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Mentally ill employee unable to file late unfair dismissal claim

By Portner Press on August 7th, 2019
  1. Termination of Employment
  2. Unfair Dismissal

The Fair Work Commission (FWC) has rejected a four-week-late unfair dismissal application from a pizza restaurant worker who threatened to shoot her manager on Facebook.

The employee was then visited by police who advised her that she couldn’t make such posts on social media.

When she explained to them that she had posted the threat – which she later deleted – during a psychotic episode, she said one of the police officers told her there were laws in place protecting workers with mental health conditions and that she could go to “Fair Work” to “get them where it hurts”.

The police officer reiterated this advice when he saw her again at her new workplace.

In the employee’s unfair dismissal application she stated that she believed she was dismissed after making an unsuccessful attempt to contact her manager on Facebook Messenger to ask about her shifts.

The employee claimed she was dismissed because of a temporary absence due to her illness and that she had been discriminated against based on her disability.

She said that her “unstable mental health condition”, which she said attributed to the delay in lodging her application, had progressively “got worse” the longer she worked with the employer.

Following her dismissal, she said she “couldn’t function”.

“[I] was unable to shower myself hardly able to work I was on the brink of admitting myself into hospital because I just couldn’t cope with life or anything really I was having thoughts of suicide constantly I felt worthless and that I was a failure they took everything I have worked so hard the last 10 years to become more attuned to my illness and keep myself well and turned my life into hell,” she submitted in her application.

Was the employee really dismissed?

FWC Deputy President Bryce Cross found that neither the employee nor employer established whether the employment had been terminated.

The employee herself stated in her application that she “didn’t get officially fired”.

The manager also maintained that she “did not try to dismiss” the employee and had “tried to work with her”.

“[A]s I am not a qualified mental health expert I did not know if her behaviour was from her mental illness or not,” the manager submitted.

Deputy President Cross said it wasn’t apparent why the employee assumed she was dismissed because she couldn’t contact her manager on Facebook Messenger, particularly as she conceded she wasn’t ‘friends’ with her on Facebook in the first place.

He questioned why the employee made no other attempt – in person, by telephone, email, or any other means – to contact the manager to confirm that she had been dismissed.

“There will be considerable difficulty for [the employee] to establish the elements of the contravention had she not been dismissed. For this reason, the merits of the application weigh against [the employee],” Deputy President Cross said.

Illness not the only reason for the delay

Deputy President Cross also said the employee didn’t have an “acceptable reason” to explain the lateness of her unfair dismissal application and in her correspondence had “probably inadvertently, provided a somewhat different reason for the delay”.

“While it is clear that [the employee] was suffering from mental health issues at the time of her dismissal, that illness does not explain the totality of the delay,” he said.

 “[The employee] does not submit that she lacked knowledge of the 21 day statutory requirement for which such an application is to be lodged, and it seems that [the employee] had never intended to lodge her application until she was prompted, when she was apparently subsequently employed.

“I am not persuaded that [the employee’s] mental health issues were the sole reason for the late lodgement of her application.

“I am therefore not persuaded that there are exceptional circumstances. I order that the application be dismissed.”

Relationships with employees can be tricky

But with professional guidance from the Employment Law Practical Handbook they don’t have to be.

The following chapters in the Handbook provide clear, comprehensive insight on how to approach the issues raised in this bulletin:

A1 Absenteeism

D1 Discrimination

D2 Dismissal

E5 Employment Interruptions

F1 Fair Work Commission

G1 General Protections – Protected Attributes and Activities

M2 Mental Health in the Workplace

R3 Resignation

S7 Social Media

S8 Small Business Employers

U1 Unfair Dismissal

You can access all of these chapters and many more for free with our no-obligation trial.





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