Western Australian Industrial Relations Commission

Extension of time to institute proceedings granted for medical reasons

The Public Service Appeal Board (Board) has granted an extension of time to institute proceedings against the decision to terminate the appellant’s employment on the basis that the appellant was unwell, had no capacity to work and thus was unable to file a Notice of Appeal.

The appellant was dismissed on 6 January 2020. He filed a Notice of Appeal against the decision on 26 March 2020, two months after the deadline for the regular filing of an appeal.

The appellant argued that he was unwell and pointed to medical certificates which certified him as having no capacity for work from 16 December 2019 to 16 April 2020. The medical certificates stated that the appellant was suffering from a post-traumatic stress disorder related to an incident that occurred years before.

The respondent contended that medical issues were not a good reason for the delay and argued that the would-be appellant had engaged in several communications with a union and some Parliamentarians during the period of time covered by the medical certificates.

The Board rejected the respondent’s argument and accepted that suffering a post-traumatic stress disorder and being unable to work excused the appellant from turning his mind to the completion and filing of a Notice of Appeal.

The Board also found that the period of delay was not excessively long and was adequately explained, the respondent would not suffer any particular prejudice and the appeal grounds were worth hearing.

The Board noted that it had amended its Reasons for Decision after the respondent pointed out that the Board had overlooked a communication between the appellant and Minister on 9 March 2020. The respondent had contended that this communication proved that the appellant had capacity to draft and file a Notice of Appeal earlier than 26 March 2020.

However, the Board rejected this argument and found that drafting a letter to a Minister does not require the same level of health and wellbeing as commencing legal action.

The Board granted an extension of time.

The decision can be read here.

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