By Leigh Johnston
The Fair Work Commission (FWC) has refused to grant a 1,383-day extension to a casual Coles employee who was notified of his dismissal almost two years after working his last shift in 2014 but failed to contest it in time.
The worker contended that his former employer, Coles dismissed him in July last year, when it emailed him a letter stating he had not been an employee since December 31, 2014 as he did not work for three months prior to the “termination date as per the Coles Group policy.”
He filed a s365 dismissal dispute in the FWC 16 days later, maintaining in an extension of time application that by failing to communicate the dismissal earlier, Coles denied him an opportunity to dispute it at the time.
The worker also claimed he believed that because he was on workers’ compensation for a shoulder injury, he would be subject to a return to work program when his condition improved and Coles could provide suitable duties.
The tribunal heard that between late 2014 and mid-2016, he often lodged medical certificates indicating fitness for light or suitable duties and sought to return.
However, Coles either failed to respond or said it needed full medical clearance.
In an earlier decision finding that his employment ended the day after his last shift in October 2014, Deputy President Booth said an “ordinary employee could be forgiven for being under the impression that they were still employed.”
Deputy President Anna Booth described Coles’ failure to make him aware at the time as “troubling”.
“Firstly, an employer ought to afford an employee, casual or otherwise, the human decency of bringing their decision to end the employment relationship to the employee’s attention,” she said.
Questioning how workers can meet the 21-day time limit if they are not made aware of dismissals in time, she also noted a, “strong line of cases in the Commission to the effect that the employment relationship is ended when the employee becomes aware,” of the decision to end it.
Deputy President Booth said Coles “could have, and arguably should have, been more proactive in communicating the situation to [the worker] before 20 July 2018”.
The retail giant’s “lack of response to [the worker’s] many communications” also “made [his] life more difficult than it should have been,” she said.
But she said the worker “cannot escape the responsibility he had to engage with the information he was provided” and his “failure to do so does not result in 20 July 2018 being the date his employment relationship ended”.
In her decision this week refusing to extend time, Deputy President Booth agreed with Coles’ submissions that it was not required to communicate a dismissal in writing for it to take effect.
While it was “very unfortunate that [the worker] did not receive the letter Coles intended him to receive” and an “exceptional circumstance”, she found that he had “no good reason” for the further delay.
Rather, the worker “put his head in the sand in June and July of 2016 and more than 2 years elapsed before he made his application”, the deputy president said.
She accepted that the Coles worker demonstrated exceptional circumstances that: “enliven the Commission’s jurisdiction to grant an extension of time,” for the period of almost two years between his last shift in October 2014 and mid-2016.
The deputy president accepted that he might have believed he still was employed by Coles during this time, given he was placed on workers’ compensation and did not receive the termination letter that Coles typically sends after 90-days without a shift.
However, the deputy president said this “state of mind could not be maintained by a reasonable person,” after mid-2016, when a workers’ compensation case manager told the employee that Coles had dismissed him. The case manager further explained Coles’ compensation payments did not mean it still employed him.
Concluding that he “wilfully resisted the reality of his situation”, Deputy President Booth said that in the circumstances, granting the 1383-day extension of time was “not warranted”.