David Drake v Coles Supermarket Australia Pty Ltd T/A Coles Supermarkets

[2014] FWC 3514

[2014] FWC 3514 [Note: An appeal pursuant to s.604 (C2014/1111) was lodged against this decision - refer to Full Bench decision dated 25 September 2014 [[2014] FWCFB 6746] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Drake
v
Coles Supermarket Australia Pty Ltd T/A Coles Supermarkets
(U2014/5642)

DEPUTY PRESIDENT MCCARTHY PERTH, 4 JUNE 2014

Application for relief from unfair dismissal.

[1] Mr David Drake (the Applicant) lodged an Unfair Dismissal Application (the Application) on 17 March 2014 claiming that he was unfairly dismissed from his employment with Coles Supermarkets Australia Pty Ltd (the Respondent). The Application states that the Applicant’s dismissal took effect on 21 February 2014. The Application lodged stated that the Application had been lodged within the allowable time. On 24 March 2014 an unsigned letter was sent by the Fair Work Commission (FWC) to the Applicant and the Respondent stating that the Application had been lodged outside the allowable time and that a Member would be required to consider whether the time allowed for the Application to be lodged should be extended. The Application thus was allocated to me on 28 March 2014 clearly on the basis that the Application was outside the time allowed.

[2] I therefore sent a fairly standard letter to the Applicant requesting information as to why I should extend the time. The Applicant responded on 17 April 2014 outlining reasons for the delay and why time should be extended. The Applicant stated amongst those reasons that the Application was one day outside the 21 day time limit. On 8 May 2014 the Respondent provided reasons objecting to the Application being allowed.

[3] The Application was lodged on 17 March 2014. It is not contested that the Applicant was notified of his dismissal and it took effect on 21 February 2014. The Application therefore should have been lodged on or before 14 March 2014.

[4] The Applicant was represented by Shop, Distributive and Allied Employees Association (the SDA) who lodged the Application on the Applicant’s behalf. The SDA submitted that:

● The reason for the delay was a combination of an injury to the Applicant and representative error. The injury to the Applicant restricted his mobility until about 12 March 2014. Having been earlier advised by the SDA that he had 28 days to lodge the Application he at that time believed that his Application did not need to be lodged until 21 March 2014. The Applicant contacted the SDA on 17 March 2014 and was obviously advised that the Application need to be lodged within 21 days not 28 days. Between the Applicant and the SDA actions were taken to ensure the Application was lodged that day i.e. 17 March 2014.

● The representative error was explained as errors made by new and inexperienced employees of the SDA who gave their opinion and advice in the belief that the time allowed for lodgement was 28 days, being the time allowed under the Industrial Relations Act (WA) 1979.

● The Applicant took action immediately after his dismissal by contacting an organiser for the SDA.

● The Employer will not be unfairly prejudiced.

● The conduct asserted giving rise to the dismissal related to the Applicant threatening customers. The conduct is disputed, or at least, the circumstances giving rise to it and gravity of it are disputed. The Applicant says further that he was not given adequate training and there was also inadequate security provided by the Respondent.

[5] The Respondent objected to the Application on the grounds that:

● The erroneous advice given by the SDA does not sufficiently create an exceptional circumstance and in any event insufficient evidence has been provided to establish the SDA’s contention. They also argue that the Applicant has provided no supporting documentation or evidence that supports his contention of having had limited mobility until 12 March 2014.

● The Applicant took insufficient action to progress his claim during the 21 days.

● The Respondent did not assert that they have not suffered significant prejudice as a result of the delay.

● A detailed examination of the merits of the Application is not required in consideration of an extension of time.

● Fairness between the Applicant and others was not raised and is not relevant.

Consideration

[6] The reasons for the delay are outlined above. The Respondent’s objection to this consideration is that evidence should be provided in support of the contentions. Whilst evidence would be of assistance it is not necessary in my view. Firstly, the Applicant was not requested by me to provide any statements, but rather to give an explanation. He, and the SDA, responded to exactly what was asked of them. Secondly, I do not consider more formal evidence is necessary on this occasion for a number of reasons. The SDA is an employee organisation of long standing. It is highly unlikely, in my view, that the SDA would misrepresent or concoct an explanation. It is also quite a plausible explanation that inexperienced officials in the SDA which, I believe, has frequent dealings in the Western Australian Industrial Relations Commission would confuse the time limits. I also do not consider further evidence is necessary for the Applicant to provide medical evidence of his condition.

[7] Indeed it would be mightily foolish and improbable for the Applicant to give false explanations as his credibility would be subject to consideration and scrutiny in any proceedings.

[8] The delay here must also be considered in the context of the SDA having knowledge of a likely dismissal before it occurred and knowledge of the dismissal immediately or soon after it occurred. It seems the SDA took no action, nor apparently did the SDA staff involved seek advice or instruction from other more experienced officers of the SDA. I regard the reasons for the delay weigh against an exceptional circumstance existing.

[9] The Applicant became aware of the dismissal when it took effect. However, this element of my considerations was not relevant.

[10] The Applicant took action by involving his union. Indeed he involved the SDA in the discussions concerning his conduct that led to his dismissal. The Applicant also took the initiative of contacting the SDA before the 28 days he believed was the allowable time to lodge the Application. Whilst he may not have given explicit instructions before the 21 days allowed, that would likely have been for the reason that he believed he had until the 21 March 2014 to lodge the Application. Furthermore, upon becoming aware of the correct time allowed an Application was lodged forthwith. I do not consider the contention regarding limited mobility aids his contentions regarding the actions taken but overall the actions taken weigh in favour of the Application being allowed.

[11] It does not appear to me that the employer will be prejudiced.

[12] The Applicant gave plausible grounds regarding his contentions. The grounds give rise to what I consider to be an arguable case. I consider the Applicant’s explanations and grounds weight in favour of the Application being allowed.

[13] In circumstances where representative error is a significantly contributing factor in the Application being lodged out of time the FWC often allows the time for lodgement to be extended. However, representative error is given relevant weight depending on the facts and circumstances. It is appropriate to consider representation in the consideration of fairness between the Applicant and another person in a similar position. It would be unfair to persons who are represented to have an advantage when compared to those that are unrepresented.

Conclusion and Decision

[14] Balancing the matters considered above I find that exceptional circumstances do not exist. The Application will not be allowed.

DEPUTY PRESIDENT

Final written submissions:

Applicant, 17 April 2014.

Respondent, 8 May 2014.

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