Fair Work checks if there's 'compelling evidence' to ignore deadline
A worker recently filed a request to extend the period of his unfair dismissal application before the Fair Work Commission (FWC), alleging that his health deteriorated after his dismissal, which also led to hospital visits.
The worker, Brian John Verity, sought an unfair dismissal remedy against his employer, Grampians Health (formerly known as Ballarat Health Services).
The worker said his dismissal happened on 25 August 2023, and he filed the unfair dismissal application on 5 October 2023.
His 21-day period expired at midnight on 15 September. The worker, however, has requested the Fair Work Commission to grant an extension for his application.
The worker started working for the employer as a security officer on 21 September 2015 and claimed to have a clean disciplinary record throughout his nearly 9 years of service.
His dismissal, as he reported, was the result of an incident on 7 August when he was assaulted while performing his duties in the emergency department at the Grampians Health Ballarat hospital.
‘Allegations Letter’ outlines concerns
Following this incident, the worker received an "Allegations Letter" on 9 August, outlining concerns regarding his conduct during and after the incident, leading to his suspension on pay pending a formal disciplinary investigation.
The letter alleged that he had engaged in a physical altercation in the workplace, constituting serious misconduct.
A few days later, he attended a formal interview and, without a support person or representative, chose not to be accompanied.
After the formal investigation, the worker received a "Findings and Preliminary Outcome Letter" on 17 August, in which the employer concluded that the allegations were substantiated, and that the worker's conduct warranted disciplinary action.
Worker acted in self-defence
The worker was given the opportunity to present additional information to prevent his termination.
In response, the worker, on 19 August, explained that he was the victim of an unprovoked assault and had acted in self-defence.
He cited several mitigating factors, such as inadequate staff training and body-worn cameras and a lack of support during the incident.
On 25 August, the employer sent a "Letter of Termination" to him, advising the disciplinary investigation's outcome and the decision to terminate his employment immediately due to safety concerns.
The worker sought medical attention, and on 11 September, he underwent a chest x-ray that suggested possible rib injuries.
Later, on 18 October, he obtained a medical report from his GP, which detailed his physical and mental health conditions post-termination.
Request to extend his dismissal application
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 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.
Worker’s health issues
According to records, the worker said he experienced a decline in his mental and physical health after his dismissal.
He claims to have suffered from shock, depression, persistent headaches, and chest pains, which were subsequently diagnosed as two broken ribs. He also noted hospital admissions as a reason.
The worker said the deterioration of his overall well-being in the aftermath of his termination left him in no condition to promptly seek assistance in submitting an unfair dismissal application within the 21-day timeframe.
Should the claim be extended?
The FWC said it was “unable to conclude in the absence of more compelling evidence” that it was because of the state of his health that he was unable to file his application before the 21-day period had passed or an earlier time than he did file the application.
It said the hospital records “may explain a brief period of incapacity” but said that they “do not explain the entire period of the delay or even a significant portion of it.”
The FWC added that it was “not satisfied that the physical and mental health issues raised by the [worker], when considered either individually or collectively, provide an adequate explanation for the delay in the filing of the application for an unfair dismissal remedy.”
Consequently, it dismissed the worker’s application against the employer.
