INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1519 of 1994 BETWEEN: MICHAEL ANDERSON Applicant AND APOLLO LIMOUSINES PTY LTD Respondent REASONS FOR JUDGMENT 29 March 1995 Judicial Registrar Fleming Findings Of Fact The Applicant, Mr Anderson ("Anderson"), commenced employment with the Respondent on 1 August 1994. Mr Anderson's commencement of employment occurred after he was "head-hunted" while he was working as a self employed contractor with Blue Circle. In addition to his work with Blue Circle he also conducted a limousine hire business and was a self employed limousine contractor. Mr Anderson was approached by an ex-director of the Respondent and he was "head-hunted" for the prospective position of General Manager for the Respondent. Anderson attended a meeting on 29 July 1994 at a coffee shop with Mr Angelo Drouvelakis ("Drouvelakis") and Mr Arthur Milonas ("Milonas") where there was a general and casual discussion about the position. At the coffee shop meeting the position of General Manager was discussed and the duties were described to Anderson. Anderson's evidence was that these duties included running the telephones; familiarity with computers; running the office; soliciting business and visiting clients; writing a good letter and producing monthly reports. The position also required someone who had a knowledge of the limousine and transport industry and a good knowledge of the Melbourne metropolitan area and Mr Anderson said that he had all those skills. I accept the evidence of Mr Anderson that at the meeting he understood his duties were not to include payment of accounts, running the bank account and paying drivers. Anderson gave evidence that Peter Beckwith was doing that. I also accept the evidence of Anderson that he was not given a code to access the computer and had to rely on the computer programmer to gain access. It was arranged at the coffee shop meeting for there to be a telephone conversation in the evening of 29 July 1994 between Drouvelakis and Anderson wherein a remuneration package was discussed and a further meeting was arranged for Sunday 31 July 1994 with all the directors. I accept the evidence of Mr Anderson that he prepared a document on 30 July 1994 which is dated 31 July 1994 and marked Exhibit A. Although it was his evidence that he showed this document to the directors at the meeting on 31 July 1994 I prefer the evidence of Mr Milonas and Mr Drouvelakis that he did not present this document on that date. It would have been quite simple for Mr Anderson to ask the directors to either initial or sign this document and Anderson had said that "there should be a letter from them on their letterhead coming back to me". The absence of such a confirmatory letter adds weight to the evidence of Mr Milonas and the directors present at the meeting on 31 July 1994 that no such document was handed over by Mr Anderson. Mr Anderson gave evidence that if he was appointed he would not have presented this letter to the directors at the meeting on 31 July 1994. On 31 July 1994 at the meeting which was attended by Anderson and the directors of the Respondent I accept the evidence that Anderson said "it would take a settling in period of at least three months, that as a result of the previous manager leaving that files would have to be checked and thorough investigation of the company's activities would take some time". The Respondent tendered its minute book as Exhibit I. In the entry dated 31 July 1994 there appears the following extract: "New Manager - advertise The company to advertise in "The Age" for the position of General Manager under a trial period basis, with the intention of securing the position upon success of the trial period". And later in the same minute: "General Manager - interview The directors interviewed with Mr M. Anderson the position of manager. After long discussion Mr Drouvelakis moved that Mr M. Anderson is to be employed by Apollo Limousines, seconded by Mr S. Paspaliaris for a trial period of 3 - 4 weeks upon successful completion of trial period. Mr Anderson shall be employed as manager of Apollo Limousines - CARRIED - Conditions of employment Upon the success of the trial period Mr Anderson shall receive an annual salary of $30,000.00 gross with a review in three months time." Thereafter Mr Anderson commenced working on 1 August 1994 performing the duties referred to above. On 19 August 1994 conflicting evidence was given about the way Mr Anderson was dismissed. Mr Anderson gave evidence that there was a heated argument between the directors. As Mr Anderson cannot speak Greek and the argument is alleged to have taken place in Greek I prefer the evidence of Mr Milonas that there was no such argument. Mr Anderson may have overheard a discussion in Greek but not much weight attaches to this evidence in any event. Mr Anderson's evidence is that on 19 August 1994: "just after lunch at about 3:30pm approximately that meeting was finished and Arthur (Milonas) asked to see me and we withdrew to the computer room which was now empty. He said to me it is my unpleasant duty to inform you that we are terminating your services and I was absolutely flawed. I just did not have any indication there was any discussion or unrest or unhappiness in regard to my performance and I was literally stunned." Anderson gave evidence there was no criticism of him either officially or unofficially and "that is why it literally flawed me". Mr Anderson then went home and later he rang Mr Milonas and told him that he did not consider himself dismissed and that he would go to work on Monday morning. Mr Anderson gave evidence that he did not meet Mr Milonas on Monday morning. Mr Milonas' evidence in relation to the dismissal was that on 19 August 1994 Mr Milonas invited Mr Anderson to the coffee shop where the first meeting took place. Mr Milonas said that Mr Anderson started to talk about what he was going to do in the company whereupon Mr Milonas stopped him and told him then that he had decided to terminate the services of Mr Anderson because in the three week trial or probation period the directors had the view that Mr Anderson was not good enough for the business and that he could not do the duties that he had said he could do at the initial meeting and that it was better for all parties if they parted ways. Mr Milonas gave evidence that he then presented a cheque to Mr Anderson for one weeks pay whereupon Mr Anderson said "that's okay" and left. Mr Milonas gave evidence that the dismissal meeting took approximately 20 minutes. Mr Milonas said that the reason Mr Anderson attended work on the following Monday was that he wanted to get the dismissal cheque correctly signed as it had not been properly signed on 19 August 1994. Mr Milonas denied that Mr Anderson had said that he did not consider himself dismissed or words to that effect. I prefer the evidence of Mr Milonas and generally apprehend that he was a more credible witness than Mr Anderson. I accept Mr Anderson's evidence where he stated that he had a good relationship with Mr Milonas. Regulation 30B Regulation 30B(1)(c) states: "30b (1) Subject to sub-regulation 2 for the purposes of Section 170CC of the Act the following employees are excluded from the operations of sub divisions b, c, d & e of Division 3 of Part V of the Act. (c) An employee serving a period of probation or a qualifying period of employment, if the duration of the period was a maximum duration of the period as the case required: (i) is determined in advance; (ii) is reasonable having regard to the nature and circumstances of the employment." Exhibit I is the Minute Book and it refers to the Directors' meeting wherein the General Manager was interviewed. The Minute Book records the interview and sets out the conditions of employment: "upon the success of the trial period (referred to as three to four weeks in the foregoing paragraph) Mr Anderson shall receive an annual salary $30,000.00 gross with a review in three months time." There was no evidence called to suggest that this Minute Book did not reflect what occurred at the meeting on 31 July 1994. Mr Kenyon persuasively and articulately cross‑examined the directors in relation to the note taking at these meetings however he was unable to establish that this exhibit was either invented after the meeting or was inaccurate or that it falsely reflected what occurred at the meeting. I find therefore that the period of probation was determined in advance by the directors at least on 31 July 1994 and there is also some evidence to suggest that it may have been discussed briefly on 29 July 1994, however I make no finding in relation to that earlier meeting in the coffee shop on 29 July 1994. Further evidence that supports the Respondent's contention that the probationary period was determined in advance is the fact that Mr Anderson was not given, on his own evidence, authority to pay the accounts, pay wages, run the banking accounts and also he was not given the computer code. Mr Anderson's own evidence was that he would not have presented the letter, marked Exhibit A, at the meeting on 31 July 1994 had he not been appointed. That fact that he did not hand that letter to the Directors at the meeting on 31 July 1994 adds weight to the submission that he was not appointed as a permanent employee on that date but only on a trial basis. Mr Anderson gave evidence that had he tendered that letter he would have expected it to be responded to on letterhead. As this was not done it enhances the evidence of the Respondent that the letter was never actually handed over on 31 July 1994. I find that Mr Anderson did not give notice to Blue Circle prior to commencing with the Respondent. Mr Anderson's evidence in regard to his employment with Blue Circle was inconsistent and unreliable. I prefer the evidence of Mr Kennedy and Ms Green that Mr Anderson's contract with Blue Circle continued throughout his employment with the Respondent and that he did not finish up with Blue Circle until 8 November 1994 which was almost three months after the day of dismissal. This supports my finding that the employment period was a probationary one. Mr Barton made submissions as to the reasonableness of the period of probation. I find that three or four weeks was a reasonable period. Given Mr Anderson's experience in the industry, any longer would have been unnecessary and any shorter would have been unsuitable. The Directors of the Respondent would have been able to judge within that three to four week period whether or not Mr Anderson had the attendant skills they required and whether or not they could all work together. Having determined that the period of employment was for a probationary period and having found that it was within that period that the employee was dismissed this Court has no jurisdiction pursuant to the Regulations and accordingly the Application is dismissed. Order Of The Court 1. Application is to be dismissed. I certify that this and the preceding seven (7) pages are a true copy of the reasons for judgment of Judicial Registrar Fleming. Associate: Dated: Solicitors for the Applicant: Maurice Blackburn & Co. Counsel for the Applicant: Mr N. Kenyon Solicitor for the Respondent: Alfred L. Abrahams & Co. Counsel for the Respondent: Mr P. Barton Dates of hearing: 8 & 9 December 1995 and 14 February 1995 Date of Judgment: 29 March 1995 CATCHWORDS INDUSTRIAL LAW - Termination of employment - probationary period. Industrial Relations Act 1988, s.170CC, Regulation 30B, s.170DC, 170DE and s.170EE. Lane -v- Arrowcrest, (1990) 27 FLR 427 MICHAEL ANDERSON -v- APOLLO LIMOUSINES PTY LTD NO. VI 1519 of 1994 Before: fLEMING JR Place: MELBOURNE Date: 29 MARCH 1995 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1519 of 1994 BETWEEN: MICHAEL ANDERSON Applicant AND APOLLO LIMOUSINES PTY LTD Respondent MINUTES OF ORDER 29 March 1995 Judicial Registrar Fleming THE COURT ORDERS THAT: 1. Application is to be dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.