Industrial Relations Commission New South Wales Medium Neutral Citation: Bowen v City of Ryde Council [2020] NSWIRComm 1036 Hearing dates: Determined on the papers Date of orders: 12 May 2020 Decision date: 12 May 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The Council's jurisdictional challenge to the Application is dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – exclusions from jurisdiction – probationary employment – dismissal after end of probation period – whether exclusion applies if employee on sick leave when probation period ends – whether alleged intention of employee to delay dismissal until after probation period affects application of exclusion Legislation Cited: Industrial Relations Act 1996 (NSW) ss 83(2)(b), 84 Industrial Relations (General) Regulation 2015 (NSW) cl 6(1)(c) Workplace Relations Act 1996 (Cth) s 638(1)(c) Cases Cited: Alison Christine Hewson v Southern Aboriginal Corporation [2008] AIRC 116 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Department of Education and Communities (2013) 233 IR 345; [2013] NSWIRComm 32 Category: Procedural and other rulings Parties: James Bowen (Applicant) City of Ryde Council (Respondent) Representation: James Bowen (Self) Local Government New South Wales (Respondent) File Number(s): 2019/332482 Publication restriction: No INTERLOCUTORY Judgment 1. James Bowen commenced employment with the City of Ryde Council ("Council") as a Waste Prevention Officer on 1 April 2019. His employment was terminated on 8 October 2019. 2. On 23 October 2019 Mr Bowen filed an Application for Relief in relation to Unfair Dismissal ("Application") pursuant to s 84 of the Industrial Relations Act 1996 (NSW) ("Act"), giving rise to these proceedings. The Council challenged the jurisdiction of the Commission to hear and determine the Application, on the basis that Mr Bowen was a probationary employee at the time of his dismissal. 3. The matter was listed for hearing on 12 and 13 May 2020. Due to the impact of the COVID-19 virus on 24 April 2020 I arranged for an email to be sent to the parties which included the following: "As you are no doubt aware, the Commission is not currently allowing for personal appearances in any matters save in exceptional circumstances with the leave of the Chief Commissioner. … The Commission is exploring all means by which to minimise disruption to parties caused by COVID-19 and to allow for cases to proceed to finalisation, including through the use of technological solutions. … In respect of the arbitration in these proceedings Commissioner Sloan invites the parties to consider the following options: 1. Maintain the current listings on the 12th and 13th of May, with proceedings to be conducted by videoconference, if available, or by telephone as a default. 2. Vacate the listing and have the matter determined 'on the papers'. The Commissioner would reserve the right to convene a remote hearing if he had any questions arising from the material filed. 3. Adjourn the proceedings until a face-to-face hearing can be convened. The Commissioner is unable to give an indication at this stage as to when that might be." 1. On 30 April 2020 the Commission received an email from the Council's representative stating that the parties had agreed on the second option in the email referred to above, which was stated to be "vacate the listing and have the jurisdictional matter determined 'on the papers'"(my emphasis). Mr Bowen was copied into the email. 2. As Mr Bowen is self-represented I decided, out of abundant caution, to convene a directions hearing to confirm the intentions of the parties. That directions hearing took place on 4 May 2020. As a result of the discussion that I had with the parties on that occasion I was satisfied that Mr Bowen understood the consequences of a matter being determined "on the papers". Further, the parties confirmed that they only wished the jurisdictional issue to be dealt with on that basis. 3. This judgment therefore only addresses the Council's jurisdictional objection. 4. The Council relied on the following: 1. a statement of Danielle Brennan, People and Culture Advisor of the Council, dated 6 December 2019; 2. a statement of Jude Colechin, Senior Coordinator Resource Recovery of the Council, dated 6 December 2019; 3. two statements of Ian Garland, Manager, Business Infrastructure of the Council, dated 6 December 2019 and 17 January 2020; and 4. two statements of Jessica Lorraine Smith, People and Culture Business Partner of the Council, dated 6 December 2019 and 17 January 2020. 1. Mr Bowen relied on a statement he had made on 8 January 2020. 2. A significant amount of the evidence adduced by both parties went to the merits of the dismissal itself, and went beyond the jurisdictional objection raised by the Council. It is not necessary for present purposes that I traverse that evidence, much less offer a view on it. I have had regard only to the evidence that relates to the question of jurisdiction. 3. On that question, the facts can be shortly stated: 1. In early March 2019 Mr Bowen and the Council engaged in negotiations as to the terms on which he would be employed with the Council as a Waste Prevention Officer. Those negotiations culminated in him being sent a letter from the Council dated 11 March 2019 offering him appointment to the position ("Offer"). 2. The Offer included the following terms: "4. Probationary Period 4.1 You will be employed on a three (3) month probationary period and during this time your performance will be reviewed by your Senior Coordinator and regular feedback provided to you. 4.2 Prior to the completion of your probationary period, your performance and conduct will be reviewed. Should that review result in concerns regarding your performance or conduct, your probationary period may be extended for a further three months, or part thereof. 4.3 During the probationary period, either party may terminate your employment by giving two week's [sic] written notice." 1. On 13 March 2019 Mr Bowen accepted the Offer, by signing a "Statement of Acceptance" contained on the last page of the Offer. 2. Mr Bowen commenced employment on 1 April 2019. 3. The Council claims to have had concerns with Mr Bowen's performance in his role. These were said to have been discussed with him. The Council decided to extend Mr Bowen's probation period to 1 October 2019, which was confirmed in a letter to Mr Bowen dated 28 June 2019. 4. Due to continued perceived deficiencies in Mr Bowen's performance, by 24 September 2019 Mr Garland and Ms Colechin had decided to terminate his employment. The assistance of Ms Brennan was procured to assist in effecting that termination. 5. On 26 September 2019 Mr Bowen was given written notice to attend a meeting the following day. The Council's intention was to effect Mr Bowen's dismissal at that meeting. The evidence suggests that Mr Bowen anticipated this intention. 6. Mr Bowen took sick leave on and from 27 September 2019. Between 27 September 2019 and 3 October 2019 there were a number of telephone calls from the Council's officers to Mr Bowen, not all of which were answered. There were also several emails sent to Mr Bowen, not all of which received a response. The calls and emails were said to have been directed towards obtaining medical evidence to support Mr Bowen's absence and to seek clarity as to his expected date of return. 7. Mr Bowen returned to work on 8 October 2019. He was called to attend a meeting, which he initially sought to avoid on the basis of feeling dizzy and having to leave work. Despite this, the meeting proceeded. Mr Bowen was informed that his employment was terminated with immediate effect, but that he would receive a payment in lieu of notice and payment for accrued but untaken sick leave. 8. The dismissal was confirmed in a letter from the Council to Mr Bowen dated 8 October 2019. 1. Against this background, the Council contends that the Commission has no jurisdiction to entertain the Application. It relies on Mr Bowen's alleged status as a probationary employee. 2. Section 83(2)(b) of the Act provides as follows: 83 Application of Part … (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. Clause 6(1)(c) of the Industrial Relations (General) Regulation 2015 (NSW) ("Regulation") provides as follows: 6 Other exemptions from unfair dismissal provisions (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 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, … 1. The Council's submissions may be summarised as follows: 1. The exemption in cl 6(1)(c) of the Regulation applies because the maximum period of the probation period was determined in advance and was reasonable having regard to the circumstances of Mr Bowen's employment. 2. The Council intended to terminate Mr Bowen's employment during the probation period. 3. The evidence indicates that Mr Bowen was aware of the Council's intention to terminate his employment, and that he utilised sick leave in order to "deliberately subvert" the Council's intention to effect that termination during his probation period. 4. The Commission should determine that the Council sought to terminate Mr Bowen's employment before the end of his probation period and that Mr Bowen "did not allow this to happen". 5. The Application ought to be dismissed pursuant to the exemption found in s 83(2)(b) of the Act and cl 6(1)(c) of the Regulation. 1. Mr Bowen's response to these contentions was that his employment was terminated on 8 October 2019, seven days after the expiry of his probation period. As a consequence, s 83(2)(b) of the Act and cl 6(1)(c) of the Regulation have no application. 2. Mr Bowen did not respond to the allegation that he had sought to "deliberately subvert" the Council's intention to effect his dismissal during his probation period. Mr Bowen also did not challenge the Council's submission that the requirements of cl 6(1)(c) of the Regulation – that the maximum period of the probation period was determined in advance and was reasonable having regard to the circumstances of his employment – had been met in his case. 3. I recognise that Mr Bowen is self-represented, however he was otherwise able to make submissions regarding his position under the Act and Regulations. These submissions included him seeking to distinguish the cases on which the Council relied. If he considered that there were grounds on which to challenge the matters referred to at [16] above, particularly the first, I would have expected him to do so. 4. On the evidence presented, and noting that the contentions have not been controverted, I accept that the maximum period of the probation period was determined in advance of Mr Bowen commencing employment and was reasonable having regard to the nature and circumstances of his employment. However, the matter does not end there. 5. Both s 83(2)(b) of the Act and cl 6(1)(c) of the Regulation refer to "employees serving a period of probation or qualifying period". In the context of the legislative scheme as a whole, the use of the present tense must mean that the employee be within their probation period at the time of their dismissal. 6. It is not in contention that Mr Bowen was absent on sick leave when his probation period ended on 1 October 2019. He was dismissed on his return to work on 8 October 2019. In arguing that Mr Bowen is excluded from bringing the Application, the Council must be regarded as contending that the probation period should be taken to have been extended until he had returned to work. 7. The Council's submissions call for a construction of the Act and Regulation to the effect that if at the end of an employee's probation period the employer intends to effect the dismissal of the employee but is precluded for some reason from doing so, the probation period agreed between the parties will be taken to have been extended until such time as the impediment to the employer effecting the dismissal is removed. Nothing in the Act or Regulation allows for such an interpretation. It would call for words to be read into the provisions. Such an approach would run contrary to the principles of statutory interpretation set out in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Department of Education and Communities (2013) 233 IR 345; [2013] NSWIRComm 32 at [24]. 8. The same difficulties would arise for the Council even were the analysis to be confined to the circumstances it alleges apply in this case – that is, an employee improperly utilising sick leave to avoid being dismissed during his probation period. 9. I would add that the Council elected to wait until Mr Bowen had returned to work. While this may be to its credit in some respects, it had options. 10. In Alison Christine Hewson v Southern Aboriginal Corporation [2008] AIRC 116 the applicant had commenced unfair dismissal proceedings under s 643(1) of the Workplace Relations Act 1996 (Cth). The respondent sought to have the proceedings dismissed on the ground that the applicant was excluded from the jurisdiction by s 638(1)(c) of the Workplace Relations Act, which is relevantly in the same terms as cl 6(1)(c) of the Regulation. It is sufficient to note the following from the decision of Simpson C: "[14] Accordingly, the applicant claimed that her period of probation commenced at the beginning of the day on 31 July 2007 ended at the end of the day on 30 October 2007. As such, it is submitted by the applicant that the termination of employment which occurred on the 31st of October was after the conclusion of the probation period. Consequently, the applicant submitted that the exclusion in s. 638(1)(c) of the Act does not apply. [15] In reply, the respondent acknowledges that the respondent moved to terminate the employment on the 31 October 2007. The respondent claimed that the applicant did not report for work on that day, so it cannot be said that the applicant's employment extended beyond the three month probationary period agreed at the commencement of the applicant's employment. [16] Having considered the arguments on this point, I have come to the view that there is no evidence that the probationary period had been extended, even though potentially that may have been considered at some stage by the respondent. I agree with the applicant's submission that the three-month probationary period expired at the end of the day of 30 October 2007, one day before the letter of termination and verbal advice of termination was given. [17] Consequently, it is not correct to say that the applicant was terminated whilst serving a period of probation. …" 1. The same result obtains in this case. Whatever may have been the Council's intentions, and whatever the Council considered may have prevented them from being implemented, the fact is that Mr Bowen was not serving a period of probation at the time his employment was terminated. The exclusion resulting from s 83(2)(b) of the Act and cl 6(1)(c) of the Regulation cannot arise. 2. I am not oblivious to the Council's allegation that Mr Bowen deliberately used sick leave in a manner calculated to ensure that he was not dismissed during his probation period, or indeed that this allegation went unchallenged. However, whether or not Mr Bowen, to use the vernacular, "gamed the system" is not ultimately relevant to whether he is excluded from bringing the Application. It may, however, be relevant in considering whether his dismissal was harsh, unreasonable or unjust, or in determining any relief to which he may be entitled if he succeeds on the merits. This is a matter that must be left for the hearing of the substantive application. 3. The Council's jurisdictional challenge to the Application is dismissed. The matter will be listed for directions. Damian Sloan Commissioner ********** Amendments 21 July 2020 - Paragraph 10(6) amended to "Mr Garland and Ms Colechin". 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: 21 July 2020