Industrial Relations Commission of New South Wales CITATION : Nurhayat Erduran and The Menzies Group of Companies t/as Allcorp Pty Limited [2003] NSWIRComm 11 APPLICANT: PARTIES : Nurhayat Erduran RESPONDENT: The Menzies Group of Companies t/as Allcorp Pty Limited FILE NUMBER: 4215 of 2002 CORAM: Sams DP Termination of employment - unfair dismissal - respondent takes over new contract - existing employees retained - whether employees on probation - exclusion of applicant from unfair dismissal provisions - Regulation 6(1)(c) - relevant principles. CATCHWORDS : Held, applicant employed for eleven years unlikely to be on probation - applicant unaware of probation - probationary period not set in advance - contradictory advice from employer - confusion of dates of meeting not decisive - employer's processess regrettable - applicant not on probation - applicant not excluded from the provisions of Pt 6 ch 2 of the Act - further proceedings listed. LEGISLATION CITED : Industrial Relations Act 1996 Industrial Relations (General) Regulation 2001 Atkins v St Marys Rugby League Club (unreported) Redman C, IRC99/2561 24 August 1999 Hazel Lang and Reid and Vasely (unreported) Sams DP, IRC99/1400, 11 October 1999 Laing and St Georges Basin Country Club (unreported) Buckley C, IRC99/1365, 12 July 1999 Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 57 IR 50 CASES CITED : Director General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 Creedon v Clarvon Ltd t/as Footrest Shoes, (unreported), Sams DP, Matter IRC98/5227, 16 June 1999 Burks v Zanmarl Pty Limited [2000] NSWIRComm 167 Follows v Knight Frank NSW Pty Ltd [2002] NSWIRComm 288 Key v Stuart Upton Pymble (unreported) Bishop C, Matter IRC98/5503, 19 April 1999 HEARING DATES: 12/04/2002 DATE OF JUDGMENT: 02/07/2003 APPLICANT: Mr C Stomo of counsel SOLICITOR: LEGAL REPRESENTATIVES: Ms K Klonis (Klonis and Co Lawyers) RESPONDENT: Mr T Kennedy from the Menzies Property Services Pty Ltd JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 7 February 2003 Matter No IRC02/4215 NURHAYAT ERDURAN AND THE MENZIES GROUP OF COMPANIES T/AS ALLCORP PTY LIMITED Application by Nurhayat Erduran re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2003] NSWIRComm 11 1 Nurhayat Erduran ("the applicant") was dismissed by Allcorp Pty Ltd ("the respondent") from her employment as a tea lady at St George Bank, Kogarah on 28 June 2002. She subsequently filed a claim, pursuant to s 84 of the Industrial Relations Act 1996 ("the Act"), alleging that she has been unfairly dismissed. Conciliation proceedings on 16 and 23 August 2002 failed to resolve the matter. 2 The respondent maintained that the applicant was employed for a probationary period and was therefore prevented from lodging an unfair dismissal claim by virtue of Regulation 6(1)(c) of the Industrial Relations (General) Regulation 2001. By consent of the parties the Commission was asked to determine this jurisdictional issue as a preliminary matter. In the result, this decision will make no reference to the reasons for the applicant's dismissal, or whether such dismissal was "harsh, unreasonable or unjust" within the meaning of Pt 6 ch 2 of the Act. 3 At the jurisdictional hearing, Mr Stomo of counsel represented the applicant and Mr Kennedy represented the respondent. 4 In support of the respondent's challenge to the Commission's jurisdiction, Mr Kennedy called two witnesses. Their evidence may be summarised as follows. 5 Mr Valentino Topic is the respondent's Key Customer Account Manager. Mr Topic's evidence dealt primarily with a meeting held with the existing employees at around 6.00pm on 15 May 2002. This meeting was two weeks before the respondent's contract at St George Bank was due to commence on 1 June 2002. 6 Mr Topic deposed that he and Carmel Lynch (the respondent's Development Manager) met with the cleaners and the applicant to explain the respondent's conditions of employment, which included a one month probationary period. Mr Topic said the applicant had nodded when he had asked if she understood what was discussed. 7 Mr Topic claimed that during the meeting new employee application forms were distributed to all the employees, including the applicant. He told the employees he would collect the forms in two weeks time. When he returned in a week's time these forms were filled in and later dated 3 June 2002. 8 Mr Topic attached to his affidavit copies of the forms signed by the applicant. The relevant extract is as follows: Your employment with Allcorp Cleaning Services Pty Ltd is subject to acceptance of the following conditions of employment: a) Initial employment will be on a trial basis for the first two months. Permanent employment is contingent upon satisfactory completion of this trial period together with satisfactory completion of a medical examination to determine your fitness for cleaning duties. 9 In oral evidence, however, there was some confusion as to what forms were given to the applicant on 15 May. It would appear that a new employee advice form - which was not in evidence - was handed out on that day seeking the names and addresses of the existing employees. Mr Topic gave oral evidence that a folder of forms was handed out a week later. It was one of these forms that the applicant had signed. Mr Topic agreed his affidavit evidence on this matter was contradictory. 10 Ms Carmel Lynch deposed that prior to the 15 May meeting the respondent's General Manager, Walter Rafin, instructed her and Mr Topic to ensure that existing employees at the St. George Bank understood that the first month of employment with the new employer would be probationary. 11 Ms Lynch deposed that her role in the meeting was to introduce the Company and invite employees to continue employment. Mr Topic then outlined the terms of employment and a question and answer session followed. This was the usual practice. Mr Topic had concluded the meeting by asking if the employees understood what had been discussed. Ms Lynch claimed "the answer was affirmative." 12 Ms Lynch said that during the meeting it was emphasised that the probationary period would allow the management time to evaluate the standard of the employees' work and allow the employees time to decide if they wanted to remain employed with Allcorp. The applicant's evidence 13 The applicant deposed that she had provided a tea service for employees of St George Bank Kogarah for the past eleven years. During that time, she had not received any complaints about her duties or the manner in which she had carried them out. 14 The applicant's evidence was that she was called to a staff meeting about 3.00pm on 3 June 2002. In oral evidence, she could not recall the actual date and agreed it could have been three weeks earlier. At the meeting she was asked to sign a document, which she did not understand. She believed it was necessary to sign the document in order to remain employed. She claimed that, had she known she was on probation, she would have sought further information as to her rights. SUBMISSIONS For the respondent 15 Mr Kennedy submitted that the evidence disclosed that, prior to the cleaning contract being taken over by Allcorp, existing employees attended a meeting in which they were informed of the new contractor's conditions of employment. Employees had been offered an opportunity to ask questions of the respondent's representatives. 16 Mr Kennedy further submitted that the applicant signed employment documents which revealed that she would abide by the new terms of employment, including a probationary period. 17 The applicant's employment was terminated during this probationary period. As a consequence, the Commission had no jurisdiction to hear and determine her claim of alleged unfair dismissal by the exclusions provided for in the regulations. 18 Mr Kennedy referred the Commission to three authorities: Atkins v St Marys Rugby League Club (unreported) Redman C, IRC99/2561 24 August 1999; Hazel Lang and Reid and Vasely (unreported) Sams DP, IRC99/1400; 11 October 1999 and Laing and St Georges Basin Country Club (unreported) Buckley C, IRC99/1365, 12 July 1999. 19 The Commission asked Mr Kennedy to explain why the applicant was told she was on one month's probation, when the document she signed referred to "a trial basis for the first two months" (See para 8). He said the document was an old form, which should not have been used. For the applicant 20 Mr Stomo submitted that the respondent unilaterally introduced a probationary period. The applicant was given documents to sign, which she believed continued her employment. She had not agreed to be on probation. The applicant understood that on 3 June she was being offered continued work, but was unaware she was on probation. 21 Mr Stomo put that the applicant has a low command of the English language and whether she understood what was said at the 15 May meeting, or what was in the document, was debatable. 22 Mr Stomo said the applicant remained unemployed and was seeking reinstatement. CONSIDERATION 23 Section 83(2) of the Act exempts certain classes of employees from the unfair dismissal provisions of the statute: 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: (a) …… (b) employees serving a period of probation or qualifying period, (c) …… (d) …… (e) …… 24 The section is to read in conjunction with s 6 (1)(c) of the Industrial Relations (General) Regulation 2001. The regulation is expressed as follows: 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: a)…… b)…… c) Employees serving a period of probation or qualifying period, if the duration of the period, or the maximum duration of the period, is determined in advance and either: (i) the period, or the maximum duration, is 3 months or less, or (ii) if the period, or the maximum duration, is more than 3 months - the period, or the maximum duration, is reasonable having regard to the nature and circumstances of the employment, 25 As the respondent maintained that the applicant was dismissed during a period of probation, I can dispense with consideration of the expression "qualifying period"; suffice to note that a qualifying period could hardly apply to an employee whose job hadn't changed in eleven years. I turn then to the other qualifications in the regulation and most particularly whether the probation period was determined in advance. 26 Bishop, C in Key v Stuart Upton Pymble, Matter IRC98/5503, 19 April 1999 opined that the term "determined in advance" meant prior to the commencement of employment. The Commissioner observed that it was preferable (although not mandatory) that a probationary period be in writing and accepted by the employee prior to the first day of employment. I respectfully agree. It would be prudent management to observe these simple processes so as to avoid confusion. 27 The respondent placed much reliance on the documents signed by the applicant on 3 June, in which it was claimed she knew and acknowledged she was on probation. Although I doubt she understood what was in the documents, most particularly about probation - the fact that these documents were signed after the commencement of the new contract (June 1) decisively disposes of the question as to whether the probation period was set in advance. Thus, I can comfortably find that the probation period, to the extent that it existed at all, could not have been determined in advance. That would seemingly end the matter. However, I intend to make the following observations. 28 It is a fact of modern industrial life that probationary or trial periods are almost universally found at all levels of employment in most industries. The length of the probation will generally be proportionate to the seniority of the position. This is recognised by the regulation in that a probation or trial period in excess of three months may be reasonable having regard to the nature and circumstances of the employment. See Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 57 IR 50. 29 For reasons which will become clear later in this decision, the question of whether the period of probation was reasonable cannot possibly arise in this case because even on the respondent's own evidence, the length of the alleged probation period was unclear. The Purpose of Probation 30 Kirby, P in Director General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 referred to the usual purpose of probation when he said: The very purpose of probation will often be to consider by observation of the probationer's work performance under trial, whether he/she is suitable to enjoy the privileges attaching to permanency. 31 In Creedon v Clarvon Ltd t/as Footrest Shoes, (unreported), Matter IRC98/5227, 16 June 1999, I observed that probationary periods serve a dual purpose: On the one hand the purpose of a probationary period is to test the employee's fitness and suitability for the position held. On the other, the employee can make an assessment of whether the position is really what was expected and, if not, conveniently resign. It is trite to observe that there are many more instances of probationary employees being dismissed by the employer, than those who willingly resign. . See also Hazel Lang and Reid and Vasely . 32 More recently, my colleague Glynn J in Burks v Zanmarl Pty Limited [2000] NSWIRComm 167 discussed the nature of probationary employment in much the same way, albeit in the context of s106 (unfair contract) applications. At para 108 her Honour said: The usefulness of the probationary period goes beyond such practical aspects as observing how competent an applicant actually is in a position to other matters such as seeing how the employee measures up in the workplace as to interaction with other people. A probationary period offers the utility of finding out whether, for instance "paper" qualifications that may have been offered are a true indicator of the effectiveness of the employee in the actual job or that claimed experience is actually demonstrated in practice. and at para 109: I do not accept the applicant's contention that the probationary period was unfair. It was one for the benefit of both parties. It allowed a reasonable period within which each party could assess his satisfaction either with the job itself and its conditions (the applicant) or, for the respondents, with the fitness of the applicant for the position. See also Follows v Knight Frank NSW Pty Ltd [2002] NSWIRComm 288. 33 It is appropriate at this juncture to comment on the three cases referred to me by Mr Kennedy. With respect, the facts and circumstances of those cases are so far removed from the facts and circumstances here, as to be entirely unhelpful to the respondent's case. 34 So, I turn then to the broader concept of probation; both as to its literal definition and what the ordinary bystander might understand the term to mean. 35 The Macquarie Dictionary defines the word as: 1. The act of testing. 2. The testing or trial of a person's conduct, character, qualifications or the like. 3. The state or period of such testing or trial. 36 The Shorter Oxford Dictionary definition is: 1. The action or process of testing or putting to the proof; trial, experiment; investigation, examination. 2. The testing or trial of a person's conduct, character, or moral qualifications. 37 In view of these definitions, I think one must ask what was the employee being tested or trialled for? The applicant worked as a tea lady for 11 years with Prestige Property Services at St George Bank - seemingly without complaint. Her job did not change when the respondent took over the contract at St George. In other words, the only thing that changed was the identity of the employer. To my mind the ordinary bystander would not apply the term "probation" to such a set of circumstances. 38 Viewed in this way, it seems to me, as a matter of both principle and logic, that the requirement for a probationary period could not possibly apply to such an employee. 39 Even putting these observations to one side, I am left with serious doubts that the applicant was on probation at all. This is so for the following reasons. 40 There was some conflict in the evidence about the date of the meeting with employees to discuss the working arrangements with the new contractor. The applicant's affidavit had the meeting on 3 June; however, in oral evidence she said it could have been two or three weeks earlier. This would correspond to the date of the 15 May attested to by the respondent's two witnesses. 41 In my opinion, the date of the meeting is irrelevant. The similar recollections of all the witness as to what was said at the meeting makes it certain there was only one meeting. I am satisfied that this was the case. I accept the applicant simply confused the date of the meeting with the date she signed the forms. No adverse inferences can be drawn from her confusion. 42 I note also that Mr Topic must have been confused as to dates. In his affidavit he deposed that he collected the applicant's signed forms a week after the 15 May 2002. This could not be correct. The forms are dated two and a half weeks later - 3 June. 43 In my view, the respondent failed in its obligations to the applicant. The applicant speaks and understands very little English. I cannot be satisfied that the applicant understood what was being said at the meeting; let alone understood she was to be employed for a probationary period. 44 To make matters worse, Mr Topic and Ms Lynch said the employees were told they were on a month's trial, yet the document the applicant signed says "initial employment will be on a trial basis for the first two months." Moreover, the form referred to her duties as "cleaning". She performed no such duties. Her job was tea lady. This contradictory information was an appalling indictment on the respondent's employee relations practices. 45 The respondent plainly failed in its obligations to make perfectly clear to the applicant what the new working arrangements were to be. Even if there was a legitimate basis for criticism of the applicant's performance (about which I am yet to be convinced) this case was a clumsy and botched attempt by the respondent to hide behind a spurious jurisdictional challenge. It was doomed to fail. I find accordingly. 46 It follows that the applicant is not prevented from bringing a claim of unfair dismissal pursuant to Pt 6 ch 2 of the Act. 47 These proceedings are listed for further directions on 17 February 2003 at 10am. Peter Sams Deputy President 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.