22 April 2020
A recent decision of the Fair Work Commission (FWC) has highlighted one of social media’s many pitfalls by allowing an employer to rely on a former employee’s posts to defeat a general protections application.
The recent case of Mandy Lee Baillie v PJDH Pty Ltd t/a Brazilian Beauty Fairfield, demonstrates the willingness of the FWC to consider evidence of an employee’s online activity in determining an application.
FWC - general protections application
A general protections application involving dismissal must be made within 21 days after the dismissal took effect.
This time period will only be extended if, after hearing formally from the parties, a Commission Member is satisfied that there were exceptional circumstances for failing to lodge the application on time.
Ms Baillie filed an application pursuant to section 365 of the Fair Work Act 2009 (Cth)(Act) for the Commission to deal with a general protections application disputing her dismissal. Her application was filed 14 days after the statutory 21 day time period had lapsed.
In her application, Ms Baillie acknowledged her delay and sought a further extension of time on the basis that she was unable to file her application due to:
However, all of the arguments raised by Ms Baillie were undermined by a number of her own social media posts, which her former employer submitted as proof that she had left the house on a number of occasions during the period in which her application was due and had access to the internet.
During the time her application was to be submitted, Ms Baillie uploaded a number of posts to social media showing her out with friends and “feeling fabulous”. One post on 22 May 2019 depicted Ms Baillie having lunch at the Breakfast Creek Hotel with the caption going so far as expressing “joy and extreme comfort and even quoted the word “relaxed”.
Despite evidence presented by the former employer, the extension of time application was listed for hearing.
Ms Baillie’s former employer submitted evidence to the FWC and asked that an extension of time not be granted on the basis that Ms Baillie:
From August 2019 to December 2019, Ms Baillie did not appear before the Commission for a number of reasons which were mostly health related. She also failed to return the Commission’s calls and emails. The matter was continuously adjourned.
On 12 December 2019, Ms Baillie’s former employer again requested the matter be dismissed.
In support of its bid to have the case dismissed, Ms Baillie’s former employer provided further screenshots, including an October 2019 post of the former employee drinking gin which she captioned “the Sunday session continues…”, and another in which she described herself as “feeling fabulous”. Ms Baillie’s November social media posts included a series of photographs in which she again described herself as “feeling fantastic” and captioned “Melbourne Cup done right”.
In a last attempt to have the application dismissed, Brazilian Beauty’s Director, Helen Clifton, filed and served a Statutory Declaration claiming to be prejudiced by Ms Baillie’s conduct, as she had to be continuously ready and prepared to attend hearings and respond to the FWC, take time off work and “endure ongoing emotional distress due to the prolonged resolution of the matter”.
The former employer was also “unable to understand” Ms Baillie’s alleged medical reasons for adjournment as she was not too incapacitated to obtain alternative employment, attend licensed venues, participate in social eating and drinking and to attend parties.
As a result of Ms Baillie’s failure to attend for some seven months after the application was filed, the Commission considered the application on the facts and requirements of the Act.
Deputy President Amanda Mansini made no findings about Ms Baillie’s truthfulness in seeking adjournments or explaining her delay but said the employer’s allegations about her dishonesty were “supported by sufficiently proximate social media extracts”.
Furthermore, Deputy President Amanda Mansini noted that, “the Applicant 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”. Furthermore, Ms Baillie failed to “respond to the Respondent’s application to dismiss her claim, or the serious allegations regarding her truthfulness in seeking adjournments of the Commission”.
The application was dismissed.
This case illustrates the FWC’s willingness to take into account an employee’s conduct in their personal life when dealing with claims, including that evidenced by social media posts, where relevant to the claim.
Where an employee alleges a medical condition relevant to their claim, they should be aware that the FWC may not accept these types of assertions where the conduct in their personal life contradicts this position.
Author: Rachel Drew & Allanah Griffiths
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.