Dai Le v The Australian Broadcasting Corporation

[1995] IRCA 29

CATCHWORDS

INDUSTRIAL LAW - Termination of employment - claim of unlawful termination -preliminary issue of whether applicant a probationary employee - Regulation 30B to be strictly construed in favour of the continued operation of the rights conferred by the Industrial Relations Act - failure to communicate extension of probationary period to applicant - application held to be within the jurisdiction of the Court.

Industrial Relations Act 1988, s. 170CC
Regulation 30B

DAI LE v THE AUSTRALIAN BROADCASTING CORPORATION

No. NI  708 of 1994

CORAM:  PATCH JR
PLACE:             SYDNEY
DATE:               23 JANUARY 1995

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY  No. NI 708 OF 1994

BETWEEN:       DAI LE

Applicant  

AND:             AUSTRALIAN   BROADCASTING   CORPORATION

Respondent

CORAM:PATCH JR

PLACE:SYDNEY

DATE:23 JANUARY 1995

REASONS FOR JUDGMENT

(Delivered ex tempore - revised from transcript)

The respondent argues that the applicant is excluded from the operation of subdivisions B, C, D and E of Division 3 of Part VIA of the Industrial Relations Act because she falls into one of the categories of employees excluded from the operation of those subdivisions of the Act by virtue of Regulation 30B, in particular Regulation 30B(1)c.

Regulation 30B(1) reads:

“For the purposes of section 170CC of the Act the following employees are excluded from the operation of subdivisions B, C, D and E of Division 3 of Part VIA of the Act -

(a)........ ........ ........ ........ ........ ...

(b)........ ........ ........ ........ ........ ..

(c) Employees 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)........ ........ ........ ........ ........ ..”

When the applicant was first employed by the respondent she was given a letter of engagement.  That letter is annexure B to her affidavit of 23 January 1995.  In that letter there is a sub-heading “Conditions of Employment” and the text of the paragraphs under that sub-heading is as follows:

“Your employment with the ABC is subject to the conditions set out in the ABC-PSU EMPLOYMENT AGREEMENT 1992.  You are strongly advised to take the time to read this agreement.

In most cases this document will be available in your work area.  If you are unable to obtain access to this document you should contact your unit leader in personnel who will arrange access at a mutually convenient time.  It is important for you to know that smoking is not permitted in ABC building.”

Then the next sub-heading in that letter dated 3 February 1994 is the word “Probation” and the paragraph underneath that sub-heading is as follows:

“So that we may assess your initial work performance you will be on probation for the first three (3) months of your employment.  Your supervisor will outline the job you are expected to perform and the work standards you will be expected to meet.”

Mr John Turner was the executive producer of The Investigators program.  The applicant was initially employed as a researcher for that program.  The applicant clearly had some difficulties in performing her job to the satisfaction of Mr Turner. 

At around the end of March the applicant and Mr Turner had a discussion.  Mr Turner says that the discussion occurred on 30 March and the applicant says that the discussion occurred on 6 April.  Mr Turner was able to refer to a file note that he made in his computer shortly after that time and, on balance, I am inclined to accept that the meeting occurred on 30 March and that the applicant is simply mistaken about that.  Nothing much turns on when the date occurred however.

I should say at this point that both the applicant and Mr Turner impressed me as honest and frank witnesses who were doing their best to accurately recall events that occurred some time ago.  As I said, I prefer Mr Turner’s version because he made a file note.  In any case, at about that time the applicant was given a probationary report.  Mr Turner signed that on 31 March.  He says he gave it to the applicant on that date.  The applicant says that she received it on 6 April from Mr Turner.  Again, I tend to accept Mr Turner’s version of the evidence, though again nothing turns on it.  It really does not matter one way or the other.  There is no reason for anybody to lie because there is no benefit for anybody so to do. I think it is just a question of faulty memory by the applicant.

The applicant signed that form on 6 April 1994.  She did not give it to Mr Turner, but she gave it to, as I understand it, someone in personnel or perhaps some other person in authority in the ABC, certainly not Mr Turner.

On that form Mr Turner, under the heading “Development Action”, has written this:

“Dai has had some difficulty with analysis and there has been discussion with her over this.  I’m recommending that we persevere and try and solve the problem.  Extend probation period for another three months.”

He was running out of space, which is why the last sentence, it seems to me, is not completely grammatically correct.  It is clear from Mr Turner’s oral evidence that he was merely recommending that the probation period be extended for another three months.  That is also consistent with the word “recommending” in the second last sentence of his words in that just quoted passage.

Underneath that there is a box to be ticked.  There is an overall assessment and then a box to be ticked.  To the left of the phrase “continuation of employment” there has been some crossing out and the words “11 weeks” have been written, in a different hand and in a different pen. Mr Turner gave evidence that that was not his handwriting, and that the probability was that that was done after he had given the form to the applicant.

I think that the probability is that, after the applicant handed the form to whomever she handed it to, someone in personnel wrote the words “11 weeks”. 

That creates a difficulty for the respondent.  There is no evidence as to when or how the applicant was told that her probation period was to be extended.  There is no evidence that the applicant was told anything more definite than that there was a recommendation for a further period of three months by Mr Turner.

Only employees who fit into the strict wording of regulation 30B are to be excluded from the operation of the Act.  The Act confers rights on people and any provision limiting those rights is to be strictly construed in favour of the continued operation of those rights. 

The respondent argues that, right from the start of her employment, and up until the time of the termination of her employment on 5 August 1994, the applicant was at all times serving a period of probation.  The respondent argues that the ABC and PSU (that is the Public Sector Union) Employment Agreement 1992 was expressly incorporated into the contract of employment by reason of the letter of engagement.  It follows, says the respondent, that clause 5.5. of that agreement formed part of her contract of employment.

That clause reads as follows:  Subheading: “Probation”, and then the text:

“New full-time and part-time employees will commence on probation for a period of three months.  The probationary period may be extended by the ABC for a further period of three months.”

The respondent argues that a consequence of that is that the applicant was, in fact, serving a period of probation, the maximum duration of which was determined in advance.  Namely, it was six months by virtue of clause 5.5 of the agreement.  It flows from that, the respondent argues, that there was technically no need for any extensions to be notified to the applicant.

I do not accept that submission.

It is only employees who are “serving a period of probation”, the maximum duration of which has been determined in advance, who can be said to be excluded from the operation of the Act.  Even if the respondent’s argument that clause 5.5 of the ABC-PSU agreement was part of the contract of employment is correct, if the respondent fails to establish that the applicant was, in fact, serving a period of probation, then the respondent fails in its argument that the applicant should be excluded from the operation of the Act. 

There is no evidence that the applicant was notified of the extension, the recommendation for which was referred to in the probationary report written by Mr Turner.

The phrase “serving a period of probation” means, and can only mean, that there is an actual period of probation which an employee is actually serving.  It therefore excludes a possible period of extension unless and until that period of extension has been put in place by some form of notification to the employee before the expiration of the original period of probation. 

As there is no evidence that the applicant was notified of the second period of extension, that is to say the eleven week or three month period as the case may be, there is no evidence that an extended period of probation ever became part of the contract of employment between the applicant and the respondent.

The respondent has therefore failed to prove that the applicant is an employee excluded by virtue of regulation 30B, and I therefore rule that, as the evidence now stands, the Court has the jurisdiction to hear the matter.

_________________________________________________________

REPRESENTATION

Representative for the Applicant:           Ms Emma Walters
  Media, Entertainment & Arts Alliance

Solicitor for the Respondent:                  Ms Helen McKenzie
  Blake Dawson Waldron, Solicitors

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment of Judicial Registrar Patch.

Associate:            Julianne Taverner

Date:  10 February 1995