HARDIE -V- STARCON PTY LTD [1997] IRCA 188

DECISION NO:188/97 CATCHWORDS INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - JURISDICTION - whether PROBATIONARY PERIOD determined in advance- whether PROBATIONARY PERIOD reasonable length of time- whether relevant distinction between the term PROBATIONARY PERIOD and TRIAL PERIOD - Workplace Relations Act 1996 ss170EA Workplace Relations Regulations Regulation 30B Hornett & CFMEU v Borg Manufacturing Pty Ltd. (unreported, IRCA, Moore J, 6 February 1997) HARDIE -V- STARCON PTY LTD VI 1097 of 1997 Before : PARKINSON JR Place : MELBOURNE Date : 22 MAY 1997 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1097 of 1997 B E T W E E N: John HARDIE Applicant A N D STARCON PTY LTD Respondent MINUTES OF ORDERS 22 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 1097 of 1997 B E T W E E N: John HARDIE Applicant A N D STARCON PTY LTD Respondent REASONS FOR DECISION (ex-tempore - revised from transcript) 22 MAY 1997 PARKINSON JR This is my decision delivered ex-tempore in relation to a preliminary jurisdiction question arising in a proceeding brought pursuant to Section 170EA of the Workplace Relations Act 1996.('the Act') The applicant was employed by the respondent on 16 September 1996 and his employment was terminated on 29 November 1996. He was in the employment of the respondent for a period of 2˝ months. The respondent contends that the applicant was engaged on a three month probationary or trial period of employment and consequently that Regulation 30B(1)(c) operates to preclude the application. The applicant contends that for the purposes of Regulation 30B(1)(c) there is a relevant distinction between the term probationary period and trial period, that no such trial period was determined in advance, and further contends that the period of three months was not a reasonable period having regard to the nature of the employment and the applicant's experience in the performance of the type of work required. As to the distinction between the concept of a trial period and a probationary period no material was put to the Court to identify the effect upon the application of Regulation 30B(1)(c) of such distinction. In this case I am not satisfied that any distinction ought be drawn between the use of the term trial period by the respondent and the term probationary qualifying period of employment used in the regulation. In the circumstances of this proceeding I am satisfied that the trial period relied upon by the respondent was a trial directed both to the viability of the position as well as the appropriateness of the applicant for the position and his capacity to perform the duties. I am not satisfied that the fact that the ongoing viability of the position was also part of the reason for the trial period that this is a matter that would take the trial period outside of the reach of Regulation 30B(1)(c) of the Act. I turn first to consider the question of whether there was a probationary period established in advance. It is apparent that for the Regulation to operate to preclude the application the reference to in advance is to be construed as meaning in advance of the employment. This is consistent with the approach taken by Moore J in Hornett & CFMEU v Borg Manufacturing Pty Ltd. (unreported, IRCA, Moore J, 6 February 1997) I accept the submission of counsel for the applicant that advice of a probationary period being made after the commencement of the employment would not bring such a period of probation within the scope of the exercise of Regulation 30B(1)(c). The respondent contends that such advice was given in advance of the employment commencing. The evidence of the parties in this proceeding is in direct conflict as to the contents of the discussions held prior to the employment commencing. I accept the evidence of Mr. Lewis-Williams that he created the document which was the letter of appointment, with a view to transmitting the document to the applicant and I also accept that the applicant did not receive the document by facsimile on that evening. The evidence of Mr. Lewis-Williams is when the applicant attended the workplace on the first day of the employment he gave the applicant a copy of the letter he had sent by facsimile. The letter contained specific reference to a three month trial period operating in relation to the employment. The applicant's evidence was that no trial period was mentioned to him at the interview or in any telephone conversation held between him and Mr.. Lewis-Williams prior to the employment commencing. His evidence was that the discussions held broadly discussed the nature of the position and the nature of the respondent's business. His evidence acknowledged an understanding that the position was a new position and that its scope and potential was uncertain. Whilst the applicant was firm in his evidence that there was no discussion or mention of a probationary or trial period of employment to commencement of the employment, he conceded in evidence that there were aspects of the discussions held which he was unable to recall. He conceded in cross-examination that on the first day of his employment a discussion occurred between himself and Mr. Lewis-Williams wherein the trial period of three months was raised by Mr. Lewis-Williams. His evidence is that this was the first time it was raised with him. He was asked in cross-examination why, if he had known prior knowledge of the probationary period, he did not raise it or express any surprise to Mr. Lewis-Williams at that time. His reply was that in view of the difficulty encountered in obtaining employment as a consequence of his visual disability he was not in a position to take issue with anything. Whilst I accept that it would be difficult for the applicant to take issue with the appropriateness of a probationary period, nevertheless having heard the applicant in these proceedings I am satisfied that he is a person who would be unlikely not to express some surprise or make some comment upon a probationary period being raised after the employment commenced, without any notice to him prior to acceptance of the employment. On balance having regard to the circumstances of the position created, its initial creation as a casual position for a limited number of hours per week, the evidence that as early as the first day of the applicant's employment the issue of three months probationary period was raised by Mr. Lewis-Williams with the applicant, and having regard to the evidence of Mr. Lewis-Williams and Mr. Davies as to their discussion as to the uncertainty of the viability of the position and the need for a trial period of at least three months, I am satisfied that on balance there was a probationary period established in advance of the employment and that on balance the applicant was informed in advance of the employment of the application of a probationary period. This finding is also consistent with the documentary material associated with the employment funding program, (Exhibit R3), wherein the basis of the funding period was identified as being for the purpose of obtaining permanent employment. Mr. Lewis-Williams's evidence was further, that in initiating the telephone conversations with the applicant and on the occasion of the interview at the respondent's premises, mention was expressly made by him of there being a three month trial period in relation to the employment. His evidence was that this period was determined in the context of the newness and uncertainty of the position. The evidence of the parties in this proceeding is in direct conflict as to the contents of the discussions held prior to the employment commencing. I accept the evidence of Mr. Lewis-Williams as to the three month trial period being notified in advance. I turn now to consider whether the probationary or trial period was a reasonable period having regard to the nature of the circumstances of the employment. It is clear that the applicant was an experienced telemarketing employee. It is also clear that he was familiar with the processes to be applied in conducting such business. I am satisfied that there were, as with any new position, aspects of the duties and the operations of the respondent with which it was necessary for the applicant to become familiar. I am also satisfied that the respondent in establishing the position was unsure of its viability as an ongoing position. The evidence of Mr. Lewis-Williams was that it was foreseen by the respondent that the viability of the position would require a period of at least eight weeks to assess having regard to the lead times in establishing contact with clients and orders being obtained. His evidence was that in determining what was an appropriate trial period he took into account that the position was a new position. His evidence was that by the end of two months it would be starting to see results and by three months the employee would be familiar with all aspects of the position. Mr. Haine's evidence was that he had no idea of the extent of the job when he commenced the employment and that no-one did. There are a number of factors which lead me to conclude that the probationary period of three months was in the circumstance reasonable. The first is that the position was new and untried and its scope was uncertain and I am satisfied that there was a significant lead time until it could be reasonably assessed whether the position was viable and whether the applicant was performing the duties successfully. In view of these matters I am satisfied that the period of three months applied as probationary period in that the circumstance of this employment was a reasonable period of time. For the reasons set out in this judgment the Court finds that it is precluded by operation of Regulation 30B(1)(c) of the Act from hearing and determining this application I find that I am precluded in exercising jurisdiction in relation to the Section 170EA application. I certify that this and the preceding three (3) pages are a true copy of the reasons for decision of Judicial Registrar Parkinson. Associate : Dated : 3 June 1997