By Madeleine Brown and Nikita Barsby
The Fair Work Commission has refused an application for an extension of time to file an unfair dismissal application, following a detailed examination of a travelling employee’s social media activities and text messages which demonstrated that he was not incapacitated by depression and grief following his dismissal.
Extensions of time under the FW Act
Under section 394(2) of the Fair Work Act 2009 (Cth) (FW Act), an unfair dismissal application must be lodged with the Fair Work Commission (FWC) within 21 days after the dismissal took effect.
Sections 394(2)(b) and 394(3) provide that the FWC may allow an extension of time for claims lodged beyond the 21-day time limit, if it is satisfied that there are exceptional circumstances, taking into account a range of factors including the reason for the delay and any action taken by the applicant to dispute the dismissal.
Generally speaking, the FWC interprets “exceptional circumstances” narrowly and rarely grants extensions.
What happened in this case?
In November 2017, the employee, Mr Wragg, took time off work to deal with a sensitive and devastating family issue. On 25 November 2017, whilst Mr Wragg was on leave, he received a text message from Mr Hicks, a director of the company, stating “I am no longer prepared to move forward with you. I propose we discuss an exit strategy on your return.” Mr Wragg responded the next day, citing his family issues in support of a request for further time off.
On 5 December 2017, Mr Hicks sent a text message to Mr Wragg asking to discuss “the exit strategy” and informing him that the employer would “process a $20k payment for you today along with your final weeks’ pay”. On 11 December 2017 Mr Wragg sent an email to Mr Hicks saying, “all my family and friends were dumb founded when they found out you terminated me when I was on compassionate leave”.
On 19 January 2018, Mr Wragg sent Mr Hicks a text message which was 2,500 words long. Part of the message read “I will also sue you for lost wages, discrimination and unfair dismissal”. A few days later, Mr Wragg sent another 1,400 word text message to Mr Hicks.
It was not until 23 March 2018 that Mr Wragg filed his unfair dismissal application.
As Mr Wragg’s claim was made 81 days after the end of the 21 day time limit, he applied for an extension of time. Mr Wragg alleged that he was grieving, extremely depressed and incapable of looking after himself from the date of his dismissal (5 December 2018) until the date of filing his claim.
What did the Commission find?
Commissioner Hunt found that there were no exceptional circumstances that would justify granting Mr Wragg an extension of time. While the Commissioner acknowledged the tragic family issue that Mr Wragg had experienced just prior to his dismissal, this was not determinative of the issue.
Firstly, it was important Mr Wragg had written two “extraordinarily long text messages” (2,500 and 1,400 words each) and “page-length emails” to Mr Hicks in January 2018 which contained statements that Mr Wragg would be challenging his dismissal. This clearly showed that Mr Wragg had intentions of challenging his dismissal and could eloquently express the reasons why he thought it was unfair.
Interestingly, the Commissioner then placed weight on Mr Wragg’s social media activity from December 2017 to March 2018 and noted that Mr Wragg had:
- “travelled great distances even if he did so as a passenger”;
- “fished enough to have filled two freezers, had a flying lesson, visited beaches”; and
- was active on Facebook including posting “an extraordinarily glowing review of a vanilla bean he had used” in “eloquent language” and posting a video and selfies of his travels.
While the Commissioner accepted that rest and relaxation were routinely recommended by medical professionals following a person experiencing a tragic event or low period, it was clear to Commissioner Hunt, at the very least, Mr Wragg had capacity to make a simple phone call or visit the Fair Work Commission website to lodge an unfair dismissal application.
Given that Mr Wragg didn’t have a satisfactory reason for the delay in making his claim and there were no other exceptional circumstances, he was not granted an extension and his claim was dismissed.
Mr Wragg’s social media posting and long correspondence with the company undermined his claim that he was incapacitated by depression and grief. The case demonstrates that an employee’s social media activity can be very relevant to claims relating to their employment.
For employees, it is crucial that if your employment has ended you seek advice as soon as possible about your options to ensure that any claim is filed within the relevant time limit. For employers facing an unfair dismissal claim, it is crucial to seek advice on the pre-requisites an employee must satisfy to make a claim.
MDC Legal assists both employers and employees to navigate these issues.