Mr Tony Merlino v Coles Supermarkets Australia Pty Ltd

[2015] FWC 1185

[2015] FWC 1185

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Tony Merlino
v
Coles Supermarkets Australia Pty Ltd
(U2014/8408)

DEPUTY PRESIDENT ASBURY BRISBANE, 20 MARCH 2015

Application for relief from unfair dismissal - application made outside required time - exceptional circumstances - Applicant relied on reasonable grounds that an internal investigation may have reversed dismissal - further period to make application allowed.

Introduction

[1] Mr Tony (Giuseppe) Merlino applies for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (the Act) with respect to his dismissal by Coles Supermarkets Australia Pty Ltd (Coles). Mr Merlino was dismissed on 2 June 2014 and his dismissal took effect on that date. The application was made on 18 July 2014.

[2] By virtue of s. 394(2) of the Act, an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s. 394(3) of the Act. Mr Merlino’s application was made 25 days outside the required time.

[3] Mr Merlino seeks that the Commission allow a further period in which to make his application on the basis that he asserts that he was mislead by Coles to believe that his dismissal was “stayed” while a number of allegations he made about a manager who was involved in his dismissal were investigated. Coles denies this assertion and opposes Mr Merlino being allowed an additional period in which to make his application.

[4] This Decision deals with the question of whether Mr Merlino should be allowed an additional period under s. 394(3) of the Act. That section provides as follows:

“(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.”

[5] The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:

● out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or
● involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional. 1 

[4] Even when exceptional circumstances are established, discretion as to whether time should be extended remains, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable. 2  

[5] Directions were issued requiring the parties to file and serve material and statements of evidence upon which they proposed to rely, in relation to the question of whether a further period should be allowed for Mr Merlino to make his application. Two statements were provided by Mr Merlino in affidavit form. A statement in support of Mr Merlino’s application for an extension of time was provided by his Solicitor, Mr Lachlan Lamont.

[6] Statements of evidence were provided from the following persons on behalf of Coles:

● Ms Reagan Lauder, State Human Resources Manager, HR Operations, Queensland; and
● Ms Jan Maree Stevenson, State Manager, HR Advisory, Queensland and Western Australia.

[7] The parties were also requested to advise whether they wished to cross-examine with respect to any witness statements provided by the other party. Both parties sought to cross-examine witnesses for the other party and given that there were disputed issues of fact, it was necessary to hold a hearing. Each of the matters in s.394(3) is considered below.

The reason for the delay

[8] In order to understand the reason for the delay provided by Mr Merlino it is necessary to briefly set out the background to the dismissal. Mr Merlino commenced employment with Coles on 28 June 1994. At the time of Mr Merlino’s dismissal he was employed as a Store Manager in North Queensland having held similar positions at a number of Coles’ other stores throughout his employment.

[9] The last few years of Mr Merlino’s employment have not been without incident, with Mr Merlino receiving a number of warnings in that time, including a final warning. For the purposes of this Decision it is sufficient to say that Mr Merlino disputes these warnings and asserts that he was the subject of unfair treatment and victimisation by a Regional Manager of Coles, Mr Jason Millard. In particular, Mr Merlino asserts that the final warning should have been removed from his file and that Mr Millard placed him in a vulnerable position by not doing this because of interpersonal issues with Mr Merlino. Mr Merlino’s dismissal related to an incident alleged to have occurred on 17 April 2014 in which Coles asserts that Mr Merlino stood on a number of pallets, creating a safety risk.

[10] On 2 June 2014, Mr Merlino attended a meeting with Mr Millard and Ms Lauder. Mr Merlino recorded the meeting and tendered transcripts of the recording. 1 At this meeting Mr Merlino was advised that his employment was terminated. Mr Merlino responded by stating that he was not going to accept the warning; it was unfair and that he wanted an investigation of the circumstances surrounding his dismissal and the warning.2

[11] Mr Merlino’s evidence is that Mr Millard said: “if you have any concerns in regards to the situation or anything to put that into writing obviously through to HR to either Regan, Jan or HR advisory”. 3 Mr Merlino said that he had previously made complaints to Coles about Mr Millard. Mr Merlino also said that at the termination meeting he told Mr Millard and Ms Lauder that he wished to make a complaint regarding Mr Millard to Coles’ General Manager for Queensland and Northern Territory, Mr Mark Scates.

[12] Mr Merlino stated that the parties broke from the meeting in which time Ms Lauder contacted Mr Scates. Upon resuming the meeting, Ms Lauder informed Mr Merlino that Mr Scates was unavailable and that he encouraged Mr Merlino to “go through to Jan to raise [my] concerns so that [Coles] could have a look at what [my] concerns are” 4.

[13] Mr Merlino stated that he continued to advise Ms Lauder and Mr Millard that he did not accept the termination of his employment and that Ms Lauder told him to raise his concerns through Ms Jan Stevenson, State HR Advisory Manager for Coles. Mr Merlino’s evidence is that at the conclusion of the meeting Ms Lauder stated:

“So we would encourage you to go back through Jan. I know you don’t want to do that but that’s your decision as to which way you want to go and who you want to speak to, but we would encourage you from a business perspective to raise your concerns through Jan” 5

[14] After the meeting had concluded Mr Merlino remained in the room with Ms Lauder. Mr Merlino continued to discuss the matter with Ms Lauder. Mr Merlino’s evidence is that during this discussion he asked Ms Lauder whether termination of employment decisions could be overturned, and that Ms Lauder responded with words to the effect of:

“If someone had all this evidence to show that this was untrue then absolutely it could be overturned but I can’t sit here, I typically haven’t seen it be overturned and if you have these complaints and they become investigated and substantiated then potentially, but I can’t answer that because I don’t have the facts.” 6

[15] Ms Lauder also gave Mr Merlino a mobile telephone number upon which he could contact Ms Stevenson. Mr Merlino stated that he went away from this meeting with a belief that Coles’ preferred way of reviewing his termination was to submit his concerns to Ms Stevenson and that a reversal of the termination decision was a possible outcome. 7

[16] After his conversation with Ms Lauder, Mr Merlino stated that he immediately telephoned Ms Stevenson. Ms Stevenson advised Mr Merlino that Ms Lauder had already spoken to her about Mr Merlino’s complaint. Mr Merlino’s evidence is that he told Ms Stevenson that:

“a. My dismissal was unfair;
b. I wanted an investigation;
c. I was disappointed and upset;
d. I wanted to advise her about the conduct of my Regional Manager Jason Millard and his unfair treatment because that was the reason I had been placed on a first and final warning and subsequently dismissed unfairly;
e. I believed that Mr Millard’s conduct was bullying and harassment;
f. I believed that Mr Millard’s intent was to put me in a vulnerable situation where I could be terminated.” 8

[17] Mr Merlino stated that:

“On the basis of my conversations with Ms Lauder and Ms Stevenson, I believed that Ms Stevenson would be investigating the circumstances that resulted in my dismissal including my complaints about Mr Millard and the validity of my previous warning. I believed that the decision to terminate my employment was under review pending this investigation. I also believed that a possible outcome from Ms Stevenson’s investigation would be that the termination of my employment would be overturned.” 9

[18] Mr Melino also said that he believed his dismissal would be “stayed” during the investigation. Late on 2 June 2014, Mr Merlino sent an email to Mr Scates. This email stated:

“Has it ever occurred to you why things have gone pear shape (sic) since being in Cairns?

And have you ever thought that maybe I have been a victim of vicious bulling from my line manager. (sic)

Would love the chance to elaborate further.

Have contacted Jan Stevenson today.” 10

[19] Mr Scates responded on the morning of 3 June 2014 as follows:

“I understand that you have spoken to Jan Stevenson in relation to a number of matters involving your employment, including allegations against Jason Millard.

I note you have commented about being a victim of serious bullying from your line manager. As you are aware, not only from your role as a team member and store manager but also following conversations with Reagan Lauder, Coles does not tolerate this type of behaviour and has a robust investigation process in place for allegations of this nature to be investigated. Reagan has requested you provide details in writing of these allegations. To date you have declined to provide details of these allegations to enable the Company to undertake its process.

To ensure we are able to undertake a thorough investigation of your concerns, as Jan discussed with you yesterday (and Reagan previously) please provide details so a determination can be made by the Company in relation to the next steps.”

[20] Ms Stevenson stated that she advised Mr Scates in relation to his response to Mr Merlino in this email.

[21] Mr Merlino stated that he was invited to provide submissions and evidence in relation to a number of complaints he had identified that he considered were relevant to his termination. On 3 June Ms Stevenson sent an email to Mr Merlino in the following terms:

“Following on from our phone call yesterday in relation to the concerns you have regarding your time working in Cairns, I await the detailed statement from [you] on this topic. As discussed with you yesterday, once I have received this information I will be able to review and determine the next steps to be undertaken. Can you please ensure you provide me as much detail as possible in relation to the concerns that you have. I would also ask you to provide me with the names of witnesses to the matters that you are raising. Where appropriate, witnesses will be interviewed by the investigator, ensuring we have factual information from them.

Tony I have been aware today that you have been making contact with department managers at the store requesting statements in support. Tony I would not be considering any statements you obtain as evidence in this matter. As mentioned, please provide me with the names of witnesses and where [it] is deemed appropriate they will be interviewed as part of any investigation that may be undertaken.

Tony we consider it is inappropriate for you to be contacting team members in relation to this matter and I request you [refrain] from doing so.” 11

[22] Mr Merlino contacted a Lawyer on 4 June 2014. Mr Merlino stated that he contacted the Lawyer for advice in the event that the internal review was not decided in his favour. Mr Lachlan Lamont, at the time a Lawyer of Rose Litigation, gave Mr Merlino advice. Mr Merlino stated that Mr Lamont did discuss an unfair dismissal application but his advice was that it would be best to wait for the results of the internal review before making any application.

[23] Mr Merlino provided Coles with three sets of submissions in relation to the internal investigation; the last of which was submitted to Coles on 30 June 2014. On 16 June, Ms Stevenson sent an email to Mr Merlino asking him to confirm when he would finalise all the issues he wished to raise as she was awaiting all details before she considered what steps would be taken in relation to the matters Mr Merlino was raising.

[24] On 4 July 2014, Mr Merlino sent an email to Ms Stevenson querying whether the final submission had been received. Ms Stevenson responded:

“Yes thank you. I have the document and will be looking into the matters you have raised over the coming weeks.” 12

[25] Mr Merlino stated that by 16 July 2014 he was becoming concerned about the length of time Coles was taking to conduct the investigation. On the advice of Mr Lamont, Mr Merlino emailed Ms Stevenson advising her that he was concerned about the complaints process and would be lodging an unfair dismissal application if he had not received a response by 18 July 2014. Ms Stevenson’s response, received on 17 July 2014, indicated that the matters raised by Mr Merlino would be looked into over the coming weeks. Mr Merlino did not tender these emails. The emails were tendered by Ms Stevenson. Mr Merlino’s email of 17 July 2014 was in the following terms:

“I refer to my complaint to you on or about 4 June 2014 regarding the circumstances of my dismissal from this company.

I have been postponing lodging an application for unfair dismissal remedy with the Fair Work Commission pending the outcome of your internal investigation, which I have been led to believe would take two weeks.

I can no longer wait to file the application and hereby put you on notice that if you have not provided a response to be regarding my dismissal within 2 days ending Friday 18 July 2014 I will proceed without further notice to you.” 13

[26] Ms Stevenson’s response sent to Mr Merlino on 17 July 2014 was as follows:

“With regards to your email below, I confirm the third and final part of your complaint, post the termination of your employment on 2 June 2014 was received on 30 June 2014. You were advised on 25 June that I was awaiting your third email of matters so I could commence a full review of the matters you raised.

At no stage have you been advised the matter would be finalised within two weeks. On 4 July you were advised we have received all 3 parts and that we will be looking into the matters raised over the coming weeks.

Your matters are currently being reviewed.” 14

[27] Later on 17 July 2014 Mr Merlino spoke with Mr Lamont who advised Mr Merlino that he had discussed the matter with Ms Stevenson who informed him that she was not investigating the termination and that consequently Mr Merlino would not be reinstated as a result. Mr Merlino instructed Mr Lamont to prepare and file an unfair dismissal application.

[28] Mr Lamont gave evidence that it was his understanding that Mr Merlino’s termination of employment had been suspended pending the outcome of Coles’s internal investigation. Mr Lamont confirmed that he contacted Ms Stevenson on 17 July and that she told him that Mr Merlino had been terminated and was not going to be reinstated. Mr Lamont contacted Mr Merlino on 17 July 2014 and obtained instructions to file the application for an unfair dismissal remedy. Mr Lamont filed the application on 18 July 2014.

[29] Ms Lauder stated that following the decision to terminate Mr Merlino’s employment, Mr Millard advised Mr Merlino that he would receive a termination letter and any outstanding entitlements owing to him would be paid in the next pay cycle. 15 Mr Merlino was requested to sign the record of the meeting but refused to do so. In Ms Lauder’s view this did not change the outcome of the meeting that it was clear that Mr Merlino had been dismissed. Ms Lauder agreed that Mr Merlino specifically stated that he was “not going to accept” the termination.16

[30] Ms Lauder also agreed that after the dismissal meeting, Mr Merlino requested to speak with her further. According to Ms Lauder, Mr Merlino reiterated that he did not accept his termination to which Ms Lauder responded that he had seriously breached Coles’ code of conduct and such behaviour could not be accepted from a Store Manager.

[31] Ms Lauder stated that Mr Merlino raised some concerns he had with the way that he had been treated by Mr Millard. Ms Lauder’s evidence is that she reminded Mr Merlino that he had raised these concerns previously and that at that time he was advised of how to initiate the process in relation to his concerns but that he did not do so at that time.

[32] Under cross-examination, Ms Lauder conceded that she did have a discussion with Mr Merlino as set out in the following exchange:

“he did say to you in that private discussion, “Could this be overturned?” He said that to you, didn't he?---Yes.

And it’s the case, isn't it, that you said:

I don't know. I can’t really answer that question. I don't know. If someone had all this evidence to show that all of this was untrue then absolutely it could be overturned.

So if you weren't talking about an internal process by which any decision that Mr Millard had made could be overturned, what were you talking about there then?---The missing 10 minutes prior to that conversation was about Mr Merlino’s concerns with Mr Millard and after that conversation had completed then Mr Merlino asked me the question in relation to it being overturned and that was the response that I gave, but it certainly wasn't intended to tell Mr Merlino that his decision - the decision would be overturned.

So you admit that he said, “Could this be overturned”?---Correct.

So he was clearly, wasn't he, stating or referring to any decision to terminate his employment?---He was asking a general question, yes, in relation to that.

About the termination of his employment?---I assume so. It’s saying, “Could the decision be overturned?”

Yes. And you've told him that, yes, if he made a substantial enough submission, it could be overturned?---I don’t say yes. I say, “I don't know. I can’t really answer that question.”

If someone had all this evidence to show that it was untrue then absolutely?---Yes.

And he’d spent a good deal of time in that interview on 2 June, the earlier interview with Millard, going through the things that he thought were unacceptable, didn't he?---In my view, yes, they were in relation to Mr Millard’s behaviour, but not in relation specifically to his termination.

Ms Lauder, honestly, you know, you've clearly – he’s not said to you – you didn't say to him, you know, “We could do something with respect to Mr Millard.” You say to him, “Absolutely it could be overturned.” What possibly else could you be referring to other than any decision relating to his employment?---So that specific comment there is relating to Mr Merlino’s question, “Could this be overturned?” but I don't believe in that I'm specifically saying to him, unless I'm missing reading it, that, “Your case could be overturned.” It was a general statement that under these circumstances if someone was to give enough evidence and raise concerns around an unfair dismissal then that could be the case.

You see, I think if I can put this to you, Ms Lauder, that the events on 2 June, firstly, you and Mr Millard repeatedly told Mr Merlino that the way that he should adopt and the company’s preferred way for him to adopt to challenge the decision to terminate his employment that had supposedly been made by Mr Millard was to have it reviewed by Ms Stevenson. That's correct, isn't it, that that was your preferred – the company’s preferred position that if he was going to challenge it, he should do it by complaining or putting something to Ms Stevenson? That's correct, isn't it?---No. The comment that I made in relation to that was about his concerns with Mr Millard.”

[33] Ms Stevenson stated that the majority of the telephone conversation with Mr Merlino on 2 June 2014, related to his perception about how he had been treated during his time in Cairns. Ms Stevenson stated that during this conversation Mr Merlino did not state that he believed his termination was unfair or that he wanted his termination reviewed. 17 Ms Stevenson also said that at no stage did she advise that she was undertaking such a review or that reinstatement was a possible outcome.18 Ms Stevenson did state that Mr Merlino informed her that he was disappointed and upset about the termination of his employment and that he had told Ms Lauder about his concerns with Mr Millard, and had been “instructed” to put them in writing.19

[34] During the cross-examination of Ms Stevenson the following exchange took place:

“The question that I asked you was if everything that he’d said about the allegations, because they also refer to that particular incident – if all of the allegations had been substantiated, are you saying that there was no chance for Mr Merlino to have his employment reinstated?---Not via that process, no.

Did you tell him that?---No. He never raised with me that this was about his termination and wanting his job back.

Do you have no formal process in place whereby between the HR team, the HR, in this case Ms Lauder, makes it clear to you what’s been raised and why it’s been raised?---Ms Lauder advised me he was raising his complaints of bullying against Jason and that that was what I asked him to put his details about.” 20

[35] And further:

“Just with respect to that particular issue, would your process have changed had Ms Lauder told you that she’d told Mr Merlino that the decision about his employment could be overturned?---If I knew that Mr Merlino’s issues were in relation to having his employment overturned, I would have advised him that the correct avenue for that would be to make application to Fair Work.” 21

[36] As relates to what transpired at the termination meeting, Ms Stevenson stated in cross-examination:

“...According to Mr Millard on transcript, it was about all those other incidences that in fact become the subject of your investigation?---The incidences that were the subject of my investigation were Mr Merlino’s allegations of bullying and harassment, one of which was Mr Merlino did not agree with the mock audit findings. That was part of what I investigated, that his termination was due to the serious safety breach, which was considered serious misconduct.

So nobody told you that in fact it was Mr Merlino’s entire record that was at issue that led to the termination? Nobody told you that either?---I was aware that there was previous first and finals of Mr Merlino that were taken into consideration, but the reasoning for his termination was the safety breach.

But you weren't aware that in fact that wasn't the only reason?---That was the reason for his termination. Consideration was given to the first and final w warnings that he was on.” 22

Consideration

[37] Mr Merlino alleges that he was lead to believe that by making a complaint in relation to his concerns regarding Mr Millard it was possible that the decision to terminate his employment could be overturned and that his dismissal would be “stayed” during the investigation. Coles disputes this.

[38] Coles’ case is that Mr Merlino was clearly aware that his termination had come into effect at the time he was notified of the dismissal. Further, Coles maintains that at no time did Mr Merlino convey that in making his complaint he was asking Coles to consider overturning the dismissal decision.

[39] Coles submitted that an erroneous belief on the part of Mr Merlino is not a valid reason to justify a delay. In this regard Coles relied upon the Full Bench decision in Gao v Department of Health 23where the Full Bench stated:

“The third ground of appeal involves an allegation that DHS had encouraged Mr Gao to believe that DHS was reviewing his dismissal under the DHS Fair Treatment policy and that this had led him not to lodge an application until the review had been completed and the result notified to him. It is sufficient if we indicate that it was open to the Deputy President to take the view, as His Honour obviously did, that any belief which Mr Gao had about the possibility of a favourable review under the Fair Treatment policy did not provide an adequate excuse for delaying the lodgement of the application until December 2010.” 24 (emphasis added)

[40] In my view, the facts in this case are distinguishable from those in Gao. In that case, Mr Gao sought a review of the termination of his employment but took few steps to pursue the matter. There was a delay of some six months between correspondence sent by Mr Gao to his former employer and his application for an unfair dismissal remedy being filed. Gao turned on the particular facts in that matter, and there is no general principle to be derived from that decision that an employee who seeks to dispute a termination internally, and as a result does not file an unfair dismissal application within the required time, will not be able to establish exceptional circumstances, to justify an additional period to make such an application being allowed.

[41] In the present case, it is established on the evidence, and accepted by Ms Lauder, that she did advise Mr Merlino to the effect that a decision to dismiss an employee could be overturned if sufficient evidence was provided. Ms Lauder then proceeded to advise Mr Merlino of how to formalise his concerns

[42] Mr Merlino instigated the review process in accordance with Ms Lauder’s advice and that process was conducted by Ms Stevenson. Both Ms Lauder and Ms Stevenson were told by Mr Merlino that the fact that his employment had been terminated was in issue. Ms Lauder was told in no uncertain terms that Mr Merlino did not accept the termination of his employment and Ms Stevenson was told that he was disappointed and upset that his employment had been terminated. Neither Ms Lauder nor Ms Stevenson clearly spelled out to Mr Merlino that the review process he was invited to instigate would not encompass the termination of his employment. To the contrary, Ms Lauder left open the possibility that the decision to terminate Mr Merlino’s employment could be overturned.

[43] I do not find that Coles’ representatives in this matter deliberately set about to mislead Mr Merlino to delay the lodgement of his unfair dismissal application and I do not understand that Mr Merlino asserts this. I do find however, that Ms Lauder’s statements to Mr Merlino after the termination meeting had finished led him to believe that had he put in enough evidence regarding the matter, his dismissal could be overturned, and that this belief was reasonable. Ms Stevenson and Mr Scates, who both knew Mr Merlino had been dismissed and that he was unhappy about this, did nothing to disabuse him of this belief.

[44] From this point it appears that a series of miscommunications or misunderstandings have allowed Mr Merlino’s erroneous belief to persist until he brought the situation to a head by his email to Ms Stevenson of 16 July 2014. Even at that point, Ms Stevenson’s response does not address the glaringly obvious statements in Mr Merlino’s email indicating his belief that the investigation Ms Stevenson is conducting relates to the circumstances of his dismissal and that he has been holding off filing an unfair dismissal application pending the outcome of that investigation. Instead, Ms Stevenson takes issue with Mr Merlino’s assertion that she had told him that the investigation would take two weeks.

[45] Ms Stevenson’s email is telling, and underpins the failure of both herself and Ms Lauder to appreciate the confusion that their responses to Mr Merlino’s issues had caused. It was not until Mr Merlino’s Solicitor contacted Ms Stevenson that Mr Merlino was informed that the review process did not relate to his dismissal and that there was no prospect that it would be overturned, regardless of whether his issues in relation to his treatment by Mr Millard were found to be valid.

[46] I accept that Mr Merlino’s correspondence did not specifically state that the issues about which he sought a review included an assertion that his dismissal was unfair. However, Ms Lauder could have been in no doubt that he disputed his dismissal. In the context of his conversation with Ms Lauder at the dismissal meeting, and Ms Lauder referring him to Ms Stevenson to deal with his issues, it is not surprising that Mr Merlino believed that his dismissal was being investigated. It is also the case that the issues about which Mr Merlino sought a review related to earlier warnings, which in Mr Merlino’s view placed him in a vulnerable position when the issue that resulted in his dismissal occurred. In this sense Mr Merlino was disputing his dismissal.

[47] Mr Merlino was a dismissed employee dealing with two senior Human Resource Management specialists. It is to be expected that one or both of these Human Resource Management specialists would have taken some step to ensure that it was clear that what was being investigated and reviewed was the allegations about Mr Millard and not the dismissal of Mr Merlino. The failure of Ms Lauder and Ms Stevenson to clarify this matter is unusual and out of the ordinary course.

[48] In the circumstances I accept that Mr Merlino’s reasons for the delay are valid. While Mr Merlino became aware of his dismissal on 2 June 2014 it is also the case that he was led to believe that his dismissal was being reviewed and could be overturned. Mr Merlino took immediate action to dispute his dismissal. He did not wait for an unreasonable period of time before doing so and filed an application for an unfair dismissal remedy as soon as he was informed by his solicitor that the review process was not in relation to his dismissal.

[49] Coles has not pointed to any prejudice if the application proceeds, other than the prejudice of having to defend the application and the assertion that it has no reasonable prospects of success. In the alternative Coles submits that a mere lack of prejudice is not a factor that weighs in favour of granting an extension. This factor is neutral in my consideration.

[50] In relation to the merits of the application, it is well established that in the context of an extension of time application, detailed analysis of substantive merits is not required and it is sufficient for an applicant to establish that the substantive application is not without merit. 25

[51] The material before the Commission in relation to the merits of the matter is not extensive. It does not appear to be in dispute that Mr Merlino engaged in the conduct that led to his dismissal and that it was a safety breach. However, it does appear that there will be significant dispute between the parties including about events prior to this incident, the validity of earlier warnings and what if any impact those earlier warnings had on the dismissal. Mr Merlino may be in some difficulty with his application if he does not establish that his allegations about Mr Millard are valid. However, Mr Merlino’s application is not without merit.

[52] Where there are exceptional circumstances, considerations in relation to fairness as between Mr Merlino and other persons in a similar position do not arise.

Conclusion

[53] Having considered the matters in s.394(3) of the Act I am satisfied that there are exceptional circumstances and that I should exercise my discretion pursuant to that section to allow a further period for Mr Merlino to make his application. An order allowing a further period until 18 July 2014 will issue with this Decision.

[54] The matter will be further listed for mention by the Commission and for Directions to be issued in relation to determination of the substantive application.

DEPUTY PRESIDENT

 1   Exhibit 1 - Affidavit of Tony Merlino at paragraph 3.

 2   Exhibit 1 - Affidavit of Tony Merlino at paragraph 4; Exhibit 2 - Affidavit of Tony Merlino at paragraph 13.

 3   Exhibit 1 - Affidavit of Tony Merlino at paragraph 5.

 4   Exhibit 1 - Affidavit of Tony Merlino at paragraph 8.

 5   Exhibit 1 - Affidavit of Tony Merlino at paragraph 9.

 6   Exhibit 1 - Affidavit of Tony Merlino at paragraph 12.

 7   Exhibit 1 - Affidavit of Tony Merlino at paragraph 14.

 8   Exhibit 1 - Áffidavit of Tony Merlino at paragraph 17.

 9   Exhibit 1 - Affidavit of Tony Merlino at pargarph 20.

 10   Supplementary witness statement of Jan Maree Stevenson at JMS11.

 11   Affidavit of Tony Merlino at TM-7.

 12   Affidavit of Tony Merlino at TM5.

 13   Witness statement of Jan Maree Stevenson at JMS9.

 14   Ibid.

 15   Witness statement of Reagan Lauder at paragraph 6.

 16   Witness statement of Reagan Lauder at paragraph 8.

 17   Witness statement of Jan Maree Stevenson at paragraph 7.

 18   Witness statement of Jan Maree Stevenson at paragraph 9 to 10.

 19   Exhibit 5 Witness Statement of Jan Maree Stevenson at paragraph 5.

 20   PN410 to PN412.

 21   PN424.

 22   PN434 to PN436.

 23   [2011] FWAFB 5605.

 24 Ibid at [12].

 25   Kornicki v Telstra-Network Technology Group Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

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