Social Media Stops Employee’s Application in its Tracks Social Media Stops Employee’s Application in its Tracks

Social Media Stops Employee’s Application in its Tracks

10 February 2020 | Employer's Liability

A recent decision delivered by the Fair Work Commission (FWC) has revealed the pitfalls of social media and how an employer can use social media evidence to defeat a general protections application.

In Mandy Lee Baillie v PJDH Pty Ltd t/as Brazilian Beauty Fairfield, the FWC dismissed a general protections application (Application) lodged by Ms Baillie against her former employer, Brazilian Beauty Fairfield (BBF), because:

  1. she filed the Application late;
  2. she did not comply with directions of the FWC;  and
  3. while she claimed she suffered from agoraphobia her regular social postings demonstrated otherwise.

The Background

General protection applications involving dismissal from employment must be made within 21 days after a dismissal has taken effect or within such further period as the FWC sees fit.

Ms Baillie claimed that her financial circumstances coupled with her extreme anxiety and agoraphobia prevented her from submitting her Application on time.

BBF submitted evidence that the FWC should not grant an extension of time and accept her Application as Ms Baillie:

  1. did not provide any medical evidence to support her alleged medical conditions; and
  2. contrary to her claim that she was unable to leave her home at the time she was required to submit the Application, it had proof from extracts it obtained from social media that indicated otherwise.

Notwithstanding the delay in Ms Baillie filing the Application and the evidence submitted by BBF, the FWC granted an extension and set a hearing date. The hearing date was subsequently pushed back on multiple occasions over a three month period due to Ms Baillie’s unresponsiveness and non-attendance.

Ms Baillie provided the FWC with medical certificates to support her requests for an adjournment. However, BBF pressed for the matter to be dismissed relying on Ms Baillie’s social media posts:

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

The Decision

Having regard to the objects of Part 3-1 of the Fair Work Act 2009 (Cth) and taking into account fairness, equity, justice and good conscience of both employers and employees, the FWC dismissed the Application considering:

  1. that there appeared to be a sufficient basis for BBF to question the truthfulness of Ms Baillie’s adjournments as they “were supported by sufficiently proximate social media extracts”;
  2. even if the FWC were to accept Ms Baillie’s medical evidence, it provided her with many opportunities to pursue her claim; and
  3. Ms Baillie’s ongoing and unexplained non-participation required BBF to expend resources in responding to the claim where it appeared that Ms Baillie did not intend on following through with it.

Implications for you

This case demonstrates that employers are able to take employees to task when they make but do not genuinely pursue applications to the FWC. It remains to be seen whether there are corresponding costs ramifications for such employees.

The FWC will consider and accept evidence of regular social media usage submitted by an employer as evidence to contradict medical certificates supplied by an employee to justify their unreasonable requests for adjournments and ongoing non-compliance.

This article was authored by Simon black, Laura Sowden and Lucinda Touma, Law Clerk.

Mandy Lee Baillie [2020] FWC 163

Author

Simon Black

Simon Black

Principal

Laura Sowden

Laura Sowden

Special Counsel