Is stress considered an exceptional circumstance?
The Fair Work Commission (FWC) recently dealt with a case involving a worker who applied for an unfair dismissal remedy against his former employer, a retail business operating nationwide.
The case revolved around the worker's dismissal, a police investigation into a robbery at the store where he worked, and the effects of “stress and anxiety” on the worker's ability to pursue his workplace rights.
The worker's application was filed 748 days outside the statutory 21-day period for making unfair dismissal claims, and he sought an extension of time, which the employer opposed.
Unfair dismissal application
The worker was employed as a store manager and was responsible for adhering to the employer's policies concerning cash handling and cash banking.
On January 12, 2022, a robbery occurred at the store, and a safe and an amount of cash were stolen. The police attended and commenced an investigation. The following day, the worker was summarily dismissed for alleged failure to comply with policies and instructions related to cash handling and banking.
Following the dismissal, the police attended the worker's private residence and seized certain personal property as part of the investigation.
The worker also questioned the employer about his termination entitlements, which the employer rejected. The ongoing police investigation and financial pressures led the worker to move out of his rental property and live with family members.
The worker secured employment in the mining sector and moved to another state but later returned to South Australia and continued living with family. He sought alternative employment and undertook training courses.
On September 13, 2023, the worker was informed by the police that the investigation had concluded, and he would not face any charges.
"The worker understood from the telephone call and emails that the police investigation had been completed, he would not face any charges, and he could reclaim his property,” the FWC found.
The worker filed his unfair dismissal application on February 21, 2024, which was 748 days outside the statutory 21-day period. The worker provided two reasons for the delay: the police investigation, which did not conclude until September 13, 2023, and the stress and depression caused by the dismissal and investigation.
FWC: Examining delay to application
The FWC examined the delay period in three sub-periods: the period during which the police investigation was active, the period between the conclusion of the investigation and the worker completing the unfair dismissal application form, and the period between completing the form and filing it.
The FWC found that the police investigation only somewhat explained the delay in the first period, but not the second or third periods, except for the final eleven days, which were reasonably explained by the worker's mother being preoccupied with her husband's ill health.
The FWC acknowledged that the worker's stress and anxiety were plausible given the circumstances but noted that the absence of evidence from a health expert made it difficult to draw specific conclusions about the nature and intensity of the adverse health impacts.
The FWC also observed that a material component of the worker's stress was the worry about potential police charges, which was only resolved after September 13, 2023.
FWC: No exceptional circumstances
After considering all the factors, the FWC found that there were no exceptional circumstances warranting an extension of time for the late lodgement of the worker's application.
"Taking all factors into account, I do not find exceptional circumstances to exist warranting an extension of the time for late lodgement," the FWC said.
While the worker's unfair dismissal application was dismissed due to being out of time, the FWC noted that the worker might have other avenues to pursue his claims for monies allegedly owed on termination, independent of the unfair dismissal process.
"To the extent that [the worker] seeks, via this application, to claim monies he believes are owed on termination, rights exist to take proceedings for such sums independent of unfair dismissal applications,” it added.
