DECISION NO:24/97 CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - PROBATION - Whether maximum probationary period of two years for junior clerical position reasonable - probationary employee suffering serious medical disability at time of appointment - two years is reasonable Workplace Relations Act 1996 s 170DE s 170DF s 170EA Public Service Act 1922 Public Sector Managment Act 1994 (ACT) Fisher v Commonwealth of Australia (1995) 63 IR 401 Ryan v Furneys Stockfeeds Ltd (1996) 66 IR 298 Legione v Hateley (1983) 152 CLR 406 Foran v Wight (1989) 168 CLR 385 No. AI 1216 of 1995 KIM SUSAN POTTER v AUSTRALIAN CAPITAL TERRITORY MOORE J CANBERRA 10 FEBRUARY 1997 IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. AI 1216 of 1995 ) ACT DISTRICT REGISTRY ) BETWEEN: KIM SUSAN POTTER Applicant AND: AUSTRALIAN CAPITAL TERRITORY Respondent JUDGE: Moore J PLACE: Canberra DATE: 10 February 1997 ORDER OF THE COURT THE COURT ORDERS THAT: 1. The application is dismissed. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules. IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. AI 1216 of 1995 ) ACT DISTRICT REGISTRY ) BETWEEN: KIM SUSAN POTTER Applicant AND: AUSTRALIAN CAPITAL TERRITORY Respondent JUDGE: Moore J PLACE: Canberra DATE: 10 February 1997 REASONS FOR JUDGMENT Introduction An application by Ms Kim Susan Potter under section 170EA of what is now entitled the Workplace Relations Act 1996 ("the Act") alleges the termination of her employment on 14 July 1995 by the Australian Capital Territory was in contravention of s170DE(1) and s170DF(1)(f) of the Act. Factual Background The circumstances in which Ms Potter's employment was terminated are unusual and, in many respects, tragic. The events leading to the termination were, except in relation to one matter, not contentious. On 4 October 1992 Ms Potter suffered what proved to be a serious back injury while pushing a theatre table at Woden Valley Hospital where she worked. She was, at the time, an employee of the Commonwealth employed under Division 10 of Part III of the Public Service Act 1922 (Cth) ("PS Act"). On 16 November 1992 Ms Potter commenced a rehabilitation program which involved her undertaking clerical work within the hospital's administration. It was not in issue that by March 1993 Ms Potter had become a "continuing employee" for the purposes of Division 10. I will later discuss the relevance of her status as a continuing employee. Ms Potter's rehabilitation was being overseen by a Ms Elizabeth Cooper, who had been appointed as her case manager. In March 1993, Ms Cooper drew Ms Potter's attention to a position that had been advertised in a staff bulletin of the hospital. It was a position of administrative service officer class 2 in the Case Management Unit, Personnel Services. The Case Management Unit was the unit in which Ms Cooper worked. Ms Potter applied for the position in writing on 30 March 1993. In the material accompanying her application, which is in evidence, there is a duty statement for the position. It indicates that it is a full time position though there is no reference to the number of hours to be worked fortnightly. On 6 April 1993, Ms Potter commenced work in what she described in evidence as a "supernumerary training position with the Case Management Unit". In July 1993 Ms Potter was advised by her specialist physician that, having regard to her injury, she would not be able to undertake manual work again and she should obtain clerical work instead. On 20 August 1993 Ms Potter was sent a letter advising her that she had been appointed to the position for which she had earlier applied. It was appointment to a position under Division 4 of Part III the PS Act as an officer in the Australian Public Service. The letter read, in part: "Your appointment is on (6) months probation during which time your conduct, work performance and medical fitness will be assessed to determine whether you meet the standard required for confirmation of your appointment. If there are any doubts on any of these matters, the probationary period may be extended up to a total period of 12 months. If your conduct or work performance are considered unsatisfactory or you do no meet the medical fitness standards for your appointment, or you are not an Australian citizen your appointment may be annulled. All officers appointed to the public service must obtained Australian Citizenship before their appointment can be confirmed." The letter appointing her indicated that her appointment would take effect on 9 September 1993. The letter noted that an appointment had been made for her with the Commonwealth Medical Officer for 27 August 1993. Ms Potter did undergo medical examination in August 1993 which she failed in the sense that she was not assessed as medically fit. Following her appointment and prior to the termination of her employment in 1995, Ms Potter worked for periods of several weeks or months, though she would not work each day of the week nor work for the full day. Her pattern of work was not entirely regular. She would work 15 hours a week over three days though the number of hours she worked on any particular day would depend on her capacity physically, on that day, to work the hours she intended. There were occasions where the pain she suffered precluded her working on days she had intended to work though Ms Potter would compensate by working an additional day later. During that time, Ms Potter was off work for periods after surgery which related to her back injury. There was one period at this time when the applicant worked from home. During this period of Ms Potter's employment, major changes occurred in public sector employment in the Australian Capital Territory. Her initial employment and appointment to the position on 20 August 1993 was, as earlier noted, with the Commonwealth under the provisions of the PS Act. However, on 1 July 1994 Ms Potter's employment became, by operation of the Public Sector Management Act 1994 (ACT)("PSM Act"), employment with the Australian Capital Territory as part of the ACT Government Service. I will discuss these legislative provisions in more detail shortly. Ms Potter received a letter dated 25 August 1994 informing her of that change. Ms Potter underwent an examination by a medical officer in early March 1995 to determine whether her appointment should be confirmed. A document in evidence is a form completed by a Dr K Boyapati. It contains an opinion about the health of Ms Potter. Part of the form identifies the then current classification of Ms Potter as ASO2. There is no other material in the evidence which indicates the nature of the work by reference to which Dr Boyapati formed the opinion about Ms Potter's health. The form provided a number of boxes to be ticked. Dr Boyapati has ticked a box signifying that Ms Potter "does not meet the medical standard and is unfit for appointment/confirmation of appointment". There then appears, in hand writing under the heading "Reasons for recommendations and/or other comments", an entry by Dr Boyapati in the following terms: "Examinee had been on continuous leave since July 94 due to back pain. She has severe limitations of back movement, difficulties with sitting for more than 5 mts/walking etc. She is likely to require excessive amount of sick leave in future for back pain. Therefore I consider her unfit for appointment." Following that assessment, Ms Potter received a letter dated 23 March 1995 from Mr R.L. Peters, Acting Director, Personnel Services (Health) of the Australian Capital Territory's Department of Public Administration. The relevant part of the letter read: "The Commonwealth Medical Officer has advised that you do not meet the health and physical fitness standard for confirmation of your appointment to the ACT Government Service. A copy of the report following your medical re-examination on 2 March 1995 is enclosed for you information. I am required to consider whether your appointment should be terminated on medical grounds in accordance with sub-section 70(4) of the Public Sector Management Act 1994. In accordance with the guidelines contained in Chapter 8 of Standard 12 - "Termination of Probationary Appointment", a copy of which is attached for your information, you have the opportunity to provide written comments or further relevant information such as medical reports etc, relating to the recommendation by the Commonwealth Medical Officer." The letter went on to invite comment from Ms Potter. Of some significance are the terms of the guidelines referred to in the letter. They relevantly provide: "3.4 Government Medical Officer recommends fit or unfit The Government Medical Officer should recommend that a probationer is either fit or unfit to perform the duties of the classification to which they are to be appointed, taking into account the Principles of Reasonable Adjustment. (See Standard 5, Chapter 1 Equal Employment Opportunity.) 3.5 Exemptions Normally, a recommendation that a probationer is medically unfit leads to termination of the appointment. However there may be cases where this is not appropriate. If necessary, the relevant Chief Executiv[e] may seek additional information from the Government Medical Officer or, through the Government Medical Officer, from a specialist. The relevant Chief Executiv[e] should make a final recommendation on the matter based on all the relevant facts." Another document which accompanied the letter to Ms Potter contained an explanation of what was Reasonable Adjustment. It read: "25.1 What is the Principle of Reasonable Adjustment? The Principle of Reasonable Adjustment provides that in areas employing people with disabilities, the manager should vary usual employment practices so that the disability of the officer concerned does not effect the efficiency of the work area, or become a barrier to the work satisfaction or career of the staff member with the disability. When applying the Principle of Reasonable Adjustment, each case needs to be considered in its own circumstances and on its own merits. It is important to remember that most officers with a disability will not require significant adjustments. 24.7 The Principle of Reasonable Adjustment in employment of people with disabilities Under the Principle of Reasonable Adjustment managers vary usual employment policy or practices that the disability, injury or illness of an employee does not effect the efficiency of the work area, or become a barrier to the work satisfaction or the career of the employee with the disability, injury or illness. The Principle of Reasonable Adjustment includes taking into consideration issues such as access to the workplace, workplace design, equipment or technical aids and job redesign." There was further correspondence with Ms Potter about the termination of her appointment and she received, in due course, a letter dated 30 June 1995 from Mr Colin Smeal, Director, Personnel Services (Health) of the Department of Public Administration. The letter relevantly read: "I refer to the letter from Mr Peters dated 23 March 1995 and your response dated 31 March 1995 in relation to consideration of whether your appointment should be terminated on medical grounds in accordance with sub-sections 70(4) and 70(9)(a) of the Public Sector Management Act 1994. I have given this matter considerable deliberation and sought expert advice, particularly in view of the special circumstances that you raised in your letter of 31 March 1995. As the delegate of the Chief Executive I have decided after careful consideration of all the circumstances that your appointment is to be terminated on medical grounds. Advice received indicates that there appears to be no alternative to this action. The Public Sector Management Act states that if an officer does not meet the required medical standard for confirmation then the officer cannot be confirmed. The advice also indicated that should your appointment be confirmed with the knowledge that you did not meet the medical standard, then it would seem inappropriate to take action for invalidity retirement for the same medical reasons that would have prevented you from being confirmed initially. Such action would be in breach of the Act. I should point out that when you were offered appointment to your substantive position after advertising, interviewing and being selected as the most suitable applicant after a merit selection you accepted the offer. Your letter of appointment of 20 August 1993 clearly stated that your appointment was on 6 months probation during which time your conduct, work performance and medical fitness would be assessed to determine whether you meet the standard required for confirmation of appointment. The letter of appointment also states that if your conduct or work performance are considered unsatisfactory or you do not meet the medical fitness standard for appointment your appointment may be annulled. The date of effect of your termination of appointment shall be close of business on Friday 14 July 1995. Enclosed herewith is a copy of the instrument of termination together with a copy of a letter from Comcare addressed to Mr Bright about entitlements to compensation payments after termination." It is the termination of her appointment by this letter that founds Ms Potter's application under s 170EA. The Legislation The PS Act creates, for present purposes, two types of employment with the Commonwealth, namely, 'officer' and 'continuing employee'. Division 10 of Part III provides for the employment of a person as a continuing employee: see s 82AC. A person may also be engaged as a short term employee for a period of less than twelve months: see s 82AD(4), but if the engagement is extended with the result that the period of engagement exceeds a year, then employment thereafter is deemed to be employment as a continuing employee: see s 82AD(9). Division 8C of Part III establishes a scheme which, relevantly, provides for the redeployment or retirement of a continuing employee who is unable to perform her duties because of physical incapacity. However Division 8C has no application to an officer whose appointment to the Australian Public Service on probation has not been confirmed: see s 76S(1). Appointment as an officer is, subject to exceptions which are not presently relevant, on probation. This is dealt with by s 47 which provides: "47(1) Subject to subsection (2), the appointment of a person to the Service as an officer (other than a Secretary) shall, in the first instance, be an appointment on probation. (2)... (3) The Commissioner may, at any time within the period of 6 months after an officer is appointed to the Service on probation, confirm the appointment. (4) The relevant Secretary may, at any time after an officer (other than an SES officer) is appointed to the Service on probation and before the appointment is confirmed, terminate the appointment. (4A) ... (5) The relevant Secretary may, at any time after the end of the period of 6 months after an officer is appointed to the Service on probation, confirm the appointment (6) Where, at the end of the period of 12 months after an officer is appointed to the Service on probation, the appointment has been neither confirmed nor terminated: (a) in the case of an officer other than an SES officer - the relevant Secretary must, as soon as practicable, confirm or terminate the appointment; and (b) in the case of an SES officer whose appointment the relevant Secretary intends to confirm - the relevant Secretary must, as soon as practicable, confirm the appointment; and (c) in any other case - the relevant Secretary must, as soon as practicable, give written notice to the Commissioner that he or she does not intend to confirm the appointment. (6A) As soon as practicable after the Commissioner receives a notice mentioned in paragraph (6)(c), the Commissioner must confirm or terminate the appointment. (7) Where, at the end of the period of 2 years after an officer is appointed to the Service on probation, the appointment has been neither confirmed nor terminated, the appointment shall (unless the officer is not an Australian citizen) be deemed to have been confirmed. (8) Where an officer appointed to the Service on probation holds a training office: (a) the reference in subsection (5) to the period of 6 months after an officer is appointed to the Service shall be read as a reference to the period starting when the officer is appointed and ending when the officer completes the course of training concerned; (b) the reference in subsection (6) to the period of 12 months after an officer is appointed to the Service shall be read as a reference to the period starting when the officer is appointed and ending 6 months after the officer completes the course of training concerned; and (c) the reference in subsection (7) to the period of 2 years after an officer is appointed to the Service shall be read as a reference to the period starting when the officer is appointed and ending 12 months after the officer completes the course of training concerned. (9) The Commissioner shall not, under subsection (3) or (6A), and the Secretary shall not, under subsection (5) or (6), confirm the appointment to the Service of an officer unless the Commissioner or Secretary, as the case may be, is satisfied, after the officer has undergone a medical examination approved by the Commissioner, as to the officer's health and physical fitness. (10)... (11) The Commissioner may, under subsection (4A) or (6A), and the relevant Secretary may, under subsection (4) or paragraph (6)(a), terminate an officer's appointment to the Service on any of the following grounds: (a) that he or she is not satisfied, after receiving a report from an authorised medical practitioner, as to the officer's health and physical fitness; (b) that he or she considers, after receiving a report from the officer's supervisor or another appropriate officer, that the manner of the officer's performance of duties has not been satisfactory; (c) that he or she considers that the officer is not a fit and proper person to remain an officer of the Service; (d) that he or she is satisfied that the officer is an excess officer; (e) in the case of an officer who is not an Australian citizen, that he or she is satisfied: (i) that the person has been refused Australian citizenship; or (ii) that the person is unlikely to be granted Australian citizenship within a reasonable time; or (iii) that the person is not seeking a grant of Australian citizenship with appropriate diligence. (12)..." In 1988, self government was conferred on the Australian Capital Territory by the Australian Capital Territory (Self-Government) Act 1988 (Cth). Section 21 of a related Act, the ACT Self-Government (Consequential Provisions) Act 1988 (Cth), provided for the public administration of the Territory to continue to be undertaken by persons appointed or employed under the PS Act. However that arrangement could be brought to an end by a law enacted by the Territory's Legislative Assembly. This occurred in 1994 with the enactment of the Public Sector Management (Consequential and Transitional Provisions) Act 1994 (ACT) ("the Transitional Provisions Act"). Section 6 of that Act provided: "6(1)This section applies in relation to a person who immediately before the commencement day was a member of the transitional staff. (2) A person who was an officer of the Australian Public Service shall, on and after the commencement day, be taken to be an officer employed under the Public Sector Act with the same classification as applied to the person immediately before that day. (3) A person to whom subsection (2) applies who immediately before the commencement day was an officer appointed to the Australian Public Service on probation shall, on and after that day, be taken to be an officer appointed to the Service on probation." It was common ground in these proceedings that the effect of s 6(3) was to render Ms Potter's probationary appointment in the Australian Public Service, a probationary appointment to the Australian Capital Territory Government Service ("ACT Service") which is the Service referred to in the latter part of s 6(3): see s 4(2) of the Transitional Provisions Act and s 3 of the PSM Act. It is not apparent to me, however, on a cursory examination of the relevant Commonwealth legislation, what was the source of the legislative power of the Territory's Assembly not only to terminate the operation of s 21 of the ACT Self-Government (Consequential Provisions) Act 1988 (which s 21 itself provided for) but additionally, if this is what was intended by s 6 of the Transitional Provisions Act, to terminate an appointment of a person as an officer of the Australian Public Service by treating the person thereafter as an officer of the ACT Service. The PSM Act contains a scheme of appointment similar to the found in s 47 of the PS Act. Section 70 of the PSM Act provides: "70(1) Subject to subsection (2), the appointment of a person to the Service as an officer, other than as a Chief Executive, shall in the first instance be an appointment on probation. (2) Where the Commissioner, or the relevant Chief Executive, is satisfied that - (a) a person selected for appointment has passed a medical examination to determine the person's standard of health and fitness; or (b) it is unnecessary, in the circumstances, to require the person to undergo a medical examination; the appointment of the person may be made without probation if - (c) the Commissioner, or the relevant Chief Executive, as the case may be, is satisfied that the person merits appointment without probation and that such appointment would be in the public interest; (d) the person was engaged in prescribed employment and had been so engaged for a period of not less than 12 months immediately preceding the date of his or her appointment; or (e) the appointment of the person without probation is otherwise permitted under this Act. (3) Subject to subsection (8), the appointment of an officer on probation may be confirmed - (a) by the Commissioner at any time within the period of 6 months after the date of the appointment; and (b) in the case of an officer other than a Senior Executive Service officer - by the relevant Chief Executive at any time after the expiration of the period of 6 months after the date of the appointment. (4) The appointment of an officer to the Service on probation may be terminated in accordance with subsection (9) by the Commissioner, or the relevant Chief Executive, as the case may be, at any time before the appointment has been confirmed. (5) Where an officer was appointed on probation and at the expiration of the period of 12 months after the date of the appointment on probation, the appointment has been neither confirmed nor terminated - (a) in the case of a Senior Executive Service officer-the Commissioner; and (b) in any other case - the relevant Chief Executive; shall, as soon as practicable after the expiration of that period, either confirm the appointment or terminate the appointment in accordance with subsection (9). (6) The appointment of an officer on probation shall not be terminated under subsection (4) or (5) unless the officer has been given not less than 14 days notice in writing of the date of termination of the appointment. (7) If the appointment of an officer on probation has not been confirmed or terminated before the expiration of the period of 2 years after the date of the appointment, the appointment shall be taken to have been confirmed at the expiration of that period. (8) Subject to subsections (7) and (11), the appointment of an officer shall not be confirmed, or be taken to be confirmed, under this section, unless the Commissioner, or the relevant Chief Executive, as the case may be, is satisfied that- (a) the person selected for appointment has undergone a medical examination to determine the person's standard of health and fitness; and (b) on the basis of the results of such examination, the standard of health and fitness of the officer is satisfactory. (9) The Commissioner or the relevant Chief Executive, as the case requires, shall not terminate the appointment of an officer under subsection (4) or (5) except upon the following grounds: (a) that he or she is not satisfied, after receiving a report from an authorised medical practitioner, as to the officer's health and fitness; (b) that he or she considers, after receiving a report from the officer's supervisor or another appropriate officer, that performance of the officer's duties has not been satisfactory; (c) that he or she considers that the officer is not a fit and proper person to remain an officer of the Service; (d) that he or she is satisfied that the officer is an excess officer." I should also refer to ss 9, 10 and 11 of the Transitional Provisions Act which provide: "9(1)This section applies in relation to a person employed under the Public Sector Act by virtue of section 6 or 7. (2) A person shall be taken to have been employed as an officer - (a) on the terms and conditions provided for under the Public Sector Act and the management standards; and (b) to the extent no such provision is made - on the same terms and conditions as applied to the person immediately before the commencement day. (3) Subject to subsection (4), a person shall be taken to have been employed as an employee on the same terms and conditions as applied to the person immediately before the commencement day. (4) An employee's period of employment may only be extended or renewed, and the terms and conditions of the employee's employment may only be varied, under the Public Sector Act and the management standards." 10(1)This section applies in relation to a person employed under the Public Sector Act by virtue of section 6 or 7. (2) All rights and entitlements that accrued to a person immediately before the commencement day in connection with the person's employment as a member of the transitional staff or by a prescribed entity shall, on and after that day, remain in effect in relation to that person. 11(1)This section applies in relation to a person employed under the Public Sector Act by virtue of section 6 or 7. (2) Subject to subsection (4), a person shall be taken to have commenced employment under the Public Sector Act on the day on which the person last commenced employment in the Australian Public Service or the prescribed entity (as the case may be). (3) Subject to subsection (4), a person shall be taken to have been appointed as an officer under the Public Sector Act on the day on which the person - (a) was last appointed as an officer of the Australian Public Service; (b) was last appointed as an officer of the prescribed entity; or (c) last became a permanent employee of the prescribed entity; as the case requires. (4) Where a day earlier than the day referred to in subsection (2) or (3) was recognised for a particular purpose as the date on which a person - (a) commenced employment in, or was appointed as an officer of, the Australian Public Service; or (b) commenced employment in, was appointed as an officer of, or became a permanent employee of, the prescribed entity; that earlier date shall be recognised for the same purpose as the date on which the person commenced employment or was appointed as an officer (as the case requires) under the Public Sector Act. It was accepted by counsel for both the applicant and the respondent that the effect of these provisions was that Ms Potter's probationary appointment as an officer of the Australian Public Service became probationary appointment as an officer of the ACT Service and subject to the operation of s 70. It was the exercise of the power in s 70 to terminate her appointment that has led to the application under s 170EA of the Act. However, the application raises for consideration s 170CC and reg 30B. Section 170CC authorised the exclusion, by regulation, of specified employees from the operation of specified provisions of Division 3 of Part VIA. Regulation 30B relevantly provides: "30B(1) Subject to subregulation (2), for the purposes f section 170CC of the Act, the following employees are excluded from the operation of Subdivisions B, C, D and E of Division 3 of Part VIA of the Act: (a) ... (aa) ... (b) ... (c) an employee serving a period of probation or a qualifying period of employment, if the duration of the period or the maximum duration of the period, as the case requires: (i) is determined in advance; and (ii) is reasonable, having regard to the nature and circumstances of the employment; (d) ..." It can be seen that reg 30B refers to the duration of the period of probationary employment or the maximum duration of the period of probationary employment and requires that either period be determined in advance. In issue in these proceedings is whether reg 30B operated to render inapplicable to Ms Potter's employment ss 170DE(1) and 170 DF(1). Both provisions are found in Division 3 of part VIA and limit the capacity of an employer to terminate lawfully the employment of an employee. Section 170DE(1) provides: "170DE(1) An employer must not terminate an employee's employment unless there is a valid reason, or valid reasons, connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service." Section 170 DF relevantly provides: "170DF(1) An employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons; (a) temporary absence from work because of illness or injury; (b) ... (c) ... (d) ... (e) ... (f) ... physical or mental disability, ... (g) ..." 170DF(2) Subsection (1) does not prevent a matter referred to in paragraph (1)(f) from being a reason for terminating employment if the reason is based on the inherent requirements of the particular position." If contravention of s 170DE(1) is alleged then s 170EDA requires the employer to establish that there was a valid reason of the type referred to in s 170DE(1) for the termination. Similarly, if contravention of s 170DF(1) is alleged then s 170EDA(2) requires the employer to establish that the termination was not for the reason alleged or that the reason is based on the inherent requirements of the job. The operation of regulation 30B I earlier noted that reg 30B speaks of the determination in advance of the duration of the period of probationary employment or the duration of the maximum period of probationary employment. The applicability of reg 30B received only limited attention in the written submissions of the parties which, having regard to the way the hearing proceeded, were the only submissions I have. In my opinion, the exclusionary effect of reg 30B operates only while an employee is serving the period of probationary employment of the character referred to in reg 30B(1)(c). That is, it operates on probationary employment during the period or maximum period determined in advance. Reg 30B(1)(c) excludes "an employee serving a period of probation" and then identifies the two features the probationary employment must have in subparagraphs (i) and (ii). The appointment of Ms Potter on probation to the Australian Public Service was from 9 September 1993. The period of probation identified in the letter of 20 August 1993 was six months with a possible extension to 12 months. Thus the letter, in form, identifies both a period of probationary employment of 6 months and a maximum period of probationary employment of 12 months. However the letter, in my opinion, identifies in substance only a maximum period of probationary employment as the 6 months was not a period after which the probationary employment would necessarily conclude. Indeed having regard to the terms of s 47, no such fixed period could have been determined in advance. Having regard only to the terms of the letter of 20 August 1993, the only period during which the exclusionary effect reg 30B(1)(c) would operate was the period of 12 months ending on 9 September 1994. However as result of the combined operation of s 47 of the PS Act, the Transitional Provisions Act and s 70 of the PSM Act, the period of probationary employment was extended beyond the period referred to in the letter of 20 August 1993. In Fisher v Commonwealth of Australia (1995) 63 IR 401, Wilcox CJ had to consider the operation of reg 30B on a probationary officer appointed under s 47 of the PS Act. The evidence was that the officer was told, when interviewed for the position, that his employment was probationary and the probationary period would be a minimum of six months. He commenced work on 8 February 1993 and received a letter on or about 19 March 1993 informing him that his appointment was subject to a six month probationary period which might be extended up to a total of two years. In his judgment, Wilcox CJ recounts a submission by the respondent that the maximum period of probation was determined in advance by s 47. His Honour later discusses whether a two year probationary period was reasonable. This consideration seemingly proceeds on the basis that the provisions of s 47 result in the determination of a maximum period of probationary employment in advance though Wilcox CJ does not say so. Wilcox CJ concluded that the maximum period of two years was, in the circumstances, not reasonable. Wilcox CJ expressed the view that it is "not possible to justify a probationary period of two years in relation to a base-grade administrative service officer; that is, a clerk" (at 405). This aspect of Wilcox CJ's decision was not considered again by the Full Court who heard the appeal from the judgment of the Chief Justice: see (1996) 67 IR 123 at 127.4, 129.3 and 131.7. As earlier discussed, the letter of appointment itself identified only a maximum period of 12 months probationary employment. However, notwithstanding that express reference to a maximum period, if s 47 is to be treated as determining in advance a maximum period of two years then that latter period must be treated as the maximum period. This is because it exceeds the maximum period referred to in the letter and is a period that could not be altered by the administrative act of appointment and the articulation of terms of appointment in a letter of appointment. Regulation 30B does not state that the determination of the maximum period need be by the employer or result from agreement between the employer and employee. In my opinion it simply means that the maximum period of probationary employment has been fixed in advance of the employment commencing. In the present case it was fixed by an Act of Parliament and the period fixed is one that, in my opinion, satisfies the description in reg 30B(1)(c)(i) of a maximum duration of the period of probationary employment determined in advance. The question that then arises is whether that maximum period was reasonable having regard to the nature and circumstances of the employment. Counsel for the applicant submitted that the period of Ms Potter's probation was unreasonable and simply relied on the judgment of Wilcox CJ in Fisher (supra). Counsel for the Australian Capital Territory submitted that although the probationary period was long, the crucial distinction is that the delay was caused by the inability to have Ms Potter medically examined until her medical condition had improved so that she would have the best possible chance of passing the examination by the Commonwealth Medical Officer. It was submitted that it was a delay designed to advantage Ms Potter, not disadvantage her and that in these unusual circumstances the delay was not unreasonable. There is evidence I have not yet referred to which supports the contention that, as a matter of fact, the length of the period of probation actually served prior to the second medical examination in March 1995 was to improve Ms Potter's chances of passing it. Ms Potter underwent a medical examination August 1993, as she had been advised in her letter of appointment of 22 August 1993. She failed this examination. Evidence was given by Ms June Forrest, who was then the recruitment officer at the Woden Valley Hospital, that she delayed the second medical examination so as to give Ms Potter as long as possible to recover from an operation she had. It is not clear whether this was a reference to surgery Ms Potter underwent in October 1993 or July 1994 or both. Nonetheless, it is reasonably clear that the delay in having Ms Potter undertake the second examination was to benefit Ms Potter and the effect of that delay was to prolong the period of probationary employment. However whether the length of the period of probationary employment actually worked was reasonable is not the question posed, in the present circumstances, by reg 30B. The question that must be answered is whether the duration of whatever period had been determined in advance was reasonable, having regard to the nature and circumstances of the employment. In the present case it is necessary to consider whether the maximum duration of the period, namely two years, was reasonable. It was that which, as earlier discussed, had been determined in advance. I agree with what appears to have been the view of Wilcox CJ that a maximum period of probationary employment of two years for a junior clerical position in the Australian Public Service ordinarily is not reasonable. Plainly the maximum period determined by the PS Act was not determined with a view to accommodating Ms Potter or probationary officers in her position. The legislative scheme provides in s 47(9) for a medical examination to determine the officer's health and fitness. It is unlikely, in my opinion, that the scheme was originally developed to accommodate the appointment of a person who was probably not medically fit in the hope that during the maximum probationary period of two years they might become medically fit. The maximum period was no doubt determined to accommodate the appointment of officers to all levels of the Australian Public Service including more senior levels. Indeed s 47(6) makes plain that, in the ordinary course, the probationary appointment of officers, including SES officers, will be assessed and either confirmed or terminated no later than shortly after 12 months after the initial appointment. However notwithstanding that the scheme in s 47 was not intended, in my opinion, to accommodate probationary officers in the position of Ms Potter, it does not preclude the appointment of a person who was probably medically unfit, was undergoing a program of rehabilitation and might become medically fit during the period of probationary employment. I return to consider reg 30B. The purpose of probationary employment is to provide for a period in which an employee can be trained to do the work and in which an assessment made of their aptitude and capacity to do the work once the employee is trained or partly trained: see Ryan v Furneys Stockfeeds Ltd (1996) 66 IR 298. That occurs before the employment becomes more permanent and, for present purposes, would then be subject to the constraints on termination imposed directly by Part 3 of Division VIA of the Act deriving from the Convention Concerning Termination of Employment at the Initiative of the Employer: see schedule 10 of the Act and, in particular, Article 2(2)(b). Regulation 30B requires consideration of the nature of the employment when assessing reasonableness. That appears to me to be a reference to the type of work involved in the employment. As earlier mentioned, a maximum period of probation of two years is not, for the purposes of reg 30B, reasonable for a junior clerical position in the Australian Public Service. It is ordinarily not necessary or reasonable to allow for a period of two years to assess a junior clerk's capacity to do the work. However, regulation 30B also requires consideration of the "circumstances of the employment" when assessing reasonableness. That expression is in sufficiently wide language to comprehend consideration of circumstances personal to the employee, including his or her state of health, as they related to the employment and the probationary employee's capacity to do it. In order to consider whether the maximum period of two years was reasonable having regard to the medical condition of Ms Potter, it is necessary to consider in slightly more detail some of the evidence. It is mainly documentary evidence tendered by consent. In probably November 1992, an assessment was made of Ms Potter's situation "to determine Ms Potter's functional capabilities in regards to her work situation". It was made by Ms Hurley, who was, it would appear, also involved in Ms Potter's case management. Ms Hurley is an occupational therapist. In that report the following appears: "Current Work Area Assessment Following her injury Ms Potter managed to secure a full time position in the X-ray typing area on a three month temporary contract. This position involves sorting and filing, report typing from Dictaphone (use of foot pedal for Dictaphone) and other clerical duties. The other element of the job involves handling of X-ray bags containing the Doctors [sic] report films, in order to sort them into I/P and O/P classifications. This requires lifting of heavy bags from one trolley to another which Ms Potter is currently able to do from a medical perspective. In regards to the work situation, Ms Potter is working from a desk in addition to the keyboard. Recommendation was made in regards to posture and ergonomic positioning for typing and other clerical work such as filing/sorting. Her screen needed raising to an appropriate height and her chair did not appear to be fully supporting. She was advised to take breaks from sitting every 10-15 minutes and go for a walk every hour. Ms Potter could see the benefit of this, although was concerned as to the work load and availability of time therefore to take the appropriate breaks. A subjective assessment on my part is that there is considerable pressure within the area to complete the volume of work within specific time frames. Liaison with the treating Physiotherapist since the work station assessment verifies the necessity of breaks. Ms Potter's pain has also be peripheralized since her return to work which indicates a deterioration in underlying pathology (disk bulge and nerve root irritation). The Physiotherapist believes this is due to prolonged sitting and working hours in excess of her current tolerances." It is to be recalled that Ms Potter applied for the probationary position on 30 March 1993. On 30 July 1993 Ms Potter was seen by Dr Leon Leu, a senior specialist at the Woden Valley Hospital. In a report of the same date he said: "I saw the above again today. She will need to have surgery in the next couple of months. The long term view, in my opinion, is that she will never be able to return to work which is of the heavy manual type; this precludes her former ward assistant work and, or course, nursing. Hence I think the clerical route is the one she must take. She is taking active steps to find another job of that type. Could you assist her in that?" These remarks are contained in a report to Ms Cooper who was Ms Potter's case manager at the hospital. Ms Cooper had earlier written to Dr Leu on 4 June 1993 and had said: "Since commencing in CMU Kim has been unable to increase her hours beyond 2 hours per day. In fact, from my observation I suspect she is really struggling at times to maintain these few hours. Although she has a background in clerical work Kim was employed as a ward assistant at the time of her injury. There is no prospect of permanent redeployment to a clerical position except by winning a job on merit. Until such time as her physical condition improves she would be incapable of handling the lightest of clerical jobs. I feel strongly for Kim in her "stuck" situation. She is a feisty character who is highly motivated to resolve her situation. Pain and frustration really appear to be getting on top of her recently. HELP!!" It was in these circumstances that Ms Potter applied for and was appointed to a clerical position in the Australian Public Service. In a copy of the letter of appointment of 20 August 1993 in evidence, there is a handwritten note of Ms Potter's in the following terms: "Failed this medical. CMO wants to review after surgery. Advised by June not to worry - medical time limit can be extended to 2 years - after 2 years confirmation automatic." The reference to June is to Ms Forrest who, as earlier indicated, was the recruitment officer at the hospital handling the appointment of Ms Potter. That note is consistent with evidence given by Ms Forrest that at the time of the appointment of Ms Potter she had a conversation with her. Ms Forrest's account was that in that conversation Ms Potter expressed concern about passing the medical examination because she was due to have an operation on her back in the near future and that Forrest responded by saying she had two years in which to pass it. It is not entirely clear whether this is the same conversation noted by Ms Potter, though it is unlikely it is as the later conversation was noted after the examination by the medical officer. It is relatively clear that at the time Ms Potter applied for and was appointed to the clerical position as a probationary officer there was no expectation that she would be able to do the work required of a full time employee immediately. She was then working, as noted by Ms Cooper, two hours per day and was having difficulty in working those few hours. Surgery had been recommended. The evidence does not clearly indicate the period it might take Ms Potter to recover from surgery, if it was successful, sufficient to perform full time the duties of the position for which she had applied. However there is nothing in the evidence to suggest that the prospects of her being on probation for a period of two years was unreasonable. It appears to me that at about the time she applied for and was appointed to the position in 1993, a number of employees in the hospital were entirely supportive of her position. Ms Potter was being urged to apply for a clerical position and efforts were being made to enable her to rehabilitate by promoting her appointment to the position. Ms Cooper provided a referee's report dated 11 August 1993 which is in the most positive terms. No mention is made in the report of what was said a month earlier in the memorandum to Dr Leu about the extremely limited capacity of Ms Potter to undertake clerical work. In these circumstances it was, in my opinion, reasonable for there to have been a maximum probationary period of two years in which Ms Potter could, first, undergo surgery and, second, rehabilitate herself to a point where she could perform the duties required of her in a full time clerical position. To this point I have proceeded on the assumption that the relevant time for consideration of the operation of reg 30B was immediately before 9 September 1993 when Ms Potter took up the appointment on probation in the Australian Public Service. The relevant time was not an issue canvassed in the written submissions of the parties. In opening, Counsel for Ms Potter indicated, in response to questions asked by me, that the relevant employment for the purposes of the application was the employment with the Australian Capital Territory commencing on 1 July 1994. It may therefore be that it is appropriate to consider the position of Ms Potter at that time, though the effect of s 11 of the Transitional Provisions Act may make that unnecessary as the time of appointment to the ACT Government Service is treated as the time of prior appointment to the Australian Public Service. Nonetheless, if 1 July 1994 is the relevant date, then the maximum period of probationary employment was determined by the combined operation of s 47 of the PS Act, s 9 of the Consequential Provisions Act and s 70 of the PSM Act. They operated so as to identify the maximum period of probationary employment as the residue of the two years commencing 9 September 1993, namely the period 1 June 1994 to 9 September 1995. However, even approaching the matter on the basis that 1 July 1994 was the relevant date, my conclusion remains the same. The maximum period of probationary employment would, at that date, have been approximately 15 months. At that stage, Ms Potter had undergone an operation and was shortly to undergo another operation. She was, according to the oral evidence she gave, working only very limited hours per week. The amount of time she could work depended on the pain she suffered, but generally she was working a maximum of 15 hours per week. The maximum period of 15 months was reasonable for the same reasons I gave earlier in relation to the period of 2 years from 9 September 1993. A submission was made by counsel for Ms Potter that the Australian Capital Territory was not entitled to treat Ms Potter as a probationary employee. This was said to arise from a conversation between Ms Potter and Ms Forrest which occurred on or about 18 August 1993, and the application of the principles of estoppel. According to Ms Potter, she asked Ms Forrest to check to see whether she would be keeping her "8C coverage". This was a reference to the rights Ms Potter had as a continuing employee under Division 8C of Part III of the PS Act. This was, according to Ms Potter, in the context of a discussion about whether the clerical ASO2 position for which Ms Potter had earlier applied was a promotion or transfer. According to Ms Potter, Ms Forrest went away and came back shortly. The conversation recounted in Ms Potter's affidavit included the following exchange: "Potter: "Did you check my 8C coverage?" Forrest: "Oh yes, you are well and truly over the time limits. There is no doubt about that. So, I'll have it in the Gazette in the next few weeks." Ms Forrest said she did not recall this conversation and, had it taken place, she said she was certain she would recall it. She said that had she been asked about "8C coverage" she would have advised Ms Potter that this coverage was lost or overtaken on appointment. Both Ms Forrest and Ms Potter were cross examined about this conversation. Ms Forrest struck me as an honest witness intent upon telling the truth. No attempt was made to demonstrate that she did not, as a recruiting officer, have a reasonable grasp of the provisions of the PS Act. Her affidavit makes clear she understood its effect at least at the time the affidavit was sworn. Notwithstanding the enormous sympathy I have for Ms Potter having regard to the predicament she is now in, I did not find her an entirely credible witness. I thought she was keen to answer questions in a way that would advance her case. In her oral evidence she said she asked Ms Forrest whether "she had plenty of 8C coverage" to which Ms Forrest replied yes you have and had no need to worry. The variance in the accounts of the conversation and the non acceptance by Ms Forrest of the version recounted in the affidavit of Ms Potter, leaves me doubting that a conversation took place in which Ms Forrest said anything that constituted a representation that the provisions of Division 8C would continue to apply to Ms Potter if appointed to a position as an officer in the Australian Public Service. It is said on behalf of Ms Potter that it is unlikely that she would have given up her status as a continuing employee if, to do so, would have resulted in loss of the protection afforded by Division 8C. It may be that something was said to her that led her to believe that Division 8C would continue to apply to her employment while on probation. However I am not satisfied a clear representation to that effect was made to her. A representation founding an estoppel must be clear: see Legione v Hateley (1983) 152 CLR 406 at 435-436 and Foran v Wight (1989) 168 CLR 385 at 410-411 and 435-436. I have concluded that reg 30B operates to deny Ms Potter the benefits of the operation of the provisions of Division 3 of Part VIA upon which her application depends. That conclusion is sufficient to dispose of the application under s 170EA. I should indicate, however, that I continue to believe, as I made plain in the proceedings, that every effort should be made to find employment for Ms Potter. It is accepted by the Australian Capital Territory that an obligation to do so arises under s 40 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). I also consider that an unduly narrow view was taken of the power to terminate for reasons of medical unfitness conferred by s 70 of the PSM Act if it was based solely on the report of Dr Boyapati. Dr Boyapati based his opinion, in part, on the likely amount of leave Ms Potter might take. That appears to be to me to be wholly irrelevant. It is not clear by reference to what standards the assessment by Dr Boyapati was made. Moreover, it is not apparent that those who decided to terminate Ms Potter's employment gave any real consideration to the "Principle of Reasonable Adjustment", an excerpt of which was set out earlier in this judgment. The Principle of Reasonable Adjustment intended to benefit people in the position of Ms Potter who, by the account of others and as she presented in Court, is a tenacious and spirited individual determined to make the most of what appears to have been an extremely unfortunate chain of events leading to her present incapacity. I dismiss the application under s 170EA. I certify that the preceding thirty-one (31) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore. Associate: ...................... Alexandra George Dated: 10 February 1997 APPEARANCES Counsel for the Applicant: Mr I. Neil Solicitor for the Applicant: Barker Gosling Solicitors Counsel for the Respondent: Mr C.M. Erskine Solicitor for the Respondent: ACT Government Solicitor Dates of Hearing: 4 November 1996 Written Submissions Complete: 13 December 1996