What is an 'exceptional circumstance' in delayed dismissal claims?
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.”
The FWC must consider the following:
- 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.
In this recent case, the dismissal took effect on 20 September 2019, so the period of 21 days ended at midnight on 11 October 2019.
After over three years, the individual filed an unfair dismissal claim, insisting he had reasonable grounds to continue his application, such as health issues from “work-related stress.”
Background of the case
The employee worked as a senior medical officer in March 2018. On 20 July 2019, a nurse sent an email to the employer’s clinical care manager, complaining the employee had attended work that day “in an intoxicated state.”
After a few days, the chief executive officer and its director of medical services met with him to discuss complaints. They issued him a written warning.
Another email was sent about him, reporting “his failure to complete his ward rounds… when he was on-call.” His employment was terminated immediately, and he received three months’ pay in lieu of notice.
The notice said his termination was based on his “overall performance and suitability for the role was not satisfactory.”
He contested his dismissal after it took effect on 20 September 2019 by filing the first application on 23 September 2019, but this was later discontinued in November.
What were the ‘exceptional circumstances’?
On the other hand, his second application was filed over three years after his dismissal. The employee insisted that the Commission should grant him an extension under “exceptional circumstances.”
The employee argued the following circumstances contributed to the delay:
- Investigations into conduct and performance allegations levelled against him.
- A coronial investigation into the death of a child patient that received his treatment while employed by the employer.
- Significant health issues caused by work-related stress suffered while working for the employer.
- The breakdown of his marriage and ensuing litigation over the property disposition and custody of his children.
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
In the recent decision, the FWC noted the matters he raised showed he “confronted challenging personal and professional circumstances in the period following his dismissal.”
However, it noted the grounds he presented would have given him access to legal or professional services since he was already working closely with them on another cases.
The decision said he was in a position where “he had been able to instruct representatives and/or engage in concurrent matters.”
As to significant health issues that arose from “work-related stress,” the Commission said he did not present any evidence to prove them.
“No medical reports or other independent medical evidence was advanced that would allow me to conclude that his medical condition was such that he was incapable of filing an unfair dismissal application within the 21-day period.”
It also pointed out the withdrawal of the first application.
“The fact that [he] withdrew the first application leads [to the conclusion] that such action to contest his dismissal does not weigh in favour of a conclusion that there are exceptional circumstance,” the decision said.
Thus, the FWC dismissed his application.
