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Fired Gadens employee given last chance to pursue unfair dismissal proceedings
A former Gadens employee who has dragged her feet on unfair dismissal proceedings was warned that one more request for adjournment could end up with her declared a vexatious litigant.
Naomi Neilson
In the six years since Sophia Marttea Baker filed unfair dismissal proceedings with the Fair Work Commission against Gadens Lawyers Brisbane, she has secured eight separate adjournments on the grounds of “progressive and serious health concerns”.
“If the applicant fails to lodge her materials and seeks another adjournment to file her materials, I will dismiss the application on the basis that the applicant has extended these proceedings in a vexatious manner with no intention to prosecute,” Lake said.
Baker was terminated in 2018 for failing to attend five independent medical examinations between June and September 2018.
Given a year had passed since Baker had attended work, Lake said Gadens’ demand for an independent medical examination “appeared to be a lawful and reasonable request” and Baker’s continued failure to comply with this request “was a valid reason for dismissal”.
“The respondent’s process indicates that they tried to accommodate the applicant in attending the appointments and had given her multiple opportunities before dismissal,” Lake said.
Lake added a hearing would be required to confirm this procedure was taken and the view could change depending on evidence.
“However, the substance of the applicant’s claim before me appears to be one which would not support a further adjournment,” he said.
In letters provided to the Fair Work Commission to support her request for adjournments, Baker said it would be inappropriate to force her to participate “as she would not have the mental or physical capacity to comprehend the information presented and would be unable to provide supporting evidence or defence”.
She added that Gadens is a “large and successful firm” with access to “financial security and multiple senior legal counsel available at any given time”, so the firm could not be prejudiced by the adjournments.
Lake rejected this.
While he accepted initial medical certificates, materials provided in more recent years were “questionable”.
Lake added that the commission was willing to accommodate Baker by directing the hearing to be conducted over the telephone, allowing additional breaks, and permitting Baker a support person.
“I am sympathetic to the fact that the applicant indicates that she wishes to pursue her matter and is suffering from a complex health situation which has made it difficult for her to prosecute her case.
“The commission has been mindful and patient of her circumstances and [has] accommodated all her requests for adjournment. However, I do not see a further basis [for] delaying the matter,” Lake said.
Given he has formed a preliminary view, Lake has referred the matter to vice-president Joseph Catanzariti.
Baker has been given until 9 May to file further material and 20 June to reply to any of Gadens’ material.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
