Worker pleads late claim due to ‘injury and depression’ – will it be accepted?

Retail worker lodges unfair dismissal claim 82 days beyond statutory limit

Worker pleads late claim due to ‘injury and depression’ – will it be accepted?

The Fair Work Commission recently dealt with a case involving a worker who lodged an unfair dismissal case 82 days beyond the 21-day statutory limit.

The worker contended that his shoulder injury and depression caused his late unfair dismissal application.

But was this sufficient grounds for an extension of time?

Ignorance, injury, and mental health

Prior to his dismissal, the worker was employed in the retail business around May 2004, and at the time of his dismissal, he was a stock filler at a store in Adelaide.

Around July 2022, the worker suffered a shoulder injury and stopped active work. There, he sought assistance from both his union and solicitor.

However, following a meeting on 30 November 2022, the employer notified the worker about his employment termination.

“You will appreciate that we are not able to hold your position open indefinitely. I therefore regret to inform you that the Company has decided to terminate your employment. Accordingly, your employment will cease on 04 January 2023,” the letter read.

Thereafter, the worker’s compensation claim was resolved with an agreement, including that the worker’s compensation system would cover the worker’s shoulder surgery.

However, after the worker underwent surgery in early April 2023, he decided that the matter of his dismissal still needed to be dealt with as he felt he had been discriminated against.

In his submission for an appeal to extend the application time, the worker argued that he was unable to make an application within the time frame because

  • he did not know about the 21-day time limitation when dismissed
  • he had a shoulder injury and gave priority to it together with his worker’s compensation claim
  • he suffered depression because of being dismissed and injured.

Meanwhile, the employer contended that the ignorance of the allotted time was not an acceptable reason for the delay.

It further said that there was no sufficient evidence that the worker’s shoulder injury nor his mental health prohibited him from applying within the time frame.

FWC’s decision

In deciding the case, the Commission weighed in on the three reasons put forth by the worker on why he had a late unfair dismissal application.

On the worker’s lack of knowledge of the 21-day time limitation, the Commission said that ignorance of such was not an acceptable reason for delay.  

It said that the worker had initial support from his union and a solicitor who could have informed him of his unfair dismissal rights and the 21-day time limit applied.

The Commission also noted that the worker’s shoulder injury could have precluded the worker from taking advice on or making an unfair dismissal claim during the delay period other than perhaps from the duration of recovery from surgery.

Meanwhile, regarding the worker’s compensation claim, the FWC said it is “not of itself an unusual or special circumstance” that could have prevented the worker from making a timely unfair dismissal claim.

Lastly, while the FWC acknowledged the worker’s right to manage his mental health, such a reason fell short of being sufficient evidence that prohibited him from making an unfair dismissal claim.

Hence, because there were no exceptional circumstances that would allow for the extension of time, the Commission dismissed the worker’s appeal for an extension.

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