dismissal", on 28 December 2024. I do not however understand this to be a claim that the termination of Mr Fasulo's employment did not take effect when it was communicated to him by Mr Sipidias on 18 December 2024. In his application, Mr Fasulo said the dismissal took effect on 18 December 2024.
• [14] I find that 18 December 2024 was the effective date of dismissal for the purposes of s.394(2)(a) of the Act.

• [15] Section 394 of the FW Act requires that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. A further period of time may be allowed, but only if the Commission is satisfied that there are "exceptional circumstances".
• [16] Mr Fasulo's unfair dismissal application should have been filed within 21 days of 18 December 2024, or before midnight, 8 January 2025. It was filed on 7 February 2025. It was filed 30 days late.
• [17] To determine whether "exceptional circumstances" exist warranting a further period for the application to be made (an "extension of time") the FW Act requires that I must give several factors consideration, evaluating and giving each of them due weight[1]. The factors are:

1. the reason for the delay; and 2. whether Mr Fasulo first became aware of the dismissal after it had taken effect; and

1. any action taken by Mr Fasulo to dispute the dismissal; and

1. prejudice to the employer (including prejudice caused by the delay); and 2. the merits of the application; and 3. fairness as between Mr Fasulo and other persons in a similar position.

• [18] The test of exceptional circumstances in relation to extensions of time to lodge applications under s 394(3) establishes a "high hurdle" for an application for an extension[2].

• [19] "The delay" is the period commencing immediately after the date upon which the application should have been filed, continuing until the date it was. In this matter, the delay is the 29 day period between 9 January 2025 and 7 February 2025.
• [20] This is the period of focus, although circumstances arising prior to that delay may often warrant consideration in assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period.
• [21] Mr Fasulo does not need to provide a reason for the entire period of the delay. The Commission will usually focus its enquiry on whether the reason is "adequate", or "credible" or "acceptable". The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances[3].
• [22] Mr Fasulo said the reasons for the delay was:
• [23] That APS Plumbing failed to issue any formal written or verbal warnings prior to his verbal dismissal.
  1. That APS Plumbing has two other active cases with the Fair Work Ombudsman (FWO) in relation to the dismissal of two of Mr Fasulo's colleagues.
• [24] That he contacted the FWO himself on 19 December 2024 and started an "active case". Mr Fasulo said he thought the FWO and the FWC were "under the one umbrella" and were communicating. He said he discovered this was not the case on 7 February 2025 when he was told so by the FWO and told to file an unfair dismissal application by FWO and a solicitor.
  1. That the official termination letter was provided ten days after Mr Fasulo was told verbally of his dismissal, and he was "awaiting clarification before proceeding with action".
  2. That APS Plumbing did not pay Mr Fasulo his full entitlements within seven days, thus leaving him with minimal funds over the Christmas/ New Year holiday period.
  3. That over the holiday period the Fair Work Commission was closed.
  4. That his attempt to access Legal Aid services and other legal services were also frustrated by unavailability.
• [25] I note at the outset that much of what Mr Fasulo has submitted relates to the period between the termination of his employment - 18 December 2024 - and early January 2025, and not to the "period of delay" which commenced on the day after the last date the application should have been filed - 9 January 2025 continuing until 7 February 2025. Mr Fasulo says little about the reason for the delay after 9 January 2025 and during the course of January and early February 2025.
• [26] I do not consider that the alleged failure to provide Mr Fasulo with written or verbal warnings prior to the dismissal provides an adequate reason for his delay in filing his application within the statutory time limit, nor do I see the relevance of any "active cases", if there are any, involving the FWO and any current or former employee of APS Plumbing.
• [27] It is conceivable that Mr Fasulo wanted to wait until he received the written termination letter, which he had requested provide a "reason" (for the decision to dismiss him) before going ahead to file an unfair dismissal claim. He received this letter on 28 December 2024. This may have provided a credible reason for a small part of the delay, at least up until this date, although it might be said (as it was by APS Plumbing) that he already knew the reason for his dismissal, having been told what it was on 18 December 2028. However, the period between 18 December 2024 and 28 December 2024 is prior to the commencement of the delay in any event - and prior to the "period of focus".
• [28] APS Plumbing provided in evidence material from the Commission's website indicating the Commission's office hours for the 2024-25 holiday period. Several things arise from this information. First, this shows the broad submission made by Mr Fasulo, that over the holiday period the Commission was "closed" was incorrect.
• [29] Secondly, and specifically, the Commission's office hours were only "closed" from 25 December 2024 to 3 January 2025 inclusive, but not otherwise closed. The Commission's helpline was closed from 25 December 2024 until 29 December 2024 after which time it was open.
• [30] Thirdly, the website makes clear that an application made through the Online Lodgement Service, which was how Mr Fasulo ultimately made his unfair dismissal claim, was open and available during the entire period, and that an application could be made "at any time over the holiday period".
• [31] Even if Mr Fasulo's assumed that the Commission might not be accessible over the period close to Christmas and New Year, as is the case with some organisations over this period, it does not explain the continuation of the delay during the rest of January and the first week of February 2025. In any event, generally, the Christmas period will not be considered to be an unforeseen or unexpected event of an "exceptional" kind constituting a credible reason for a delay in filing an application within the prescribed timeframe[4].
• [32] The claim made by Mr Fasulo - that the intervention of the Christmas and holiday period was a reason for the delay in the filing of this application - including the assertion that the Commission was closed, weighs heavily against him in circumstances where it is plain the Commission was open for most of the relevant time, and during the entire time, the online means by which Mr Fasuo eventually made his application was available to him.
• [33] It is well established that ignorance of the Commission's processes is not an exceptional circumstance[5]. Accordingly, if Mr Fasulo struggled to obtain legal advice during this period, this does not constitute an adequate explanation for the delay.
• [34] I did not properly understand Mr Fasulo's submission, that he thought there was some connection between the FWO and the Commission, and that this was a further reason for the delay in his filing the application. Perhaps Mr Fasulo thought that having contacted FWO on or about 19 December 2024, an unfair dismissal process would somehow be "activated" without him having to do anything, although this was not how he put it. In any event, Mr Fasulo's submission as to the connection he thought existed between FWO and the Commission appears to relate to the kind of ignorance of legal process which will not generally constitute an exceptional circumstance.
• [35] If there was an error in the payment made to Mr Fasulo prior to Christmas, leaving him financially struggling during this period, this was undoubtedly frustrating, but not an adequate reason for his delay in filing his application.
• [36] I find Mr Fasulo does not have a credible or acceptable reason for the delay of 29 days between the last day for him to file his application and the date he eventually did. This factor weighs against a finding of exceptional circumstances and the granting of an extension of time.

Whether Mr Fasulo first become aware of the dismissal after it had taken effect.

• [37] Mr Fasulo accepted that he was told about the cessation of his engagement with APS Plumbing on 18 December 2024. I did not understand him to be uncertain of whether the dismissal had occurred on this date - albeit he was hoping for clarification as to the reason through a letter, which he had requested. I find this factor weighs neither for nor against a finding that exceptional circumstances exist.

What action was taken by Mr Fasulo to dispute the dismissal?

• [38] In deciding whether to grant an extension of time in this matter I am required by the statute to take into account what if any action was taken to dispute the termination of employment.
• [39] Mr Fasulo did take steps to dispute his dismissal. These included:
  1. He immediately requested a letter providing him with the reason for the dismissal;
  2. He followed up on the letter when he didn't receive it;
  3. He contacted the Fair Work Commission on 6 January 2025, and was provided with contact details for Legal Aid and Job Watch;
  4. He attempted to call Legal Aid and Job Watch, albeit without success;
  5. He obtained a legal referral from the Law Institute of Victoria service to a solicitor for a free consultation. He obtained this referral on 7 February 2025 and spoke to a solicitor on that day.
• [40] Mr Fasulo's efforts during late December 2024 and early January 2025 to take steps to explore how to contest his dismissal, taken at a time of year when such efforts can be easily frustrated by unavailability, weigh slightly in favour of a finding of exceptional circumstances. Offsetting that weight is his failure to follow up on some of those efforts or make further efforts, or file his application, after the first week of January 2025 and throughout the rest of the period of delay.

What is the prejudice to the employer (including prejudice caused by the delay)?

• [41] APS Plumbing claims that it was prejudiced by the delay because if had been made within the statutory time frame, it would have been dealt with earlier in the year, during a less busy period that APS Plumbing is now experiencing. No other form of prejudice was raised with me. I do not consider this submission weighs heavily against a finding that exceptional circumstances exist here, or for it. It is a neutral factor.

• [42] A number of factual assertions have made by both parties and several of these are hotly contested. I do not consider I have heard sufficient evidence about the merits of this application to even undertake a preliminary assessment of them. I consider this factor to be neutral in my assessment of whether exceptional circumstances exist.

Fairness as between Mr Fasulo and other persons in a similar position

• [43] The consideration in s 394(3)(f) of the Act is concerned with "the importance of consistent principles in cases of this kind", thus ensuring fairness between persons in similar positions[6]. APS Plumbing submitted that the decision of the Commission in Smith v KJM Contractors Pty Ltd[7] involved a person in a similar position, in that the delay in that matter was nine days, said to have occurred in exceptional circumstances due to the intervention of Christmas, but found by the Commission not to be. As I have said above, this is the Commission's general approach to the question of whether the intervention of a holiday period is an exceptional circumstance. I have not been made aware of cases of a similar kind to that of Mr Fasulo where fairness might weigh in favour of a finding of exceptional circumstances. I consider this factor does not weigh in favour of a finding of exceptional circumstances in this matter, although not to a significant extent, given the paucity of submissions that were made to me on this issue.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

• [44] The only one of the factors I am required to consider that weigh in favour of an extension of time being granted to Mr Fasulo are his efforts, made to some extent, to contest the dismissal of his employment. Even this factor weighed only moderately in his favour. Otherwise, I have found Mr Fasulo does not have a satisfactory explanation for the delay, which weighs against him and other factors are of neutral weight. Fairness as between Mr Fasulo and other persons in a similar position also weighs, to a small extent, against a finding of exceptional circumstances.
• [45] This application was made outside the prescribed time limit, and, having evaluated each the matters identified in s 394(3) of the FW Act, I am not satisfied that there are exceptional circumstances justifying the allowance of an extension to the statutory time limit to be made in this matter.

• [46] I decline to grant an extension of time for the filing of the application.
• [47] The application is dismissed.

[1] Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 (Stogiannidis)

[2] Abu Murad v Command51 Services Pty Limited [2024] FWCFB 307 [26].

[4] Smith v KJM Contractors Pty Ltd [2010] FWA 555; Darren Hamilton v Metecno Pty Ltd T/A Bondor [2025] FWC 663

[5] Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 [13], [14].

[6] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 [41].

[7] [2010] FWA 555

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