An employee who attempted to take his own life after being dismissed from his job has been allowed to file his unfair dismissal application 33 days late.

Damstra Technology had verbally dismissed the employee with immediate effect for allegedly drafting a fake letter using the company’s letterhead and also allowing a third party to access its IT equipment, software and confidential information.

Three days later, the employee received a termination letter from the company. He attempted to commit suicide the day after.

In his unfair dismissal claim, the employee asserted that the employer could not prove he was the author of the fraudulent letter and also explained that his laptop was in the custody of his former partner. Because they had broken up, he could not obtain it as he was refused entry to the premises.

He told the Fair Work Commission (FWC) he was late completing his application because “work was the last thing on his mind … he was suffering memory issues … and … he was trying to look after himself”.

However, his former employer, Damstra Technology, objected to the late application, submitting that the employee provided no evidence from his treating doctors to explain the duration and level of his incapacity during the time before he lodged his unfair dismissal claim.

FWC Deputy President Tony Saunders rejected this argument.

“It is plain on the evidence that [the employee] was significantly impacted in his capacity to file his application due to a traumatic event in [the employee’s] life, namely a ‘serious life threatening suicide attempt’, which required [the employee] to spend most of the next two months in medical institutions receiving medical treatment and focusing on little apart from his recovery,” he said.

“As to the time [the employee] spent out of medical institutions … I accept [the employee’s] evidence that he spent most of that time sedated by the medication he was taking.”

At the time when the employee was dismissed, he had a medical certificate for one month’s absence from work, due to work-related stress, anxiety and exhaustion.

Despite this he attended work for part of this time.

“He did so because he felt guilty about not undertaking particular work,” Deputy President Saunders found.

Damstra Technology also criticised the employee for not calling his father to give evidence at the hearing.

It argued to the FWC that this gave rise to a ‘gap’ in the employee’s evidence in his application for an extension of time, as his father had helped him prepare and lodge the application whilst he was in a medical institution.

Deputy President Saunders also rejected this.

“I do not accept Damstra’s submission that [the employee’s] failure to call his father to give evidence gave rise to a ‘gap’ in the evidence,” he said.

“This is not a case where representative error is the reason for the delay and evidence is required from the representative to explain the error and its impact on the delay.

“[The employee] has given direct evidence of his father’s involvement in the preparation of the application and his earlier discussions with his father about his dismissal and his responses to the reasons relied on by Damstra for terminating his employment. There is no relevant ‘gap’ in the evidence.”

Deputy President Saunders dismissed the employer’s jurisdiction objection to the late application.

“[The employee’s] circumstances were out of the ordinary course, unusual, special and uncommon, because he made a serious attempt to commit suicide four days after his dismissal and spent about the next two months of his life receiving medical treatment and focusing on his recovery,” he said.

“The exceptional circumstances threshold having been met, I am also satisfied, for the same reasons, that it is appropriate to exercise my discretion to extend time.”