Babb, Jeffrey Robert v Commonwealth of Australia (Department of Administrative Services) [1997] FCA 932

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - whether the applicant was an employee serving a period of PROBATION determined in advance Workplace Relations Act 1996 (Cth) Workplace Relations Regulations reg. 30B(1)(c) Members of Parliament (Staff) Act 1984 (Cth)

Reed v Blue Line Cruises Limited (unreported, Industrial Relations Court of Australia, Moore J, 26 November 1996) CFMEU & Hornett v Borg Manufacturing Pty Ltd (unreported, Industrial Relations Court of Australia, Moore J, 6 February 1997) JEFFRY ROBERT BABB v COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF ADMINISTRATIVE SERVICES) VI 1183 of 1997 Before: Judicial Registrar Millane Place: Melbourne Date: 11 September 1997

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VI 1183 of 1997

BETWEEN: JEFFRY ROBERT BABB

Applicant

AND: COMMONWEALTH OF AUSTRALIA

(DEPARTMENT OF ADMINISTRATIVE SERVICES)

Respondent

JUDICIAL REGISTRAR: MILLANE

DATE OF ORDER: 9 SEPTEMBER 1997

WHERE MADE: MELBOURNE

MINUTES OF ORDERs

THE COURT ORDERS THAT: 1. The applicant's application in proceeding number VI 1183 of 1997 is dismissed.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VI 1183 of 1997

BETWEEN: JEFFRY ROBERT BABB

Applicant

AND: COMMONWEALTH OF AUSTRALIA

(DEPARTMENT OF ADMINISTRATIVE SERVICES)

Respondent

JUDICIAL REGISTRAR: MILLANE

DATE: 11 SEPTEMBER 1997

PLACE: MELBOURNE

REASONS FOR JUDGMENT By an application filed on 18 December 1996 the applicant sought reinstatement and compensation alleging that on 9 December 1996 his employment by the respondent as an Electorate Officer Grade B was terminated in contravention of the provisions of the Workplace Relations Act 1996 (Cth) (the Act). It was agreed by the parties that the Court would deal with the jurisdictional question first. This was whether, at the relevant time, the applicant was an employee serving a period of probation determined in advance. This course was adopted because a finding that the applicant was in fact serving a period of probation determined in advance excludes the applicant from the class of employees to whom remedies are available under the Act. Relevantly, regulation 30B(1)(c) of the Workplace Relations Regulations provides: "30B(1) Subject to subregulation (2), for the purposes of section 170CC of the Act, the following employees are excluded from the operation of Subdivision B, C, D and E of Division 3 of Part VIA of the Act: (a) ... (aa) ... (b) ... (c) an employee serving a period of probation or a qualifying period of employment, if the duration of the period or the maximum duration of the period, as the case requires: (i) is determined in advance; and (ii) is reasonable, having regard to the nature and circumstances of the employment; (d) ..." The dispute between the parties was confined to the two points I have referred to above and did not include any assertion or evidence establishing that the duration of the alleged probationary period of employment was unreasonable having regard to the nature and circumstances of the employment. Accordingly, I was only required to decide the narrower issue of whether at the outset the employment was probationary because there was then an express or implied agreement to that effect (see generally the decisions of His Honour Justice Moore in Reed v Blue Line Cruises Limited (unreported, Industrial Relations Court of Australia, Moore J, 26 November 1996) and CFMEU & Hornett v Borg Manufacturing Pty Ltd (unreported, Industrial Relations Court of Australia, Moore J, 6 February 1997)). On 9 September 1997, having had the opportunity to hear the evidence and read the documents tendered to the Court, I dismissed the applicant's application, indicating then that my written reasons for judgment would follow. THE WITNESSES The applicant gave evidence and called one other witness, John Raymond Pasquarelli (Pasquarelli), who is presently unemployed but was the senior adviser to the Federal Member for Oxley at the relevant time. The respondent called one witness, the Honourable Pauline Lee Hanson MP, (Hanson), the Federal Member of Parliament for the Division of Oxley in the House of Representatives. THE EVIDENCE In response to orders made by the Court both parties filed contentions, which documents purported to detail the facts and law each asserted were relevant to a determination of the jurisdictional question. After hearing all the evidence called by each party it was apparent to me that the contentions filed were poorly crafted documents and did not articulate clearly the allegations of facts and the law relied on. The contentions only assumed significance at hearing when Hanson was cross-examined about parts of the document filed by the respondent and the difference between those parts and her evidence. For instance, Hanson's oral evidence of what she said to the applicant when she allegedly informed him that the position was a probationary one, was far more detailed than the quotation contained in the contentions. It not uncommon for witnesses to be taken to task over the contents of pleadings and contentions filed with the Court. Nevertheless, unless it can be shown that the witness has read, or is directly responsible for the contents of the document usually drafted by the party's solicitors, or has adopted the contents of the document, it is not appropriate to give weight to any differences between the statements in the document and the oral evidence. Clearly her evidence of what she said went much further than the quotation in the respondent's contentions. However, I am satisfied that she did not read the contentions filed before the document was shown to her in Court, nor did she adopt the contents of same. In determining the weight, if any, I should apportion to this matter, I have also considered the contentions filed by the applicant. This document bears little resemblance to the primary facts alleged by the applicant and Pasquarelli in their oral evidence. The applicant's contentions are drafted in the form of a pleading; that is to say, a defence rather than a particularisation of the facts the applicant intended to rely on at hearing to meet his burden of proof on the jurisdictional question. Having regard to all these matters, in making my findings I have concentrated entirely on the evidence of the witnesses and the documentary evidence tendered to the Court. It was common ground that from 18 November 1996 the applicant was engaged by Hanson as an Electorate Officer Grade B. This employment was entered into pursuant to Part IV of the provisions of the Members of Parliament (Staff) Act 1984 (Cth). The effect of this legislation and the subordinate instrument created pursuant to its provisions (see the Arrangements and Conditions for the Employment of Staff of Senators and Members dated 23 October 1983) is that, as happened in this case, the electorate officer engaged by the Member of Parliament as part of her personal staff became and was, at the date of termination, an employee of the Commonwealth. The three witnesses all agreed that on 30 October 1996 an interview for the position of Electorate Officer Grade B took place between Hanson and the applicant at a house in Yarraville during an evening barbecue. Hanson and the applicant were the only participants and, therefore, the only people able to give evidence on whether the oral offer of employment made and accepted in the fifteen to twenty minutes they spent together was for employment subject to a three month period of probation. On the one hand Hanson asserted that she informed the applicant that there would be a three month period of probation and he expressly agreed to that condition. On the other hand, the applicant denied any reference at all to probationary employment. He claims that on 25 November 1996, one week after the commencement date of his employment on 18 November 1996, he was pressured by Pasquarelli to sign a document (Exhibit A1) purporting to acknowledge an earlier agreement with Hanson to the effect that his employment was probationary employment. Essentially the determination of the primary issue rests on an assessment of the credibility of the evidence of Hanson and the applicant and, because of the surrounding circumstances, an assessment of the likelihood that they acted in the way they say they did. Having heard the evidence, the applicant, who carries the onus of proof on the jurisdictional question, failed to satisfy me that it was more probable than not that the contract of employment entered into was an unconditional one. A number of factors helped me reach this conclusion. The first was that, as the respondent's senior counsel, Mr Tracey QC, observed, the applicant presented as a very poor historian particularly when required to detail the range of matters he said were discussed at his first meeting with Hanson. He was prompted both in evidence-in-chief and cross-examination before he was able to give evidence on a number of matters. The second factor was that Pasquarelli as a witness called by the applicant to corroborate, amongst other matters, the applicant's allegation that on 25 November 1996 under protest he was forced by Pasquarelli to sign Exhibit A1 acknowledging an agreement for probationary employment, failed to give evidence to sustain this allegation. The third factor was the evidence of both Hanson and Pasquarelli that, because of the public position Hanson holds, there is an emphasis on there being mutual confidence and trust between her and her personal staff. Neither Pasquarelli nor Hanson were personally acquainted with the applicant prior to 30 October 1996; although Pasquarelli's enquiries led him to recommend the applicant as a worthy candidate for the position. In this climate it is likely that Hanson did adopt a more cautious approach to hiring this new staff member, leaving herself the option of terminating the relationship in the short-term if the applicant was an unsuitable employee. The last factor, which is related to the preceding one, is that in early 1996 Pasquarelli introduced a policy whereby all personal staff hired, including Pasquarelli, were required to agree to probationary periods of employment. It seems that that policy was not implemented until after Pasquarelli, Barbara Hazelton and Heidi Lewis, both of whom were Electorate Officers, were already employed. Nevertheless, all agreed to this condition attaching to their contracts of employment. Had Hanson purported to terminate their employment within the three month probationary period, arguably there was no proper basis under the Act for establishing that any period of probationary employment was determined in advance. However, it was said that Brett Heffernan, who was the Electorate Officer Grade B from April 1996 until he resigned on 20 September 1996, was employed subject to the probationary employment policy. It is likely that, by reason of the existence and implementation of this policy and, as it turns out, the difficulties encountered with Barbara Hazelton who strongly objected to but subsequently agreed to having the probationary condition attach to her contract of employment, Hanson acted in a way which was consistent with the policy applying to each member of her small group of personal staff. BACKGROUND By way of background it was common ground that following her election to Parliament in 1996 Pasquarelli was appointed by Hanson as her senior adviser. At the beginning of September 1996 her staff consisted of Pasquarelli and the three electorate officers named above. As I have already noted, Brett Heffernan resigned on 20 September 1996 leaving a vacancy to be filled by a person with research skills and experience. As Hanson's senior adviser, Pasquarelli pursued the staff replacement and, as a result of his inquiries, recommended the applicant as a suitable candidate to be interviewed by Hanson. At hearing the applicant described himself as a freelance writer with extensive experience as a researcher having worked for Senator Peter Sims in Western Australia between 1975 and 1980.