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Significant Mental Health Challenges Warrant Extension in Unfair Dismissal Case: Fair Work Commission Ruling

The Fair Work Commission (FWC) has granted a 13-day extension to a worker experiencing "significant" mental health challenges, permitting her to file an unfair dismissal claim after the deadline. This decision underscores the recognition of severe mental health issues, beyond the "ordinary stress" associated with most dismissals, as a valid reason for delay.

The worker, a junior salesforce administrator at Leap Software Developments Pty Ltd, was informed that her role was made redundant effective immediately on February 20. She lodged her unfair dismissal claim on March 25, 13 days past the 21-day filing deadline stipulated under the Fair Work Act 2009 (Cth) s. 394(2).

Significant Mental Health Challenges Warrant Extension in Unfair Dismissal Case: Fair Work Commission Ruling
Significant Mental Health Challenges Warrant Extension in Unfair Dismissal Case: Fair Work Commission Ruling

In her defence, the administrator presented a report from a senior clinical psychologist detailing her struggles with adjustment disorder, depression, anxiety, trauma, and insomnia. The report highlighted how these issues compromised her resilience and affected her ability to manage day-to-day tasks, including filing the necessary documentation for her unfair dismissal application.

Email evidence revealed that the administrator had informed Leap of her pregnancy on February 14. On February 19, a day before her dismissal, Leap had congratulated her and provided the parental leave policy and application form. She testified that her doctors considered her pregnancy high-risk, adding to her stress.

Leap argued that the administrator's ability to attend medical and legal appointments and complete medical paperwork indicated she was capable of filing her dismissal claim on time. However, Commissioner Stephen Crawford rejected this argument. He acknowledged the significant mental health issues and high-risk pregnancy, recognising these factors as contributing to her delay.

Commissioner Crawford found the administrator had a valid reason for the delay up to March 18, when she sought assistance from Allwell Legal principal Zherui Yang. Due to her mental health issues, she was unable to file the application without help. Yang explained that collecting supporting evidence for the application caused additional delay.

Commissioner Crawford noted that the appropriate course of action, given the 21-day period had already lapsed, would have been to file the application urgently with the available information. While the further seven-day delay could be attributed to representative error, there was insufficient evidence to establish this definitively.

Ultimately, Commissioner Crawford marginally found that the administrator's mental health issues and high-risk pregnancy constituted exceptional circumstances under s. 394(3) of the Fair Work Act 2009 (Cth). He stated, "The medical evidence establishes that the issues were substantially more than the ordinary stress that will inevitably arise with most dismissals."

Genuine Redundancy Questioned

Commissioner Crawford also questioned Leap's claim that the dismissal was a genuine redundancy. He suggested the administrator had reasonable prospects of proving her dismissal did not meet the Fair Work Act 2009 (Cth) s. 389 definition of genuine redundancy.

He pointed out that Leap may have failed to consult with the administrator about the impending retrenchment as required under the Fair Work Act 2009 (Cth) s. 389(1)(b). While Leap claimed her role was not covered by a modern award, Commissioner Crawford expressed doubt, noting her role and $80,000 salary likely fell under a modern award.

"It appears arguable that Leap did not comply with the consultation provisions in the relevant modern award," he said, citing a lack of submissions or evidence from the administrator's lawyers on this issue.

The administrator testified that she was unaware of any restructuring process leading to redundancy at the time of her dismissal. The parental leave application form sent the day before her dismissal gave no indication of her employment's imminent end.

Commissioner Crawford concluded, "Given the timeframes involved, there is significant doubt that redeployment was properly considered by Leap." He found that the administrator's significant mental health issues, the steps taken to dispute her dismissal, and the potential merit of her application collectively constituted exceptional circumstances.

This ruling highlights the FWC's recognition of severe mental health challenges as a valid reason for delays in filing unfair dismissal claims, emphasising the importance of comprehensive mental health considerations in employment disputes.

Case Citation

Jaweeria Khan v Leap Software Developments Pty Ltd [2024] FWC 1218 (9 May 2024)


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