Jason Fear v Coles Supermarkets Australia Pty Ltd
[2025] FWC 573
•25 FEBRUARY 2025
| [2025] FWC 573 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jason Fear
v
Coles Supermarkets Australia Pty Ltd
(U2024/9760)
| COMMISSIONER HUNT | BRISBANE, 25 FEBRUARY 2025 |
Application for an unfair dismissal remedy – Applicant a casual employee – Applicant dismissed after not working a shift for 90 days – Applicant’s availability did not align with operational requirements of the Respondent – Valid reason for dismissal – Dismissal not harsh, unjust or unreasonable – Application dismissed
On 22 August 2024, Mr Jason Fear made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed from his employment with Coles Supermarkets Australia Pty Ltd (the Respondent) and that the dismissal was harsh, unjust or unreasonable.
On 5 September 2024, the Respondent filed a Form F3 Employer Response to the application. It did not raise a jurisdictional objection.
Directions were issued for the filing of evidence and submissions, and the matter was listed for hearing on 13 December 2024. Mr Fear represented himself. The Respondent was represented by Ms Renee Karakinos, Legal Counsel of the Respondent, together with Ms Lara Davis, People & Culture Specialist of the Respondent.
Mr Fear filed material and gave evidence at the hearing. Mr Darren Hutchison, Store Manager, Coles Ipswich Riverlink gave evidence at the hearing.
Relevant legislation
Section 394 of the Act provides:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
Further, ss.385 and 387 provide as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Evidence of Jason Fear
Mr Fear commenced employment with the Respondent on 4 May 2021 as a casual employee. He worked in the dairy/freezer department of the Coles Ipswich Riverlink store, filling stock.
Mr Fear has two young sons of primary school age. In or around 2024, his wife commenced working in the education sector which resulted in him being responsible for taking his sons to school most days.
Records produced by the Respondent demonstrate that from at least August 2023, Mr Fear typically worked casual shifts in the dairy department from 6:00am for three hours. On rare occasions he would work for five hours. He would occasionally work a 1:00pm shift, typically for three hours.
Mr Fear stated that from late 2023, he had become depressed. He stated that the relations between the Department Manager and Mr Hutchison had become hostile. Mr Fear began looking for casual work at other, nearby Coles stores while continuing to work at the Ipswich Riverlink store. He expressed an interest in working 12 hours per week, part-time.
From around March 2024, when his wife had to be at school at her place of employment, Mr Fear informed the Respondent that he could no longer accept work earlier than 9:00am.
Mr Fear preferred to work in the dairy/freezer department. He was offered work in the meat department, however he did not wish to continue working shifts in that department.
Mr Fear considered the Respondent ought to accommodate his requirement to work in the dairy/freezer department from 9:00am.
He stated that he often rang the store to speak with a manager but would not be put through. He stated that he spoke with Jared, a team member, about getting shifts, but it was not passed on. Mr Fear produced telephone records evidencing him having attempted to have called and sent text messages to the store on the following dates:
· 8 May 2024;
· 28 May 2024;
· 5 June 2024;
· 8 June 2024;
· 25 June 2024;
· 8 July 2024;
· 24 July 2024; and
· 25 July 2024.
During the hearing, I asked Mr Fear if he ever ventured into the store from late March 2024 to have discussions with Mr Hutchison? He said he did not; he only ever tried to telephone. His wife had use of the family’s vehicle, but he did not attempt to use public transport to visit the store or visit outside of school hours, even though the store was not very far from his home.
Mr Fear stated that he put his availability on the Coles storehub, but no shifts eventuated.
On 21 July 2024, Mr Fear received the following letter by email:
“Our records indicate that you have not worked a single shift with us for over 60 days, despite you indicating that you are available for casual shifts.
Coles is committed to ensuring that we provide our casual team members with work when it is available, to do this we need to confirm your current availability.
Please log on to your mycoles account at mycoles.com.au and update your availability before 04.08.2024. You can find this page by clicking on mywork at the top of the homepage, followed by clicking on myavailability in the drop-down box. Please contact your store/site manager to notify them of having completed this step.
Once updated, we will assess your availability against the needs of the business.
If you unable to update this information online or wish to discuss further, please contact me directly before the above date.
If you do not provide this information before 04.08.2024 or if your availability does not meet operational needs, we will not be in a position to offer you any further shifts.
We appreciate your support and ongoing commitment to making our business a success.”
Mr Fear stated that this went to his junk email.
On 18 August 2024, Mr Fear received the following letter by email:
“I refer to our previous letter sent to you on 20.06.2024 seeking information in relation to your working availability.
Our records indicate you have not worked a single shift with us for over 90 days.
As you have either not returned your availability information, or your availability does not meet the needs of the business at this time, Coles will not offer you any further casual shifts.
If you would like to discuss this matter further, then please do not hesitate to contact me at the store. As Coles will not be offering you any further casual shifts, please return any company property that you may have as soon as possible.
Thank you for your contribution to Coles to date.”
Evidence of Darren Hutchison
Mr Hutchison is the Store Manager of the Coles Ipswich Riverlink store. He has been employed by the Respondent since 1982.
The Respondent’s casual employees are advised on induction how to submit their availability for shifts in mycoles/myhub. They have the option to amend their availability, as required. Shifts are based around the needs of the Respondent and the employees’ availability.
If a department manager or Mr Hutchison knows a week in advance of an available shift, the shift will be put into mycoles/myhub and the casual employee can choose to accept or decline the shift.
Alternatively, a text can be sent from the store’s mobile phone the day before or on the day of the shift if there is an unexpected availability, for example if an employee is unwell.
Mr Hutchison noted that Mr Fear did not have regular casual shifts, and they differed depending on his availability. He typically worked in the dairy/freezer department.
On 11 May 2023, Mr Hutchison sent Mr Fear a letter advising him that he was not eligible for casual conversion to permanent employment because, essentially, he did not work regular hours and his limited availability. The letter included the following statement:
“You will continue in your position as a casual team member with Coles Supermarkets. As a casual team member, Coles Supermarkets makes no guarantee that you will be offered any or regular engagements. You are free to choose whether to accept any engagement you are offered.”
The operating hours of the dairy department commence at 6:00am. Shifts in the dairy department commence at 6:00am, with some shifts occasionally commencing later if, for example, a delivery was expected to be late. Mr Hutchison noted that is not best practice.
In or around 26 March 2024, Mr Fear updated his casual availability in myhub to 9:00am – 2:00pm.
Mr Hutchison stated that the dairy department cannot accommodate a casual employee commencing at 9:00am.
Once Mr Fear’s availability between 9:00am and 2:00pm was known, he was offered a casual shift in another department, but he expressed that he was not happy working that department.
In May 2024, Ms Samanpreet Samanpreet was the Dairy Manager. Ms Samanpreet informed Mr Hutchison in mid-May 2024 that Mr Fear had telephoned to say that he was not getting enough hours in the dairy department and wanted more hours. Ms Samanpreet informed Mr Fear that she already had four permanent and part-time employees in the dairy department and did not have shifts to accommodate his availability. Ms Samanpreet advised Mr Fear he could seek work in other departments.
Mr Fear had been trained in the meat department on 26 March 2024, including on how to mark-down meat. On or around 13 May 2024, Mr Hutchison telephoned Mr Fear and offered him two casual shifts working in the meat department. Mr Fear worked in the meat department on 14 and 16 May 2024. On 16 May 2024, Mr Fear expressed that he did not like working in the meat department and did not know how to do mark-downs. Mr Hutchison reminded him that he had been trained and offered to walk him through the process after his lunch break. Mr Fear left the store and did not return to complete his shift.
On 28 May 2024, at 10:40am, the following text messages were sent by Mr Hutchison using the store’s mobile phone to Mr Fear, with his responses as below:
Store: Hi Jason, I have a shift today if you’d like to work?
Mr Fear: What time!
Store: 12 til 3
Mr Fear:My availability is till 2pm. Sorry school pick up… And why am I receiving msgs from random numbers I would rather be contacted by phone via the store number
I have informed fair work Australia about text msgs they have stated its illegal. I’m interested in permanent part-time role not random phone msgs. Thanks again please just roster me or call.
Mr Hutchison telephoned Mr Fear to inform him the messages were from the store mobile phone number.
On 30 June 2024, Mr Fear sent the following email:
“Hi I have not been receiving any communication from my management about hours from any stores please help with this issue I’m not the only casual worker impacted by this. And there is a petition I have signed.”
On 1 July 2024, Ms Cheri Godfrey, Store Support Manager sent to Mr Fear the following email:
“Hi Jason,
As a casual team member your roster will appear online in your Coles MyHub when you have been rostered shifts.
I note that as per your sms on 28th May you advised that you were not happy receiving sms communication for any on call last minute shift opportunities; this has been communicated to the store management team.
You will have shifts rostered where we have planned casual availabilities or an attempt will be made to phone you where we have last minute casual or on call shift opportunities.
My email dated 21st June had instructions on how to register for additional store locations, feel free to let me know if you had any issues following these or if you require further assistance regarding your interest.
As mentioned on the phone call 20th June, it is a good idea to also meet the department managers in the additional stores and introduce yourself and your availability.”
Mr Fear replied the same day:
“Why am I not received any roster shifts or any hours at Riverlink??? I have seen other casual staff members are being getting shifts! I just need something this treatment is very stressful, depressive and upsetting and unfair. I have also registered with the other stores and have received no communication from them.
There is evidence of unfair treatment towards me even discrimination that I have considered seeking legal advice.”
Given the size of the Respondent’s workforce, it automates messages to employees after they have not worked a shift for 60 days and 90 days or updated their availability.
Mr Hutchison is aware that Mr Fear was ringing the store and asking to speak with employees in the dairy department. He would ask them how many hours they were getting. These were non-managerial employees.
Mr Hutchison stated that Mr Fear was not a model employee. He had to counsel him in relation to telling other employees that they did not deserve a pay rise in November 2023 and only he did. He counselled him in June 2024 in relation to inappropriate comments on the Coles ‘mythanks’ platform.
In evidence given during the hearing, Mr Hutchison was clear that the way his store operates is that dairy employees are almost always required to work from 6:00am. There is no requirement to commence at 9:00am and Mr Fear’s request to work in the dairy department from no earlier than 9:00am could not be accommodated.
Consideration
A dismissal may be unfair, when examining if it is ‘harsh, unjust or unreasonable’ by having regard to the following reasoning of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd:[1]
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer act, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter.[2]
s.387(a) – Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)
When considering whether there is a valid reason for termination, the decision of North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 provides guidance as to what the Commission must consider:
“In its context in s.170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1) At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based on upon the operational requirements of the employer’s business. Further, in consideration whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, common-sense way to ensure that the employer and employee are treated fairly’.”
However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[3]
Mr Fear was not dismissed for reasons of conduct. He was a casual employee who had indicated a small window of availability around his responsibilities of picking his children up from school. From late March 2024, he indicated his availability was 9:00am – 2:00pm and he essentially only wished to work in the dairy department. He walked out of a shift in May 2024 when working in the meat department.
The Respondent had no desire to roster casual employees from 9:00am in the dairy department; the work needs to be performed from 6:00am. It is presently performed by permanent and part-time employees from 6:00am.
Mr Fear’s availability did not align with the Respondent’s requirements, and he was unwilling to work in other departments within the store. After not working for a period in excess of 60 days, in July 2024 he was invited to inform the Respondent of his availability. He had been emailing in late June 2024 and early July 2024 to complain about not receiving shifts to work. He was given detailed instructions on how to update his availability and also register for other stores.
Mr Fear was keen to speak with other dairy department employees and complain about his lack of shifts but never made any attempt to come the short distance to the store and speak with Mr Hutchison. The colleagues he was complaining to are permanent and part-time employees at his level. They hold no influence in having him rostered to work from 9:00am in the dairy department.
Mr Fear did not have capacity to work at the times the Respondent was prepared to offer casual employees to work in the dairy department. There was nothing unreasonable about the Respondent’s operational requirements. Having not worked in excess of 90 days, Mr Fear’s employment was terminated. There was a valid reason for the dismissal.
s.387(b) – Whether the person was notified of that reason
Mr Fear was notified of the reasons for the dismissal in the termination letter dated 18 August 2024.
s.387(c) – Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person
The Respondent wrote to Mr Fear to inform him of the risk to his employment and gave him until 4 August 2024 to update his availability on its platforms before it dismissed him on 18 August 2024.
The Respondent’s requirements in the dairy department for work to be performed from 6:00am did not change in this period of time. Mr Fear’s limited availability could not be accommodated.
s.387(d) – Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal
No meetings were organised with Mr Fear. The communication around his availability and not being offered further shifts was in writing, by email.
s.387(e) – If the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal.
The dismissal was not related to unsatisfactory performance.
s.387(f) – Whether the respondent’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed
The Respondent is not a small business and has dedicated human resource specialists.
s.387(h) – Other matters
Mr Fear raised with the Respondent suggestions of being discriminated against. He did not nominate the ground of discrimination.
The Respondent is a very large organisation. The method of communicating with casual employees who have not worked for a substantial period of time, nor updated their availability, is by way of email communication. Best practice would certainly be for the relevant Store Manager to invite such employees to the store for a meeting to discuss their ongoing availability. If a casual employee wanted to take the Store Manager up on the meeting, it should occur. I imagine there would be many instances of an apathetic casual employee not wishing to continue their employment and not wishing to return to the store to discuss. In that instance, the employment could end by way of email communication.
In Mr Fear’s case, even if he had been invited to the store to discuss with the Store Manager his availability, it is clear on the evidence that he gave to the Commission that his availability was strictly 9:00am – 2:00pm in the dairy department, and it was highly unlikely that any further casual shifts would have been allocated to him. Beyond 90 days of no shifts and no changes to his availability which would suit the Respondent, it was reasonable in all of the circumstances to dismiss him.
Conclusion
I have determined that there was a valid reason for the dismissal.
I have determined that Mr Fear was notified of the reasons for the dismissal.
I have determined that the Respondent wrote to Mr Fear to inform him of the risk to his employment.
There was no unreasonable refusal by the Respondent to allow Mr Fear a support person.
The dismissal was not in respect of poor performance.
The Respondent’s enterprise is not small. It has dedicated human resource specialists.
The Respondent ought to have invited Mr Fear to a meeting with the store manager to discuss his availability before dismissing him. If such a meeting had occurred, I am satisfied that Mr Fear would still have been dismissed due to his limited availability not meeting the operational requirements of the Respondent.
I find that the dismissal was not harsh, unjust or unreasonable.
The application is dismissed. An order [PR784742] will be issued with this decision.
COMMISSIONER
Appearances:
J Fear, the Applicant.
R Karakinos and L Davis for the Respondent.
Hearing details:
13 December 2024.
[1] (1995) 185 CLR 410, [465].
[2] Sayer v Melsteel [2011] FWAFB 7498, [20].
[3] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
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