Hans Stromer v Roof Seal Pty Limited [1995] IRCA 566

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2897 of 1995 B E T W E E N: Hans STROMER Applicant A N D ROOF SEAL PTY LIMITED Respondent REASONS FOR DECISION 17 October 1995 PARKINSON JR This is an application made pursuant to S170EA of the Industrial Relations Act 1988. The applicant was employed by the respondent on 1 May 1995 and his employment was terminated on 3 May 1995. The respondent submits that the applicant was on a trial period and consequently Regulation 30B operates to preclude a remedy in this court. The applicant denies that he entered the employment with knowledge of a probationary period. The evidence of Mr Les Brough was that he informed the applicant of the relevant probationary period at the interview for employment on 22 April 1995. The respondent relied upon evidence from Mr Brough as to applicable probationary periods in the workplace and a history of such. This is another case where there is no documentation to establish that there was a probationary period determined in advance of the employment. It is implicit in the Regulation that the applicant was aware of, or ought reasonably to have been expected to be aware of the probationary period applicable. The applicant points to his steady and regular employment at the time of the employment with the respondent and says that it would be unlikely that he would have left such employment for the purpose of taking a position with the respondent which was precarious. I would normally be inclined to accept such an explanation as most likely to reflect the accurate and realistic position, however it is clear that the applicant is a forceful person and confident in his own abilities to perform the job. In this case, I do not think he would have given the probationary period a second thought when he accepted the employment with the respondent. However, in circumstances where there is disagreement in the oral evidence as to the terms of the agreement, it is appropriate to refer to the actual documentation in existence at the time of the appointment. The applicant was given no letter of appointment, and the job description (Exhibit A1) provided at the time of interview makes no reference to there being a probationary period, nor does any other document of the company which is in evidence as having been in existence at the time of the applicant's employment and termination of the employment. The respondent points to the letter of appointment of the sales manager, Mr Sean Tanner, Exhibit R2, and the probationary period set out therein. However, this document was created after the termination of the applicant's employment and its very existence in relation to that employee begs the question as to why the applicant did not receive such a letter. Further, if that document is evidence of anything, it is evidence of a probationary period being determined after the employment was entered into. It is not evidence of it being determined in advance. The applicant is pursuing a remedy provided pursuant to legislation which has been described in various decisions of this court as being beneficial legislation. See in this regard: Grout v Gunnedah Shire Council (1994) 125 ALR 355 at 372 per Moore J. These authorities suggest that in view of the nature of the legislation, the right of a person to seek a remedy should not be lightly removed or denied. In the circumstances, having regard to the lack of documentary evidence, I am not satisfied that there was a probationary period applicable to the applicant's employment. I am not satisfied that he was a probationary employee. The respondent conceded that were I to find that there was no probationary period, then there would be a contravention of S170DE(2) and S170DC of the Act. The evidence was that the respondent was concerned as to the manner in which the applicant performed his duties, particularly his supervisory duties, in relation to the tradespeople employed or engaged by it. I am satisfied that there was sufficient material on which to base such concern, and that the applicant's manner of dealing with those people, particularly in the circumstances of the first few days of his commencing the duties of operations manager, was destined to create problems and to get off-side the people from whom it was necessary to gain and maintain co-operation. In my view the respondent had in this respect a valid reason for concern as to the applicant's work performance and thus a valid reason for the termination of the employment. However, there were no steps taken by the respondent to clearly identify the concerns to the applicant, nor was there at any time prior to the termination of the employment any warning of such a possibility. Whilst it is apparent that Mr Brough was disappointed by the performance of the applicant, he took steps to sack him in much the same manner as he took steps to engage him, with little pre-thought or proper investigation. The reality is, however, that despite the misjudgment as to the suitability of the applicant, he did hire him, and, as a consequence of being informed he was employed, the applicant gave notice at his place of employment, leaving a job he had held for approximately five years. He also gave notice on a cleaning contract held with the City of Bayside as a result of anticipating that those contract hours and his full time hours of work would no longer be compatible. The position of the applicant was affected to his detriment as a result of entering into the employment with the respondent. The applicant's evidence was that he performed his duties in a manner which he believed was expected of him. Employment establishes a relationship which is not disposable at the whim of the employer without regard to the interests of the employee. In this case there was a failure of the respondent to accept or recognise any responsibility for the applicant's situation or circumstances, and a complete failure to take any steps to remedy the areas of concern to the respondent with the applicant's work performance. Rather, the most convenient course to the respondent was adopted, that being the termination of the applicant's employment and a payment of $2,000.00 upon termination. In the circumstances of the applicant having left regular ongoing employment for the position with the respondent, some consideration ought to have been given by the respondent to alternatives to immediately terminating the applicant's employment. This did not occur. The applicant was given no warning. His employment was terminated effective immediately. Having regard to the evidence of the applicant that he did not desire reinstatement,together with the fact that the applicant has now obtained alternative employment, I have determined that it would be impracticable to reinstate at this point in time. I have considered a number of factors in determining the appropriate amount of compensation to be ordered, including the likely length of the ongoing employment but for the termination. In this regard I am not satisfied that, having regard to the concerns as to the applicant's relationship with the tradespeople, that the employment would have continued for a significant period. I have had regard to the duration of the engagement and the length of time during which the applicant was unemployed, together with the previous employment and cleaning contract forgone, although this latter matter was of minor significance, and I have determined that having regard to the $2,000.00 payment upon termination already made, an appropriate amount of compensation is a further $4,892.00. This amount is equivalent to a period of eight weeks notice less the amount of 2,000.00 already paid. I have calculated this amount by reference to the annual salary of $ 44,800.00. The orders of the court shall be: 1. That the respondent pay to the applicant compensation in the sum of $4,892.00. 2. That the time for payment is 21 days from the date of this order. I certify that this and the preceding five (5) pages are a true copy of the reasons for decision of Judicial Registrar Parkinson. Associate: Dated: 17 October 1995 APPEARANCES Solicitors for the applicant: Purcell Balfe & Webb Counsel appearing for the applicant: Mr J Bourke Solicitors for the respondent: J A Fillmore & Co Counsel appearing for the respondent: Mr T Hurley Dates of hearing: 28 August and 18 September 1995 Date of judgment: 17 October 1995