Mr Brian Monaghan v Castleprime Construction Pty Ltd

[2015] FWC 4619

[2015] FWC 4619

FAIR WORK COMMISSION

DECISION

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

Mr Brian Monaghan
v
Castleprime Construction Pty Ltd
(U2015/7207)

COMMISSIONER WILSON MELBOURNE, 9 JULY 2015

Application for Unfair Dismissal Remedy; extension of time for the making of application; minimum employment period - casual employee. Application refused..

[1] This matter concerns an application made by Brian Monaghan alleging unfair dismissal against his former employer, Castleprime Construction Pty Ltd. Mr Monaghan’s application was first received in the Fair Work Commission by email on 28 April 2015. The document itself is undated. Mr Monahan’s application discloses that the date upon which his dismissal took effect was between June and July 2014, although he subsequently clarified in his outline of submission that he believes the date of termination to be 22 July 2014. 1

[2] Castleprime Construction argue that the casual nature of Mr Monaghan’s employment means there was no overt dismissal on any particular date, or in the alternative, if a date is to be determined, it should be the date on which he last worked for the company, which according to their records was 2 April 2014. 2 On a reading of either date of termination given by the parties, Mr Monaghan’s application has been lodged significantly outside the prescribed 21 day period for the filing on an unfair dismissal application.

[3] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters to be considered before considering the merits of the application. At least two of the matters set out in that section require determination in this decision; namely, whether his application was made within the period allowed for the making of an unfair dismissal application (s.396(a)) and whether he is a person who is protected from unfair dismissal (s.396(b)). The question of whether he is a person protected from unfair dismissal arises with the Respondent contesting whether he has completed a period of employment of at least the minimum employment period (which question in turn relates to the provisions of ss.382 and 383).

[4] Castleprime Construction further raise the jurisdictional objection that Mr Monaghan has not completed the minimum employment period which, it is submitted, in this case would be service of not less than 12 months since the company argues it had fewer than 15 employees at the time Mr Monaghan finished his employment with them. In this regard, the Respondent submits that in April 2014 it had 7 employees, including Mr Monaghan.

[5] I deal in turn with each of the questions of the date of dismissal of Mr Monaghan; whether the minimum employment period has been served by him; and whether an extension of time for the making an application should be granted.

[6] The evidence before me includes the documents filed by both parties in preparation for the hearing of the matter, and the oral evidence of;

• Brian Monaghan, the Applicant;



• Christine Davidson, Mr Monaghan’s partner, who gave evidence for Mr Monaghan;



• Michael Lomond, Director of Castleprime Construction, on behalf of the Respondent.

[7] The evidence and submissions disclose the following matters;

• The Respondent Ltd argues that Mr Monaghan was not dismissed. They argue that the casual employment relationship between he and the Respondent was such that he was not guaranteed work.



• In any event he has not worked for the company since 2 April 2014. The Respondent says that the circumstances of Mr Monaghan's termination are that he was advised during a telephone call he made to them on 22 July 2014 that there was no work available, however Castleprime Construction would be in touch with him if the situation changed and there were casual hours available for him. 3



• Part of Castleprime Construction’s submissions include that Mr Monaghan commenced employment with them on 5 December 2013 and that he worked for 10 days prior to the 2013 Christmas/New Year period. He resumed work on 6 January 2014, and shortly afterwards suffered a motor vehicle accident which required attendance at a hospital. Subsequently, on 14 January 2014, Mr Monaghan signed a letter of engagement with Castleprime Construction. The letter of engagement refers to Mr Monaghan’s employment being on a casual basis with no guarantee of ongoing regular work. 4



• Mr Monaghan then worked for the business until early April 2014 at which time he made a complaint about back pain and left, not to return.



• Although Mr Monaghan did not return to work after April, he contacted Castleprime Construction by telephone on 22 July 2014 asking when he could return to work. It was at that time that Mr Monaghan was advised that there was no casual work available to him due to operational requirements and a downturn in business. The company’s submissions and evidence on this point is broadly consistent with Mr Monaghan’s own, other than him taking the view that the Respodnent should have been prepared to offer him ongoing work because he believed he had sustained a work-related injury in the motor vehicle accident in January 2014, while Castleprime do not consider such requirement to exist.



• Castleprime Construction submit that Mr Monaghan was employed under the terms and conditions of the Building and Construction General On-Site Award (MA 000020). 5

Date of dismissal

[8] There is a dispute between the parties as to the date of effect of Mr Monaghan’s dismissal. Two dates in this regard are submitted.

[9] Mr Monaghan’s outline of submission refers to a date of termination of 22 July 2014, being the date on which he had a telephone discussion with the Respondent and in which he was told there was no further work available for him. In the case of Castleprime Construction, it is submitted that there was no particular date on which the dismissal took effect and that this is because he was a casual employee with no guarantee of ongoing employment. Instead of pointing to a date on which a dismissal took effect, Castleprime Construction point to the last date on which Mr Monaghan performed employment for them, being 2 April 2014. Mr Monaghan in turn disputes that date, the last day on which he performed work, arguing instead that the date was 7 April 2014.

[10] While the evidence shows that Mr Monaghan was employed on a casual basis only, it also demonstrates that in the period before April 2014 his employment period was relatively brief, but that he performed work with Castleprime Construction on a regular and systematic basis.

[11] Mr Monaghan’s evidence about the circumstances of his last day include that on 2 April 2015 he sent a text to his supervisor advising that he had a sick note. His evidence is also that he performed work at an unnamed building site for a short period on 7 April 2014, but because of pain and other concerns he then went from the site to Castleprime Construction’s office when he gave them a medical certificate indicating that he would not be able to work any further.

[12] The evidence demonstrates that the last work performed by Mr Monaghan was in early April 2014. Shortly after the last day of work Mr Monaghan commenced a workers compensation action against Castleprime Construction, which was ultimately not accepted by the insurer. The material filed by Mr Monaghan in support of his unfair dismissal application includes certain documents relating to the workers compensation claim including submissions of his lawyer in support of an application for workers compensation conciliation. Those documents indicate a chronology in relation to the workers compensation application, including that a medical certificate for workers compensation purposes was obtained on 8 April 2014; that Mr Monaghan made a claim for compensation on 2 May 2014; that he attended the insurers’ medical representatives on 11 July and 4 August 2014.

[13] The circumstances of Mr Monaghan’s phone call to Castleprime Construction on 22 July included, on the Applicant’s evidence and submissions, that he called to see when he could begin performing duties for the company. Mr Monaghan says that Mr Lomond told him his position was gone because he was casual worker and that they now have a new employee in his position. For its part, Castleprime Construction agree that Mr Monaghan contacted the company on that date and that in the course of the conversation he was advised there was no casual work available for him due to operational requirements and a downturn in business. He was further advised that he was a casual worker and that if something became available the company would be in touch with him. 6

[14] In addition, the material provided to the Commission indicates that Mr Monaghan sent an email to the Respondent on 2 December 2014 with him asking “just wondering what my position and status as an employee is with Castleprime”. 7 The submissions indicate that the person to whom Mr Monaghan sent the email was away at the time and did not respond to him. On 30 April 2015, being two days after the unfair dismissal application was made to the Commission, Mr Monaghan sent a further email to the respondent saying that it has failed in its duty of care to him as an employer to an employee and that he would “hereby hand in my two weeks notice as of today”.8

[15] Overall, because of the circumstances of a disputed injury in early 2014, followed by a cessation of work in April, further followed by a workers compensation application which was not finalised for several months, I am satisfied that at the time Mr Monaghan performed his last work with Castleprime in early April 2014 he did not understand that his employment had been terminated. Instead I am satisfied that the first he learned his services would no longer be required by Castleprime Construction was in the course of the telephone call on 22 July 2014.

[16] Accordingly I find that the date on which Mr Monaghan’s termination of employment took effect was 22 July 2014.

Minimum employment period

[17] Whether a person is protected from unfair dismissal at the time that they were dismissed is dealt with in s.382 of the Act. A person is so protected if they have completed a period of employment which is at least that of the minimum employment period, with the definition of that term set out in s.383 of the Act. The definition provides that a small business employer has a minimum employment period of one year from the time that the person has been employed.

[18] If Castleprime Construction was a small business at the time that Mr Monaghan’s employment was terminated, then his “minimum employment period” would be 12 months.

[19] The definition of a “small business employer” is set out in s.23 of the Act. The section provides that a National System Employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time. Subsections 23(2), (3) and (4) set out the process by which the Commission must calculate the number of employees.

[20] Relevantly, all of the employees employed by the employer at the particular time are to be counted, and a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis. Section 23(3) requires that the Commission include in that calculation any employees of an associated entity. However, it is noted that there are no assertions before the Commission that there are associated entities that should be taken into account.

[21] The evidence provided by the Respondent shows the employment of seven people in the business at the time that Mr Monaghan last worked for them, in April 2014. The details provided by the Respondent in this regard are for the employment of the following persons in April 2014;

1. Brian Monaghan Casual labourer
2. [Person E] a 457 visa worker, 4-year Contract
3. [Person S] Office Administrator - Casual
4. Mike Lomond Director - full time
5. Mark Hughes Director - full time
6. [Person H] Supervisor - full time
7. [Person W] Supervisor - full time

[22] Mr Lomond and Mr Hughes are Directors of Castleprime Construction, as well as being employees.

[23] The evidence shows that since April 2014, Castleprime Construction have reduced their numbers of employees even further and that by the time of the hearing, the company employed only its two directors, Mr Lomond and Mr Hughes. Mr Lomond’s evidence is that this has been brought about through deliberate decisions on the part of the company. In addition his evidence was that by July 2014 he and Mr Hughes were winding the company down.

[24] Mr Monaghan contends that the Commission should take into account, as people who would count as employees, an unspecified number of contractors. However, there is no evidence before me about either the number or identity of those persons, or the circumstances of their engagement.

[25] In contrast, it was Mr Lomond’s evidence that contractors were used by Castleprime Construction only for the performance of specific tasks associated with its construction projects. The contractors, such as a tradesperson bricklayer, were engaged to perform the relevant task; were on site for the relevant period and were then let go.

[26] As a result of the totality of the evidence given on these matters, I am not able to accept Mr Monaghan’s submissions about the treatment of contractors and that, for the purposes of this matter, they should be deemed to be employees. In any event, neither the number or identity of any such person has been established.

[27] Castleprime Construction also put forward evidence in the form of payroll summaries between December and April 2014, identifying the names of employees and the payments to each. The summaries show there were fewer employees in April 2014 than at the start of December 2013 when Mr Monaghan was first employed. The oral evidence provided by the Respondent confirms that the number of employees did not increase from between April 2014 and 22 July 2014.

[28] I am prepared to accept the evidence of the Respondent on these matters.

[29] I find therefore that Castleprime Construction was, at the time of Mr Monaghan’s dismissal, a small business employer within the meaning of the Act.

[30] On the basis that Mr Monaghan commenced employment on 5 December 2013, which is the date the Respondent puts forward, and that the date on which his employment finished was 22 July 2014, Mr Monaghan had served less than 12 months employment.

[31] It follows from that finding that Mr Monaghan had not served the minimum employment period. On that basis alone the application requires dismissal.

Extension of time

[32] While it is not necessary for me to make findings about the matter of an extension for the filing of Mr Monaghan’s application, I consider it appropriate nonetheless to consider the matter for the sake of completeness. For the reasons set out below, I am not satisfied that a further period should be allowed for the making of his application.

[33] In considering an application for an extension of time for the making of an unfair dismissal application, the Actrequires I must be satisfied that there are exceptional circumstances for the making of the application taking into account the criteria which are specified within s.394(3) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 9 A decision as to whether to extend the time period under s.394(3) involves the exercise of a discretion.10

[34] Consideration of whether there are exceptional circumstances requires consideration of all the circumstances, with it being well established that “[t]o 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”. 11

[35] In considering whether an extension of time should be granted to Mr Monaghan, I am required to consider all of the criteria in s.394, which I now do.

Consideration of the factors set out in section 394(3) of the Act

1. The reason for the delay

[36] The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend, and there must be an acceptable reason for the delay 12. An applicant needs to provide a credible reason for the whole of the period that the application was delayed.13 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period.14

[37] Mr Monaghan’s application was made to the Fair Work Commission on Tuesday, 28 April 2015. Since I have found that his termination of employment occurred on 22 July 2014, his application is therefore 259 days out of time. Having been terminated on 22 July 2014, the application would need to have been made no later than Tuesday, 12 August 2014.

[38] Mr Monaghan’s evidence about the making of his application for unfair dismissal remedy includes the following;

• Having realised on 22 July 2014 that his employment with Castleprime Construction was at an end, he rang the Fair Work Commission in Melbourne on 23 July 2014, at which time he spoke with a person whom he named to me. Mr Monaghan says that the person he spoke with undertook to provide him with paperwork about making an unfair dismissal application however he did not subsequently receive anything from the Commission.



• Mr Monaghan’s evidence is also that he realised the person to whom he spoke had not sent the documents after a period of up to three weeks.



• Mr Monaghan’s evidence is non-specific about what happened next or what prompted him to ultimately make an unfair dismissal application to the Commission in April 2015. In fact there does not appear to be any specific reason put forward as to why he ultimately did make the application when he did.



• In addition there is no evidence put forward by Mr Monaghan about what occurred in the period between early August 2014, two or three weeks after his phone call to the Commission, when he realised that the staff member had failed to provide him with the information he had been promised, and April 2015 when he ultimately made his application to the Commission.

[39] The further context which he seeks the Commission take into account includes that in January 2014 he suffered an injury at work which caused him considerable pain and which still persists today. The injury, pain and the steps he has had to take seeking medical assistance and also exercise these rights in respect of the injury has, he says, “been a long journey to this point in time, fighting my symptoms and work rights with lots of paperwork, hospitals and injury management.” 15

[40] The “delay” to be considered in this case is the period it took after the 21 day prescribed period for the application to be lodged.

[41] On the basis of the evidence provided to the Commission, I find that Mr Monaghan’s explanation for the delay in making his application to be the combination of the prejudice occasioned by the Fair Work Commission staff member failing to provide the relevant documents, and the pain that he says he was experiencing from his injury and then the task he has had in seeking his rights under the Western Australian workers compensation law.

[42] While an undertaking by a Commission staff member to provide documents to the Applicant might explain a delay in making an unfair dismissal application by a few days or even a few weeks, it by no means explains a delay of many months. It would be reasonable to expect that a potential Applicant, not having received documents that they thought would arrive, would make further enquiries of the Commission or elsewhere within a few days, or at most within a few weeks. This after all is contemplated legal proceedings against the former employer in order to remedy what is perceived to be a termination and ultimately the loss of income which rises from that termination. The prospect that such a person would wait several months, or in the case of Mr Monaghan, many months for documents to arrive is an unlikely one.

[43] In relation to the pain that Mr Monaghan says he was suffering, which I take to be a submission on his part to be such as to prevent him from making an application, I note that there is no medical evidence before me that would persuade me such explanation for the delay is reasonable to accept. The task he was then faced with in exercising his rights in a workers compensation setting is not an uncommon one for unfair dismissal applicants, and there is no specific evidence about how or why that task prevented him from making an earlier application.

[44] As a result of these circumstances, I do not consider an acceptable reason has been put forward for the delay by Mr Monaghan in making an unfair dismissal application. Accordingly, this criterion does not resolve in his favour in my consideration of whether an extension of time for filing should be granted.

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

[45] On the basis of the evidence before me, I am satisfied that Mr Monaghan first became aware that he had been dismissed on 22 July 2014. Such is consistent with his contact with the Fair Work Commission about his rights the day after, on 23 July 2014.

3. Any action taken by the person to dispute the dismissal

[46] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 16

[47] The material provided by the Applicant in this matter records that his focus after working for the last time in April 2014 was to pursue a workers compensation claim, as was his right, under the Western Australian workers compensation system. At least until 23 July 2014, when he made contact with the Fair Work Commission, there was no action taken by Mr Monaghan to specifically dispute his dismissal.

[48] In the circumstances of this matter, I take the view that consideration of this criterion resolves in favour of the Respondent.

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

[49] The delay in the filing of Mr Monaghan’s application is considerable. The evidence put forward by the Respondent indicates that the company has changed circumstances considerably between July 2014 and now. For that reason, it is likely that there is a higher than usual probability there will be prejudice to the Respondent in the event that an extension of time were to be granted.

[50] Accordingly, I consider that this factor is one that resolves against the Applicant in this matter.

5. The merits of the application

[51] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.

[52] Mr Monaghan’s essential case is that he was dismissed by Castleprime Construction when he should not have been, and in particular for reason of having been injured at work. In this particular matter, and on the basis of the material provided by both parties, but principally by the Applicant, I note that there have been applications by Mr Monaghan for both a conciliation and arbitration in relation to his workers compensation claim, with the result in each being against him. While the status of the workers compensation claims are obviously not determinative of an unfair dismissal matter in this Commission, they nonetheless are factors which would, at this stage of unfair dismissal proceedings, point to the probability that Mr Monaghan will face difficulty in persuading the Commission that he has been dismissed for the reason that he was injured at work with the Respondent being unwilling to face its responsibilities.

[53] Against him will also be the arguments of the changed circumstances of Castleprime Construction, including that it no longer has work available for him for reasons unrelated to his injury.

[54] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. Instead the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the Applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient. 17

[55] After assessing all of the material provided in this matter to date, it is my view that consideration of this criterion does not resolve in Mr Monaghan's favour.

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

[56] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past. 18

[57] In applying Mr Monaghan’s factual circumstances to this criterion, it is my view that fairness to other unfair dismissal applicants in similar circumstances to him would give rise to an expectation that there had been some process of diligent inquiry or dispute by him not long after the dismissal. However, as referred to in detail above, this was not the situation in Mr Monaghan’s case.

[58] Taking into account all relevant factors, and principally for the reason that I do not consider there to be an acceptable explanation for the delay in making his unfair dismissal application, I am not satisfied there are exceptional circumstances that would warrant allowing a further period for Mr Monaghan for the making of an application for unfair dismissal remedy.

[59] For these reasons, I decline to grant an extension of time pursuant to s.394 of the Act.

[60] In summary, I have found;

• The date on which Mr Monaghan was dismissed was 22 July 2014;



• That for reason of Castleprime Construction being a small business employer within the meaning of the Act, Mr Monaghan had not at the time of his dismissal completed a period of employment of at least the minimum employment period;



• There are not exceptional circumstances that would warrant allowing a further period for Mr Monaghan for making an application for an unfair dismissal remedy.

[61] On the basis of these findings, an order will be issued dismissing Mr Monaghan’s application as being outside of the Commission’s jurisdiction.

COMMISSIONER

Appearances:

Mr B Monaghan on his own behalf

Ms J Beeson (paid agent), Mr M Hughes and Mr M Lomond for the Respondent

Hearing details:

2015:

Melbourne (video link to Perth)

24 June

 1   Exhibit A2

 2   Exhibit R1, para 1a

 3   Exhibit R1, paras 1a and 1b

 4   Exhibit R2, attachment 2

 5   Exhibit R1, para 1h

 6   Exhibit R1, para 1h, 10

 7   Exhibit R2, attach 4

 8   Exhibit R2, attach 3

 9   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

 10   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, at [9]

 11   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation[2007] AIRC 848

 12   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 13   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408‒409

 14   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287

 15   Exhibit A1, p.4

 16   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 17   Haining v Deputy President Drake (1998) 87 FCR 248, 250

 18   Wilson v Woolworths [2010] FWA 2480, at [24]‒[29]

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