Gosbell v Kinderlea Childcare Centre Pty Ltd [1996] IRCA 422

DECISION NO: 422/96 CATCHWORDS

INDUSTRIAL LAW - claim of UNLAWFUL TERMINATION - PROBATIONARY EMPLOYMENT - unqualified child-care worker - whether period of three months was reasonable.

Industrial Relations Act 1988 ss170CC Industrial Relations Regulations Reg.30B

Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199; Sangwin v Imogen Pty Ltd (trading as Carleton Custom Upholstery) (von Doussa J, 8 March 1996, unreported); Puccio v Catholic Education Office and Anor. (von Doussa J, 17 May 1996, unreported); Ryan v Furneys Stockfeeds Ltd (Beazley J, 2 August 1995, unreported).

GOSBELL v KINDERLEA CHILDCARE CENTRE P/L VI95/5985

Before: MURPHY JR Place: MELBOURNE Date/s of hearing: 30 AUGUST 1996 Date of judgment: 30 AUGUST 1996

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY

VI95/5985

BETWEEN:

LEAH JANE GOSBELL Applicant

AND

KINDERLEA CHILDCARE CENTRE PTY LTD Respondent

BEFORE: MURPHY JR PLACE: MELBOURNE DATE: 30 AUGUST 1996 MINUTES OF ORDERS

THE COURT ORDERS THAT: 1. The application is dismissed.

Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY

VI95/5985

BETWEEN:

LEAH JANE GOSBELL Applicant

AND

KINDERLEA CHILDCARE CENTRE PTY LTD Respondent

BEFORE: MURPHY JR PLACE: MELBOURNE DATE: 30 AUGUST 1996 REASONS FOR DECISION Delivered ex tempore - revised from the transcript The first issue to be determined in these proceedings is whether the applicant was excluded from the operation of the Industrial Relations Act ("the Act") by s170CC because she was serving a period of probation at the time her employment was terminated (Regulation 30B). The respondent is a child care centre that opened in August 1995. The Director of the respondent, Ms Markwell, gave evidence that in January 1995 she set about building and opening a child care centre and joined the relevant industry association. She ascertained at that time that staff in the industry are the subject of a three months' probationary period and she decided that staff at her centre when it opened would be also subject to a three month probationary period. Mrs Markwell interviewed the applicant along with a number of other applicants for positions, in May. Prior to that the applicant had some minor experience in child care but was at the time unqualified. Also present at the interview was a friend of Ms Markwell's, a physiotherapist, Ms Falkiner. Ms Markwell gave evidence that at the interview she told all the interviewees, including the applicant, that staff were first to be offered casual part-time positions until child numbers at the centre built up, and then they would then be offered permanent positions on a three months' probationary period. Ms Falkiner's evidence was that Ms Markwell firmly indicated to the candidates that employment would be offered on a three months' probationary period. The centre opened on 7 August and a couple of days later Ms Markwell called the applicant and offered her casual work on a day to day basis. By mid-September the applicant had worked 4 days per week from 6.30 am till 12.30 p.m. for the previous 2 weeks. Ms Markwell then offered the applicant a permanent position for 4 days per week over that shift. The position was the subject of 3 months' probation. About four other staff were permanently employed on that date on the same basis. Ms Markwell's daughter, Ms Sarro, gave evidence that she was present when the conversation occurred in which the applicant was offered this position. Her evidence was that the question of probation was raised at that meeting. Further the employment terms were reduced to writing a few days later. Ms Sarro remembers seeing a letter that was prepared dated 20 September outlining the employment terms. A letter was in evidence (Exhibit R1), which confirmed an offer to the applicant of a permanent position on three months' probation; the applicant denied receiving that letter. The applicant said she was told by Ms Markwell at some stage in mid-September that she was on three months' probation but she did not take it seriously and thought it was a joke. In October Ms Markwell was on holidays and the applicant sought a reference for a bank loan. Ms Markwell provided one that referred to the fact that the applicant at that time was on a period of probation. The letter (Exhibit R2) uses virtually identical language to the letter of 20 September. The applicant did not query that letter with Ms Markwell after she returned from holidays. Findings. This aspect of the proceeding must be determined on a sharp conflict of evidence. The weight of the evidence is in favour of the respondent on the question of probation. While the oral evidence supporting Ms Markwell's version comes from her daughter and her friend it is corroborated by two contemporaneous documents. Further, in preferring the respondent's version of events, the Court notes that Ms Markwell said she was relying on advice in establishing her new business venture. Her state of mind on that issue is important, particularly given that it is corroborated by the other witnesses and the two letters. It is more likely that if she had advice that the industry practice was three months' probation for staff that she would follow that advice in establishing her business venture and employing staff. Finally, on a comparison of the applicant and the other three witnesses I prefer to accept the evidence of those witnesses on this issue over that of the applicant. My primary reason for this, apart from the fact of the documentary evidence supporting the respondent's witnesses, is that on a number of matters the respondent's witnesses were not challenged with the applicant's account when they gave their evidence. Further, aspects of her evidence and, in particular, attempts that she made to contact Ms Markwell on 30 October, lack credibility. I am therefore satisfied that the applicant was told in the interview in May that her position would be on probation for three months. It was confirmed that any permanent position with the respondent would be on probation for three months. This was orally confirmed on 15 September and by letter to her dated 20 September. It was further confirmed in the letter of 20 October. The respondent has therefore made out the first aspect of a requirement of probation, that it be determined in advance (Reg.30B(1)(c)(i)).. The next issue is whether the period of probation was reasonable (Reg.30B(1)(c)(ii)). This requires a judgment of whether it is reasonable in all the circumstances, given the nature of the position. See Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199 at 208. Here the position that the applicant held is an important one in the community. The importance of the obligations of organisations with a duty of care for persons in their care has been confirmed in two recent decisions of the Court: Sangwin v Imogen Pty Ltd (trading as Carleton Custom Upholstery) (von Doussa J, 8 March 1996, unreported) and Puccio v Catholic Education Office and Anor. (von Doussa J, 17 May 1996 unreported). In Ryan v Furneys Stockfeeds Ltd (Beazley J, 2 August 1995, unreported), the court said that "a period of three months probation is not unusual in this country in many forms of employment including those which do not involve a great deal of skill". I am satisfied here that the period of three months was reasonable for the following reasons. The respondent had only just established its business. Ms Markwell was thus inexperienced in her position as the director of a child care centre, and in the assessment of staff. Next, the applicant was unqualified. She held no formal training, such as a 12 month TAFE course, as applied to some other staff in the centre. The licence requirements of the centre are important as the staff must be reliable to ensure that the centre is properly staffed. Whether a staff member is reliable is a matter that will take some period to assess. The parents are also entitled to expect that staff have been the subject of proper scrutiny before they are given full-time positions. Further, a period of probation is to allow scrutiny and then improvement and then confirmation of any position. I note in this regard that the staff guidelines in evidence (Exhibit R3), provide that staff were to be the subject of a written assessment every 10 weeks. Having regard to all these considerations, I am satisfied that the applicant is excluded from the operation of the Act because the period of probation was reasonable, having regard to the nature and circumstances of the employment. Having made these findings, it is unnecessary for me to consider the substantive merits of the application. I propose to dismiss the application. I certify that this and the preceding four (4) pages are a true copy of the reasons for decision of Judicial Registrar Murphy as recorded in the transcript and revised by the Judicial Registrar.