Unfair dismissal time limits; medical condition

Here is an extract from a Fair Work Commission case which deals with an application to extend the time in which to make an unfair dismissal application based upon the applicant’s medical circumstances.

“Sometimes an applicant’s medical condition can be so significant that it affects their mental capacity to prepare and file an application. In some cases the Commission has found there to be exceptional circumstances connected to an applicant’s mental illness and in other cases the Commission has not found exceptional circumstances.

[26] In Roberts v Westech IT Solutions Pty Ltd.5 Senior Deputy President O’Callaghan allowed an applicant further time to lodge his application after being satisfied that the primary reason for the delay related to Mr Robert’s depression. Mr Roberts provided advice from his doctor that included details of Mr Robert’s clinical depression over a number of years, details of his use of prescription medication and details of his history of panic attacks after stressful events. In that matter Mr Roberts also said he had been “given the run around by the phone system which took some time to navigate around”, the effect of which appears to have been made worse by his mental health.

[27] Similarly in Beard v Valley Industries Limited 6 Deputy President Saunders found that there were exceptional circumstances “as a result of the significant deterioration in his mental state shortly after his dismissal, [Mr Beard] was not thinking clearly and did not have the cognitive capacity required to make decisions and seek help in relation to his dismissal.” In that matter Mr Beard’s claim was supported by medical evidence from his GP, including evidence that two different medications prescribed to Mr Beard had negative side effects. The Deputy President noted that “after the Applicant commenced on a medication which did not have negative side effects and which started to gradually improve his state of mind, he took immediate steps to obtain the assistance which he plainly needed from Disability Advocacy NSW and the Mid North Coast Community Legal Centre to complete his unfair dismissal application and have it lodged in the Commission”.

[28] In Shaw v ANZ Bank the Full Bench opined that stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves. The Full Bench reasoned that the loss of employment is a serious event in a person’s life, but that such responses and consequences are not unusual. 7

[29] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting 8 the Full Bench accepted a finding at first instance that Mr Underwood had failed to positively demonstrate that his depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within 21 days. In that matter Mr Underwood led evidence from his treating doctor however “[the treating doctor] did not clinically diagnose the applicant as being unable to file his unfair dismissal application. Rather, she simply repeated what the applicant told her about his self-assessment of his alleged psychological incapacity to lodge an unfair dismissal application during the relevant 21 day period.” The Full Bench affirmed the finding at first instance that the medical evidence “did not positively demonstrate that the Appellant’s depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame” and also the finding at first instance that no exceptional circumstances were established. The Full Bench in Underwood cited with approval the decision of SDP O’Callaghan in Roberts but found “the facts in the matter before us are quite different and the circumstances of each case must be considered in their own unique context.”9

[30] In Merhi v Commonwealth of Australia 10 the Full Bench assessed the applicant’s evidence from her treating psychologist concerning her “major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder” primarily by reference to the psychologist’s assessment of Ms Merhi’s capacity to act. The Full Bench endorsed the finding at first instance that on the evidence “the appellant’s mental state did not prevent her capacity to engage in day to day activities in the period shortly after her release from prison, and certainly does not explain the [relevant] period of delay.”11

[31] It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. The practical reality is, however, that it is very difficult for the Commission to make informed findings about an applicant’s capacity to complete and file their application within the statutory time limit without proper and specific medical evidence.

[32] In summary the following principles apply:

(i) stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves (per Shaw);
(ii) 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 (per Roberts, Beard and Underwood);
(iii) 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 (per Beard, Underwood and Merhi); and
(iv) an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).”

……………………………………………The mandatory factors collectively

[53] As referred to above, the Full Bench in Stogiannidis reasoned that no one factor needs to be exceptional in order to enliven the jurisdiction to extend time and individual factors might not be particularly significant when viewed in isolation, but that I must also consider the matters collectively and ask whether they disclose exceptional circumstances. 19

[54] In this case none of the above matters considered individually point towards there being any exceptional circumstances. For completeness I am still not satisfied that there are exceptional circumstances after reviewing the above matters collectively.”

Rosso v Teddy Bear Cottage Early Childhood Services Pty Ltd (2022) FWC 189 delivered 28 January 2022 per Easton DP