Employer rejects claim, cites 'prejudice' of length of time passed
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case where a worker argued his delayed application should be accepted due to mental health challenges that affected his ability to meet deadlines.
The worker also claimed he never formally resigned, despite being away from work for over three years on WorkCover payments.
The case raised important questions about when an employment relationship truly ends, especially in situations involving extended WorkCover arrangements and mental health considerations.
It also examined how different actions - like taking up other employment while receiving WorkCover payments - might affect the original employment relationship.
The worker started as a full-time machinist in August 2003 at an engineering company. In April 2021, he stopped working due to what he said was workplace bullying. He received WorkCover payments from April 16, 2021, but didn't return to work on any return-to-work plan.
The employer's duty to provide work under the Workplace Injury Rehabilitation and Compensation Act 2013 ended in April 2022.
During a hearing, the worker said he didn't want to work at or communicate with the employer.
The WorkCover insurer started making direct payments instead of going through the employer - a step typically taken when workers request no direct contact with their employers.
While receiving WorkCover payments, the worker took on another job from September 2021 to April 2023. He explained this in his submission: "[A] friend of mine let me work for him part time to help me earn some money to support my family. Two months later my WorkCover case was accepted, [the employer] and WorkCover knew I was working part time to help with my mental health issues."
In late July 2024, the situation became more complicated when the worker emailed the employer's HR consultant requesting his entitlements. When asked about a resignation date, he wrote "resignations shall be immediately, thanks."
However, in follow-up emails, he seemed less certain about the resignation date, saying: "if you would like to use yesterday's date as an arbitrary date to work out my entitlements that is ok...I am not capable of work at the moment."
The worker's case relied heavily on evidence from his psychologist, who had conducted 55 sessions from May 2021 to September 2024.
The medical report stated: "[The worker's] inability to lodge his unfair dismal (sic) claim on time is a direct result of his ongoing mental health issues."
The employer challenged this argument, noting: "In 2024 [the worker] was able to find and instruct [lawyers] prior to him filing his application, so as to pursue a TPD application... The taking of these steps is evidence that [the worker's] mental state was such that he could have made the application or instructed lawyers to make a UD application within time."
The Commission had to weigh multiple factors in this case. The employer presented strong arguments about potential operational impacts, stating:
"[The worker] has for 3.5 years by his actions and silence communicated that he could not and did not want to return to work for [the employer]. [The employer] has employed other employees to perform machinist work."
The employer further argued: "To impose on this situation an unfair dismissal construct by virtue of an extension of time, would cause [the employer] the potential prejudice of putting on its books an employee who never wants to work for it."
After considering all evidence, the Commission concluded: "Only one factor counts in favour of an extension of time being granted. Two factors count against an extension of time being granted and three are neutral."
The final decision stated: "The prejudice to [the employer] should an extension of time being granted is a significant and important factor. Therefore, on balance, taking into account all the factors under s 394, I am not satisfied there are exceptional circumstances to justify an extension of time." Consequently, the FWC dismissed his application.
