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Stress of WFH takes toll on paralegal

A sacked employee has been granted extra time due to a stressed paralegal.
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Stress of WFH takes toll on paralegal

Stress of WFH takes toll on paralegal

30 October 2020

By Marise Donnolley

An employee sacked for 'persistent breaches' of a COVID-19 safety plan has been granted extra time because the paralegal responsible for lodging her claim had been stressed by working from home.

The Fair Work Commission accepted that WFH had negatively impacted the paralegal's mental health and performance, which culminated in the worker's application being lodged 13 days late.

The dismissal

The worker was summarily dismissed by the Longbow Group on August 7 this year after she allegedly flouted her employer's COVID-19 WHS plan.

The following day the worker contacted a law firm and on 24 August she instructed her solicitor to file an unfair dismissal claim.

The solicitor asked her paralegal to file the application and was subsequently informed this had been done. It later became apparent this was not the case.

In her application for an extension of time, the worker cited representative error as the explanation for the delay.

However, her employer claimed the worker was not 'blameless' in the matter. It said the worker had left the matter in the hands of her representative and had taken no steps to inquire as to the status of her claim.

Deputy President Val Gostencnik found that argument was "not persuasive". Had the worker made enquiries, she would have been told the application had been filed.

The DP also rejected the Longbow Group's submission that the 13-day delay would make gathering evidence "significantly more difficult, and in some instances impossible", saying it was 'weak'.

The commission then considered whether the merits of the case justified an extension of time.

The employee claimed she had been unfairly dismissed because:
  • There was insufficient evidence to justify an instant termination of employment due to serious misconduct.
  • She was not informed of the reason for dismissal and therefore had no opportunity to respond.
  • The termination meeting occurred without proper notice and no support person was allowed to assist at any discussions relating to dismissal.
  • She had never been subject to any prior disciplinary processes or written performance reviews.

The employer claimed it gave the worker multiple verbal warnings about the COVID-19 breaches, and the potential consequences of such breaches justified summary dismissal.

DP Gostencnik found there were 'exceptional circumstances' and the worker had "at least an arguable case".

Read the judgment

Emily Riggs v Longbow Group Pty Ltd [2020] FWC 5479 (19 October 2020)[2020] FWC 5479

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