In a fascinating case finalised in the Fair Work Commission last month, a Brisbane beautician had her general protections dispute involving dismissal dismissed, in part, thanks to evidence found on social media and submitted by her former employer, Brazilian Beauty.

Way back in June 2019, the applicant submitted a general protections claim involving dismissal, 14 days outside the permitted 21 day time frame for eligible submissions. The applicant admitted in her application that it was out of date, and initially suggested this was due to her internet service being disconnected. The Commission set a hearing for the extension of time for the 22 August 2019 and requested additional materials to be provided in advance of that meeting.

The reason submitted by the applicant was somewhat elaborated, stating:

“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.”

 

Meanwhile, the respondent (ex-employer) responded with the following reasoning for why the application for an extension of time should not be granted:

  1. no medical evidence had been provided of the Applicant’s alleged anxiety and agoraphobia conditions;

  2. contrary to the Applicant’s assertion that she was not able to leave her home in the time required to submit the application, it had proof (attached were extracts taken from social media) of the Applicant having left her home on numerous occasions during the relevant period including for lunch at the Breakfast Creek Hotel on 22 May 2019 where the Applicant “expresses joy and extreme comfort and even quotes the word ‘relaxed’”; and

  1. the Breakfast Creek Hotel venue offered “free pub wifi” which the Applicant could have utilised to submit her application.

The hearing did not go ahead as initially scheduled, on two occasions in August, due to the Applicant being unwell on both those dates. Subsequently, there were additional requests for hearings and doctor’s certificates, stating the applicant was too unwell to attend these suggested dates.

This continued on until December, when the Respondent again asked for the matter to be dismissed,  attaching a series of screenshots from social media, including the following status updates:

  1. On 20 October, “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…”;

  2. On 26 October, “Mandy Lee Baillie is feeling fabulous with Kath Baillie and Bree Britten at Fiori Institute of Skin and Body” with a photograph;

  3. On 6 November, “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”;

  4. On 20 November, “Mandy Lee Baillie is eating lunch at Zeus Street Greek” with a photograph and a caption “Lunch Break….”.

Despite this information, the hearing was again rescheduled for 10 January 2020 (some 7 months after the initial application was made). The applicant didn’t request another adjournment and did not attend the hearing. The Respondent did attend the hearing and again requested that the application be dismissed.

The Commissioner then considered the application based on the facts at hand and the requirements of the Act. Although the social media posts weren’t the entire deciding factor in this regard, it was recorded that:

“The Applicant did not respond to the Respondent’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 Respondent’s concerns such that further inquiry was warranted had the Applicant sought to pursue her claim.

After a long, drawn-out time frame of over 7 months, the application for the extension of time was finally dismissed.

What can we learn from this case?

  1. Be careful about what you share on social media. Even private accounts or groups can still have someone take a screenshot of what’s been posted.
  2. Sometimes applications through the Fair Work Commission can take a long time to be resolved, even when, at face value, the decision seems straight forward.

You can read the full decision here: Mandy Lee Baillie [2020] FWC 163 (13 January 2020)

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