Norval v Plan International Australia [1996] IRCA 633

Federal Court of Australia

Document text

DECISION NO:633/96 CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - whether VALID REASON for termination upon expiration of probation period - procedural breach - COMPENSATION. Workplace Relations Act 1996 (C'th) (formerly Industrial Relations Act 1988) Ss 170DC, 170DE, 170EA Nicolson v Heaven and Earth Gallery (1994) 126 ALR 233 STEVENS PAUL NORVAL v PLAN INTERNATIONAL AUSTRALIA VI 1716 of 1996 Before : BOON JR Place : PERTH (Heard in Melbourne) Date of Judgment : 23 DECEMBER 1996

IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) VICTORIAN DISTRICT REGISTRY ) VI 1716 of 1996 B E T W E E N: STEVENS PAUL NORVAL Applicant A N D: PLAN INTERNATIONAL AUSTRALIA Respondent MINUTE OF ORDER 23 DECEMBER 1996 MELBOURNE BOON JR THE COURT ORDERS AND DECLARES THAT: 1. The respondent, in terminating the applicant's employment, breached the provisions of section 170DC of the Workplace Relations Act 1996. 2. The respondent pay to the applicant the equivalent of two weeks' wages by way of compensation, such payment to be made by 10 January 1997. 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 ) VICTORIAN DISTRICT REGISTRY ) VI 1716 of 1996 B E T W E E N: STEVENS PAUL NORVAL Applicant A N D: PLAN INTERNATIONAL AUSTRALIA Respondent REASONS FOR DECISION 23 DECEMBER 1996 BOON JR This is an application under section 170EA of the Workplace Relations Act 1996. The applicant, Stevens Norval, is seeking relief arising out of the alleged unlawful termination of his employment by the respondent, Plan International Australia. Mr Norval alleges that the provisions of the Act were breached in a number of ways. One of the central issues in the case was whether or not Mr Norval's employment was subject to a three month probationary period. Plan International Australia alleges that there was a three month probationary period determined in advance and says that although regulation 30B of the Industrial Relations Regulations doesn't apply, and that this court does have jurisdiction, as the termination occurred several days after the expiry of the alleged probationary period, the termination of Mr Norval's employment should be considered in light of the expiration of the probationary period. Mr Norval denies that his employment was subject to a probationary period. Mr Norval's primary contention is that Plan International Australia breached section 170DC of the Act in that he was not given an opportunity to respond to allegations against his conduct or performance before his employment was terminated. Secondly, it is said by Mr Norval that Plan International Australia breached section 170DE(1) of the Act in that there was no valid reason, connected with his capacity or performance or the respondent's operational requirements, for the termination. Plan International Australia denies that it breached the provisions of the Act and says that Mr Norval's employment was terminated as a result of Mr Norval's incapacity or incompetence at his job and his inability to relate to the people with whom he worked. It is said by Plan International Australia that the termination occurred in the context of the expiry of the three month probationary period. Plan International Australia says that in the event that a breach of the Act is found to have occurred, this court should in any event not grant a remedy to Mr Norval because of the circumstances of his termination and also because of Mr Norval's behaviour subsequent to the termination. BACKGROUND Mr Norval is a 31 year old computer scientist. He has held several positions in the computer science field but was unemployed for some period before his employment with Plan International Australia. His marriage broke up some time ago and his former wife has custody of their young daughter. His daughter lives in Canberra and Mr Norval only sees her for a few days every three months. Mr Norval's evidence was that he experienced emotional problems following the disintegration of his marriage. The significance of this personal information will become obvious further on in these reasons for judgment. Plan International Australia is an international aid agency operating in 53 countries around the world. Its head office is in the United Kingdom and its Australian office operates from Melbourne. Apart from its fundraising activities Plan International Australia is outspoken on human rights issues. Ms Trisha Caswell is the Australian executive director of Plan International Australia; she commenced in this position on 1 October 1995. Ms Caswell was previously the director of the Australian Conservation Foundation and before that she was an elected officer of the Trades and Labour Council in Victoria. Ms Caswell gave evidence that the past year has been a fairly difficult one for Plan International Australia in that there have been major changes to the organisation. The Melbourne office employs 21 people, three of whom are male and the rest of whom are female. Ms Caswell says that the computer system is very important to the organisation in that the use and maintenance of the data base contained on the computer is vital to its fundraising activities. The data base consists of the names of current and potential donors and their details. The computer system is also important in Plan International Australia's relationship with the rest of the organisation in that it provides a means of information exchange. The position of Systems Administrator with Plan International Australia became vacant at the end of 1995. The court heard evidence from Mr Hugh Martin, the former finance manager with Plan International Australia for 14 years. Mr Martin produced a job description for the position of Systems Administrator which stated that the position was a maintenance and user assistance function. The document stated that the responsibilities and duties of the position included day to day network maintenance; user training and support; installation of updates; problem reporting and general house-keeping; production of reports and data from the data base; software development follow-up; analysis of user requirements and development of solutions; and effective liaison with United Kingdom Head Office Information Systems Technology Department. Mr Martin said that he contacted Mr Trevor Cooke, the founder of a computer staffing agency and instructed him that Plan International Australia was seeking a Systems Analyst. Mr Martin provided Mr Cooke with a copy of the job description. Mr Cooke gave evidence that he spoke to Mr Norval about the position and either gave him a copy of the job description or went through a copy of it with him. Mr Cooke said that in his discussions with Mr Norval the emphasis was on the technical requirements of the job. Mr Cooke said that in hindsight they may well have placed stronger emphasis on "people" skills. Mr Cooke sent Mr Norval to Plan International Australia for an interview. Mr Cooke said that before he did so, he told Mr Norval that the position was to be a provisional appointment with a probationary period of three months. Mr Martin and Mr Peter Murphy, a computer consultant who sometimes did some work for Plant International Australia, interviewed Mr Norval. Mr Martin said that he gave Mr Norval a copy of the job description at the interview. He said that he told Mr Norval that there was a three month probationary period and that Mr Norval didn't disagree with that. Mr Norval was appointed and started work at Plan International Australia on 10 January 1996. Mr Martin gave evidence that he prepared a letter of appointment dated 10 January 1996 setting out the conditions of his employment, including the fact that he would be on an initial probationary period of three months. The letter included another copy of the job description. Mr Martin said that he left for England on 12 January 1996 and took the appointment letter with him to discuss it with Peter Montgomery, of the English office, so that the head office would be aware of Mr Norval's job description when he arrived for training in England at the end of January. Unfortunately, Mr Martin forgot to discuss the matter with Mr Montgomery and forgot about the existence of the letter until he came upon it some time in April when he started gearing up for the end of financial year accounts. When Mr Martin discovered the letter he handed it to Mr Norval who made no comment about it except that it was a bit late. Mr Martin stressed however that the contents of the letter do not present any new information in that the conditions of the job and the position description had already been discussed with Mr Norval prior to him accepting the position. In January Mr Norval went to England for training at the head office. He was away for a few weeks. During that time he was trained in relation to the installation and management of a new e-mail system. When Mr Norval returned to Melbourne he installed the system and gave a half day seminar to the other staff at Plan International Australia on how to use the new system. The court heard evidence from various witnesses that it was apparent soon after Mr Norval returned to Australia that he had problems relating to the other staff members. Ms Jennifer Rice gave evidence that she was employed by Plan International Australia from 1989 until April 1996. Her last position at Plan International was that of marketing assistant. Ms Rice said that she had a lot to do with getting information from the computer system for Plan International's marketing campaigns. As a result, she often had to liaise with Mr Norval. Ms Rice said that she was the liaison between the marketing manager and the computer department. Ms Rice said that from the time Mr Norval started until she left Plan International Australia the relationship between them came progressively worse. Mr Norval became more and more unwilling or incapable of providing the information Ms Rice wanted. Ms Rice gave evidence that when she tried to address problems with Mr Norval he became aggressive with her. He invaded her personal space and raised his voice at her a lot. Ms Rice said that because she was not on a high enough level of management to be taken seriously by Mr Norval, she was not treated with respect by him. The court also heard from Ms Anne Pavey, the marketing manager with Plan International Australia since 18 March 1996. Ms Pavey said that on occasions she witnessed Mr Norval being rude and aggressive to the female staff members. Mr Norval was not rude to her because she was in a management position. Ms Pavey said that soon after she arrived she understood that there were some problems relating to communication between the computer department and other sections of Plan International Australia. She arranged for Miriam Potter, a distant relative and friend of hers, to come in on an unpaid basis for three days. Ms Potter is a technical analyst who has worked as a consultant designing information products for bank traders in secondary markets. Her role at Plan International Australia was to evaluate the functional capabilities of the computer system and assess how it might work better. She started work on 22 March 1996 and stayed for approximately five weeks. After the initial few days of unpaid work it was decided that Ms Potter had a useful role to play in assessing areas of Plan International Australia's operations which had problems needing to be addressed. She was then employed as a consultant and was paid. Ms Potter said that her only mandate was as a trouble shooter and creative thinker. Ms Potter said that Mr Norval immediately appeared to regard her as a threat to him and as undermining his own position. She said that his attitude to her was not professional but was extremely personal. He was very aggressive to her and in the open office he would seek her out and in full view of everyone would say that he would find out why she was hired and suggested it was on the basis of nepotism. Ms Potter said that she found Mr Norval to be a menacing presence. She said that his attitude to the users in the organisation, namely the other staff members, was that he had a limited tolerance of those who were not computer literate. Ms Potter said that this was of great concern because it was vital for someone in his position to be able to define the requirements of the users of the system. She said that the Systems Analyst needed an open and encouraging attitude to the other staff members so that their needs and technical abilities could be determined. Ms Potter said that Mr Norval repeatedly said that the users were "all idiots". Ms Potter said that Mr Norval kept making reference to the enormous amounts of money consultants earn and she told him that she felt that that was unprofessional. Ms Potter denied that she was there to undermine Mr Norval's position and said that she was there to deal with several groups of people and put things together by looking at the "big picture". Ms Caswell gave evidence that she became aware that Jennifer Rice did not like dealing with Mr Norval. Ms Rice indicated to Ms Caswell that she was unhappy with his behaviour towards her. During March, Ms Caswell received a number of other complaints about Mr Norval's behaviour and his interpersonal relationships. Ms Caswell said that it appeared that the whole place was "disrupted and nervous". Once Ms Potter was hired, Mr Norval appeared to be paranoid about her. Ms Caswell said that she told him that this was totally unnecessary but he did not accept it. She said that she counselled him a number of times about his behaviour to other staff members but none of the discussions seemed to affect his behaviour at all. Mr Norval himself gave evidence that he has in the past had problems with interpersonal relationships. He made some reference to his mother being the cause of his problems in that regard. He admitted that he was counselled about his behaviour by Ms Caswell and that his behaviour towards other people did not change after the counselling. He admitted that he was probably paranoid about Ms Potter's presence at the organisation. He said that he saw Ms Potter's resume and it did not include network analysis as part of her experience. Mr Norval said "I thought it strange that a woman - person - would come in without that experience and be given the task of looking at the whole information system". He did not think that her qualifications would assist him. Mr Norval's own evidence in relation to his interpersonal relationships indicated that he appeared to have a particular problem relating to women and seemed incapable of changing his behaviour despite counselling. Secondly, his attitude towards Ms Potter in my view totally missed the point in that it was not up to him to decide whether she could be useful to the organisation. I am satisfied that he consistently refused to cooperate with Ms Potter. Further, I am satisfied that his attitude to his fellow workers, not just Ms Potter and Ms Rice, was such as to cause problems for the organisation. Evidence was also given about Mr Norval's alleged incompetence. Ms Rice said that Mr Norval was either unwilling or incapable of providing her with the marketing information she needed. She started off requesting information verbally but soon started to write down the instructions. Even then, according to Ms Rice, the requested information was not provided. As an example, Ms Rice said that the respondent wanted to conduct a raffle as a fundraising venture and wanted information regarding the numbers of people they could send raffle tickets to. The information provided by Mr Norval was incorrect and when she tried to address the problems regarding his program, Mr Norval became aggressive to her. In the end the raffle could not go ahead because she was unable to obtain the information she needed. Although Mr Norval said that the computer system was to blame for the incorrect information, Ms Rice said that the problems she encountered were a result of human error in that the instructions given to Mr Norval were not followed. Ms Rice acknowledged that she was not a computer programmer herself. Mr Norval's evidence was that from the time he started work with the respondent he inherited a computer "nightmare". He said that there had been no maintenance of the system for two years and he found lots of documents in the system dating back to 1986. As a result the system was very slow. He said that some aspects needed urgent attention and he spent a lot of time going through documents such as manuals and throwing things out which had been superseded. He said that there was a problem with a tape backup unit and he had to arrange to have it fixed. He said that the computer file server had a lot information almost ten years old on it. It was common ground that a new file server was installed in July, after Mr Norval's termination. It appears, however, that the file server only affected the speed at which the computer provided information and not the accuracy of the information. Mr Norval's main contention was that by the time of the termination of his employment he hadn't had enough time to fully analyse the computer system. He said that he had made this plain to Ms Caswell and Mr Martin. Mr Norval's evidence is that it is a complex system with a number of data bases. He said that there were probably over 150 individual program files, a lot of which were generated by the international headquarters. Mr Norval made it clear that he hadn't had enough time to familiarise himself with the system when he wrote a memo to Ms Caswell on 19 March 1996 in which he suggested that his position be upgraded to that of manager. Mr Norval said that this was in line with similar positions in the respondent's organisations in other countries. Ms Caswell's reaction to this proposal was that it was far too premature and showed a lack of understanding on Mr Norval's part of the priorities which he should set himself. Ms Pavey expressed the opinion that the more she became involved in understanding the problems in the computer department, the more she understood that it was not the system that was at fault but Mr Norval's incompetence in using it. Ms Pavey admits that she does not have technical qualifications in computers but said that she is a very practical person and has, since Mr Norval's departure, been able to use the computer system with very few problems. She said that since she has been using the computer herself she has found it to be quite basic. Ms Pavey said that since the respondent employed a new Systems Analyst, the computer department has gone from a situation of chaos to running smoothly. THE MOTHER'S DAY CAMPAIGN Evidence was given that Plan International Australia decided some time in March that it would run a marketing campaign in time for Mother's Day. The campaign would be aimed at women sponsors and would cost Plan Australia $60,000 to run. There was to be a mail out of information to 15,000 people. Mr Norval was asked to provide a list of 15,000 names, addresses and postcodes of people who were not current sponsors. Ms Pavey told Mr Norval what information was required. She says she discussed it with him prior to a meeting with the telemarketers. It was put to Ms Pavey that it was only on the Thursday before Easter, 4 April 1996, that she gave Mr Norval the instructions in detail. Ms Pavey said that this was untrue and that she had discussed her requirements before that date. Mr Norval came in to work on Easter Monday and started working at providing the requested information. The first program given to Ms Pavey was incorrect. Ms Pavey said that she told Mr Norval repeatedly that he had to check the information that he provided to her but despite this he kept giving her incorrect lists which he appeared not to have checked properly. Over the next few days Mr Norval worked long hours trying to provide the information Ms Pavey wanted. Seven different check lists were provided to the court, representing seven different attempts Mr Norval made to provide the information. Mr Norval himself said that he probably made more attempts than those seven check lists. What happened next was in part due to an unfortunate combination of circumstance. On Wednesday afternoon Mr Norval collected his daughter from the airport. She was to stay with him for a few days. He had prearranged leave for Thursday and Friday, 11 and 12 April. Ms Pavey said that each time Mr Norval provided her with what was supposed to be a complete list of 15,000 names she found that the information was incorrect. As Mr Norval was the only person with computer expertise in the organisation Ms Pavey had no alternative but to call on him to come and rectify the mistakes. Mr Norval's evidence was that he wanted to spend time with his daughter whom he hadn't seen for three months and that was why he had prearranged leave for the Thursday and Friday. He worked very long hours and his leave kept on being interrupted by Ms Pavey who called him into the office. Mr Norval admitted that he made some mistakes in punching in incorrect keys on several occasions. The matter came to a head on Saturday, 13 April 1996 when Mr Norval was once again contacted by Ms Pavey who had attended the office on Saturday afternoon and found that the information left for her was incorrect. There was an argument between the two of them over the telephone. Ms Pavey said that she felt very sorry for Mr Norval because he had his daughter with him at the time. She understood his problems, but as he was the only person within the organisation who could do the job; as it was costing the organisation $60,000 to run the campaign; and as there were strict time limits involved because the information had to be sent out well before Mother's Day, as it was a Mother's Day campaign, she had no alternative but to interrupt Mr Norval at home. In the end Ms Pavey called in Mr Montgomery, the outside consultant, and together he and Ms Pavey finished the task. THE TERMINATION Ms Caswell, the executive director of Plan International Australia, left on an overseas trip some time towards the end of March. In her absence Ms Pavey became the acting executive director. Ms Pavey said that she was aware that Mr Norval was on probation because he talked about it constantly. He kept asking her to speak to Ms Caswell about him and to tell Ms Caswell that he was a good worker. Mr Norval denies this. Ms Pavey says she was aware that the three month probationary period was due to expire in early April and several weeks before the termination date she started becoming concerned about whether they should keep Mr Norval on once his probationary period expired. She called for his personnel file and on the Good Friday looked through it when she was in the office by herself. She rang Ms Caswell while she was overseas and discussed whether Mr Norval's employment should be terminated at the end of his probationary period. Ms Caswell gave Ms Pavey authority to terminate his employment if she thought that was the most appropriate thing to do. Ms Caswell said that she told Ms Pavey that if she thought termination was the only thing to do, she should ring their solicitors and get advice on how to do it. These phone conversations happened on or about 9 April 1996. By this time Ms Pavey had decided that they could no longer tolerate Mr Norval's behaviour and his incompetence. Ms Pavey said that she knew that the probationary period was due to expire on 10 April but she was unable to terminate Mr Norval's employment until the following Monday, 15 April 1996. This was because of several factors. Firstly, she felt that she could not do it on 10 April 1996 partly because that was the day on which his daughter arrived and he was so nervous about seeing her that she felt it would be unfair to spoil his time with his daughter. Secondly, as Mr Norval was the only person with computer expertise within Plan International Australia, she had to get him to finish the Mother's Day project or $60,000 of the organisation's funds could be potentially wasted. Thirdly, Mr Norval had rostered days off on Thursday, 11 and Friday, 12 April 1996. His first rostered day back at work was 15 April 1996, the date on which his employment was terminated. On 15 April 1996, Ms Pavey called Mr Norval into her office with herself and Mr Martin. She had written out a list of procedures for herself to follow. She put a number of allegations relating to his conduct and performance to Mr Norval and gave him an opportunity to answer those. The matters raised were related to the matters contained in his job description. Ms Pavey however admits that there was nothing which Mr Norval could have said which would have changed her mind as she had already decided that his employment would be terminated. The termination occurred then, according to Ms Pavey, because it came to a head as a result of the probationary period expiring. At the end of the interview Mr Norval was handed a letter of termination. He was escorted back to his desk and given some time to clean out his belongings. About a week after the termination occurred Mr Norval contacted Mr Martin and said that he wanted to come in and collect some more of his things. According to Mr Martin, Mr Norval said that he had to collect some papers belonging to him and Mr Martin agreed to let Mr Norval into the building at 6:30 pm on a Friday night. This was a time when few people were present. Mr Martin said that he supervised Mr Norval while he took what he needed. Mr Norval said that Mr Martin sat at another desk while Mr Norval collected some things. As part of this process, Mr Norval went into the organisation's computer and printed out information which Mr Norval concedes belongs to the company. He said that he did this to gather evidence for the hearing in this matter as he had already decided to make an application in this court. He said that Mr Martin understood that Mr Norval was doing this, although that was never put to Mr Martin. The information Mr Norval gathered on that occasion appears to have included personal information about Ms Potter. In my view, it was totally inappropriate behaviour on the part of Mr Norval. THE CREDIBILITY OF THE WITNESSES Although attempts were made by counsel on behalf of Mr Norval to discredit Ms Pavey's evidence, I found her to be a credible witness even though she volunteered a lot of extra information in response to the questions she was asked. I did not find her a dishonest witness. Mr Martin I also found to be a credible witness. His evidence should be seen in the light of the fact that he is a friend of Mr Norval's (Mr Norval attended Mr Martin's daughter's birthday party) and has left Plan International Australia. Mr Martin bears no animosity towards Mr Norval. Ms Caswell presented as a very hard working and committed person and I found her to be a credible witness. I had some concerns about Mr Norval's evidence, however. As an example, on the question of whether or not there was a probationary period determined in advance, Mr Norval's counsel cross-examined the respondent's witnesses on the basis that there was definitely no probationary period agreed on in advance. This contradicts the direct evidence of Mr Cooke and Mr Martin and Ms Pavey's evidence that Mr Norval told her on many occasions that he was on probation. When Mr Norval gave evidence in relation to the question of probation, at first he said that he didn't recall Mr Martin saying that there was a probationary period but it was such a long time ago. He then said that he could not recall if a probationary period was mentioned, but there may have been. In support of his contention that there was no probationary period, Mr Norval produced a document from the organisation's files which, according to Mr Martin, was intended to form the basis of a letter of appointment and was for internal purposes only. The document is headed "Conditions of Employment" and Mr Norval was asked to complete some of the details in it. Mr Norval completed his personal details such as his name and position. There was a section on the document which said "temporary/permanent" and Mr Norval himself wrote in "permanent". I do not consider that this document assists me in any way in determining whether or not there was a probationary period. It is not inconsistent with a job being "permanent", as opposed to merely a "temporary" position, with there being a three month probationary period. During cross-examination Mr Norval said that from his recollection, there may have been a reference to probation but "a passing reference" and he was left with the belief that there was no probationary period. He then said that from his reading in newspapers and industrial laws he assumed it to be a three month period. Further, Mr Martin was recalled to give evidence about a telephone call he received from Mr Norval on the evening of the first day of the hearing of this matter. Mr Martin said that during that telephone conversation Mr Norval admitted to him that a three month probationary period had been discussed. Mr Norval denies that he said that to Mr Martin. I found Mr Norval to be less than convincing in relation to this issue. On balance, I prefer the evidence of the witnesses called on behalf of the respondent to that of Mr Norval to the extent that there are any inconsistencies. WAS THERE A PROBATIONARY PERIOD? It follows from what I have said that I find that there was a three month probationary period agreed on in advance of Mr Norval's employment with Plan International Australia commencing. That probationary period expired on 10 April 1996. I am satisfied that the termination of Mr Norval's employment occurred as a direct result of the expiration of the probationary period, when Ms Pavey assessed his conduct and performance and decided that Plan International Australia could no longer keep him on as an employee. If the termination of Mr Norval's employment had occurred on or before 10 April 1996 instead of 15 April 1996 this court would have had no jurisdiction to hear the application because of the provisions of regulation 30B. Because the termination occurred outside the probationary period, albeit on the first rostered day Mr Norval was back at work following the expiration of the probationary period, this court does have jurisdiction to hear and determine this matter. Further, as there is jurisdiction, the unlawful termination of employment provisions of the Act apply to Mr Norval's termination. WAS THERE A BREACH OF SECTION 170DC? The reasons given for Mr Norval's termination included not just his inappropriate behaviour towards other staff members but also matters relating to his performance and alleged incompetence. Mr Norval was counselled formerly by Ms Caswell in relation to the problems with personal relationships, but he was never counselled by her or anyone else in relation to his alleged incompetence. Although Ms Pavey technically put each of the allegations relating to his conduct or performance to him at the termination meeting of 15 April 1996, she conceded that no matter what Mr Norval said to her in response, her mind was made up and his employment would be terminated in any event. This, in my view, constitutes a breach of the provisions of section 170DC. That section requires what Chief Justice Wilcox in Nicolson v Heaven and Earth Gallery (1994) 126 ALR 233 has called a "fair go". The employee must be given a reasonable opportunity to be heard. Going through the motions when the employer's mind is already made up does not, in my view, constitute a compliance with the provisions of section 170DC. I accept that the reason that Ms Pavey conducted the interview in the way she did was that in her view it was as a result of the probationary period expiring. I have already found that this is so, but once this court has jurisdiction the provisions of section 170DC have to be complied with. WAS THERE A VALID REASON FOR THE TERMINATION? It was argued on behalf of Mr Norval that there was no valid reason for the termination relating to his conduct or performance. It was suggested that Ms Pavey judged his performance only on the three days prior to his termination. I do not accept that this is so. Ms Pavey clearly had concerns about his conduct or performance prior to that date and she called for his personnel file some two weeks before his employment was terminated, with the express intention of reviewing his continued employment in light of the probation period expiring. Mr Norval's job specification, as written down, clearly sets out the requirements for both technical expertise and some communication between him and fellow staff members. Mr Martin gave evidence, which I accept, that he verbally communicated to Mr Norval early on in his employment that the main emphasis of his work was to assist the marketing department by providing them with information they requested. The reasons for Mr Norval's termination can be grouped under two main areas, his inability to work effectively with other staff members and his inability or unwillingness to provide the marketing department promptly with the information they requested. Mr Norval himself acknowledges that his behaviour towards other staff members did not change even after he was counselled by Ms Caswell. The overwhelming impression I obtained from hearing all the evidence in this trial, including that of Mr Norval himself, was that although he may have worked very hard and with good intentions, he failed to appreciate that his priority should be providing the marketing department with the information it needed. I am satisfied that Mr Norval was told many times by his various superiors in the organisation what his priorities should be but that instead he spent a lot of his time getting organised and trying to get himself "up to speed" at the expense of the tasks which, for the organisation, should have been given priority. I am unable to decide whether Mr Norval was simply not up to the job in a technical sense or whether he just could not grasp the importance of giving priority to what he was being asked to do. In any event, I am satisfied that his conduct or performance, both in the area of his interpersonal relationships and in the area of simply getting the job done, was such as to justify his termination by Plan International Australia. I am satisfied that there was a valid reason for the termination of his employment as required by section 170DE. REMEDY Although Mr Norval in his application was seeking reinstatement, that was not argued before me. I am satisfied in view of the fact that Mr Norval now has another job; that another person has successfully commenced at Plan International Australia as a systems analyst and in particular, by Mr Norval's actions in removing confidential information from the organisation's computer a week after his termination, that it would be impracticable to order his reinstatement. The next question is whether, in all the circumstances, it is appropriate to grant a payment of compensation to Mr Norval. It was argued on behalf of Plan International Australia that this matter should be seen in the context of the probationary period expiring. Further, it was argued that because of Mr Norval's actions in removing confidential information from the company's computer, it would be inappropriate in all the circumstances to now grant him a remedy. Because of this, I have seriously contemplated making no award of compensation at all. However, there has been a breach of section 170DC. Bearing in mind the matters raised on behalf of Plan International Australia and the fact that the authorities on section 170DC state that once the breach of that section has been determined, the court should, in assessing the appropriate remedy, take into account what is likely to have happened if the section had not been breached, I consider that it is appropriate to order only a very modest amount of compensation in all the circumstances. I consider it extremely likely that even if Mr Norval had been given a full opportunity to be heard in response to allegations against his conduct or performance, his employment would have been terminated within the next few weeks in any event. In these circumstances I propose to make an order for the payment of two week's compensation to Mr Norval.

Read full text →

Official source

We try to embed the page this law was scraped from. If the site blocks framing, you still get the link and a local excerpt.

Not checked yet

Last checked with source on —

Open official source

Checking whether the official page can be embedded…

Study brief

Plain-English simplify of this law: a short summary, key points, and both sides of the argument. Generated on first view via Replicate, then cached. Vote on what helps your study.

Unknown

No study brief is cached for this law yet. Sign up to generate a plain-English brief.

You've got 21 of 22 free Acts left this visit. Sign up anytime for Facts, Related, and study briefs too.

Document text

IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) VICTORIAN DISTRICT REGISTRY ) VI 1716 of 1996 B E T W E E N: STEVENS PAUL NORVAL Applicant A N D: PLAN INTERNATIONAL AUSTRALIA Respondent MINUTE OF ORDER 23 DECEMBER 1996 MELBOURNE BOON JR THE COURT ORDERS AND DECLARES THAT: 1. The respondent, in terminating the applicant's employment, breached the provisions of section 170DC of the Workplace Relations Act 1996. 2. The respondent pay to the applicant the equivalent of two weeks' wages by way of compensation, such payment to be made by 10 January 1997. 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 ) VICTORIAN DISTRICT REGISTRY ) VI 1716 of 1996 B E T W E E N: STEVENS PAUL NORVAL Applicant A N D: PLAN INTERNATIONAL AUSTRALIA Respondent REASONS FOR DECISION 23 DECEMBER 1996 BOON JR This is an application under section 170EA of the Workplace Relations Act 1996. The applicant, Stevens Norval, is seeking relief arising out of the alleged unlawful termination of his employment by the respondent, Plan International Australia. Mr Norval alleges that the provisions of the Act were breached in a number of ways. One of the central issues in the case was whether or not Mr Norval's employment was subject to a three month probationary period. Plan International Australia alleges that there was a three month probationary period determined in advance and says that although regulation 30B of the Industrial Relations Regulations doesn't apply, and that this court does have jurisdiction, as the termination occurred several days after the expiry of the alleged probationary period, the termination of Mr Norval's employment should be considered in light of the expiration of the probationary period. Mr Norval denies that his employment was subject to a probationary period. Mr Norval's primary contention is that Plan International Australia breached section 170DC of the Act in that he was not given an opportunity to respond to allegations against his conduct or performance before his employment was terminated. Secondly, it is said by Mr Norval that Plan International Australia breached section 170DE(1) of the Act in that there was no valid reason, connected with his capacity or performance or the respondent's operational requirements, for the termination. Plan International Australia denies that it breached the provisions of the Act and says that Mr Norval's employment was terminated as a result of Mr Norval's incapacity or incompetence at his job and his inability to relate to the people with whom he worked. It is said by Plan International Australia that the termination occurred in the context of the expiry of the three month probationary period. Plan International Australia says that in the event that a breach of the Act is found to have occurred, this court should in any event not grant a remedy to Mr Norval because of the circumstances of his termination and also because of Mr Norval's behaviour subsequent to the termination. BACKGROUND Mr Norval is a 31 year old computer scientist. He has held several positions in the computer science field but was unemployed for some period before his employment with Plan International Australia. His marriage broke up some time ago and his former wife has custody of their young daughter. His daughter lives in Canberra and Mr Norval only sees her for a few days every three months. Mr Norval's evidence was that he experienced emotional problems following the disintegration of his marriage. The significance of this personal information will become obvious further on in these reasons for judgment. Plan International Australia is an international aid agency operating in 53 countries around the world. Its head office is in the United Kingdom and its Australian office operates from Melbourne. Apart from its fundraising activities Plan International Australia is outspoken on human rights issues. Ms Trisha Caswell is the Australian executive director of Plan International Australia; she commenced in this position on 1 October 1995. Ms Caswell was previously the director of the Australian Conservation Foundation and before that she was an elected officer of the Trades and Labour Council in Victoria. Ms Caswell gave evidence that the past year has been a fairly difficult one for Plan International Australia in that there have been major changes to the organisation. The Melbourne office employs 21 people, three of whom are male and the rest of whom are female. Ms Caswell says that the computer system is very important to the organisation in that the use and maintenance of the data base contained on the computer is vital to its fundraising activities. The data base consists of the names of current and potential donors and their details. The computer system is also important in Plan International Australia's relationship with the rest of the organisation in that it provides a means of information exchange. The position of Systems Administrator with Plan International Australia became vacant at the end of 1995. The court heard evidence from Mr Hugh Martin, the former finance manager with Plan International Australia for 14 years. Mr Martin produced a job description for the position of Systems Administrator which stated that the position was a maintenance and user assistance function. The document stated that the responsibilities and duties of the position included day to day network maintenance; user training and support; installation of updates; problem reporting and general house-keeping; production of reports and data from the data base; software development follow-up; analysis of user requirements and development of solutions; and effective liaison with United Kingdom Head Office Information Systems Technology Department. Mr Martin said that he contacted Mr Trevor Cooke, the founder of a computer staffing agency and instructed him that Plan International Australia was seeking a Systems Analyst. Mr Martin provided Mr Cooke with a copy of the job description. Mr Cooke gave evidence that he spoke to Mr Norval about the position and either gave him a copy of the job description or went through a copy of it with him. Mr Cooke said that in his discussions with Mr Norval the emphasis was on the technical requirements of the job. Mr Cooke said that in hindsight they may well have placed stronger emphasis on "people" skills. Mr Cooke sent Mr Norval to Plan International Australia for an interview. Mr Cooke said that before he did so, he told Mr Norval that the position was to be a provisional appointment with a probationary period of three months. Mr Martin and Mr Peter Murphy, a computer consultant who sometimes did some work for Plant International Australia, interviewed Mr Norval. Mr Martin said that he gave Mr Norval a copy of the job description at the interview. He said that he told Mr Norval that there was a three month probationary period and that Mr Norval didn't disagree with that. Mr Norval was appointed and started work at Plan International Australia on 10 January 1996. Mr Martin gave evidence that he prepared a letter of appointment dated 10 January 1996 setting out the conditions of his employment, including the fact that he would be on an initial probationary period of three months. The letter included another copy of the job description. Mr Martin said that he left for England on 12 January 1996 and took the appointment letter with him to discuss it with Peter Montgomery, of the English office, so that the head office would be aware of Mr Norval's job description when he arrived for training in England at the end of January. Unfortunately, Mr Martin forgot to discuss the matter with Mr Montgomery and forgot about the existence of the letter until he came upon it some time in April when he started gearing up for the end of financial year accounts. When Mr Martin discovered the letter he handed it to Mr Norval who made no comment about it except that it was a bit late. Mr Martin stressed however that the contents of the letter do not present any new information in that the conditions of the job and the position description had already been discussed with Mr Norval prior to him accepting the position. In January Mr Norval went to England for training at the head office. He was away for a few weeks. During that time he was trained in relation to the installation and management of a new e-mail system. When Mr Norval returned to Melbourne he installed the system and gave a half day seminar to the other staff at Plan International Australia on how to use the new system. The court heard evidence from various witnesses that it was apparent soon after Mr Norval returned to Australia that he had problems relating to the other staff members. Ms Jennifer Rice gave evidence that she was employed by Plan International Australia from 1989 until April 1996. Her last position at Plan International was that of marketing assistant. Ms Rice said that she had a lot to do with getting information from the computer system for Plan International's marketing campaigns. As a result, she often had to liaise with Mr Norval. Ms Rice said that she was the liaison between the marketing manager and the computer department. Ms Rice said that from the time Mr Norval started until she left Plan International Australia the relationship between them came progressively worse. Mr Norval became more and more unwilling or incapable of providing the information Ms Rice wanted. Ms Rice gave evidence that when she tried to address problems with Mr Norval he became aggressive with her. He invaded her personal space and raised his voice at her a lot. Ms Rice said that because she was not on a high enough level of management to be taken seriously by Mr Norval, she was not treated with respect by him. The court also heard from Ms Anne Pavey, the marketing manager with Plan International Australia since 18 March 1996. Ms Pavey said that on occasions she witnessed Mr Norval being rude and aggressive to the female staff members. Mr Norval was not rude to her because she was in a management position. Ms Pavey said that soon after she arrived she understood that there were some problems relating to communication between the computer department and other sections of Plan International Australia. She arranged for Miriam Potter, a distant relative and friend of hers, to come in on an unpaid basis for three days. Ms Potter is a technical analyst who has worked as a consultant designing information products for bank traders in secondary markets. Her role at Plan International Australia was to evaluate the functional capabilities of the computer system and assess how it might work better. She started work on 22 March 1996 and stayed for approximately five weeks. After the initial few days of unpaid work it was decided that Ms Potter had a useful role to play in assessing areas of Plan International Australia's operations which had problems needing to be addressed. She was then employed as a consultant and was paid. Ms Potter said that her only mandate was as a trouble shooter and creative thinker. Ms Potter said that Mr Norval immediately appeared to regard her as a threat to him and as undermining his own position. She said that his attitude to her was not professional but was extremely personal. He was very aggressive to her and in the open office he would seek her out and in full view of everyone would say that he would find out why she was hired and suggested it was on the basis of nepotism. Ms Potter said that she found Mr Norval to be a menacing presence. She said that his attitude to the users in the organisation, namely the other staff members, was that he had a limited tolerance of those who were not computer literate. Ms Potter said that this was of great concern because it was vital for someone in his position to be able to define the requirements of the users of the system. She said that the Systems Analyst needed an open and encouraging attitude to the other staff members so that their needs and technical abilities could be determined. Ms Potter said that Mr Norval repeatedly said that the users were "all idiots". Ms Potter said that Mr Norval kept making reference to the enormous amounts of money consultants earn and she told him that she felt that that was unprofessional. Ms Potter denied that she was there to undermine Mr Norval's position and said that she was there to deal with several groups of people and put things together by looking at the "big picture". Ms Caswell gave evidence that she became aware that Jennifer Rice did not like dealing with Mr Norval. Ms Rice indicated to Ms Caswell that she was unhappy with his behaviour towards her. During March, Ms Caswell received a number of other complaints about Mr Norval's behaviour and his interpersonal relationships. Ms Caswell said that it appeared that the whole place was "disrupted and nervous". Once Ms Potter was hired, Mr Norval appeared to be paranoid about her. Ms Caswell said that she told him that this was totally unnecessary but he did not accept it. She said that she counselled him a number of times about his behaviour to other staff members but none of the discussions seemed to affect his behaviour at all. Mr Norval himself gave evidence that he has in the past had problems with interpersonal relationships. He made some reference to his mother being the cause of his problems in that regard. He admitted that he was counselled about his behaviour by Ms Caswell and that his behaviour towards other people did not change after the counselling. He admitted that he was probably paranoid about Ms Potter's presence at the organisation. He said that he saw Ms Potter's resume and it did not include network analysis as part of her experience. Mr Norval said "I thought it strange that a woman - person - would come in without that experience and be given the task of looking at the whole information system". He did not think that her qualifications would assist him. Mr Norval's own evidence in relation to his interpersonal relationships indicated that he appeared to have a particular problem relating to women and seemed incapable of changing his behaviour despite counselling. Secondly, his attitude towards Ms Potter in my view totally missed the point in that it was not up to him to decide whether she could be useful to the organisation. I am satisfied that he consistently refused to cooperate with Ms Potter. Further, I am satisfied that his attitude to his fellow workers, not just Ms Potter and Ms Rice, was such as to cause problems for the organisation. Evidence was also given about Mr Norval's alleged incompetence. Ms Rice said that Mr Norval was either unwilling or incapable of providing her with the marketing information she needed. She started off requesting information verbally but soon started to write down the instructions. Even then, according to Ms Rice, the requested information was not provided. As an example, Ms Rice said that the respondent wanted to conduct a raffle as a fundraising venture and wanted information regarding the numbers of people they could send raffle tickets to. The information provided by Mr Norval was incorrect and when she tried to address the problems regarding his program, Mr Norval became aggressive to her. In the end the raffle could not go ahead because she was unable to obtain the information she needed. Although Mr Norval said that the computer system was to blame for the incorrect information, Ms Rice said that the problems she encountered were a result of human error in that the instructions given to Mr Norval were not followed. Ms Rice acknowledged that she was not a computer programmer herself. Mr Norval's evidence was that from the time he started work with the respondent he inherited a computer "nightmare". He said that there had been no maintenance of the system for two years and he found lots of documents in the system dating back to 1986. As a result the system was very slow. He said that some aspects needed urgent attention and he spent a lot of time going through documents such as manuals and throwing things out which had been superseded. He said that there was a problem with a tape backup unit and he had to arrange to have it fixed. He said that the computer file server had a lot information almost ten years old on it. It was common ground that a new file server was installed in July, after Mr Norval's termination. It appears, however, that the file server only affected the speed at which the computer provided information and not the accuracy of the information. Mr Norval's main contention was that by the time of the termination of his employment he hadn't had enough time to fully analyse the computer system. He said that he had made this plain to Ms Caswell and Mr Martin. Mr Norval's evidence is that it is a complex system with a number of data bases. He said that there were probably over 150 individual program files, a lot of which were generated by the international headquarters. Mr Norval made it clear that he hadn't had enough time to familiarise himself with the system when he wrote a memo to Ms Caswell on 19 March 1996 in which he suggested that his position be upgraded to that of manager. Mr Norval said that this was in line with similar positions in the respondent's organisations in other countries. Ms Caswell's reaction to this proposal was that it was far too premature and showed a lack of understanding on Mr Norval's part of the priorities which he should set himself. Ms Pavey expressed the opinion that the more she became involved in understanding the problems in the computer department, the more she understood that it was not the system that was at fault but Mr Norval's incompetence in using it. Ms Pavey admits that she does not have technical qualifications in computers but said that she is a very practical person and has, since Mr Norval's departure, been able to use the computer system with very few problems. She said that since she has been using the computer herself she has found it to be quite basic. Ms Pavey said that since the respondent employed a new Systems Analyst, the computer department has gone from a situation of chaos to running smoothly. THE MOTHER'S DAY CAMPAIGN Evidence was given that Plan International Australia decided some time in March that it would run a marketing campaign in time for Mother's Day. The campaign would be aimed at women sponsors and would cost Plan Australia $60,000 to run. There was to be a mail out of information to 15,000 people. Mr Norval was asked to provide a list of 15,000 names, addresses and postcodes of people who were not current sponsors. Ms Pavey told Mr Norval what information was required. She says she discussed it with him prior to a meeting with the telemarketers. It was put to Ms Pavey that it was only on the Thursday before Easter, 4 April 1996, that she gave Mr Norval the instructions in detail. Ms Pavey said that this was untrue and that she had discussed her requirements before that date. Mr Norval came in to work on Easter Monday and started working at providing the requested information. The first program given to Ms Pavey was incorrect. Ms Pavey said that she told Mr Norval repeatedly that he had to check the information that he provided to her but despite this he kept giving her incorrect lists which he appeared not to have checked properly. Over the next few days Mr Norval worked long hours trying to provide the information Ms Pavey wanted. Seven different check lists were provided to the court, representing seven different attempts Mr Norval made to provide the information. Mr Norval himself said that he probably made more attempts than those seven check lists. What happened next was in part due to an unfortunate combination of circumstance. On Wednesday afternoon Mr Norval collected his daughter from the airport. She was to stay with him for a few days. He had prearranged leave for Thursday and Friday, 11 and 12 April. Ms Pavey said that each time Mr Norval provided her with what was supposed to be a complete list of 15,000 names she found that the information was incorrect. As Mr Norval was the only person with computer expertise in the organisation Ms Pavey had no alternative but to call on him to come and rectify the mistakes. Mr Norval's evidence was that he wanted to spend time with his daughter whom he hadn't seen for three months and that was why he had prearranged leave for the Thursday and Friday. He worked very long hours and his leave kept on being interrupted by Ms Pavey who called him into the office. Mr Norval admitted that he made some mistakes in punching in incorrect keys on several occasions. The matter came to a head on Saturday, 13 April 1996 when Mr Norval was once again contacted by Ms Pavey who had attended the office on Saturday afternoon and found that the information left for her was incorrect. There was an argument between the two of them over the telephone. Ms Pavey said that she felt very sorry for Mr Norval because he had his daughter with him at the time. She understood his problems, but as he was the only person within the organisation who could do the job; as it was costing the organisation $60,000 to run the campaign; and as there were strict time limits involved because the information had to be sent out well before Mother's Day, as it was a Mother's Day campaign, she had no alternative but to interrupt Mr Norval at home. In the end Ms Pavey called in Mr Montgomery, the outside consultant, and together he and Ms Pavey finished the task. THE TERMINATION Ms Caswell, the executive director of Plan International Australia, left on an overseas trip some time towards the end of March. In her absence Ms Pavey became the acting executive director. Ms Pavey said that she was aware that Mr Norval was on probation because he talked about it constantly. He kept asking her to speak to Ms Caswell about him and to tell Ms Caswell that he was a good worker. Mr Norval denies this. Ms Pavey says she was aware that the three month probationary period was due to expire in early April and several weeks before the termination date she started becoming concerned about whether they should keep Mr Norval on once his probationary period expired. She called for his personnel file and on the Good Friday looked through it when she was in the office by herself. She rang Ms Caswell while she was overseas and discussed whether Mr Norval's employment should be terminated at the end of his probationary period. Ms Caswell gave Ms Pavey authority to terminate his employment if she thought that was the most appropriate thing to do. Ms Caswell said that she told Ms Pavey that if she thought termination was the only thing to do, she should ring their solicitors and get advice on how to do it. These phone conversations happened on or about 9 April 1996. By this time Ms Pavey had decided that they could no longer tolerate Mr Norval's behaviour and his incompetence. Ms Pavey said that she knew that the probationary period was due to expire on 10 April but she was unable to terminate Mr Norval's employment until the following Monday, 15 April 1996. This was because of several factors. Firstly, she felt that she could not do it on 10 April 1996 partly because that was the day on which his daughter arrived and he was so nervous about seeing her that she felt it would be unfair to spoil his time with his daughter. Secondly, as Mr Norval was the only person with computer expertise within Plan International Australia, she had to get him to finish the Mother's Day project or $60,000 of the organisation's funds could be potentially wasted. Thirdly, Mr Norval had rostered days off on Thursday, 11 and Friday, 12 April 1996. His first rostered day back at work was 15 April 1996, the date on which his employment was terminated. On 15 April 1996, Ms Pavey called Mr Norval into her office with herself and Mr Martin. She had written out a list of procedures for herself to follow. She put a number of allegations relating to his conduct and performance to Mr Norval and gave him an opportunity to answer those. The matters raised were related to the matters contained in his job description. Ms Pavey however admits that there was nothing which Mr Norval could have said which would have changed her mind as she had already decided that his employment would be terminated. The termination occurred then, according to Ms Pavey, because it came to a head as a result of the probationary period expiring. At the end of the interview Mr Norval was handed a letter of termination. He was escorted back to his desk and given some time to clean out his belongings. About a week after the termination occurred Mr Norval contacted Mr Martin and said that he wanted to come in and collect some more of his things. According to Mr Martin, Mr Norval said that he had to collect some papers belonging to him and Mr Martin agreed to let Mr Norval into the building at 6:30 pm on a Friday night. This was a time when few people were present. Mr Martin said that he supervised Mr Norval while he took what he needed. Mr Norval said that Mr Martin sat at another desk while Mr Norval collected some things. As part of this process, Mr Norval went into the organisation's computer and printed out information which Mr Norval concedes belongs to the company. He said that he did this to gather evidence for the hearing in this matter as he had already decided to make an application in this court. He said that Mr Martin understood that Mr Norval was doing this, although that was never put to Mr Martin. The information Mr Norval gathered on that occasion appears to have included personal information about Ms Potter. In my view, it was totally inappropriate behaviour on the part of Mr Norval. THE CREDIBILITY OF THE WITNESSES Although attempts were made by counsel on behalf of Mr Norval to discredit Ms Pavey's evidence, I found her to be a credible witness even though she volunteered a lot of extra information in response to the questions she was asked. I did not find her a dishonest witness. Mr Martin I also found to be a credible witness. His evidence should be seen in the light of the fact that he is a friend of Mr Norval's (Mr Norval attended Mr Martin's daughter's birthday party) and has left Plan International Australia. Mr Martin bears no animosity towards Mr Norval. Ms Caswell presented as a very hard working and committed person and I found her to be a credible witness. I had some concerns about Mr Norval's evidence, however. As an example, on the question of whether or not there was a probationary period determined in advance, Mr Norval's counsel cross-examined the respondent's witnesses on the basis that there was definitely no probationary period agreed on in advance. This contradicts the direct evidence of Mr Cooke and Mr Martin and Ms Pavey's evidence that Mr Norval told her on many occasions that he was on probation. When Mr Norval gave evidence in relation to the question of probation, at first he said that he didn't recall Mr Martin saying that there was a probationary period but it was such a long time ago. He then said that he could not recall if a probationary period was mentioned, but there may have been. In support of his contention that there was no probationary period, Mr Norval produced a document from the organisation's files which, according to Mr Martin, was intended to form the basis of a letter of appointment and was for internal purposes only. The document is headed "Conditions of Employment" and Mr Norval was asked to complete some of the details in it. Mr Norval completed his personal details such as his name and position. There was a section on the document which said "temporary/permanent" and Mr Norval himself wrote in "permanent". I do not consider that this document assists me in any way in determining whether or not there was a probationary period. It is not inconsistent with a job being "permanent", as opposed to merely a "temporary" position, with there being a three month probationary period. During cross-examination Mr Norval said that from his recollection, there may have been a reference to probation but "a passing reference" and he was left with the belief that there was no probationary period. He then said that from his reading in newspapers and industrial laws he assumed it to be a three month period. Further, Mr Martin was recalled to give evidence about a telephone call he received from Mr Norval on the evening of the first day of the hearing of this matter. Mr Martin said that during that telephone conversation Mr Norval admitted to him that a three month probationary period had been discussed. Mr Norval denies that he said that to Mr Martin. I found Mr Norval to be less than convincing in relation to this issue. On balance, I prefer the evidence of the witnesses called on behalf of the respondent to that of Mr Norval to the extent that there are any inconsistencies. WAS THERE A PROBATIONARY PERIOD? It follows from what I have said that I find that there was a three month probationary period agreed on in advance of Mr Norval's employment with Plan International Australia commencing. That probationary period expired on 10 April 1996. I am satisfied that the termination of Mr Norval's employment occurred as a direct result of the expiration of the probationary period, when Ms Pavey assessed his conduct and performance and decided that Plan International Australia could no longer keep him on as an employee. If the termination of Mr Norval's employment had occurred on or before 10 April 1996 instead of 15 April 1996 this court would have had no jurisdiction to hear the application because of the provisions of regulation 30B. Because the termination occurred outside the probationary period, albeit on the first rostered day Mr Norval was back at work following the expiration of the probationary period, this court does have jurisdiction to hear and determine this matter. Further, as there is jurisdiction, the unlawful termination of employment provisions of the Act apply to Mr Norval's termination. WAS THERE A BREACH OF SECTION 170DC? The reasons given for Mr Norval's termination included not just his inappropriate behaviour towards other staff members but also matters relating to his performance and alleged incompetence. Mr Norval was counselled formerly by Ms Caswell in relation to the problems with personal relationships, but he was never counselled by her or anyone else in relation to his alleged incompetence. Although Ms Pavey technically put each of the allegations relating to his conduct or performance to him at the termination meeting of 15 April 1996, she conceded that no matter what Mr Norval said to her in response, her mind was made up and his employment would be terminated in any event. This, in my view, constitutes a breach of the provisions of section 170DC. That section requires what Chief Justice Wilcox in Nicolson v Heaven and Earth Gallery (1994) 126 ALR 233 has called a "fair go". The employee must be given a reasonable opportunity to be heard. Going through the motions when the employer's mind is already made up does not, in my view, constitute a compliance with the provisions of section 170DC. I accept that the reason that Ms Pavey conducted the interview in the way she did was that in her view it was as a result of the probationary period expiring. I have already found that this is so, but once this court has jurisdiction the provisions of section 170DC have to be complied with. WAS THERE A VALID REASON FOR THE TERMINATION? It was argued on behalf of Mr Norval that there was no valid reason for the termination relating to his conduct or performance. It was suggested that Ms Pavey judged his performance only on the three days prior to his termination. I do not accept that this is so. Ms Pavey clearly had concerns about his conduct or performance prior to that date and she called for his personnel file some two weeks before his employment was terminated, with the express intention of reviewing his continued employment in light of the probation period expiring. Mr Norval's job specification, as written down, clearly sets out the requirements for both technical expertise and some communication between him and fellow staff members. Mr Martin gave evidence, which I accept, that he verbally communicated to Mr Norval early on in his employment that the main emphasis of his work was to assist the marketing department by providing them with information they requested. The reasons for Mr Norval's termination can be grouped under two main areas, his inability to work effectively with other staff members and his inability or unwillingness to provide the marketing department promptly with the information they requested. Mr Norval himself acknowledges that his behaviour towards other staff members did not change even after he was counselled by Ms Caswell. The overwhelming impression I obtained from hearing all the evidence in this trial, including that of Mr Norval himself, was that although he may have worked very hard and with good intentions, he failed to appreciate that his priority should be providing the marketing department with the information it needed. I am satisfied that Mr Norval was told many times by his various superiors in the organisation what his priorities should be but that instead he spent a lot of his time getting organised and trying to get himself "up to speed" at the expense of the tasks which, for the organisation, should have been given priority. I am unable to decide whether Mr Norval was simply not up to the job in a technical sense or whether he just could not grasp the importance of giving priority to what he was being asked to do. In any event, I am satisfied that his conduct or performance, both in the area of his interpersonal relationships and in the area of simply getting the job done, was such as to justify his termination by Plan International Australia. I am satisfied that there was a valid reason for the termination of his employment as required by section 170DE. REMEDY Although Mr Norval in his application was seeking reinstatement, that was not argued before me. I am satisfied in view of the fact that Mr Norval now has another job; that another person has successfully commenced at Plan International Australia as a systems analyst and in particular, by Mr Norval's actions in removing confidential information from the organisation's computer a week after his termination, that it would be impracticable to order his reinstatement. The next question is whether, in all the circumstances, it is appropriate to grant a payment of compensation to Mr Norval. It was argued on behalf of Plan International Australia that this matter should be seen in the context of the probationary period expiring. Further, it was argued that because of Mr Norval's actions in removing confidential information from the company's computer, it would be inappropriate in all the circumstances to now grant him a remedy. Because of this, I have seriously contemplated making no award of compensation at all. However, there has been a breach of section 170DC. Bearing in mind the matters raised on behalf of Plan International Australia and the fact that the authorities on section 170DC state that once the breach of that section has been determined, the court should, in assessing the appropriate remedy, take into account what is likely to have happened if the section had not been breached, I consider that it is appropriate to order only a very modest amount of compensation in all the circumstances. I consider it extremely likely that even if Mr Norval had been given a full opportunity to be heard in response to allegations against his conduct or performance, his employment would have been terminated within the next few weeks in any event. In these circumstances I propose to make an order for the payment of two week's compensation to Mr Norval.

Read full text →