Case study – unfair dismissal claim
Are you aware of the process of eligibility when an employee files an unfair dismissal claim with the Fair Work Commission?
To be eligible to claim unfair dismissal the employee must meet certain criteria such as:
- whether they have already been dismissed
- whether they are an eligible employee
- how long they have worked for the practice and
- whether the claim has been lodged within the 21-day timeframe
However, a recent decision by the Fair Work Commission has shown this process can be altered, dependent on extenuating circumstances. The circumstances in this case refer to the 21-day timeframe to lodge a claim.
The 21-day timeframe to lodge an unfair dismissal claim starts from the day after a dismissal but in a recent decision, the Fair Work Commission (FWC) determined ‘significant’ mental health challenges were sufficient to warrant a 13-day extension to a pregnant employee’s unfair dismissal claim.
The applicant claimed her employer, Leap Software Developments Pty Ltd, told her that her position had been made redundant and was effective immediately, only six days after announcing her pregnancy. The applicant subsequently filed an unfair dismissal claim but filed it 13 days after the deadline for filing.
Leap Software Developments Pty Ltd submitted that given the applicant was able to attend medical appointments and seek legal advice, she did have the ability to complete the application within the required timeframe, which was not accepted by the FWC.
In consideration of the criteria that would warrant an extension, the FWC noted the following issues ‘collectively constituted exceptional circumstances’
- significant mental health issues beyond ‘ordinary stress’ and related symptoms which were detrimental to her ability to perform daily tasks such as completing an unfair dismissal application;
- compromised resilience due to diagnosed adjustment disorder;
- clinically diagnosed depression, anxiety, trauma and insomnia
- high risk pregnancy
- substantial medical advice
- steps taken by the applicant to challenge her dismissal despite significant emotional and psychological strain, and
- merits of the application appeared to be strong given the factual circumstances
Employers are reminded that whilst employees have a strict 21-day deadline after their dismissal to file an unfair dismissal claim, where an employee can establish there are ‘exceptional circumstances’ taking into account a number of factors, the FWC can grant an extension for employees to file their claim. In recent times, the FWC appears to be more willing to consider and grant such extensions.
If you have any questions relating to unfair dismissal or anything else that has come up in this article, please contact the WR Team on 07 3872 2264 or email us at workplacerelations@amaq.com.au.