Unfair dismissal extension of time – are medical circumstances sufficiently ‘exceptional’?


Posted By on 17/06/16 at 2:15 PM

Two recent FWC decisions where medical circumstances were advanced by employees in relation to extensions of time for their unfair dismissal applications raise interesting issues, especially given our recent seminar on managing ill, injured and absent employees.

In Hickey v Australia Post, following medical retirement by Australia Post, Hickey argued his anxiety, which he said was heightened in dealings with Australia Post, and the associated medication justified his 28 day late application. DP Kovacic considered the employee’s demonstrated anxiety at the telephone hearing, but noted the employee remained capable of corresponding with his employer during the period. He accordingly found that there were no exceptional circumstances warranting an extension of time and dismissed the application (see the decision here).

In Kyte v Fire Trucks Australia however, a 64 day extension was granted to an employee who suffered what she described as a “mental breakdown” following the lack of response to matters she raised with her employer in the week following dismissal in circumstances where consideration of those matters and a response was promised. Medical certification was provided regarding the employee’s mental health. SDP Drake concluded here that exceptional circumstances existed warranting an extension of time (see the decision here).

Consistent with previous cases, these decisions demonstrate that medical conditions and/or the effect of medication can constitute exceptional circumstances if the employee’s situation is out of the ordinary, unusual or uncommon. However where there is no evidence as to the effect on the employee’s ability to make their application, or there is an indication to the contrary such as the capacity to communicate with the employer at the time, such a finding is unlikely to be made.

Claire Brown Principal Solicitor

Claire is a Principal Solicitor in our Workplace Relations & Safety team.  Claire joined KHQ in 2014 with over fourteen years’ experience in operational workplace relations and HR across... Read More