66 Days Late and Still Allowed? The Rare Unfair Dismissal Case
Employees often believe they have time to “think things through” before filing a claim for unfair dismissal. The truth is this: if you miss the 21-day deadline after your dismissal takes effect, your chances of making a claim drop off a cliff. The Fair Work Commission will only allow late claims in truly exceptional circumstances—and even then, nothing is guaranteed.
So how did a storeperson manage to file his claim 66 days late and still get a green light from the Commission?
Let’s take a look at Robert Sebastianelli v The Trustee for Micallef Concept Trust [2025]; Robert Sebastianelli had been working at Concept Fasteners for over five years. On 30 October 2024, he was told his position was redundant. He accepted that explanation without question. After all, it came from someone he respected—the Managing Director, Mario Micallef.
But weeks later, in January 2025, Robert spotted a job advertisement. It looked suspiciously like his old role. Then the ad disappeared. Then it reappeared. Same role, same company. A higher rate of pay.
He started to wonder—was this redundancy real?
Robert began trying to reach his old contacts at Concept Fasteners—management, supervisors, anyone. He got silence.
Eventually, by calling from a private number, he got Micallef on the line. Micallef said he’d call back about a possible rehire. He never did. Instead, the job was quietly filled just days later.
On 25 January 2025, Robert filed his unfair dismissal claim.
But He Was 66 Days Late
Here’s where it gets serious. Under the Fair Work Act, employees must file an unfair dismissal claim within 21 days of their dismissal. The Commission can only allow a late claim if there are exceptional circumstances—not just a good excuse.
Even being 1 day late can lead to a dismissal of your entire case.
But in Robert’s case, the Commission said yes.
Why Did the Commission Grant the Extension?
Let’s break it down. Commissioner McKinnon examined the legally required factors under s.394(3) of the Act. The following weighed in Robert’s favour:
The delay had a legitimate trigger. Robert didn’t suspect anything was wrong until 14 January 2025, when he saw the job listing. That was the first real sign that the redundancy may have been bogus.
He acted quickly once suspicion arose. Within 11 days of seeing the ad, Robert had tried to contact management, made follow-up calls, spoke to a former colleague, contacted Fair Work, got legal advice and filed his claim.
He was initially misled. The reason for dismissal (redundancy) came from a trusted figure and was accepted in good faith.
There was no real prejudice to the employer. The Commission found Concept Fasteners wouldn’t be disadvantaged by a late application.
The merits looked arguable. The fact that the job was readvertised for more money suggested it wasn’t a genuine redundancy. There were questions about whether the selection criteria were applied fairly, and why another non-driving staff member kept their job while Robert lost his.
Robert's claim succeeded not because he felt confused, hurt, or betrayed—but because a specific series of unusual events unfolded only after the deadline passed. His quick action once he learned the truth made all the difference.
Let’s Be Clear: This Was Rare
This case is not the norm. Many employees lose the right to claim unfair dismissal after being just one day late. Ignorance of the deadline is not an excuse. Neither is emotional distress, internal reviews, or even waiting for a call back that never comes.
This is not a soft rule. It’s one of the strictest rules in employment law.
If you believe your dismissal was unfair, act immediately. The moment your job ends, the 21-day clock starts ticking. Don't wait to "see what happens." Don't assume a polite explanation means you can’t challenge it.
If you suspect something isn't right—even weeks later—get advice straight away.
Robert’s case is a rare exception. But it’s also a reminder. Employers don’t always play fair. And if you don’t act fast, you might lose your chance forever.
