Worker says nature of allegations didn’t warrant such severe disciplinary action
A worker recently filed a late unfair dismissal application, alleging that he suffered “mental stress” after being fired for engaging in “intimate” relations in the workplace.
The worker, Douglas William Diver, lodged an application for an unfair dismissal remedy after being terminated by his employer, Pilbara Iron Company (Services) Pty Ltd, on August 24, 2023.
The employer contested the application, citing that it was filed beyond the 21-day period under the Fair Work Act 2009.
Acknowledging the delay, the worker admits to submitting the application on October 11, 2023, which is 27 days after the statutory deadline. The worker said the delay was caused by mental stress and the necessity to relocate following his dismissal.
‘Intimate’ work relations
According to the employer, from March 2021 to April 2023, the worker sent multiple text messages to a work colleague, referred to as the “Impacted Person.”
The worker, however, said their relationship was amicable, involving an "intimate" connection from March to May 2021. The employer said that, in May 2022, the Impacted Person requested the worker to cease all contact, specifying no messages, gifts, or visits, a request the worker acknowledged with certain exceptions.
The employer alleged that, despite the Impacted Person's request, the worker continued to message her between May 2022 and April 2023. Additionally, the worker reportedly left unwanted gifts at the Impacted Person's residence in May 2022, December 2022, May 2023, and July 2023.
Cease all contact
On February 24, 2023, the employer directed the worker to cease all contact with the Impacted Person. Despite this directive, the worker allegedly sought to train the Impacted Person on a piece of equipment, requiring them to be near each other.
The worker said that he was unaware that his messages were causing discomfort to the Impacted Person and justified his involvement in formal training as an attempt to understand the change in their friendship.
During the period from May 2022 to April 2023, the worker clarified that he and the Impacted Person maintained a professional relationship as work colleagues, following the employer's values. The worker highlighted instances where the Impacted Person socialised with mutual colleagues in his presence.
In May 2022, the worker gave the Impacted Person a birthday gift, and in December 2022, he presented her with a Christmas gift, indicating that she thanked him later at work. The employer, upon receiving a complaint, escalated the allegations to its Business Conduct Office for investigation on July 14, 2023.
On this date, the employer instructed the worker not to work (with full pay) and issued a letter of allegations, inviting a written response. Subsequent investigations led to the employer requiring the worker on August 21, 2023, to show cause as to why his employment should not be terminated.
Despite the worker's response, the employer proceeded to terminate his employment on August 24, 2023, citing breaches of the Code of Conduct and Anti-Discrimination, Sexual Harassment, and Bullying Policy.
The worker believed that the nature of the allegations, primarily private and occurring outside of work, did not warrant such severe disciplinary action.
Should the application be extended?
The FWC found that one of the reasons relied upon by the worker for his late application was “mental stress.” The worker explained that he had been under a huge amount of mental stress following his dismissal but noted the decline in his mental well-being started during the period of his stand down, show cause and thereafter the termination of his employment.
He said the disciplinary process had coincided with the 12-month anniversary of the loss of his best friend in addition to the death of his mother.
Following his dismissal, the worker said he was required to relocate to another town after having lived where he had been for 18 years. He said that “such [a] move meant finding a suitable rental, settling into a new environment, and then re-entering the workforce.”
The worker said these factors “consumed a considerable amount of time and energy.”
However, despite his arguments, the FWC said that “while [it was] sympathetic to [his] circumstances, there is simply no evidence to corroborate that he was so incapacitated from stress that he was unable to make an unfair dismissal application within the requisite period.”
“It is common for employees to suffer shock and trauma because of dismissal from employment,” it said.
“In the case, the [worker brought] no medical evidence in the form of a medical report or certificate to support his contention of mental stress, and it is apparent from his evidence that he was not so incapacitated that he could not attend activities of daily living such as relocating, securing a property in which to live, and re-entering the workforce.”
Thus, as there were no exceptional circumstances, the FWC dismissed the worker’s application.
