s.394 - Application for unfair dismissal remedy

Vicinity Centres PM Pty Ltd ATF Vicinity Property Management Trust

Application for an unfair dismissal remedy - application made out of time - no exceptional circumstances - no extension granted - application dismissed.

[1] Taking into account the factors in s 394(3) of the Fair Work Act 2009 (Cth), I am not satisfied that there are exceptional circumstances so that I can allow Mr Raffaelle Fiume further time to lodge his application for an unfair dismissal remedy. Mr Fiume was dismissed by Vicinity Centres PM Pty Ltd ATF Vicinity Property Management Trust on 18 December 2025. He made his application on 20 January 2026, which was 33 days after his dismissal took effect and 12 days after the end of the time limit in s 394(2)(a).

[2] I consider that most of the factors in this matter are neutral (that is, they neither weigh in favour nor against a finding of exceptional circumstances). In relation to fairness as between the person and other persons in a similar position, I am unaware of any matters with relevant and sufficiently similar facts and nor did the parties make submissions drawing such matters to my attention. Mr Fiume was aware of his dismissal when it took effect as he says he was informed of the dismissal on 18 December 2025. The period of the delay was 12 days; no more than the usual prejudice to the employer of having to respond to an application for an unfair dismissal remedy arises from that delay. I do not have evidence of, and nor is it such a long delay that, relevant information and witnesses would not be available for Vicinity to respond to the matter.

[3] It is not appropriate at this early stage and with only the limited material available to me to make a detailed consideration of the merits of the application (see Dollar v RG Group Holdings Pty Ltd [2025] FWCFB 122 at [38]). My assessment is that Mr Fiume's application is not entirely without prospects. There appears to be a factual dispute between the parties. Mr Fiume argues that his dismissal was disproportionate to Vicinity's reason for dismissing him. He also argues that there were mitigating factors that the employer did not take into account, including his years of service, lack of prior conduct or performance concerns and that he says he was provoked into the conduct that led to his dismissal.

[4] Two factors weigh against a finding of exceptional circumstances. First, Mr Fiume took no steps to dispute his dismissal. He says that at the time of his dismissal, he was so shocked that he simply did what he was asked. But at no later time did he challenge the dismissal until he filed this application. Second, Mr Fiume has not provided an acceptable reason for the delay. Mr Fiume says that he was in shock and unable to sleep. Mr Fiume did not provide any evidence to explain how his shock and lack of sleep affected his capacity to make an application for the 12 days after his time limit had expired. Mr Fiume also says that he was unaware of the time limit, as he has never previously had to make such an application. There is nothing unusual or out of the ordinary about not knowing about the relevant time limit; that information is simple enough to find.

[5] As I am of the view that none of the factors weigh in favour of a finding of exceptional circumstances, I cannot extend time within the Act.

[6] I order that Mr Raffaele Fiume's application for an unfair dismissal remedy under FWC Matter No U2026/846 be dismissed.

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