Worker claims delay was caused by 'mental and physical injuries'
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application that exceeded the 21-day time limit. The worker, who was employed as a machine operator, claimed she was forced to resign due to workplace bullying and harassment, while the employer, a furniture manufacturing company, argued that she voluntarily resigned.
In this case, the worker filed her unfair dismissal application 258 days after her employment ended on 14 June 2023. The FWC had to determine whether exceptional circumstances existed to justify extending the time limit for the application.
The decision provides valuable insights into the factors the FWC considers when assessing whether to grant an extension of time, particularly in cases involving allegations of workplace bullying and harassment.
Background of the case
The worker started her employment with the employer initially as a casual employee on 10 October 2022 and was later converted to permanent employment in January 2023. During her employment, the worker alleged that she was subjected to "bullying and sexual harassment from various colleagues on a regular basis."
She claimed that three major incidents were not properly addressed by management, including an incident where a colleague pushed her out of the way and took the mouse out of her hand while she was operating a machine.
On 7 June 2023, following a verbal altercation with another employee, the worker tendered her resignation via text message to her supervisor.
The text message stated, "Please take this as my offical (sic) resignation … I appreciate the opportunity to work with the company but due to the amount of bullying and disrespect I have received from many of my colleagues in the short amount of time that I have being (sic) with the company I no longer believe that [your workplace] is a safe, healthy or viable company for me to work for any longer."
The employer argued that this text message was the first time they had heard of any complaint about bullying and harassment from the worker.
Following the worker's resignation, the employer investigated the 7 June incident but found that the other employee involved had a different account of events.
Reasons for the application’s delay
The worker provided several reasons for the delay in filing her unfair dismissal application. The primary reason was that she had sustained mental and physical injuries from her time with the employer, including a corneal burn and mildly injected conjunctiva to her left eye from a chemical cleaner on 8 June 2023.
She argued that "due to these injuries, [she] was unable to file any Fair Work applications, as they required [her] to place Workcover claims instead and was not mental (sic) stable to deal with these."
Medical evidence in the form of certificates of capacity (COCs) confirmed that the worker had no capacity to work from 18 July 2023 to 2 February 2024 due to her mental injury involving "severe anxiety, stress and major depression."
From 6 February 2024, the worker's COCs recorded that she had a capacity for suitable employment. The worker also submitted that from February 2024 onwards, she was supporting her partner who also had work-related injuries from working at the employer.
Additionally, she claimed that she was unaware of her entitlement to apply for an unfair dismissal remedy until a few days before filing the application.
Consideration of exceptional circumstances
The FWC considered various factors under s.394(3) of the Fair Work Act 2009 to determine whether exceptional circumstances existed to justify extending the time limit for the application.
"I have determined that, on the evidence before me, it is more likely than not that the primary reason for the delay was that [the worker] was not aware of her entitlement to file an unfair dismissal application prior to a few days before the application being made."
The FWC acknowledged that while the worker's mental injuries may have accounted for some of the delay, it was not satisfied that they reasonably explained all of the delay, particularly given the lack of clear medical evidence showing incapacity during certain periods.
The FWC noted that the worker had proven herself capable of lodging two Workcover claims on her own and had engaged lawyers from 12 July 2023 regarding her Workcover claims.
Prejudice to the employer
The employer argued that the significant delay would cause it to suffer prejudice if the application were to proceed. They contended that the lengthy period would impact the ability of witnesses to recollect matters and that staff changes since the worker's termination would make witness evidence challenging.
The employer-led evidence that since the worker's termination, six staff who worked with her either directly or indirectly had been made redundant and therefore may not readily be available to provide witness evidence if required.
"I am satisfied that the significant delay would prejudice the employer in this matter because key witnesses may not be available due to staff changes, and because the significant amount of time may have impacted on witnesses' recollection of matters."
The FWC found that the prejudice to the employer weighed against a finding of exceptional circumstances.
No exceptional circumstances found
After considering all the factors under s.394(3) of the Fair Work Act 2009, the FWC was not satisfied that exceptional circumstances existed to justify extending the time limit for the worker's unfair dismissal application.
"The test for exceptional circumstances is a high bar and when I consider all the factors under s.394(3), individually, in combination or as a whole, I am not satisfied that exceptional circumstances exist."
The FWC emphasised that ignorance of the unfair dismissal jurisdiction and the statutory time limit is not considered an exceptional circumstance.
Furthermore, the significant delay in filing the application would prejudice the employer due to the potential unavailability of key witnesses and the impact on their recollection of events.
“Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. [The worker’s] application for an unfair dismissal remedy is therefore dismissed."
This decision highlights the importance of filing unfair dismissal applications within the prescribed 21-day time limit, even in cases involving allegations of workplace bullying and harassment.
It also demonstrates the high threshold required to establish exceptional circumstances for an extension of time, taking into account factors such as the reasons for the delay, any action taken to dispute the dismissal, prejudice to the employer, and the merits of the application.
