Was the FWC too slow dismissing a general protections claim?
In Mandy Lee Baillie (2020) the Fair Work Commission (FWC) dismissed a 14-day-late general protections application when it found the reasons provided for the delay were obviously not true.
But it took the FWC nearly 7 months to dismiss the case, even though the worker didn’t cooperate with the Commission and the employer provided evidence of social media activity that gave her game away.
Worker was ‘relaxed’
The beauty therapist, who was dismissed from Brazilian Beauty in Brisbane, stated in her application:
“My financial circumstances prevented me from having any access to the internet, and suffering from extreme anxiety and agoraphobia, I was unable to leave my home in the time required to submit my application.”
The employer contested this, submitting that the worker provided no medical evidence of her alleged conditions and that she left her home on a number of occasions during that period.
Her social media posts were proof of this.
In one post of her having lunch at Breakfast Creek Hotel, the employer said she expressed “joy and extreme comfort and even quotes the word ‘relaxed’”.
The venue also offered “free pub Wi-Fi” she could have used to submit her application, the employer added.
Wasting everybody’s time
The worker did not attend any of the scheduled hearings, even though she had sought adjournments, and she did not return calls or reply to emails from the FWC.
However, the employer abided by all of its obligations throughout the process and continually requested that the Commission dismiss the matter.
While the worker had alleged medical reasons for seeking adjournments, her social media posts told a different story.
The employer submitted a number of screenshots to the FWC which included:
“Mandy Lee Baillie is drinking gin with Michael Murray in Brisbane”, with a photograph of a Gordon Gin bottle and a caption “The Sunday session continues…”
“Mandy Lee Baillie is feeling fabulous with Kath Baillie and Bree Britten at Fiori Institute of Skin and Body” with a photograph
“Mandy Lee Baillie is feeling fantastic with Michael Murray at Mr Percival’s with a series of photographs and a caption “Melbourne Cup done right”
“Mandy Lee Baillie is eating lunch at Zeus Street Greek” with a photograph and a caption “Lunch Break….”
‘Compliance sporadic to non-existent’
“[The worker] did not file her application within the statutory timeframe. Then, in seeking an extension of time to allow her claim to proceed, she did not comply with directions of the Commission, failed to attend proceedings and ignored the Commission’s attempts to communicate,” FWC Deputy President Amanda Mansini said.
“Her compliance has waned from sporadic to non-existent. But she has not discontinued her claim.
“[The worker] did not respond to [the employer’s] application to dismiss her claim, or the serious allegations regarding her truthfulness in seeking adjournments of the Commission (or indeed similar allegations regarding the truthfulness of her reasons for delay in filing the application).
“Those allegations were supported by sufficiently proximate social media extracts.
“I make no finding in this regard but observe that, on the materials before the Commission, there appears to be sound basis for [the employer’s] concerns such that further inquiry was warranted had [the worker] sought to pursue her claim.
“Even if I were to accept [the worker’s] alleged medical conditions and the medical evidence filed during the course of the proceedings, this would not reasonably explain her many instances of non-compliance including her disregard of directions of the Commission, unexplained non-attendances at Commission proceedings and complete failure to respond or communicate since 28 November 2019.
“For the above reasons, I have determined that the application should be dismissed.”
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