Commission junks worker’s late application due to 'ignorance'

The Fair Work Commission (FWC) recently dealt with a case involving a worker who filed a one-day late application arguing that he suffered from Post Traumatic Stress Disorder (PTSD).

In its defence, the employer argued that the worker did not provide any medical evidence regarding his inability to attend to the application. Hence, no extension of time should be granted.

Trauma from work

Prior to the case, the worker was employed with the company as a support worker in Gladstone on 6 February 2023.

Based on the worker’s submission, on his second day of employment, a young male attended his work premises and demanded to be driven to Brisbane to his father’s place. 

The young man’s case worker spoke to him on the phone and assured him arrangements would be made to provide him with transportation.

Then, the man left the premises and came back minutes later, enraged. He threatened to destroy all property, steal the worker’s belongings and assault him.

When the police attended the incident and the worker was on his way to the car park, the young man was already there and made threats of assault to the worker.

“He ripped his own shirt off and threatened to kill [the worker], while repeatedly hitting his bonnet and spitting on his car,” the case stated.

The young man continued to spit at the worker’s car and lash out. Fortunately, when the worker made his exit, he saw two police cars, and the young man was eventually arrested.

Employment terminated

However, on 29 March 2023, the worker’s employment was terminated because he did not act in line with the company’s code of conduct and values.

While the workers’ compensation was accepted, the worker did not seek advice about bringing an unfair dismissal claim or a general protections claim when he sought legal assistance.

“[The worker] stated that he did not know of the general protections jurisdiction until he discussed his issues with a friend on 20 April 2023,” the case noted.

“She told him about the jurisdiction and cautioned him of the 21-day time limit, noting that the period of time had just passed,” it added.

On that same day, the worker made his application and argued that he remained traumatized by the incident last February 2023 and suffered from PTSD.

However, the employer argued that the worker did not present any medical evidence supporting his claim that while he was able to seek legal advice on another issue, he was unable to attend to the present application.

HRD previously reported an unfair dismissal case involving an employee who alleged her termination constituted a breach of the Disability Discrimination Act 1992 (DDA).

The case revolved around whether the employer gave proper consideration to ways it might accommodate the employee’s diagnosis of post-traumatic stress disorder (PTSD).

FWC’s decision

In this recent decision, the Commission said it was satisfied that there were no exceptional circumstances to warrant an extension of time to the worker’s late application.

While the FWC accepted the fact that the worker suffered through a traumatic experience because of the February 2023 incident, it noted that this was not the relevant reason why the worker had a one-day late application.

“It is clear that [the worker] was not aware of the general protections jurisdiction until he was informed of the avenue by a friend on 20 April 2023,” the Commission noted.

“The reason for the delay in not bringing his application by no later than 19 April 2023 is one of ignorance,” it added.

The FWC ultimately highlighted that the worker’s unawareness about the avenue of the general protections jurisdiction does not support an extension of time being granted.