A manager who was sacked over a safety breach has been granted an extension of time to pursue his unfair dismissal claim, after the Fair Work Commission found his employer had given him the false impression that his dismissal might be reversed.
The FWC found the North Queensland Coles store manager delayed applying for an unfair dismissal remedy because Coles Supermarkets Australia Pty Ltd failed to ensure he understood that it wasn't considering changing its decision during its investigation into his bullying and victimisation allegations against a regional manager.
In June 2014, the worker was sacked for breaching the company's code of conduct by standing on a pile of pallets, creating a safety risk.
He claimed unfair dismissal 25 days out of time, and applied for the FWC to grant him an extension, under s394(3) of the Fair Work Act, because the delay was due to exceptional circumstances.
The worker claimed he was misled by Coles to believe his dismissal was "stayed" while a number of allegations he made about the regional manager were investigated by HR.
He told the Commission that following his dismissal, the state HR manager told him that dismissals could be overturned if sufficient evidence of complaints was provided and then substantiated, and encouraged him to raise his concerns with the state manager, who advised on HR issues.
He said he believed Coles would consider reversing its decision to dismiss him.
In July 2014, the worker's then-solicitor contacted the HR manager for an update on the issues, and was told the worker wouldn't be reinstated.
Coles told the Commission that the worker shouldn't be allowed extra time because it had never considered overturning his dismissal, and the worker was aware that the termination of his employment came into effect in June.
It said his erroneous belief about his possible reinstatement didn't justify the delay.
But Deputy President Ingrid Asbury found neither the HR manager nor the state manager "clearly spelled out to [the worker] that the review process... would not encompass the termination of his employment".
She said that while the managers didn't deliberately set out to mislead the worker, he was led to believe that "had he put in enough evidence regarding the matter, his dismissal could be overturned, and that this belief was reasonable".
"It is to be expected that one or both of [the] human resource management specialists would have taken some step to ensure that it was clear that what was being investigated and reviewed was the allegations about [the regional manager] and not the dismissal of [the worker]," she said.
"The failure of [the managers] to clarify this matter is unusual and out of the ordinary course."
Deputy President Asbury noted that while the worker didn't dispute that he engaged in unsafe conduct, it appeared there would be "significant dispute" between the parties about events prior to the incident, the validity of earlier warnings and what impact those warnings had on his dismissal.
Merlino v Coles Supermarkets Australia Pty Ltd [2015] FWC 1185 (20 March 2015)
