Sahil Verma v Coles Supermarkets Australia Pty Ltd - [2024] FWCFB 395

[2024] FWCFB 395

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Sahil Verma
v

Coles Supermarkets Australia Pty Ltd

(C2024/6289)

DEPUTY PRESIDENT MILLHOUSE
DEPUTY PRESIDENT ROBERTS
DEPUTY PRESIDENT GRAYSON

MELBOURNE, 15 OCTOBER 2024

Appeal against decision [2024] FWC 2419 and order PR779003 of Commissioner Schneider at Perth on 5 September 2024 in matter number U2024/6741

Mr Sahil Verma has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] and order[2] of Commissioner Schneider issued on 5 September 2024, for which permission to appeal is required. In the decision, the Commissioner declined to grant an extension of time for the filing of Mr Verma’s application for an unfair dismissal remedy against the respondent, Coles Supermarkets Australia Pty Ltd.

The matter was listed for permission to appeal only. For the reasons that follow, permission to appeal is refused.

Decision under appeal

After setting out various procedural matters, the Commissioner determined that Mr Verma’s dismissal took effect on 9 February 2024, being the date recorded as the effective date of dismissal in the termination letter issued to Mr Verma by the respondent. As such, the Commissioner determined that to have been made within time, Mr Verma’s application needed to be filed by 1 March 2024, but it was not made until 9 June 2024 and was therefore filed outside the 21-day statutory timeframe prescribed by s 394(2) of the Act.

The Commissioner proceeded to consider whether to allow a further period for Mr Verma’s application to be made, having regard to the factors in s 394(3) of the Act. In relation to s 394(3)(a), the Commissioner considered Mr Verma’s submissions as to the reasons for the delay, which are listed at [29] of the decision. This includes Mr Verma’s contention that he did not have the capacity to lodge his application within the 21-day period due to a psychological condition. In this respect, the Commissioner considered a medical document produced by Mr Verma. While the Commissioner accepted that this document evidenced that Mr Verma was suffering from mental health concerns and had attended a hospital, the Commissioner concluded that it did not demonstrate that Mr Verma was incapacitated or incapable of filing his application at an earlier time. The Commissioner did not otherwise accept that any of the matters relied upon by Mr Verma provided a satisfactory explanation for the delay.

The Commissioner was satisfied for the purposes of ss 394(3)(b), (c) and (d) that Mr Verma was aware of his dismissal at the time it had taken effect but did not take any action to dispute his dismissal until he contacted the respondent on 15 May 2024, around 96 days after the cessation of his employment. The Commissioner did not regard there to be any prejudice accruing to the respondent in the circumstances. As to the merits of Mr Verma’s substantive application, the Commissioner found that there were a series of contested issues between the parties and it was not possible…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sahil Verma v Coles Supermarkets Australia Pty Ltd

Details

AGLC: Sahil Verma v Coles Supermarkets Australia Pty Ltd [2024] FWCFB 395
Case: [2024] FWCFB 395
Decision Date: 15 OCTOBER 2024

CaseChat Overview and Summary

Sahil Verma has appealed against a decision of Commissioner Schneider that declined to grant an extension of time for the filing of his application for an unfair dismissal remedy against his employer, Coles Supermarkets Australia Pty Ltd. The Fair Work Commission Full Bench, consisting of Deputy Presidents Millhouse, Roberts, and Grayson, dismissed the appeal and refused permission to appeal. The appeal was based on Verma's contention that his dismissal was unfair and that the statutory 21-day time limit for filing an unfair dismissal application should not apply to his case. Verma argued that the respondent did not conduct an investigation before the dismissal and that he was not informed of any investigation. Verma also argued that the Commissioner made an error in evaluating his mental health condition as a reason for the delay in filing his application. Verma sought to rely on fresh evidence in the appeal, which the Full Bench admitted for consideration.

The Full Bench found that Verma's grounds of appeal did not demonstrate an arguable error in the exercise of the Commissioner's discretion. The Commissioner had correctly considered the relevant factors under s 394(3) of the Fair Work Act 2009 (Cth) and had concluded that there were no exceptional circumstances to justify an extension of time. Verma's argument that the Commissioner did not acknowledge his argument about the lack of an investigation was not relevant to the threshold issue of whether to grant an extension of time. Verma's remaining contention that one of the respondent's witnesses lied during the proceedings did not give rise to an arguable case of appealable error. The Full Bench was not persuaded that the appeal raised any genuine issue of law, principle, or wider application, and therefore refused permission to appeal in accordance with the stringent test in s 400(1) of the Act. The Full Bench's decision was based on a careful consideration of the appeal grounds and the fresh evidence, and it was not an error to decline to grant an extension of time. The Full Bench's decision was legally correct and did not attract the public interest.

Orders