Mr Robert Buellsbach v Australian Postal Corporation T/A Australia Post

[2015] FWC 3848

[2015] FWC 3848

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Robert Buellsbach
v
Australian Postal Corporation T/A Australia Post
(U2015/4693)

COMMISSIONER JOHNS SYDNEY, 9 JUNE 2015

Application for relief from unfair dismissal — whether to extend time for lodging the application.

Introduction

[1] On 7 April 2015 Robert Buellsbach (applicant) lodged an application with the Fair Work Commission (Commission) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act). The respondent to the application is Australian Postal Corporation (respondent).
[2] On 17 April 2015 the respondent filed its response to the application in which it objected to the application proceeding on a jurisdictional ground. The respondent submitted that the application was out of time (i.e. lodged more than 21 days after the dismissal took effect).
[3] It is common ground between the parties that the applicant’s employment, as a postal delivery officer, ceased on 3 February 2015 and the applicant became aware of the dismissal on that day 1 (pursuant to a letter of termination dated 30 January 2015, but received on or about 3 February 20152 (Exhibit R1). The application for an unfair dismissal remedy was received by the Commission on 7 April 2015. As such, the application was lodged 42 days outside of the 21 day time limit for making an unfair dismissal application.

Because the application was lodged out of time, it was necessary for the Commission to firstly determine whether to allow a further period for the application to be made (i.e. decide whether to grant an extension of time). Under section 394(3) of the Act the Commission may allow a further period if it is satisfied that there are “exceptional circumstances”.

The hearing of the extension of time application occurred on 15 May 2015. At the hearing the:

● applicant was represented (by permission pursuant to section 596(2)(a) of FW Act) by Mr Quentin Cook, a paid agent. The applicant gave sworn evidence; and
● respondent was represented (by permission pursuant to section 596(2)(a) of FW Act) by Darren Hexter (a solicitor on secondment to the respondent from Herbert Smith Freehills). No evidence was called on behalf of the respondent.

Background

[4] The applicant commenced employment with the respondent on 29 April 2013.
[5] The respondent terminated the applicant’s employment for alleged serious and wilful misconduct. The process followed by the respondent is set out in paragraph 3.2 (1)(c) of its Employer Response to the applicant’s Unfair Dismissal Application. That process, including that of the disciplinary inquiry, is uncontested.
[6] Although the termination was effective on 3 February 2015, the process followed by the respondent included an internal appeal process to the respondent’s Board of Reference. The applicant lodged an appeal on 9 February 2015. On 13 March 2015 the Board of Reference dismissed the applicant’s appeal. The applicant became aware of the same on 18 March 2015.
[7] The applicant lodged his unfair dismissal application on 7 April 2015 (i.e. 20 days after the appeal decision). At all times since the termination of his employment the applicant was represented by Mr Cook. 3

Legislative scheme

[8] Subsection 394(2) of the Act provides that an unfair dismissal application must be made within 21 days after the dismissal took effect:

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

[9] Subsection 394(3) of the Act provides that the Commission may allow a further period for an unfair dismissal application to be made if it is satisfied there are “exceptional circumstances”. The Tribunal in concluding whether “exceptional circumstances” exist must take into account the following factors:

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[10] A Full Bench of the Commission has held the following in relation to “exceptional circumstances”: 4

[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[11] An unfair dismissal application “must be made” within 21 days or a further period allowed by the Commission. The words must be made are not defined in the Act but guidance to their meaning can be found in the Fair Work Commission Rules 2013. Rule 13 deals with lodgement of documents in the Commission and provides as follows:

“13 General requirements for lodging documents

...

(2) A document must be lodged with the Commission by:

(a) physically delivering the document to an office of the Commission between 9 am and 5 pm on a business day; or

(b) sending the document by post to an office of the Commission; or

(c) emailing the document in accordance with rule 14; or

(d) using the Commission’s electronic lodgment facilities in accordance with rule 15; or

(e) faxing the document in accordance with rule 16.”

Consideration

The reason for the delay

[12] Essentially, the reason for delay advanced by the applicant is that he was waiting for the outcome of the internal appeal process before deciding whether to lodge an application for an unfair dismissal remedy. As noted above, the applicant’s application for an unfair dismissal remedy was made 20 days after he was notified that his appeal was unsuccessful.
[13] In response, the respondent points to the fact that in the letter of termination it put the applicant on notice about the existence of statutory rights because it said (to quote from the letter),

“Should you wish to consider your rights under the Fair Work Act 2009 in respect to alternative legal remedies, including time limits that apply, you will need to seek external advice”.

[14] At all times since the termination of his employment, the applicant has been represented by Mr Cook. Mr Cook complained that the letter of termination could be clearer. He said that it could “say that the time limit of 21 days does apply to your statutory right to seek relief from unfair dismissal.” 5 He submitted that some implication is to be drawn from the lack of clarity in the letter of termination.6

Mr Cook’s argument was that “in effect” the Board of Reference process puts a stay on the termination date. 7 He submitted that “there is an effective date [of] dismissal, and then there's an absolute date [of] dismissal.”8 Further, that “there is a consecutive nature to the application for relief from dismissal. So first cab off the rank is [the] Board of Reference, and if you don't get satisfaction there, then you apply to the Fair Work Commission.”9

[15] Mr Cook asserted that “… in practice [Australia Post employees] exhaust the internal process first before [they] seek relief at the Fair Work Commission.” 10 However, Mr Cook was not able to provide the Commission with any authorities for the proposition he advanced.

Neither the applicant nor Mr Cook could explain to the Commission why an application for unfair dismissal remedy was not lodged within time as a means of safeguarding the applicant’s position, pending the outcome of the internal appeal. Mr Cook conceded that there was nothing in the Fair Work Act 2009 which prevents the concurrent making of an application and unfair dismissal remedy and the pursuit of an internal appeal mechanism. 11

It was always within the power of the applicant to lodge, or instruct Mr Cook to lodge, an application for an unfair dismissal remedy within time. It is no excuse that he was waiting for the outcome of the internal appeal, especially in circumstances where the respondent put him on notice about “alternative legal remedies” in the letter of termination. However, it was Mr Cook’s belief that it was not until the internal appeal mechanism had been exhausted that an unfair dismissal claim could be made. 12

Mr Cook said “this is an issue … that, with this respondent, has been going for quite some years, and this [is] an opportunity to try and, again, get some judicial decision in relation to the ambiguity and the confusion that [it has] caused.” 13

Mr Cook is correct that the interplay between the respondent’s internal appeal mechanism and the statutory scheme for unfair dismissal has a long history. However, he incorrectly asserts that an ambiguity arises. This is not the first time that this Commission has had this issue before it.

As far back as 2002, in Schmidt v Australia Post, 14 almost the same factual circumstance was before the Commission. Mr Schmidt had his employment terminated by Australia Post. Mr Schmidt exercised a review to the Board of Reference. The Board of Reference dismissed the internal appeal. Mr Schmidt then sought a remedy for unfair dismissal. By reason of having gone through the internal appeal process first, Mr Schmidt’s unfair dismissal application was 42 days out of time. Commissioner Bacon observed that,

“It inappropriate that the statutory scheme harsh, unjust or unreasonable termination of employment should in some respect be modified or tailored to accommodate some agreed private arrangements between the parties. The statutory requirement is that application is be lodged within 21 days of the date of the termination. That requirement was not met. At an application pursuant to the Act been lodged with the Board of Reference proceedings could still have run their course. The two matters may have proceeded in parallel. The approach and scheduling of the application lodged with the Commission (in light of the Board of Reference proceedings) is a matter of the Commission member whom the application is allocated. The two sets of proceedings are not mutually exclusive.”  15

[16] However, there is an important point of distinction between the Schmidt case and the facts in the present matter. The letter of termination that Mr Schmidt received did not contain any statement about rights under the statutory scheme. Mr Schmidt was granted an extension of time.

[17] In the matter of Norman v Australian Postal Corporation 16, Mr Norman, (like Mr Schmidt before him) had his employment terminated by Australia Post. Mr Schmidt exercised a review to the Board of Reference. The Board of Reference dismissed the internal appeal. Mr Norman then sought a remedy for unfair dismissal but was out of time. Mr Norman was granted an extension of time because he had received incorrect advice from his union and Senior Deputy President Acton held that “it was reasonable for him to rely and act on the advice of his union”17. Her Honour observed,

“I do not think Mr Norman's failure to consult a legal practitioner in respect of the termination of his employment was unreasonable given his consultation with his union on the matter. I think it is reasonable for an employee to expect the union will correctly advised them in respect of termination of employment matters”. 18

[18] Five years after the decision in Schmidt a similar factual circumstance again came before Commissioner Bacon. However, in Smart v Australian Postal Corporation 19 the applicant was not as fortunate as Mr Schmidt because, by this time, Australia Post had amended its termination letter to specifically refer to statutory rights. The application for an extension of time was refused. Commissioner Bacon held that,

“In this matter, given Acton SDPs comment, when taken with a letter of termination where the respondent specifically draws to the attention of the applicant (and by implication and representatives) who writes under the Workplace Relations Act 1996 and the need to take into account “the time limits that apply” it is not reasonably open to conclude that there was a reasonable explanation that the delay.” 20

[19] The decision in Smart v Australian Postal Corporation was the subject of an appeal. In declining to grant leave to appeal, the Full Bench referred to the decision in Norman v Australian Postal Corporation and held that,

“… it is reasonable for employees to expect the union to advise them correctly with respect to termination of employment matters. The failure by union to do so would not normally weigh against the employee. However, in circumstances where the employee is on notice that a time limit is applicable failure to seek advice on what time limit might apply will weigh against a finding that there was an acceptable reason for the delay in lodgement.” 21

[20] In the present matter the evidence of the applicant was that he had not heard of the phrase “unfair dismissal” 22 and that he could not remember whether or he had asked Mr Cook if there was a time limit to file an application with the Fair Work Commission.23 He said, “I just left it in [Mr Cook’s] hands.”24

The factual circumstance of the applicant in the present matter is more akin to that of Ms Smart than it is to that of Mr Schmidt. Both the applicant and his representative, Mr Cook, were put on notice by the respondent that there were rights under the Fair Work Act 2009. Those rights were not exercised in accordance with the statutory time limit. Having regard to the authorities referred to above, the Commission, as presently constituted, rejects Mr Cook’s submission that there is any ambiguity or confusion caused by the existence of the respondent’s internal Board of Reference process.

Representative error

[21] Mr Cook did not submit that there was representative error. However, given Mr Cook’s,

a) lack of familiarity with the requirement to seek permission to represent the applicant; 25
b) failure to call the applicant to give evidence; 26 and
c) apparent lack of awareness of the authorities referred to above,

it tends to suggest that the applicant has been the unfortunate victim of representative error. A proud man, Mr Cook would not concede that the late lodgement of the unfair dismissal application was his fault. 27 Mr Cook attempted to lay blame with the Commission. He said that the Form F2 application for an unfair dismissal remedy “created confusion in relation to the difference between the consecutive on a concurrent nature of the applications.”28
[22] Despite Mr Cook not taking responsibility of the late lodgement of the applicant’s unfair dismissal application, it seems only fair to Mr Buellsbach that consideration be given to the authorities relating to representative error as a reason for delay. The applicant should not be saddled with Mr Cook's pride.
[23] In order for the applicant to establish that he is the victim of representative error it must be established that he was entitled to rely upon Mr Cook as his representative and that he himself is blameless for the delay in filing the unfair dismissal application. This is consistent with the long line of authorities from the 1997 decision in Clark v Ringwood Private Hospital 29 through to the 2011 decision in Robinson v Interstate Transport Pty Ltd30 and the Full Bench decision in Officeworks Ltd v David Parker.31
[24] One of the established principals is that,

“the conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it will generally not be unfair to refuse to accept an application which is some other time in circumstances where the applicant Lester matter in the hands of their representatives and took no steps to enquire as to the status of their claim. A different situation exists when applicant is clear instructions to their representatives to lodge an application and the representatives failed to carry out those instructions, through no fault of the applicant and despite the applicant's efforts to ensure that the claim is lodged.” 32

[25] In Officeworks Ltd v David Parker 33 the Full Bench held that,

[18] In circumstances where “representative error” is relied upon in Commission proceedings as an excuse or explanation for the failure to meet time limits, it is appropriate to have regard to the professional qualifications and expertise of the representative concerned. This will enable an assessment to be made as to the extent to which it was reasonable for a party to rely upon the skills and expertise of the representative in acting on their behalf. Clearly where the representative is a lawyer, an experienced industrial advocate, or an officer or employee of an organisation of employers or employees, it might more readily be concluded that representative error provides an acceptable explanation for the delay and such error should not be blamed upon the party concerned. However where the representative chosen has no experience or expertise in the area of legal and employment matters, there might be less justification for reliance on that person and the responsibility for delays or other errors might be attributed to the party concerned.

[19] In general, representative error may be more readily accepted as an explanation or excuse where the person relied upon has professional qualifications or expertise in dealing with legal and employment matters than where reliance is placed on a family member or friend.

[26] In the present matter the applicant has relied upon Mr Cook. The evidence of Mr Cook's skill and experience was as follows:

a) he is a postal delivery officer; 34
b) he started work with the respondent at the age of 18 and it has been his only job for the last 38 years; 35
c) he has been a union representative for all of that time;
d) he has represented cases in the old Industrial Relations Commission;
e) he has represented cases in the Fair Work Commission (but not unfair dismissal matters); 36
f) he had been involved in Federal Court proceedings and other litigation involving election disputes 37
g) he gets paid for his industrial relations services; and 38
h) he was last involved in an unfair dismissal matter about 10 years ago (but only up to the preliminary hearing stage). 39

[27] In relying upon Mr Cook the applicant has not relied upon a person who has professional qualifications or relevant recent expertise in dealing with legal and employment matters concerning unfair dismissal claims. He has not relied upon a union. The evidence of Mr Cook is that he was last involved in an unfair dismissal matter more than 10 years ago and, even then, only up to the preliminary hearing stage.
[28] Mr Cook clearly has some advocacy experience, however, the Commission, as presently constituted, is not satisfied that the applicant was entitled to rely upon Mr Cook. The applicant chose Mr Cook as his representative and is therefore not blameless. A prudent person engaging a representative should enquire as to their skills and experience. The evidence of the applicant is that he just left it all in Mr Cook hands. He was not entitled to do so.

[29] The reason for the delay was Mr Cook’s incorrect belief that the applicant was required to exhaust the respondent’s internal procedure before commencing an application for unfair dismissal. However, this is not a case of representative error because the applicant must take responsibility for choosing a fellow postal delivery officer as his representative. As a co-worker, reliance upon Mr Cook falls into the same category as reliance upon a family member or friend.
[30] This factor weighs against considering whether to exercise the discretion to allow a further period for the applicant to lodge his application.

Whether the person first became aware of the dismissal after it had taken effect

[31] The uncontested evidence is that the applicant received the notice of the dismissal on 3 February 2015.
[32] The applicant knew his employment would end on 3 February 2015. He had plenty of time to prepare and be ready to file an application for an unfair dismissal remedy soon thereafter, or instruct Mr Cook to do so. There is no excuse for waiting for the outcome of the internal process, again, especially in circumstances where the respondent put him on notice about “alternative legal remedies” in the letter of termination.
[33] This factor weighs against considering whether to exercise the discretion to allow a further period for the applicant to lodge his application.

Any action taken by the person to dispute the dismissal

[34] It is common ground between the parties that the applicant took action to dispute the dismissal. In a timely way he commenced the internal appeal process.
[35] This factor is in favour of exercising the discretion to allow a further period for the applicant to lodge his application.

Prejudice to the employer (including prejudice caused by the delay)

[36] A long delay can give rise to a presumption of prejudice. 40 However, the respondent did not press any prejudice it would suffer if an extension of time was granted to the applicant.41

This factor is in favour of exercising the discretion to allow a further period for the applicant to lodge his application.

The merits of the application

[37] The Commission notes that, for the purpose of determining whether to grant an extension of time to the applicant to file his application, it “should not embark on a detailed consideration of the substantive case.” 42

During the hearing the applicant’s representative, Mr Cook, advised the Commission that the applicant does not contest the accusations made against him. Nor does he take issue with the process undertaken by the respondent except that, it is said, the Board of Reference “did not give sufficient weight or gravitates to the underlying medical condition that the applicant suffered from at the time” he engaged in the conduct alleged against him and that he concedes. 43

[38] The conduct engaged in by the applicant, which is not denied, included:

a) in respect of a concern about an aggressive dog attacking him, he “removed a folded knife, around 6 inches in length, from [his] bum bag and made a comment to the effect of ‘I do not need to worry if it does. I carry this with me all the time and this is how I will deal with it.”;
b) telling a co-worker to “shut the f#ck up or I will stab you in the neck with a pen”;
c) telling co-workers “I would not bring a gun to shoot everyone. I would bring a samurai sword because I would not have to reload and [name withheld] would be the first”;
d) taking a cigarette lighter, putting it on the chin of a co-worker and saying words to the effect of “I will f#cking burn your beard.”;
e) in front of co-workers singing “if I had a gun, I would shoot everyone. I would start with who I hate the most and then keep going. I would shoot every f#cking one.”
f) making his fingers into the shape of a gun and pointing them at a co-worker whilst imitating the noise of discharging a gun.”

[39] All of the above would likely result in the Commission finding that there was a valid reason for termination. They are serious matters and, absent the most compelling of medical evidence that could explain such frightening and foul mouthed outbursts, it is difficult to imagine the applicant being successful in his claim. Consequently, the Commission, as presently constituted, assesses the merits of the applicant’s claim (that he was unfairly dismissed) as weak.
[40] The Commission also notes that the respondent relies upon the decision of the Board of Reference. Consistent with the first instance decision in Smart v Australian Postal Corporation, some weight should be attached to the Board of Reference decision. As Commissioner Bacon observed, “it is an agreed process and its contents, including its findings and conclusions must carry some weight of the current purpose. It would not necessarily carry weight in full arbitral proceedings considering whether the termination was harsh unjust or unreasonable.” 44 However, that is not the task before the Commission as presently constituted.
[41] This factor weighs against considering whether to exercise the discretion to allow a further period for the applicant to lodge his application.

Fairness as between the person and other persons in a similar position

[42] It was common ground between the parties that this factor is not relevant in the circumstances as there are no persons in a similar position. 45

Conclusion

[43] In establishing whether “exceptional circumstances” exist, the Commission must take into account the factors listed in s.394(3)(a) to (e) of the Act. The expression “exceptional circumstances” while not specifically defined in the Act has been accepted in this Commission as circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.
[44] A conclusion that there are “exceptional circumstances”, taking into account the statutory considerations is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to a contemplation of whether, given the “exceptional circumstances” found, it is fair and equitable that time should be extended. 46

Suffice to say it is not enough for the applicant to establish an acceptable explanation for delay, without also establishing that the reason is an “exceptional circumstance” or part of a number of factors, which when viewed jointly, represents “exceptional circumstances”.

The applicant’s explanation for the late lodgement of his unfair dismissal application boils down to him relying upon Mr Cook. For the reasons stated above the Commission, as presently constituted, is not satisfied that such reliance falls into the category of representative error.

The Commission also notes that the substantive claim has little merit.

In considering all of the circumstances related to applicant’s application, and on the basis of the evidence provided by the parties, the “exceptional circumstances” envisaged by s 394(3) of the Act to exercise the discretion to allow a further period within which to lodge the application do not arise in this case.

The period for the applicant to lodge his application is not extended. The application is dismissed.

COMMISSIONER

Appearances:

Mr Q. Cook, Paid Agent for the Applicant.

Mr D.Hexter, Solicitor for the Respondent.

Hearing details:

2015.

15 May.

Sydney

 1   PN204 – 206.

 2   PN35-37.

 3   PN42-43.

 4   Nulty v Blue Star Group, 2011, 203 IR 1 at [13].

 5   PN63.

 6   PN65.

 7   PN50.

 8   PN52.

 9   PN53.

 10   PN77.

 11   PN112-113.

 12   PN120-121 and PN143.

 13   PN196.

 14   PR915006.

 15   PR915006, [10].

 16   PR950442.

 17   PR950442, [14].

 18   PR950442, [16].

 19   [2007] AIRC 1013.

 20   [2007] AIRC 1013, [11].

 21   [2008] AIRCFB 124, [7].

 22   PN301-302.

 23   PN307.

 24   PN308.

 25   PN10.

 26   The applicant was called to give evidence on the motion of the Commission as presently constituted.

 27   The closest he got to making the concession can be found at PN398.

 28   PN198.

 29 (1997) 74 IR 413 per Ross VP, Drake DP and Deegan C.

 30   [2011] FWAFB 2728.

 31   [2014] FWCFB 5779.

 32   Clark v Ringwood Private Hospital (1997) 74 IR 413, 419-420 and endorsed in Davidson v Aboriginal & Islander Child Care Agency (2000-2001) 105 IR 1, 6 (per Ross VP Watson SDP and Eames C in Print Q0784, 12 May 1998).

 33   [2014] FWCFB 5779.

 34   PN371.

 35   PN368.

 36   PN382.

 37   PN369.

 38   PN372.

 39   PN383-388.

 40   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556.

 41   PN218.

 42 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 43   PN224 and PN228 - 229.

 44   [2007] AIRC 1013, [20].

 45   PN219 - 222.

 46   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975.

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