s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - jurisdictional objection - out of time - application dismissed.

• [1] On 17 February 2025, Mr Gianluca Tottoroto made an application to the Commission for an unfair dismissal remedy. He contends that he was dismissed by Michael Hill Jeweller (Australia) Pty Ltd (the Respondent) on 24 January 2025. Mr Tottoroto was employed as a Visual Merchandising Specialist for the Respondent on a permanent, full-time basis.

• [2] The Respondent has raised two jurisdictional objections. First, that the application was lodged out of time, and second that the dismissal was a case of genuine redundancy.

• [3] Section 394(2) of the Fair Work Act 2009 (Cth) states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to section 394(3). As the Applicant lodged his application on 17 February 2025, and the date of the dismissal was 24 January 2025, he was three (3) days out of time.

• [4] For the application to proceed, Mr Tottoroto requires the Commission to grant a further period of time within which to bring his application. The Commission has discretion to provide Mr Tottoroto with an extension of time if satisfied that exceptional circumstances exist.

• [5] I issued directions on 25 March 2025 for the parties to file their material regarding the extension of time. Both parties complied with the directions. On 9 April 2025, I sought their views on whether the matter could be dealt with on the papers. On 11 April 2025, the parties provided their respective consent for the matter to be determined on the papers without the need to hold a hearing, noting neither party sought to cross examine the other with respect to their statements of evidence. As such the scheduled hearing date was vacated.

• [6] For the reasons outlined below, I have decided to not accept Mr Tottoroto's request for an extension and dismiss his application.

• [7] A further period may be allowed for an unfair dismissal application, per s 394(3) of the Act, if I am satisfied there are exceptional circumstances, taking into account:

(b) whether Mr Tottoroto first became aware of the dismissal after it had taken effect;

(c) any action taken by Mr Tottoroto to dispute the dismissal;

(d) prejudice to Michael Hill Jeweller (Australia) Pty Ltd (including prejudice caused by the delay);

(f) fairness as between Mr Tottoroto and other persons in a similar position.

• [8] Each of these matters must be considered in assessing whether there are exceptional circumstances.

• [9] Mr Tottoroto submits that as his first language is Italian, he experienced difficulties accessing complex legal information, including developing an unfair dismissal application.

• [10] It is contended that during the first meeting that was held to discuss the risk of redundancy on 22 January 2025, a possible dismissal date of 27 January 2025 was discussed. The possible dismissal date also happened to fall on a public holiday (Australia Day - Public Holiday). Mr Tottoroto submits that he was confused regarding the possible dismissal date, and had it been 27 January, the application would have been submitted within the 21-day timeframe.

• [11] Mr Tottoroto submits that there was a short period of time between his being given notice of a possible redundancy (22 January 2025) to the date of dismissal (24 January 2025) and this limited the amount of time he had to process the information to develop a response. This he says, is particularly relevant due to the stress placed on him by the decision to terminate the employment.

• [12] It is further submitted that Mr Tottoroto delayed submitting his application because he was awaiting the outcome of a job application he had made with a new employer. Mr Tottoroto submits that he was awaiting this decision before lodging this Application as it directly impacted the compensation and remedy sought. Mr Tottoroto submits he was advised on Monday, 17th February 2025, that he had been unsuccessful and lodged this application that same day.

• [13] Mr Tottoroto further submits that during the two meetings held to discuss his dismissal, Ms Stefania Mosti, Head of Marketing for Bevilles, had made the comment:

"Leave a good memory here. Live good. One day, somebody's gonna call Oliver, me, or whoever for some references, and somebody will be very happy to give good references, you know, in that case. Leaving something burned behind you won't give justice to you and won't serve you at all."

• [14] Mr Tottoroto says these comments made him feel pressured to be compliant and not exercise his legal rights.

• [15] Much of the material filed by Mr Tottoroto focuses on the question of whether his dismissal was a genuine redundancy. Whilst I acknowledge the significance of this material to Mr Tottoroto, much of it is not traversed in this decision. However, the parties can be assured that all material filed has been read and afforded appropriate weight in my considerations, particularly as they relate to the merits of the application as required by s.394 (3)(e).

• [16] In short summary, Mr Tottoroto submits that the Respondent had not established that a genuine redundancy occurred as a result of operational requirements. Instead, the redundancy was a result of his job being given to other employees.

• [17] In the alternative, that it was due to operational requirements, Mr Tottoroto believes the consultation process was flawed as he could have been redeployed to the advertised positions of Store Manager, Assistant Store Manager or Sales Professional within the employer's enterprise or associated entity.

• [18] Further to this, Mr Tottoroto submitted that the application was filed shortly after the deadline (3 days), and that an extension of time would not impose unnecessary costs, time, and disruption on the Respondent.

• [19] Mr Tottoroto submits that the various reasons outlined above, when weighed together, constitute exceptional circumstances and it would therefore be reasonable for the Commission to accept his request for an extension of time.

• [20] The Respondent submits that Mr Tottoroto was formally notified of the termination of his employment on 24 January 2025, effective from that day. This, they say, was clearly stated in the outcome letter and was reiterated in follow-up communication between the parties.

• [21] The Respondent submits that Mr Tottoroto did not raise any concerns or confusion regarding the date of dismissal. Further they do not accept that 27 January 2025 was ever communicated as a possible dismissal date.

• [22] The Respondent submits that Mr Tottoroto's submissions regarding the impact of English being his second language should not be afforded significant weight as Mr Tottoroto has been working in professional, English-speaking environments for over 20 years. It is further noted that Mr Tottoroto had not raised any language barrier concerns at any stage during his employment with the Respondent. It is also noted that Mr Tottoroto indicated on his Form F2 that he did not require an interpreter and that his post-dismissal email correspondence was articulate and fluent.

• [23] The Respondent submits that Mr Tottoroto's submission in this regard are no more than an admission that he deliberately postponed filing his application while awaiting the outcome of another job opportunity. The Respondent submitted that this was a strategic and voluntary choice, and not a circumstance beyond his control. The Respondent submits that the statutory timeframe for filing an unfair dismissal application is strict and that the Applicant's choice to wait for an external event before lodging a claim does not constitute exceptional circumstances under the Act.

• [24] It is submitted that Mr Tottoroto's reference to a general comment made by their manager regarding references and reputation could not reasonably be construed as a threat. The Respondent further submits that Mr Tottoroto was not deterred from applying for, or securing, new employment. Moreover, it is noted that Mr Tottoroto did not raise any such concerns in their post-dismissal email or in a follow-up meeting with the Chief People Officer.

• [25] The Respondent submits that the granting of an extension would cause tangible prejudice and administrative burden to the Respondent, including, additional time and cost to gather documents and internal communications related to the dismissal; difficulty accurately recalling discussions and events retrospectively; the need to locate and prepare witnesses who were not anticipating involvement in proceedings and, broader disruption to HR operations and current business priorities.

• [26] The Respondent maintains that the dismissal was a genuine redundancy due to operational changes and the strategic integration of the Medley brand into Beville which resulted in the role no longer being required. Further, a consultation process was initiated on 22 January 2025, during which Mr Tottoroto was invited to provide feedback but did not do so. Suitable redeployment opportunities were considered by the Talent Acquisition team, who reviewed Mr Tottoroto's resume and confirmed there were no like-for-like or other suitable roles available. Further, during this process, Mr Tottoroto did not raise any complaint about procedural fairness, the decision, or any comments made by their manager.

• [27] The Respondent submits that Mr Tottoroto was treated consistently with others impacted by the restructure, and no procedural irregularities were identified. It is submitted that Mr Tottoroto has not demonstrated exceptional circumstances as required by s394(3) of the Act.

• [28] The Act does not specify what reasons might justify granting an extension, however previous decisions of the Commission have referred to an "acceptable" or "reasonable explanation" of the delay. The absence of an explanation for any part of the delay will usually weigh against an applicant when assessing whether there are exceptional circumstances, whereas a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered.[1]

• [29] Mr Tottoroto submits a range of factors caused the delay in lodging his application. Firstly, he suggests that English being his second language meant that he had difficulty accessing information and preparing his application. Viewed objectively, I have not been convinced this was the case. Mr Tottoroto, by his own admission, only decided to lodge his application on the day he was advised he had not been successful in securing alternate employment. This means that either the application was ready to be filed, prior to the 17th January and simply delayed, or that Mr Tottoroto completed the application form that same day. Viewed objectively, if it was that Mr Tottoroto was able to prepare and lodge his Application that same day, this would tend to indicate that he did not have any difficulty in comprehending the form.

• [30] It is also of note that the Fair Work Commission's website provides links to language services, via Google Chrome, Microsoft Edge and Safari. As noted by the Respondent, all applicants are also offered the services of a translator if requested - these services were available to Mr Tottoroto.

• [31] Secondly, Mr Tottoroto suggests that there was confusion regarding the date of dismissal. Again, I do not accept this argument. The outcome letter provided to Mr Tottoroto was dated 24 January 2025 and clearly indicated that his position was Redundant, effective immediately. In light of this, I do not accept Mr Tottoroto's contention that he believed the dismissal took effect on 27 January 2025.

• [32] Thirdly, Mr Tottoroto suggests that the delay was due to him awaiting the outcome of the job he had applied for. Whilst it may well be the case that he chose to wait for the outcome before deciding whether to lodge his application, I accept the Respondent's contention that this was a choice, rather than a factor outside of his control.

• [33] Finally, while I acknowledge Mr Tottoroto may have decided to delay lodging his application due to fear that the Respondent may not have provided him with a favourable reference, I have seen no evidence of any adverse action being taken. It is also of note, that most employees who have been dismissed will commence applying for new roles at some stage during the 21-day period, as such, I accept the Respondent's submission that this was a strategic and voluntary choice, and not a circumstance beyond Mr Tottoroto's control.

• [34] With respect to Mr Totorotto's references to being stressed, whilst I acknowledge that his situation would have been stressful, I have not seen any evidence to suggest that he was incapacitated to the extent that he was unable to file his application within the required timeframe. Rather, the fact that he was capable of applying for an alternate position during this same period of time confirms he was capable of filing this application on time.

• [35] Having considered the submissions of the parties, I consider that there was no acceptable reason for the delay. This consideration weighs against an extension of time in this case.

Whether the person first became aware of the dismissal after it had taken effect

• [36] As discussed above, Mr Tottoroto was formally notified that his employment would end on 24 January 2025, and the dismissal took immediate effect on the same date. As such, Mr Tottoroto was aware of his dismissal from 24 January 2025 and therefore had the full 21 days available to him to lodge his application. This consideration weighs against an extension of time in this case.

• [37] Mr Tottoroto notes in his statement that during the meeting on 22 January 2025, he was advised that the reason for a possible redundancy was due to a restructure of the Bevilles Marketing team. I note Mr Tottoroto's submission that during the meeting he asked about opportunities for redeployment and was told that there were none. I have also had regard to the Respondent's submissions that between the 22nd and 24th January 2024 other options were considered, however none were found to be suitable.

• [38] I note the Respondent's submissions that Mr Tottoroto did not raise any complaint about procedural fairness, the decision to make him redundant, or any comments made by their manager at either meeting, in his post-dismissal email or during the follow-up meeting with the Chief People Officer.

• [39] Whilst the efforts of the Respondent to explore alternative redeployment options for Mr Tottoroto may be instructive when considering the question of whether the dismissal was a case of genuine redundancy, I do not consider them relevant to this consideration, which I have treated as neutral.

• [40] Mr Tottoroto submits the application was only 3 days late, and as such, an extension of time would not impose unnecessary costs, time, and disruption on the Respondent. Conversely, the Respondent submits that the granting of an extension would cause tangible prejudice and administrative burden to them.

• [41] Prejudice to the employer means unfair disadvantage to the employer that was caused by the delay in filing the application 'to a general presumption of prejudice.' A long delay gives rise 'to a general presumption of prejudice'.[2]

• [42] On balance, whilst I appreciate the Respondent's position, I have not been convinced that a delay of 3 days demonstrates any unfair disadvantage to the employer, noting further processes, such as their second jurisdictional objection, would still have been required had the application been filed 3 days earlier. I therefore find this to be a neutral consideration.

• [43] As noted, the Respondent has also raised a second jurisdictional objection on the grounds that they believe that Mr Tottoroto's dismissal was in fact a genuine redundancy. If an extension of time were to be granted, this question would need to be resolved before the application could proceed to determining its merits.

• [44] Much of the material filed by Mr Tottoroto relates to what would be the second Jurisdictional objection. Whilst Mr Tottoroto has provided submissions relating to the "fairness" or otherwise of the decision to make his position redundant; shortcomings with the consultation process; and the Respondent's failure to redeploy him to another role, determining whether the dismissal was a genuine redundancy would necessarily require a broader examination of the business grounds and operational requirements relied upon by the Respondent when making the decision to make the position redundant.

• [45] Noting the limited and untested evidence filed in this matter, I accept that it may well be that Mr Tottoroto has an arguable case that the consultation process was flawed, or that there were alternative options for redeployment however equally, the Respondent may be able to demonstrate genuine business grounds for the redundancy. They may also be able to demonstrate that none of the available positions were suitable for Mr Tottoroto's redeployment. In any case, without having received further submissions and evidence in relation to these key elements, there is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits to be a neutral consideration in this case.

Fairness as between the person and other persons in similar position

• [46] This consideration concerns consistency with other relevant cases to ensure fairness between the Applicant and other persons. However, cases of this kind will generally turn on their own facts. I am not aware of any other cases that invoke this consideration, and I have treated this to be a neutral consideration in this case.

• [47] In summary, none of the considerations I need to take into account weigh in favour of granting an additional period of time, and I am not satisfied that there are exceptional circumstances in this case.

• [48] As there are no exceptional circumstances, no additional time can be allowed for Mr Tottoroto to make his application. This means that Mr Tottoroto is not entitled to apply for an unfair dismissal remedy.

• [49] The application is dismissed. An order to that effect will be issued separately.

[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[2] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556 (McHugh J).

Printed by authority of the Commonwealth Government Printer