FWC says worker 'made a choice' to delay her filing
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a worker whose contract has been terminated due to alleged excessive sick leave.
However, the Commission first had to determine whether an extension of time would be granted to the worker’s unfair dismissal application.
'Health incapacity'
According to the FWC, the worker commenced her role as a case manager in the administrative appeals branch in May 2022, until the termination of her working relationship on 17 March 2023.
The employer argued that the worker was engaged as an independent contractor by the company based on a contractor agreement dated 30 May 2022.
However, around March 2023, the company decided to terminate the contractual agreement with the worker. Hence, the employer advised her of the end of her contract.
The worker then confirmed that during a phone call with the employer, the latter advised her that the contract had been terminated due to the worker’s excessive sick leave.
With regard to this reason for her contract termination, the worker argued that she had always provided the employer with medical evidence of her sick leave and informed her employer on time.
Hence, the worker applied for an unfair dismissal claim. However, the FWC noted that the dismissal application was made around 16 days outside of the statutory period.
“The Applicant [worker] initially stated that the delay in making her application could be explained on the basis that she was waiting for a ‘Separation Certificate’, and for information as to the reason for her termination to be provided in writing,” the Commission stated.
“The Applicant [worker] further explained that the delay in making her unfair dismissal application was due to her having been admitted to hospital on 24 March 2023 by ambulance, along with various medical follow-ups after a number of medical episodes,” it added.
HRD previously reported about a worker who contended that she was unfairly dismissed from work after failing to attend her scheduled medical appointments.
FWC’s decision
After examining the case, the Commission ruled that there were no exceptional circumstances that warranted an extension of time for the worker’s unfair dismissal application.
It noted that while the worker was later certified as having an incapacity for work, study, or participation in any activities in a span of time, she was still able to correspond with the employer regarding requests for reasons for the termination of the working relationship.
“The material before the Commission and the Applicant’s [worker’s] oral evidence discloses that the Applicant [worker] made a choice to delay filing her unfair dismissal application until in receipt of a Separation Certificate and the reasons for the termination of the Contractor Agreement,” the Commission stated.
“Furthermore, her incapacity from a health perspective, was, in my view, limited to a period of two days, hence leaving 14 days of the delay period unaccounted for,” it added.
