Industrial Relations Commission of New South Wales CITATION: Sanders v BBT(Australia) Pty Ltd t.as Beresford Blake Thomas Ltd [2006] NSWIRComm 1064 APPLICANT: PARTIES: Mr. Jason Sanders RESPONDENT: BBT (Australia) Pty Ltd t/as Beresford Blake Thomas Ltd FILE NUMBER(S): 6448 of 2005 CORAM: Ritchie C Claim for unfair dismissal, Preliminary question of whether a probationary period in place. Applicant worked for a subsidiary company of a UK company in Dubai, sought to work in Australia for family reasons. Company he sought to work for in Australia also a subsidiary of same UK company. Applicant applied and was interviewed in Sydney. Claims offered job on the spot. CATCHWORDS: Received an employment contract with a three month probationary period which he signed without alteration. Claims same person who offered him the job verbally waived the probationary period. Within three months of commencing in Sydney he was terminated. Respondent denied offering the applicant a job during Sydney interview and denied that the probationary period was waived. Applicant stated that there should have been no probationary eriod at all. Commission found that no offer of employment was offered during Sydney interview and that there was no waiver of the probationary period. Also found that the requirement for a three month probationary period in the circumstances was reasonable. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 21/03/06 DATE OF JUDGMENT: 04/20/2006 APPLICANT: Ms. N. Case of Kingsford Legal Centre LEGAL REPRESENTATIVES: RESPONDENT: Mr. R. Hassall of Sparke Helmore Lawyers DECISION: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Ritchie C. 20 April 2006 Matter No IRC 6448 of 2005 IN THE MATTER OF: Jason Wade Sanders and BBT (Australia) Pty Ltd trading as Beresford Blake Thomas Ltd. Application by Jason Wade Sanders re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 1064 1 Mr. Jason Wade Sanders (the applicant) filed a claim for unfair dismissal under section 84 of the Industrial Relations Act 1996 (the Act) against Beresford Blake Thomas Ltd on 8 December 2005. The applicant claimed that he was terminated from his employer BBT (Australia) Pty Ltd t/as Beresford Blake Thomas Ltd (the respondent) on 18 November 2005. 2 The application came on for conciliation on 12 January 2006 but was not successful. The parties were provided with a timetable for the filing and serving of evidence going only to the threshold question as to whether there was a probationary period in existence at the time of the termination. 3 The hearing of this threshold question took place on 21 March 2006 and the Decision was reserved at the end of submissions. Applicant's Case. 4 It was the applicant's evidence that he commenced employment with Beresford Blake Thomas Ltd (BBT) in Dubai on 24 July 2004. During cross- examination the applicant agreed that the contract he signed when commencing in Dubai was with Beresford Blake Thomas. He stated that he served a probationary period of six months at that time. Whilst employed in Dubai he carried out the role of a Global Resources Consultant. This involved finding candidates who wanted to leave the Middle East to go back to their home country. In evidence the applicant also stated that whilst in Dubai he was promoted to being a Health Care Consultant which he held until he went to Sydney. 5 As his wife was involved in a training programme in Sydney, the applicant sought a move to Sydney and in late May early June 2005 he approached the Operations Director for the Middle East, a Mr. Edward Twaite. After several internal phone calls the applicant met with Ms. Michelle Costa of the respondent in Sydney whilst on holidays. He stated that the meeting took place with Ms. Costa on 18 July 2005 and during the meeting was offered a position as a Recruitment Consultant for the construction industry. A date for his commencement in Sydney in September 2005 was agreed. 6 The applicant said he received a contract on 29 July 2005 and rang Ms. Costa on 9 August 2005 and enquired about particular contents of the document. Ms. Costa advised him during that telephone conversation, that he would not be obligated to the probationary period as it was a standard contract. He signed the contract on 9 August 2005 without alteration, and returned it to Ms. Costa. The applicant agreed that he completed a Sales Profile Question (SPQ) prior to 29 July 2005, which the respondent used as part of the interview process to determine a consultant's suitability for a role. 7 The applicant had his airfare from Dubai to Sydney paid by his employer. The cost of the transfer of his furniture was loaned by the respondent to the applicant. 8 The applicant commenced working in Sydney on 12 September 2005. His salary in Sydney was slightly higher than what he had been receiving in Dubai. 9 On 17 November 2005 the applicant was approached by Mr. Shane O'Brien the Recruitment Section Manager for technical positions and was terminated. 10 It was the applicant's case that he was not caught by the probationary period as it had been waived and that the nature of the move was by way of a transfer within the one company. He did not recognise that more than one company was involved. It was also argued that it was unreasonable to apply another probationary period when he commenced in Sydney, because he had already completed a six month probationary period in Dubai. Employer's Case. 11 It was the Employer's Case as stated by Mr. Paul O'Brien, Operations Manager for BBT Australia Pty Ltd, that when the applicant commenced employment in Sydney he was employed by BBT (Australia) Pty Ltd t/as Beresford Blake Thomas Ltd. 12 BBT Australia Pty Ltd is a wholly owned subsidiary of Beresford Blake Thomas Ltd (UK) (BBT UK). He stated that Beresford Blake Thomas in Dubai, United Arab Emirates ('BBT Dubai') is also a wholly owned subsidiary of BBT UK. That is the only connection between the Australian company and the United Arab Emirates company. 13 Mr. Paul O'Brien stated that he fielded the applicant's first enquiry into working in Australia and directed him to Ms. Costa. Ms. Costa was then the Section Manager of Technical Recruitment in the Sydney office. The Technical Section recruited for roles in professional engineering and construction. He was aware that the applicant completed a Sales Profile Question (SPQ) on 22 July 2005 and that his results were sent to Ms. Costa on the same day. In Mr. O'Brien's view, no employment offer would have been made if the applicant had failed such a test. 14 Ms. Michelle Costa stated that around July 2005 she was made aware through a telephone call from Mr. Paul O'Brien that the applicant currently working in Dubai was looking at moving to Australia. Later that month she had a telephone conversation with the applicant and in that month she interviewed him in Sydney. She rejected the view that she offered the applicant a job on the same day that she interviewed him. As he was a new starter he had to successfully complete the SPQ. The applicant completed the SPQ online whilst in Dubai. Ms. Costa was aware that the applicant had already completed a SPQ whilst the applicant was in London prior to taking up the position in Dubai. 15 On or around 29 July 2005 Ms. Costa drew up an employment agreement, utilising a copy of the standard BBT Australia Contract, filling in the applicant's name and address, commencement date, position, remuneration and hours of work in the Schedule to the Contract, and with a New Starter form (contact details, start date, bank details, next of kin details and superannuation choice information) emailed to the applicant (employment agreement-annex A Ex.3). 16 This was the date that the applicant was offered employment in Australia. The employment agreement dated 29 July 2005 stated at commencement: This agreement records the terms on which Beresford Blake Thomas Ltd (the Firm) will employ you and on which you will serve the Firm. Please read this agreement carefully. If you agree with and accept these terms of employment, please sign it and have it witnessed and returned to me. The employment agreement contained the following clause: Probation The first three months of your employment will be probationary. During this period your employment may be terminated at any time on one weeks' notice in writing or by payment in lieu. 17 Shortly after receiving the employment agreement the applicant rang Ms. Costa from Dubai and asked questions about his salary in Aus. dollars and its equivalent in his local currency, the cost of accommodation in Sydney and the cost of a round of golf. No comment was raised about the probationary period. He sought no variation of the employment agreement nor did he raise any other problems with the document. The document was returned signed without any alteration. 18 On his commencement in Sydney he had to be given a new starter request to gain access to his computer and his bonuses owed from in Dubai would have to be paid from there as Australia had a separate payroll. 19 Under cross- examination Ms. Costa denied that she had ever spoken to the applicant about the probationary period. He was considered a new employee and treated as such. She resigned of her own accord from the respondent on 15 November 2005 and commenced with a new company on 29 November 2005. 20 Mr. Shane O'Brien stated that he was a Senior Consultant with the respondent and commenced with them on 26 June 2005. On 16 November 2005 he took over the role of Section Manager, which was formerly filled by Ms. Costa. On 17 November 2005 he terminated the applicant for poor performance. Prior to terminating the applicant Mr. S. O'Brien had read the applicant's file and noted his employment contract and the probationary period. In response to being terminated, the applicant was alleged to have stated in part that : "I shouldn't have a probationary period anyway…." 21 It was the respondent's case that the applicant had been offered a new contract of employment on 29 July 2005 (after he had successfully completed the SPQ). No offer had been made to the applicant prior to this date. No variation was sought or granted to the original employment agreement. The applicant commenced employment on 12 September 2005 and within the three months probationary period had been terminated. Therefore the applicant was not an eligible employee to bring a claim for unfair dismissal. Consideration. 22 Section 83(2) of the Industrial Relations Act 1996 exempts certain classes of employees from unfair dismissal provisions of the statute: This part does not apply to an employee who is exempt from this Part by the regulations. Any such regulations may only exempt specified classes of employees included in any part of the following classes: (a)………………… (b) employees serving a period of probation or qualifying period, (c )…………. (d)……………. (e)…………… 23 The section is to be 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, 24 In final submissions both parties provided the Commission with a list of authorities. 25 It was the applicant's submission that : · There had been a verbal agreement between the applicant and Ms. Costa to waver the standard probationary period. · That it was unreasonable to apply a probationary period to the applicant in the circumstances. 26 The applicant stated that he was offered a job by Ms. Costa on 18 July 2005 when he was interviewed in Sydney whilst on holidays. This was denied by Ms. Costa. A few days later the applicant completed a SPQ in Dubai and a few days later, an employment agreement was sent to the applicant by Ms. Costa. 27 Ms Costa stated that all new starters had to undergo and pass a SPQ. In my view there would be little logic for Ms. Costa to make an offer of employment to the applicant on 18 July, prior to the applicant taking and passing the SPQ. Therefore on the balance of probability I find that the offer of employment to work in Sydney was made on 29 July 2005. 28 The employment agreement clearly stated that a probationary period formed part of the offer and that the document should be read carefully. If as the applicant stated that the probationary period clause did not apply to him, then why did not he vary the agreement by ruling out that particular clause and initialling the document. 29 He on the other hand may not have done so, as he did recognise that he was commencing a new contract that required him to pass a probationary period as part of the process of working in Australia. It was he who had initiated the desire to work in Sydney based solely on family reasons. 30 Another issue that must be resolved is whether the probationary period was waived by Ms. Costa ? Ms. Costa denied ever doing such a thing. The applicant stated that she did waiver it, when speaking to him on the phone. For the Commission to determine such an issue then one has to consider the motive of each person for giving such evidence. For the applicant to not state that it was waived would be critical to his case. It would mean that he signed the employment agreement accepting in full the document and its implications. The probationary period would therefore apply to him. It was raised during the arbitration and is also interesting to note that no mention of the term "probationary period" was made by the applicant when he completed his claim for unfair dismissal. Ms. Costa resigned from the respondent of her own accord, a few days before the applicant was terminated. She now works for another company. What benefit was there for Ms. Costa to make a false written statement and then perjure herself before this Commission. If the probationary period was waived by Ms. Costa, then the normal procedure is for, in this case, the applicant to delete the clause by ruling it out and then initialling the document. With respect to this issue I prefer the evidence of Ms. Costa. In my view Ms. Costa treated the applicant as a new employee. It is my finding that the applicant did not raise the issue of the probationary period in the phone call with Ms. Costa but just signed the document and returned same to the respondent without variation. It is my view that as the applicant had initiated the request to work in Australia, so he could be reunited with his wife, he accepted the contract as expressed. 31 Ms. Case for the applicant argued that in the circumstances prevailing, no probationary period should have applied to the applicant because of his previous work background. It was Ms. Costa's view that the applicant was a new starter and therefore a three months probationary period would apply. Ms. Costa also stated that the role that the applicant was placed in Sydney was different to the role that he had carried out in Dubai. Notwithstanding that difference, Ms. Costa believed at the time of offering employment, the applicant would be successful in Sydney. 32 Whilst the applicant was not a complete unknown in that he had experience in the recruitment field, he was being placed into a new and different job to the job in Dubai. This new job required very strong selling skills and the need to be able to approach potential clients to sell the respondent's services. This was to be carried out in a city that he had not worked in before. It must also be recognised that the respondent Australian company was a separate and distinct business entity from the applicant's previous employer in Dubai. In the circumstances, it is my finding that the requirement by the respondent for the applicant to successfully complete a three months probationary period in Sydney was reasonable. 33 In summary it is my finding that the applicant's appointment in Sydney was subject to the successful completion of a three months probationary period and that such a requirement was reasonable in the circumstances. 34 In that the applicant was terminated within that three month probationary period which was determined in advance, the applicant was therefore an employee exempted from Part 6 of Chapter 2 of the Act. 35 This application is dismissed and I now conclude this matter. D.RITCHIE COMMISSIONER 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.