Fair Work rejects worker’s ‘stress and confusion’ to justify claim’s delay

Filing an unfair dismissal claim is an important step for employees to protect their rights and receive compensation. By filing on time, they can ensure that they receive the legal compensation they are entitled to and that their case is heard.

Generally, these claims must be filed within 21 days of the dismissal taking effect to be eligible for compensation. A timely claim will preserve an employee’s rights and allow them to receive compensation.

If a claim is not submitted within the specified time limit, the employee may forfeit their rights and be unable to receive the benefits unless the claim falls under recognised exceptions.

In a recent case, a worker belatedly filed a claim. She filed it beyond the period allowed by law, adding the dismissal left her “stressed and confused.”

Background of the case

The worker was dismissed from her employment with the employer for poor performance, poor punctuality, and substandard conduct.

She claimed that she was “stressed and confused as a result of her dismissal,” and when she had to figure out the type of application she needed to file, she had to deal with shock.

The FWC said that “stress, shock, confusion and similar conditions are not in and of themselves exceptional in that they are ordinarily encountered by many employees post their dismissal.”

In 2022, the Fair Work Commission ruled that a worker was not unfairly dismissed after he alleged he was forced to resign.

What is the test?

According to the commission, the worker should have a “credible or reasonable” explanation for the delay.

“The reasonableness of an applicant’s explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondarily in deciding whether the Commission should exercise its discretion to grant the extension,” it said.

According to the Fair Work Act:

“The Fair Work Commission may allow a further period for an unfair dismissal application if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

According to the commission, the principles to be applied when it comes to a worker’s psychological conditions are:

“(i) stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves;

(ii) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the applicant’s capacity to lodge the application within the statutory time limit;

(iii) the evidence should positively demonstrate that the applicant’s depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21-day time frame; and

(iv) an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient.”

In this case, the FWC said that it was not satisfied with the existence of exceptional circumstances. Ultimately, the worker’s application for unfair dismissal was dismissed.