Commission decides if worker had an 'exceptional circumstance'
The Fair Work Commission (FWC) recently dealt with a request for an extension of an unfair dismissal application, with the worker alleging that she “miscalculated” the days of the 21-day period granted by law.
The worker, Samantha Kelsall, sought an unfair dismissal remedy against her employer, Kingston City Council.
She alleged that her termination took effect on September 11, 2023. She requested the Commission to grant an extension, adding that her dismissal was communicated during an interview on September 8, where she was informed about the termination, and she received written confirmation on September 11.
The employer argued that the dismissal took effect on September 8, when the worker was advised of the termination, and this was confirmed in writing on September 11.
The Commission found the worker was notified of her dismissal on September 8, making it the effective date of dismissal. Kelsall's reasons for the delay include a miscalculation of the timeframe and a mental health episode.
‘Exceptional circumstances’ extend a late application
The Fair Work Act requires unfair dismissal applications to be made within 21 days after the dismissal took effect. However, the FWC allows a degree of leniency if an application was filed beyond the said period “under exceptional circumstances.”
In determining this matter, the FWC will consider:
- the reason for the delay
- whether the person first became aware of the dismissal after it had taken effect
- any action taken by the person to dispute the dismissal
- prejudice to the employer (including prejudice caused by the delay)
- the merits of the application
- fairness as between the person and other persons in a similar position.
The worker said she misunderstood the calculation, excluding weekends and public holidays, and, due to the shock and financial concerns, experienced a mental health episode that hindered her ability to function until mid-September. She said she initiated the application once she had recovered from this state.
Worker ‘miscalculated’ the days
In her arguments, the worker said, “she miscalculated the 21-day timeframe and did not include weekends and public holidays in her initial calculations.” She said, “she first accessed the Commission website on or about 15 or 16 September 2023 and started to put together her paperwork on 18 or 19 September 2023, and believed she calculated the correct timeframe using business days.”
Additionally, the worker said that after receiving verbal confirmation of the termination of her employment, “she was in shock, and due to financial concern and concern for her family’s wellbeing, suffered a mental health episode.”
She said she was “unable to get out of bed and function properly until on or about 15 or 16 September 2023 due to the ‘extensive mental load and was only able to complete her application once she was ‘out of this state’.”
Should the late application be accepted?
The FWC said there’s no “acceptable or reasonable explanation for the delay,” adding that “miscalculation of the required timeframe to lodge an application is not, without more, an exceptional circumstance.”
“While [the Commission is] sympathetic to the [worker’s] position and indeed any employee who suffers from the loss of their employment, there is no medical evidence before the Commission as to the effect of the [worker’s] mental condition on her capacity to file the unfair dismissal application on time,” it added.
“Further, on the [worker’s] own submission at hearing, she was able to access the Commission website from on or about 15 or 16 September 2023 and complete her application from on or about 18 or 19 September 2023 but miscalculated the deadline to file her application,” it said.
Thus, the FWC said that there was no exceptional circumstance in this case and rejected the worker’s request for an extension. It consequently dismissed her claim against the employer.
