Verma v Coles Supermarkets Australia Pty Ltd [2026] FCA 679

This case began with the termination of a casual Coles trolley collector, Mr Sahil Verma, and then expanded into a multi-forum employment dispute. Mr Verma alleged that events at work involved adverse action under the Fair Work Act, race discrimination, disability discrimination and negligence causing psychiatric injury. The judgment records that Mr Verma suffers from schizoaffective disorder, that he alleged racial abuse by a co-worker, and that his employment ended on 9 February 2024.

The key workplace incident was said to have occurred on 12 January 2024 at Coles' Earlville store. Mr Verma said he arrived late, became physically unwell during the shift, lay down briefly in a designated rest area after telling a co-worker he was not feeling well, and was photographed by another employee who reported him to management as sleeping on duty. He then alleged a verbal confrontation with that employee, including a racial slur and a threat of violence. The judgment also records Mr Verma's allegation that the co-worker's employment was later terminated after he abused another colleague.

What followed is important for employers because the dispute moved through several legal pathways. Mr Verma filed an application in the Fair Work Commission, appealed to the Full Bench when that failed, lodged a complaint with the Australian Human Rights Commission, and then brought a Federal Court proceeding. Coles responded by asking the court to dispose of parts of the case before trial. So the decision is not a final ruling on every factual allegation. It is a procedural and jurisdictional ruling about which claims could proceed at all.

After his employment ended, Mr Verma filed an application in the Fair Work Commission on 9 June 2024. The Commission dismissed it on 5 September 2024 because it had been made outside the 21 days after the dismissal took effect, as required by s 394(2) of the Fair Work Act. Mr Verma then appealed to the Full Bench of the Fair Work Commission, but the appeal was dismissed on 15 October 2024.

The judgment explains that Mr Verma later sought to bring his complaints to the Federal Court. In his amended statement of claim, he pleaded Fair Work claims under ss 340 and 351, race discrimination under the Racial Discrimination Act, disability discrimination under the Disability Discrimination Act, and negligence causing psychiatric injury. Coles then filed an interlocutory application seeking summary judgment on parts of the pleading. At the hearing, Coles was also given leave to seek, in the alternative, a strike-out of the negligence paragraphs.

That procedural setting matters. Summary judgment is not granted lightly. The court repeated the established principle that the power should be used with care. But the court also said that where the outcome is apparent and a trial would not change it, parties should not be put to the cost and effort of a full hearing. That framed the rest of the decision.

The first issue concerned the Fair Work claims. Mr Verma pleaded that Coles had taken adverse action against him contrary to s 340 of the Fair Work Act and had contravened s 351 by taking adverse action because of his race and or disability. Coles argued that those claims were incompetent because the Fair Work Commission had not issued the certificate required by s 368(3)(a), and s 370 prevents a person from making a general protections court application unless that certificate has issued, subject to a separate interim injunction pathway that was not the issue here.

The second issue was whether Mr Verma could overcome that problem by asking the court for more time. He filed an interlocutory application seeking an extension of time, relying on s 370(a)(ii). He pointed to psychiatric incapacity, what he said was misleading advice from Coles, statements in Coles' Fair Work Commission response, and Coles' opposition to an extension of time in the Commission.

The third issue arose because, during submissions, it became clear that Mr Verma's real complaint was directed at the Fair Work Commission's refusal to extend time for his unfair dismissal application. He asked the Federal Court to treat his application as one for judicial review of the Full Bench decision.

The fourth issue concerned the discrimination claims. Coles argued that the race and disability discrimination allegations pleaded in court were broader than the complaint Mr Verma had made to the Australian Human Rights Commission. Under s 46PO of the Australian Human Rights Commission Act, a court application after termination of an AHRC complaint must involve the same discrimination, the same in substance, or discrimination arising out of the same or substantially the same acts, omissions or practices.

The fifth issue concerned negligence. Coles argued that the psychiatric injury negligence pleading could not stand because no notice of assessment had been received under s 237 of the Workers' Compensation and Rehabilitation Act 2003 (Qld). The court had to decide whether that part of the pleading should be summarily dismissed or struck out.

The court's reasoning on the Fair Work claims is the clearest and most practically important part of the decision. Justice Derrington explained that the regime in Part 3-1 of the Fair Work Act is designed, where possible, to avoid litigation by requiring a preliminary Fair Work Commission process aimed at conciliation and non-curial resolution. Section 368 requires the Commission to deal with the dispute and, if reasonable attempts to resolve it are unsuccessful, to issue a certificate to that effect.

Section 370 then matters in a very direct way. It says that a person who is entitled to apply under s 365 for the Commission to deal with a dispute must not make a general protections court application unless the Commission has issued the certificate and the court application is made within 14 days after the certificate is issued, or within such further time as the court allows. The judgment records that there was no dispute that no certificate had been issued in Mr Verma's case.

The court relied on earlier authority confirming that the certificate remains a precondition to the court's jurisdiction. In practical terms, that meant the Federal Court could not hear the pleaded general protections claims at all. The court said it could neither waive the requirement nor treat it as a mere technicality. Because Mr Verma did not have the certificate, the claims pleaded in the relevant parts of the amended statement of claim had no reasonable prospects of success and had to be dismissed.

This is the point employers should notice most carefully. The certificate requirement is not just a procedural preference. It is a gateway to jurisdiction. If the required Commission process has not produced the certificate, the court may simply be unable to entertain the claim.

Mr Verma argued that he should be given more time and relied on four matters. First, he pointed to severe psychiatric incapacity. The judgment refers to a clinical report dated 21 November 2024 recording that a Community Treatment Authority was made on 20 May 2024 and that a hearing was held at Cairns Hospital on 14 June 2024.

Secondly, he said Coles had given misleading advice in an email dated 17 May 2024. In that email, Coles' area manager referred him to the Fair Work Commission if he disagreed with the termination decision. Mr Verma argued that the failure to mention the 21-day deadline was misleading and amounted to an admission that time ran from that later email. The court rejected that submission. It said Coles had no power to alter the statutory time limit unilaterally, and it was not misleading to refer him to the Commission even though the 21-day period had already passed. The Commission still had power to consider an extension of time in exceptional circumstances.

Thirdly, Mr Verma relied on wording in Coles' Form F3 response in the Fair Work Commission, which referred to Coles having replied to his email on 15 May 2024 and referred him to the Commission. He argued that this was effectively an instruction to lodge a claim and that Coles then unfairly objected to lateness. The court said he had misconstrued the paragraph. It simply recorded that Coles had referred him to his only possible avenue of redress. The court also said there was no evidence that Coles knew of an acute mental illness during the 21 days after dismissal, and in any event Coles' email could not restart time running. The statutory period ran from the day the dismissal took effect.

Fourthly, Mr Verma relied on Coles' opposition to an extension of time in the Fair Work Commission. The court said Coles was entitled to resist an extension application even though it had properly referred him to the Commission.

Most importantly, the court said that even if it were persuaded to allow a longer period for filing in court, that would not solve the separate problem that no certificate existed. Section 370 requires two things: a certificate and a court application filed within 14 days after the certificate, or within further time allowed. The purpose of the extension provision is to extend time to apply to the court once a certificate has already been obtained. It is not a mechanism to let a person go back to the Commission to obtain the certificate later.

For employers, this part of the judgment is useful because it confirms that later correspondence does not reset statutory time limits. But it is also a warning. Post-dismissal emails may be scrutinised closely in later litigation, so they should be accurate, measured and consistent with the legislation.

During the hearing, Mr Verma effectively shifted ground and argued that his real complaint was about the Fair Work Commission's refusal to extend time for his unfair dismissal application. He asked the Federal Court to treat his application as one for judicial review of the Full Bench decision, saying that the Commission had told him that any challenge to the Full Bench decision would need to be considered as part of an application for judicial review in the court.

The court rejected that path as well. First, any judicial review application would itself have required an extension of time because the Full Bench decision had been made more than 19 months earlier. Secondly, and more fundamentally, the court considered that such an application would have very poor prospects of success.

Justice Derrington reviewed the Fair Work Commission and Full Bench reasoning summarised in the judgment. The Commissioner had considered whether exceptional circumstances existed under s 394(3) to allow a late unfair dismissal application. The Commission had before it material including a transfer of care document from Cairns Hospital dated 7 June 2024, the show cause letter, Mr Verma's response, and the termination letter. The Commission accepted that Mr Verma had received the Fair Work Information Statement when he commenced employment and found that he had not taken steps to dispute his dismissal within the 21-day period.

The judgment is particularly clear that the Commission did not dismiss Mr Verma's mental health evidence as fanciful. On the contrary, the Commissioner said that his strongest argument for an extension was his mental health issues. But the medical material did not show that he was incapable of filing within the 21-day period or before he eventually filed. The Commissioner also said that even if exceptional circumstances had existed, discretion would not have been exercised in his favour given the considerable delay.

On appeal, the Full Bench admitted fresh evidence, apparently additional medical evidence, because it was highly probative to the mental health issue. Even after considering that material, the Full Bench found no error. It said the evidence did not show incapacity to file between dismissal and 20 May 2024, noted that Mr Verma had said he held ongoing employment at a convenience store until around March 2024, and noted that he was actively looking for further employment. It also held that his allegation that a Coles witness had lied did not identify any appealable error by the Commissioner.

The Federal Court concluded that no error sufficient to support a successful judicial review application existed. So even if the matter were treated as judicial review, it could not succeed.

The judgment also deals with the race and disability discrimination claims. This part is important because it explains the role of the Australian Human Rights Commission as a filter before discrimination proceedings reach the courts. Under Part IIB of the Australian Human Rights Commission Act, a person lodges a written complaint with the Commission alleging unlawful discrimination. The complaint must set out, as fully as practicable, the details of the alleged acts, omissions or practices. The President then considers whether the complaint should proceed or be terminated.

If the complaint is terminated, a court application may then be made. But s 46PO limits what can be alleged in court. The unlawful discrimination alleged in the court application must be the same as, or the same in substance as, the discrimination that was the subject of the terminated complaint, or it must arise out of the same or substantially the same acts, omissions or practices. The Full Court authority quoted by Justice Derrington explains the purpose of this scheme: the Commission is intended to act as a filter for discrimination claims before they are brought to court.

Coles argued that the claims pleaded in the amended statement of claim under the Racial Discrimination Act and the Disability Discrimination Act were broader than the complaint Mr Verma had lodged with the Commission. The orders show that Coles succeeded on that point and that judgment was entered in its favour on those pleaded discrimination claims.

The judgment gives the legislative framework and begins to describe Mr Verma's AHRC complaint. It records that he lodged the complaint on 10 November 2024, identified Coles as the subject of the complaint, identified the Fair Work Commission when asked whether he wanted to add another respondent, and said he had been discriminated against because of his disability and race. The extract then begins to set out his description of when the alleged event happened, but the text cuts off before the full comparison between the AHRC complaint and the court pleading is completed.

That means the outcome is clear, but the exact scope mismatch is not fully visible in the available text. The safe reading for businesses is still straightforward. If a discrimination complaint goes through the AHRC first, the later court case cannot become a broader new dispute. Businesses and advisers should compare the AHRC complaint and the court pleading line by line, including the respondents named and the acts, omissions or practices relied on.

The final issue concerned Mr Verma's negligence claim for psychiatric injury. Coles sought summary judgment on those paragraphs, but the orders show that the court instead struck them out under r 16.21 of the Federal Court Rules. The catchwords explain the reason: no notice of assessment had been received under s 237 of the Workers' Compensation and Rehabilitation Act 2003 (Qld).

That distinction matters. A strike-out for a missing precondition is not the same as a final decision that the negligence claim has no merit. The catchwords expressly say that the defect may be cured and that the limitation period may not yet have expired. So the court did not finally determine whether Coles had been negligent or whether Mr Verma had suffered compensable psychiatric injury. It dealt only with the procedural problem that the required Queensland workers compensation step had not been shown.

For employers, this is a useful reminder that workplace disputes involving alleged psychiatric injury may engage state workers compensation legislation as well as federal employment and discrimination laws. A procedural win on a negligence pleading may not end the broader dispute. Businesses should preserve records, identify whether any workers compensation process has been started, and avoid assuming that a strike-out means the issue has disappeared permanently.

The employer succeeded here because of statutory process, not because the court made final findings that all alleged workplace conduct was acceptable. That is an important distinction. The judgment records allegations of racial abuse, mental health issues and termination after a workplace incident. Employers should not read the case as permission to neglect complaint handling and then rely on technical arguments later.

The better reading is that both substance and procedure matter. On substance, businesses should investigate complaints promptly, take allegations of racial abuse seriously, and document what was found and what action was taken. On procedure, businesses should understand which forum deals with which kind of claim, what time limits apply, and what gateway steps are required before a court can hear a matter.

There is also a communications lesson. Mr Verma relied heavily on later emails from Coles and on wording in Coles' Fair Work Commission response. Coles succeeded, but the court still examined those communications closely. Managers and HR staff should avoid casual or incomplete language after dismissal. Communications should be accurate, restrained and consistent with the statutory framework.

Finally, where a dispute may involve dismissal, discrimination and injury allegations at the same time, early legal advice can help a business avoid inconsistent positions across the Fair Work Commission, the Australian Human Rights Commission and any later court proceeding.

The judgment was delivered by Justice Sarah C Derrington on 1 June 2026 in the Federal Court of Australia. The court entered judgment for Coles on the specified Fair Work and discrimination claims, struck out the negligence paragraphs, dismissed Mr Verma's interlocutory applications filed on 11 and 12 May 2026, and reserved costs.

The decision is a useful authority on the certificate requirement for dismissal-related general protections claims and on the limits imposed by s 46PO of the Australian Human Rights Commission Act. The discrimination reasoning should still be checked against the complete judgment before relying on the exact scope comparison in detail.