FWC considers ‘depressive state’ an ‘exceptional’ reason to allow late claim

The Fair Work Act says an unfair dismissal application must be made within 21 days after the dismissal took effect or within an allowable period, as determined by the Fair Work Commission (FWC).

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.”

In this case, the worker applied 28 days after the dismissal took effect or seven days beyond the 21-day statutory time limit. And for the application to proceed, it required an extension of time.

The employer is a service company forming part of a larger global accounting and business advisory services entity. The employee worked there in a senior role as the director of audit and assurance.

He filed for resignation because of “certain workplace issues (including dealings with a divisional director)” and “lost confidence” in how the employer and the managing director handled the issues. The latter acknowledged that the employee had a “falling out” with his co-workers but relied on the employee’s word that he “held no ill feeling.”

However, his company didn’t know that the employee had been under the care of a treating psychiatrist and a clinical psychologist for almost two years. He was diagnosed with attention deficit hyperactivity disorder (ADHD) and major depressive disorder.

Two months before his resignation, he consulted his psychiatrist. And five days before his resignation, “in the midst of stress arising from workplace issues,” the employee reportedly felt unwell and made an appointment with the psychologist.

After his dismissal, he decided to file an unfair dismissal claim because, on the days following the end of his employment, he said “he maintained a sense of unfairness about his exit from the company and “wanted to do something about it but did not feel well enough to take advice or file a claim due to depression triggered by the workplace events.”

The employee claimed that he “was forced to resign due to the employer’s unreasonable conduct,” including workplace bullying and unethical behaviour.

He knew his application was filed out of time, but he argued that it should be considered an “exceptional” case since “he was incapacitated due to illness.”

On the other hand, the employer denied his claim and said he was not “incapacitated” to file it beyond the period under the law, and it argued there was no forced resignation.

HRD previously reported on a case where the employee similarly sought an extension of time with a state commission but was ultimately rejected since it found that she “deliberately filed” another proceeding under the Fair Work Act. In another case, the commission refused an employee’s extension claim only after a 12-month delay, calling it “extreme.”                    

The FWC’s decision

“The worker’s explanation for the delay is that his mental health illness, and in particular a depressive episode, precluded him from filing within time and that it was not until after the statutory time limit expired that he was well enough to take advice and instruct solicitors to file the claim,” the commission noted.

It said that providing medical evidence to prove a condition is “not a requirement per se,” but said the following principles apply to help the commission make “informed findings” to allow a late claim:

• stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves;
• 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;
• 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
• an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient.

The psychologist said that he was suffering “a level of emotional distress” that was “consistent with depression and was impacting his motivation and ability to process what he needed to do to respond to his situation.”

Meanwhile, his psychiatrist also said the employee had past treatments for depression triggered by “past workplace events.”

In its decision, the commission noted that the employee had a pre-existing and diagnosed mental health condition that was the subject of treatment by health professionals.

“He gave evidence that his resignation and loss of employment likely compounded an existing depressive state,” it said.

“The evidence also established that his conduct in the period following his employment ending, including not contacting a solicitor despite feeling a sense of injustice about what had led to his resignation was consistent with a fluctuating mental health condition which had manifested as a depressive episode with a verifiable impact on his mood and motivation.”

“His feelings of stress and anxiety causing the delay were not simply the product of subjective self-assessment, and an established and diagnosed mental health condition existed and was under active treatment,” it added.

Thus, such circumstances were ruled to be “sufficient” to be considered an exceptional circumstance. And so, the commission allowed his application.