Home - 5-day-late unfair dismissal claim rejected by FWC commissioner

UpdatesSep 30, 2019

5-day-late unfair dismissal claim rejected by FWC commissioner

Fair Work Commission (FWC) Deputy President Abbey Beaumont has rejected a 5-day-late unfair dismissal claim from an employee who was disciplined for taking preapproved annual leave.

Fair Work Commission (FWC) Deputy President Abbey Beaumont has rejected a 5-day-late unfair dismissal claim from an employee who was disciplined for taking preapproved annual leave.

The store manager at Adairs had already booked flights to the Cook Islands, before asking her area manager if she could take the annual leave at that time.

The time off she requested fell in the employer’s ‘red zone’, which is the retailer’s busiest time of the year.

In the same month, the employee had also been issued with a letter from the area manager highlighting concerns about her performance.

Even though the area manager and state manager ultimately approved the leave request, further discussions between the state manager, retail general manager and HR took place.

They decided to issue the employee with a first and final warning for taking leave in the ‘red zone’.

About 6 weeks’ later, the area manager held a meeting with the store manager to discuss continued concerns she had about her performance. She scheduled a second meeting for the following month.

Six days before next meeting, the employee telephoned the area manager and told her that she felt overwhelmed by the enormity of her role. During this conversation, the area manager could hear the employee crying.

Following the telephone call, the area manager held a discussion with the employee and asked her to step down from the store manager position, arranging her to commence a new position in another store as acting store manager, under a 3-month fixed-term contract.

The employee declined to sign it, as she was concerned this contract would be reviewed monthly. She then emailed the employer her resignation, a few days before she went on annual leave, consequently serving out her notice period while on leave.

Employee claimed resignation was forced

In her unfair dismissal claim, the employee asserted she was forced to resign and had made the decision in panic, because the area manager was insistent on rescheduling the second performance management meeting a few days after their last discussion.

However, Deputy President Beaumont found that the employee’s resignation letter did not “express such sentiment” and instead it referred to the employee “having carefully considered her new employment contract”.

The employee further submitted that she developed a mental health condition due to months of workplace bullying, which was exacerbated after her first performance management meeting.

To support this, she produced a medical certificate she obtained about 3 months after resigning.

“The medical letter … certified that [the employee] ‘suffered from generalised anxiety disorder and major depressive episode due to workplace bullying for the past 4 to 5 months’,” Deputy President Beaumont said.

“The medical practitioner continued: ‘[T]his has caused considerable impact on her mental health … she was in distress in the past 4 to 5 months and was not able to comprehend what has happened to her’.

“The medical practitioner confirmed: ‘I have assessed her and started her on treatment. I will review her on regular basis to monitor her progression.”

Deputy President Beaumont found the doctor’s medical certificate to be insufficient, noting that it was the only evidence, apart from the employee’s own account, which was provided concerning her medical condition.

“The medical letter does not traverse whether the medical practitioner treated [the employee] before [the time the certificate was issued],” Deputy President Beaumont noted.

“There is an assertion that workplace bullying occurred and yet the medical practitioner provides no grounds as to how he or she arrived at the conclusion, or whether he or she was qualified to do so”.

Not too incapacitated to enjoy an overseas holiday

Deputy President Beaumont also found that the employee’s medical certificate did not provide “contemporaneous medical evidence” of her state of mind between the date her employment ended and the deadline to make an unfair dismissal application.

“The history of [the employee’s] incapacitating mental health, such that she had been in distress for the last 4-5 months and that this had rendered her unable to comprehend what had happened to her, appears at odds with her having only taken personal leave on only two occasions between February 2019 and the termination of her employment,” Deputy President Beaumont said.

“This is notwithstanding that the medical letter states that the affliction had been of 4-5 months in duration.

“[The employee] states that her medical condition took effect most significantly after her first performance improvement plan meeting. While this sets the scene regarding the purported exacerbation of [the employee’s] anxiety, it remains the case that there is no contemporaneous evidence to support that which [the employee] has said.

“Understandably, [the employee] gave evidence that the end of her employment with Adairs had affected her mental state. I accept that any employee on the termination of their employment may experience a level of heightened anxiety and upset, particularly, if they perceived that such termination was not something they voluntarily chose.

“However, [the employee] resigned from her position and during the notice period leading up to her end date of employment she went on an overseas trip.

“[The employee] was not so incapacitated that she had to defer an overseas holiday, and when asked if she enjoyed the holiday, replied – yes, it was good to get away from work.

“[The employee] also acknowledged that her health concerns had not precluded her from taking the holiday.”

Unconvincing reason for late application

“Given the date when the medical letter was obtained and in light of its contents, I am unconvinced that [the employee] was so overwhelmingly functionally disempowered by her mental health affliction or disorder, that this gave rise for a plausible reason for the delay, or part thereof, in filing her application,” Deputy President Beaumont said.

“I am not satisfied that there are exceptional circumstances warranting an extension of time for [the employee’s] application to be made.”

Deputy President Beaumont dismissed the application.

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