s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy; application filed out of time; no exceptional circumstances; application dismissed

• [1] Mr Troy Carnovale has made an application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging he was unfairly dismissed by Maas Administration Pty Ltd (Maas). Mr Carnovale's employment with Maas was terminated effective on 24 September 2025. His application was filed in the Commission on 20 October 2025. Maas objects to the application on the basis it says it was filed out of time.
• [2] Section 394 of the 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". 
• [3] Mr Carnovale's unfair dismissal application should have been filed within 21 days of 24 September 2025, or before midnight, 15 October 2025. It was filed on 20 October 2025 and is 5 days late.
• [4] To determine whether "exceptional circumstances" exist warranting a further period for the application to be made (an "extension of time") the 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 Carnovale first became aware of the dismissal after it had taken effect; and
  3. any action taken by Mr Carnovale to dispute the dismissal; and
  4. prejudice to Maas (including prejudice caused by the delay); and  
  5. the merits of the application; and  
  6. fairness as between Mr Carnovale and other persons in a similar position.
• [5] A Full Bench of the Commission recently said:

"The process of decision-making under s.394(3) has two distinct elements, both discretionary in nature. Firstly, the Commission must determine whether a state of satisfaction can be reached as to the existence of exceptional circumstances, taking into account the matters specified in paragraphs - (f) of the subsection. Secondly, if the Commission is satisfied as to the existence of exceptional circumstances, the residual discretion to extend time (signified by the use of the word 'may') is enlivened. Satisfaction as to the existence of exceptional circumstances does not necessarily mean that an extension of time will be granted, and the Commission may decide not to exercise the residual discretion to extend time on the basis that it is not satisfied that it is just, fair or equitable to do so, notwithstanding the finding of exceptional circumstances."[2]

• [6] Previous decisions of the Commission have established that 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[3].  In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented[4].
• [7] "The delay" is the period commencing immediately after the date upon which the application should have been filed, continuing until the date it was. However, events or circumstances occurring within the 21 days after the dismissal, or before the dismissal may have an effect that continues into the period of the delay and may be considered in this regard[5]. In this matter, the delay is the 5 day period between 24 September 2025 and 15 September 2025.
• [8] I conducted a hearing in relation to this matter on 24 November 2025, after the parties had earlier filed and served material in relation to the matters, I am required to consider under s 394(3) of the Act. With the agreement of both parties, I conducted the hearing by way of determinative conference. Mr Carnovale appeared for himself at the hearing, and I granted Maas permission to be represented by a lawyer or agent pursuant to s 596 of the Act. Mr Alcock appeared for Maas.

• [9] Mr Carnovale worked for Maas as a Laboratory Manager on 15 November 2023. Maas is a part of a conglomerate of businesses engaged in various parts of the mining and civil construction industry.
• [10] Mr Carnovale resigned his employment on 11 August 2025 and provided 12 weeks notice, intending his final day of work to be 31 October 2025.
• [11] On 23 September 2025, Mr Carnovale attended a meeting via zoom in which he was told employment would be terminated. He received a letter confirming the termination of his employment on 24 September 2025. The reason given by Maas for the termination of Mr Carnovale's employment was that it considered he had disclosed confidential company information and had begun to engage in work in competition with Maas relating to some of its clients. Maas considers Mr Carnovale engaged in serious misconduct. This is disputed by Mr Carnovale.
• [12] On 1 October 2025, Mr Carnovale sent an email addressed to the "HR team". The email was in regard to a "retention bonus". It said the bonus had not been included in Mr Carnovale's final pay and requested that it be paid by 10 October 2025. It said that if this did not occur Mr Carnovale would refer the matter to the Fair Work Ombudsman. Mr Carnovale considers this bonus is owed to him as a contractual entitlement.
• [13] Maas says that it replied to Mr Carnovale's email on 2 October 2025. The email said that Mr Carnovale was not eligible for any further payments because his employment was terminated for serious misconduct. Mr Carnovale says he did not receive this reply until, in circumstances described below, it was forwarded to him on 16 October 2025. He concedes the email - a copy of which was in evidence - displays his correct email address, but that he has searched his systems for any record of it and cannot find it. I had no reason to doubt Mr Carnovale's evidence that he did not receive the email until 16 October 2025 instead of 2 October 2025.
• [14] On 16 October 2025, Mr Carnovale sent another email to the HR team, asserting that he had not received a reply to his email of 1 October 2025, and again indicating that he would "escalate" the matter to the FWO if he was not paid the bonus by 17 October 2025.
• [15] Later, on 16 October 2025, Maas sent an email to Mr Carnovale advising that it had replied to his email on 2 October 2025, attaching a copy of the email trail. It's reply refutes the suggestion it is obliged to pay Mr Carnovale the bonus.
• [16] Mr Carnovale says he then took steps to begin preparing his unfair dismissal claim, largely completing the form the next day - 17 October 2025 - and then took the weekend to compile supporting documentation, before filing the application in the Commission on 20 October 2025.

• [17] While Mr Carnovale said that he was told clearly on 23 September 2025 in a zoom meeting that his employment was terminated, Maas submitted that the termination of Mr Carnovale's employment took effect the following day, on 24 September 2025, when it was confirmed in writing. I consider the date the dismissal took effect to be 24 September 2025.

• [18] As to the reason for the delay, Mr Carnovale does not need to provide a reason for the entire period of the delay, but the Commission will usually focus its enquiry on whether the reason for the delay is "adequate", or "credible" or "acceptable", and the absence of an explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances[6]. The reason for the delay need not necessarily be one that "justifies" the delay, but the allowance of further time is discretionary, taking into account whether exceptional circumstances exist, and it is in this context that the assessment is made[7].
• [19] Mr Carnovale says that the reason for his delay in filing the application within the prescribed time period was that he attempted to resolve the matter directly with Maas in good faith, and emails sent to Maas to this effect went unanswered despite reasonable follow ups. He says that he filed his application once it was clear Maas would not consider an amicable outcome, and this reflects "prompt action" once this became apparent. He says that any delay was through no fault of his own and he has always acted in good faith.
• [20] In other words, Mr Carnovale said the reason for the delay between 15 October 2025, the date by which his application should have been filed, and 20 October 2025, when it was eventually filed, was that he was waiting for a reply to his correspondence in which he hoped matters between him and Maas could be mutually resolved, and then took prompt action, albeit taking three days between 17 - 19 October 2025, to collate his material for filing.
• [21] At the hearing, Mr Carnovale also said it was a significant shock that his employment was terminated and resulted in significant stress for him and his family. I took this to be a submission that these matters contributed to his delay.
• [22] The Respondent submits that Mr Carnovale has not demonstrated exceptional circumstances - that his reason for delay - attempting informal resolution via emails on 1 and 16 October 2025 - is ordinary and not exceptional.
• [23] In support of its submission, Maas referred me to the decision of Easton DP in Maximilian Enthoven v Darktrace Australia Pty Ltd[8] in which the Deputy President observed that "settlement discussions are generally encouraged, but not at the expense of compliance with the time limits"[9].
• [24] Some similarities and some differences exist in relation to the matter involving Enthoven. One difference is that there was evidence before the Deputy President in that matter that the Applicant was aware of the 21 day timeframe he was operating within[10]. It is not evident to me Mr Carnovale had this awareness: I note in particular he refers in his correspondence to the "Fair Work Ombudsman", not the Fair Work Commission. A similarity with Enthoven is that the "settlement discussions" the Applicant in that matter was engaged in were to a large extent, in the view of the Deputy President, negotiations about "the quantum of Mr Enthoven's alleged outstanding commission payments, which are a separate matter to the dismissal itself"[11], and his "priority objective in this post-employment dealings with [the Respondent] and in his application to the Commission has been to recover commission payments allegedly outstanding.[12]"
• [25] A similar observation may be made about Mr Carnovale's correspondence with Maas post his termination of employment. Both the email sent on 1 October 2025, and 16 October 2025 were demands in relation to an unpaid entitlement, not about dismissal. Mr Carnovale said that the matter he was pursuing was "all related to the employment contract".
• [26] The last correspondence between Mr Carnovale and Maas was on 16 October 2025, when Maas sent him an email referring to a previous email it had sent him, but he did not receive, refusing his request to be paid his bonus. A further delay occurred at this point before Mr Carnovale filed his unfair dismissal application. Mr Carnovale's explanation for this part of the delay is that he was compiling documentation, over what was a weekend.
• [27] In my view, Mr Carnovale's explanation as to the reason for the delay in filing his application does not involve a circumstance that is exceptional or out of the ordinary. I consider he was hoping to persuade Maas to pay him a bonus he believes he is contractually entitled to. The was no uncertainty arising from the discussions as to whether the employment had ended, such that it may have caused Mr Carnovale some pause for thought about whether to commence unfair dismissal proceedings. His account of what happened really doesn't explain why he waited. I am not persuaded these were even "discussions" - rather - they are Mr Carnovale's demand and Maas' refusal. There is also an inadequate explanation as to why Mr Carnovale engaged in further delay after his knew his demand had been refused - the process to complete an unfair dismissal form is not complex and I do not accept Mr Carnovale required three days to compile documents or finish filling out the form.
• [28] In so far as Mr Carnovale submitted that the shock caused by his dismissal contributed to the delay, it is well established that there is nothing unusual or uncommon for an employee that has been dismissed to be confronted with stress, shock and financial hardship[13]. I do not consider this supports Mr Carnovale's effort to persuade me there are exceptional circumstances in relation to this matter, in terms of how that concept is set out in the Act and ordinarily dealt with by the Commission.
• [29] It is well established that the test of exceptional circumstances imposes a high hurdle, and Mr Carnovale's rationale for the delay is not exceptional. This consideration weighs against allowing an extension of time for her application to be made.

Whether Mr Carnovale first became aware of the dismissal after it had taken effect.

• [30] Mr Carnovale submitted that he became aware of dismissal only after it had taken effect because he received no prior warning or indication termination was being considered before it occurred. However, there was no delay between the time Mr Carnovale became aware of the dismissal and when it took effect. Mr Carnovale had the entire 21 day period after his dismissal took effect, during which time he was well aware his employment had been terminated. This factor does not weigh in favour a further period being allowed for his application to be made.

Any action taken by Mr Carnovale to dispute the dismissal.

• [31] Mr Carnovale submitted that he took steps to dispute the termination of his employment, through sending the emails referred to above on 1 October 2025 and 16 October 2025. As I have observed, I consider these emails to be about Mr Carnovale demanding that a bonus be paid to him - not to contest the dismissal itself - and they do not refer to the potential unfair dismissal proceedings in the Fair Work Commission, but rather a report to be made to the Fair Work Ombudsman (presumably about the recovery of employment entitlements).
• [32] I do not consider that these efforts weigh in favour of a finding that exceptional circumstances exist in this matter. It seems to me unlikely Maas could have anticipated from Mr Carnovale's conduct that an application for unfair dismissal might be brought against it by him until it was made.

Prejudice to the employer (including prejudice caused by the delay)

• [33] Mr Carnovale submitted that allowing this matter to proceed will not cause any significant prejudice to Maas. Maas said that it would suffer prejudice - increased costs in defending a "stale claim", faded witness memories and prolonged uncertainty
• [34] Taking into account the relatively short period of delay I am not persuaded that there is any significant prejudice to Maas if the application was allowed to proceed. It conceded at hearing that if the matter were to proceed, a forensic investigation it conducted in relation to Mr Carnovale's conduct would stand on its own. I do not consider there is any apparent prejudice to Maas if an extension were granted.

• [35] It is well established that the Commission will not ordinarily embark on a detailed consideration of the merits of the substantive case when considering whether to grant an extension of time[14].
• [36] The merits of the application are hotly contested. While Maas complains of conduct which, if it were established to have occurred in the manner it contends, is difficult to reconcile with the continuation of the employment relationship and Mr Carnovale's employment obligations, Mr Carnovale claims to have explanations for his conduct and that he was deprived of an opportunity to provide those before being dismissed.
• [37] Refusing to grant Mr Carnovale an extension of time in this matter, which is the outcome of this decision, does not mean I consider Maas's justification for his dismissal is valid. At this stage of the proceeding, in the circumstances before me, I can make no judgement as to the merit of either party's case. I do not consider this factor weighs against Mr Carnovale being granted an extension of time, but it does not weigh in its favour either.

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

• [38] Mr Carnovale argued that the dismissal of his employment was unfair compared to other employees in similar positions, who may have engaged in similar actions - who were instead given warnings or adequate opportunities to respond and defend their positions. In this regard, Mr Carnovale misunderstands the consideration set out in s 394(3)(f) of the Act, which requires consideration not of the fairness or otherwise of the dismissal itself, but rather whether granting an extension of time is warranted taking into account persons in a similar position to that of the person seeking the extension.
• [39] Maas said granting an extension would be unfair to others who comply with timelines and suggested that such cases are "routinely denied".
• [40] Neither party brought any specific circumstances involving other persons in a similar position to my attention, perhaps except for the reference to the Enthoven decision referred to above, which as I have said bears some similarities and some differences to Mr Carnovale's position.
• [41] The submissions of the parties did not cause me to consider fairness as between Mr Carnovale and persons in similar circumstances weighs significantly for or against a finding of exceptional circumstances in this matter.

• [42] Having considered each of the factors set out in s 394(3) of the Act I have not reached a state of satisfaction as to the existence of exceptional circumstances in this matter. This is particularly because I consider Mr Carnovale has not been able to provide a reason for the delay in filing his application between the last date on which it was due - 15 October 2025 - and when it was eventually filed 5 days later, save for the unexceptional circumstance in which he was waiting to see whether his demand to be paid a bonus he believes he is entitled to was agreed to, then requiring several further days to complete his paperwork.
• [43] The other factors I am required to consider do not outweigh the absence of a reason for the delay. None weigh sufficiently to overcome Mr Carnovale's failure to file his unfair dismissal claim within the three weeks afforded to him by the Act.

• [44] I must be satisfied there are exceptional circumstances to extend the time for Mr Carnovale's application. I am not so satisfied, and the application is dismissed. I will issue an Order[15] to that effect.

[1] Fair Work Act 2009 s 394(3); Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901

[2] Ms Shiralee Dollar v RG Group Holdings Pty Ltd [2025] FWCFB 122 [61]

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

[4] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975

[5] Olivia Wales v Thejo Australia Pty Ltd [2025] FWCFB 178 [36]

[6] Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 [45].

[7] Kuncho Kurtev v KCB Australia Pty Ltd, Toni Telfer [2025] FWCFB 13 [21]

[8] [2023] FWC 1282

[13] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287

[14] Ms Shiralee Dollar v RG Group Holdings Pty Ltd [2025] FWCFB 122 [38]

[15] PR794055

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