Federal Court of Australia

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

ORDERS

THE COURT ORDERS THAT:

1.    Paragraph 1(d) of the respondent’s interlocutory application filed on 29 April 2026 be amended to seek an order pursuant to r 16.21 of the Federal Court Rules 2011 (Cth), in the alternative to summary judgment, to strike out [59]-[62] of the amended statement of claim filed on 9 April 2026 (ASOC).

2.    Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth), judgment be entered in favour of the respondent in respect of the claims pleaded in:

(a)    [45] and [47] of the ASOC but only in so far as those claims relate to the matters pleaded in [43(c)] of the ASOC;

(b)    [50]-[52] of the ASOC; and

(c)    [56]-[58] of the ASOC.

3.    Pursuant to r 16.21(1)(e) of the Federal Court Rules 2011 (Cth), [59]-[62] of the ASOC be struck out.

4.    The applicant’s interlocutory applications filed on 11 May 2026 and 12 May 2026 be dismissed.

5.    Costs be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SARAH C DERRINGTON J

Introduction

1    Mr Sahil Verma was employed by Coles Australia Pty Ltd as a casual trolley collector from 22 November 2021 until 9 February 2024 when his employment was terminated. Mr Verma is aggrieved by the termination of his employment, which he claims was unlawful under the Fair Work Act 2009 (Cth) (FWA), the Racial Discrimination Act 1975 (Cth) (RDA), and the Disability Discrimination Act 1992 (Cth) (DDA). He also claims to have suffered personal injury and loss as a consequence of Coles’ alleged negligence.

2    Central to Mr Verma’s claim is an alleged incident on 12 January 2024 at Coles’ Earlville store. In his amended statement of claim filed on 9 April 2026 (ASOC), Mr Verma admits he was 25 minutes late for his shift but did not notify anyone because he believed he was on time. He states that he became unwell approximately one and a half hours into the shift with symptoms of extreme heat, dry mouth, heavy breathing, and dizziness. He says that he went to the designated rest area, obtained a bottle of water and informed a co-worker that he was not feeling well and needed to lie down for ten minutes. Mr Verma alleges that another co-worker, Mr Zachary Cooper, took a photograph of him lying on the floor and sent it to management, describing Mr Verma as “sleeping on duty”. Mr Verma says he was instructed to return to work by the Team Leader.

3    Upon resuming his shift, Mr Verma says that he had a verbal altercation with Mr Cooper after reminding him of a safety rule, which Mr Verma had observed being ignored by Mr Cooper. Mr Verma alleges that Mr Cooper stepped forward so that his chest was against Mr Verma’s and said: “Don’t tell me what to do, you’re not my boss”, before leaning close to Mr Verma’s ear and saying: “F***ing Indian, I’ll smash your head in”. On 9 February 2024, Mr Verma’s employment was terminated. Mr Verma states that Mr Cooper’s employment was terminated approximately three months later after he had abused another colleague who was a “white guy”.

4    By an amended interlocutory application filed on 29 April 2026, Coles seeks an order for summary judgment against Mr Verma pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) in respect of the claims pleaded in [45] and [47] of the ASOC in so far as those claims relate to matters pleaded in [43(c)] of the ASOC, [50]-[52], [56]-[58], and [59]-[62] of the ASOC. At the hearing of the application, I granted leave for Coles to proceed on an amendment to the interlocutory application to seek an order, in the alternative to summary judgment, that [59]-[62] be struck out.

Principles relating to summary judgment

5    This Court may grant summary judgment pursuant to s 31A of the FCA Act, which relevantly provides:

31A Summary judgment

…

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

…

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

6    Section 31A is supplemented by r 26.01 of the Federal Court Rules 2011 (Cth), by which a party may apply for summary judgment. That rule provides, relevantly:

26.01 Summary judgment

(1)    A party may apply to the Court for an order that judgment be given against another party because:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding;

…

7    The principles governing summary judgment are well established and it is not necessary that they be restated: Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at [56]-[60] per Hayne, Crennan, Kiefel and Bell JJ; see Leach v Burston [2022] FCA 87 at [36] per Halley J; Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 at [29] per McKerracher J.

8    It is, however, important to reiterate that the power to dismiss an action summarily is not to be exercised lightly: Spencer at [24] and [60]; Burrows v The Ship ‘Merlion’ [2024] FCA 220 at [72]. Nonetheless, as I said in The ‘Merlion’ at [72], merely because complexity exists in the underlying issues, courts should not shy away from granting summary judgment where, after considering the facts and law of the present case, the outcome of the disputation is apparent: ThoughtWare Australia Pty Ltd v IonMy Pty Ltd [2023] FCA 906 at [53]. If it is clear that the outcome of a proceeding will not be altered by the holding of a trial, it is antithetical to the proper administration of justice to require the parties to be put to the effort and expense of conducting a full hearing: ThoughtWare at [53]; Theseus Exploration NL v Foyster (1972) 126 CLR 507; FCA Act ss 37M and 37N. As I also stated in The ‘Merlion’ at [73]:

As the assessment of the prospects of success under s 31A necessitates the making of a value judgment in the absence of a “full and complete matrix of fact and argument thereon”, the judge hearing the summary judgment application has discretion: Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401; [2009] FCAFC 117 at [28]. Therefore, when determining whether there is a reasonable prospect of success, much will depend on the case at hand, and “no hard and fast rule can be laid down as to when summary judgment is available”: Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) (2011) 203 FCR 293 at [17].

[45] and [47] – contraventions of ss 340 and 351 of the FWA

9    Mr Verma pleads in [45] that, by reason of his having made certain complaints about rostering practices, having been the subject of a complaint on November 2023, and having made complaints or inquiries in relation to his employment and work health and safety concerns, he was the subject of adverse action by Coles, contrary to s 340 of the FWA.

10    Mr Verma pleads further in [47] that Coles contravened s 351 of the FWA because it took the adverse action against him because of his race and/or disability.

11    Mr Verma filed his application in the Fair Work Commission (FWC) on 9 June 2024. It was dismissed on 5 September 2024: Sahil Verma v Coles Supermarkets Australia Pty Ltd [2024] FWC 2419 (Verma FWC). The FWC found that Mr Verma’s application had been made outside the 21 days after the date on which the dismissal took effect (being 9 February 2024), contrary to the requirements of s 394(2) of the FWA.    

12    Mr Verma appealed the decision of the FWC to the Full Bench of the FWC, who dismissed his appeal on 15 October 2024: Sahil Verma v Coles Supermarkets Australia Pty Ltd [2024] FWCFB 395 (Verma FWCFB).

13    He now seeks to bring his complaints to this Court.        

14    Sections 340 and 351 are in “Part 3-1 – General Protections” of the FWA. As was said by Dodds-Streeton J in Shea v TruEnergy Services Pty Ltd (No 1) [2012] FCA 628; 204 FCR 456 at [81]:

The regime established in Subdiv A of Div 8 [of Part 3-1] aims, where possible, to avoid litigation about allegedly contravening dismissals by mandating (as a prerequisite to litigation) a preliminary, less costly and relatively informal process in the FWC to facilitate conciliation and non-curial resolution.

15    Section 368 of the FWA provides, relevantly:

(1)    If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).

…

(3)    If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:

(i)    the FWC must issue a certificate to that effect; and

(ii)    if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.

(4)    A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.

16    Coles submits that s 370 of the FWA renders Mr Verma’s claim incompetent. That section provides:

A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:

(a)    both of the following apply:

(i)     the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;

(ii)    the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or

(b)    the general protections court application includes an application for an interim injunction.

(Emphasis added.)

17    There was no dispute that the FWC has not issued a certificate. In Hill v Compass Ten Pty Ltd [2012] FCA 761; 205 FCR 94 at [34], Cowdroy J said in relation to the absence of a certificate under a previous iteration of s 368(3)(a), s 369:

As Mr Hill does not have the necessary s 369 certificate and as the Court can neither waive this requirement nor amend Mr Hill’s s 777 certificate, it follows that the Court is without jurisdiction to hear his claim under s 340 of the FW Act. Accordingly, insofar as Mr Hill’s statement of claim refers to s 340, it will be struck out.

18    Although Hill and Shea were decided prior to amendments to Div 8 of Pt 3-1, which commenced on 1 January 2014, no change in effect has been made by the revised provisions: Zaghloul v Woodside Energy Limited (No 7) [2019] FCA 818 at [86]. A certificate under s 368(3)(a) remains a precondition of the Court’s jurisdiction to deal with such a dispute: Zaghloul at [85].    

19    As has already been said, Mr Verma does not dispute that he has no certificate, but pursuant to an interlocutory application filed on 12 May 2026, he seeks an extension of time, in purported pursuance of s 370(a)(ii), to obtain a certificate under s 368(3)(a) of the FWA. Mr Verma submits that four factors demonstrate “reasonable cause” for an extension of time.

20    The first is his “severe psychiatric incapacity (confirmed by medical records, Annexure SV-1)”. Annexure SV-1 is a Clinical Report dated 21 November 2024 which records that a Community Treatment Authority was made on 20 May 2024 and that a hearing was held at Cairns Hospital on 14 June 2024.

21    The second is what he alleges is Coles’ “misleading advice” on 17 May 2024. This is a reference to an email from Ms Marine Pradines, Area Manager at Coles’ Earlville store, in which she refers to Mr Verma having:

…received emails earlier this year which contained the allegations, show cause and termination, as these detail the reasons to which you were terminated.

If you disagree with the decision, you are welcome to pursue an unfair dismissal claim with Fair Work. However, I will not be discussing the matter any further.

22    Mr Verma claims that Ms Pradines’ failure to mention the 21-day deadline in s 394(2) of the FWA was misleading. He submitted further that it amounted to an admission by Coles that the 21-day period commenced on 17 May 2024. These submissions cannot be accepted. First, Coles did not have the power to unilaterally alter the time limit for commencing a proceeding before the FWC. Secondly, it was not misleading to fail to mention the 21-day deadline, which in any event had long passed. Ms Pradines was quite properly referring Mr Verma to his only remaining avenue of redress, the FWC. Although he was long out of time, Mr Verma still had the right to bring an application, a right which was in fact entertained by the FWC. Further, as was made pellucid by the FWC, it has the power to extend time in exceptional circumstances.

23    The third is Coles’ alleged admission in its Form F3 (Employer response to unfair dismissal application) filed in the FWC that it “instructed Mr Verma to go to the FWC on 15 May 2024”. In this form, when addressing what action had been taken by the person to dispute the dismissal, Coles stated:

Despite not being engaged to work a shift since 13 January 2024, the Applicant did not file his application until 10 June 2024, which was also 24 days after the Respondent replied to the Applicant’s email on 15 May 2024 to confirm that the termination would not be retracted and referred the Applicant to the Fair Work Commission – refer to attachment 3.

24    Mr Verma submits that this paragraph amounted to an instruction to him to lodge a claim in the FWC, with the hidden object of seeking to have him penalised for lodging 3 days beyond what would have been 21 days from the date of that instruction. He submits that in failing to mention a 21-day deadline, or to acknowledge he was suffering from an acute mental illness during this period, Coles’ objection to his late filing constitutes an abuse of process.

25    Plainly, Mr Verma has misconstrued the paragraph in Coles’ response. The paragraph states clearly that, in response to Mr Verma’s email of 15 May 2024, the Respondent wrote to Mr Verma to confirm that no further discussion would be entertained and referred Mr Verma to his only possible avenue of redress. Further, there is simply no evidence that Mr Verma was suffering from an acute mental illness in the 21-days following his termination, nor indeed until his admission to hospital on 20 May 2024, let alone any evidence that Coles was aware of such an illness. In any event, Coles’ email could not restart time running. The time limit imposed by s 394(2) runs from the day the dismissal took effect, not from any subsequent communications between an employer and a former employee.

26    The fourth is Coles’ opposition to the extension of time in the FWC. Just as Mr Verma was entitled to attempt to persuade the FWC to extend time, Coles was entitled to resist those attempts despite, quite properly, referring Mr Verma to the FWC even though the 21-day time limit had expired.

27    Even if Mr Verma had raised sufficient matters to persuade me that a period longer than 14 days ought to be permitted for him to lodge a general protections application in this Court, that does not overcome the absence of a certificate. Two things are required by s 370: a certificate and that the application is made within 14 days. The purpose of s 370(a)(ii) is not to allow an extension of time for a party to return to the FWC to obtain a certificate, it is to permit an extension of time to apply to the Court, if the Court considers it appropriate, once a certificate has already been obtained.

28    Mr Verma sought to argue that correspondence from the FWC, dated 8 July 2025, informing him that any challenge to the decision of the Full Bench of the FWC would need to be considered as part of an application for judicial review to this Court meant that Coles could not argue that he now requires a certificate to be heard in this Court. He submitted, “The FWC told me to come here. I followed that direction.” That submission cannot be accepted. An indication that an application for judicial review is the next appropriate step to challenge a decision of the Full Bench of the FWC cannot waive the statutory requirement contained in s 370 to have both a certificate and to make any general protections court application within 14 days after such certificate is issued.

29    The statutory requirement is clear. Mr Verma simply cannot satisfy both elements of s 370 and so this Court does not have jurisdiction to entertain his claims pleaded in [45] and [47] of the ASOC. They have no reasonable prospects of success and so must be dismissed. So too must Mr Verma’s interlocutory application for an extension time under s 370 of the FWA.

Judicial review of Verma FWCFB

30    It became clear in the course of submissions that Mr Verma’s real complaint is directed at the failure of the FWC to grant him an extension of time. He submitted that the FWC ignored the “misleading email” and considered his mental illness “fanciful”. In oral submissions, Mr Verma submitted that were he refused an extension of time by this Court, I should nevertheless treat his application as one for judicial review of the decision of the Full Bench of the FWC for the reason that the FWC directed him to this Court. Any such application would also require an extension of time; the decision of the Full Bench having been made over 19 months ago on 15 October 2024. In addition to the lengthy period of delay, it is clear that Mr Verma would have such poor prospects of success on any application for judicial review that an extension of time would not be granted.

31    As I have already said, the decision in Verma FWCFB concerned Mr Verma’s application for permission to appeal the decision in Verma FWC made on 5 September 2024 refusing him an extension of time to file an application for an unfair dismissal remedy.

32    In Verma FWC, the Commissioner considered whether, as permitted by s 394(3), he could be satisfied that there were exceptional circumstances to allow a further period for the unfair dismissal application to be made. Mr Verma had submitted that the delay in lodging his application was because: he was unaware of the reasons for his dismissal or the dismissal decision; he was unaware of the 21-day time limit for filing the application; Coles did not tell him of the 21-day time limit; he had sought to resolve the dismissal directly with Coles; Coles had engaged in “conscious racism” towards him; and he did not have the capacity to lodge his application within the 21-day filing period due to a psychological condition.

33    The FWC had before it the “transfer of care” document from Cairns Hospital, dated 7 June 2024, confirming that Mr Verma had received medical treatment at the hospital on 6 June 2024 for a mental health condition (that document is exhibited to an affidavit filed by Mr Verma in this Court on 12 September 2025). It also had before it copies of a show cause letter sent to Mr Verma on 2 February 2024, an email response to that letter from Mr Verma dated 7 February 2024, and a copy of the letter of termination sent to Mr Verma on 9 February 2024. The FWC accepted Coles’ submission that Mr Verma had received a copy of the Fair Work Information Statement upon commencing his employment. The FWC was satisfied that Mr Verma did not take any steps to dispute his dismissal within the 21-day time period. It was not until 15 May 2024 that Mr Verma contacted Ms Pradines in relation to his dismissal.

34    The Commissioner found that Mr Verma had not pointed to any exceptional circumstances. In particular, he noted that the onus to properly lodge an application on time is entirely on an applicant. Ignorance of the time limit is not an exceptional circumstance, nor is there any obligation on an employer to inform a dismissed employee of the time limit for a claim to be made to the FWC.

35    Contrary to Mr Verma’s submission that the FWC considered his mental illness to be “fanciful”, the FWC in fact said that the strongest argument presented by Mr Verma for an extension of time was that regarding his mental health issues. Nevertheless, the FWC observed that the medical report relied on did not provide any information to suggest Mr Verma was incapable of, or incapacitated from, filing the application within the 21-day period, or before the time when he in fact did so. Significantly, the Commissioner observed that even if he had been satisfied of the existence of exceptional circumstances warranting an extension of time, he would not have used his discretion to grant it given the considerable length of the delay.

36    On the application for permission to appeal to the Full Bench of the FWC, Mr Verma submitted that his application for an extension of time was based on medical grounds and the evidence before the Commissioner should have been sufficient to support his request for an extension of time. He submitted further that Coles’ witness lied before the Commissioner: Verma FWCFB at [13].

37    Mr Verma sought to rely on fresh evidence before the Full Bench of the FWC, which it identified as a document dated 26 July 2024. It can be inferred that the fresh evidence was additional medical evidence. The Full Bench admitted the evidence, considering it to be highly probative for the purposes of determining his application in circumstances where the appeal challenged the Commissioner’s decision-making in respect of Mr Verma’s mental health condition. Having taken into account that evidence, the Full Bench nevertheless declined permission to appeal. It did not consider that the fresh evidence, together with the medical evidence before the Commissioner, demonstrated any error by the Commissioner. This was because: first, the medical evidence did not show he was incapable of filing his application in between his dismissal date and 20 May 2024 (when he was hospitalised); secondly, Mr Verma had said that he held ongoing employment at a convenience store until in or around March 2024; and thirdly, Mr Verma said that he was actively looking for further employment opportunities: Verma FWCFB at [19]. Further, Mr Verma’s allegation that one of Coles’ witnesses lied was not connected to any alleged error on the part of the Commissioner and could not give rise to an arguable case of appealable error: Verma FWCFB at [20].

38    In the circumstances, it is clear that no error sufficient to support a successful application for judicial review exists. Even if it were appropriate to treat this application as one for judicial review of the decision of the Full Bench of the FWC, it could not succeed.

[50]-[52] and [56]-[58] – Discrimination claims

39    Coles submits that the claims pleaded in [50]-[52] of the ASOC (being a contravention of s 15 of the RDA) and [56]-[58] of the ASOC (being contraventions of ss 5 and 15 of the DDA) have no reasonable prospects of success because, under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), the Court does not have jurisdiction to hear them.

The relevant legislative framework

40    Part IIB of the AHRC Act makes provision for those seeking redress from unlawful discrimination.

41    Section 46P provides for a written complaint to be lodged with the Australian Human Rights Commission (AHRC) alleging that one or more acts, omissions or practices have occurred which amount to unlawful discrimination. Section 46P(1B) requires that the complaint “set out, as fully as practicable, the details of the alleged acts, omissions or practices”.

42    Section 46PD provides that if a complaint is made to the AHRC under s 46P, it must be referred to the President. The President is then required to consider whether or not the complaint should be terminated or if an inquiry into the complaint should proceed.

43    When an inquiry commences, the President (or his delegate) may require a person to provide information (s 46PI); grant leave to amend (s 46PA(1)) or allow the withdrawal of a complaint (s 46PG); replace a complainant (s 46PC(2)); add a respondent (s 46PF(3)); notify class members (s 46PC(3)) and cease an inquiry if the complainant does not wish to continue (s 46PF(5)). The President is required to terminate the complaint before any proceeding may be commenced in this Court: s 46PO(1). The President’s power and grounds for terminating a complaint are identified in s 46PH(1).

44    A complaint cannot be amended after it has been terminated by the President under s 46PF(1) or s 46PH (s 46PF(4)).

45    Section 46PO provides for the circumstances in which an application can be made to this Court after the Commission has terminated a complaint. Relevantly:

(1)    If:

(a)    a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and

(b)    the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

an application may be made to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

(2)    The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.

…

(3)    The unlawful discrimination alleged in the application:

(a)    must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b)    must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

…

(Emphasis added.)

46    Section 46PR provides:

In proceedings under this Division, the Federal Court and the Federal Circuit and Family Court of Australia (Division 2) are not bound by technicalities or legal forms. This section has effect subject to Chapter III of the Constitution.

47    The purpose of the statutory scheme established by the AHRC Act as explained by the Full Court (Emmett, Lander and Tracey JJ) in Grigor-Scott v Jones [2008] FCAFC 14; 168 FCR 450 at [19]:

The intention is to limit the complaint which is to be brought to the Court to the same complaint as was made to the Commission by the same complainants and against the same respondents. It is easy to understand why that is so. The intention is to ensure that the Commission is always the filter for claims of unlawful discrimination before they are brought to the Courts, unless the President is satisfied that the complaint involves a matter of public importance that should be considered by the Federal Court or the Federal Magistrates Court. In acting as that filter, the President attempts to conciliate every complaint of unlawful discrimination which is not lacking in substance and which has not been otherwise adequately dealt with or cannot be effectively dealt with by another statutory authority: s 46PH(1).

(Emphasis added.)

48    In Mathews v State of Queensland [2014] FCA 1280 at [13], Collier J said:

This Court has previously found that the effect of s 46PO of the Act is that the Court has no jurisdiction to permit inclusion of a person as a party in discrimination proceedings if the person was not a party to the original complaint to the Commission: Bahonko v Sterjov [2007] FCA 359 at [36]; Ioannou v Hellenic Community Aged Care [2012] FCA 1227 at [17]; O’Donoghue v State of Western Australia [2013] FCA 903 at [22]-[24].

(Emphasis added.)

Mr Verma’s complaint before the AHRC

49    On 10 November 2024, Mr Verma lodged a Complaint to the AHRC by completing the “Make a Complaint Form”. In that form, he stated the Complaint was about Coles. In answer to a question about whether he wanted to add another respondent, Mr Verma identified the FWC. He stated that he had been discriminated against because of his disability (Mental illness) and his race (Indian). Mr Verma included a paragraph in which he appears to allege he was discriminated against by the FWC on the basis of a disability.

50    As to when the alleged event happened, Mr Verma wrote:

20/1/2024I was racially abused and threatened by a work colligue @ coles and I made a complaint regarding this incident where the other party who abused me was a white guy and I was sacked from my job without any explanation or mangment level investigation being taken place where I was fully part of it.

(Errors in original.)

51    As to the reason for delay in making the Complaint, Mr Verma wrote:

Up till now fairwork Commission was dealing with the case but now they have decided to let me further be harrased as tehy told me to take this case to fedral court

(Errors in original.)

52    When describing what happened, Mr Verma wrote:

My coles mangemnet sacked me from my job after 2.5 years where there was no fault of mine insted I was a victim and the incident took place right in front of a witness staff member where I was threatened to be harmed and racially abused by other work college

(Errors in original.)

53    On 21 November 2024, the AHRC contacted Mr Verma and asked for further information. Mr Verma responded on 22 November 2024. He reiterated the circumstances of the incident adding, “I reported the incident to my manager Luke, “who has been a bit indifferent and discriminatory in the past as well””. He also disclosed that he had been diagnosed with schizophrenia and seemed to suggest that predated his employment with Coles. He said, however, “I never had any issue with the management regarding this incapability”. He stated further that he believed he had been racially discriminated against by the FWC when “all my mental health documents completely stand by the truth and explains why my circumstances were exceptional to lodge the case with FWC outside the 21 day window”.

54    As required by s 46P(4) when it appears a person requires assistance to formulate the complaint, the AHRC provided assistance to Mr Verma to do so. After referring to Mr Verma’s contact with the AHRC “about Coles”, an officer told Mr Verma by email that he had drafted a statement “to focus the issues with respect to Coles”. He asked Mr Verma, in bold type, to review the statement to make sure it is true and accurate. Mr Verma was also told he could make changes before sending it back to the AHRC. The email explained that members of the FWC are “generally afforded judicial immunity” and that the AHRC “won’t arguably have jurisdiction to consider such claims against the FWC”. Mr Verma was told the “only way to contest a FWC decision is to appeal against it to the court”. In an email dated 1 December 2024, Mr Verma confirmed the information in the statement as drafted was true.

55    The Complaint before the AHRC was in the following terms:

1.    I want to raise concerns about Coles Supermarkets Australia Pty Ltd (Coles), of racial discrimination.

2.    I am a Punjabi Indian.

3.    I worked for Coles.

4.    In January 2024, my colleague tried to physically assault me, threatened to physically harm me and repeatedly called “F***in Indian”.

5.    I reported the incident to my manager Luke, who sent me home straight away.

6.    I was subsequently told that my employment was terminated without any explanation or management level investigation. I believe I was terminated because of my race because my colleague was white.

7.    I lodged an unfair dismissal claim with the Fair Work Commission (FWC). The FWC said it could not consider my claim because it was lodged after 21 days of my termination. I asked for special consideration in light of my mental health condition, but was told that they did not have the power to deal with my case any further. They said my only option was to proceed to the court.

56    In its Notice of Termination of the Complaint dated 17 July 2025, the President’s delegate indicated that the Complaint had been accepted as meeting the requirements of a valid complaint under s 46P of the AHRC Act as a complaint against Coles alleging ethnic origin and race discrimination and racial hatred under the RDA. As the delegate was satisfied there was no reasonable prospect of the matter being settled by conciliation, the Complaint was terminated under s 46PH(1B)(b) of the AHRC Act.

57    As is plain from the Complaint itself, it comprises one allegation of racial discrimination and racial hatred arising out of a single incident. Nothing in the Complaint can be construed as including allegations of less favourable rostering and shift allocation on the basis of Mr Verma’s race or ethnicity because of his manager’s being “a bit indifferent or discriminatory”. Further, nothing in the Complaint comes close to an allegation that Coles discriminated against Mr Verma on the date of the incident, and by terminating his employment, on the basis of any disability. Indeed, Mr Verma’s correspondence with the AHRC does not even go so far as to allege that Coles knew that he had any existing disability.

58    After his Complaint was terminated, by email to the AHRC dated 17 July 2025, Mr Verma purported to amend his Complaint and sent a further submission to the AHRC on 20 July 2025 in support of the purported amendment. The submission raised a catalogue of allegations against Coles. No explanation was given as to why these matters could not have been included in the original Complaint. In his affidavit filed in these proceedings on 21 November 2025, Mr Verma annexed a statutory declaration from his treating psychiatrist, Dr Raymond Ali, attesting to the fact that Mr Verma had shown no signs of mental illness for the last 12 months. In any event, s 46PF(4) of the AHRC Act prohibits the amendment of a complaint once it has been terminated by the President pursuant to s 46PH, as was the case here.

59    To the extent that Mr Verma raises the decision in Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 to submit that “the Court should adopt a practical and flexible approach” to s 46PO(3)(b), it is true that the Full Court held, at [48], that the terms of a complaint made to the Commission should not be read with the same strictures as apply to a pleading. But the circumstances of Dye (No 2) were different. The Full Court there was considering whether a more serious sexual assault was capable of being viewed, in substance, as a further allegation of a sexual assault by the same alleged harasser in the course of Ms Dye’s employment. Here, the additional allegations sought to be raised by Mr Verma do not arise out of the same alleged racial discrimination and racial hatred displayed by his colleague on the day of the incident. The alleged discrimination in rostering and shift allocation is of an entirely different nature, as is any allegation said to have been based on Mr Verma’s mental illness, which, I reiterate, does not appear to have been made known to Coles.

60    As Hill J observed recently in Wilson v Commonwealth of Australia (Strike-out and Further Particulars) [2026] FCA 91 at [41]:

Nor are the Applicants assisted by s 46PR of the AHRC Act, which provides that the Court is “not bound by technicalities or legal forms” in proceedings under Pt IIB, Div 2. The substantive directions given by s 46PO(3) must still be respected, notwithstanding s 46PR: Dye (No 2) at [48], citing Maghiar v Western Australia [2002] FCA 262 at [18] (French J). That is because provisions such as s 46PR only give the Court this flexibility when dealing with matters within its jurisdiction: see Cumaiyi v Northern Territory of Australia [2020] FCA 1299 at [105] (White J), citing Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2020] FCAFC 64; (2020) 276 FCR 53 at [104]-[105] (the Court).

(Emphasis added.)

61    For these reasons, [50]-[52] and [56]-[58] of the ASOC have no reasonable prospects of success and must be struck out. There is therefore no utility in Mr Verma’s amending the originating application to include a reference to the DDA as a basis for his claim. The interlocutory application filed on 11 May 2026 must also be dismissed.

[59]-[62] – Negligence claim

62    By [59]-[62] of the ASOC, Mr Verma seeks to make a common law claim for negligence. He alleges that Coles caused him to suffer a psychiatric injury during the course of his employment.

63    A worker’s rights to claim compensation for personal injury suffered in the course of employment in Queensland are governed by the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCR Act): Phipps v Australian Leisure and Hospitality Group Ltd [2007] QCA 130; 2 Qd R 555. Relevantly, s 237 provides:

237    General limitation on persons entitled to seek damages

(1)    The following are the only persons entitled to seek damages for an injury sustained by a worker—

(a)    the worker, if the worker—

(i)    has received a notice of assessment from the insurer for the injury; or

(ii)    has not received a notice of assessment for the injury, but—

(A)    has received a notice of assessment for any injury resulting from the same event (the assessed injury); and

(B)    for the assessed injury, the worker has a DPI of 20% or more or, under section 239, has elected to seek damages; or

(iii)    has a terminal condition;

    …

(5)    To remove any doubt, it is declared that subsection (1) abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker.

64    There is no dispute that Mr Verma has not received a notice of assessment. Mr Verma submits that he has recently submitted a claim form to Coles Team Cover and has sought an extension of time under s 131 of the WCR Act in which to lodge an application for compensation. He referred to emails which he said he sent to Coles Team Cover dated 19 April 2026 and 7 May 2026. Neither of these emails was in evidence before the Court. In her second affidavit, filed on 15 April 2026, Ms Chloe Wilton, solicitor for Coles, deposes that as at that date, Coles had not received any workers’ compensation claim from Mr Verma and, in its capacity as a self-insurer, did not decide to have any injury Mr Verma may have suffered assessed under s 179 of the WCR Act. She deposes further that Coles has not received a notice of claim from Mr Verma or a request to attend a compulsory conference under Ch 5, Pt 6, Div 1 of the WCR Act. Ms Wilton swore a further affidavit on 29 April 2026. I infer that if she had had more up to date information about any claim made on Coles by Mr Verma, she would have attested to that fact.

65    Mr Verma submits that now that he has become aware of the process for a worker to claim compensation for personal injury and taken steps to follow it, I should stay the proceedings and not dismiss his claim for negligence.

66    In the circumstances, where the time limit for Mr Verma to bring any claim may not yet have expired, I agree it would be premature to dismiss his claims at this stage. I do not, however, consider the balance of the proceeding ought to languish while he pursues the process laid out by the WCR Act. I will therefore strike out [59]-[62] of the ASOC. If and when Mr Verma is in a position to pursue a claim for damages in accordance with the WCR Act, he will be at liberty to do so in an appropriate jurisdiction.

Disposition

67    For the reasons given, pursuant to s 31A of the FCA Act, the claims made in [45] and [47] of the ASOC, in so far as they relate to the matters pleaded in [43(c)] of the ASOC, and the claims made in [50]-[52] and [56]-[58] must be dismissed on the ground that they have no reasonable prospects of success.

68    Consequently, the interlocutory applications filed on 11 May 2026 and 12 May 2026 will be of no utility and must be dismissed.

69    The claim for damages arising from an allegation of common law negligence pleaded at [59]-[62] must be struck out for the reason that it has been commenced contrary to the provisions of the WCR Act.

70    I will order that costs be reserved.

Associate:

Dated:    1 June 2026