Will FWC accept late application after worker claims he was 'not mentally fit'?
The Fair Work Commission (FWC) recently dealt with a delayed claim of a worker who said he was “not mentally fit” to file an unfair dismissal application on time.
The worker, Geoffrey Whittaker, filed before the Fair Work Commission (FWC) seeking a remedy against the termination of his employment by Eurocold Pty Ltd.
He started working for the employer on 12 September 2022, and he alleged that his employment was terminated on 13 July 2023, with the dismissal taking effect on the same day.
He filed his application on 6 August 2023, which fell three days beyond the statutory 21-day timeframe stipulated under the FW Act.
The worker said that approximately seven business days following his dismissal, or on 24 July 2023, during a conversation with one of the employer's management members, he expressed that he had been unfairly dismissed.
He said, "I feel like I have been unfairly dismissed, to be honest. I have had some advice, and this is why I am doing what I am doing."
‘Not mentally fit’ to submit application
The FWC noted that considering that the worker sought advice within the 21-day timeframe and was aware of the unfair dismissal process, it is reasonable to presume that he was aware that he was required to file the application within the prescribed period.
Additionally, the worker claimed that he was "not mentally fit" to submit the application." However, the Commission noted that he did not provide any medical evidence to prove his claim.
HRD previously reported about a worker who wanted his “depressive state” to be accepted as an “exceptional circumstance” to allow his late claim.
In that case, the FWC laid down the criteria for assessing a worker’s mental health condition. It said that providing medical evidence to prove a condition is “not a requirement per se,” but said the following principles apply to help the commission make “informed findings” to allow a late claim:
- stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves;
- a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the applicant’s capacity to lodge the application within the statutory time limit;
- the evidence should positively demonstrate that the applicant’s depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21-day time frame; and
- an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient.
No supporting evidence of late application
Here, in the present worker’s case, he was not able to provide any supporting evidence that would justify the extension of his application.
The Commission said that the worker was either aware or should have been aware of the timeframe and has not presented reasons for the delay that could be deemed exceptional circumstances.
Notably, the worker acknowledged his termination on 13 July 2023, upon receiving his termination letter, and further confirmed his awareness of the dismissal when he contacted the employer on 24 July.
Thus, the Commission ultimately dismissed his application.
