Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Application made out of time - No exceptional circumstances - Application dismissed

• [1] Mr Domenic Corso (the applicant) applied for an unfair dismissal remedy under section under section 394 of the Fair Work Act 2009 (Cth) on 23 August 2025. Mr Corso was employed by the Trustee for Stoke Furniture Unit Trust (the respondent/employer) as National Furniture Sales and Marketing Manager. He was employed from 3 July 2023. At the end of June 2025, he had a meeting with Mr Michael Morton, the employer's Managing Director. At this meeting, he was told that his employment would end by way of redundancy.

• [2] It is not clear in this matter when the dismissal took effect. Mr Corso thought his dismissal took effect when he was first told on 26 June 2025. This is plainly incorrect. During the meeting, his notice period was discussed, and he continued to work after the date of the meeting.

• [3] On 4 July 2025, Mr Corso returned his laptop and other company equipment. On 17 July 2025, the employer made a payment to Mr Corso that included his termination payments and noted on his final payslip that his employment ended on 11 July 2025. On 18 July 2025, the employer emailed Mr Corso a termination letter which was dated 27 June 2025. The letter said that Mr Corso's last day of employment was 11 July 2025.

• [4] The employer submits that 11 July 2025 was the date that the dismissal took effect.

• [5] Section 117 of the Act provides the day of termination cannot be before the day that notice is given, termination is a fact and an employer's failure to comply with the legislation does not invalidate the fact of termination nor change the date that termination occurred: see Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 at [32]. Mr Corso was aware that his employment was ending and the reasons for it (although he disagreed with those reasons). He had discussed his notice period (which the parties mistakenly thought to be 2 weeks) and had ceased to work and returned company equipment prior to the date he received the termination letter.

• [6] I find that 11 July 2025 was the date that the dismissal took effect. This was the date referred to in the employer's termination letter, and to which the employer calculated Mr Corso's termination entitlements. It was also a period of 2 weeks from the meeting where he was informed of his redundancy.

• [7] Taking 11 July 2025 as the date the dismissal took effect, Mr Corso's application was 43 days after his dismissal took effect and 22 days out of time. Mr Corso's requires an extension of time in order for his application for an unfair dismissal remedy to have been validly made.

• [8] I held a determinative conference on 25 September 2025. The parties made oral and written submissions. I heard evidence from Mr Corso on his own behalf, and Mr Morton for the employer.

• [9] Having considered the submissions and evidence, I am not satisfied that there are exceptional circumstances to allow a further period for the application to be made. For completeness, if the date that the dismissal took effect was 18 July 2025 (the date of the termination letter), Mr Corso's application would have been out of time and my findings about exceptional circumstances would not have changed. The application is dismissed. My reasons follow.

• [10] Before considering whether a dismissal is unfair the Commission must first be satisfied that an application was made within 21 days after a dismissal takes effect or allow a further period of time under section 394 of the Fair Work Act 2009 (Cth). The power to extend time is discretionary but in order to extend time, I must be satisfied that there are exceptional circumstances, having regard to the factors in section 394(3) of the Act. Those factors are:

• the reason for the delay,
• whether the applicant first became aware the dismissal after it took effect
• any action taken by the person to dispute the dismissal
• any prejudice that might be caused to the employer including prejudice caused by the delay
• the merits of the application and
• fairness as between the applicant and other persons in a similar position.

• [11] Exceptional circumstances are not defined in the Act, but the case law as summarised in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13] establishes the following:

• the Commission must consider all of the circumstances;
• the phrase's ordinary meaning means out of the ordinary, or unusual, or special, or uncommon;
• but the phrase does not require circumstances to be unique, nor unprecedented, nor even very rare;
• a single event can be exceptional;
• a combination of factors or events which, individually are not exceptional, but viewed together could be viewed as out of the ordinary, unusual, special, or uncommon.

• [12] Whether there are exceptional circumstances requires a consideration of all the relevant matters, assigning appropriate weight to each: see Stogiannidis, Periklis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901 at [39].

The delay that I am required to consider is the period between the end of the time limit and when the application is filed, although circumstances prior to the end of the time limit are relevant where they cast a light on the reasons for the delay (see Jordan v Multiplex Australasia Pty Ltd [2024] FWCFB 440 at [32]). The Full Bench in Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31] said that an applicant needs to provide a credible reason for the whole of the period that the application was delayed. The absence of an explanation for any part of the delay may weigh against a finding of exceptional circumstances; a credible explanation for the entirety of the period of the delay will usually weigh in favour: see Stogiannidis at [39].

• [13] Mr Corso says that the reason for the delay was a combination of matters: the shock of the dismissal, a decline in his mental health following the dismissal, the effect upon him of the dismissal due to his age and the delay and inaccuracy of his final payments.

• [14] Mr Corso says that he was shocked by the dismissal, he felt lost and incompetent, and a deep sense of grief. He says that he experienced a significant decline in his mental health and collapsed - he was alone and overwhelmed by fear. He was daunted by the prospect of finding future employment due to his age. His feelings were compounded by his health - he has a history of mental health issues and he had to increase his blood pressure medication. Mr Corso says that he struggled to focus or do such tasks as lodge a claim. He says it took him approximately 2-3 weeks of medication, and that it was only after his wife and good friend returned from overseas and checked in on him that he was able to lodge a claim. Mr Corso provided a brief letter from his doctor that said he has been attending the medical clinic since approximately 2023 because of anxiety and adjustment disorder that affected his mental capacity. He provided a photograph of the medication that he was taking for his anxiety. Mr Corso also provided a witness statement from his friend, who attested to how he was struggling with his mental health and appeared overwhelmed.

• [15] Deputy President Easton summarised the principles in extension of time matters relating to medical illness reasons in Blanco v White Bathroom [2021] FWC 4694 at [51] as follows:

(i) stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves (per Shaw);

(ii) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the Applicant's capacity to lodge the application within the statutory time limit (per Roberts, Beard and Underwood);

(iii) the evidence should positively demonstrate that the Applicant's depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame (per Beard, Underwood and Merhi); and

(iv) an applicant's self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).

• [16] There is, unfortunately, nothing unique or unusual about feeling shocked, distressed or stressed by a dismissal. I did not receive any cogent or probative evidence of how this impacted Mr Corso's ability to make a timely application, or explain the entirety of the delay of 22 days. Mr Corso says he collapsed; this was upon receiving the letter about his redundancy, which occurred on 18 July 2025. It is not clear to me what Mr Corso meant by his collapse; on my questioning Mr Corso said that it did not lead to a hospital stay. The 2-3 weeks that he required to regain "clarity and emotional stability" were within the statutory time period, but he delayed a further 22 days.

• [17] I accept that Mr Corso's mental health and blood pressure were affected by his dismissal. Loss of employment is serious and can be difficult to accept. I accept that the impact upon Mr Corso would have been magnified due to his age. Mr Corso made generalised submissions but did not provide probative evidence of how these matters affected his ability and capacity to make the relatively simple unfair dismissal application within time. His doctor's letter indicates that his mental capacity has been affected by his anxiety and adjustment disorder since 2023; it does not provide any information about how Mr Corso's capacity may have been affected after his dismissal and during the period of delay, so as to explain the delay.

• [18] The people whom Mr Corso relied upon for support - his wife and good friend - were overseas at the time of his dismissal. His wife returned in early July. His good friend returned in early August and assisted him to make representations about the inaccuracy of his final pay. That occurred on 17 August 2025. Mr Corso says he did not want to initiate an unfair dismissal application while there were financial matters to be resolved. The employer rectified the underpayment on 19 August 2025. There was then a further delay - of 4 days - before the application was filed. The 4-day delay is not explained.

• [19] Taking each of the reasons individually and also considering them together, I am not satisfied that Mr Corso has provided credible reasons for the 22-day delay in filing his application. As such, I am of the view that this factor weighs against a finding of exceptional circumstances.

394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

• [20] Mr Corso first became aware of his dismissal on 26 June 2025 when he had a discussion with Mr Michael Morton, Managing Director for the employer. As discussed above, there is some confusion about the end date, but Mr Corso returned his laptop and other work equipment on 4 July 2025, and did not work after that date. I find that Mr Corso was aware of the dismissal prior to the date that it took effect. This factor does not weigh in favour nor against a finding of exceptional circumstances.

394(3)(c) - any action taken by the person to dispute the dismissal

• [21] It does not appear that Mr Corso took any action to dispute his dismissal. There is evidence of his exchanges with the employer about payments due on termination, including his notice and redundancy payments. But in none of this correspondence does Mr Corso challenge the fairness of the dismissal itself. He may have done so in verbal discussions with Mr Morton around the time of his dismissal; Mr Corso's recollection about this is poor and Mr Morton's evidence is that he had discussions with Mr Corso about payments and taking time off to look for alternative employment.

• [22] This factor is about the employer being put on notice that an employee actively contests the dismissal: see Nicolas JR v Nortask Pty Ltd [2014] FWC 5324 at [67]. I am not satisfied that Mr Corso took action to dispute his dismissal. This factor does not weigh in favour of a finding of exceptional circumstances.

394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

The respondent's submissions about this factor amount to no more than the usual prejudice that would arise from responding to an application. Mr Corso submitted that there would be no material disadvantage to the employer as the events surrounding the dismissal are recent and the employer would still have access to relevant records in order to be able to respond to the application. I accept Mr Corso's submission. But a finding that there is no prejudice does not weigh in favour of a finding of exceptional circumstances. I consider this factor to be neutral.

In relation to the merits of the application, Mr Corso and Mr Lucente on his behalf made impassioned submissions about the lack of genuineness of the redundancy. In particular, Mr Corso was of the view that the actual business activities did not justify a decision to close down the division in which he worked (dining furniture), pointing particularly to his own performance in securing a significant contract and revenue for the employer. Mr Corso says that his role is still required, as his duties were not eliminated but absorbed into other jobs. Mr Corso also said that the employer did not afford him procedural fairness, consult with him or explore reasonable alternatives to redundancy. Last, Mr Corso says that when the employer met with him, the decision was predetermined.

• [23] The employer disputes that Mr Corso obtained a contract that brought in significant revenue. They said that the reasons for dismissing Mr Corso was that the business made a decision to restructure, due to financial pressures and ongoing low sales. The employer said that the reasons for dismissing Mr Corso did not include his performance or his conduct. They say that there was no obligation to consult as Mr Corso's employment was not covered by an award or under an enterprise agreement. Last, they say there are other people affected by the business restructure - casual employees have not been offered shifts, there is a freeze on hiring and when employees have left, they are not being replaced.

• [24] In this matter, there are disputed facts. A relevant question of law (being whether there was an obligation to consult) would also need to be determined. I have not heard, nor were the parties required to make or give, full argument and evidence on the contested issues. The Full Bench in Dollar v RG Group Holdings Pty Ltd [2025] FWCFB 122 at [38] said:

It is well established that the Commission should not embark upon a detailed consideration of the merits of the substantive case in determining whether to grant an extension of time.

• [25] I am of the view that Mr Corso has an arguable case that is not entirely devoid of merit. Equally, the employer has an arguable defence. As such, this factor neither weighs in favour nor against a finding of exceptional circumstances.

394(3)(f) - fairness as between the person and other persons in a similar position

• [26] This factor relates to ensuring the application of consistent principles and may relate to matters currently before the Commission or matters previously decided by the Commission: see Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [41]. The Full Bench in Croker v Erndit Logistics Pty Ltd [2023] FWCFB 224 at [49] indicated that this factor may involve a comparison of cases involving similar facts.

• [27] Neither party made submissions relevant to this factor. Mr Corso particularly referred to the uniqueness of his situation due to a combination of matters that I deal with further below.

• [28] As I am unaware of any matters with relevant and sufficiently similar facts, I consider this factor to neither weigh in favour nor against a finding of exceptional circumstances.

• [29] Weighing each of the factors individually and together, I am not satisfied that there are exceptional circumstances such as to allow me to exercise a discretion to extend time. This is because most factors did not weigh in favour nor against a finding of exceptional circumstances, but Mr Corso has not provided acceptable or credible reasons for the entirety of the period of the delay, and this weighs against a finding of exceptional circumstances.

• [30] I order that Mr Domenic Corso's application for an unfair dismissal remedy under FWC Matter number U2025/13713 lodged on 23 August 2025 is dismissed.

Mr R Scougall, of Gilchrist Connell, with permission, on behalf of the Respondent.

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