Grace v Department of Health and Community Services
[1996] IRCA 220
•06 May 1996
DECISION NO: 220/96
C A T C H W O R D S
INDUSTRIAL LAW - Termination of Employment - probation
Industrial Relations Act 1988 S170CC
Industrial Relations Regulations Reg 30B(1)(c)
CASES:
Selvachandran v Peteron Plastics Pty Ltd, (1995) 62 IR 371
Nicholson v Heaven and Earth Gallery Pty Limited 1994 57 IR 50
Fischer and Commonwealth of Australia, IRCA NI-367 of 1994, 1 September 1995
GERALDINE GRACE -v- DEPARTMENT OF HEALTH & COMMUNITY SERVICES
No. VI-5707 of 1995
Before: Judicial Registrar Ryan
Place: Melbourne
Date: 6 May 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-5707 of 1995
B E T W E E N :
GERALDINE GRACE
Applicant
AND
DEPARTMENT OF HEALTH & COMMUNITY SERVICES
Respondent
MINUTES OF ORDERS
Judicial Registrar Ryan 6 May 1996
THE COURT ORDERS:
That the application be dismissed.
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-5707 of 1995
B E T W E E N :
GERALDINE GRACE
Applicant
AND
DEPARTMENT OF HEALTH & COMMUNITY SERVICES
Respondent
Before: Judicial Registrar Ryan
Place: Melbourne
Date: 6 May 1996
REASONS FOR JUDGMENT
The Applicant claims unlawful termination of employment. The Respondent concedes termination at its initiative. The Court therefore directed the Respondent to go first in accordance with the dicta of Northrop J in Selvachandran v Peteron Plastics Pty Ltd, (1995) 62 IR 371, having first refused the Applicant leave to amend her application to pursue a breach of contract claim in the associated jurisdiction pursuant to S430 of the Act.
The Applicant appeared on her own behalf, and Mr Watson appeared for the Respondent.
In opening Mr Watson indicated that the Respondent asserted valid reason for termination, adequate opportunities extended to the Applicant to respond to allegations made against her and, in any event, termination during a period of probation, which excluded the Applicant from the jurisdiction of this Court. At lunch time on the first day of the hearing, a hearing initially scheduled for three days but this morning allocated only two days by the Court, I examined the detailed documentation tendered in the first session and, on resuming, indicated that the Court proposed to hear evidence and submissions on the probation issue.
S170CC of the Act excludes employees on probation if such exclusion is permitted by paragraphs 2, 4 and 5 of Article 2 of the Termination of Employment Convention. Paragraph 2(b) of article 2 refers to probation, and this is directly addressed in Regulation 30B(1)(c), which excludes from the jurisdiction of the relevant Division of the Act an employee 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:
is determined in advance
is reasonable having regard to the nature and circumstances of the employment.
Both parties concede the Applicant was on probation. The Respondent asserts the probation was determined in advance and for a reasonable period. The Applicant claims the probation was not determined in advance and was not for a reasonable period.
In respect of the determination of probation I find that the probation was very clearly determined in advance pursuant to section 26(1) of the Public Sector Management Act 1992 which reads:
Subject to this division every person appointed to the Public Service as an officer shall in the first instance be appointed to a position on probation for a period of six months or any longer period that the appropriate permanent head directs.
Section 27 of that Act provides:
if a person is appointed to a position on probation the appropriate department head must
(a)on completion of the period of probation extend that period or confirm the appointment or
(b) during or on completion of the period of probation annul the appointment.
(ii)if a person's appointment is annulled under subsection (1) the person ceases to be an officer unless appointed to another position as an officer.
I find on the basis of the evidence so far tendered that the period of probation was not formally extended, was never confirmed, but was annulled with the effect from 1 November 1995 on completion of the period of probation, in fact one day after the completion of the initial period of probation which was 1 May 1995 to 31 October 1995.
The issue is, was the period of probation reasonable?
The Applicant drew attention to Nicholson v Heaven and Earth Gallery Pty Limited 1994, 57 IR 50 at 59 where in fact the Chief Justice excluded an employee from the operation of subdivisions B and C of Part VI of the Act and dismissed the application. However, in the course of his judgment, the Chief Justice referred to probation in these terms at 59:
“I suspect an employee will rarely be able to justify a period exceeding two or three months, in the case of an employee who is an award employee or a non award employee whose wages do not exceed the statutory cap.”
He referred to a particular amount but I refer to the statutory cap because that cap has moved since the Chief Justice gave that judgment. First, I want to make the point that the statutory cap is increasing. Secondly, the Chief Justice was not referring to professionally qualified employees and did not issue a definitive ruling. Thirdly, the Full Court of this Court neither followed nor disendorsed such dicta of the Chief Justice in the matter of Fischer v Commonwealth of Australia IRCA NI-367 of 1994, Decision No 445/95, 1 September 1995. I pause here to note that the Applicant too referred to Fischer but she referred to the initial decision in Fischer of Judicial Registrar Tomlinson which was a decision which was reviewed by the Full Court of this Court.
Probationary periods of six months are clearly specified under the Public Sector Management Act and were so specified in earlier public service legislation. Such a period seems to this Court far from excessive in respect of professional employees carrying out important work, in this case the care of those who are designated as seriously ill in a psychiatric sense. Furthermore such a period seems quite reasonable when account is taken of the complex grievance procedures available.
I find that the Applicant was on probation, the period was determined in advance and was reasonable, and, therefore I must and do dismiss the application because it is excluded pursuant to S170CC and Regulation 30B(1)(c).
MINUTES OF ORDERS
THE COURT ORDERS:
That the application be dismissed.
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 3 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan.
Associate:
Dated: 24 May 1996
The Applicant appeared in person.
Mr G W Watson, Freehill Hollingdale & Page appeared for the Respondent.
Date of hearing: 6 May 1996
Date of judgment: 6 May 1996
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