Debra Maree Prince and Rentokil Pty Ltd

[1994] IRCA 63

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA  VI 397 of 1994
VICTORIA DISTRICT REGISTRY

B E T W E E N:

DEBRA MAREE PRINCE
Applicant

A N D

RENTOKIL PTY LTD
Respondent

Reasons for Judgment

7 October 1994  PARKINSON JR

On 10th January, 1994 the applicant commenced employment with the respondent as a sales consultant in its health services division.
It is clear from exhibit L1, the job application, and exhibit L2, the letter of appointment, that the applicant’s employment was subject to a probationary period of three months.  That three month period operated from the date of commencement of employment. It is reasonable to assume that the probationary period of three months referred to in exhibits L1 and L2 was to cease on 10th April, 1994.

On 11th  February, 1994 the applicant signed a document which set out the terms and conditions of her employment in writing. That document is exhibit  L3 in these proceedings.  Included in that document was reference to the three month probationary period.  There was no provision in that document for the extension of the probationary period beyond the initial three month period.  Also contained therein were terms relating to the respective obligations of the parties upon termination of employment, either during or subsequent to the probationary period.  In the case of termination during the period of probation by either side, notice of one week was required.  Termination which occurred after the probationary period required one months written notice from either party.

Prior to the expiration of the probationary period the respondent notified the applicant in writing of its dissatisfaction with her performance and attitude. This letter was dated 29th March, 1994 and is exhibit L4.

For the purpose of this part of this proceeding it is not necessary to make any finding on the validity or otherwise of the views of the employer in that regard. That is because, if the termination of the employment took place during probationary employment which was of the type which was excluded by S170CC and Regulation 30B of the Act, the applicant would be excluded from the operation of Subdivisions B, C, D and E of Division 3 of Part VIA of the Industrial Relations Act 1988.

Regulation 30B(1) provides:

“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:
...
(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”.

The categories of employment referred to in the Regulation are in similar terms to those contained in the Convention which is Schedule 10 to the Act.   There is however no definition or assistance given in that Convention for the purposes of interpretation of the various terms used in either the Convention or the Regulation.

It is not in dispute that the applicant’s employment was not terminated within the probationary period set pursuant to the agreement entered prior to the employment taking effect.  The termination of the employment did not occur until after 10th April, 1994.

On  29th March, 1994 the respondent by letter, (exhibit L4), advised the applicant that, having regard to the probation period, her continued employment was to be examined.  The letter confirms previous discussions in relation to the attitude and sales performance of the applicant.  The letter set a target performance to be achieved  by 8th April, 1994.  This date is two days short of the expiration of the probation period.

On 7th April, the respondent wrote to the applicant confirming that the probation period was to end on 10th April, 1994 but stating that, having regard to the ill health of the applicant, the letter purported to extend the probation period until 22nd April, 1994.  Further review targets were set.

This extension of the probation period beyond that set prior to the employment is relied upon by the respondents as bringing the employment within the exclusions provided for by S 170CC and Regulation 30B of the Act.  It was submitted by Mr. Lacy for the respondent that it is open to the employer to extend or continue a probation period, and that in so far as it is so extended the employment continued to fall within the category excluded by Regulation 30B.

I have considered the terms “ duration of the period” and “determined in advance” as contained in Regulation 30B.

In my view the former phrase must mean determined in advance of the employment or engagement taking effect.  If this were not the case, then it would be possible to read those words as enabling a probationary period to be imposed  some time after employment had commenced.
Further, it is the “duration of the period” of the probation to which we are directed in considering what it is which  must be determined in advance.  This phrase is specifically directed towards that period of probation which has been set prior to the commencement of the employment, and operates only in respect of that period of time.

The difficulty Mr. Lacy faced in argument was that if the former construction were not so and his construction were correct, it would be open to an employer to continue to extend probationary periods, which extension would operate to preclude a remedy being sought under this Act.

I was referred to the decision of the full Federal Court in  Busby V
Chief Manager, Human Resources Department, Australian Telecommunications Division and Others (1988) 83 ALR 67.
That decision is of no assistance in this case because there was clear provision within the Statute which was the subject of consideration by the court, for the extension of a probationary period.  No such provision is made or apparently contemplated in Regulation 30B of this Act.

There may well have been an act of the employer in this case which resulted in the continuation, as a matter of contract, of the probationary period, or the imposition of a new period of probation, whether by agreement or unilaterally, as at 7th April, 1994. There clearly was no conduct on the part of the employer which could be said to constitute “confirmation” of permanent employment.  Rather, the conduct was to the contrary.  But however relevant these factors be to the issue of substantive and procedural fairness and merit in these proceedings, neither the act of the employer, nor any acquiescence, compliance or agreement of the employee can operate to invoke the provisions of Regulation 30B in relation to circumstances which do not meet the criteria set out therein.

I therefore find that:

1. That the probationary period to which Regulation 30B (1) (c) (i) of
   the Industrial Relations Act applied was the three month period
            determined in advance of the commencement of employment, that
            period being 10th January, 1994 - 10th April, 1994. 

1. That the applicant has standing to bring the present proceedings.

I certify that this and the preceding five (5) pages
are a true copy of the reasons for judgment
of Judicial Registrar Parkinson.

Associate:

Dated:  7 October 1994

Solicitors for the applicant:  Maurice Blackburn & Co
Counsel appearing for the applicant:                  Ms. L. Gyfteas

Solicitors for the respondent:  Phillips Fox
Counsel appearing for the respondent:               Mr. B. Lacy

Date of hearing:  6 October 1994
Date of judgment:  7 October 1994