1
Fair Work Act 2009
s.365—General protections
Mandy Lee Baillie
(the Applicant)
v
PJDH Pty Ltd t/a Brazilian Beauty Fairfield
(the Respondent)
(C2019/3820)
DEPUTY PRESIDENT MANSINI MELBOURNE, 13 JANUARY 2020
Application to deal with a general protections dispute involving dismissal – extension of time
– application dismissed pursuant to s.587.
[1] On 20 June 2019, Ms Mandy Lee Baillie (the Applicant) submitted an application
pursuant to s.365 of the Fair Work Act (Cth) (Act), for the Commission to deal with a general
protections dispute involving dismissal.
[2] I have determined to dismiss the application pursuant to s.587 of the Act. The reasons
for this decision follow.
History of the claim
[3] A general protections application involving dismissal must be made within 21 days
after the dismissal took effect, or within such further period as the Commission allows.1 It is
not contentious that the Applicant’s dismissal took effect on 16 May 2019. The Applicant did
not lodge her application until 20 June 2019. Accordingly, the period of 21 days ended at
midnight on 6 June 2019 and the application was lodged 14 days out of time.
[4] Upon filing her application, the Applicant acknowledged her delay and stated that it
was because her internet services had been disconnected that she could not file within the 21
days.2 The Applicant requested that the Commission allow a further period for the application
to be made pursuant to s.366(2) (Extension of Time Application). Brazilian Beauty Fairfield
(the Respondent) opposed. As conciliation was also opposed pending a determination of the
jurisdictional issue,3 the Extension of Time Application was programmed for hearing.4
1 Section 366 of the Act.
2 Email dated 20 June 2019.
3 Email dated 2 July 2019.
4 Commission’s Directions dated 16 July 2019.
[2020] FWC 163
DECISION
E AUSTRALIA FairWork Commission
[2020] FWC 163
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[5] Initially, the Hearing was set for 22 August 2019 and materials were directed to be
exchanged in advance.
[6] On 28 July 2019, the Applicant filed her materials in compliance with the
Commission’s Directions of 16 July 2019. The reason(s) for delay were briefly elaborated, as
follows:
“My financial circumstances prevented me from having any access to the internet, and
suffering from extreme anxiety and agoraphobia, I was unable to leave my home in the
time required to submit my application.”5
[7] On 12 August 2019, the Respondent filed its materials in compliance with the
Commission’s Directions of 16 July 2019. The Respondent submitted that the Commission
should not allow an extension of time, including because:
a) no medical evidence had been provided of the Applicant’s alleged anxiety and
agoraphobia conditions;
b) contrary to the Applicant’s assertion that she was not able to leave her home in the
time required to submit the application, it had proof (attached were extracts taken from
social media) of the Applicant having left her home on numerous occasions during the
relevant period including for lunch at the Breakfast Creek Hotel on 22 May 2019
where the Applicant “expresses joy and extreme comfort and even quotes the word
‘relaxed’”; and
c) the Breakfast Creek Hotel venue offered “free pub wifi” which the Applicant could
have utilised to submit her application.6
[8] The Applicant did not attend the Hearing on 22 August 2019, or make any
adjournment request in advance. When contacted by telephone at the commencement of the
Hearing, the Applicant told the Commission that the reason for her non-attendance was due to
illness (migraine). The Hearing was adjourned until 26 August 2019, to allow the Applicant to
recover from her migraine or otherwise indicate how she wished to proceed by 10am on 23
August 2019.7
[9] At 9.17am on 23 August 2019, the Applicant emailed the Commission in compliance
with the Directions advising she would like to proceed with her application. The Respondent,
who had not been copied on that email, also wrote to the Commission on 23 August 2019
seeking that the application be dismissed.
[10] At that time, I considered the Respondent’s application was premature and determined
that the Hearing would resume at 2pm on 26 August 2019.
[11] At 7.53am on 26 August 2019, the Applicant emailed the Commission to advise of her
inability to attend the Hearing due to illness (influenza) and undertook to provide a medical
certificate at the completion of a medical appointment that afternoon. The Respondent
received a copy of the email via my Associate and the Hearing was cancelled.
5 Applicant’s Outline of Argument: Extension of Time dated 28 July 2019, at item 1d.
6 Respondent’s Outline of Argument: Extension of Time dated 12 August 2019, at paragraph 12.
7 The Commission’s Directions given at the Hearing were also confirmed to the Applicant, in writing, by email dated 22
August 2019.
[2020] FWC 163
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[12] On 12 September 2019, the Commission emailed the parties. The Applicant was
directed to provide medical evidence in support of her two adjournment requests (22 and 26
August 2019) and as to when she would be fit to attend the Hearing of her Extension of Time
Application, by 2pm on 17 September 2019.
[13] At 11.51am on 17 September 2019, the Applicant filed a medical certificate dated 28
August 2019 (for the period 21 to 30 August 2019) and undertook to advise of her
“availability to attend the hearing of the application for an extension of time” following a
further medical appointment on 20 September 2019. The Respondent was not copied on that
email. That same day, the Commission wrote to the parties and directed the Applicant to
respond with an indication of when she would be fit to attend the Hearing by no later than
4pm on 20 September 2019. The Respondent requested a copy of the medical certificate.
[14] On 19 September 2019, the Commission attempted to contact the Applicant for
consent to provide the medical certificate to the Respondent. The Applicant was not able to be
reached on her nominated mobile telephone number and a voice message was left. The
Applicant did not return that call.
[15] The Applicant did not respond on 20 September 2019 as directed.
[16] On 23, 24 and 25 September 2019, the Commission attempted to contact the Applicant
on her nominated mobile telephone number however she could not be reached.
[17] On 1 October 2019, the Commission wrote to the Applicant (copying the Respondent)
as follows:
“I refer to your application in this matter.
As you are aware, the Commission is required to determine whether to grant an
extension of the time for filing before the application can proceed.
At your request, the Commission has granted two adjournments of the listed hearing
dates on medical grounds.
On 17 September 2019, in response to your correspondence of same date (in which
you advised you would be attending a medical practitioner on 20 September 2019),
the Commission directed you to provide medical certification to support your fitness to
attend a hearing by no later than 4pm on 20 September 2019.
The Commission’s records indicate that no response has been provided as directed.
Further, the Commission has attempted to contact you by telephone at 3.43pm on 23
September 2019, 8.32am on 24 September and 3.01pm on 25 September 2019. At the
time of writing, no response has been received from you.
In addition to the matter of whether to extend the time to allow for your claim to
proceed, the Commission also has before it an application by the Respondent to
dismiss your application because you have failed to take the necessary steps to
prosecute your claim.
[2020] FWC 163
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What do you need to do?
If you wish to progress your application you are directed to provide to the
Commission (copying the Respondent) a medical certification to support your fitness
to attend a hearing of your application for an extension of time. This is to be provided
by no later than 4pm on Thursday 3 October 2019.
The matter will be listed for Mention, by telephone, at 4.30pm on Thursday 3 October
2019 at which a further program for the hearing will be determined.
Please note: if the Commission does not receive any response from you, or does not
receive the directed materials, by this time then it may proceed to determine the
applications before it on the material that is before it.”
[18] The Applicant did not respond to the Commission’s email.
[19] The Applicant did not attend the Mention on 3 October 2019, did not seek any
adjournment and did not provide any reasons for her non-attendance. The Respondent pressed
its application for the matter to be dismissed.
[20] Notwithstanding the Applicant’s non-compliance, the Applicant was afforded a further
opportunity to pursue her claim and respond to the Respondent’s application to dismiss her
claim, with the Hearing listed to resume on 22 October 2019. The parties were directed that
any adjournment requests were to be made in writing, with reasons, by no later than 5pm on
16 October 2019, and again notified that any failure to comply may result in the Commission
proceeding to determine the matter on the materials before it.
[21] At 2.50pm on 21 October 2019, the Applicant emailed the Commission attaching a
medical certificate of same date and requesting the 22 October 2019 Hearing to be
“rescheduled to conform to the Doctors requested time frame”. The medical certificate
indicated the Applicant may be unfit to attend the Hearing for another couple of months. The
Applicant was requested to copy the Respondent but did not do so. The Respondent was
notified of the Applicant’s request via my Associate (excluding the medical certificate which
was not provided pending the Applicant’s consent) and the Hearing was adjourned to a date
when the Applicant was certified as medically fit to attend. At that time, the Hearing was
relisted for 19 December 2019.
[22] On 28 November 2019, the Applicant emailed the Commission attaching a medical
certificate dated 27 November 2019. It indicated the Applicant may be unfit to attend the
Hearing for another 6 weeks. Again the Respondent was not copied. The Applicant was
requested to copy the Respondent but did not do so.
[23] On 6 December 2019, my Associate attempted to contact the Applicant on her
nominated mobile telephone number for consent to provide the medical certificate to the
Respondent, however she could not be reached and a voice message was left. The Applicant
did not return this call. The Respondent was notified of the Applicant’s request via my
Associate (excluding the medical certificate which was not provided pending the Applicant’s
consent) and the Hearing was adjourned to a date when the Applicant was certified as
medically fit to attend. At that time, the Hearing was relisted for 10 January 2020.
[2020] FWC 163
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[24] On 12 December 2019, the Respondent wrote to the Commission and the Applicant
again pressing its application for the matter to be dismissed. It resisted the further
adjournment. The Respondent challenged the Applicant’s reasons for adjournments and
attached a series of screen shots which it said were of posts made by the Applicant on social
media. The social media posts included the following:
a) 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…”;
b) 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;
c) 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”;
d) On 20 November, “Mandy Lee Baillie is eating lunch at Zeus Street Greek” with a
photograph and a caption “Lunch Break….”.
[25] On 20 December 2019, the Commission wrote to the parties to confirm the Hearing
would remain as relisted for 10 January 2020 and that any further adjournment requests were
to be on substantial grounds, supported by medical evidence. The parties were also on notice
that any failure to attend may result in the Commission proceeding to determine the
applications before it on the materials before it at that time. The Commission’s
correspondence went on to provide guidance as to the Applicant’s options including in the
event that she felt unsure of how to proceed.
[26] On 9 January 2020, the Respondent filed and served a Statutory Declaration of Helen
Clifton (Director of the Respondent). The statutory declaration detailed the instances of non-
compliance by the Applicant and described the impact of this non-compliance on the
Respondent as follows:
“The Respondent has and continues to be prejudiced by the Application and the
Applicant’s conduct through this matter by:
a) Having to continuously be ready and prepared to attend the listed hearings;
b) Taking time to review and consider the ongoing adjournment notices;
c) Responding to the Commission’s request for reasons as to why the matter should
be dismissed;
d) Taking time off work to prepare for and attend the scheduled hearings; and
e) Enduring ongoing emotional distress due to the prolonged resolution of the
matter.”8
[27] Ms Clifton also declared that the Respondent is “unable to understand” the Applicant’s
alleged medical reasons for adjournment requests because the alleged incapacity had not
affected the Applicant’s ability to obtain alternative employment, attend licensed venues,
participate in social eating, drinking and attend parties. Ms Clifton declared that this conduct
was documented by screen shots taken from the Applicant’s social media account (which
were attached, including those extracted at paragraph 24 of this Decision).
8 Statutory Declaration of Helen Clifton dated 9 January 2020, at paragraph 13.
[2020] FWC 163
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[28] No adjournment request, or indeed any other communication from the Applicant since
her 28 November 2019 email, was received in advance of the Hearing on 10 January 2020.
[29] On 10 January 2020, the Hearing proceeded as listed and consistent with the
Commission’s indications of 20 December 2019. The Applicant did not attend the Hearing.
The Respondent attended and again pressed its application that the matter be dismissed.
Legislative power to dismiss
[30] Section 587 of the Act provides as follows:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss
an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair
dismissal made under Division 5 of Part 3 2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under
section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
[31] In performing functions or exercising powers, including that at s.587, the Commission
must take the following into account:
“a) the objects of this Act, and any objects of the part of this Act; and
b) equity, good conscience and the merits of the matter; and
c) the need to respect and value the diversity of the work force by helping to prevent
and element discrimination on the basis of race, colour, sex, sexual orientation, age,
physical or mental disability, marital status, family or carer’s responsibilities,
pregnancy, religion, political opinion, national extraction or social origin.” 9
9 Section 578 of the Act.
[2020] FWC 163
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Consideration
[32] Section 587 confers a sufficiently broad discretion to allow an application under s.365
to be dismissed for want of prosecution by an applicant, in an appropriate case, to be
exercised with caution and having regard to the matters the Commission is required to take
into account in the performance of its functions.10
[33] The objects of the general protections provisions at Part 3-1 of the Act include to
protect workplace rights and provide protection from workplace discrimination. The
Commission’s role in a general protections claim involving dismissal is to assist in dispute
resolution provided application was made within the statutory timeframe or such further time
as the Commission allows.11
[34] As the historical context reveals, the Applicant did not file her application within the
statutory timeframe. Then, in seeking an extension of time to allow her claim to proceed, she
did not comply with directions of the Commission, failed to attend proceedings and ignored
the Commission’s attempts to communicate. Her compliance has waned from sporadic to
non-existent. But she has not discontinued her claim.
[35] With regard to the objects of Part 3-1 and taking into account fairness, justice, equity
and good conscience for both employers and employees, the Commission has afforded ample
opportunity to the Applicant to seek an extension of time and ultimately prosecute her general
protections claim. She was regularly placed on notice of the likely consequences of her non-
compliance including that the Commission may proceed to determine the matter based on the
materials before it. The Applicant’s non-participation in the Commission’s processes has
required the Respondent to expend resources in continuing to respond to a claim that the
Applicant no longer seems to have any intention of following through.
[36] The Applicant did not respond to the Respondent’s application to dismiss her claim, or
the serious allegations regarding her truthfulness in seeking adjournments of the Commission
(or indeed similar allegations regarding the truthfulness of her reasons for delay in filing the
application). Those allegations were supported by sufficiently proximate social media
extracts. I make no finding in this regard but observe that, on the materials before the
Commission, there appears to be sound basis for the Respondent’s concerns such that further
inquiry was warranted had the Applicant sought to pursue her claim.
[37] Even if I were to accept the Applicant’s alleged medical conditions and the medical
evidence filed during the course of the proceedings, this would not reasonably explain her
many instances of non-compliance including her disregard of directions of the Commission,
unexplained non-attendances at Commission proceedings and complete failure to respond or
communicate since 28 November 2019.
10 McLeod v Kulgera Trading Company Pty Ltd [2014] FWC 2112 and McLachlan v Hopper Farms Pty Ltd [2019] FWC
8540.
11 Hewitt v Topero Nominees Pty Ltd [2013] FWCFB 6321.
[2020] FWC 163
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[38] For the above reasons, I have determined that the application should be dismissed. I
order accordingly.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR715869
FAIR WORKY HE FAIR V COMMISSION AUSTRALIA,& THE SE
