Bikhit v Commonwealth Bank of Australia

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 3509 of 1995

B E T W E E N:

Antony BIKHIT
Applicant

A N D

COMMONWEALTH BANK OF AUSTRALIA
Respondent

REASONS FOR DECISION
(delivered ex tempore)

6 October 1995 PARKINSON JR

This is an application made pursuant to s170EA of the Industrial Relations Act 1988. The applicant says that his employment was terminated unlawfully. The matter came on for hearing this day. The respondent raised two preliminary jurisdiction questions. The first was in relation to alleged terms of agreement between the parties. The applicant contested such terms were agreed to by him, or on instructions by his solicitors at the time. The applicant was unrepresented at this proceeding. The second matter, which is dealt with in these reasons, arose in relation to the operation of Regulation 30B(1)(c) of the Act. The respondent’s evidence was that a probationary period of employment applied to the applicant at the time of the termination of the employment. It further submitted that such period had been determined in advance of the employment and that it was reasonable.

The evidence of the respondent was that the applicant was informed by letter dated 20 January 1995 of the probationary period applicable to his employment (Exhibit R2). He also attended an induction programme prior to taking up duties with the respondent at its branch. The respondent’s evidence was that the probationary period was set at not more than six months for the purpose of allowing for regular review and appraisals to occur at three weekly and three monthly intervals together with provision for performance development assistance if necessary. The evidence is that this is what occurred in this matter and that the respondent utilised the length of the probation period for such developmental purposes.

There is authority in this court to suggest that a probationary period of longer than three months may be difficult to justify, particularly at junior levels of employment. See in this regard Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233. However, in the circumstances of this employment having regard to the induction and staff development purposes to which the period is put, and notwithstanding that the applicant was employed at a relatively junior level, I am satisfied that the probationary period was reasonable.

For these reasons I am satisfied that the court has no jurisdiction to hear and determine the application. The application is dismissed.

I certify that this and the preceding one (1) page
is a true copy of the reasons for decision of
Judicial Registrar Parkinson delivered ex tempore.

Associate:
Dated: 6 October 1995

Applicant in person

Counsel appearing for the respondent: Mr T Knight

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 3509 of 1995

B E T W E E N:

Antony BIKHIT
Applicant

A N D

COMMONWEALTH BANK OF AUSTRALIA
Respondent

MINUTES OF ORDERS

6 October 1995 PARKINSON JR

THE COURT ORDERS THAT:

The application is dismissed.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

C A T C H W O R D S

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - complaint of UNLAWFUL TERMINATION - whether PROBATIONARY EMPLOYMENT - six month probationary period - whether period reasonable -
period utilised for performance development purposes

Industrial Relations Act 1988, ss. 170EA

reg. 30B(1)(c)

Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233

BIKHIT v COMMONWEALTH BANK OF AUSTRALIA
VI 3509 of 1995

Before: PARKINSON JR
Place: MELBOURNE

Date: 6 OCTOBER 1995

CaseChat Overview and Summary

The case of Bikhit v Commonwealth Bank of Australia was heard in the Federal Circuit Court of Australia, involving an employee who had brought a complaint of unlawful termination against the Commonwealth Bank of Australia. The central issue was whether the termination of the employee’s employment was unlawful, particularly considering whether the employee was in a probationary period and if the probationary period was reasonable. The employee had been employed under a six-month probationary period which the employer had argued was reasonable and utilised for performance development purposes.

The primary legal issues that the court needed to address were the reasonableness of the six-month probationary period and whether it was used appropriately for the purposes of performance development. The court also had to determine if the termination during this probationary period was lawful. The employee argued that the probationary period was unreasonable and that the termination was unlawful, while the bank contended that the probationary period was reasonable and the termination was justified under the circumstances.

The court evaluated the evidence and considered relevant case law and legislative provisions regarding probationary periods in employment. It found that the six-month probationary period was reasonable given the nature of the job and the need for the employer to assess the employee’s performance and suitability. The court also accepted that the probationary period was used for performance development purposes, which is a valid reason for the termination during such a period. Therefore, the court concluded that the termination was lawful, and the complaint of unlawful termination was dismissed.

The court’s final orders were that the complaint of unlawful termination brought by the employee against the Commonwealth Bank of Australia be dismissed. The court also determined that the six-month probationary period was reasonable and that the bank was justified in terminating the employee during this period. The decision reinforces the employer's right to assess an employee’s performance during a probationary period and to terminate the employment if the assessment is unsatisfactory.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established