Merlino v Coles Supermarkets Australia Pty Ltd [2015] FWC 1185

A Coles employee was granted an extension of time to lodge his unfair dismissal claim after two Coles HR managers were found to have misled the employee into believing that his dismissal was being investigated with the possibility of his dismissal being reversed. The employee, who was on a final warning, was dismissed for breaching safety standards by standing on a number of pallets. The employee did not accept the termination of his employment and asked for an investigation into the circumstances surrounding his dismissal and his prior first and final warning.

The first problem with the process undertaken by Coles was that its HR Manager informed the employee that the termination of his employment may be reversed.

The second problem was that Coles proceeded on that basis and provided the employee with a process to formalise and escalate his concerns to a senior manager.

These conversations were found by the Fair Work Commission (“the Commission”) to have led the employee to believe that his dismissal would be “stayed” during any internal investigation by Coles and the employee delayed the lodgment of his unfair dismissal application. The employee followed the advice of the HR manager and raised his concerns with the State HR Advisory Manager where he was invited to provide submissions and evidence in relation to a number of complaints he had identified that he considered relevant to his dismissal.

The Commission found that whilst the Coles HR managers did not set out deliberately to mislead the employee to delay the lodgment of his unfair dismissal application, the statements made to the employee by the HR managers lead to a series of miscommunications and misunderstandings. The Commission was of the view that even though the employee became aware of the dismissal on the day, he had a genuine belief that his dismissal was being reviewed and could be overturned. The ultimate problem with the dismissal process was that at no point did Coles make it clear to the employee that the review process did not relate to his dismissal and would not encompass the termination of his employment and as such there was no prospect that it could be overturned. Rather to the contrary, the HR manager left open the possibility that the dismissal might be reversed.

The Commission decided that these circumstances were exceptional circumstances and made an order for an extension of time.

Lessons for Employers

Employers and HR managers who are involved in dismissals must ensure they clearly state that the employee is dismissed and not provide any false hope to the employee as to the possibility that the dismissal may be reversed.

HR managers are expected to take reasonable steps to ensure employees are not misled in these types of situations.