FWC looks at unfair dismissal application by business improvement specialist
The Fair Work Commission (FWC) recently dealt with the case of a worker who claimed unfair dismissal after being fired in the middle of a meeting.
The worker was a business improvement specialist at the Pinjarra Alumina Refinery. Her employment was terminated following an employment review during the probation period.
She was required to attend a meeting on 18 November 2022 with her manager and the HR manager to discuss concerns regarding her performance. After adjourning the meeting, the employer returned, informing the worker that her employment was terminated.
Drug and alcohol test
The worker said that some three weeks into her employment, she had a drug and alcohol test which produced an initial non-negative result.
Consequently, the employer’s policy required that she leave the worksite immediately.
The worker said, “while the test and result at such an early stage of her employment were surprising, she was not alarmed as she had declared all her medications to the employer’s medical centre.”
A further test result returned clear, with the nurse noting that the results were consistent with the list of medications declared.
During this period, the worker was in contact with her manager. She said the manager’s comments “concerned her,” and she suspected she was “being victimised, bullied and subject to microaggressions.”
Specifically, the worker said her initial drug and alcohol test result was “a subject of discussion and laughter among staff.”
Meeting about ‘behaviour’
The manager then told her about a meeting to discuss her “behaviour.”
This included those raised by people outside her team, her time outside of the office (such as going on walks but working using her phone), that she worked from home without her laptop, and possibly her swiping in and out outside of her official start and finish times.
The worker attended the meeting despite her concerns over the short notice and inability to organise a support person. She said she thought “there was no issue with her performance as her manager did not have concerns with her standard of work.”
When the meeting happened, the worker was given a letter of termination of employment when the meeting resumed after a short break. The letter confirmed termination effective from 18 November 2022 with one month instead of notice.
The worker filed an unfair dismissal claim. However, it was beyond the required 21-day period under the law.
Meanwhile, the employer denied any violation and said the worker was dismissed during probation for failing to meet the required performance standards.
In a previous HRD report, the defence of being in a “depressive state” was accepted as a reason to allow a belated claim.
In another case, a worker tried to justify her delay because of a “mandatory family trip” and a “mental breakdown.”
The FWC’s decision
The worker tried to justify her delay and said, “she was not in the right frame of mind.” She said this was “obvious” when she was escorted from the building and did not notice that she left her personal mobile phone behind.
She also said her Wi-Fi at home was “unreliable” and that this caused “not only part of the delay, but “also added to her distress as she struggled to inform her psychiatrist that she had missed her appointment.”
The commission said that before it could delve into the case’s merits, there needed to be an exceptional circumstance to accept the delayed application.
“The bar for an extension of time is a high one,” it said.
“And in this application, there is not one single exceptional matter or a combination of factors to grant an extension of time.”
Thus, the commission ultimately dismissed the worker’s application for failure to submit it within the 21-day period under the law.
“Exceptional circumstances may include a single exceptional matter, or a combination of the factors taken together that are considered exceptional,” the commission said in its decision.
