FEDERAL COURT OF AUSTRALIA Mann v State Rail Authority [1999] FCA 273 INDUSTRIAL LAW - termination of employment - proceedings in the Australian Industrial Relations Commission seeking relief against termination of employment pursuant to s 170CE of the Workplace Relations Act 1996 (Cth) - whether applicant's right to bring an application to the Commission was excluded by the combined operation of s 170CC of the Act and reg 30B(1)(c) of the Workplace Relations Regulations (Cth) - whether maximum period of probation of twelve months was reasonable - application for writs of certiorari and mandamus against a Full Bench of the Commission - whether there was a constructive failure of the part of the Commission to exercise its jurisdiction. Workplace Relations Act 1996 (Cth)s 170CC Workplace Relations Regulations (Cth) reg 30B Transport Administration (Staff) Regulations 1995 (NSW) cl 8 Potter v Australian Capital Territory (No 2) (1997) 74 IR 403 referred to Rose v Department of Social Security (1990) 21 FCR 241 applied Nimmo v Alexander Cowan & Sons [1968] AC 107 referred to Vines v Djordjevitch (1955) 91 CLR 512 referred to RHETT KARL MANN v VICE PRESIDENT ROSS, DEPUTY PRESIDENT DUNCAN, COMMISSIONER LARKIN SITTING AS THE FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION, PRESIDENT JUSTICE GIUDICE IN HIS CAPACITY AS A PRINCIPAL MEMBER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION, STATE RAIL AUTHORITY NG 807 OF 1998 RYAN, MOORE AND MARSHALL JJ 24 MARCH 1999 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 807 OF 1998 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: RHETT KARL MANN Applicant AND: VICE PRESIDENT ROSS, DEPUTY PRESIDENT DUNCAN, COMMISSIONER LARKIN SITTING AS THE FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION First Respondents PRESIDENT JUSTICE GIUDICE IN HIS CAPACITY AS A PRINCIPAL MEMBER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Second Respondent STATE RAIL AUTHORITY Third Respondent JUDGES: RYAN, MOORE AND MARSHALL JJ DATE OF ORDER: 24 MARCH 1999 WHERE MADE: SYDNEY MINUTES OF ORDER THE COURT ORDERS: 1. A writ of certiorari issue to the Australian Industrial Relations Commission ("the Commission") removing the decision of Commissioner Jones of 10 February 1998 in application No 21090 of 1997 being the application by Mr Rhett Mann under s 170CE of the Workplace Relations Act 1996 (Cth) into this Court and quashing it. 2. A writ of mandamus issue to the Commission directing it to hear and determine in accordance with law, application No 21090 of 1997 being the application by Mr Rhett Mann under s 170CE of the Workplace Relations Act 1996 (Cth). Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 807 OF 1998 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: RHETT KARL MANN Applicant AND: VICE PRESIDENT ROSS, DEPUTY PRESIDENT DUNCAN, COMMISSIONER LARKIN SITTING AS THE FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION First Respondents PRESIDENT JUSTICE GIUDICE IN HIS CAPACITY AS A PRINCIPAL MEMBER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Second Respondent STATE RAIL AUTHORITY Third Respondent JUDGES: RYAN, MOORE AND MARSHALL JJ DATE: 24 MARCH 1999 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT: 1 This is an application for an order nisi for a writ of certiorari, a writ of mandamus and an injunction against a Full Bench of the Australian Industrial Relations Commission ("the Commission") and the President of the Commission who has been joined, presumably, as representative of the whole Commission. The application was remitted to this Court by an order made in the High Court by McHugh J on 31 July 1998. 2 The applicant was employed by the third respondent, the State Rail Authority of New South Wales ("SRA") from 7 April 1997. At the time of his appointment, he received a letter from SRA which included this passage: "Your appointment will be permanent on probation for six months. This probationary period could be extended if found necessary. Your starting date will be 7 April 1997 … Please acknowledge receipt and acceptance of this offer on the copy of this letter and return to me." 3 The applicant signed the letter as requested. 4 SRA's policy in relation to probationary employees was set out in its "Employee Handbook" which recited, amongst other things: As a new permanent employee, you will normally be placed on probation for six months, though this period may be shortened or extended up to 12 months. During your probationary period, your work performance, conduct and attendance are assessed by your manager to ensure your appropriateness for the position. You will be given the opportunity to comment on your manager's assessments during the probationary period. If all assessments are satisfactory, your appointment is confirmed at the end of the probationary period. If your manager is not satisfied with your performance, conduct or attendance, your probation may be extended for a further six months or, in extreme cases, your appointment may be terminated. 5 On 2 October 1997, that is, five days before the expiration of the probationary period specified in his letter of appointment, Mr Mann's employment was reviewed by his supervisor. The probation report expressed the view that his attendance had been unsatisfactory and recommended that his probationary period be extended for a further six months. Mr Mann was shown a copy of that report which he signed. 6 The probation report was considered by Mr R Matarazzo, SRA's Business Support Officer, City Circle. He decided to extend Mr Mann's period of probation for three months to 6 January 1998. Mr Matarazzo wrote to Mr Mann a letter dated 3 October 1997 in these terms: I wish to advise you that your period of probation has been extended by three (3) months from 7th October, 1997 to 6th January, 1998. This action has been taken to allow the Authority a further period to assess your work performance and conduct because of your poor attendance record. A further period of probation is necessary to determine whether you meet Authority standards. If you have any questions on this matter, please contact your Human Resource Officer on 9 5023. 7 That letter was sent to 35/8 Wylde Street, Potts Point which was Mr Mann's address when he commenced employment with SRA. However, he had since changed his address and claims to have notified SRA of that change before 3 October 1997. 8 After 7 October 1997, Mr Mann was absent from work on a number of occasions and, on 17 December 1997, his employment was terminated on the ground of his unsatisfactory record of attendance. Mr Mann then applied to the Commission under s 170CE of the Workplace Relations Act 1996 (Cth) ("the Act") for relief against the termination of his employment. A preliminary question as to the Commission's jurisdiction to entertain that application was determined by Commissioner Jones on 10 February 1998. That question was whether Mr Mann's right to bring the application was excluded by the combined operation of s 170CC of the Act and Reg 30B(1)(c) of the Workplace Relations Regulations (Cth) ("the Regulations"). 9 Section 170CC(1) provides, so far as is relevant: "The regulations may exclude from the operation of specified provisions of this Division specified classes of employees included in any of the following classes: (a) employees engaged under a contract of employment for a specified period of time or a specified task; (b) employees serving a period of probation or qualifying period; (c) employees engaged on a casual basis for a short period; …" 10 As contemplated by that subsection, Reg 30B stipulates, again so far as is relevant: For subsection 170CC(1) of the Act, the following kinds of employees are excluded from the operation of Subdivisions B, C, D, E and F of Division 3 of Part VIA of the Act: (a) an employee engaged under a contract of employment for a specified period of time; (b) an employee engaged under a contract of employment for a specified task; (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 may be, is determined in advance and, either: (i) the period, or the maximum duration, is 3 months or less; or (ii) the period, or the maximum duration: (A) is more than 3 months; and (B) is reasonable, having regard to the nature and circumstances of the employment. … 11 The appointment of the applicant on probation was made under clause 8 of the Transport Administration (Staff) Regulations 1995 (NSW) ("the Staff Regulations") made under the Transport Administration Act 1988 (NSW). That clause provides: Appointment on probation 8. (1) Every person appointed to the service of the SRA as an SRA officer must, in the first instance, be appointed on probation for a period of 6 months. (2) In a particular case, the SRA may make an appointment without probation. (3) The SRA may, during the period of probation, extend the period of probation, but the total period of probation may not exceed 12 months. (4) A period of leave (with or without pay) must not be included in calculating any such total period of 12 months. (5) The SRA may, during or after the period of probation, confirm the SRA officer's appointment or discharge the officer from the service of the SRA. (6) A decision to discharge an SRA officer is not subject to appeal to a Transport Appeal Board. 12 In the hearing before Commissioner Jones SRA contended that the applicant was precluded from pursuing the application by virtue of his having been a probationary employee at the time his employment was terminated. It was contended on behalf of the applicant that, although he was employed on probationary employment when he was dismissed, the period of that probationary employment had not been determined in advance and it was not reasonable. The Commissioner held that the applicant was properly to be described as having been "on probation" within the meaning of the Transport Administration Act 1988 (NSW) which, in turn, he regarded as "not in conflict with the generally accepted workplace application" of probation. On the question of whether the probationary period had been "determined in advance", the Commissioner found that "RM [the applicant] had been suitably informed before commencing active work and cannot be held to be in similar circumstances to that which confronted His Honour Moore J [in Reed v Blue Line Cruises (1996) 73 IR 420] with the operation of regulation 30B". The Commissioner then went on to conclude at page 9 of his reasons: I now turn to address the specific period of extended probation period. There would seem to be little doubt that the SRA can extend a probationary period by the deeming and application of Regulation 8 of the Transport Administration Act must to do so in a manner which has attached right. I believe on evidence the SRA did have the attached right and by reference to and in line with also what His Honour Moore J outlined (above) I hold to such a decision based on some simple facts. It will be seen from the evidence provided above, that RM commenced his employment with SRA on the 7 April 1997 for a probationary period of six months. This would set that probationary period to expire on 7 October 1997. I am satisfied that RM was conversant with those facts. Further to that a probation report [exhibit SRA5] was completed and its contents conveyed to RM by his controlling officer on 2nd October 1997. This report was immediately followed the very next day by advice in writing to RM that his period of probation had been extended by three months for stated reasons, (not of relevance here). The date of the latter correspondent [sic], ie 3 October 1997, is a date in advance of RM's six months anniversary employment date of 7 October 1997. Therefore on 7 October 1997 RM cannot be seen as entering into some realm of 'limbo', 'no persons land' or, in the absence of advice, becoming a 'permanent'. He clearly was advised in advance of that date what his status could/was to be. The right to implement such a position was with the SRA through Regulation 8 of the Transport Administration Act. After reviewing the circumstances I could not construe it as being in conflict with Regulation 30B or section 170CC of the Workplace Relations Act. I also refer back to the situation of probation and to the rights of both parties to the employment contract, especially where the stated probation period has the implied right to cancellation by either party during its operation period. By providing an advanced date of a probation's ending period really must be seen to be not leaving such an issue to be determined as uncertain, inconclusive or open ended, those positions cannot be in the interests of either party. Such an advanced determination does not and should not restrict either the employee/employer terminating equally the contract. 13 After concluding that the time for which the applicant's period of probation had been extended was not unreasonable, Commissioner Jones concluded that the Commission lacked jurisdiction to determine Mr Mann's application for relief under s 170CE. 14 The applicant then sought leave to appeal to a Full Bench from this decision under s 45 of the Act. However the grounds he relied upon do not appear to have had any real bearing on the issue Commissioner Jones had decided. The applicant had been represented before Commissioner Jones by the Public Transport Union ("PTU"). The applicant had seemingly not been satisfied with that representation. He was unrepresented in the appeal. In the notice of appeal he contended that the SRA had submitted false and misleading evidence against him and, in particular, that it was false to say that on or about 3 October 1997 he received a letter notifying him that his probationary employment had been extended. In the notice of appeal the applicant asserted that the Commission should ignore all submissions that had been made on his behalf by the PTU. The Full Bench viewed it as raising the narrow issue of whether the applicant had received notice of the extension of his probationary period. The Full Bench said that this issue had to be viewed against a background in which the applicant had been advised before appointment that the initial probationary period might be extended and that his appointment would only be confirmed if his probation report indicated that his work performance, conduct and attendance were satisfactory. The Full Bench noted that the applicant's probationary report made it clear that his attendance was unsatisfactory and that it recommended that his probationary period should be extended. It also noted that the applicant signed that report. The Full Bench concluded that it was not open to the applicant to assert that he assumed his appointment had been confirmed. 15 The Full Bench went on to say that the submission made by the applicant before them had not been put to Commissioner Jones. The Full Bench then said that the conclusion reached by the Commissioner was reasonably open on the material before him and his decision disclosed no error of principle warranting correction on appeal. The Full Bench said that in "the absence of demonstrable error in the exercise of discretion at first instance" and given that the decision had limited precedent or "flow on" implications, leave to appeal should not be granted. 16 Plainly the applicant did not serve his own cause by abandoning in the appeal the submissions that had been made on his behalf to the Commissioner by the PTU and by focusing only on one narrow factual issue that was of limited, if any, legal relevance. The decision of the Commissioner did not involve the exercise of a discretion notwithstanding the characterization of it as discretionary by the Full Bench. It was a decision concerning the jurisdiction of the Commission based on the effect of Reg 30B albeit potentially dependent upon the Commission's conclusion about the reasonableness of the probationary period or the maximum probationary period that had been determined in advance. The Commission should, particularly at an appellate level (necessarily involving Presidential Members: see s 30(2) of the Act), endeavour, with unrepresented litigants pursuing personal legal rights of the type conferred by Division 3 of Part VIA, to identify what truly are the issues raised in the proceedings (at least if they are legal issues of substance) and squarely address them either in considering whether to grant leave or in determining the appeal: see Neil v Nott (1994) 121 ALR 148 at 150. See also Minogue v Human Rights & Equal Opportunity Commission [1999] FCA 85 at para 27. 17 Plainly clause 8 of the Staff Regulations conferred a power on the SRA to extend the period of probation which, in fact, it did. The legal effect of that decision did not depend on notice of it being given to the applicant. The termination of the applicant's employment occurred during that extended period of probationary employment. Thus the issue that these proceedings raise is whether the maximum period was a reasonable one. We are, for present purposes, prepared to assume that the combined effect of the letter sent to the applicant and clause 8 of the Staff Regulations was the determination in advance of a maximum period of probation of twelve months. 18 In assessing whether the maximum period of probation was a reasonable one it is necessary to pay regard to circumstances which existed at the time the probationary employee in question was first engaged: see Potter v Australian Capital Territory (No 2) (1997) 74 IR 403 at 409. The purpose of probationary employment is to provide for a period in which an employee can be trained to do the work and in which an assessment can be made of his or her aptitude and capacity to do the work once the employee has been trained or partly trained: see Ryan v Furney's Stock Feeds Ltd (1996) 66 IR 298. That assessment is to be made before the employment becomes more permanent and, for present purposes, subject to the constraints on termination imposed directly by Division 3 of Part VIA of the Act deriving from the Convention Concerning Termination of Employment at the Initiative of the Employer: see Schedule 10 of the Act and, in particular, Art 2(2)(b): see Potter v Australian Capital Territory (1997) 72 IR 163 at 175. In the present case the applicant was engaged as a station assistant. The applicant sought to demonstrate in these proceedings that the qualifications necessary to fill the position of station assistant on a permanent basis would readily be obtained within six months and were obtained by him in that period. In an affidavit sworn by Mr John Larkins who is a Senior Industrial Officer, Corporate Services, of the SRA, the essential qualifications for a station assistant were identified slightly differently. Mr Larkins explained how, ordinarily, persons employed in the classification of station assistant receive an initial ten day period of induction training and subsequently are required to obtain further essential qualifications in the course of their initial employment. He said that operational requirements of the SRA are such that staff cannot always be conveniently released from their ordinary duties to conduct or to undertake required training. He also said that some employees encounter difficulties in attaining the required standards at their first attempt and, on the review of their probation, are usually allowed to continue to attend training when they can be released. He said that station assistants receive on the job training relating to station familiarization including customer service and other duties connected with station and train operations. He noted that, depending on individual circumstances, if, at the end of the initial six month probation period, an employee has not met the required standards, an extended period of probation is usually proposed and accepted instead of the peremptory termination of the probationary employment. He concluded his affidavit by expressing the following opinion: In my opinion it is necessary that a period of twelve months probation is available to the authority to enable a proper appraisal to be made of employees and their availability to satisfactorily complete courses of training particularly when such employees are assigned to work on railway stations. 19 Regulation 30B is designed to exclude the operation of beneficial legislation conferring rights on employees and the regulation should not be liberally construed: see Rose v Department of Social Security (1990) 21 FCR 241 at 244. Given the exclusionary effect of the regulation, the party asserting that it operates to deny rights otherwise generally available bears the onus of establishing its application in the case in question: see Nimmo v Alexander Cowan & Sons [1968] AC 107 at 130 and Vines v Djordjevitch (1955) 91 CLR 512 at 519 – 520 cf. Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249. That is, it is necessary for the SRA to establish affirmatively that a maximum probationary period of twelve months was reasonable in relation to the employment of the applicant when he was first engaged. As Wilcox CJ said in Nicholson v Heaven & Earth (1994) 1 IRCR 199, the judgment (on reasonableness) should be based on the proved objective facts, not on someone else's opinion. For a broadly analogous statutory provision that referred to "a reasonable period" which was to be determined as an objective fact: see Heiss v R (1992) 111 FLR 362 at 379. Wilcox CJ in Nicholson said that probably the most important consideration in determining what is a reasonable period will be the nature of the job and also said: "I suspect that an employer will rarely be able to justify a period exceeding two or three months, in the case of an employee to whom Part VIA now applies" (at 209). 20 In the present case the SRA has not demonstrated that a maximum period of twelve months probationary employment was, in relation to the employment of the applicant, a reasonable one. While that maximum period may be apt to deal with the most extreme situation confronting the SRA in relation to a probationary employee, which explains its prescription by clause 8 of the Staff Regulations, it has not been demonstrated that, in relation to the employment of the applicant, it was reasonable. There is no evidence to suggest that, at the time the applicant was engaged, he would, within six months, not have undergone the requisite training or not have been able to demonstrate whether he was suitable to be appointed permanently to the position of station assistant. Indeed, in our opinion, only rarely would a probationary period in excess of six months be reasonable for a comparatively unskilled position such as station assistant even allowing for the statutory rights of appeal and the like that follow permanent employment in the SRA. Accordingly, Reg 30B did not operate to deny the applicant the rights conferred by Part VIA and the powers of the Commission to remedy a contravention of that Part. There has been a constructive failure on the Commission's part to exercise jurisdiction: see Re Brideson; Ex parte Coldham (1989) 166 CLR 338 at 349 and, accordingly, a writ of mandamus should issue. 21 A period of probation cannot be presumed to be reasonable for the purposes of Reg 30B simply because it is prescribed by statute or regulation. See Potter No 2 at 409 where it was indicated that "a period of two years would ordinarily not be reasonable, in the case of a junior clerical position in the Australian Public Service", notwithstanding that a period of two years was made applicable by s 47 of the Public Service Act to all persons appointed, at whatever level, as officers under that Act. See also Fischer v Commonwealth (1995) 63 IR 401, 405. 22 The proceedings in the High Court were initiated by the applicant personally without legal representation. Commissioner Jones was not joined as a party. However, it is sufficient to treat the application as one for certiorari and mandamus directed to the Commission: see Re Boyne Smelters Ltd; Ex parte Federation of Industrial Manufacturing and Engineering Employees of Australia (1993) 177 CLR 446 at 451 and 471 and the order we make will be framed accordingly. It is unnecessary to quash the decision of the Full Bench refusing leave to appeal. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 24 March 1999 The appellant appeared in person. Solicitor for the First and Second Respondent: Australian Government Solicitor Representative for the Third Respondent on 2 March 1999: B Larkins, in-house industrial officer Counsel for the Third Respondent on 5 March 1999: R F Crow Date of Hearing: 2 and 5 March 1999 Date of Judgment: 24 March 1999