Court green lights employee’s legal action against Coles, despite missing deadline

A worker who allegedly sustained significant injuries while employed at Coles has been granted leave by the court to pursue legal action against his employer despite filing the claim outside the usual time limits.

Supermarket giant Coles is set to face legal proceedings from a former employee who claims to have sustained significant injuries that required surgery due to the “repetitive manual” labour he performed there.

This comes after the Supreme Court of NSW granted the employee permission to initiate legal action against his employer despite filing the claim for damages beyond the standard legal time limit.

The employee worked at a labour recruitment agency, which would assign him to various subcontractors for work placements.

In 2018, the agency assigned the employee to a placement at Coles, where he worked at the supermarket giant’s distribution centre in Eastern Creek.

The employee alleged that on 1 March 2019, he sustained injuries while working at the Coles facility due to the physically demanding nature of the “fast, repetitive manual handling tasks” he was required to perform.

According to the plaintiff, he claimed that each day at his placement with Coles, he had to “pick up and move over 2,000 items” during a seven-hour shift. He stated that the repetitive nature of these tasks led to injuries that required surgery and resulted in “ongoing difficulties”.

Initially, the employee filed proceedings against Coles on 1 March 2022, which was within the statutory three-year limitation period for workplace injury claims.

However, due to his employment relationship with the labour recruitment agency, the employer was required to adhere to the “pre-filing steps” mandated under workers’ compensation legislation, as the agency was considered his legal employer.

These procedural requirements delayed the plaintiff’s ability to file his claim against the agency within the three-year statutory period.

The employee successfully completed the necessary pre-filing steps on 23 March 2023 and subsequently amended his claim to include the labour recruitment agency. However, the amended claim fell outside the statutory limitation period, which required the plaintiff to seek the court’s leave (permission) to proceed with the claim under section 151D of the Workers’ Compensation Act 1987.

During the hearing, Coles did not oppose the proceedings, and the recruitment agency agreed to abide by the court’s decision, offering no objections.

Due to the pre-filing requirements outlined in the legislation, the court determined that the plaintiff had been hindered from filing within the prescribed time frame.

As a result, the court granted the employee the right to proceed with his case against his employer, ruling that the claim was not “frivolous or vexatious” and the defendants were not being “prejudiced” by the delay.