Woodbury, Barry Keith v Barminco Pty Ltd [1998] FCA 24

federal COURT OF AUSTRALIA INDUSTRIAL LAW - alleged UNLAWFUL TERMINATION - whether applicant was serving a period of PROBATIONARY EMPLOYMENT - whether period of probation reasonable - three months - mining industry

Industrial Relations Act 1988 (now Workplace Relations Act 1996) - ss 170CC, 170EA Industrial Relations Regulations Reg 30B(1)(c) A.W.U. Gold (Mining and Processing) Award 1993 Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233 Ryan v Furneys Stockfeeds Limited (unreported IRCA No. 112 of 1996, Beazley J, 28 March 1996) Potter v Australian Capital Territory (unreported, Federal Court No. 968 of 1997, Wilcox, Marshall and North JJ, 17 September 1997) BARRY KEITH WOODBURY -v- BARMINCO PTY LTD WI 1045 OF 1997 JUDICIAL REGISTRAR: R.D. FARRELL JR PLACE: PERTH DATE: 22 JANUARY 1998

IN THE federal COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WI 1045 of 1997

BETWEEN: BARRY KEITH WOODBURY

Applicant

AND: BARMINCO PTY LTD

Respondent

COURT: R.D. FARRELL JR

DATE OF ORDER: 22 JANUARY 1998

WHERE MADE: PERTH

THE COURT DECLARES THAT: 1. The applicant is not excluded by Regulation 30B(1)(c) of the Industrial Relations Regulations from the operation of Subdivisions B, C, D, and E of Division 3 of Part VIA of the Workplace Relations Act 1996. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court of Rules.

IN THE federal COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WI 1045 of 1997

BETWEEN: BARRY KEITH WOODBURY

Applicant

AND: BARMINCO PTY LTD

Respondent

COURT: R.D. FARRELL JR

DATE: 22 JANUARY 1998

PLACE: PERTH

REASONS FOR JUDGMENT This is an application under Section 170EA of the then Industrial Relations Act 1988, now known as the Workplace Relations Act 1996 ("the Act"). The application is for reinstatement and compensation arising from the alleged unlawful termination of the employment of the applicant, Mr Barry Keith Woodbury ("Mr Woodbury") by the respondent, Barminco Pty Ltd ("Barminco"). It was agreed by the parties that it would be convenient for the Court to determine as a preliminary issue whether Mr Woodbury was an employee serving a period of probation for the purposes of Section 170CC and Regulation 30B(1)(c) of the Industrial Relations Regulations, such that he was excluded from the application of the unlawful dismissal provisions of the Act. The Court therefore heard evidence and submissions on that matter and reserved its decision. Relevant Principles Regulation 30B(1)(c), which applies to this application, relevantly provides that: "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 the circumstances of the employment..." is excluded from the operation of Subdivisions B, C, D, and E of Division 3 of Part VIA of the Act. It is agreed that, before commencing employment, Mr Woodbury signed a letter of employment on 4 September 1996 with the following term: "1. Appointment Initially your appointment will be for a three month probationary period in which time your suitability for the position will be assessed. If at the end of the three month period, you have performed your duties satisfactorily, the position will be made permanent." The sole issue in these proceedings was whether the three month duration of the probation period to be served by Mr Woodbury was reasonable, having regard to the nature and the circumstances of his employment. The onus on this question rests with Mr Woodbury. In Nicolson v Heaven & Earth Gallery Pty Ltd, (1994) 126 ALR 233; 57 IR 50; 1 IRCR 199, Wilcox CJ discussed the manner in which the Court should determine whether a particular period of probation is reasonable: "In some cases, evidence might be available concerning the practice in the particular industry. If so, the evidence would be relevant on the issue of reasonableness. It might be helpful, even decisive. But it is not necessary, or desirable, for expert evidence to be called in relation to the reasonableness of a particular stipulation. Whether or not the stipulated period is reasonable, is a matter that has to be determined by the person hearing the case, as an exercise of judgment. The judgment should be based on the proved objective facts, not on someone else's opinion.