MCLEAN -V- KIDS KORNER PTY LTD [1997] IRCA 181

DECISION NO:181/97 CATCHWORDS INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - JURISDICTION - whether PROBATIONARY PERIOD - VALID REASON - whether OPERATIONAL REQUIREMENT - whether OPPORTUNITY TO RESPOND - Workplace Relations Act 1996 ss170DC, 170DE(1), 170EA Workplace Relations Regulations Regulation 30B Selvachandran and Peteron Plastics Pty Ltd (1995) 62 IR 371 MCLEAN -V- KIDS KORNER PTY LTD VI 2547 of 1996 Before : PARKINSON JR Place : MELBOURNE Date : 21 MAY 1997 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2547 of 1996 B E T W E E N: Kim Maree MCLEAN Applicant A N D KIDS KORNER PTY LTD Respondent MINUTES OF ORDERS 21 MAY 1997 PARKINSON JR THE COURT ORDERS THAT: 1. The application pursuant to Section 170EA of the Workplace Relations Act, 1996, be dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2547 of 1996 B E T W E E N: Kim Maree MCLEAN Applicant A N D KIDS KORNER PTY LTD Respondent REASONS FOR DECISION 21 MAY 1997 PARKINSON JR This is a decision on an application made pursuant to Section 170EA of the Workplace Relations Act 1996.('the Act') The applicant was employed by the respondent as a childcare worker at its newly opened child care centre in Geelong. The applicant commenced the employment on 12 March, 1996 and the employment was terminated on 1 July, 1996. The applicant was initially employed on a probationary basis. The probationary period was for a period of 10 weeks from date of commencement. The evidence is that due to some issues arising in the employment the probationary period was extended, by the respondent, for an additional period of ten weeks. The applicant's evidence, was that she was never advised of the period for which the probation had been extended. I accept that there was an uncertainty about the period for which the extension was to operate. The respondent contends that the applicant is precluded by Regulation 30B(1)(c) of the Act from bringing this proceeding. It was not put that the applicant was a person engaged on a short term contract for a specified period of time as provided for by Regulation 30B(1)(c). It is clear that the initial probationary period was for a specified period of 10 weeks and that period was determined in advance of the employment commencing and confirmed in the Individual Employment Agreement, (Exhibit R8), subsequently executed by the parties on 16 April, 1996 and 30 April, 1996, however in my view the extended probationary period does not fall within the reach of Regulation 30B(1)(c). Regulation 30B(1)(c) provides: '30B(1) [Excluded employees] Subject to subregulation (2), for the purposes of 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: (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; ...' It is also clear that the extension of the probationary period was not determined in advance of the employment and nor was such an extension expressly provided for by either the Individual Employment Agreement or the Staff Handbook, (Exhibit R5), both of which may be said to form part of the employment contract. The period of the extension of the probation was uncertain and unspecified. Further I accept the submission of counsel for the applicant that the period of probation, being as it was for a total period of in excess of 20 weeks, was an unreasonable period having regard to the applicant's previous employment and the daily supervision under which she worked. I am satisfied that the applicant was not, at the time of the termination of the employment, subject to a probationary period of the type contemplated by Regulation 30B(1)(c) of the Act. Consequently the Court has jurisdiction to hear and determine the application. I turn now to consider the substantive matters arising from s170DE(1) and s170DC of the Act. The respondent contends that the applicant's employment was terminated as a consequence of her repeated failure to follow instructions and to take direction from more senior staff. As I understand the respondent's case it also contends that the applicant had not performed her duties in accordance with the policy guidelines published by the respondent and that her demeanour and attitude was incompatible with the operation of a harmonious workplace. On 18 April 1996 a discussion was held with the applicant in relation to a number of aspects of her work performance which the respondent found to be unsatisfactory. A number of issues were raised, including an incident alleged to have occurred with one of the children. A document was produced the following day setting out the matters discussed. The applicant did not agree to the manner in which an incident was described in the first document and declined to sign it unless the reference to that incident was removed. The document was duly amended and the applicant signed the amended document.(Exhibit R6) The matters identified in Exhibit R6 as having been raised with the applicant at the meeting, included that the respondent had received complaints from other staff members that the applicant had spoken to children in an inappropriate tone or manner and had failed to follow directions of more senior staff. The applicant responded to the issues by indicating that she had been unaware she had spoken in the manner complained of, and unaware that she had failed to follow a direction of a supervisor. The meeting concluded with the applicant indicating that she would address the matters raised and Ms Freeman advising that she would follow up the matters discussed. I accept Ms Freeman's evidence that she advised the applicant at this meeting that she would "not be offering the applicant a permanent contract" at the end of the probationary period in late May, but rather would extend the probationary period. Although it was not made clear to the applicant what period the extension would operate, I accept that the parties understood that the employment would continue on an extended probationary basis. For the reasons I have set out earlier, this extension does not operate to preclude the jurisdiction of this Court to hear and determine the claim. Some interesting questions arise as to the contractual effect of the extension of the probation , however those matters were not argued and for the purposes of this decision it is unnecessary for me to find other than that the employment was a continuing employment, for an unspecified period, after the expiration of the written agreement on 27 May, 1996. However, it is clear that at this point in the employment the applicant must have had an appreciation, both by the counselling session and by the extension of the probationary period and the respondent expressly declining to "offer her a permanent contract", that the respondent had concerns as to her work performance. I am satisfied that the respondent's concerns were bona fide held and that they related to the applicant's actual work performance, including her level of job satisfaction and contentment in the role. These matters are important matters in the scheme of things in a child care centre. As I understood it, the general import of Mrs Freeman's evidence was that the demeanour and morale of staff in a centre are factors affecting day to day operations and that these matters can have an affect upon the children in the care of the centre. It is clear that it is the role of a director or supervisor of a centre, with whom rests the ultimate responsibility for the welfare of the children, to ensure that the workplace is as harmonious as possible. Therefore the fact that the director perceived that the applicant was uncomfortable or unhappy with her employment or duties, was a relevant matter to be raised with the applicant. I am satisfied that there was a level of dissatisfaction held by the applicant as to her duties and responsibilities, particularly when she was employed in the toddlers room. This is evidenced by an exchange between Mrs Connelly and the applicant after an incident involving a child in the toddlers room. Mrs Connelly's evidence was that the applicant expressed that working in the toddlers room was frustrating, to which Mrs Connelly replied to the effect that it was always going to be like that in that room. I am satisfied that matters of work dissatisfaction and confidentiality were raised with the applicant on at least 2 occasions after the meeting of 18 April, 1996. These matters were all relevant to the decision of Mrs Freeman not to confirm the applicant's employment as permanent. Two incidents in particular had occurred in the period between the meeting of 18 April and the termination of the employment, which suggested to the director that the applicant was not happy with the work place. One related to the applicant's complaint as to the manner in which work was performed at the centre and the second to a parent's complaint that confidential matters had been discussed by the applicant without authority. Enquiry of other staff members at that time by Mrs Freeman also led her to the conclusion that the applicant's work performance, level of co-operation and satisfaction in the employment had not improved. Evidence was called from Ms. Lauren Smith and Mrs. Maureen Connelly, both being employees of the centre. Ms Smith had recently qualified as a Mothercraft Nurse and Mrs Connelly was a Pre School Mothercraft Nurse, qualified for 14 years and of 21 years experience. Both witnesses gave evidence that the applicant's manner with the children was a source of concern to them during the employment and that they had raised these concerns with both the applicant directly and with the director of the centre, Mrs Freeman. Ms. Connelly referred to the applicant's tone of voice and described the applicant as being rude and disrespectful in speaking to the children and she also described her observations of the applicant exhibiting anger and frustration towards the children. Ms Connelly also gave evidence that the applicant would fail to respond to her requests for matters to be attended to and duties to be performed. This was also the evidence of Ms Smith. I accept the evidence of these witnesses. I prefer their evidence to that of the applicant, owing to their more certain recollection of events. I found their evidence to be generally measured and cautious as to the events described. I did not find their evidence to be characterised by exaggeration as was submitted by counsel for the applicant. I accept that it is understandable that they may not be able to account as to the date or time of each event or instance alleged to have been observed by them and I am satisfied that sufficient examples of matters which raised their concern were given. I am satisfied that there was a fundamental breakdown of the relationship between the applicant and the other employees at the centre. It is apparent from the evidence that the parties had different views as to the manner in which children were to be dealt with and work performed. It is also clear that the applicant's view of appropriate conduct was different to that held by other employees and that required by the management of the centre. The policy of the centre was clearly set out in theStaff Handbook, which I am satisfied were provided to all employees at commencement of the employment. I am also satisfied that there was a common understanding of what was required in terms of the manner of approach to the children. I am satisfied that the applicant did not perform her duties in accordance with the requirements set out in the respondent's policy. I am satisfied that the respondent had valid reason for the termination of the applicant's employment based upon the work performance of the applicant and the operational requirements of the respondent. The operational requirement, being the necessity to maintain a harmonious environment in the interests of the children at the centre. I am satisfied that the reason for terminating the employment was sound defensible and well founded. I am further satisfied that the respondent in terminating the employment did not act capriciously or with malice and this is evidenced by its attempt to resolve the issues by extending the probationary period to allow for a further opportunity to the applicant to improve in the employment and satisfy the respondent that she was suitable for more permanent appointment. This is not the action of an employer acting capriciously or without regard to the applicant's interests. The applicant's counsel submitted that the respondent's failure to comply with the provisions of the dispute procedure set out in the policy handbook constitutes the termination of the employment as 'capricious' in the sense discussed in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371. The respondent contends that as a consequence of the probationary period being extended there was no obligation to comply with the dispute procedure set out in the employment agreement. The flaw in this submission is that there is no provision in the employment agreement or the Staff Handbook which precludes the operation of the disputes or disciplinary provisions in circumstances of probationary employment. The applicant was entitled to the benefit of those provisions and to the extent that the applicant was not accorded the benefit of such provisions is a matter relevant to the Court's consideration of whether the termination of the employment was capricious. However all of the circumstances of the termination of the employment are relevant to be taken into account when considering this issue. I am satisfied that the conduct of the respondent in counselling, providing a written confirmation of the issues, and allowing the work to continue for a significant period of time beyond the original probationary period, rather than simply terminating the employment during the initial probationary period, are in my view evidence of substantive compliance with the policy. In the circumstances, the failure of the respondent to provide a further written warning prior to terminating the employment, having regard to the processes undertaken by it, did not constitute the termination of the employment as capricious and consequently not for valid reason. I am satisfied that the respondent had valid reason for the termination of the employment, consequently there has been no contravention of s170DE(1) of the Act. I turn now to consider the matters arising under s170DC of the Act. On 1 July, 1996 the respondent terminated the applicant's employment during the course of an interview between the applicant and the centre's director Ms Freeman. In the course of that interview the respondent advised the respondent that it did not think the applicant was happy in the employment and that it was felt that she had not improved in the areas of concern previously outlined to her so as to warrant a continuation of the employment. I am satisfied though these matters may have been clumsily raised, nevertheless the applicant understood the matters which were being referred to and in the circumstances of the interview had an opportunity to reply to the issues raised and the decision to terminate the employment. I am satisfied that the respondent accorded the applicant an opportunity to respond in relation to the matters which were alleged against her. There has been no contravention of s170DC of the Act. For the reasons set out herein the application will be dismissed.