Colin Lambert v Skara Smallgoods Pty Ltd
[2023] FWC 3091
•24 NOVEMBER 2023
| [2023] FWC 3091 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Colin Lambert
v
Skara Smallgoods Pty Ltd
(C2023/5778)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 24 NOVEMBER 2023 |
Application to deal with contraventions involving dismissal – jurisdiction – whether dismissed – probationary period – whether employed for a specified period of time – unqualified right to terminate inside probationary period – jurisdictional objection dismissed
On 20 September 2023 Colin Lambert (Mr Lambert or the applicant) made a general protections application to the Commission under s 365 of the Fair Work Act 2009 (Cth) (FW Act).
Mr Lambert’s application is against his former employer Skara Smallgoods Pty Ltd (Skara, the respondent or the employer). Mr Lambert claims that he exercised a workplace right to make a complaint about a fellow employee and alleges that he was dismissed on that account in contravention of the FW Act.
The respondent opposes the application. It filed a response on 12 October 2023 raising a jurisdictional issue. It claims that Mr Lambert was not dismissed within the meaning of the FW Act because his employment was not continued beyond a three-month probationary period.
The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford[1] requires applications under s 365 to be within jurisdiction before the Commission can exercise powers conferred by s 368. It is thus necessary to determine the jurisdictional issue if Mr Lambert’s application is to proceed further.
I issued directions on 27 October 2023.
I heard the jurisdictional matter by video on 17 November 2023. Parties were given until 20 November to file final written submissions.
Mr Lambert was self-represented. Skara was represented (with permission) by a paid agent.
In addition to documentary material filed, I heard oral evidence from two persons:
· Colin Lambert (applicant); and
· Anthony Skara (Director).
Evidence on the jurisdictional issue is largely uncontested. In dispute are the conclusions to be drawn from the evidence.
Facts
I make the following findings.
Skara is a smallgoods manufacturer in the meat industry based in Lobethal in the Adelaide Hills. Although a business of relatively small scale, it is not a small business within the meaning of the FW Act as it employs fifteen or more persons.
Mr Lambert is a local resident.
Employment at Skara
In May 2023 Mr Lambert was interviewed for a job as a packing room process worker. When interviewed Mr Lambert was advised that new employees are engaged on a three-month trial (probation) period. Mr Lambert’s application was successful.
Mr Lambert’s first day of employment was 17 May 2023.
There is some dispute as to whether Mr Lambert completed an induction in the first week of employment or had done so prior. On this, I prefer Mr Skara’s evidence. I find that a significant portion of the first week concerned a site and health and safety induction and other administrative matters.
However, I also find, based in part on Mr Lambert’s evidence, that Mr Lambert performed processing work in the factory in that first week. Mr Skara described this period as on the job observation and training. Whilst I find that Mr Lambert was trained on how to perform certain tasks from day one, he commenced some productive factory work.
In any event, I find that Mr Lambert was employed from 17 May 2023.
Employment agreement
At the end of the first week (around 24 May 2023) Mr Lambert was given an employment contract to sign.[2]
Mr Lambert signed and returned the contract on 25 May.
Mr Skara signs employment agreements on behalf of the business. Due to his commitments, it was not until Monday 5 June 2023 that Mr Skara countersigned the contract.
No material change occurred in the work Mr Lambert performed after signing the contract (25 May), or in the period between signing the contract and Mr Skara doing so (25 May to 5 June), or in the period following (after 5 June). Mr Lambert simply became more accustomed to the processing work.
Mr Lambert was employed as a casual (Level 4 process worker) under the Meat Industry Award 2020. The employment contract provided:[3]
“Employment Agreement
This agreement is between
Skara Smallgoods Pty Ltd (Skara)
ABN 29 150 176 757
and
Colin Lambert
Schedule 1
Position Title: Packing Room Process Worker Meat Industry – Meat Industry Level 4
Position Description: To be provided in a separate document
Industrial Coverage: Meat Industry 2010 (The Award) National Employment Standards (NES) Skara Employment Procedures & Policies
Reporting to: Managing Director (MD) General Operations Manager (GOM)
Employment Status: Casual
Remuneration: $29/hr. This rate is inclusive of the casual 25% loading.
Hours to be worked: As Rostered on a Weekly Basis
Date employment commencing: 17th May 2023
…
1.1 Your employment is on a casual basis, as required.
1.2 Each occasion that you work will be a separate contract of employment which ceases at the end of that engagement.
1.3 As a casual employee, there is no guarantee of ongoing or regular work…”
(formatting omitted)
Mr Lambert’s hours averaged about 30 per week. He was paid fortnightly.[4]
When Mr Lambert was provided a copy of the employment contract for signing, he was also given a Job Description for signing. This was also signed by Mr Lambert on 25 May and countersigned by Mr Skara on 5 June.[5]
Probationary period
Clause 2 of the Employment Agreement provided:
“2. Trial Period
2.1 You will be subject to a minimum 3 month trial period, for the continuance of working hours being rostered to you. During this period either party may terminate this agreement at any time for whatever reason. Further performance reviews for continued casual employment will be conducted on at least an annual basis or at any other times as required.”
Clause 21 provided, in part:
“21 Termination
21.1 Either SKARA or yourself may terminate the employment agreement, with no notice requirements as per casual working arrangements.
21.2 Best practice is for both parties to provide written notice at the time of knowingly needing to terminate employment in writing.”
Skara review the three-month trial of new employees at three intervals during their probationary period: after two weeks, after six weeks and at three months. The reviews provide the business and the employee an opportunity to discuss progress and performance.
The review process is recorded in a ‘Probation Review’ form. According to the form, at the final review the business advises whether employment is to continue or end, or the trial period extended.[6]
Probation review
Mr Lambert’s probation review was recorded in a Probation Review form[7] progressively completed by the employer at the review points.
The Probation Review recorded Mr Lambert’s “Start Date” as 23 May 2023.
It recorded the review meeting dates as occurring on:
· 7 June 2023 (stated as 2 week review);
· 5 July 2023 (stated as 6 week review); and
· 5 September 2023 (stated as 3 month review).
It is not in dispute that the two and six week reviews were attended by Mr Lambert, Mr Skara and Operations Manager Ms Hampton.
Decision not to continue employment
Aware that a decision needed to be made as to whether Mr Lambert would be offered ongoing employment after his probation period, on Friday 1 September 2023 Mr Skara decided that Mr Lambert’s employment would not be continued, that an adult apprenticeship would not be offered and that Mr Lambert would be advised of this at a meeting scheduled for the following Monday, 4 September.
Mr Lambert was not at work on 4 September. The meeting was postponed to the following day.
In Mr Skara’s absence, the meeting was attended by Ms Hampton and a supervisor Mr Muznic.
The meeting lasted only three minutes.
According to the Probation Review record, Ms Hampton advised Mr Lambert that the purpose of the meeting was to “review the trial period since starting with Skara and if we wish to continue your role”. After a brief discussion about punctuality and training Ms Hampton advised that the employer’s final review:[8]
“has been made on the assessment criteria that unfortunately we will not be offering you a permanent role with Skara going forward”.
Mr Lambert, in his evidence, agreed this is what he was told.
Mr Lambert left the meeting abruptly.
Shortly afterwards, Mr Lambert collected his belongings and left the workplace.
The Probation Review, dated 5 September, records these events.
As per company procedures (notated on the Review form) when an employee has not successfully completed their probationary period, a letter is sent.[9] A letter to Mr Lambert dated 5 September 2023 was drafted, signed by Mr Skara and sent by email. It read:[10]
“Dear Colin
Trial Period Ending
We refer to our meeting on the 5th September 2023 in which we discussed the ending of your 3 month trial period.
As per your Employment Agreement we use this initial 3 month trial period to assess your suitability for an ongoing role at Skara. We have decided not to offer you ongoing work.
We wish you will in your future endeavours.
Please contact HR at …………………… or myself at …………….. if you need further information.
We will lodge your Separation Certificate with Centrelink today.
Kind regards
Anthony Skara
Director”
Mr Lambert filed these proceedings fifteen days later, on 20 September 2023.
Submissions
Mr Lambert
Mr Lambert submits that he was dismissed on 5 September 2023 when told that he had not, in the employer’s view, successfully completed his trial period and was required to leave the workplace.
Mr Lambert submits that this was conduct taken at the initiative of the employer and a dismissal within the meaning of s 386(1)(a) of the FW Act.
Mr Lambert submits that whilst he was employed on a trial period he believes he has a right to contest what he considers to be the real reason for being dismissed, a complaint he made about a fellow worker’s conduct.
Skara
Skara submit that Mr Lambert was not dismissed within the meaning of the FW Act. It submits that whilst it decided not to continue Mr Lambert beyond the three-month trial period, this was not a dismissal because s 386(2)(a) excludes from the definition of dismissal a person employed under a contract “for a specified period of time”.
Skara submit that the trial period was for a specified period of time (three months), that the decision was made and advised at the end of that period, and accordingly Mr Lambert’s employment ended on its own terms because it was not continued beyond the trial period.
Consideration
Section 365 of the FW Act provides:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
Section 365 requires a dismissal to have occurred as a jurisdictional fact. A mere allegation that a person has been dismissed will not establish this as fact.[11] “Dismissal” for these purposes (and other purposes of the FW Act) is defined in s 386(1), which provides:
“386 Meaning of dismissed
(1)A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
Relevantly for current purposes, s 386(2)(a) provides:
“(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season;…” (emphasis added)
Section 386(2)(a) is an exclusionary provision. It is “intended to have a substantive purpose, namely to exclude from the Commission’s jurisdiction categories of termination of employment which were otherwise capable of being comprehended by the general definition in s.386(1)”.[12]
The issue for determination is whether ending of Mr Lambert’s employment fell within this exclusion. For this to be so, it needs to be established that:
· Mr Lambert was, in fact, employed under a contract of employment for a specified period of time; and
· that, in fact, Mr Lambert’s employment terminated “at the end of the period”.
No submission is made by Mr Lambert that the further exception in ss 386(3) applies. There is no evidence before me, and I do not find, that Mr Lambert’s employment arrangements were made by the employer for a purpose of avoiding its obligations.
Was Mr Lambert employed for a specified period of time?
The evidence establishes that Mr Lambert was employed on a minimum three-month trial period. Clause 2 of the Employment Agreement specifically provided for this. The use of the phrase “trial period” is interchangeable with the also commonly used expression “probationary period”.
Was this a contract for a specified period of time?
Whilst a probationary period with a start and finish date may be thought to automatically be an employment arrangement for a specified period of time, this is not necessarily so.
Past decisions under the former Industrial Relations Act 1988 suggest that an employment contract will not be one for a specified period of time if it gives either party an unqualified right to terminate the contract on notice or with payment in lieu of notice within a specified term”.[13]
Section 386(2)(a) of the FW Act was subsequently enacted. Notwithstanding paragraph [1532] of the Explanatory Memorandum to the FW Act possibly suggesting otherwise, a Full Bench of the Commission (by majority) in Navitas concluded that the existence of an unqualified right to terminate a time specified contract prior to its term ending has the effect that it is not a contract for a specified period.[14]
In this matter, cl 2.1 expressly provides that “during this period either party may terminate this agreement at any time for whatever reason”.
It is therefore readily apparent that the Employment Agreement between Mr Lambert and Skara provided either party with an unconditional right to terminate the employment relationship prior to the three month probationary period ending.
On the authority of Navitas, it was not a contract for a specified period. Accordingly, the exclusion in s 386(2)(a) does not apply.
Did Mr Lambert’s employment terminate at the end of the probationary period?
Given that the Employment Agreement was not “a contract for a specified period” it is not necessary to determine the secondary question of whether Skara terminated Mr Lambert’s employment “at the end of the period”.
This question would have required a finding as to when, in fact, Mr Lambert’s three-month probationary period commenced and ended. On the facts, it could have been one of four dates – three months after 17 May (the date the Employment Agreement states that employment commenced, and in fact commenced), three months after 23 May (the date the Probation Review states that the probationary period commenced), three months after 25 May (the date Mr Lambert signed the Employment Agreement) or three months after 5 June (the date the employer countersigned the Employment Agreement).
Skara, in its final written submission[15], did not demur from a finding that 17 May was the date probation commenced and 17 August the end date. If that was so, two weeks of work were performed beyond the probationary term before Mr Lambert’s employment was ended.
Skara submitted that business pressures and practical difficulties in attempting to convene a suitable final review time resulted in this two week “spillage” beyond the three month period. It acknowledged that there were improvements to be made to its processes but that “this is a small business today trying to wear multiple hats and trying to do our best”.[16]
The sentiment is reflective of the views of many smaller businesses. It carries some weight when applying the FW Act. However, employment matters are not just administrative in nature or solely impactful on a business. Rights and obligations of others, employees no less, are affected. Balancing the “needs of small business” is but one of a number of objects of unfair dismissal laws.[17]
Whilst I need not decide whether or in what circumstances the FW Act provides any tolerance for “spillage” in time when ending probationary employment, employers including small businesses should exercise a high degree of care in managing probationary periods.
Given the current state of the law, if an employment contract provides for an unqualified right to terminate inside a probationary period, that will be fatal to an assertion of ‘no dismissal’. Further, if employment is terminated before a probationary period ends or if productive employment continues beyond the term of a probationary period and is then only belatedly ended it is unlikely that the employer could successfully argue that it has not “dismissed” the employee within the meaning of the FW Act.
Conclusion on whether dismissed
As Skara is unable to rely on the exclusion in s 386(2)(a), and as Mr Lambert was terminated on its initiative, he was dismissed within the meaning of the FW Act.
That being so, his application is within jurisdiction.
For the sake of completeness I observe that Mr Lambert’s status as a casual employee and the terms of clauses 1.2 and 1.3 of the Employment Agreement is not, of itself, a bar to a find that he was dismissed. As the Full Bench observed in Navitas, casual employees who have been employed on a regular and systematic basis and have had a reasonable expectation of continuing employment on a regular and systematic basis are included in the unfair dismissal scheme in Part 3-2 of the FW Act.[18]
Conclusion
As I have found that Mr Lambert was dismissed within the meaning of the FW Act, application C2023/5778 is within jurisdiction. The jurisdictional objection is dismissed.
The Commission will exercise the powers conferred by s 368. A conference of the parties will be conducted for the purpose of conciliating the dispute.
Nothing in this decision is to be understood as a finding that Mr Lambert’s substantive claim has merit. All that has been decided is that Mr Lambert was dismissed.
An order[19] giving effect to this decision will be issued in conjunction with its publication.
DEPUTY PRESIDENT
Appearances:
Mr Colin Lambert, on his own behalf.
Mr P Sandercock, with permission, with Mr A Skara, on behalf of Skara Smallgoods Pty Ltd
Hearing details:
2023.
Adelaide (by video).
17 November.
Final written submissions:
20 November 2023.
[1] [2020] FCAFC 152
[2] R4
[3] R4 cover page and page 2
[4] A2
[5] R5
[6] R1 page 5
[7] R1
[8] R1 page 5
[9] R1 page 5
[10] R2
[11] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, [54]
[12] Khayam v Navitas English Pty Ltd[2017] FWCFB 5162, [67] (Navitas)
[13] For example, Andersen v Umbakumba Community Council (1994) 126 ALR 121 at 125 - 126
[14] Navitas, [88] to [96]
[15] Email 20 November 2023
[16] Final written submission 20 November 2023
[17] Section 381(1)(a)(i) FW Act
[18] Navitas, [70]
[19] PR768623
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