Fair Work Act 2009

s.394 - Unfair dismissal

• [1] Mr Sahil Verma (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Coles Supermarkets Australia Pty Ltd (the Respondent).

• [2] The Respondent has objected to the application on the ground that the application is out of time. Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.

When must an application for an order granting a remedy be made?

• [3] Section 394(2) of the Act provides that such an application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Commission allows.

• [4] There being contested facts involved, the Commission is obliged by section 397 of the Act to conduct a conference or hold a hearing.

• [5] After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter (section 399 of the Act).

• [6] The Applicant gave evidence on his own behalf.

• [7] The following witnesses gave evidence on behalf of the Respondent:

• Ms Marine Pradines (Ms Pradines), Area Manager - Cairns and Townsville. Unfortunately, Ms Pradines was overseas and uncontactable during on the day of the hearing.

• Mr Luke Griffiths (Mr Griffiths), Team Leader - Clean Collect - Coles Earlville.

• [8] The Applicant filed submissions in the Commission on 17 July 2024. The Respondent filed submissions in the Commission on 30 July 2024.

• [9] Final written submissions were filed by the Applicant on 2 August 2024.

• [10] The parties are in dispute about when the dismissal took effect.

• [11] The Applicant, in his F2 Application Form, stated he did not know the date of his termination.

• [12] The Applicant, in his email submissions, did not provide any detailed reasoning as to the date of his termination.

• [13] The Applicant, during the Hearing, made submissions that he did not believe he had been notified as to the reason of his dismissal and therefore his employment had not been terminated.

• [14] The Respondent submits that the dismissal took effect on 9 February 2024, when, following an investigation and disciplinary process, the Respondent decided to terminate the Applicant's employment.

• [15] The Respondent submitted a copy of a Termination Letter, provided to the Applicant on 9 February 2024, which states the following:

"Unfortunately, your additional responses on 7 February 2024 have not changed Coles' preliminary decision to terminate your employment for the reasons conveyed in Show Cause Letter.

Relevantly, we have found that you have repeatedly failed to comply with the Code of Conduct and the Coles Supermarkets Enterprise Agreement 2017.

By engaging in this conduct, you have seriously breached the "What we expect from you" section of the Coles Code of Conduct and the terms and conditions of your employment.

As such, Coles has made the decision to terminate your employment effective 9 February 2024. You will receive one hour's notice paid to you. You will not be required to work during this notice period."

• [16] I find that the submissions made by the Applicant in relation to the date of his dismissal to be lacking any in any evidence or reasoning. The Applicant may dispute the reasons for his termination; however, the Applicant has not provided any evidence or logical reasoning that suggests he was not aware that his employment had been terminated by the Respondent.

• [17] I find that the Respondent notified the Applicant that his employment had been terminated on 9 February 2024.

• [18] Having regard to the matters I have referred to above, I find that the dismissal took effect on 9 February 2024.

• [19] It is a matter of record that the application was made on 9 June 2024.

Was the Application made within 21 days after the dismissal took effect?

• [20] As the Full Bench has stated in relation to a general protections application but equally applicable here, "[t]he 21 day period prescribed... does not include the day on which the dismissal took effect."[1]

• [21] As I found above, the dismissal took effect on 9 February 2024. The final day of the 21 day period was therefore 1 March 2024 and ended at midnight on that day. As I found above, the application was made on 9 June 2024.

• [22] The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.

Was the application made within such further period as the Commission allows?

• [23] Under section 394(3) of the Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(b) whether the Applicant first became aware of the dismissal after it had taken effect; and

(c) any action taken by the Applicant to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(f) fairness as between the Applicant and other persons in a similar position.

• [24] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]

• [25] I set out my consideration of each matter below.

• [26] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 1 March 2024. The delay is the period commencing immediately after that time until 9 June 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]

• [27] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4]

• [28] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[5]

• [29] The Applicant submits that the delay was for the following reasons:

• Unaware of the reasons for his dismissal / or the dismissal decision.

• Unaware of the 21-day time limit in filing for unfair dismissal application.

• The Respondent did not communicate to the Applicant that there is a 21-day filing limit.

• The Applicant had sought to resolve his dismissal directly with the Respondent.

• The Applicant alleged that the Respondent had engaged in "conscious racism" towards him.

• The Applicant did not have the capacity to lodge his application within the 21-day filing period due to a psychological condition.

• [30] The Applicant provided a copy of a medical document titled "transfer of care" from Cairns hospital, dated 7 June 2024. This document confirms the following:

• On 6 June 2024, the Applicant received medical treatment at the Cairns hospital for a mental health condition.

• The Applicant's mental health had suffered following the loss of his employment.

• [31] The Respondent submits that the Applicant was aware of the disciplinary process, and that it was clearly communicated to the Applicant the reasons for his termination and that he was terminated effective 9 February 2024.

• [32] The Respondent submits that it does not have a positive duty to inform the Applicant of the 21-day filing period upon termination. The Respondent confirmed that the Applicant had received the Fair Work Information Statement upon commencing his employment.

• [33] The Respondent further submits that it is an established precedent that ignorance of the 21-day filing period does not strongly support a finding of exceptional circumstances warranting an extension of time.

• [34] The Respondent submits that the Applicant did not attempt to dispute his dismissal with the Respondent until 15 May 2024, some 96 days after his employment had been terminated.

• [35] The Respondent submits that the Applicant did not raise any allegations of racism or abuse prior to contacting Ms Pradines in May 2024. The Respondent submits that the lack of evidence or detail provided by the Applicant weighs against this allegation having any merit.

• [36] In relation to the Applicant's mental health challenges, the Respondent submits that the evidence provided by the Applicant does not provide specific detail that the Applicant was incapacitated or incapable of filing his application during the 21-day filing period.

• [37] Having regard to the above, I find that the reasons provided by the Applicant, largely, do not support a finding of exceptional circumstances. In reference to the Applicant's mental health issues and hospital visit, it is understandable that such circumstances could perhaps indicate exceptional circumstances however, the Respondent's submission regarding the supporting evidence is relevant and compelling.

Did the Applicant first become aware of the dismissal after it had taken effect?

• [38] The Applicant alleges that he first became aware of the dismissal after it had taken effect, however the Applicant did not provide any detailed submissions or evidence to support this allegation.

• [39] The Respondent submits that it communicated the dismissal to the Applicant on 9 February 2024.

• [40] The Respondent outlines that the Applicant's employment was only terminated after an investigation and show cause process had been carried out.

• [41] The Respondent submits that the Applicant was aware that his employment was as risk prior to the decision to terminate being made.

• [42] The Respondent provided supporting evidence, including copies of the below documents:

• A copy of the show cause letter sent to the Applicant on 2 February 2024.

• A copy of the email response from the Applicant to the show cause letter from 7 February 2024.

• A copy of the letter of termination sent to the Applicant on 9 February 2024.

• [43] In all the circumstances, I am not satisfied that the Applicant only first became aware of the dismissal after it came into effect.

What action was taken by the Applicant to dispute the dismissal?

• [44] The Applicant alleges that he took action to dispute the dismissal.

• [45] The Applicant did not provide any detailed submissions or evidence in support of these alleged attempts to dispute his dismissal directly with the Respondent.

• [46] The Respondent submits that the Applicant did not take any action to dispute his dismissal prior to contacting Ms Pradines on 15 May 2024.

• [47] The Respondent submits that, in circumstances where the Applicant did not take action to dispute his dismissal within the 21-day time period, this criterion should weight against the finding of exceptional circumstances.

• [48] The Respondent provided copies of the email exchanges between the Applicant and the Respondent between 15 May 2024 up until lodgement.

• [49] In all the circumstances, I am not satisfied that the Applicant took any action to dispute the dismissal within the 21-day filing period. The Applicant sought to dispute his dismissal with the Respondent approximately 96 days after his employment had been terminated.

What is the prejudice to the employer (including prejudice caused by the delay)?

• [50] It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.

• [51] Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted.

• [52] It is well established that, "it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)"[6] and the same applies to s.394(3)(e).

• [53] In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.

• [54] In the circumstances, I find that it is not possible to make an assessment of the merits of the application.

Fairness as between the Applicant and other persons in a similar position

• [55] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

• [56] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:

(a) the reasons for the delay, largely being unhelpful;

(b) the Applicant being aware of the dismissal at the time that it took effect;

(c) the absence of any action being taken by the Applicant to dispute the until 96 days after his termination;

(d) the absence of any prejudice to the employer;

(e) the merits of the application, being unable to be determined ahead of a hearing of the evidence; and

(f) no issue of fairness arising as between the Applicant and other persons in a similar position.

• [57] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[7] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[8]

• [58] The reasons provided by the Applicant for the delay in his filing this application are not consistent with the exceptional circumstances as required by the Act.

• [59] The Applicant submits that he was unaware of the 21-day filing period and insists that the Respondent should have informed him of the filing period when terminating his employment. The Respondent provided the Applicant with a copy of the Fair Work Information Statement as required by law upon the commencement of his employment. The onus to properly lodge an application, within the required time period, is entirely on the Applicant. As the Commission has found previously, ignorance of the 21-day filing period is not usually supportive of a finding of exceptional circumstances and I see no reason to conclude otherwise in this matter.

• [60] The Applicant submitted that he attempted to dispute his dismissal directly with the Respondent and that this delayed his filing of the application with the Commission. From the evidence provided, the Applicant did not seek to dispute his dismissal with the Respondent until 15 May 2024, this was some 96 days after his employment had been terminated and already 75 days after the 21-day lodgment period. I do not consider that this extremely late attempt to contest his dismissal weighs in favor of a finding of exceptional circumstances. The Applicant has not articulated why or provided any substantive evidence that would support a conclusion that this delay in contesting the dismissal was reasonable or explainable.

• [61] The Respondent clearly articulated the reason why the Applicant had been dismissed from his employment to him on 9 February 2024. There is no evidence to suggest that the Applicant was unaware of that his employment had ended. Rather, it appears the Applicant was not satisfied with the decision.

• [62] The strongest argument presented by the Applicant in support of exceptional circumstances and an extension of time is the submission and evidence regarding his mental health issues. The report provided by the Applicant confirms that he had been suffering with mental health challenges following the termination of his employment in February 2024. The report also suggests that the Applicant had previously suffered from a mental health condition prior to the termination of his employment.

• [63] The report does not provide any information that suggests the Applicant was incapable of, notably affected to the point it would cause difficulty in, or incapacitated from filing this application prior to him doing so. While I am sympathetic to the Applicant in relation to the challenges his is currently facing, the Applicant has not supplied compelling or detailed evidence that supports a conclusion that there are exceptional circumstances warranting the grant of such a substantial extension. Rather, the report suggests that the Applicant's mental health declined over a period of time which may have contributed to the on-going delay in filing on some level, however, it does not suggest that he was unable to file at some point earlier.

• [64] In the event that I have erred, and there are exceptional circumstances warranting an extension of time, I would not have used my discretion to grant an extension of time due to the considerable length of the delay.

• [65] Having regard to all of the matters at section 394(3) of the Act, I am not satisfied that there are exceptional circumstances.

• [66] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant's application for an unfair dismissal remedy is therefore dismissed. An Order to that effect will be issued separately.[9]

[1] [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[2] [2018] FWCFB 901, [39].

[3] [2015] FWCFB 287, [12].

[4] [2018] FWCFB 901, [39].

[6] [2011] FWAFB 975, [36].

[8] [2011] FWAFB 975, [13].

[9] [PR779003].

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