Bjelica v Mainline Security Pty Ltd
[1996] IRCA 219
•22 May 1996
DECISION NO: 219/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - PROBATIONARY EMPLOYMENT - original period extended - whether excluded - VALID REASON - OPPORTUNITY TO RESPOND - REMEDY - COMPENSATION.
Industrial Relations Act 1988 ss.170DB, 170DC, 170DE, 170EDA, 170EE
Industrial Relations Regulations - Regulation 30B
CASES:Nicholson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371
BRANKA BJELICA -v- MAINLINE SECURITY PTY LTD
No. VI 5715 of 1995
Before: Judicial Registrar Murphy
Place: Melbourne
Date: 22 May 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 5715 of 1995
B E T W E E N :
BRANKA BJELICA
Applicant
AND
MAINLINE SECURITY PTY LTD
Respondent
MINUTES OF ORDERS
Judicial Registrar Murphy 22 May 1996
THE COURT ORDERS:
That within 21 days the respondent pay to the applicant :
the sum of $4,500 pursuant to s170EE(2) of the Act;
the sum of $500 pursuant to s170EE(5) of the Act.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 5715 of 1995
B E T W E E N :
BRANKA BJELICA
Applicant
AND
MAINLINE SECURITY PTY LTD
Respondent
Before: Judicial Registrar Murphy
Place: Melbourne
Date: 22 May 1996
EX-TEMPORE REASONS FOR JUDGMENT
Was the applicant on probation?
In these proceedings the respondent has taken as a preliminary issue the fact that the applicant is excluded from the jurisdiction as she was a probationary employee and thus excluded from the Industrial Relations Act (“the Act”) under regulation 30B(1)(c) of the Industrial Relations Regulations.
The evidence was that the applicant was first employed in June 1995. At the time of her engagement she was told she was to be on a one-week trial period. A week later she signed a letter dated 8 June 1995, agreeing to a period of three months probation.
Her duties were as a secretary/accounts clerk, where she was required to undertake transactions relating to trial balances, follow up accounts and administrative and banking duties. Over the first three months of employment the applicant performed her duties as best she could. As a result of computer software problems she did not receive the training she should have from her direct supervisor. She was not, however, told at any stage that her work was unsatisfactory. At the end of the three-month period the respondent decided to extend the probationary period by a further three months. A letter was signed by both parties on 7 September 1995. It says in part:
“This extension will give you the time to familiarise yourself with the work on hand and become more self reliant and efficient in your work.”
The Court heard evidence from a former supervisor of the applicant who indicated that she thought the three-month period was reasonable for the applicant to master these types of duties. A director of the respondent, Mr Lukman, gave evidence that he felt that in order to be fair to the applicant a further period of three months' probation was reasonable, but that otherwise three months was a reasonable period of probation. In Nicholson v Heaven and Earth Gallery Pty Ltd (1994) 1 IRCR 199 at 208-9, Wilcox CJ said:
“Whether or not the stipulated period is reasonable, is a matter that has to be determined by the person hearing the case, as an exercise of judgment. The judgment should be based on the proved objective facts, not on someone else’s opinion. Probably the most important consideration, in determining what is a reasonable period, will be the nature of the job. In the case of a person employed to carry out repetitive duties under close supervision, a reasonable period may not extend beyond a week or two. In the case of a person employed in a marketing or managerial position, working with little or no direct supervision and whose quality of performance cannot be immediately apparent, it may be reasonable for an employer to specify a probationary period measured in months. Circumstances will vary from case to case; the size, location and mode of operation of the employer being relevant factors, along with the personal characteristics and circumstances of the employee. The legislature has not prescribed the maximum extent of a reasonable period. It is not for me to do so. But I suspect that an employer will rarely be able to justify a period exceeding two or three months, in the case of an employee to whom Pt VIA now applies; that is, an award employee or a non-award employee whose wages do not exceed $60,000 per year. See s170CD of the Act.”
In this case regulation 30B(1)(c) requires the period of probation to be determined in advance and to be reasonable having regard to the nature and circumstances of the employment. Here the three-month period agreed in June was arguably not determined in advance, although a week after the applicant commenced employment she signed a document agreeing to a three-month trial period. I am prepared to accept on the evidence that a period of three months was reasonable in these circumstances having regard to the evidence of Mr Lukman.
The respondent, however, is faced with the difficulty that by the time the applicant was dismissed she had been employed for nearly five months and that period had not been determined in advance at the time she commenced employment. Further, on any view, a period of six months' probation for a position of the nature that the applicant held was unreasonable. It follows that at the time the applicant was dismissed, namely November, she was outside any reasonable period of probation, and therefore she is not excluded under regulation 30B.
The merits of the application
The respondent carries the onus of proof under s170DE(1) of the Act that it had a valid reason to dismiss the applicant (s170EDA(1) of the Act). There were two issues raised in the evidence relating to the reason for the dismissal. Mr Lukman gave evidence that the reason for the dismissal related to the applicant's performance. He said that she had not mastered the computer program and that the workload in the office was mounting up with a significant backlog. This position prevailed until 7 September when the probation period was extended and continued up until 8 November. He further gave evidence that the applicant's fellow employee, Ms Mitsopolilos, had been suffering stress because of the additional duties that had been imposed on her as a result of deficiencies in the applicant's performance. By November the matter had become critical and was affecting the business of the respondent. He therefore decided to look for an experienced employee who could take over the office duties. He terminated the applicant's employment on 8 November.
The applicant's evidence was in sharp contrast to that of Mr Lukman. In particular, she said that she was coping with the duties under pressure because Ms Mitsopolilos did not have any time to properly train her on the computer software. Problems were also arising with the software resulting in the need for technicians to be at the premises about twice a week. Mr Lukman admitted that the only discussion that he had with the applicant in relation to her performance was when he extended the probation period on 7 September. He admitted that, neither prior to that date nor subsequently, did he raise any concerns about the applicant's performance with her. He claimed Ms Mitsopolilos did so. The applicant denied that there had been any concerns raised about her performance by Ms Mitsopolilos. Ms Mitsopolilos, who remains working for the respondent, was not called to give evidence.
A further matter in the evidence was that the applicant may have contacted some form of contagious illness in early November. She took a few days off work at that time and obtained a medical certificate. Mr Lukman called her at home and asked her not to attend work for a period until he was satisfied that it was safe to do so. The applicant explained that her sick leave entitlements were exhausted and that the doctor had cleared her, and sought pay for any period that Mr Lukman did not want her to attend work. Mr Lukman refused to pay for any such period. The applicant returned to work in any event.
I am not satisfied that the respondent has discharged its onus of proof, that it had a valid reason to dismiss the applicant. The respondent relied on the performance grounds I have referred to. In the absence of any direct evidence from Ms Mitsopolilos as to the deficiencies in the applicant's performance, I am not satisfied that the respondent's reason can be characterised as “sound, defensible or well-founded”. See Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373. I therefore prefer the evidence of the applicant and find that there were no significant problems with the applicant's performance. I am satisfied that the workload problems in the office were related to the computer problem, lack of staff and also lack of training of the applicant, and not to deficiencies in the applicant's performance. Further, the grounds of the dismissal cannot be valid having regard to the admitted failure of Mr Lukman to counsel or warn her in relation to her performance: compare Selvachandran at 380. The respondent therefore has breached s170DE(1) of the Act.
Having reached this finding, it is unnecessary for me to consider whether the respondent has also breached s170DF(1) of the Act. I do find, however, that the respondent, by failing to warn the applicant, has breached its obligations to her under s170DC of the Act. On Mr Lukman's own evidence, he never put the performance matters to the applicant at the time he dismissed her. This is perhaps not surprising as he was working under the erroneous assumption that he was entitled to dismiss the applicant as she was on probation.
Remedy
The applicant does not seek reinstatement to her position as she has obtained alternative work. She was not paid anything in lieu of notice when she was dismissed on 8 November, and therefore the respondent has breached s170DB(1) of the Act. The applicant is therefore entitled to an award of damages of $500 for that breach.
The applicant, after 8 November, tried to obtain other employment and was successful in obtaining a casual position for three weeks. Finally, in February 1996, she obtained alternative full-time employment. Her losses to date total $5,600 and that amount of compensation is sought. I propose to order compensation in the sum of $4,500. This reflects the contingency that, but for the termination of employment on 8 November, the employment may not have continued and may have been lawfully terminated at some earlier date.
MINUTES OF ORDERS
THE COURT ORDERS:
That within 21 days the respondent pay to the applicant :
the sum of $4,500 pursuant to s170EE(2) of the Act;
the sum of $500 pursuant to s170EE(5) of the Act.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding five (5) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy.
Associate:
Dated: 22 May 1996
Solicitors for the Applicant: McDonald & Charman
Counsel for the Applicant: Mr Alan McDonald
Representative for the
Respondent: Mr A Lukman, Director.
Date of hearing: 22 May 1996.
Date of judgment: 22 May 1996.
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