Woodbury, Barry Keith v Barminco Pty Ltd [1998] FCA 1211

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW – PROBATIONARY EMPLOYEE – whether employee a "probationary employee" within the meaning of Reg 30B(1)(c) of the (former) Industrial Relations Regulations and thus excluded from the operation of Division 3 Part VIA Industrial Relations Act 1988 (Cth) – whether period of probation reasonable. Industrial Relations Act 1988 (Cth), s 170CC Industrial Relations Regulations Reg. 30B(1)(c) Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233 considered Ryan v Furneys Stockfeeds Ltd (1996) 66 IR 298 considered

BARRY KEITH WOODBURY v BARMINCO PTY LTD No WI 1045 of 1997

CARR J PERTH 25 SEPTEMBER 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

JUDGE: CARR J DATE OF ORDER: 25 SEPTEMBER 1998 WHERE MADE: PERTH

THE COURT ORDERS AND DECLARES THAT: 1. The orders of the Judicial Registrar made on 22 January 1998 be set aside. 2. The applicant is 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 Industrial Relations Act 1988. 3. The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court 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

JUDGE: CARR J DATE: 25 SEPTEMBER 1998 PLACE: PERTH

REASONS FOR JUDGMENT This is an application by the respondent employer under s 18AC of the Federal Court of Australia Act 1976 (Cth) to review a decision of a Judicial Registrar. The Judicial Registrar decided, as a preliminary issue in an application under s 170EA of the then Industrial Relations Act 1988 (Cth), that the applicant was not excluded by Regulation 30B(1)(c) of the Industrial Relations Regulations from the operation of the unlawful dismissal provisions of that Act. The short question is whether, at the time when his employment was terminated, the applicant was serving a period of probation which was reasonable, having regard to the nature and the circumstances of that employment? The Judicial Registrar, for reasons published on 22 January 1998, held that the duration of the probation (three months) was not reasonable and so declared. By consent, the matter proceeded before me on the basis of the evidence adduced before the Judicial Registrar. There were no significant credibility issues. Factual Background The respondent, Barminco Pty Ltd ("Barminco") is a mining contractor which supplies a contract workforce to various mines owned by its customers. Barminco also makes available its mining plant and equipment, operated by its employees, for the purpose of carrying out such contracts. On 4 September 1996 the respondent offered the applicant, Mr Barry Keith Woodbury, employment as a dump truck driver at a mine known as "Daveyhurst". The offer was contained in a letter of that date which, upon the applicant signing a note of acceptance (endorsed at the foot of the letter), evidenced the terms of such employment. The first of such terms was as follows: "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 applicant's employment was terminated on 10 October 1996, i.e. about five weeks later. Mr Woodbury's work involved driving a dump truck down a decline into the mine where the truck was loaded (depending upon the task in hand) either with ore or mallock. He was then required to drive the dump truck back to the surface and deposit the load at designated places at the mine site. The distance of the round trip was between eight and ten kilometres. The applicant was also required, to some extent, to make sure that the dump truck was kept in good order and condition.