Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Application made out of time under section 394(3)

• [1] Before considering whether a dismissal is unfair the Fair Work Commission must first be satisfied that an application was made within time or allow a further period of time under section 394(3) of the Fair Work Act 2009 (Cth).

• [2] On 19 May 2025, Mr Rosario Gioco applied to the Commission for an unfair dismissal remedy under section 394 of the Act.

• [3] Mr Gioco says that he was dismissed by Elite 1 Group Pty Ltd (ABN: 73 639 097 475) on 14 April 2025. So, the statutory time period of 21 days ended at midnight on Monday 4 May 2025.

• [4] The application filed on 19 May 2025 was therefore filed 14 days after the end of the statutory time period. 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.

• [5] 'Exceptional circumstances' are not defined in the Act, but the case law as summarised in Nulty v Blue Star Group Pty Ltd[1] establishes the following:

• the Commission must consider all the circumstances;
  • the phrase's ordinary meaning means 'out of the ordinary', or 'unusual', or 'special', or 'uncommon';
  • but 'exceptional circumstances' does not require that circumstances are unique, nor unprecedented, nor even 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.

• • whether there are exceptional circumstances requires a consideration of all the relevant matters, assigning appropriate weight to each.[2]

• [6] Mr Gioco filed submissions and documents in accordance with my directions.

• [7] I held a determinative conference on Wednesday 25 June 2025. I've taken into account the written submissions and the documents, as well as what Mr Gicoo has said to me today during the determinative conference.

• [8] Elite1 Group Pty Ltd has not participated in this matter at all. They failed to file a Form F3 employer response. On 12 June 2025, my associate made contact with Mr Damien Cassidy, Director of the Respondent via telephone. Mr Cassidy confirmed that he had received the Notice of Listing and the Directions to file a Form F3 Response. This conversation was confirmed in writing via email from my chambers to both parties on the same day. The email reiterated that Elite1 Group was required to file a response and informed Mr Cassidy of the consequences for failing to comply with directions. Elite1 Group and Mr Cassidy failed to reply to any correspondence from the Commission. They failed to otherwise engage with this application. They have been fully informed of the hearing and given the opportunity to participate. The consequences for a respondent failing to participate is that this matter will be decided without their contribution.

• [9] Having considered all the oral and written submissions and evidence, I am not satisfied that there are exceptional circumstances to allow a further period for the application to be made. The application is dismissed. My reasons follow.

• [10] I have found that no factor weighs in favour of exceptional circumstances.

• [11] I am of the view that the following factors weigh against a finding of exceptional circumstances.
  • First, that the reasons for the delay are not acceptable reasons;
  • Second, that Mr Gioco did not take any action to dispute the dismissal; and
  • Third, that Mr Gioco became aware of his dismissal when it took effect

• [12] Mr Gioco says that the reason for the delay include that he was engaging with the Fair Work Ombudsman about his termination payments and after he was advised on 19 May 2025 by the Fair Work Ombudsman that his enquiry was completed, he made this application to the Commission.

• [13] Mr Gioco also indicated that he was confused about the different roles of the Ombudsman and the Commission, which is understandable and common. However, I do not consider this an acceptable reason for the delay. The enquiry Mr Gioco made with the Ombudsman was about failure to pay him unpaid wages, payment in lieu of notice, redundancy payment and his annual leave entitlements that are due on termination of employment.

• [14] Mr Gioco also says that he was shocked and confused by the sudden termination of his employment. I accept that Mr Gioco was shocked and confused, and I understand why.

• [15] Mr Gioco says he did not know he was required to make an application within a certain period as he was liaising with the Fair Work Ombudsman.

• [16] Past cases are clear that ignorance of the time limit is an acceptable reason for the delay. The Full Bench in Nulty v Blue Star Group Pty Ltd[3] said:

Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of "exceptional circumstances". In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance

• [17] Shock and confusion following termination is an understandable but sadly usual outcome. I have no medical evidence before me about how the shock and confusion affected Mr Gioco's capacity to make an application.[4]

• [18] Mr Gioco first became aware of his dismissal on 14 April 2025 (on the date that it took effect). He and all his colleagues had a face-to-face meeting with Mr Damien Cassidy, Director of the employer, who informed all staff that their employment would end due to the employer being unable to pay its debts and that the employer had not money to pay wages, notice or annual leave payments.

• [19] A search via ASIC of the employer's name shows that from around August 2024, an external administrator had been appointed and Elite 1 Group was undergoing external control and restructure, but that process appears to have stopped and started multiple times. Elite 1 Group does not otherwise appear to be in liquidation or administration. It seems clear however that Elite 1 Group has not paid its debts and is unable to pay its debts. Nor has Elite 1 Group properly entered into liquidation or administration to enable employees to obtain their entitlements through the Fair Entitlements Guarantee Scheme.

• [20] Elite 1 Group actions in failing to properly enter insolvency and its failure to participate in this proceeding are entirely unsatisfactory.

• [21] Mr Gioco has not, prior to the filing of this application, taken any action taken to dispute the dismissal. He did send a letter of demand in relation to his unpaid wages, notice payment, redundancy payment and payment of annual leave entitlements on termination of employment. That letter does not reference that Mr Gioco disputes the dismissal itself; that is, he has not put the employer on notice that he contests the termination of his employment.

• [22] I am of the view that the following factors neither weigh in favour nor against exceptional circumstances:
  • prejudice to the employer
  • the merits of the application and
  • fairness as between the person and other persons in a similar position

• [23] The delay of 14 days is neither a short nor a long period of time (taking into account the period of the time limit being 21 days). I find that there was no prejudice to the employer. Elite 1 Group did not make submissions about prejudice because it has not participated in this matter.

• [24] In relation to the merits of the application, what Mr Gioco seeks is payment of his wages and entitlements. He is not seeking an unfair dismissal remedy. It is entirely unsatisfactory that the employer has failed to pay its employees their wages and entitlements. An unfair dismissal remedy is not, however, the avenue for recovering those payments. Nevertheless, Mr Gioco has an arguable case. Based on the applicant's information, the employer failed to follow any procedure in relation to dismissing the applicant and his fellow employees. This is entirely unsatisfactory.

• [25] In relation to fairness as between the person and other persons in a similar position, no relevant cases were drawn to my attention.

• [26] I have considered Mr Gioco's arguments and the information and documents he provided. I am of the view that there are no exceptional circumstances in this matter, so I cannot extend time for the filing of Mr Gioco's unfair dismissal application under the Act.

• [27] I order that Mr Rosario Gioco's application for an unfair dismissal remedy under FWC Matter No U2025/8671 made on 19 May 2025 is dismissed.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]

[2] Stogiannidis, Periklis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901 at [39]

[3] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14]

[4] See Mamo v ICLED Australia Pty Limited T/A Signs National Group [2021] FWC 3903 per Easton DP at [24] - [25]

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