Worker tells FWC mental issues 'exceptional circumstances'
The Fair Work Commission (FWC) recently dealt with a case involving a worker who filed an unfair dismissal application one day late and sought an extension of time.
The worker, employed at a mining company, argued that his late filing was due to ongoing mental health issues and a delay in receiving his final pay.
This case brought to light the complexities surrounding employment disputes, particularly when mental health factors are involved.
Late unfair dismissal application
The worker was dismissed from his position at the mining company on 19 July 2024. He filed an unfair dismissal application with the FWC on 10 August 2024, which was one day beyond the 21-day time limit set by law.
As a result, the worker had to apply for an extension of time under the Fair Work Act 2009. The FWC said that it can grant extensions in "exceptional circumstances." These are defined as situations that are out of the ordinary, unusual, special, or uncommon. They don't need to be unique or unprecedented, but should stand out from the norm.
When determining if exceptional circumstances exist, the FWC must consider several factors. These include the reason for the delay, whether the person knew about the dismissal after it happened, any actions taken to dispute the dismissal, potential harm to the employer, the strength of the application, and fairness compared to others in similar situations.
Worker’s mental health and delay
The worker provided two main reasons for filing late. First, he said he was "still suffering from mild anxiety and depression." Second, he argued that his former employer had not paid him on time as required by the Fair Work Act.
To support his claims, the worker provided a referral from his doctor for psychological counselling dated 29 May 2024. He also shared a screenshot of an email that mentioned workplace bullying and harassment.
In his email to the FWC, the worker stated: "Extension of time was needed as still suffering from mild anxiety and depression. Furthermore to this [the employer] had failed to pay me in due time as per the fair work act."
Request for application extension
The employer disagreed with the extension request. They argued that the worker hadn't provided medical evidence to back up his claims.
They also said that the worker had received his final pay on 7 August 2024, which was two days before the application deadline. The employer added that any delay in payment was balanced out by an overpayment for the time after the worker's dismissal.
The FWC looked at each factor required by law for the extension application. They found that the worker hadn't given enough evidence to show that his mental health caused the delay in filing.
The worker knew about his dismissal on the day it happened, giving him the full 21 days to file. There was no proof that the worker had tried to dispute his dismissal before filing the application.
The employer said the delay didn't cause them significant problems, but argued this shouldn't automatically mean an extension should be granted. The FWC didn't have much information to judge how strong the unfair dismissal claim itself was. No specific arguments were made about fairness to others in similar situations.
Late dismissal claim: Accepted or rejected?
After looking at all factors, the FWC decided not to grant the extension of time. The Commission explained:
"I have found that the considerations in s394(3) are either neutral or do not support a finding of exceptional circumstances. I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together."
The FWC stressed the importance of providing proper evidence when claiming mental health issues as a reason for delay:
"It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. However the practical reality is that without proper and specific medical evidence it is very difficult for the Commission to make informed findings about [the worker's] capacity to complete and file their application within the statutory time limit."
The Commission also noted that the lack of harm to the employer isn't enough to grant an extension:
"The absence of prejudice to [the employer] is usual in extension of time matters and does not provide a positive basis for finding exceptional circumstances warranting an extension of time for lodgement."
This case reminds both workers and employers about the strict timelines for unfair dismissal claims and what's needed to get extensions. It also shows the importance of providing clear, backed-up evidence when asking for exceptions to these rules, especially in cases involving mental health claims.
