Robert Sebastianelli v The Trustee for Micallef Concept Trust
[2025] FWC 717
•13 MARCH 2025
| [2025] FWC 717 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Robert Sebastianelli
v
The Trustee For Micallef Concept Trust
(U2025/852)
| COMMISSIONER MCKINNON | SYDNEY, 13 MARCH 2025 |
Application for an unfair dismissal remedy – effective date of dismissal – application out of time – extension of time allowed
Mr Robert Sebastianelli worked as a Storeperson for the Trustee for the Micallef Concept Trust trading as Concept Fasteners (Concept Fasteners) for approximately 5.5 years. Concept Fasteners is a specialist fastener and hardware company established in 1989.
On 25 January 2025, Mr Sebastianelli applied for an unfair dismissal remedy. Applications of this type must be made within 21 days after the dismissal took effect, or if there are exceptional circumstances, such further period as the Commission allows.[1]
The date of dismissal is in dispute. Concept Fasteners says Mr Sebastianelli was dismissed on 29 October 2024 (meaning the application was filed 67 days late). It objects to the application because it was filed late and because it says the dismissal was a genuine redundancy. Mr Sebastianelli says his employment ended on 30 October 2024, meaning that his application would be 66 days late.
I accept the evidence of Mr Sebastianelli that he was told about his dismissal on 30 October 2024, 15 minutes before the end of his shift, and find that the dismissal took effect immediately. I reject an assertion of Concept Fasteners to the contrary, which appears to rely on the date found at the top of Mr Sebastianelli’s letter of termination but ignores the words of the letter itself, which include: “Your final date of employment is Wednesday at 4.00pm 30-Oct-2024”.
As the application was made 66 days outside the statutory filing period, the question is whether to allow an extension of time for Mr Sebastianelli to apply for an unfair dismissal remedy. For the reasons that follow, I have concluded that the answer should be ‘Yes’.
Extension of time
Under section 394(2) of the Fair Work Act 2009 (Cth) (the Act), the Commission can allow an extension of time to apply for an unfair dismissal remedy if satisfied there are exceptional circumstances, taking into account:
a)the reason for the delay
b)whether the person first became aware of the dismissal after it had taken effect
c)any action taken by the person to dispute the dismissal
d)prejudice to the employer (including prejudice caused by the delay)
e)the merits of the application; and
f)fairness as between the person and other persons in a similar position.
The meaning of “exceptional circumstances” was considered and summarised in Nulty v Blue Star Group:[2]
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”[3]
Consideration
Reason for delay: The reason given for the delay in making his application is that Mr Sebastianelli was told, out of the blue on 30 October 2024, that his position was being made redundant. He accepted what he had been told by the Managing Director of the business, Mr Mario Micallef, a person he respected and had worked with for more than 5 years. On 14 January 2025, he saw a job advertisement for what appeared to be his former role. He tried to contact people he knew at Concept Fasteners about applying for the role, including David Roberts (General Manager) on 14 January 2025, Mr Micallef on 15 January 2025, and Matthew Langtry (Warehouse Manager) on 15 January 2025. No one responded to his attempts to contact them. On 16 January 2025, Mr Sebastianelli noticed that the job advertisement had been taken down, and on 21 January 2025, saw that it had reappeared with an adjusted higher rate of pay. Mr Sebastianelli again tried to contact Mr Langtry without success.
On 23 January 2025, Mr Sebastianelli tried to call Mr Micallef. His call went straight to voicemail, so he changed his number to ‘private’ and called again. Mr Micallef answered the phone. After some discussion about the possibility of Mr Sebastianelli being re-employed, Mr Micallef said he would call him back the following Tuesday, 28 January 2025. But by this time, Concept Fasteners had found someone else to fill the role (and he was due to commence on 28 January 2025). Mr Micallef did not call Mr Sebastianelli back as he had said he would.
On the morning of 25 January 2025, Mr Sebastianelli spoke to a former colleague, Mr Abdul Hafiz. Mr Hafiz told him that someone had been employed into the warehouse the day before. He made a comment that played into Mr Sebastianelli’s suspicion about something “going on”. Mr Sebastianelli rang “Fair Work” and then sought legal advice before filing the application that afternoon.
The history of the matter weighs in favour of additional time to make the application. Mr Sebastianelli only began to suspect that redundancy may not have been the true reason for his dismissal 11 days before he applied to the Commission, when the job advertisement first appeared on 14 January 2025.
Whether the person first became aware of the dismissal after it had taken effect: As stated above, Mr Sebastianelli became aware of the dismissal immediately on the day it took effect but only became aware that redundancy may not have been the true reason for his dismissal 11 days before he applied to the Commission. In the circumstances, this factor weighs in favour of additional time being allowed.
Any action taken by the person to dispute the dismissal: Mr Sebastianelli did not seek to challenge the dismissal when it took effect, although he could have done on procedural fairness grounds at the time. From mid-January 2025, when Mr Sebastianelli began to suspect things were not as they seemed, he made prompt and reasonable enquiries, sought advice and filed the application. On balance, this weighs marginally in favour of a grant of additional time.
Prejudice to the employer (including prejudice caused by the delay): There is no apparent prejudice to Concept Fasteners if the application proceeds late, as compared to any prejudice that might arise had the application been made in time. This is a neutral consideration in the circumstances.
Merits of the application: On its face, Mr Sebastianelli has an arguable case that he was unfairly dismissed. The dismissal is unlikely to have been a case of genuine redundancy for the purposes of the Act in the absence of consultation, as was likely required under a relevant modern award. Mr Sebastianelli says he was told that he was chosen for dismissal because he had the highest rate of pay, but that an equivalent or higher rate of pay was advertised for the same role in January 2025 which was not made available to him. Concept Fasteners submits that a higher operating cost environment had placed its NSW warehouse under financial strain and that in October 2024, it needed to reduce the number of warehouse staff from 3 to 2. Concept Fasteners says Mr Sebastianelli would not perform driving duties, which were part of his role and which it required, although that seems not to have been the case for many years. There is a dispute about the fair application of selection criteria because another storeperson also did not drive and had a less favourable disciplinary record. In combination, Concept Fasteners paid Mr Sebastianelli more than his minimum entitlement to redundancy pay and pay in lieu of notice of termination.
Approximately 10 weeks after the dismissal, Concept Fasteners discovered that one of its two remaining storepersons was planning to leave. Also in January 2025, the other storeperson experienced medical issues which required his absence for approximately 5 days. To ensure continuity in the warehouse, Concept Fasteners decided to recruit again into the role, which it ultimately did successfully on or about 24 January 2025. This restored its staffing numbers in the NSW warehouse to 3 in anticipation that one will leave at some time in the future.
In short, the facts in relation to the reason(s) for dismissal are in dispute and there is conjecture about the reliability of certain documentation filed by the parties. It is neither possible nor appropriate to make any definitive findings as to the merits at this stage of the proceeding. But on balance, the merits weigh in favour of additional time being allowed for the application to be made.
Fairness as between the person and other persons in a similar position: This does not appear to be a material factor in the circumstances of this case. It is a neutral consideration.
Conclusion
I am satisfied that there are exceptional circumstances in this case, being the January job advertisements, Concept Fasteners’ indifference to enquiries from Mr Sebastianelli about the possibility of re-employment, and his subsequent and prompt action to dispute the dismissal. There is a sufficient basis to found reasonable concern about whether redundancy was the true reason for Mr Sebastianelli’s dismissal in October 2024, although I would not exclude the possibility on the information now available. On balance, the mandatory considerations weigh in favour of additional time being allowed for Mr Sebastianelli to make his application and it is appropriate that an order be made to that effect.
Order
The date for filing of Mr Sebastianelli’s application is extended to 25 January 2025.
The matter will now be referred for conciliation.
COMMISSIONER
Appearances:
Mr R Sebastianelli on his own behalf.
Mr M Micallef on behalf of Concept Fasteners.
Hearing details:
2025.
Sydney:
March 12.
[1] Fair Work Act 2009 (Cth), s 394(2).
[2] [2011] 203 IR 1.
[3] Ibid [13].
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