Nicholas Leigh Haines v Coles Supermarkets Australia Pty Ltd t/as Coles Supermarkets
[2023] FWC 1206
•24 MAY 2023
[2023] FWC 1206
The attached document replaces the document previously issued with the above code on 24 May 2023.
Typographical error in paragraph [47] amended. The word “no” inserted before the word “basis”.
Associate to Deputy President Anderson.
Dated 24 May 2023.
| [2023] FWC 1206 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nicholas Leigh Haines
v
Coles Supermarkets Australia Pty Ltd t/as Coles Supermarkets
(U2023/3284)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 24 MAY 2023 |
Application for an unfair dismissal remedy – extension of time – shoulder injury and depression – no exceptional circumstances – application dismissed
On 17 April 2023 Nicholas Leigh Haines (Mr Haines or the applicant) lodged an unfair dismissal application under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) in relation to a dismissal by Coles Supermarkets Australia Pty Ltd trading as Coles Supermarkets (Coles, the respondent or the employer) which took effect on 4 January 2023.
Coles filed a response on 2 May 2023. The employer contends that the application should be dismissed because it is out of time.
Mr Haines’ application was made one hundred and three days after the dismissal took effect, being eighty-two days beyond the twenty-one day statutory time-limit. For the application to proceed it requires an extension of time. Mr Haines seeks that extension.
This decision deals with whether an extension should be granted.
I issued directions on 9 May 2023.
Materials were filed by Mr Haines on 12 May 2023 and by Coles on 17 May 2023.
I heard the extension of time matter by video on 19 May 2023.
Mr Haines and Coles were self-represented (the employer, by in-house counsel).
Mr Haines gave evidence.[1] Both parties made oral submissions.
Following the hearing I reserved my decision.
Facts
I make the following findings.
Coles operates retail businesses nationally.
Mr Haines was employed in about May 2004 and at the time of dismissal was a stock filler at the Christies Beach store in suburban Adelaide.
Mr Haines injured his shoulder and ceased active work on or about 1 July 2022.
Mr Haines sought assistance from both his Union and a solicitor following his shoulder injury.
Following a meeting on 30 November 2022 and by letter that day Coles notified Mr Haines as follows:[2]
“You will appreciate that we are not able to hold your position open indefinitely. I therefore regret to inform you that the Company has decided to terminate your employment. Accordingly, your employment will cease on 04 January 2023.”
It is not in dispute that Mr Haines’ employment ended on 4 January 2023.
A workers’ compensation claim was handled on Mr Haines behalf by his solicitor.
According to Mr Haines, the workers’ compensation claim was resolved in March 2023 with agreement, amongst other matters, that surgery on Mr Haines’ shoulder would be covered by the workers’ compensation system. Mr Haines had that surgery in the second half of March 2023.
After the surgery and in early April 2023 Mr Haines decided that whilst the workers’ compensation claim had been resolved, it had not dealt with his grievance about being dismissed. Mr Haines felt that he had been discriminated against.
After speaking to some friends Mr Haines telephoned a ‘fair work’ hotline and enquired about making an unfair dismissal claim. He was sent an unfair dismissal claim form electronically. He was told that he was out of time.
According to Mr Haines, the solicitors who had assisted with his workers’ compensation claim were not willing to assist with an unfair dismissal claim.
On 12 April 2023 Mr Haines himself completed and signed the unfair dismissal application form.
Five days later, on 17 April 2023 Mr Haines emailed the unfair dismissal application to the Commission.
Submissions
Mr Haines
Mr Haines submits that time should be extended because the circumstances were exceptional.
Mr Haines says that he was unable to make the application within time for three reasons:
· he did not know of a 21-day time limitation when dismissed or until contacting ‘fair work’ in April 2023;
· he had an injured shoulder and was distracted by that injury and gave priority to it and his workers’ compensation claim; and
· he suffered depression in the wake of being dismissed and injured, and was also giving priority to managing his mental health during the delay period.
Coles
Coles submit that the circumstances for late lodgement are not exceptional and time should not be extended.
Coles submit that ignorance of the time period is not an acceptable reason for delay. It says that Mr Haines in any event had access to a Union and his solicitors during the delay period for advice about such matters.
Coles submit that there is no evidence that Mr Haines’ shoulder injury or the related workers’ compensation claim precluded him from making an application within time.
Coles submit that there is no evidence that Mr Haines’ mental health was such that he was not well enough to complete an application and send it within time.
Consideration
Section 394(3) of the FW Act provides:
“394 Application for unfair dismissal remedy
…
(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.”
Being eighty-two days out of time, Mr Haines’ application can only proceed if he establishes “exceptional circumstances” within the meaning of s 394(3).
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[3]
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[4] A decision whether to extend time under s 394(3) involves the exercise of a discretion.[5]
I apply s 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”[6]
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[7]
I now consider each of the factors in s 394(3).
Reason for delay (s 394(3)(a))
The reason for the delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might favour granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[8] The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.[9]
However, a reasonable explanation for the delay is not needed for the whole of the period of delay, or may in fact not be required at all, if the circumstances are otherwise exceptional.[10] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[11]
In this matter, the delay period is the eighty-two days between 26 January 2023 and 17 April 2023 inclusive.
I now deal with each of the reasons advanced by Mr Haines.
Lack of knowledge of time limitation
Mr Haines says that he did not know of a 21-day time limitation for unfair dismissal claims from the date he was notified of termination (30 November 2022) until contacting ‘fair work’ and completing his application on 12 April 2023. This was a period of approximately 133 days.
It is well established that ignorance of a statutory time frame is not, without more, an acceptable reason for delay.[12]
Further, at least until Mr Haines’ workers’ compensation claim was resolved in mid-March 2023, Mr Haines had support from and access to both a solicitor and (at the time of termination) his Union. This was across a lengthy period of months. Each could have informed Mr Haines of unfair dismissal rights and advised that a 21-day time limit applied. There is no evidence that Mr Haines sought such advice.
This explanation for the delay does not point towards the circumstances being exceptional.
Shoulder injury and workers’ compensation claim
Where a dismissed employee has or suffers a medical condition during the delay period or leading up to the delay period, the mere fact of that medical condition is not an exceptional circumstance. The relevant issue in the context of considering whether to extend time for late lodgement is whether the evidence demonstrates that the condition had a material impact upon the applicant’s capacity to lodge the application within the statutory time limit.[13]
No medical evidence was called by Mr Haines. Whilst accepting that his shoulder injury was distracting and ultimately required surgery in the second half of March 2023 once his workers’ compensation claim was resolved, there is no basis to conclude that it was of such a nature that it materially precluded Mr Haines from being able to take advice on or make an unfair dismissal claim during the delay period, other than perhaps (and I put it no higher) for the period of time he was recuperating from surgery.
Further, that there was an active workers’ compensation claim in relation to the injury is not of itself an unusual or special circumstance. That claim was being managed by solicitors acting for Mr Haines. Whilst Mr Haines needed to be attentive to that claim, there is no evidence that the fact of the claim precluded him from taking advice on or making a separate unfair dismissal claim.
This explanation for the delay does not point towards the circumstances being exceptional.
Depression
In the wake of being dismissed and having a shoulder injury that was the subject of an unresolved workers’ compensation claim, Mr Haines became depressed. He put it this way in his evidence:[14]
“[My] bed was my friend and I didn’t … do much at all during that time just plod around the house period and … kinda shut everyone away.”
Managing one’s mental health is important and Mr Haines is not to be criticised for doing so. However, no evidence was called by Mr Haines as to the nature or extent of his condition. The evidence falls well short of being able to make a finding that the condition was such that, during the near three months of the delay period, Mr Haines was materially precluded from being able to make an unfair dismissal claim.
This explanation for the delay does not point towards the circumstances being exceptional.
Mr Haines took action to pursue unfair dismissal rights only after speaking to friends once his workers’ compensation claim was resolved and once he had had surgery on his shoulder. With that out of the way, an unresolved sense of grievance about his dismissal was manifest. Whilst he earlier gave priority to those issues and his depression, these are not acceptable reasons for not pursuing his sense of grievance earlier.
The reasons for the delay neither individually nor collectively weigh in favour of a finding of exceptional circumstances.
Awareness of the dismissal taking effect (s 394(3)(b))
Mr Haines was aware on 30 November 2022, when given the letter of termination, that he was being dismissed on five weeks’ notice (4 January 2023).
The termination letter also made Mr Haines aware of the reason for dismissal.
That Mr Haines knew his employment ended and its reason makes this a neutral consideration.
Action taken to dispute dismissal (s 394(3)(c))
Mr Haines took no action to pursue unfair dismissal rights until speaking to friends and contacting ‘fair work’ in early April 2023.
No advance notice was given to Coles of his intention to pursue an unfair dismissal claim.
This is a neutral consideration.
Prejudice to the employer (s 394(3)(d))
As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances.[15]
If time is extended, a claim would have to be further responded to by the employer, involving time and cost. However, that prejudice, whilst real, is not unique.
This notwithstanding, the absence of prejudice would not itself be a reason to grant an extension.[16]
This is a neutral consideration.
Merits of the application (s 394(3)(e))
A hearing would concern whether the termination of an employee with an incapacity to perform the job or part of it was fair.
I have not heard evidence as to the circumstances giving rise to the decision made by the employer nor as to the medical prognosis known to Mr Haines or Coles at the time the decision to dismiss was made. In those circumstances no view, not even a provisional view, can be expressed on the merits of the claim.
This is a neutral consideration.
Fairness between persons in similar position (s 394(f))
In this matter, this is not a relevant factor.
Conclusion
The period of delay being eighty-two days, in the context of a statutory twenty-one day time frame, is significant.
The explanations for the delay neither individually nor collectively weigh in favour of a finding of exceptional circumstances. All other considerations are neutral. No considerations weigh in favour of such a finding.
As noted, whilst it was understandable that Mr Haines gave some level of priority to his shoulder injury and mental health during the delay period, he only took action to pursue unfair dismissal rights months after termination and only after speaking to friends once his workers’ compensation claim was resolved and once he had had surgery on his shoulder.
The circumstances are not exceptional.
There being no exceptional circumstances, the time for lodging the application cannot be extended.
As Mr Haines’ application is out of time and as the time for lodgement has not been extended, it is unable to proceed. The application is dismissed. An order[17] to that effect is issued in conjunction with the publication of this decision.
DEPUTY PRESIDENT
Appearances:
Mr N L Haines, on his own behalf
Mr J Goyal, with Mr M Hazigiakoumis, of and on behalf of Coles Supermarkets Australia Pty Ltd t/as Coles Supermarkets
Hearing details:
2023
Adelaide (by video)
19 May
[1] Statement of Nicholas Haines by email 12 May 2023
[2] A2
[3] Smith v Canning Division of General Practice[2009] AIRC 959
[4] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[5] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[6] [2011] FWAFB 975 “Nulty” at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
[7] John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954 at [7] and [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167 at [6]
[8] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [30] and [36]
[9] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 at [35]-[45]
[10] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[11] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
[12] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]
[13] Roberts v Westech IT Solutions Pty Ltd[2014] FWC 4226; Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting [2015] FWCFB 3435, [15] – [16]; Reeve v PKF (Gold Coast) HR Services Pty Ltd[2023] FWC 488, [61]
[14] Recording of Hearing, 19 May 2023, 37:51-38:04
[15] Brisbane South Regional Health Authority v Taylor [1996] HCA 25
[16] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[17] PR762276
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