• October 2021 - The Applicant began experiencing the onset of symptoms. Both the Applicant and Respondent were not aware of this onset. The Applicant's lack of awareness around their symptoms can be attributed to the nature of the condition itself.

• November 2021 and December 2021 - Fellow employees of the Applicant noticed behaviors reflective of declining mental health. The Applicant's coworkers raise concerns over the Applicant's fitness for work. The Respondent instructed the Applicant to attend a medical assessment. The Applicant, unaware of their mental health condition, refused to engage with Respondent in completing a medical assessment.

• January 2022 - The Applicant's mental health condition and associated symptoms worsen.

• 18 January 2022 - The Applicant is dismissed from employment with the Respondent.

• March 2022 - The Applicant's family grow increasingly concerned over the Applicant's mental health, physical health, safety, and welfare. The Applicant's family attempt to prompt treatment. The Applicant refuses treatment.

• May 2022 - The Applicant's family again contact local mental health services. The Applicant continues to refuse treatment.

• June 2022 - The Applicant's mental health condition continues to worsen. The police attend the Applicant's residence several times. Following further intervention from the police, an ambulance is called, and the Applicant is confined for psychiatric treatment.

• 17 June 2022 - The Applicant is formally diagnosed. Medical professionals, during the involuntary hospitalisation, confirm that the Applicant has Schizophrenia.

• July 2022 - The Applicant is discharged from the psychiatric treatment facility. The Applicant has a family member living with them and is subject to an involuntary community treatment order.

• 26 July 2022 - The Applicant submits this application to the Commission.

The Applicant provided copies of three medical documents which confirmed that they were diagnosed with Schizophrenia on 17 June 2022 and were receiving treatment for their condition until 18 July 2022. The documents confirmed the Applicant would require on-going monitoring until November 2022 to ensure compliance with the Mental Health Orders:

• The Applicant provided a copy of a Centrelink medical certificate dated 13 July 2022.

• The Applicant provided a copy of their discharge summary, dated 18 July 2022, which confirmed they were admitted on 17 June 2022.

• The Applicant provided a copy of a Mental Health Tribunal treatment order, dated 21 July 2022.

I am also satisfied that, due to the nature of the condition, the Applicant experienced significant difficulties recognizing their own worsening condition.

It is reasonable to conclude that the Applicant was having significant issues maintaining their grip on reality and, accordingly, was not in a mental state to adequately address their termination.

I do not accept the Respondent's submission that, because the Applicant lodged two other matters before this current application, the Applicant's attempts to remedy the termination lead to a finding that they were capable of lodging within time or that they only lodged this application due to the failure of the previous applications.

It is understandable that the lodging of the previous applications may, in many cases, make it appear as though an applicant was capable of lodging a subsequent application within time. However, that is clearly not the circumstances of this matter. It is abundantly clear that the Applicant was unable to function, in even the most minimally satisfactory way, to support their vital life needs let alone initiate legal proceedings.

Rather, it is reasonable to conclude that the Applicant was aggrieved by their termination and attempted to address the termination but was so far from any ability to do that in the ways required by the Commission due to the fact that they were experiencing severe Schizophrenic symptoms.

I am satisfied that, for almost all of the delay, the Applicant was not even remotely close to being in a mental state where they could have satisfactorily complied with the lodgment requirements.

The Applicant suffered from a significant mental health condition which was not treated until approximately 5 months after the termination had taken place.

From the evidence and the timeline provided of the Applicant's circumstances, it is reasonable to conclude that the Applicant was suffering from the mental health condition for approximately 7 weeks prior to their employment being terminated with the Respondent.

It is therefore a reasonable conclusion that the Applicant was not able to provide any explanation for their behavior during the show cause process and, in the period immediately following the termination, when they could have filed an application in time.

I therefore find that the Applicant did not have the benefit of being medically fit for the entire of the period from the termination until completing treatment in a mental health facility.

I find that it is reasonable, and entirely defensible, that the Applicant was unable to file their application until such time as their mental health condition was stabilized."

• [24] The submissions provided by the Respondent in relation to this jurisdictional objection were limited. Having considered the submissions regarding the relevant provisions of the Act, I do not accept that the position of the Respondent is consistent with the intention of the Act.

• [25] As I have previously found, the Applicant was suffering from a serious and significant mental health condition during the period in which they attempted to make the previous application.

• [26] Clearly, the Applicant was utterly lacking in the ability to pursue any remedy concerning the dismissal during the period in question. I am satisfied that the Applicant was unable to competently make and pursue any application due to the severity of their condition.

• [27] The Applicant's unfair dismissal application was never heard by the Commission and the Commission was notably unable to make any findings regarding the merits of the matter due to the inability of the Applicant to prosecute such matter.

• [28] The Applicant's Unfair Dismissal application was dismissed subsequent to their apparent defiance in attending a listing of the Commission not in the manner requested, alongside the history of non-compliance. I note that the existence and severity of the Applicant's condition was not clearly articulated to those who dealt with the previous applications, and the related behaviour caused by such condition, in the absence of such information, gave rise to the dismissal of the matter.

• [29] The Unfair Dismissal application was extinguished well before the lodging of the current application. This is not the circumstance where the Respondent must defend itself against multiple applications concurrently. Further, this is not the circumstance where the Applicant has failed at a previous attempt to secure a remedy and is merely attempting to try their luck at another.

• [30] Accordingly, I am not persuaded that Subdivision B of Division 3 of Part 6-1 of the Act applies in respect of the previous application.

• [31] In making this conclusion, I highlight the severity and nature of the Applicant's condition at the time of the previous application was such that they were wholly unable to competently address many of the basic requirements for the regular maintenance of everyday life, let alone pursue any application for remedy.

• [32] A finding to the contrary would be inconsistent with the medical evidence submitted by the Applicant. Further, I strongly believe that a contrary finding would be inconsistent with the statutory intention and purpose of the relevant provisions of the Act, the objects of the Acts, and the Matters the Commission must take into account in performing functions.

• [33] At no point in time has the Respondent, to any notable degree, been required to defend itself against the merit of any application nor has the Applicant been afforded the opportunity to competently put forward the merits of any application.

• [34] Above all, I note that the circumstances in the present matter are extraordinary and rare, owing largely to the severity, duration, nature, treatment, and evidence concerning the Applicant's prior mental health deterioration.

• [35] I have considered that circumstances surrounding this application filed by the Applicant, and I have formed the view that this does not fall within the confines of the intention of section 725 of the Act.

• [36] Therefore, I am dismissing the jurisdictional objection of the Respondent, the matter has been programmed accordingly.

[1] [PR761296].

[2] [PR745687].

[3] [2011] FWA 2292, [11].

[4] [2011] FWA 2292, [13]-[14].

[5] [2011] FWA 2292, [15]-[16].

[6] [2014] FWCFB 3582, [43].

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