Trent Craig v Scott Madden Painting Pty Ltd
[2024] FWC 1443
•3 JUNE 2024
| [2024] FWC 1443 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Trent Craig
v
Scott Madden Painting Pty Ltd
(C2024/2511)
| COMMISSIONER CRAWFORD | SYDNEY, 3 JUNE 2024 |
General protections dismissal dispute - application filed out of time – no exceptional circumstances – application dismissed
BACKGROUND
Trent Craig (Mr Craig) has made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of Mr Craig’s allegations that he was dismissed from his employment with Scott Madden Painting Pty Ltd (Scott Madden Painting) in contravention of Part 3-1 of the FW Act.
Mr Craig commenced employment with Scott Madden Painting on 1 June 2020 as an apprentice painter.
Mr Craig’s employment ended on 11 March 2024 when Scott Madden (Director) (Mr Madden) informed Mr Craig that Scott Madden Painting did not intend to offer Mr Craig a tradesperson position following the completion of his apprenticeship. That decision was confirmed via an email sent by Mr Madden to Mr Craig on 12 March 2024.
Mr Craig filed his Form F8 application on 17 April 2024.
Scott Madden Painting filed a Form F8A employer response on 30 April 2024. Scott Madden Painting objected to Mr Craig’s general protections application on the ground that the application was not filed within 21 days of the dismissal taking effect. Scott Madden Painting also raised an objection on the basis that Mr Craig was not dismissed within the meaning of s.386 of the FW Act.
I issued directions for the filing of material in relation to whether I should grant an extension of time and listed the matter for hearing via video on 28 May 2024.
Mr Craig represented himself at the hearing and Mr Madden represented Scott Madden Painting.
MATERIAL RELIED UPON
Mr Craig
Mr Craig relied on the following material in support of the granting of an extension of time for the filing of his application:
· Form F8 application dated 17 April 2024. Given the application contains evidence about Mr Craig’s dismissal and why he missed the 21-day filing period, I marked the application Exhibit A1.
· A payslip issued to Mr Craig for the period of 11 February 2024 to 17 February 2024. I marked the payslip Exhibit A2.
· A copy of a letter from Training Services NSW to Mr Madden dated 8 February 2024. The letter states Mr Craig has completed the Certificate III in Painting and Decorating and will be eligible for competency-based completion of the apprenticeship effective from 29 February 2024. The letter has a form at the bottom which was signed by Mr Madden and Mr Craig on 17 February 2024. Mr Madden and Mr Craig signed in support of competency-based completion of the apprenticeship taking effect on 29 February 2024. I marked the letter Exhibit A3.
· A copy of a letter from Training Services NSW to Mr Madden dated 8 March 2024. The letter states: “We have recently issued TRENT CRAIG with his Certificate, following completion of his apprenticeship training.” I marked the letter Exhibit A4.
· A copy of an email from Mr Madden to Mr Craig sent on 12 March 2024. The email states:
“unfortunately, we have decided not to renew your employment contract, which is set to expire on 11th March 2024… Please consider this letter as formal notice of the non-renewal of your contract. Your last working day with Scott Madden Painting Pty Ltd will be on Monday 11th March 2024…”
I marked the email Exhibit A5.
· A spreadsheet prepared by Mr Craig which outlines alleged underpayments during his employment with Scott Madden Painting. Mr Madden argued the spreadsheet was not relevant and should not be admitted. There was merit to that submission. I decided to mark the spreadsheet as Exhibit A6 but indicated I did not intend to place any significant weight on the spreadsheet in deciding whether to grant an extension of time.
· An email from Mr Craig sent to the Commission on 17 May 2024. The email contains evidence about why Mr Craig did not file his application within 21 days. I marked the email Exhibit A7.
· A copy of email communication between Mr Craig and the Fair Work Ombudsman (FWO) dated 23 February 2024. The email confirms Mr Craig had contacted the FWO by 23 February 2024. I marked the email Exhibit A8.
· A copy of an email from the FWO to Mr Craig sent on 11 March 2024. The email confirms Mr Craig spoke to a FWO representative on 11 March 2024. I marked the email Exhibit A9.
· A copy of an email from the FWO to Mr Craig sent on 18 March 2024. The email confirms Mr Craig spoke to a FWO representative on 18 March 2024. I marked the email Exhibit A10.
· A copy of Mr Craig’s online lodgment service confirmation email for his general protections application sent by the Commission on 17 April 2024. I marked the email Exhibit A11.
· A copy of an email from the Commission’s Workplace Advice Service (WAS) to Mr Craig dated 20 March 2024. The email states a lawyer from Coutts Legal will contact Mr Craig to arrange an appointment within two weeks. I marked the email Exhibit A12.
· A WAS questionnaire provided to Mr Craig ahead of his upcoming appointment. I marked this document Exhibit A13.
· Emails from Emma De La Mare (Client Enquiry Coordinator – Coutts Legal) to Mr Craig dated 21 and 22 March 2024. The emails confirm an appointment had been arranged for Mr Craig with Jayne Howarth (Lawyer – Coutts Legal) on 28 March 2024. I marked the emails Exhibit A14.
· An email from Ms Howarth to Mr Craig dated 8 April 2024. The email indicates Mr Craig spoke with Ms Howarth on 5 April 2024 and was provided with advice about making a general protections application, and that he had missed the 21-day filing period but could seek an extension of time. I marked the email Exhibit A15.
· An email from the WAS to Mr Craig dated 8 April 2024. The email confirms Mr Craig had a recent appointment with Coutts Legal. I marked the email Exhibit A16.
Mr Craig answered some questions from me under an affirmation during the hearing and was briefly cross-examined by Mr Madden.
Mr Craig’s oral evidence was that he had never been provided with a copy of his employment contract with Scott Madden Painting to keep. Mr Craig stated that he would sign a contract each year in hard copy, and the hard copy would then be taken by Mr Madden. Mr Craig was not sure whether the terms appearing in clause 2 of the contract filed by Mr Madden in these proceedings appeared in all the contracts he signed.
Mr Craig confirmed he was always paid as an apprentice and was never paid a tradesperson rate.
Mr Craig stated that what would happen at the end of his apprenticeship was never discussed between himself and Mr Madden until their meeting on 11 March 2024.
Mr Craig gave evidence that he had sent an email raising payment issues to Mr Madden on 10 March 2024 and considers this was a trigger for the employment ending the next day.
Mr Craig also provided oral submissions and reply submissions at the end of the hearing.
Scott Madden Painting
Scott Madden Painting relied on the following material in opposing an extension of time being granted to Mr Craig:
· Form F8A employer response dated 30 April 2024. Given the response contains evidence about the dismissal, I marked the response Exhibit R1.
· A copy of a letter from Training Services NSW to Mr Madden dated 8 March 2024 which confirms the completion of Mr Craig’s apprenticeship. I marked the letter Exhibit R2.
· A copy of a letter from Mr Madden to staff regarding a shut down over the 2024 Christmas period. I marked the letter Exhibit R3.
· A copy of a St George bank record which confirms Mr Madden made a payment of $1,352.52 to Mr Craig on 30 April 2023. I marked the record Exhibit R4.
· A copy of an apprentice employment contract between Scott Madden Painting and Mr Craig purportedly made on 1 June 2020. The document has Mr Craig’s electronic signature but is not dated. The contract includes the following terms:
“2.3 You are employed as an apprentice for a fixed term to complete your apprenticeship. Termination of this contract can occur in accordance with the terms of this contract, the Industrial Instrument and any applicable termination provisions of the registered training agreement.
2.4: The term of your apprenticeship is 4 years (48 months).
2.5: This contract of employment will automatically cease on the conclusion of your apprenticeship, unless otherwise agreed. Notwithstanding this, the term of the contract may be extended by mutual agreement.”
I marked the contract Exhibit R5.
· A document containing evidence from Mr Madden in response to material filed by Mr Craig dated 23 May 2024. I marked this document Exhibit R6.
· A copy of a cease and desist letter sent by Mr Madden to Mr Craig regarding alleged defamatory comments. I marked the letter Exhibit R7. I do not consider this letter is overly relevant to the issue of whether an extension of time should be granted to Mr Craig.
· An excerpt containing clause 2 of the apprenticeship contract between Scott Madden Painting and Mr Craig. I marked the excerpt Exhibit R8.
Mr Madden answered some questions from me under an affirmation during the hearing and was briefly cross-examined by Mr Craig.
Mr Madden stated that he uses a pro forma employment contact provided by Employsure. Mr Madden requests that all his employees sign a new contract each year. Mr Madden stated the content of clause 2 of the contract he filed with the Commission in these proceedings was included in all the contracts signed by Mr Craig. Mr Madden stated the signed contracts are accessible via a payroll app.
Mr Madden stated that he accepts Mr Craig was underpaid during his employment and that he has taken prompt action to address these issues. Mr Madden strongly denied that this was a factor in his decision to not engage Mr Craig after his apprenticeship ended. Mr Madden stated the business did not have sufficient work for another tradesperson at the time.
Mr Madden provided oral closing submissions at the end of the hearing.
CONSIDERATION
When must an application for the Commission to deal with a dismissal dispute be made?
Section 366(1) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
As stated above, it is a matter of record that the application was made on 17 April 2024.
When did the dismissal take effect?
It is not in dispute, and I find, that Mr Craig’s dismissal took effect on 11 March 2024.
Was the application made within 21 days after the dismissal took effect?
As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
As I found above, the dismissal took effect on 11 March 2024. The final day of the 21-day period was therefore 1 April 2024 and ended at midnight on that day. The application was lodged on 17 April 2024 which was sixteen days after the end of the 21-day period.
The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made.
Was the application made within such further period as the Commission allows?
Under section 366(2) of the FW Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by Mr Craig to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between Mr Craig and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]
I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 1 April 2024. The delay is the period commencing immediately after that time until 17 April 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4]
Mr Craig does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the Mr Craig has not provided any reason for any part of the delay.[5]
Mr Craig indicated that the reason for the delay was that he was not able to get advice from a lawyer about whether he could make a claim until he spoke with Ms Howarth from the WAS on 5 April 2024. Mr Craig explained that he previously had an appointment via the WAS scheduled for 28 March 2024, but he did not receive a phone call at the agreed time. The documentary evidence Mr Craig filed is consistent with these events. Mr Craig indicated he does not have the financial resources to pay for a lawyer. I accept that evidence.
However, Mr Craig admitted during the hearing that he was advised about the 21-day filing period by a FWO representative on 18 March 2024. Given that advice, it was unwise for Mr Craig to delay filing an application until after he had spoken with a lawyer through the WAS. The appropriate course of action would have been to file an application within the 21-day period to protect his position pending the receipt of legal advice.
In addition, Mr Craig has not explained why his application was not filed until 17 April 2024 when it is clear he was advised by Ms Howarth that he could make a general protections application verbally on 5 April 2024, and then in writing on 8 April 2024.
I do not consider Mr Craig has provided a satisfactory explanation for the delay in filing his application. Mr Craig should not have waited until he spoke with a WAS representative, given he had been advised of the 21-day filing deadline by the FWO. In addition, Mr Craig should have filed an application urgently after receiving advice from Ms Howarth on 5 and 8 April 2024. Rather than doing this, Mr Craig delayed filing an application for over a week.
I find this factor weighs against a finding of exceptional circumstances and the granting of an extension of time.
What action was taken to dispute the dismissal?
It is clear Mr Craig took several actions to dispute his dismissal within the 21-day filing period, and afterwards. Mr Craig sought advice initially from the FWO and then from a lawyer via the WAS. It is conceivable Mr Craig may have filed within 21 days if his appointment through the WAS proceeded as scheduled on 28 March 2024.
I consider these actions taken by Mr Craig to dispute his dismissal weigh in favour of a finding of exceptional circumstances and the granting of an extension of time.
What is the prejudice to the employer (including prejudice caused by the delay)?
I do not consider Scott Madden Painting will suffer any significant prejudice if an extension of time is granted for Mr Craig’s application. I consider prejudice to Scott Madden Painting to be a neutral factor.
What are the merits of the application?
It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”.[6]
I consider Scott Madden Painting has good prospects of establishing that Mr Craig was not “dismissed” within the meaning of s.386 of the FW Act. I consider it is likely that Mr Craig’s termination will be captured by the exclusion in s.386(2) of the FW Act which applies where:
“the person was an employee:
(i)to whom a training arrangement applied; and
(ii)whose employment was for a specified period of time, or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement.”
The wording in the employment contract provided by Scott Madden Painting makes it expressly clear that:
(i)“You are employed as an apprentice for a fixed term to complete your apprenticeship;” and
(ii)“This contract of employment will automatically cease on the conclusion of your apprenticeship, unless otherwise agreed.”[7]
There is no evidence of any mutual agreement for Mr Craig’s employment to continue beyond the apprenticeship. Mr Craig’s evidence was that the issue had never been discussed prior to the meeting on 11 March 2024.
I acknowledge Mr Craig queried the validity of the employment contract filed by Scott Madden Painting and argued he had never been provided with a signed copy that he could keep. However, Mr Craig admitted during the hearing that Mr Madden presented him with a contract to sign each year and he signed those contracts. I consider it is highly likely each contract was relevantly in the same terms, given Mr Madden was relying on a template. I do not consider the issues Mr Craig raised are sufficient to establish his employment was not bound by an apprenticeship contract with the automatic termination provision identified above.
Mr Craig also referred to his apprenticeship already having concluded by the time he met with Mr Madden on 11 March 2024. However, Mr Craig accepted he was paid as an apprentice throughout his employment with Scott Madden Painting. Although the precise end date of Mr Craig’s apprenticeship is not entirely clear on the evidence, I consider it is clear that Mr Craig never performed work for Scott Madden Painting in any position other than that of an apprentice.
For these reasons, I consider it is likely that Scott Madden Painting has a valid jurisdictional objection to Mr Craig’s application and this weighs against a finding of exceptional circumstances and the granting of an extension of time.
Fairness as between Mr Craig and other persons in a similar position
As a Full Bench has noted, “this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”[8] In particular, the history of this provision indicates that it refers to “other employees of the employer agitating the same or similar substantive issues”.[9]
Neither party made a persuasive argument that this factor weighs in favour of their respective positions. I consider this to be a neutral factor.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[10] Exceptional circumstances may 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 can be considered exceptional.[11]
Having regard to all of the matters listed at s.366(2) of the FW Act, I am not satisfied that there are exceptional circumstances.
I am not satisfied that Mr Craig has a satisfactory explanation for the delay and this weighs against a finding of exceptional circumstances. I also consider the merits of the application weigh against a finding of exceptional circumstances. Although Mr Craig did clearly take several actions to dispute his dismissal prior to filing his application, I do not consider these actions are a sufficient reason to find there are exceptional circumstances and to grant an extension of time for the filing of the application.
Conclusion
I decline to grant an extension of time for the filing of the application.
The application is dismissed.
COMMISSIONER
Appearances:
Mr Craig representing himself.
Mr Madden representing Scott Madden Painting.
Hearing details:
2024.
28 May.
Via video.
[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[3] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[7] Exhibit R5, clause 2.5
[8] Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963, [41].
[9] See Elrifai v Demons Formwork & Construction Pty Ltd[2011] FWA 5090, [19].
[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[11] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
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