Worker fails to extend late claim against 'bully' manager

Employer argues worker did not provide appropriate medical evidence

BY Paulinet Tamaray 20 Oct 2023

A worker recently attempted to extend her unfair dismissal application before the Fair Work Commission (FWC), alleging that she suffered misconduct from her management during her tenure.

Despite her termination, she submitted written reports against her direct manager. However, the employer argued that the period to file her application had expired.

According to records, the worker provided several reasons for the delay in submitting her claim:

Initially, she said she sought her phone records from her mobile service provider to validate her belief that her probationary period had been mishandled by her direct manager.
She alleged that this evidence was essential to substantiate her claims of being bullied and harassed by her direct manager and did not want to make such serious allegations without proper supporting evidence.
She filed an incorrect unfair dismissal application, and it was only after being contacted by the FWC on 25 August 2023 that she realized she was still within her minimum employment period. This led to her discontinuing that application during the call. She later filed the correct application on 27 August.
During the hearing, the worker mentioned that she was taking antidepressant medication, although she did not provide any medical evidence regarding her health.
She claimed to have been in shock when her employment was terminated.
At the time of her termination, she informed her employer that, being in her probationary period, she had no rights.
She sought an extension of time to address her concerns about her direct manager's conduct.
She presented detailed written complaints to the employer about her direct manager, one dated the day after her termination on 4 August and another on 9 August. She also made a whistle blower complaint on 16 August.

Meanwhile, in response to the delay, the employer argued that the worker did not provide any medical evidence to support her reasons.

It said that she was aware of her rights and that her subsequent actions, such as filing written complaints after her termination, demonstrated her ability to take timely action to file the correct claim.

HRD previously reported about the Commission's decision to extend a dismissal application after considering that the worker was “very unfamiliar with computers.”

Should the worker’s claim be extended?

After reviewing the worker’s evidence, the FWC found that the delay was mainly due to the worker's distress following her dismissal.

It said that it was reasonable to conclude that the worker was in “a sound state of mind” and capable of making the necessary application, considering that she sent three written complaints to the employer in the two weeks following her termination against her direct manager.

“The [worker] acknowledged at the hearing that she had not made any complaint about her direct manager’s conduct before her employment was terminated, however, she had confided to a peer about her concerns about 1 week before her termination,” the Commission said.

“She gave evidence that she had not asked her peer to convey her concerns to anyone, instead she acknowledged that she had asked her peer to keep her concerns confidential,” it added.

Despite the worker’s revelations, the FWC said that it did not find her reasons exceptional to allow her delayed claim. Thus, it dismissed her application and favoured the employer.