DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Coles Supermarkets Australia Pty Ltd
v
Alexander Tapier
(C2021/1163)

Appeal against decision [2021] FWC 666 of Commissioner Yilmaz at Melbourne on 10 February 2021 in matter number U2021/116.

Introduction

[1] Coles Supermarkets Australia Pty Ltd (Coles) has lodged an appeal, for which permission to appeal is required, against a decision issued by Commissioner Yilmaz on 10 February 2021 1 by which time was extended for Mr Alexander Tapier to lodge an unfair dismissal application. Mr Tapier was employed by Coles from 26 November 2013 until his dismissal for serious misconduct on 9 December 2020. Under s 394(2) of the Fair Work Act 2009 (FW Act), an unfair dismissal application must be filed within 21 days after the dismissal took effect, or within such further period as the Commission allows under s 394(3). Mr Tapier filed his application on 6 January 2021, 28 days after his dismissal took effect. Accordingly, it was necessary for him to obtain an extension of time to make his application pursuant to s 394(3), which provides:

(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.

[2] The background circumstances of Mr Tapier’s late lodgement of his application were as follows. Immediately prior to his dismissal, he was employed by Coles as a truck driver. On 1 December 2020 he was subject to a drug test by means of an oral swab. This produced an unconfirmed reading of methamphetamine. He was then required to undergo a second test, and this produced a result of cannabinoids and no methamphetamine. He was then called into a meeting, which he attended with a union representative, and informed of the result and his probable dismissal. His union representative obtained for him a 24-hour period to provide a written response. Mr Tapier provided a written response and a statutory declaration the next day (9 December 2020) in which he denied taking any drugs during that period. Notwithstanding this, he was summarily dismissed without payment of his accrued long service leave.

[3] In his unfair dismissal application filed on 6 January 2021, Mr Tapier explained the reason for his delay in filing the application as follows:

“I had started a claim with work safe tasmania on the 22nd of december 2020 regarding coles refusing to pay out my long service leave entitlements, and in discussing the claim and situation with their representative, I believe I may have misunderstood or some kind of communication error occured, as I was under the impression that in doing so I was also putting in an unfair dismissal claim. I have now come to realise that while they were doing my entitlements claim, they were in fact most likely only strongly suggesting I put in the claim with this commission as I now understand work safe tasmania doesn't deal with unfair dismissal claims. I believe that being as I was quite upset at the situation, and feeling quite lost and powerless, losing my job so close to christmas, struggling to resolve the situation with coles, and their refusal to pay my entitlements which would have been a great relief in an otherwise terrible event, not knowing where my income would be coming from etc, and in my upset state, may have gotten confused and latched onto the idea, but as they were already asking a lot of questions about the situation, and with my unfamiliarity with the division of duties between departments i may have muddled the information in my head and lead myself to believe both claims were being done in unison. I have been quite distressed by this entire event as it has led to extreme financial instability, and given the state of things with covid, i have no idea when ill have a job again, so this claim is very important for my future, and I can only ask that this all be taken into account, and would be extremely grateful for any consideration given to my extension request.”

[4] On 11 January 2021, the Commissioner made directions in respect of the determination of Mr Tapier’s application for an extension of time which, relevantly, required Mr Tapier to lodge an outline of argument and any statements of evidence by 18 January 2021, and the matter was listed for a telephone hearing before the Commissioner on 28 January 2021. Mr Tapier did not file any materials pursuant to the Commissioner’s directions by 18 January 2021 or at all, despite being sent a reminder about this by the Commissioner’s chambers on 22 January 2021. Coles filed written submissions and a statement of evidence made by Mr Matthew Scott, the Manager of the Coles store at which Mr Tapier had worked.

Evidence and factual contentions before the Commissioner

[5] At the hearing on 28 January 2020, the statement of Mr Scott was admitted into evidence, and Mr Tapier indicated he did not wish to cross-examine him. Mr Scott gave the following evidence in his statement concerning contact between Mr Tapier and Coles after the dismissal:

“22. On 23 December 2020, Mr Tapier phoned the Glenorchy Store Support Manager, James Dowsett. Mr Tapier asked about his entitlement to receive payment of accrued long service leave after his dismissal. Mr Dowsett explained the state legislation regarding long service leave payout around serious and wilful misconduct.

23. During the conversation, Mr Tapier said words to the effect that, "unless Coles pays my long service leave, I am going to contact the Fair Work Commission about unfair dismissal". Mr Dowsett said he would speak to Coles' People & Culture team about Mr Tapier's long service leave.

24. On 31 December 2020, Mr Tapier phoned Mr Dowsett again. Mr Dowsett explained People & Culture's response regarding Mr Tapier's long service leave, which was the same as what he discussed with Mr Tapier on 23 December 2020.

25. Mr Tapier said words to the effect that that if Coles paid what he was owed, then he would not pursue the matter any further but if not, he "would place a claim for unfair dismissal and has a meeting booked on 18 January 2021 with the Fair Work Commission".

26. I am aware of the phone calls on 23 December 2020 and 31 December 2020 and of what Mr Dowsett and Mr Tapier discussed because, immediately after each phone call, Mr Dowsett informed me that the phone calls occurred and told me the details of his conversations with Mr Tapier that I have described above.”

[6] During the hearing Mr Tapier did not give evidence as such, but made a number of factual contentions about the reason for his delay in filing his application. He initially said:

MR TAPIER: Okay. I mean I guess I'm primarily relying on I guess my memory, so like pretty much what was in the application is essentially what I remember of the situation. I don't know if this is the appropriate time but like a point I want to clarify was that there seemed to be a little bit of confusion over like me - like I'd called James, which is Mr Scott's second in charge and they said that I'd like made an application to you guys on the 18th, which is - that was actually with WorkSafe, and so yes, like - so essentially like I'd called WorkSafe because I'd been trying to - like I was happy to just wash my hands of the situation because from everything I'd been told Coles is very adamant about their drug policy and have fought it very voraciously multiple times and so my opinion was that I didn't really have much of a hope in actually claiming for unfair dismissal despite my strong concerns about the testing procedures.

In discussions with multiple people they were telling me I should, you know, call - I should call WorkSafe. You know, I don't think too many people in Tasmania are really that clued in as to the difference between like WorkSafe, Fair Work, you know, they all have very similar names and have essentially from - what most people would think, very similar functions. So in my discussions with the WorkSafe representative, like, I don't know how I got the idea, I don't believe he gave me any false information, he was, you know, pretty, he was a pretty nice guy and that kind of thing. You know, I believed I was doing all of it in one big go and then when I spoke to them a few days later it turned out no, no, no, you need to go talk to Fair Work for that side of things. Again, I know ignorance of the time limit is not a factor but even the WorkSafe guy was very surprised to hear that there was a three week limit. He was unaware of it and like he told me like, we don't - like WorkSafe themselves don't have a time limit for their things and so, you know, yes again ignorance is not a thing.” 2

[7] Mr Tapier then gave further information in response to questions from the Commissioner:

THE COMMISSIONER: You say initially you weren't really concerned about filing an application to challenge the dismissal because of your acceptance of the drug policy and knowing the ramifications of that but what was the reason for actually - - -

MR TAPIER: It was - it was more when I spoke to - I'd spoken to a union representative and they said like, you know, they were quite concerned about the way the test had gone as well that when I was like, you know, should I fight this and they were like there's not really much point. You know, basically like every time that had been fought, you know, Coles has basically stood their ground and said no, like we go by the lab, you know, and essentially that's what Mr Scott said when I - when the dismissal - when I was dismissed he was like, you know, this is an accredited lab and my response to that was well, you know, I've had two tests come up with opposite bloody things - excuse - sorry, I shouldn't have said bloody. Like, you know, the first one came up for THC - no, the first one came up for methamphetamine and then when they've done, you know, re-tested me 30 seconds later and sent that back and there's no meth and then all of a sudden it's, yes, THC. So I mean yes, when I spoke to the union about that they were just like no, they're not going to budge. But then yes, WorkSafe were like no, no, you should fight this, you should fight this.

THE COMMISSIONER: Yes. So why did you go to WorkSafe to begin with? Is that because of your query regarding your long service leave, because they didn't pay it out?

MR TAPIER: Yes, because in Tasmania the law states that if you've been employed with a company for over seven years, unless you are dismissed for severe and wilful, and they're very key on this and wilful side of things, that you're eligible for the seven year pro rata. Coles every step of the way has absolutely refused to even consider the variation in severe and wilful. According to the people I've spoken to the Coles policy is severe or wilful. I attempted to get people to actually, you know, check the legislation because that's not what it is and they were not interested in doing so. 3

[8] In relation to the reason for his delay in filing his application, Mr Tapier went on to say:

MR TAPIER: Not really. It was - yes, it was just a build up of, you know, information I thought I was getting which, you know, it turns out I may not have and the delay in attempting - like I was attempting to sort out the pro rata thing and in doing that I obviously ate up a lot more of my time that I was able to do this than, you know, I could have ever known about. Yes, the only thing I could say is that possibly if Coles had been more forthcoming with - like it took a week for James to get back to me about the pro rata thing, all I can say is maybe if he hadn't taken a week and had gotten back to me like that day or the next day that the delay would have been at least a week less … maybe if he had been a bit more forthcoming with the pro rata side of information that I may not have had such a delay in everything I was doing, and that may have made me be able to be aware of the three week limit a lot sooner, which would have put me within the three week limit, if that makes sense. 4

[9] Immediately after this, the following exchange occurred between the Commissioner and Mr Tapier:

THE COMMISSIONER: But you say that the primary reason you've lodged this application is because they didn't pay you your long service leave. Is that your main - that's your main motivator isn't it?

MR TAPIER: Well, it's certainly a large factor in the motivation. Like if WorkSafe hadn't been so adamant that they believed I did have a case then I wouldn't be doing this. I just wanted what I was owed and to be done with Coles because they obviously were happy to be done with me. 5

The decision

[10] In the decision under appeal, the Commissioner dealt with each of the matters required to be taken into account under s 394(3). In respect of s 394(3)(a) (the reason for the delay), the Commissioner recounted the respective submissions and factual assertions of the parties and said (excluding footnotes):

“[26] In circumstances where an application is late due to representative error, one must have regard to the qualifications and experience of the representative. Mr Tapier relied on his union. It is reasonable that Mr Tapier relied on the advice of his union, however, in this situation for reasons unknown, his representative failed to advise him on the filing of the application within the required timeframe. Even where the representative is responsible for the error the applicant needs to demonstrate that he is blameless. I am satisfied that Mr Tapier actioned his dismissal promptly and the short delay following Coles confirming its strong stance on not paying entitlements was not unreasonable.

[27] Mr Tapier submits that had Coles paid him his entitlements that he would not have filed the unfair dismissal application. His objective after the dismissal, and on realising Coles would not change its position on his dismissal was to seek payment of his long service leave and notice. He immediately took action with both his union and WorkSafe Tasmania and personally appealed to Coles to make good the payment. The unfair dismissal claim he submits was filed on advice from WorkSafe Tasmania and his union, both of which had failed to advise him of the 21 day statutory time limit.

[28] Coles submit that Mr Tapier had contacted it on at least on 2 occasions to seek payment of his entitlements. Coles submit that their Glenorchy Store Support Manager informed Mr Tapier on 31 December 2020, that it would not pay the entitlement after seeking advice from its People and Culture team. Mr Tapier had until 30 December 2020 to file his application on time. The final confirmed advice from Coles to Mr Tapier concerning whether it would make the payment of entitlements, occurred the day after the 21 day time limit.

[29] Mr Tapier consulted with his union and WorkSafe Tasmania and then made the application. I note that 1 January 2021 was a public holiday in the period after Coles confirmed its final position and Mr Tapier filing the application.

[30] Having considered the evidence before me I am satisfied that Mr Tapier has made out credible explanations for the period from his dismissal and in the delay in lodging his application. I note he filed his application at 4.16am on 6 January 2021 demonstrating that he had filed the application and obtained advice within a period of 2 days. I am satisfied that the circumstances concerning his dismissal and subsequent action taken by Mr Tapier and their impact on the delay are exceptional, unusual and uncommon.”

[11] In relation to s 394(3)(b) (whether the person first became aware of the dismissal after it took effect), the Commission found that Mr Tapier was aware of the dismissal when it took effect, and that this did not weigh in favour of an extension of time. 6 As to s 394(3)(c) (action taken to dispute the dismissal), the Commissioner found that Mr Tapier challenged his drug test, made contact with Coles about his entitlements and put them on notice on 31 December 2020 that he would file an unfair dismissal application if his entitlements were not paid. The Commissioner then said (footnote omitted):

“[34] … It is not contested that Coles refused to pay the entitlements, and therefore would not have been taken by surprise by the unfair dismissal application.

[35] Coles submit that Mr Tapier’s threat of an unfair dismissal application for “a collateral purpose” is not a matter that should weigh in favour of an extension of time. Mr Tapier challenged the summary dismissal and failure to pay entitlements. Following receipt of advice and acceptance that Coles would not reconsider the dismissal, action taken for the payment of entitlements was action to dispute the dismissal and goes to the question of fairness of the dismissal. Therefore, this consideration is in favour of an extension of time.”

[12] In relation to s 394(3)(d) (prejudice to the employer), the Commissioner considered this to be a neutral factor. 7 As to s 394(3)(e) (merits of the application), the Commissioner concluded that the facts were the subject of dispute that could only be tested at hearing, that Mr Tapier had established that his application was not without merit and that he had an arguable case, and that this consideration weighed in Mr Tapier’s favour.8 As to s 394(3)(f) (fairness as between the person and other persons in a similar position), the Commissioner found that this was a neutral consideration.9

[13] The Commissioner’s overall conclusion was as follows:

“[49] …On balance, the combination of reason for the delay, action taken to dispute the dismissal and merits weigh in Mr Tapier’s favour.

[50] Having considered the evidence and submissions against each of the considerations in s.394(3), I am satisfied that on balance there are exceptional circumstances for the extension of time to file the application for an unfair dismissal remedy.”

Appeal grounds and submissions

[14] Coles’ appeal grounds and submissions advanced, in summary, the following propositions:

(1) Coles was denied procedural fairness, in that it was denied permission for legal representation despite the complexity of the matter caused by Mr Tapier’s failure to file any evidence or submissions, the Commissioner adopted an inquisitorial approach which led to unsworn bar-table factual assertions about which Coles was not on notice and to which it was not in a position to respond, and the Commissioner made findings about factual matters which were never put to Mr Scott.

(2) The Commissioner made findings of representative error, in circumstances where there was no evidence or submission that any union or WorkSafe Tasmania acted as Mr Tapier’s representative in respect of his dismissal. This constituted an error of principle.

(3) The Commissioner erred in finding that Mr Tapier seeking payment of his long service leave entitlements constituted action to contest his dismissal. This constituted an error of principle.

(4) The Commissioner erred in finding the question of merits to be a factor in Mr Tapier’s favour in circumstances where she was not in a position to make findings of fact on contested issues absent evidence being called on those issues. Further, a finding that an applicant has a prima facie arguable case is at best a neutral consideration.

(5) The Commissioner made significant errors of fact in finding: that WorkSafe Tasmania was his representative in relation to his unfair dismissal application; that Mr Tapier relied on the advice of his union, the union was his representative in relation to his unfair dismissal application, and the union failed to advise him of the required timeframe; that Mr Tapier was determined to challenge the dismissal after Coles refused to pay his entitlements; that Mr Tapier actioned his dismissal promptly; that Mr Tapier sought that Coles change its position on his dismissal or that he sought the payment of notice; and that he filed the application and obtained advice within a period of 2 days.

(6) The Commissioner erred in finding that Mr Tapier had demonstrated credible explanations for the delay, and that there were exceptional, unusual and uncommon circumstances.

(7) The Commissioner failed to take into account material considerations, including: Mr Tapier said that he was not misled or given false information by WorkSafe Tasmania; Mr Tapier’s threat to Coles on 23 December 2020 indicated awareness that he had not made an unfair dismissal claim through WorkSafe Tasmania and that the Commission was the proper forum to do so; Mr Tapier’s submissions that he was not contesting his dismissal but rather seeking payment of his long service leave claim, and was aware as at 23 December 2020 that he had not made an unfair dismissal claim; and the fact that his discussion with WorkSafe Tasmania on 22 December 2020 and his discussion with Mr Dowsett on 23 December 2020 occurred a week before the expiry of the 21 days.

(8) The Commissioner erred in finding that the considerations in paragraphs (a), (c) and (e) of s 394(3) were in favour of an extension of time, and erred in not finding that the consideration in paragraphs (b) and (f) weighed against an extension.

(9) The decision was, being unsupported by the evidence concerning representative error, unreasonable and plainly unjust.

(10) The Commissioner erred in concluding that there were exceptional circumstances on the basis of the foregoing matters.

[15] Coles submitted that it would be in the public interest to grant permission to appeal, that the appeal should be upheld and, on a re-determination of the extension of time application, that the application should be refused.

[16] Mr Tapier declined to file written submissions in respect of the appeal pursuant to the Commission’s directions and indicated that he relied upon the reasons stated in the Commissioner’s decision. At the hearing, he made limited oral submissions about the circumstances in which he filed his unfair dismissal application, and responded to a number of questions from us seeking to clarify particular factual matters. The factual matters we understood him to assert in the course of doing so included:

•  he initially only wished to pursue his long service leave entitlements, and felt that it was not worth it to challenge the drug test based on something which the union had told him prior to dismissal;

•  he formed an intention to lodge an unfair dismissal application only on 31 December 2020 when Coles made it clear that it would not pay his long service leave entitlements;

•  he had filled out paperwork with WorkSafe Tasmania to pursue his long service leave claim;

•  he was not a financial member of the union, the Shop, Distributive and Allied Employees’ Association (SDA) during the relevant period;

•  the SDA agreed to represent him in an unofficial capacity at a meeting which occurred following the drug tests and prior to his dismissal; and

•  he made no contact with the SDA after he was dismissed.

Consideration

[17] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.¹⁰ There is no right to appeal and an appeal may only be made with the permission of the Commission.

[18] This appeal is one to which s 400 of the FW Act applies. Section 400 provides:

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

[19] The test of “exceptional circumstances”, in relation to extensions of time to lodge applications under s 394(3), establishes a “high hurdle” for an application for an extension, and a decision as to whether to extend time under s 394(3) involves the exercise of a broad discretion. 11 Therefore it will be necessary, in an application for permission to appeal against a decision made under s 394(3), to demonstrate that there is an arguable case and that there was appealable error in the exercise of the discretion. This will require the identification of error of the type described in House v The King12 - that is, that the decision-maker has acted on a wrong principle, has mistaken the facts, has taken into account an irrelevant consideration or failed to take into account a relevant consideration, or has made a decision which is unreasonable or manifestly unjust. Additionally, where an error of fact is alleged, s 400(2) requires that it must be a significant error of fact. The overriding public interest requirement of s 400(1) remains.

[20] In this case, we are satisfied that the Commissioner’s decision was attended by the following significant errors of fact, as contended by Coles: These errors were as follows:

(1) In relation to s 394(2)(a) (the reason for the delay), the Commissioner found in paragraph [26] that there was representative error on the part of the union, that Mr Tapier had relied on the advice of the union, and that the union had failed to advise him of the 21-day time limit. There was no evidence (even in the very broadest sense, including Mr Tapier’s assertions of fact) to support any of these findings. Mr Tapier did not allege representative error. There was no evidence that the union acted as Mr Tapier’s representative at any time after he was dismissed or that Mr Tapier sought any advice from the union in relation to making an unfair dismissal application. Additionally, the findings in paragraph [27] that Mr Tapier immediately took action with his union after his dismissal, and that the unfair dismissal application which he filed was on advice from the union, which failed to advise him of the statutory 21-day time limit, was also not supported by any evidence.

(2) Also in relation to s 394(2)(a), the Commissioner found in paragraphs [27] and [29] that Mr Tapier immediately took action with WorkSafe Tasmania after his dismissal, that he filed his unfair dismissal application on advice from and after consultation WorkSafe Tasmania, and that WorkSafe Tasmania failed to advise him of the 21-day time limit. These findings are likewise not supported by the evidence, even in the very broadest sense. The most that can safely be said is that WorkSafe Tasmania suggested to Mr Tapier that he make an unfair dismissal claim in order to challenge the basis for his dismissal and thus support his claim for long service leave entitlements. There is no evidence, nor is it the case, that WorkSafe Tasmania is a source of advice concerning unfair dismissal claims under the FW Act. Mr Tapier’s unfair dismissal application does not indicate that he made contact with WorkSafe Tasmania prior to 22 December 2020, which was 13 days after his dismissal.

(3) In relation to s 394(c), the Commissioner found in paragraph [35] that Mr Tapier challenged his summary dismissal, and that he filed the application following advice from Coles that it would not reconsider the dismissal (or pay his long service leave). This is not supported by the evidence. There was no evidence that Mr Tapier ever asked Coles to reconsider his dismissal. Nor was there evidence that, after the dismissal occurred, Mr Tapier “challenged” it (beyond threatening Coles that if it did not pay his long service leave, he would lodge an unfair dismissal application).

[21] The Commissioner also failed to take into account material evidence given by Mr Scott that, in his telephone calls to Mr Dowsett of 23 and 31 December 2020, Mr Tapier exhibited that he was aware of his capacity to make an unfair dismissal claim with this Commission. This means that, at least by 23 December 2020, Mr Tapier was not subject to any confusion that WorkSafe Tasmania was in some way pursuing an unfair dismissal claim on his behalf, and he was in a position to file an unfair dismissal claim from that time. The finding made by the Commissioner in paragraph [26] that Mr Tapier “actioned his dismissal promptly” is unsustainable in light of this evidence.

[22] These errors caused the Commissioner’s exercise of the discretion to miscarry. The erroneous findings that representative error was the major cause of the delay in the lodgement of Mr Tapier’s application, and that Mr Tapier took action to dispute his dismissal prior to lodging his application, were foundational to the Commissioner’s conclusion that the factors in paragraphs (a) and (c) of s 394(3) respectively weighed in favour of a finding of exceptional circumstances. These in turn constituted two of the three factors which persuaded the Commissioner to make a finding of exceptional circumstances and to exercise her discretion to grant the requisite extension of time. Additionally, had the Commissioner taken into account the evidence of Mr Scott to which we have referred, this would have strongly favoured the conclusion that Mr Tapier was aware of his capacity to file an unfair dismissal application in the Commission at least by 23 December 2020 and that, far from acting promptly, it was his dilatoriness which caused the delay.

[23] As a result of this miscarriage of the discretion, we are satisfied that it would be in the public interest to grant permission to appeal, and that the appeal should be upheld and the decision of the Commissioner quashed. In light of this conclusion it is unnecessary that we deal with those of Coles’ ten propositions of error which we have not already dealt with. It is sufficient to say that we do not consider that the first proposition, by which it is contended that Coles was denied procedural fairness, has merit.

Re-determination of the application for an extension of time

[24] We consider the convenient course is for us to re-determine Mr Tapier’s application for an extension of time to lodge his unfair dismissal application under s 394(3) of the FW Act based on the material that was before the Commissioner and the additional factual assertions made by Mr Tapier in the appeal hearing. We will consider each of the matters required to be taken into account under s 394(3) in turn.

Reason for the delay - s 394(3)(a)

[25] The primary reason for Mr Tapier’s lateness in lodging his application was that, although he knew that he had the capacity to file an unfair dismissal application in the Commission by at least 23 December 2020, he did not form an intention to file such an application until 31 December 2020 when Coles confirmed that it would not pay him his accrued long service leave. By this time, the 21-day period for filing an application had already passed. Prior to this, he simply did not wish to contest his dismissal. That does not constitute a reasonable or acceptable reason for the delay. There was no reason why Mr Tapier could not have filed an unfair dismissal application on or before 30 December 2020 while simultaneously pursuing payment of his long service leave. This weighs to a significant degree against a finding of exceptional circumstances and the grant of an extension.

Whether the person first became aware of the dismissal after it had taken effect – s 394(3)(b)

[26] Mr Tapier was aware of the dismissal at the time it took effect. We agree with the Commissioner’s finding that this does not weigh in favour of an extension of time.

Action taken to dispute the dismissal – s 394(3)(c)

[27] For the reasons earlier stated, we do not consider that Mr Tapier took any action to dispute his dismissal prior to 31 December 2020, when he effectively made Coles aware that he intended to make an unfair dismissal application consequent upon its refusal to pay his long service leave. By this time, the 21-day period had already passed. Prior to this, he had not intended to dispute his dismissal. This weighs against a finding of exceptional circumstances and the grant of an extension.

Prejudice to the employer – s 394(3)(d)

[28] We agree with the Commissioner’s finding that this is, in the circumstances, a neutral factor.

Merits of the application – s 394(3)(e)

[29] We agree with the Commissioner that the apparently conflicting drug tests results, Mr Tapier’s denial of drug use at the relevant time, and his record of service over seven years means that his unfair dismissal application would be reasonably arguable. That weighs to some degree in favour of the grant of an extension. However, Mr Tapier’s application does not fall into the category of cases which have obvious or overwhelming merit, and it is clear that the facts of this matter would be the subject of significant contest at hearing, as the Commissioner found. Accordingly, the weight to be given to this factor is limited.

Fairness as between the person and other persons in a similar position - s 394(3)(f)

[30] We agree with the Commissioner that this is a neutral consideration.

Conclusion

[31] We are not satisfied, on balance, that the requisite exceptional circumstances exist. The fact that there was no reason why Mr Tapier could not have lodged his application within the 21-day period, and that he took no action to dispute his dismissal within this period because he did not wish to dispute it at that time, preclude us from concluding that exceptional circumstances exist such as to permit the exercise of the discretion in favour of the grant of an extension of time. The limited degree of apparent merit in Mr Tapier’s application is not sufficient in the circumstances to outweigh these considerations. Accordingly, we refuse Mr Tapier’s application for an extension of time to lodge his unfair dismissal application.

[32] We note that it remains apparent that Mr Tapier’s main objective is to obtain payment of his accrued long service leave. Our refusal of an extension of time in no way precludes him from seeking recourse in that respect. Section 13(1) of the Long Service Leave Act 1976 (Tas) allows disputes concerning the payment of benefits under that Act to be referred for resolution, upon the submission of a complaint to the Secretary of the Tasmanian Department of Justice, to the Tasmanian Industrial Commission, or to be resolved upon direct application to the Commission. Recent examples of cases where this mechanism has been used by employees to successfully obtain payment of long service leave entitlements denied by their employer include Brown v Kols Cleaning Services 13 and Boutcher v Workforce Development Pty Ltd.14 Section 15 of the Long Service Leave Act also allows for enforcement of entitlements by way of an application to a magistrate.

Orders

[33] We order as follows:

(1) Permission to appeal is granted.

(2) The appeal is upheld.

(3) The decision of Commissioner Yilmaz of 10 February 2021 ([2021] FWC 666) is quashed.

(4) An extension of time for the lodgement of Mr Tapier’s unfair dismissal application in matter U2021/116 is refused.

VICE PRESIDENT

Appearances:

Mr B Avallone of counsel for the Appellant.
Mr A Tapier on his own behalf.

Hearing details:

2021.
Sydney (via video-link):
5 May.

Printed by authority of the Commonwealth Government Printer

<PR729575>

 1   [2021] FWC 666

 2   Transcript, 28 January 2021, PNs 44-45

 3   Ibid, PNs 49-52

 4   Ibid, PNs 112-116

 5   Ibid, PNs 117-118

 6   [2021] FWC 666 at [32]

 7   Ibid at [36]

 8   Ibid at [46]

 9   Ibid at [47]

10 This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2); see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ

 11   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]

 12   [1936] HCA 40, 55 CLR 499 at 505

 13   T14424 of 2016, 30 January 2017

 14   T14451 of 2016, 8 March 2017