Ilonka Maria Vizl v Aussie Lobsters Pty Ltd
[1996] IRCA 69
•29 February 1996
DECISION NO: 69/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - whether employee on probation - reasonable period of probation
INDUSTRIAL RELATIONS ACT 1988 Ss 170DB, 170DC, 170DE
INDUSTRIAL RELATIONS REGULATIONS 1989, REG. 30B
Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233
ILONKA MARIA VIZL -v- AUSSIE LOBSTERS PTY LTD - WI 95/2540
BEFORE: BOON JR
PLACE: PERTH
DATE: 29 FEBRUARY 1996
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 95/2540
BETWEEN: ILONKA MARIA VIZL
- Applicant
AND: AUSSIE LOBSTERS PTY LTD
- Respondent
MINUTE OF ORDERS
BEFORE: BOON JR
PLACE: PERTH
DATE: 29 FEBRUARY 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
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 95/2540
BETWEEN: ILONKA MARIA VIZL
- Applicant
AND: AUSSIE LOBSTERS PTY LTD
- Respondent
BEFORE: BOON JR
PLACE: PERTH
DATE: 29 FEBRUARY 1996
REASONS FOR JUDGMENT
This is an application under Section 170EA of the Industrial Relations Act 1988. The applicant is seeking compensation and an apology relating to the alleged unlawful termination of her employment with the respondent. The applicant alleges that the respondent has breached the provisions of the Industrial Relations Act in a number of ways.
In the first place, it is said that she was not given an opportunity to respond to allegations related to her conduct or performance as required by Section 170DC of the Act. It is the respondent's contention that it could not reasonably be expected to give the applicant that opportunity as, in the respondent's opinion, the applicant was unsuited to the job she was required to perform and nothing the respondent could have said to her would have changed that position.
Secondly, it is alleged that the applicant was not given notice of the termination as required by Section 170DB of the Act.
Thirdly, it is said by the applicant that there was no valid reason connected with the employee's capacity or conduct for the termination and that in any event the termination was harsh, unjust or unreasonable within the meaning of Section 170DE of the Act. The respondent said that there was a valid reason connected with the employee's capacity and that the termination could not be said to be harsh, unjust or unreasonable.
The respondent's main defence to the application is that as the employee was serving a period of probation, the provisions of subdivisions B, C, D and E of Division 3 of Part VIA of the Act did not apply. The respondent said that a probationary period of three months was determined in advance. The applicant said that a two day qualifying period was all that was mentioned to her before the commencement of her employment.
BACKGROUND
The applicant, Ilonka Vizl, is a 42 year old single mother who has a 14 year old daughter. Ms Vizl is originally from Germany and has resided in Australia since 1978. Before she came to Australia she worked as a secretary in Germany, but before her employment with the respondent she had not worked in an office since residing in Australia. Ms Vizl gave evidence that she gained a Diploma in Business and Accounting from TAFE. She did this through studying hard for three-and-a-half years while working part-time as a cleaner.
The respondent, Aussie Lobsters Pty Ltd, has been in existence for approximately four years. It is a processing company in the crayfishing industry. Elizabeth Norton is the managing director of the company, although at the time of Ms Vizl's employment Mr Martin Harland, an accountant, conducted the administration of the company.
Ms Vizl gave evidence that in early November 1995 she went to the offices of the Commonwealth Employment Service and obtained a notice advertising a job vacancy with the respondent. The advertisement specified that the respondent was seeking a bookkeeper to "conduct general office duties, data input, bank reconciliations, prepare wages, etc". The advertisement set out the following requirements for the position: "Computer literate, experience in bookkeeping, able to use Excel, Windows, MYOB (accounting software), A class MDL". Ms Vizl telephoned Mr Harland and arranged an appointment. Ms Vizl told Mr Harland that she came straight from TAFE and had no work experience and no experience with MYOB. Mr Harland explained that he needed a bookkeeper to be his right hand person. According to Ms Vizl, the successful applicant would start out on a part time basis until after Christmas when the pressure of work would slow down and Mr Harland would then show her how to do the bookkeeping. According to Ms Vizl, Mr Harland said that they had had people before who had not been good enough. Mr Harland said that the pay would start off at $10 per hour but would probably increase and that "the sky was the limit".
After the initial interview, Mr Harland telephoned Ms Vizl and explained that the company had decided to employ another person in the position. However, on Thursday 27 November 1995 Mr Harland telephoned Ms Vizl and explained that the other person who had been employed was leaving. He asked if she was able to start work on the following day. It was agreed between them that Ms Vizl would start work on the following Monday. According to Ms Vizl, on the second occasion on which she spoke to Mr Harland, she said to him that she didn't want to come and work in a place where people leave all the time. He told her that it took only two days for him to assess whether a person was capable of performing at the job. Ms Vizl was adamant that nothing was said by Mr Harland about a three months' probationary period. Mz Vizl's evidence was that she offered to Mr Harland that she would work for the two day qualifying period without pay and that he agreed to that.
The evidence of Ms Vizl was that when she started on 27 November 1995 there was a backlog in the data entry work. By the time her employment was terminated on 8 December 1995 the work was up to date. Ms Vizl described the data entry work she was required to do as "super simple". Ms Vizl admitted that she had a problem initially with answering the telephone as she had trouble with the accents of the people who were ringing the company. She said, however, that by the third day of answering the telephone she was getting used to the accents and to the names of the people who were telephoning.
On the Monday after Ms Vizl started work for the respondent, the receptionist, Lindsay Smith, left. Ms Vizl said that the workload therefore increased as Ms Smith was not replaced. Ms Vizl's evidence was that Mr Harland was extremely busy and was only able to give her limited attention.
On Friday 8 December, ten minutes before she was due to go home, Mr Harland approached Ms Vizl and told her that she "was being sacked on Elizabeth's orders as the office was too slow". Ms Vizl said that her response was one of shock and disbelief as this was the first criticism that she had heard of her work. She pointed out to Mr Harland that the office was slow because the computer system had had constant problems and the telephone system kept breaking down. According to Ms Vizl, Mr Harland replied "I know, I'm sick of having to sack people all the time".
Mr Harland gave evidence that he had worked for the respondent for nine months as the financial controller. He resigned on 10 December due to the stress of the work. Mr Harland's evidence was that prior to the employment of Ms Vizl he had felt the need to employ an additional staff member as bookkeeper because the workload was so heavy. He discussed this with Elizabeth Norton and they agreed to try to obtain someone through the CES. He selected two applicants to interview, one of whom was Ms Vizl. Mr Harland said that he was looking for a bookkeeper who was accurate, who was diligent, who had computer knowledge, who would survive in a stressful environment and who could handle the fishermen who were the company's clients. There is a finite number of lobster fishermen who move from one processing company to another. According to both Mr Harland and Ms Norton, one has to handle the fishermen with kid gloves to make sure that they are happy and stay with the company. The survival of the processor depends on a good relationship with the fishermen. It also depends on a good relationship with its Asian customers. Aussie Lobsters sells its product exclusively on the overseas market.
Mr Harland gave evidence that he interviewed two people and selected the other person who had applied. After a few days, the other employee discussed the matter with Mr Harland and decided that the position was not what she wanted. She decided she wanted to leave and Mr Harland thereupon approached Ms Vizl. Mr Harland in his examination in chief said that he "would have" discussed the terms of employment during both interviews. However, in the second interview he "would have been more specific". Mr Harland said that during the second interview he explained to Ms Vizl that the job was part time and could extend ultimately to her replacing him in the company. When questioned further, Mr Harland was adamant that during the second interview he said that the job was on the basis of a three month probationary period. He admitted that he said that after a couple of days they could see how she went. Mr Harland said that it was possible for him to judge in two days whether or not a person was totally incompetent at dealing with computers. However, they needed a three month probationary period to adequately assess whether a person could fit into the company and carry out all of the duties associated with the position. Mr Harland said that a three month probationary period was standard within the industry. All employees had always been on a three month probationary period.
Mr Harland's evidence was that he had worked out that the data entry work should take two to three hours of Ms Vizl's time per day. He had done the work himself and this was how long it had taken him. He anticipated that Ms Vizl would spend the rest of her part time day doing the bookkeeping. He understood that Ms Vizl had had little practical experience but she advised him that she was computer literate. When Ms Vizl started he explained to her how to do the computer data entry work. Mr Harland said that the company was experiencing problems with the computer program. However, even taking into account the problems with the computer and the telephone system, Ms Vizl was much slower at doing the work than he had anticipated. It would take her five hours per day to do the work and even then she could not complete the data entry work. Mr Harland was finishing the work each day after Ms Vizl left. Mr Harland said that there were also errors in the work done by Ms Vizl, although he accepted that someone who was learning would make errors. Mr Harland said that whenever Ms Vizl experienced problems with the computer, he would try to sort out what was wrong to the best of his ability.
Mr Harland denied that there was a pattern to the employment of office staff with the respondent. The company did not employ people for short periods. He also denied that he told Ms Vizl that he was "sick of sacking people". He said that the occasion of Ms Vizl's termination was the first time he had had to terminate anyone's employment. Mr Harland admitted that he did not say anything to Ms Vizl about her work performance and said that this was because he did not like to put extra stress on his employees by saying negative things to them. According to Mr Harland, Ms Vizl tried very hard and worked within her capabilities. He felt, however, that she was not the right person for the position. Mr Harland said that when he advised Ms Vizl that her employment was to be terminated, she said to him that she wasn't happy anyway working in a part time job and had been thinking of leaving.
WAS THERE A PROBATIONARY PERIOD?
Ms Vizl presented as a fairly emotional person. This is perhaps not surprising given the unpleasant experience of having her employment terminated. Her demeanour in Court was somewhat volatile and she seemed to find it difficult to listen to instructions. I accept that she was nervous at appearing in Court by herself but the impression I gained was that this accounted only partly for her demeanour. Mr Harland on the other hand was composed and gave his evidence in a forthright manner. I have no doubt that Ms Vizl sincerely believes that she was not advised that her employment with the respondent was subject to a three month probationary period. On the balance of probabilities, however, I find that it is more likely than not that she was advised in advance that the employment would be on the basis of a three month probationary period. I base this finding partly on the demeanour of the witnesses but also on the fact that it appears highly unlikely that the respondent company would take on a person with no relevant work experience in such a responsible position without stipulating a trial period.
WAS THE PROBATIONARY PERIOD REASONABLE?
Under the provisions of Regulation 30B, employees are excluded from the operation of subdivisions B, C, D and E of Division 3 of Part VIA of the Act if they are:
"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:
(1)is determined in advance; and
(2)is reasonable, having regard to the nature and circumstances of the employment;"
It now remains for this Court to decide whether the duration of the period of probation is reasonable, having regard to the nature and circumstances of the employment. In the case of Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233, Wilcox CJ said at page 242:
"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 this case, although the tasks Ms Vizl carried out whilst she was actually employed with the respondent were fairly limited in nature, it was agreed when she accepted the employment that her duties were eventually to be much broader. The respondent conducted a small but very busy office in which people have to be multi skilled. Ms Vizl was to be slowly phased in to the job and eventually take on much greater responsibility. She had no practical experience for what was in effect a critical task within the respondent's business. In these circumstances, a period of phasing in was justified. Ms Vizl herself was inexperienced and therefore a somewhat longer period of probation than for an experienced person would be reasonable. In addition, there is the evidence of Mr Harland that a three month probationary period was standard within the industry. Taking into account the requirements of the job and the factors personal to the applicant leads me to conclude that in these circumstances a three month probationary period was reasonable. For these reasons, Ms Vizl is excluded by Regulation 30B from the operation of the relevant provisions of the Act. Accordingly, her application must fail.
I stress that I am not of the view that Ms Vizl has been in any way untruthful. She is to be commended for her hard work and effort in obtaining qualifications under very difficult circumstances. It is understandable that she considers that her treatment at the hands of the respondent was unfair. She was never advised by anyone in the management of the respondent that her work performance was unsatisfactory. If it were not for the operation of Regulation 30B, it is likely that I would have considered that the provisions of Section 170DC of the Act had been breached. However, as I have found that Regulation 30B does apply in this case, the application must be dismissed.
I certify that this and the preceding 8 pages are a true copy of the Reasons for Judgment of Judicial Registrar Boon.
Associate
Date:
The applicant appeared in person.
Counsel for the respondent: Mr P Ward
Solicitors for the respondent: Peter Ward Solicitors
Hearing date: 15 February 1996
Judgment date: 29 February 1996
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