'I would have done it if I knew about it before,' says worker
The Fair Work Commission (FWC) recently rejected the unfair dismissal claim of a worker who said she was “unaware” of the Commission’s deadline. The FW Act states an unfair dismissal application must be made within 21 days after the dismissal took effect or within an allowable period.
The Commission can extend the period under “exceptional circumstances,” defined as “out of the ordinary course, unusual, special, or uncommon.”
However, it clarified the circumstances “do not need to be unique, unprecedented, or even very rare.”
Background of the case
The worker was employed by Guardian Community Early Learning Centres Pty Ltd. The employer agreed that she was dismissed but denied the dismissal was unfair.
When asked in one of the forms that she submitted to the FWC, she stated there that she was “not aware about the Fair Work Commission” and added that she “would have done it within 21 days if [she] knew about it before.”
“I was in depression and stress due to false allegations on me. Also, I was not aware about fair work commission claim. I thought I am not a union member so I cannot complain about my unfair dismissal. I lost my hope until I got to know about fair work commission unfair dismissal. They have traumatized me for putting false allegations. Please consider my application. It is my last hope. I hope I will get my pride back,” the worker said.
Worker’s medical proof
The Commission looked into the worker’s “depression and stress” and said that the worker attached a witness statement from her general practitioner.
It said that the letter recorded various positive observations about the worker based on the practitioner’s family consultation history going back to August 2017.
Regarding the worker’s employment, the practitioner said she experienced “grief and disbelief” due to the employer’s treatment and noted that she “speaks through tears how she is still in a state of shock as to what has happened.”
The letter then said that “she has been suffering with what looks like Post Traumatic Stress since her termination” and that “she has been getting nightmares since that episode with an inability to think clearly.”
“Her sleep is disturbed; she is unable to focus, feels her heart racing fast and gets very shaky intermittently.” However, the practitioner was not called to give evidence.
Did not adequately explain the delay
In its decision, he FWC said that the worker’s primary reason was that she was not aware of the Commission and the deadline that was required.
As for the practitioner’s letter, the FWC commented:
“Much of the material in the letter from her treating practitioner reflects no more than what the practitioner had been told by [the worker].” It said that it “accepted” the worker’s sincerity, but her proof “does not indicate any inability on her behalf to make an unfair dismissal application, let alone for the period of delay.”
“The highest the evidence goes is to describing symptoms that ‘look like’ posttraumatic stress.”
“[The worker] herself said that she ‘would’ have made an unfair dismissal application ‘if I knew about it before. That evidence further confirms that [she] was not prevented from making her application due to any of the medical circumstances described by her or her practitioner,” the FWC added.
The Commission’s decision
“While [the worker] was plainly distressed and upset by the termination of her employment, that does not of itself provide a reason for delay that points to exceptional circumstances,” the decision said.
The Commission said it “does not [the worker’s] ignorance of, or unawareness about, the statutory timeframes for commencing an unfair dismissal application, or even ignorance about such a right at all, is a factor that points to supporting a conclusion of exceptional circumstances.”
“The stress and shock that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances.”
“Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist,” it added.
“Each case turns on its own facts. There are no categories of illness or disability that will automatically result in the Commission being satisfied that exceptional circumstances exist.” Thus, the FWC dismissed the worker’s application for an extension of her unfair dismissal claim.
