Industrial Relations Commission New South Wales Medium Neutral Citation: Cachuela v Commissioner of Police, NSW Police Force [2024] NSWIRComm 1053 Hearing dates: 19 August 2024 Date of orders: 23 August 2024 Decision date: 23 August 2024 Jurisdiction: Industrial Relations Commission Before: Commissioner McDonald Decision: The unfair dismissal application filed by the applicant is dismissed. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal ­— Jurisdiction — Employee dismissed five days before end of probationary period — Reasonable period of probation – Minimum probation period prescribed by statutory rule — Probationary period reasonable having regard to nature and circumstances of employment – No jurisdiction to hear and determine unfair dismissal claim Legislation Cited: Government Sector Employment (General) Rules 2014, r 5(2)(b) Government Sector Employment (NSW Police Force) Rules 2017 (NSW), rr 2, 28 Industrial Relations Act 1996 (NSW), ss 81, 83, 84, 85, 88, 89 Industrial Relations (General) Regulation 2020 (NSW), reg 6 Interpretation Act 1987 (NSW), ss 3, 5, 41, Schedule 4 Dictionary Police Act 1990 (NSW), ss 6, 81E, 81F, 93A Public Sector Employment and Management Act 2002 (NSW), s 23 Cases Cited: Beadman v NSW State Emergency Service [2020] NSWIRComm 1043 Commissioner of Police v Eaton [2013] HCA 2; 252 CLR 1 Levy v New South Wales Fire Brigade [2009] NSWIRComm 1011 Nicolson v Heaven & Earth Gallery Pty Ltd [1994] IRCA 43; (1994) 57 IR 50 Shrestha v City of Ryde Council [2024] NSWIRComm 1005 Smith v Corrective Services [2012] NSWIRComm 30 Category: Principal judgment Parties: Charisse Cachuela (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Solicitors: Emily Baxter, Kingston Reid Pty Ltd File Number(s): 2024/222963 Publication restriction: None DECISION 1. On 12 June 2024, the Applicant, Charisse Cachuela, filed an Unfair Dismissal Application following the termination of her employment with the New South Wales Police Force (NSWPF). 2. The Applicant had commenced employment with the NSWPF on 8 November 2023 as a Senior Planning Officer, Clerk Grade 9/10. As an administrative employee of the NSWPF her employment was governed by, inter alia, the Crown Employees (NSW Police Force Administrative Officers and Temporary Employees) Award 2009, various provisions in the Police Act 1990 (NSW) and the Government Sector Employment (NSW Police Force) Rules 2017 (NSW) (GSE (NSWPF) Rules). 3. Pursuant to r 28 of the GSE (NSWPF) Rules the Applicant's employment was subject to a period of probation of six months. On 3 May 2024, five days before the end of the probationary period, the Applicant's employment was terminated by Assistant Commissioner Brett Greentree on the basis that the Applicant's conduct and performance "was not of a consistently high standard to warrant [her] continued employment with NSW Police Force." Assistant Commissioner Greentree's letter to the Applicant of the same day advising of her termination stated: "On this basis and in accordance with section 81E(1)(a) of the Police Act 1990, I have determined that you have failed to meet a condition of your engagement dealing with your probationary period." 1. The Applicant maintains that she performed her role to the standard required and to the extent she did not (which she denies), it was due to the fact, inter alia, that for a period from mid-February 2024 to April 2024, she was not assigned appropriate tasks. 2. On 27 June 2024, being the same day an unsuccessful conciliation was held before me, the Respondent filed a Notice of Motion seeking an order that the Unfair Dismissal Application be dismissed or otherwise set aside. The motion was supported by an affidavit sworn on 26 June 2024 by Emily Baxter, the solicitor on the record the Respondent, who deposed to the fact that the Applicant's employment was terminated within six months of the commencement of the Applicant's employment, that is, within the probationary period; and that the Application was filed 19 days out of time. 3. The Respondent initially relied on two grounds to have the Unfair Dismissal Application dismissed or otherwise set aside, namely that: 1. the Applicant was serving a probationary period and is exempted from Chapter 2, Part 6 of the Industrial Relations Act 1996 (NSW) (IR Act): s 84(2) IR Act; and 2. the Application was out of time: s 85 IR Act. 1. However, in the Respondent's Outline of Submissions filed on 30 July 2024 (RS) the Respondent stated she did not press its objection that the Application was filed out of time, for the purposes of the Motion, in circumstances where the Commission may accept an application filed out of time pursuant to s 85(3) of the IR Act. During the hearing of the Motion the Respondent made clear that the question of whether the Commission should accept the Application out of time was a matter still to be determined, but that it only need be determined if the Commission first determines that the Applicant was not exempted from Chapter 2, Part 6 of the IR Act. 2. For the reasons developed below, I have determined that the Applicant is exempted from Part 6 of Chapter 2 of the IR Act by reason of reg 6 of the Industrial Relations (General) Regulation 2020 (NSW) (IR Regulation), and consequently she is unable to apply to the Commission for relief under Part 6 of Chapter 2. In the circumstances her Unfair Dismissal Application must be dismissed. The Evidence 1. Ms Baxter's affidavit of 26 June 2024 [1] annexed a copy of a letter from the Respondent to the Applicant dated 24 October 2023 offering her the role of Senior Planning Officer, which had been signed by the Applicant indicating her acceptance of the offer, on 25 October 2023, together with a copy of Assistant Greentree's letter of 3 May 2024 terminating the Applicant's employment. The Respondent also relied on an affidavit of Ms Baxter sworn on 30 July 2024 [2] which annexed a copy of the role description for a Senior Planning Officer, Clerk Grade 9/10 (Role Description). Both affidavits were read without objection and Ms Baxter was not required for cross examination. 2. The Applicant, who was unrepresented, relied on her Unfair Dismissal Application and the documents attached thereto. [3] I admitted that document for the limited purpose of establishing the asserted bases upon which the Applicant brought her application and the fact of certain communications having occurred, but not for the truth of any matter contained in or attached to the Application. 3. The Applicant read an affidavit which she had sworn on 10 July 2024. [4] In that affidavit she purported to "formally request" that her probationary period be reduced to three months, on the basis that this was sufficient time for the Respondent to affirm her suitability to the role given that she has "over 17 years dedicated to law enforcement." 4. The Applicant also read an affidavit sworn by herself on 13 August 2024. [5] The Applicant annexed to that affidavit examples of her work and items of correspondence with supervisors in which, she asserted, her work had been recognised and commended. 5. The Respondent did not oppose the affidavits being admitted into evidence on the basis that expressions of opinions and statements in the nature of submissions contained within the affidavits be treated as such and given no or little weight. On that basis, I admitted both affidavits. The Applicant was not cross examined. 6. The evidence established the following facts. 1. The mission of the NSWPF is to work with the community to reduce violence, crime and fear and does so by providing police services to NSW which includes crime prevention, protections of persons and property and the provision of services in emergencies: s 6 of the Police Act. 2. The NSWPF has four function lines based across a number of locations across the state. The function lines include Metropolitan Field Operations and Regional NSW Field Operations which provide frontline services directly to the community, Investigations & Counter Terrorism which provides investigative, technical and counter terrorism expertise, and Corporate Services which provides business support services such as technology and communication, education and training and corporate human resources functions. 3. The NSWPF employs over 20,000 staff members with over 4,000 of those being administrative/non-sworn staff. 4. On 24 October 2023, the Applicant was given a letter offering her employment with the NSWPF as a Senior Planning officer, Clerk 9/10, commencing on 8 November 2023, on a part time basis of 14 hours per week. The letter included the following paragraph immediately under the heading: "Conditions of Employment": "In accordance with Rule 28 of the Government Sector Employment (NSW Police Force) Rules 2017, your appointment to this role is subject to a probationary period of up to six (6) months. If you take an extended period of paid or unpaid leave during your probationary period (four (4) or more weeks), your probationary period may be extended to reflect the period of your absence." 1. The Applicant signed the letter of offer on 25 October 2023 and commenced work on 8 November 2023. 2. The primary purpose of the role of Senior Planning Officer is described in the Role Description as follows: "The Senior Planning Officer contributes to corporate planning, coordinates strategic planning and enables command business planning in support of the NSW Police Force objectives articulated in the NSW Police Force Corporate Plan." 1. The role requires decision making, professional judgment and autonomy to meet deliverables, managing day-to-day work, meeting deadlines and managing relationships with internal and external stakeholders. Specifically, the role involves contributing to corporate planning, coordinating strategic planning and enabling command business planning in support of the NSWPF objectives. 2. Key accountabilities for the role include: 1. contributing to the development and review of the NSWPF Corporate Plan, strategic plans and command business plans and ensuring alignment across internal and external plans; 2. contributing to the identification, development, coordination and review of appropriate organisational and command performance indicators; 3. providing performance information and advice concerning Government, interagency, corporate, strategic and business plans; 4. engaging with a range of stakeholders through presentations and workshops concerning corporate direction, strategic/business planning, and performance reporting; and 5. contributing to activities undertaken by the command intended to ensure good governance, drive strategic direction, and improve performance. 1. According to the Role Description, key challenges of the role include: 1. maintaining an awareness of significant issues impacting the NSWPF and their implications for the organisation; 2. integrating governance, compliance, environmental scanning, risk management and performance assessment into organisational planning to improve corporate performance; and 3. understanding the roles, functions and responsibilities of all commands across the NSWPF. 1. The role required the Applicant to think critically and engage in key decision making. In the Applicant's own words: "the role of Senior Planning Officer requires a high degree of professional judgment and autonomy" [6] ; and her work in "integrating governance and compliance measures into the Planning Framework, ensuring that NSWPF's strategic objectives aligned with legal and regulatory requirements" highlighted "the complexity and strategic importance" of the role. [7] 2. On 17 April 2024 the Applicant was issued with a show cause letter regarding a review of her employment due to an alleged failure to maintain a satisfactory level of performance and conduct. 3. The Applicant provided a response to the show cause letter on or about 24 April 2024. The Applicant strongly disputed, and continues to dispute, the allegations made about her performance and conduct. She also asserts that the work she was assigned during the period complained of by the Respondent was minimal and significantly below her assigned Clerk 9/10 level. She asserts that the tasks provided to her lacked meaningful engagement, were devoid of clear deadlines and came with insufficient guidance or communication from the acting supervisor such that it was unreasonable and unjust of the Respondent to assess her performance under such constrained and unrepresentative conditions. 4. On 3 May 2024, the Applicant's employment with the NSWPF was terminated. 5. On 12 June 2024 the Applicant filed her Unfair Dismissal Application. The Parties' Submissions The Respondent's Submissions 1. The Respondent filed a written Outline of Submissions on 30 July 2024 (RS) and made oral submissions. 2. The Respondent submitted that the Application should be dismissed on the basis the Applicant falls within a class of employees who are exempt from the unfair dismissal provisions found in Part 6 of Chapter 2 of the IR Act, in accordance with s 83(2)(b) of the IR Act and clause 6 of the IR Regulation. 3. Part 6 of Chapter 2 applies to the dismissal of any public sector employee: s 81(1)(a). Exemptions are then set out in s 83(2). Section 83(2)(b) of the IR Act relevantly states: (2) This Part does not apply to an employee who is exempted from this Part by the regulations. Any such regulation may only exempt specified classes of employees included in any of the following classes – … (b) employees serving a period of probation or qualifying period. 1. The exemptions of classes of employees as described in s 83(2) of the IR Act are prescribed by Part 3 of the IR Regulation. Relevantly in this case, reg 6 of the IR Regulation prescribes an exemption for workers who are subject to a probationary period. Specifically, reg 6(1)(c) states: (1) For the purposes of section 83(2) of the Act, the following classes of employees are exempted from Part 6 of Chapter 2 of the Act – … (c) employees serving a period of probation or qualifying period if – (i) the period, or the maximum duration of the period, is determined in advance, and (ii) the period, or the maximum duration of the period, is either— (A) 3 months or less, or (B) if the period, or the maximum duration, is more than 3 months— reasonable, having regard to the nature and circumstances of the employment, 1. The Respondent thus submitted, that for reg 6(1)(c) to be established, two limbs must be satisfied, namely: 1. that the period or maximum duration of the probation period was determined in advance (Limb 1); and 2. that the period or maximum duration, if it was longer than 3 months, was reasonable, having regard to the nature and circumstances of the employment (Limb 2). 1. As recorded at [14(4)] above the Applicant was advised in the letter offering her employment with the NSWPF, that her employment was subject to a probationary period of "up to 6 months". The Respondent says that Limb 1 is therefore established. 2. As regards Limb 2, the Respondent submitted that a maximum period of six-month period was reasonable given the circumstances of the employment, namely subordinate legislation containing conditions governing the Applicant's engagement. Alternatively, the Respondent submitted that the period was reasonable upon an objective assessment of the nature of the job and the size of the employer and the personal characteristics of the employee. 3. The letter of offer referred to the fact that the probationary period was in accordance with r 28 of the GSE (NSWPF) Rules. Rule 28 provides: 28 Probation period (1) This rule applies to an administrative employee whose engagement in ongoing employment with the NSW Police Force for the first time (or following the cessation of any previous employment in the NSW Police Force) is made subject to the condition that the employee is required: (a) to serve a period of probation on commencing employment, and (b) to satisfy the requirements for the role to which the employee is assigned during that period of probation. (2) Any such period of probation is to be 6 months or such longer period as the Commissioner may determine in respect of the administrative employee. (3) If an administrative employee is required to serve a period of probation, the Commissioner may, at any time during or at the end of the probation period: (a) confirm the employee's employment, or (b) in the case of a NSW Police Force senior executive—terminate the executive's employment under section 40 (2) of the Police Act 1990, or (c) in the case of a non-executive administrative employee—terminate the employee's employment under section 81E of the Police Act 1990. 1. The ability to impose the conditions referred to in r 28(1) is found in s 93A of the Police Act, which provides: 93A Conditions of engagement of administrative employees (1) The engagement of an administrative employee may be made subject to conditions notified to the employee on his or her engagement. (2) The conditions may include (without limitation) conditions dealing with any of the following matters— (a) probation, (b) citizenship or residency requirements, (c) formal qualifications, (d) security and other clearances, (e) health clearances. (3) The imposition of conditions of engagement is subject to the government sector employment rules under the Government Sector Employment Act 2013 and the regulations under this Act. (4) The contract of employment of a NSW Police Force senior executive may include conditions of engagement. 1. The GSE (NSWPF) Rules are made pursuant to the power given in s 81F of the Police Act which provides: 81F Government sector employment rules relating to employment of non-executive administrative employees (1) The Public Service Commissioner may make government sector employment rules under section 12 of the Government Sector Employment Act 2013 on any matter relating to the employment of NSW Police Force non-executive administrative employees (including, without limitation, matters of the kind referred to in section 48 of that Act). (2) The Public Service Commissioner must consult the Commissioner of Police before making any such rules. (3) This section does not limit any direction that the Commissioner is otherwise authorised to give in relation to the management or control of the NSW Police Force (including employment arrangements). The Commissioner is to consult with the Public Service Commissioner on any inconsistency between directions given and applicable government sector employment rules. 1. The GSE (NSWPF) Rules commenced on 31 October 2017: r 2 GSE (NSWPF) Rules. 2. The Respondent submitted that the Commission need look no further than r 28 of the GSE (NSWPF) Rules to conclude that the probationary period was reasonable. The Respondent submitted that the Public Service Commissioner has determined that the probationary period for administrative employees of the NSWPF is to a be a period of six months and consistent with remarks made by Deputy President Harrison in Smith v Corrective Services [2012] NSWIRComm 30, the Commission would not lightly interfere with subordinate legislation containing conditions regulating the relationship between the parties. 3. The Respondent further submitted that: 1. consideration as to whether the length of a probationary period is reasonable does not involve any consideration of the merits of the unfair dismissal application, or any consideration of events after the employment commences: Shrestha v City of Ryde Council [2024] NSWIRComm 1005 at [36], [38] and [39] (Muir C), not following Levy v New South Wales Fire Brigade [2009] NSWIRComm 1011 at [41] (Connor C); 2. while Chief Justice Wilcox in Nicolson v Heaven & Earth Gallery Pty Ltd [1994] IRCA 43; (1994) 57 IR 50 (who was considering reg 30B(1)(c) of the Industrial Relations Regulations 1989 (Cth)) was correct to state at 58 - 59, that "[p]robably the important consideration, in determining what is a reasonable probation period will be the nature of the job" and that "[c]ircumstances will vary from case to case; the size, location and mode of operation of the employer being relevant factors, along with the personal characteristics and circumstances of the employee", the regulation he was considering did not stipulate any time frames for probation, unlike reg 6(1)(c) of the IR Regulation which prescribes a maximum of three months, unless it can be demonstrated that a longer period is reasonable; and, as Commissioner Murphy observed in Beadman v NSW State Emergency Service [2020] NSWIRComm 1043 at [39], his Honour was not required to consider what was a reasonable probation period "against the background of arrangements which exist in NSW public sector employment where probation periods of six months or longer are the norm rather than the exception"; 3. similarly, Chief Justice Wilcox was not required to consider what was a reasonable probation period against a background where subordinate legislation mandated that all administrative employees when first employed by the NSWPF (or following the cessation of any previous employment) must be subject to a six-month probation period or such longer period as the Commissioner of Police may determine; and 4. consistent with the remarks of Heydon J in Commissioner of Police v Eaton [2013] HCA 2; 252 CLR 1, the use of the words "at any time" in r 28(3) of the GSE (NSWPF) Rules discloses a legislative intention that the power to dismiss an administrative employee of the NSWPF during a probationary period similarly points against any examination of whether the selection of a time for dismissal was harsh, unreasonable, or unjust; and 5. in any event, it was reasonable for the Respondent to require a six-month probationary period due to the nature of the work to be performed by the Applicant, the size of the organisation and impact the work has on the community. 1. Finally, and for completeness, the Respondent submitted that the "mechanism for termination of employment isn't relevant to a consideration of whether or not a probationary period is reasonable." [8] As recorded above, r 28(3)(c) stipulates that the Respondent may, at any time during or at the end of the probation period, terminate a non-executive administrative employee under s 81E of the Police Act. Section 81E(1) of the Police Act provides: 81E Termination of employment (1) The Commissioner may, by instrument in writing, terminate the employment of a non-executive administrative employee on any of the following grounds if the employment is ongoing employment— (a) the employee has failed to meet a condition of engagement as an employee imposed under Part 8, (b) the employee lacks, or has lost, an essential qualification for performing the duties of the role assigned to the employee, (c) the performance of the employee is determined under section 68 of the Government Sector Employment Act 2013 to be unsatisfactory, (d) the employee is unable to perform the duties of the role assigned to the employee because of physical or mental incapacity, (e) the employee is retired on medical grounds under section 94B, (f) the employee has refused to perform duties to which the employee has been duly assigned, (g) the employee has abandoned his or her employment, (h) a finding of misconduct has been made against the employee under section 69 of the Government Sector Employment Act 2013, (i) the employee is determined in accordance with the government sector employment rules under the Government Sector Employment Act 2013 or the regulations under that Act to be excess to the requirements of the NSW Police Force, (j) on any other ground prescribed by the regulations under this Act or by the regulations under section 47 (1) (k) of the Government Sector Employment Act 2013. The instrument is to set out the ground or grounds on which the employment is terminated. 1. Assistant Commissioner Greentree's letter dismissing the Applicant of 3 May 2024 indicated that she had been dismissed "in accordance with section 81E(1)(a) of the Police Act 1990" for having "failed to meet a condition of [her] engagement dealing with [her] probationary period." The Respondent submitted that pursuant to s 93A of the Police Act, which is found in Part 8 of the Act, the engagement of an administrative employee could be made subject to probation, the purpose of which is to "assess the capacity or the suitability of somebody for their employment" [9] . According to the Respondent if it was established the employee was not suitable for the role during the probation period the employee would have "failed to meet a condition of engagement as an employee imposed under Part 8", entitling the Commissioner to terminate the employment pursuant to s 81E(1)(a). 2. According to the Respondent, however, the "mechanism for termination" is irrelevant to any consideration of whether the probationary period is reasonable. This being the case, while that the Police Act and GSE (NSWPF) Rules prescribe the circumstances by which the employment of an administrative employee may be brought to end, if those circumstances are not established in a given case and the subject employee is on probation and the probation is reasonable, they "can't get any recourse under the unfair dismissal provisions of the Industrial Relations Act" [10] although "there may be a claim for a breach of contract or another claim". [11] The Applicant's Submissions 1. The Applicant filed a written Outline of Submissions on 13 August 2024 (AS) and made oral submissions. 2. The Applicant submitted that: 1. it would be unjust to deny her the protections afforded under the IR Act "due to a probationary period that was terminated unfairly" and the merits of her case "should be considered in full to ensure a fair and just outcome"; [12] 2. throughout her employment, which lasted over 180 days, "equivalent to six months" [13] , she exceeded expectations, received positive feedback and had no disciplinary actions; [14] 3. the environment she worked in, in particular after February 2024, made it impossible for her to demonstrate the full extent of her capabilities and perform at the level expected of a Senior Planning Officer, such that it was unreasonable and unjust to assess her performance under such constrained and unrepresentative conditions; [15] 4. that the prescribed six-month probationary period was excessive and unreasonable, particularly given her extensive experience and prior satisfactory/exemplary performance; [16] 5. that Deputy President Harrison in Smith v Corrective Services had emphasised the importance of fairness and reasonableness in the application of a probationary period and that such period "must be applied with due regard to the specific circumstances and performance of the employee"; [17] 6. that the decision of Commissioner of Police v Eaton "affirmed that while employers possess the statutory authority to establish probationary periods, the fairness of those periods is not beyond scrutiny" [18] and the decision of Beadman v NSW State Emergency Service "highlighted that the fairness of a probationary period is intrinsically linked to the employee's actual performance"; 7. the grounds for termination outlined in s 81E(1)(a) of the Police Act and r 28(3) of the GSE (NSWPF) Rules were not established; [19] 8. the "conditions of the exemption were not reasonably met, and the unreasonable application of the six-month probationary period undermines the principles of fairness that should guide such decisions"; [20] and 9. the Commission's prior acceptance of the Unfair Dismissal Application "reflects the Commission's recognition of the validity of [her] claim and the need to reconsider the termination decision based on the substantive evidence of [her] performance." [21] 1. It must be said at this juncture, noting that the Applicant is not a lawyer and was self-represented, that the Applicant's summations of the effect of the decisions in Smith v Corrective Services, Commissioner of Police v Eaton and Beadman v NSW State Emergency Service are not accurate, indeed they misstate what was determined in those cases. Consideration 1. Section 84(1) of the IR Act provides: 84 Application for remedy by dismissed employee (1) If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part. 1. On an application under s 84(1), the Commission may make an order for reinstatement, re-employment, remuneration or compensation: s 89. 2. Section 88 of the IR Act provides: 88 Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate, take into account— (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given—its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant. 1. The Applicant complains that the grounds given for terminating her employment as set out in s 81E(1) of the Police Act and r 28(3) of the GSE (NSWPF) Rules were not established. She maintains that she had satisfactorily met the requirements of the role of Senior Planning Officer and consequently her dismissal was unjust or unreasonable. She says, in the alternative, that the extent to which she was adjudged not to have performed to the requisite standard, this was due to the actions of an acting supervisor who failed to assign her appropriate tasks which would have enabled her to demonstrate her competence and/or he was not sufficiently equipped to assess her performance, such that her dismissal was unfair. 2. The matters about which the Applicant's complains are certainly matters the Commission would take into account pursuant to s 88 of the IR Act when determining whether to grant relief pursuant to s 89. However, the Commission is unable to consider the merits of the Applicant's claim if she is in a class a person who is excluded from the application of Part 6 of Chapter 2 of the IR Act. 3. As the Respondent submitted, determining whether the Applicant falls with the exception prescribed by s 83(2)(b) of the IR Act involves a two-limbed test, as set out at paragraph [19] above. 4. The Applicant accepted that the maximum duration of the probation period had been determined in advance [22] and the evidence bears that out. I am satisfied that Limb 1, that is, that the precondition prescribed by reg 6(1)(c)(i), is satisfied. 5. Limb 2 requires an assessment as to whether the probation period of "up to six months", was reasonable, having regard to the nature and circumstances of the employment. 6. The Applicant contended that the period was not reasonable for essentially three reasons: first, that it was too long given her extensive experience; second, that it was too long given her exemplary performance during the probationary period, at least until the arrival of an Acting Supervisor in February 2024; and third, the probationary period had been 'unreasonably applied', or expressed another way, the circumstances of her termination was so unfair that the merits of her case "should be considered in full to ensure a fair and just outcome." 7. The Respondent submitted that I would not have regard to any of those matters when determining whether the probationary period of six months was reasonable in the face of r 28(2) of the GSE (NSWPF) Rules. I agree, at least in respect of the first and third reason. 8. Whether a probationary period of longer than three months is reasonable is to be determined having regard "to the nature and circumstances of the employment." The existence of legislation mandating a period of probation is plainly a highly relevant circumstance of the employment which must therefore be considered. 9. In Beadman v NSW State Emergency Services, Commissioner Murphy, at [42], stated that the starting point for consideration of whether the period of probation in that case was reasonable was r 5(2)(b) of the Government Sector Employment (General) Rules 2014, which applied to the employment in that case and which, as in this case, stipulated that the period of probation: "is to be 6 months or such longer period as the agency head directs." He then stated: "For the applicant to succeed, she must demonstrate that, in her case, a six month probation period, mandated as it is by subordinate legislation, was, nevertheless, unreasonable." 1. While Commissioner Murphy went on to find, at [47], that the complexity and challenging nature of the applicant's role was such that the probation period of six months was reasonable, that is, he applied the test formulated by Wilcox CJ in Nicholson v Heaven & Earth Gallery Pty Ltd at 58-59, it seems the Commissioner considered that the existence of subordinate legislation mandating a minimum probation period resulted in the applicant bearing an onus to establish that the period was unreasonable. In other words, the period of probation prescribed in the subordinate legislation resulted in the probation period being prima facie, reasonable. 2. I agree. Indeed, I consider that the existence of subordinate legislation mandating a minimum period of probation for all new employees must result in a finding that such period is reasonable within the meaning of reg 6(1)(c)(ii)(B) of the IR Regulation, at least in this case, at the commencement of the employment. This is first and foremost because a valid statutory rule, like all legislation, must be complied with. In the present case there is no discretion, at least at the commencement of a new employee's employment, for the Respondent to impose a probationary period of anything less than six months. In those circumstances it must be reasonable for the Respondent to impose a probationary period of that length as the Respondent simply cannot do otherwise. 3. In Smith v Corrective Services, Harrison DP was required to consider a probationary period of 12 months, which had been imposed pursuant to s 23(1) of the Public Sector Employment and Management Act 2002 (NSW), which was in similar terms to r 28 of the GSE (NSWPF) Rules and r 5 of the Government Sector Employment (General) Rules 2014. The evidence established a period of 12 months, rather than the minimum six months, was imposed on all employees. His Honour said (at [39] and [42]): "The probationary period was determined in accordance with a statutory entitlement afforded the employer, and its application as a general policy does not visit any unfairness upon Ms Smith or cause it to fail the test of reasonableness. … The Commission will not lightly intrude upon the exercise of a statutory right or agreement of the parties." 1. I consider that his Honour's remarks to apply a fortiori where, as in the present case, the period is determined in accordance with a statutory obligation to apply a minimum probationary period. 2. It should be observed that pursuant to s 41 of the Interpretation Act 1987 (NSW), statutory rules may be disallowed by Parliament and of course, Parliament may repeal a statutory rule. In those circumstances, a valid statutory rule must be regarded as expressing the will of the legislature. 3. The second reason why I consider subordinate legislation mandating a minimum period of probation for all new employees must result in a finding that such period is reasonable within the meaning of reg 6(1)(c)(ii)(B) of the IR Regulation, at least at the commencement of the employment, is because it necessarily means that all new employees are subject to the same provision. The practice of an industry as regards the length of probationary periods, whatever the source of that practice might be, is a strong indicator of what is 'reasonable' within the meaning of reg 6(1)(c)(ii)(B). The fact that probation periods of six months or longer "are the norm rather than the exception" in NSW public sector employment was noted by Commissioner Murphy in Beadman v NSW State Emergency Service. 4. Thus, by reason of the terms of r 28 of the GSE (NSWPF) Rules, I find that the probationary period of six months was reasonable. 5. In a very rare case, an administrative employee of the Respondent may be able to establish that the minimum prescribed probationary period of six months, while reasonable due to its mandatory nature at the commencement of their employment, became unreasonable at a later date 'having regard to the nature and circumstances of the employment', due to their having met the conditions of their probation before the end of the period. This is because pursuant to r 28(3)(a) of the GSE (NSWPF) Rules the Respondent may, at any time during or at the end of the probation period, confirm the employee's employment and thereby bring the probationary period to an end. However, for the reasons I explain at [62] and [63] below, this was not established in this case and there is no other fact or circumstance which would otherwise displace a finding that the mandatory minimum probationary period of six months was reasonable. 6. If I am wrong, and the Commission should nevertheless consider whether the statutory period of probation is objectively reasonable through the application of the test set out by Wilcox CJ in Nicholson v Heaven & Earth Gallery Pty Ltd, as Commissioner Murphy did in Beadman and Commissioner Muir did in Shrestha, I would have no hesitation in doing so in this case. As the Applicant herself attested, the role was complex, strategically important and involved a high degree of professional judgment and autonomy. The nature of the work, the size of the organisation and impact the work has on the community objectively indicates that a period of six-months was reasonable, to allow the Respondent to adequately assess the ability of the Applicant to perform the role. 7. The reasons advanced by the Applicant as to why the period was not reasonable cannot be accepted for reasons I will briefly explain. 8. The Applicant contended that the period was too long given her extensive experience and breadth of knowledge. The Applicant gave uncontested evidence that she had over 17 years' experience in "law enforcement", however the nature and details of that experience were not explained. Regardless, as I have explained above, the Respondent had no discretion to impose a lesser period of probation at the outset of the Applicant's engagement, no matter how experienced and skilled she was. There was no evidence to suggest that the Respondent has a practice of exercising her discretion to confirm a new employee's employment before the conclusion of the six-month period mandated by r 28(2) because she considered that an employee's extensive experience prior to commencing employment with the Respondent, did not justify a probationary period of such length. 9. The Applicant contended that the probationary period of six months was not reasonable given her exemplary performance during the probationary period, at least until the arrival of an Acting Supervisor in February 2024, being over three months from her commencement. She also contended, in essence, that the Commission needs to assess the circumstances of her dismissal to determine the reasonableness of the probation period. Both arguments involve the Commission examining events after the period of probation had been determined in advance of the employment commencing and after the Applicant had commenced working. 10. Commissioner Muir in Shrestha v City of Ryde Council, at [34] – [39], found that "events after the employment commences or events involved in the circumstances of the dismissal", can only be used "to undermine the credibility of the reasons advanced as to constituting the reasonableness of the period", but: "Such events cannot, if at all, be themselves fundamental to the reasonableness of the period. In the present case, circumstances such as whether the employer followed its award obligation and whether the employer failed to provide adequate support are not relevant to the test in reg 6(1)(c) and, therefore, cannot form part of the question of reasonableness." 1. In the present case, unfortunately for the Applicant, whether the Respondent properly followed her obligation to only dismiss the Applicant for a reason identified in s 81E of the Police Act, as stipulated in r 28(3)(c) of the GSE (NSWPF) Rules, or whether she otherwise acted unfairly in terminating the Applicant, cannot form part of the question of reasonableness. 2. To the extent the Respondent maintained that a six-month probation period was reasonable due to the factors identified by Wilcox CJ in Nicholson v Heaven & Earth Gallery Pty Ltd, evidence that the Applicant was satisfactorily meeting the requirements of the role well before the expiry of the pre-determined probationary period could "undermine the credibility of the reasons advanced [by the Respondent]" as to why a probationary period of six months was reasonable. However, the evidence in this case falls well short of enabling me to make such a finding in this case. I accept the Respondent's submission that the role of Senior Planning Officer "was clearly a role that could not qualitatively be assessed, did not involve simple and repetitive tasks and requires the Applicant to think critically and engage in key decision making." [23] The Commission would need a lot more than the Applicant's own assessment of her performance to conclude that the application to her of an industry wide probation period, to a complex and senior role, was not reasonable. 3. In any event, for the reasons I have explained above, I consider that in circumstances where r 28(2) of the GSE (NSWPF) Rules mandates a minimum probation period, such period must be regarded as reasonable and it is not necessary to consider the specific requirements of the role for which the Applicant was hired, to arrive at this conclusion. 4. I discussed at [53] above the possibility that an administrative employee of the Respondent may be able to establish that the minimum prescribed probationary period, while reasonable due to its mandatory nature at the commencement of their employment, became unreasonable at a later date 'having regard to the nature and circumstances of the employment', due to their having met the conditions of their probation before the end of the period. I understand this is one of the grounds upon which the Applicant contended the probationary period was not reasonable. 5. However, to succeed on this ground the Applicant would need to establish that her performance, objectively assessed, was such that the Respondent ought to have exercised her discretion pursuant to r 28(3)(a) to confirm her employment, such that the continuation of her probation for the full, pre-determined period, was not reasonable. Given the unfettered discretion given to the Respondent by r 28(3)(a), evidence would also be required that the Respondent had a practice of confirming employment prior to the end of the pre-determined probationary period, where employees satisfactorily demonstrated the requirements of the role for which they were engaged, such that it could be said that the 'nature and circumstances of the employment' were such that the continuation of the probation for a period beyond satisfactory demonstration of the requirements of the role in this case, was not reasonable. This is a very high bar which the Applicant has failed to clear. 6. Two further matters need be addressed. First, the Applicant made a relatively faint submission that she had been employed for 180 days, which was "equivalent to six months" [24] . The Respondent submitted that the reference to "six (6) months" in the letter of offer, which also referenced r 28 of the GSE (NSWPF) Rules (being an "instrument" within the meaning of s 3 and 5 of the Interpretation Act), was to be interpreted according to the definition in the dictionary in Schedule 4 to the Interpretation Act. I agree. 7. "Month" in defined in the Dictionary to mean "a calendar month". "Calendar month" is defined in the Dictionary as follows: calendar month means a period commencing at the beginning of a day of one of the 12 named months and ending— (a) immediately before the beginning of the corresponding day of the next named month, or (b) if there is no such corresponding day, at the end of the next named month. 1. The Applicant's probation commenced on the first day of her employment, being 8 November 2023. The probation period therefore ended at midnight on 7 May 2024. The Applicant was terminated on 3 May 2024, being within the probationary period. 2. Secondly, the Applicant submitted that Commission's prior acceptance of the Unfair Dismissal Application "reflects the Commission's recognition of the validity of [her] claim and the need to reconsider the termination decision based on the substantive evidence of [her] performance." The Commission has not yet accepted the validity of the Applicant's claim. The acceptance of the Application for filing does not indicate that that the claim is validly made or that the Commission has jurisdiction to hear the claim. Outcome 1. The Commission finds that Part 6 of Chapter 2 of the IR Act does not apply to the Applicant. 2. The matter fails for want of jurisdiction. 3. The unfair dismissal application filed by the Applicant is dismissed. Janet McDonald Commissioner ********** Endnotes 1. Ex R1. 2. Ex R2. 3. Ex A1. 4. Ex A2. 5. Ex A4. 6. Applicant's Outline of Submissions at [16]. 7. Applicant's Outline of Submissions at [35]. 8. Tcpt, 19 August 2024, p 12(25) – (26). 9. Tcpt, 19 August 2024, p 28 (11) – (13). 10. Tcpt, 19 August 2024, p 13 (4) – (5). 11. Tcpt, 19 August 2024, p 13(19) – (20). 12. AS [5]. 13. AS [24]. 14. AS [8] – [9]; 15. AS [11] and at [26]. 16. AS [15] and at [30] – [36]. 17. AS [20]. 18. AS [21]. 19. AS [18] and [26] – 36]. 20. AS [42]. 21. AS [43]. 22. AS [19]. 23. RS [44]. 24. AS [24]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 August 2024