In an unsuccessful application for an extension of time to make an application for an unfair dismissal remedy, the Fair Work Commission has made a number of interesting points. One of the grounds upon which the Commission will base its decision as to whether there are “exceptional circumstances” warranting an extension of time under sub-sec 394(3) is the merits of the substantive application.
In Buellsbach v Australian Postal Corporation (2015) FWC 3848 delivered on 9 June 2015 Johns C considered the following conduct by the applicant
“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.”……
and unsurprisingly concluded that “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”.
Another ground the applicant advanced as a reason for the delay in bringing the application was representative error. The Commission will often excuse a late applicant and grant an extension of time to the 21 day time limit in such cases where the error is made by the applicant’s representative and in that the applicant is blameless.
In this case however, the Commission distinguished between the circumstances where it is possible to hold blameless an applicant who is the victim of an error by a professional representative and the situation where the applicant relies upon a family member or friend, or in this case a co-worker.
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.
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.
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.
This factor weighs against considering whether to exercise the discretion to allow a further period for the applicant to lodge his application”.