Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

[1] On 10 February 2023 Ms Tayla Brittany Higgins (Ms Higgins) made an application to the Fair Work Commission (FWC) pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act) alleging she was unfairly dismissed from her employment as a Paramedic with FQM Australia Nickel Pty Ltd (FQM) on 28 December 2022.

[2] An unfair dismissal application must be lodged with the FWC within 21 days after the dismissal takes effect. The FWC may only allow a further period for lodgement in exceptional circumstances.

[3] Ms Higgins has made an application for an extension of time to file the Application. FQM oppose the application.

[4] Directions for the filing of materials were issued to the parties on 7 March 2023 (Directions). The Application was listed for a hearing on 3 April 2023 to determine the application for an extension of time (Hearing).

• [5] The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.[1]

[6] FQM sought permission to be represented at the Hearing.

[7] Having considered the submissions of the parties, leave was granted to FQM to be represented pursuant to section 596(2)(a) of the FW Act on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.

[8] At the Hearing Ms Higgins appeared on her behalf and Ms Erica Hartley of HWL Ebsworth (Ms Hartley) appeared on behalf of FQM.

• [9] In advance of the Hearing Ms Higgins filed witness statements setting out her own evidence in chief [2] and the evidence in chief of the following witnesses:

• a. Ms Sophie Osterloh (Ms Osterloh)[3]. Ms Osterloh was treated by Ms Higgins and vouched for the quality of the care delivered by Ms Higgins.
• b. Ms Asha Greenway (Ms Greenway)[4]. Ms Greenway worked with Ms Higgins and says that she witnessed Ms Higgins raise concerns about work practices at FQM.

[10] Ms Higgins gave further evidence at the Hearing and was cross examined by Ms Hartley. FQM chose not to cross examine any of Ms Higgin's other witnesses.

• [11] In advance of the Hearing FQM filed a witness statement setting out the evidence in chief of its only witness Ms Belina McCaig (Ms McCaig)[5]. Ms McCaig is a Human Resource Superintendent for FQM. Ms McCaig commenced her employment with FQM on 17 October 2022 after some of the events which led to Ms Higgin's separation from FQM had occurred.

[12] On the morning of the Hearing Ms Higgins forwarded to Chambers and to FQM's legal representatives a letter from her treating psychologist Ms Nadia Cunningham (Ms Cunningham) dated 24 March 2023. Ms Higgins says that she received the letter on, or around, 24 March 2023 but could not explain why she did not file it with the FWC earlier. FGM opposed the admission of the letter. Ms Cunningham was not available for cross examination. I admitted the letter and marked it Exhibit A1 but explained to Ms Higgins that in the absence of Ms Cunningham being available for cross examination I would attach less weight to Ms Cunningham's evidence as set out in the letter.

[13] A digital court book containing the evidence and submissions of the parties was prepared by the parties and filed in the FWC on 30 March 2023 (DCB). The DCB admitted at the Hearing as an exhibit and marked Exhibit DCB1.

[14] An Agreed Statement of Facts was admitted at the Hearing and marked Exhibit A2.

[15] Both parties were invited to make oral closing submissions. Both parties did so.

[16] In reaching my decision, I have considered all the submissions made and the evidence tendered by the parties including these materials, even if not expressly referred to in these reasons for decision.

• [17] FQM is a global company that produces copper in the form of concentrate, cathode and anode. It has a large-scale open pit nickel mine and processing plant located in Ravensthorpe, Western Australia approximately 300 kilometers from Albany (Site).[6]

• [18] Ms Higgins commenced employment with FQM at the Site on 28 July 2021 in the role of Officer, Emergency & Security - Paramedic in the Emergency Response Team. Prior to commencing employment with FQM she had been performing the role as a contractor. On 3 August 2021 her contract was varied and she commenced working as an Officer, Emergency & Security - Paramedic.[7]

[19] Ms Higgins' primary responsibility in her role was to provide emergency medical services on-site as part of the Emergency Response Team performing a roster of eight days on and 6 days off.

• [20] Ms Higgins reports that she suffers from ADHD and that her symptoms include poor time management and difficulty maintaining attention to detail.[8] She says that her ADHD is normally well managed by medication and reports that prior to November 2022 she had no performance issues, provided a high level of care and was the recipient of a safety award.[9]

• [21] Ms Higgins alleges that she was subjected to bullying, sexual harassment and emotional abuse when she changed crews.[10] She also alleges that she was micro managed by supervisors who did not have medical or emergency response backgrounds and that her concerns about workplace safety were not acted upon.[11]

• [22] Ms Higgins says these matters led her to have a mental breakdown requiring her to take leave from the workplace in September 2022 and seek medical treatment.[12] Ms Higgins has been treated by Ms Cunningham since this time. Ms Higgins has not lodged a workers compensation claim in relation to the injuries which she says occurred to her mental health in the workplace.

• [23] Sometime between September 2022 and 7 November 2022 Ms Higgins reported to FQM that she could not access FQM's Employee Assistance Program (EAP). FQM made inquiries with the EAP Provider who reported that:[13]

"Overall, communications with Tayla has been difficult and I am uncertain as to why she is reporting difficulty accessing the EAP.

_Following her initial contact to WL (12/9/2022) the psychologist, on multiple occasions, attempted to contact Tayla. Contact was eventually made, with the Psych able to offer and schedule a time to speak with Tay/a at short notice (