Alexander Tapier v Coles Supermarkets Australia Pty Ltd T/A Coles [2021] FWC 666

[2021] FWC 666 The attached document replaces the document previously issued with the above code on 10 February 2021. The appearance for the Respondent has been amended to reflect that Ms J. Lukav represented the Respondent at the hearing. Joshua Everson Associate to Commissioner Yilmaz Dated 15 February 2021 -- 1 of 10 -- 1 Fair Work Act 2009 s.394—Unfair dismissal Alexander Tapier v Coles Supermarkets Australia Pty Ltd T/A Coles (U2021/116) COMMISSIONER YILMAZ MELBOURNE, 10 FEBRUARY 2021 Application for an unfair dismissal remedy. Introduction and background [1] This decision concerns a jurisdictional objection raised by Coles Supermarkets Australia Pty Ltd T/A Coles (Coles) to an application by Mr Alexander Tapier for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). [2] Mr Tapier was employed by Coles on 26 November 2013 until his dismissal on 9 December 2020. He claims that his dismissal was unfair. [3] Leave for legal representation was not granted to Coles. Both parties were self- represented. [4] Coles raises the jurisdictional point that the application is lodged more than 21 days after the dismissal took effect. [5] The application was filed on 6 January 2021, 7 days late. The Applicant’s submissions [6] Mr Tapier was summarily dismissed in person on 9 December 2020 for allegedly failing a drug test. [7] Mr Tapier questions the validity of the drug test on two grounds. Firstly, he submits he strongly denies that he had taken any drugs and secondly, he questions the credibility of the drug test relied on to terminate his employment. The oral swab conducted on 1 December 2020 produced an unconfirmed reading of methamphetamine and on receipt of this result, a further swab sample was taken and sent to a laboratory. The result of the second swab, Coles say produced a result of cannabinoids and no methamphetamine.1 1 Respondent’s outline of submissions at [20] and Attachment MS-4- drug confirmation certificate to Exhibit R1. [2021] FWC 666 [Note: This decision has been quashed - refer to Full Bench decision dated 6 May 2021 [2021] FWCFB 2559] DECISION -- 2 of 10 -- [2021] FWC 666 2 [8] Mr Tapier submits that a week after the second swab was taken, he was called in to a meeting where he attended with his union representative and was informed of the result and the probable termination of his employment. Mr Tapier submits he was given time to prepare a written response after his representative sought a 24-hour period to consider his response. The next day he returned with a written response denying that he had taken drugs and produced a statutory declaration to that effect. After 5 minutes considering Mr Tapier’s response, he was summarily terminated without payment of his accrued long service leave or notice of termination.2 [9] Mr Tapier submits the summary termination without payment of his long service leave and notice (his entitlements) was unfair given his denial of drug taking, his length of service, no disciplinary action over his 7 years of employment and his questions regarding the credibility of the test result. [10] Mr Tapier further submits that in the last 6 months of his employment, Coles unilaterally changed his position from the online department to menial tasks and ultimately to a position of driver. He further described a lack of understanding and empathy for his anxiety when Coles changed his hours of work and duties. Mr Tapier submits the termination of employment occurred on his Birthday and just before Christmas, making the dismissal grossly unfair.3 [11] Mr Tapier filed brief submissions and gave oral evidence elaborating on the reasons for the delay in filing the application and clarified matters concerning merit. The Respondent’s submissions [12] Coles submits there are no exceptional circumstances for an extension of time. [13] In respect to the reasons for the termination of employment, Coles submits Mr Tapier was dismissed for breaching the Code of Conduct and Coles Online and Coles Services of Alcohol and Other Drugs Guide. [14] Coles tendered in evidence copies of their policies, the drug test result from the testing laboratory, a document containing Mr Tapier’s signature which they say is a record of his attendance at a drug and alcohol Team Talk and a witness statement of Mr Matthew Scott, Store Manager. [15] Coles submit that Mr Tapier did not have an unblemished employment record as he was coached following an occurrence when he was late in 2020 and for an occasion of improper use of a van in 2014. 2 Form F2 at Q3.2 and oral submissions. 3 Oral submissions. -- 3 of 10 -- [2021] FWC 666 3 Consideration [16] On 28 January 2021, I convened a hearing to determine whether to allow an extension of time for the lodgement of the application for unfair dismissal. [17] It was not contested that the Applicant was dismissed from his employment on 9 December 2020. [18] Section 394(2) of the Act provides that 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). [19] However, s.394(3) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations: (a) The reason for the delay; and (b) Whether the first person became aware of the dismissal after it had taken effect; and (c) Steps taken to dispute the termination; and (d) Prejudice to the employer; and (e) Merits of the application; and (f) Fairness between the person and other persons in a similar position [20] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd4 (Nulty) where it was held that: “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 regular occurrence, even though it can be a on 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.”5 [21] I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.394(3). 4 [2011] FWAFB 975. 5 Ibid at [13]. -- 4 of 10 -- [2021] FWC 666 4 The reason for the delay [22] Mr Tapier argues the reasons for the delay are:  He was unaware of the 21--day time limit until he submitted his application;  He was distressed and surprised by the dismissal as he denies taking drugs, the manner and timing of the dismissal together with the refusal by Coles to pay him his entitlements;  He immediately sought assistance from his union representative and WorkSafe Tasmania and relied on their advice and assistance;  His immediate concern was how he could challenge the drug test result and sought advice about this. He submits the advice he received was that it was unlikely that Coles would alter its decision and he submits that had he received payment of his entitlements that it would remedy the situation somewhat;  As he obtained the advice and assistance from his union representative immediately on being informed of the drug test result, and from WorkSafe Tasmania after his dismissal, he submits that he was advised to file the unfair dismissal application after Coles firmly refused to pay his long service leave and notice; and  He made the incorrect assumption that the unfair dismissal application was filed while he consulted his union representative and WorkSafe Tasmania, and on realising this assumption was incorrect, he immediately took steps to make the application. It was at this time that he became aware of the statutory time frame. [23] Ignorance is not an exceptional circumstance.6 Ignorance and shock at being dismissed, does not justify an extension of time.7 Mr Tapier does not contend that his distressed state was the sole reason for the delay, nor does he submit that he was in such a state that it prevented him from filing an application. He accepts that he was ignorant of the timeframe. [24] Coles submits that Mr Tapier failed to provide any medical evidence that he was unable to file the application within the timeframe. Mr Tapier does not contend that he was so incapacitated and it being a reason for the delay. While he does submit that he was distressed, his immediate action other than challenging the drug test result was to obtain his entitlements. While displeased with the dismissal and considering it unfair, Mr Tapier was determined to challenge the dismissal after Coles categorically refused to pay his entitlements. [25] Mr Tapier submits that he immediately sought the assistance and representation of his union on being informed of the drug test result. He further submits that it was solely because his union representative was present at the meeting, that Coles conceded to 24 hours to provide a response after his representative sought the time. Mr Tapier submits that he was so 6 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975. 7 Rose v BMD Constructions Pty Ltd [2011] FWA 673. -- 5 of 10 -- [2021] FWC 666 5 shocked by the test result that he could not gather his thoughts to respond nor comprehend what had been put to him. [26] In circumstances where an application is late due to representative error, one must have regard to the qualifications and experience of the representative.8 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. [31] Nevertheless, all factors in s.394 must be taken into account in determining whether there are exceptional circumstances. Whether the person first became aware of the dismissal after it has taken effect [32] Mr Tapier was aware of his dismissal when it took effect. The termination of employment occurred at a face to face meeting on 9 December 2020. I find this consideration does not weigh in favour of an extension of time. 8 Officeworks Ltd v David Parker [2014] FWCFB 5779. -- 6 of 10 -- [2021] FWC 666 6 Action taken to dispute the dismissal [33] Mr Tapier challenged the reasons for his dismissal and Coles did not contest this. Mr Tapier challenged the drug test result, had stated that he had not taken illicit drugs and provided this information in writing and in a statutory declaration. Coles rejected Mr Tapier’s objection and when Mr Tapier sought the payment of his long service leave and notice it was explained by Coles that he was not entitled on the basis that his dismissal was due to serious and wilful misconduct. [34] Further Coles acknowledges that contact was made by Mr Tapier prior to the filing of the unfair dismissal application. Coles submits that on 31 December 2020 Mr Tapier informed them that should they not pay him his entitlements that he would file the application. 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.9 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. Prejudice to the employer [36] The Respondent submits that it has not suffered prejudice, while submitting that the absence of prejudice is not sufficient to grant an extension.10 I agree with these submissions and find this consideration a neutral factor. Merits of the application [37] Mr Tapier submits that the dismissal was unfair due to his 7 years of loyal service, in his submission the questionable results from the drug tests, the swift action in terminating his employment, the failure to pay him his entitlements and he added during the hearing that he was aware of the safety officer and a driver that had failed the drug test and were not dismissed. [38] “The Respondent submits that there is sufficient evidence before the Commission to establish a prima facie case” that the dismissal was not unfair.11 Coles tendered their policies, the laboratory test result and witness statement of its manager that terminated the employment of Mr Tapier. [39] The Coles Online and Coles Services Alcohol and Other Drugs Guide12 details the testing procedure, the alcohol and illicit drug limits to be tolerated, the reason for the policy being maintenance of safety in the workplace and other relevant information. The policy states that should the result exceed the tolerance level that a team member may be subject to 9 Respondent’s outline of submissions at [17]. 10 Ibid at [18]. 11 Respondent’s outline of submissions at [19]. 12 Respondent’s Attachment MS-1 to Exhibit R1. -- 7 of 10 -- [2021] FWC 666 7 disciplinary action and may result in termination of employment. The policy allows for disciplinary action that may result in dismissal. [40] Coles tendered an Alcohol and Other Drugs Guide Updates Team Talk attendance record.13 This record of attendance reports participation in a team meeting on changes to the Guide which takes less than 5 minutes.14 The signature page is incomplete as it contains no information on who conducted the team talk, and it is signed by numerous individuals on various dates. The varied dates are: 24/10/20, 23/11, 24/11, 26/11, 27/11, 29/11, 30/11 and 1/12. Mr Tapier was the only individual that signed the document on 29/11. Other names are on the list with no signature and/ or no date. It is submitted by Coles that Mr Tapier signed the attendance record on 29 November in 2020. Mr Tapier contends that he signed such a document, but because he was told to sign it and no team talk took place. [41] Coles provided no explanation for the inconsistent drug test results. It was known that Mr Tapier suffered crowd anxiety and that he was taking medication. It is surprising that Coles did not conduct further inquiries to ascertain whether the medication had any bearing on the explanation of the drug test result in light of his denial in taking illicit drugs. [42] Failure to pay any entitlements due is relevant to the consideration of harshness. Further, I note that Coles relies on the provisions contained in the Tasmanian Long Service Leave Act 1976 (LSL Act) to justify the non-payment of the longs service leave. The LSL Act contains the following clauses: “Clause 8 (2)….. (b) in the case of an employee to whom this paragraph applies by virtue of subsection (3) who has completed 7 years', but has not completed 10 years', continuous employment with his employer such period of long service leave as bears the same proportion to 8 2/3 weeks as the total period of the employee's continuous employment with his employer bears to 10 years. (3) Subsection (2) (b) applies to – …………. (d) an employee whose employment is terminated by his employer for any reason other than the serious and wilful misconduct of the employee.” [43] Termination for serious and wilful misconduct is where conduct is inconsistent with the continuation of the employment contract. Termination of employment is the harshest disciplinary outcome, and where one would expect that the employer has sufficient evidence of the both the seriousness and wilfulness of drug use. While Coles submit that there is sufficient evidence before the Commission to establish a prima facie case, there was no evidence that Coles genuinely considered Mr Tapier’s defence to satisfy itself that he was under the influence of an illicit drug known to have a safety risk, and that he wilfully consumed an illicit drug before attending work – a position Coles would presumably rely on to support its position that Mr Tapier lost any entitlement to his long service leave and notice of termination of employment. Disputed facts and evidentiary matters are not to be tested in an extension of time, however, it is apparent that should this matter progress the evidence in this matter would require examination. 13 Respondent’s Attachment MS-3 to Exhibit R1. 14 Ibid, page 1 of clean version. -- 8 of 10 -- [2021] FWC 666 8 [44] Coles tendered a witness statement from its Store Manager. The statement provides an explanation of the consideration given to Mr Tapier’s defence: “17. I asked for the Applicant's response to the positive result. The Applicant read a response and gave me a statutory declaration dated 8 December 2020, declaring that he had "not consumed any illicit substances in the weeks leading up to the 1st of December 2020". 18. I considered the Applicant’s response, including his statutory declaration, and consulted with People & Culture. I concluded the Applicant had not provided any compelling information to explain the positive result and to outweigh the seriousness of the breach of the Coles' policies.” 15 [45] Coles submit that it had a valid reason and that Mr Tapier was afforded procedural fairness before the dismissal. The evidence from Mr Tapier that he was dismissed at the meeting where he tendered his written statement and affidavit challenging the drug test result was supported by the witness statement of the Store Manager. The accounts by both suggests that Mr Tapier was dismissed without any a further review of the results. Mr Tapier raised significant concerns over the result of both drug tests, and together with the knowledge that he was on medication for crowd anxiety, Should the matter progress it would be expected that consideration of gravity, fairness or proportionality of the circumstances to warrant termination of employment in place of any other disciplinary option would be tested. [46] Having considered the submissions of both parties, the disputed facts can only be tested at hearing. I find that Mr Tapier has established that the substantive application is not without merit. Therefore, as there is potentially an arguable case for the Applicant, the question of merit is in Mr Tapier’s favour. Fairness as between the person and other persons in a similar position [47] The Respondent submits that there is nothing exceptional to justify an extension of time and therefore would be unfair to others in a similar position.16 This consideration relates to fairness between the Applicant and persons in a similar position employed by the employer or affected by the same issue. There is no evidence of persons in a similar position or affected by the same issue, therefore I find this consideration neutral. Conclusion [48] In consideration of the time limit of 21 days as prescribed by the Act, the limit should be complied with except where there are exceptional circumstances warranting an extension of time. [49] I need to be satisfied that there are exceptional circumstances to warrant a further period pursuant to s.394(3). To extend the statutory time frame is a strict test and rests on the circumstances of the case having considered each of the considerations or any combination of 15 Exhibit R1 at [17] – [18]. 16 Ibid at [28] – [29]. -- 9 of 10 -- [2021] FWC 666 9 them collectively. 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. [51] Accordingly, the matter will be listed for conference. COMMISSIONER Appearances: Mr A. Tapier for himself Ms J. Lukav for the Respondent Hearing details: 2020 Melbourne (Telephone via Microsoft Teams) 28 January Printed by authority of the Commonwealth Government Printer <PR726816> -- 10 of 10 --