Employer argues she wasn’t able to substantiate her claim
A worker recently filed an extension to file her unfair dismissal application, alleging that she was dismissed via text message. She argued that her claim was delayed because she suffered incidents of domestic violence.
The Fair Work Act requires a worker seeking an unfair dismissal remedy to submit the application within 21 days from termination. Nonetheless, the Fair Work Commission (FWC) retains the discretion to grant an extension in exceptional circumstances.
The worker, Emily Campagnolo, filed her application on 25 September 2023 and acknowledged it was beyond the specified 21-day period.
The worker said she did not know the exact date of her dismissal but said she received a text message saying: "Don’t bother coming to work again."
In her application, she said: “I have been impacted by domestic violence, and my mental health has ha[d] serious impacts.”
Worker suffered domestic violence
Campagnolo detailed her involvement in an abusive relationship from January to July 2023. She believed she was unfairly dismissed by the employer in June 2023.
While acknowledging initial support and accommodations from her employer, My Skin Admin (Vic) Pty Ltd, she expressed fear in fully disclosing her needs, including the necessity for an extended period of leave.
Campagnolo said that her mental health deteriorated significantly over the following months after she suffered incidents of assault.
She also said she was hospitalised for acute distress disorder and suicidal ideation around September 2023.
Meanwhile, the employer said while family violence and poor health were potentially acceptable reasons, it said that Campagnolo failed to provide sufficient evidence justifying the delay.
It said the medical certificates and hospital records provided by the worker were considered inadequate in explaining significant portions of the 15-week delay.
Should her late claim be accepted?
In its decision, the FWC said that the worker was dismissed when she received the employer’s text that she shouldn’t go back to work.
“[She] was terminated on 8 June 2023. Consequently, this unfair dismissal application was made 15 weeks and 4 days outside the 21-day time limit,” it said.
Campagnolo said that “in the period leading up to her dismissal and up to 23 September 2023, she was the victim of domestic violence, subject to physical violence, threats, harassment, court orders and various other interventions.”
“So much so that she was fearful for her life and suffered serious impacts on her mental and physical health. Consequently, stating that she did not recover from these circumstances to the extent possible to complete her unfair dismissal application until after this date,” the FWC said.
To support these submissions, the worker has provided the following additional documents:
- A medical certificate outlining she was not suitable for work during the period of 27 May 2023 to 29 May 2023
- Evidence of hospitalisation to Sunshine Hospital on 27 May 2023
- A Family Violence Interim Intervention Order addressed to her ex-partner, made on 5 July 2023
- A second medical certificate stating that [she] is fit for modified duties from 29 May 2023 to 26 June 2023, and
- A statement of her evidence.
The FWC said that “being the victim of domestic violence, in this case requiring hospitalisation, court orders and other interventions is an exceptional set of circumstances and is not common nor usual, nor should it be.”
“[She] has provided a credible reason for the delay in filing the application and that this factor weighs in favour of granting an extension of time,” it said.
Thus, after considering all the circumstances, the Commission accepted the worker’s application and said the delay was justified.
