Babb, Jeffrey Robert v Commonwealth of Australia (Department of Administrative Services)
[1997] FCA 932
•9 SEPTEMBER 1997
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - whether the applicant was an employee serving a period of PROBATION determined in advance
Workplace Relations Act 1996 (Cth)
Workplace Relations Regulations reg. 30B(1)(c)
Members of Parliament (Staff) Act 1984 (Cth)
Reed v Blue Line Cruises Limited (unreported, Industrial Relations Court of Australia, Moore J, 26 November 1996)
CFMEU & Hornett v Borg Manufacturing Pty Ltd (unreported, Industrial Relations Court of Australia, Moore J, 6 February 1997)
JEFFRY ROBERT BABB v COMMONWEALTH OF AUSTRALIA
(DEPARTMENT OF ADMINISTRATIVE SERVICES)
VI 1183 of 1997
Before: Judicial Registrar Millane
Place: Melbourne
Date: 11 September 1997
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1183 of 1997
BETWEEN:
JEFFRY ROBERT BABB
APPLICANTAND:
COMMONWEALTH OF AUSTRALIA
(DEPARTMENT OF ADMINISTRATIVE SERVICES)
RESPONDENTJUDICIAL REGISTRAR:
MILLANE
DATE OF ORDER:
9 SEPTEMBER 1997
WHERE MADE:
MELBOURNE
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The applicant’s application in proceeding number VI 1183 of 1997 is dismissed.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1183 of 1997
BETWEEN:
JEFFRY ROBERT BABB
APPLICANTAND:
COMMONWEALTH OF AUSTRALIA
(DEPARTMENT OF ADMINISTRATIVE SERVICES)
RESPONDENT
JUDICIAL REGISTRAR:
MILLANE
DATE:
11 SEPTEMBER 1997
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
By an application filed on 18 December 1996 the applicant sought reinstatement and compensation alleging that on 9 December 1996 his employment by the respondent as an Electorate Officer Grade B was terminated in contravention of the provisions of the Workplace Relations Act 1996 (Cth) (the Act).
It was agreed by the parties that the Court would deal with the jurisdictional question first. This was whether, at the relevant time, the applicant was an employee serving a period of probation determined in advance. This course was adopted because a finding that the applicant was in fact serving a period of probation determined in advance excludes the applicant from the class of employees to whom remedies are available under the Act. Relevantly, regulation 30B(1)(c) of the Workplace Relations Regulations provides:
“30B(1) Subject to subregulation (2), for the purposes of section 170CC of the Act, the following employees are excluded from the operation of Subdivision B, C, D and E of Division 3 of Part VIA of the Act:
(a) ...
(aa) ...
(b) ...(c) an employee serving a period of probation or a qualifying period of employment, if the duration of the period or the maximum duration of the period, as the case requires:
(i) is determined in advance; and
(ii) is reasonable, having regard to the nature and circumstances of the employment;
(d) ...”
The dispute between the parties was confined to the two points I have referred to above and did not include any assertion or evidence establishing that the duration of the alleged probationary period of employment was unreasonable having regard to the nature and circumstances of the employment. Accordingly, I was only required to decide the narrower issue of whether at the outset the employment was probationary because there was then an express or implied agreement to that effect (see generally the decisions of His Honour Justice Moore in Reed v Blue Line Cruises Limited (unreported, Industrial Relations Court of Australia, Moore J, 26 November 1996) and CFMEU & Hornett v Borg Manufacturing Pty Ltd (unreported, Industrial Relations Court of Australia, Moore J, 6 February 1997)).
On 9 September 1997, having had the opportunity to hear the evidence and read the documents tendered to the Court, I dismissed the applicant’s application, indicating then that my written reasons for judgment would follow.
THE WITNESSES
The applicant gave evidence and called one other witness, John Raymond Pasquarelli (Pasquarelli), who is presently unemployed but was the senior adviser to the Federal Member for Oxley at the relevant time.
The respondent called one witness, the Honourable Pauline Lee Hanson MP, (Hanson), the Federal Member of Parliament for the Division of Oxley in the House of Representatives.
THE EVIDENCE
In response to orders made by the Court both parties filed contentions, which documents purported to detail the facts and law each asserted were relevant to a determination of the jurisdictional question. After hearing all the evidence called by each party it was apparent to me that the contentions filed were poorly crafted documents and did not articulate clearly the allegations of facts and the law relied on.
The contentions only assumed significance at hearing when Hanson was cross-examined about parts of the document filed by the respondent and the difference between those parts and her evidence. For instance, Hanson’s oral evidence of what she said to the applicant when she allegedly informed him that the position was a probationary one, was far more detailed than the quotation contained in the contentions.
It not uncommon for witnesses to be taken to task over the contents of pleadings and contentions filed with the Court. Nevertheless, unless it can be shown that the witness has read, or is directly responsible for the contents of the document usually drafted by the party’s solicitors, or has adopted the contents of the document, it is not appropriate to give weight to any differences between the statements in the document and the oral evidence. Clearly her evidence of what she said went much further than the quotation in the respondent’s contentions. However, I am satisfied that she did not read the contentions filed before the document was shown to her in Court, nor did she adopt the contents of same. In determining the weight, if any, I should apportion to this matter, I have also considered the contentions filed by the applicant. This document bears little resemblance to the primary facts alleged by the applicant and Pasquarelli in their oral evidence. The applicant’s contentions are drafted in the form of a pleading; that is to say, a defence rather than a particularisation of the facts the applicant intended to rely on at hearing to meet his burden of proof on the jurisdictional question. Having regard to all these matters, in making my findings I have concentrated entirely on the evidence of the witnesses and the documentary evidence tendered to the Court.
It was common ground that from 18 November 1996 the applicant was engaged by Hanson as an Electorate Officer Grade B. This employment was entered into pursuant to Part IV of the provisions of the Members of Parliament (Staff) Act 1984 (Cth). The effect of this legislation and the subordinate instrument created pursuant to its provisions (see the Arrangements and Conditions for the Employment of Staff of Senators and Members dated 23 October 1983) is that, as happened in this case, the electorate officer engaged by the Member of Parliament as part of her personal staff became and was, at the date of termination, an employee of the Commonwealth.
The three witnesses all agreed that on 30 October 1996 an interview for the position of Electorate Officer Grade B took place between Hanson and the applicant at a house in Yarraville during an evening barbecue. Hanson and the applicant were the only participants and, therefore, the only people able to give evidence on whether the oral offer of employment made and accepted in the fifteen to twenty minutes they spent together was for employment subject to a three month period of probation. On the one hand Hanson asserted that she informed the applicant that there would be a three month period of probation and he expressly agreed to that condition. On the other hand, the applicant denied any reference at all to probationary employment. He claims that on 25 November 1996, one week after the commencement date of his employment on 18 November 1996, he was pressured by Pasquarelli to sign a document (Exhibit A1) purporting to acknowledge an earlier agreement with Hanson to the effect that his employment was probationary employment. Essentially the determination of the primary issue rests on an assessment of the credibility of the evidence of Hanson and the applicant and, because of the surrounding circumstances, an assessment of the likelihood that they acted in the way they say they did.
Having heard the evidence, the applicant, who carries the onus of proof on the jurisdictional question, failed to satisfy me that it was more probable than not that the contract of employment entered into was an unconditional one. A number of factors helped me reach this conclusion. The first was that, as the respondent’s senior counsel, Mr Tracey QC, observed, the applicant presented as a very poor historian particularly when required to detail the range of matters he said were discussed at his first meeting with Hanson. He was prompted both in evidence-in-chief and cross-examination before he was able to give evidence on a number of matters. The second factor was that Pasquarelli as a witness called by the applicant to corroborate, amongst other matters, the applicant’s allegation that on 25 November 1996 under protest he was forced by Pasquarelli to sign Exhibit A1 acknowledging an agreement for probationary employment, failed to give evidence to sustain this allegation. The third factor was the evidence of both Hanson and Pasquarelli that, because of the public position Hanson holds, there is an emphasis on there being mutual confidence and trust between her and her personal staff. Neither Pasquarelli nor Hanson were personally acquainted with the applicant prior to 30 October 1996; although Pasquarelli’s enquiries led him to recommend the applicant as a worthy candidate for the position. In this climate it is likely that Hanson did adopt a more cautious approach to hiring this new staff member, leaving herself the option of terminating the relationship in the short-term if the applicant was an unsuitable employee. The last factor, which is related to the preceding one, is that in early 1996 Pasquarelli introduced a policy whereby all personal staff hired, including Pasquarelli, were required to agree to probationary periods of employment. It seems that that policy was not implemented until after Pasquarelli, Barbara Hazelton and Heidi Lewis, both of whom were Electorate Officers, were already employed. Nevertheless, all agreed to this condition attaching to their contracts of employment. Had Hanson purported to terminate their employment within the three month probationary period, arguably there was no proper basis under the Act for establishing that any period of probationary employment was determined in advance. However, it was said that Brett Heffernan, who was the Electorate Officer Grade B from April 1996 until he resigned on 20 September 1996, was employed subject to the probationary employment policy. It is likely that, by reason of the existence and implementation of this policy and, as it turns out, the difficulties encountered with Barbara Hazelton who strongly objected to but subsequently agreed to having the probationary condition attach to her contract of employment, Hanson acted in a way which was consistent with the policy applying to each member of her small group of personal staff.
BACKGROUND
By way of background it was common ground that following her election to Parliament in 1996 Pasquarelli was appointed by Hanson as her senior adviser. At the beginning of September 1996 her staff consisted of Pasquarelli and the three electorate officers named above. As I have already noted, Brett Heffernan resigned on 20 September 1996 leaving a vacancy to be filled by a person with research skills and experience.
As Hanson’s senior adviser, Pasquarelli pursued the staff replacement and, as a result of his inquiries, recommended the applicant as a suitable candidate to be interviewed by Hanson. At hearing the applicant described himself as a freelance writer with extensive experience as a researcher having worked for Senator Peter Sims in Western Australia between 1975 and 1980.
On 30 October 1996 Hanson and Pasquarelli flew to Melbourne from Canberra with a view to Hanson attending the Footscray Market the next morning. However, after arriving in Melbourne late in the afternoon, they attended a barbecue at the home of friends of Pasquarelli. It was agreed by Pasquarelli and Hanson that there was then an arrangement in place for the applicant to meet with Hanson at the barbecue and be interviewed for the vacant position.
They also agreed that when the applicant arrived he was introduced to Hanson by Pasquarelli and shown by the host and Pasquarelli to the front of the house where they conducted the interview in private. After the interview was concluded they returned to the party and Hanson alleges that she informed Pasquarelli that the applicant had accepted her offer of probationary employment. This allegation was not put to Pasquarelli.
Pasquarelli was at pains to tell the Court that when all these events took place, he and the other staff were working under considerable pressure and there was an urgent need to replace Heffernan to deal with the research backlog. Because of the pressure of work it was his evidence that, although he was the person responsible for ensuring that the agreement to a ninety day period of probation was signed, he neglected to pursue this course until Monday, 25 November 1996 when he attended the Ipswich electorate office with the applicant for the first time.
Contrary to the evidence subsequently given by Hanson, Pasquarelli told the Court that shortly before attending the barbecue he did not mention probationary employment, nor did he remind Hanson that if she offered the position to the applicant it must be offered as a probationary position.
In considering the weight to be given to Pasquarelli’s evidence I have borne in mind the fact that in this proceeding he is not what is commonly referred to as an independent witness. Both the applicant and Pasquarelli sued the Commonwealth at the same time alleging that on 9 December 1996 their employment was terminated by Hanson in contravention of the provisions of the Act. Both proceedings were fixed for hearing at the same time with Babb’s application and the jurisdictional issue being dealt with first.
It was apparent from the evidence of particularly Pasquarelli that there had been a dispute between he and Barbara Hazelton some months prior to the applicant’s employment when Pasquarelli insisted that Barbara Hazelton sign an agreement saying that her employment was subject to a period of probation. That dispute was not resolved until Hanson intervened and Barbara Hazelton capitulated and signed the agreement. When Pasquarelli gave his evidence he clearly felt strongly about both his argument with Barbara Hazelton over the probationary employment issue and the fact that he had initiated probationary employment agreements in order to protect Hanson from what he described as “... frivolous unfair dismissal claims”. As her adviser and the person responsible for ensuring the implementation of the probationary employment policy, it is more likely than not that before Hanson attended the meeting Pasquarelli had orchestrated, she was reminded by Pasquarelli to place the applicant on probation if she offered him employment. Hanson’s evidence to this effect is consistent with Pasquarelli’s subsequent conduct on either 18 or 25 November 1996 when Pasquarelli and the applicant allege that he took a pro forma letter from the computer, altered the identity of the employee referred to in the letter and required the applicant to sign that letter. Relevantly, the signed letter (Exhibit A1) provides as follows:
“FURTHER TO YOUR APPOINTMENT TO MY STAFF
JEFFRY BABB
ELECTORATE OFFICE
OXLEY
Dear Jeff
As per our discussions prior to your appointment, I wish to reiterate that such appointment is probationary for a period of three months (90 days) from the date of appointment.
Subject to your satisfactory performance during the probationary period, consideration will be given to your permanent appointment.
Yours sincerely The conditions and terms
of employment are
accepted
PAULINE HANSON
INDEPENDENT MEMBER FOR OXLEY JEFFRY BABB”
It was said by Pasquarelli and the applicant that the substance of the pro forma letter, which the applicant read before he signed, was not altered even though it was, according to the applicant, untrue.
Pasquarelli’s evidence concerning the making of probationary employment agreements with the incumbent staff indicated to me that he drew no distinction between an agreement for a probationary contract of employment signed after the employment commenced and an agreement entered into beforehand. Given his understanding of this matter, there was no obvious reason for Pasquarelli to perpetuate any false statement alleging that Hanson had discussed the probationary employment with the applicant prior to the appointment being made. I have already noted that Hanson asserted that after the initial interview concluded she informed Pasquarelli that she had appointed the applicant on probation. The lastmentioned evidence assists in explaining why, after 13 November 1996 when the written agreement the Commonwealth required was executed and, after the applicant had worked for one week, Pasquarelli suddenly remembered that he had not organised the signing of the probationary agreement and informed the applicant that “... all bets were off” if he did not sign that document. This comment, his subsequent conduct and Exhibit A1 are generally consistent with an understanding on Pasquarelli’s part that Hanson had discussed a probationary employment agreement with the applicant at the interview and had subsequently confirmed this discussion with Pasquarelli.
The applicant’s difficulty in recalling numerous matters to do with the making of the contract of employment and the execution of the agreement with the Commonwealth on 13 November 1996, was compounded by Pasquarelli’s subsequent failure to corroborate the thrust and substance of the applicant’s allegation concerning the making of Exhibit A1. The applicant told the Court that when he and Pasquarelli arrived at the Ipswich electorate office on Monday, 25 November 1996, the following conversation took place:
“BABB: ... he said, “Well, we’ll have to sign this probationary agreement.” I said, “What probationary agreement?” He said --
... He said, “Everybody who works here has to sign a probationary agreement.” I said, “Well, that’s the first I’ve heard of it.” He said, “No, no, no, everybody has to sign it.” I said, “Well, where is it?” He said, “Well, it’s on the computer”, so he called up the computer, got a pro forma letter off the computer and said, “Well, this is the probationary agreement.” I said, “Well, I’m not very happy about doing this,” because as far as I was concerned there was no probationary period. He says, “Well, everybody has to do it and if you don’t do it, I’ll be in trouble because everybody has to sign it.” I said, “Well, I’m doing this under duress.” He said, “Well, as far as I’m concerned, if you don’t sign it, all bets are off.” So I said, “Well, I have no alternative but to sign it”, which I did, and I said - he gave me the agreement and he said, “Well, sign now.” I said, “Look, John, it hasn’t even got a date on it. What sort of a document is it without a date on it? It could be dated at any time.” He said, “Well, you were supposed to sign it on the day you started work.” So I said, “Well, I’d better date it on the 18th then,” so he said, “Well, go ahead and date it then.” So that was what happened on that day.”
Pasquarelli’s evidence was that the applicant “baulked” when he produced the document for signing, however, he “didn’t baulk all that seriously”. Pasquarelli could not recall what the applicant said to him but did indicate that whatever was said was not “... that significant to make (him) think that (he) was going to have a problem”.
The applicant told the Court that he signed the document containing the untruthful statements and backdated it to 18 November 1996 after telling Pasquarelli that there had been no discussion of or mention of probationary employment. He took this course, he said, because he believed he had no other option and he wanted to protect Pasquarelli who had indicated that he, Pasquarelli, would be in trouble with Hanson if the document was not signed. Pasquarelli strongly rejected any suggestion that he indicated that he would be in trouble with Hanson if the document was not signed. He also rejected any suggestion that when he told the applicant that “... all bets were off” if he did not sign the document, he meant by this that the applicant’s employment would be terminated. Indeed, he made the rather curious comment that when he said these words he “... might have been, for the sake of (his) position, bluffing”.
I am satisfied that it is likely that Exhibit A1 was created and signed by the applicant in Ipswich on 25 November 1996, although he inserted the date of commencement of his employment, “18.11.96”, when he signed it. Pasquarelli said he had no recollection of what happened to the document after he gave it to the applicant, who told the Court that he signed it but was not present when Hanson signed it. It is probable that the document was retained by Pasquarelli and subsequently given to Hanson to sign.
Looked at objectively, the evidence given by Pasquarelli in relation to Exhibit A1 is not inconsistent with Hanson’s primary allegation that she told the applicant his employment would be probationary employment. More importantly, his evidence does not substantiate the claims made by the applicant about the circumstances leading to him signing the document.
Returning to the applicant’s evidence concerning the first interview on 30 October 1996, he claims that he was left waiting for a telephone call from Pasquarelli to confirm that he had an interview with Hanson that afternoon. When he did not receive that confirmation he took it upon himself after 6.00pm to attend the barbecue anyway. When he arrived he alleges that Pasquarelli looked “quite stunned”. This was presumably because the appointment had not been confirmed. In contrast to this evidence, both Pasquarelli and Hanson said they attended the barbecue with the understanding that an appointment had already been made for the date and location of the interview. Because of this it is not remarkable that Pasquarelli contradicted the applicant’s evidence by denying that he was surprised when he saw the applicant arrive.
The applicant told the Court he was tense before the interview because he wanted the job. When it was put to him that in the course of his conversation with Hanson she said words to the effect of “... if you decide to accept the job, you should realise you will be on probation for three months. After that we’ll see whether or not things are working out between us and whether you’re happy working with me and me with you. It’s a policy I have with all my electorate staff; is that all right with you?”. The applicant denied that probation was mentioned and also denied that he had responded to the statement made by Hanson with the statement “yes, that’s fine”.
When his attention was drawn to his failure to recall many other matters and it was suggested to him that it was possible that he may also have failed to recall the statement that the employment was to be probationary employment, the applicant responded by saying “I am certain about most things. Given that it was a year ago, I’m not a computer, I can’t remember everything. I know my wife asked me when I got home “Is this a permanent job?”, and I said, “Yes, it’s a permanent job”.”
It is not the case that when witnesses give evidence after many months have elapsed that, in order to succeed, they must or are expected to recall conversations verbatim. Nevertheless, actual recollection of the substance of the conversation is preferable to reconstruction based on what was said to the applicant’s wife some time later.
Generally speaking, Hanson’s evidence sets out her recollection of a sequence of conversations before, during and after the interview. This recollection did not rely on any apparent reconstruction and was consistent with the probationary employment policy applying to all her staff and the document, Exhibit A1, signed by her and the applicant. Because of these matters, her evidence was more plausible.
Apart from my observations concerning his failure to recall many matters without prompting, as a witness the applicant demonstrated a marked reluctance to accept the simple and, some might say, self-evident proposition that his position on Hanson’s personal staff where his research would form the basis of the public speeches made by her, was a position requiring a greater than usual degree of mutual trust and confidence. The impression I gained from the applicant’s refusal to acknowledge the difference between his position as a researcher for a member of parliament and what he referred to as the normal employer and employee relationship was that he consciously sought to avoid the conclusion that the special characteristics of the job he was being offered made it more likely than not that Hanson would act in the manner she says she did. His attitude had an adverse impact on his credibility as a witness because I was left with the concern that he was unwilling to give evidence unless it advanced his cause.
Taking all the abovementioned matters into consideration, I was not satisfied on the balance of probabilities that the agreement to employ the applicant was an unconditional agreement and I made an order dismissing his application.
I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of Judicial Registrar Millane.
Associate:
Dated: 9 September 1997
Appearing for the Applicant: Ms T. Cirkovic Solicitor for the Applicant: Tanya Cirkovic & Associates Counsel for the Respondent: Mr R.R.S. Tracey QC with Mr N.J.D. Green Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 8 September 1997 Date of Judgment: 9 September 1997
0
0
0