Worker who suffered 'workplace rumours' fails to extend dismissal claim
A worker recently filed an unfair dismissal application before the Fair Work Commission (FWC), alleging that she was constructively dismissed when her employer didn’t take immediate action about workplace rumours and conduct that “negatively affected” her.
The worker, Jennifer Edwards, filed an application asserting that her employer, Coles Supermarket Australia Pty Ltd, breached the FW Act by dismissing her.
The employer has raised two initial objections to the application. Firstly, they argue that the application exceeded the 21-day statutory filing period, with no exceptional circumstances warranting an extension. Secondly, the employer contends that Edwards resigned voluntarily.
Workplace rumors and disputes
Edwards started as a casual worker with the employer in March 2023. On 9 July 2023, she formally complained to her employer about rumors and negative discussions by other employees.
Later, on 16 July 2023, Edwards engaged in a verbal altercation with a fellow employee, resulting in a discussion with the store manager, but there was no formal disciplinary action.
In September 2023, Edwards reported to the store manager that another employee had sent inappropriate messages and vandalized her car. Around this time, the employer said that the worker expressed her intention to resign but ultimately did not.
On 14 October 2023, Edwards sent an email to the employer titled 'resignation,' citing concerns about the safety of herself and others.
The employer interpreted her email as a voluntary resignation, and the email expressed gratitude for the opportunities she was given.
The worker filed the dismissal application on 9 November 2023, with an amended version submitted on 15 November 2023. It is uncontested that Ms. Edwards' employment concluded on 14 October 2023.
The deadline for filing the application lapsed on 4 November 2023, making the application five days overdue.
Late Fair Work application
According to the worker, the store manager told her that "if she could not work with her fellow employees, she would have to find another job."
She said that "because of her deteriorating health and the attacks on her character, she was left with no option but to resign her employment."
The worker said she faced "various financial, mental and emotional issues in the period following the end of her employment."
She said that she "had consulted with various health and social support professionals about her situation, including whether or not she should proceed with an application to the Fair Work Commission."
She also provided a letter from her treating psychologist "to demonstrate that she had been regularly consulting with him and that the [worker's] most recent treatment had focussed on the negative impact of the treatment that [she] said she had experienced in the workplace."
‘Long and careful consideration’
The FWC said that she "quite understandably sought professional help after her employment had ended."
"Some of the advice counselled against making an application on health grounds. No doubt that [she] acted on the advice she received in what she believed to be her best interests at the time."
"The [worker] submitted a resignation on 14 October after what she described as 'careful consideration.' She had the full benefit of the 21-day time period," the FWC said.
The FWC added that it "did not consider that her circumstances were such that she was unable to file the application on time."
"[She] took the time [to] explain that the resignation was the result of 'long and careful consideration.' Moreover, [the store manager] gave evidence that he was not at work on the day of the resignation and attempted to contact [her] after she had tendered her resignation to discuss it, but then [she] did not answer the telephone or return his call."
Thus, the FWC said that there were no exceptional circumstances that would justify the delay in filing her application. It then rejected the worker’s claim against the employer.
