Jennifer Marie Young v Home Help Service Act Inc

[1995] IRCA 425

C A T C H W O R D S

INDUSTRIAL LAW - termination of employment - probation - valid reason - procedural fairness - compensation

INDUSTRIAL RELATIONS ACT, 1988, ss 170DC 170 EA 170EE
  Reg. 30 B

Nicholson v. Heaven and Earth Gallery Pty. Limited AILR 3-028

JENNIFER MARIE YOUNG -v- HOME HELP SERVICE A.C.T. INC.

NO.  AI 1061 OF 1995.

Before :   Linkenbagh JR

Place:     Canberra

Date: 19 July 1995

1N THE INDUSTRIAL RELATIONS COURT    )
OF AUSTRALIA  )
AUSTRALIAN CAPITAL TERRITORY        )
DISTRICT REGISTRY                   )    No. ACT AI 1061 of 1995

JENNIFER MARIE YOUNG

Applicant

HOME HELP SERVICE A.C.T INC.

Respondent

MINUTES OF ORDER

BEFORE: JUDICIAL REGISTRAR LINKENBAGH

DATE:   29 August 1995

PLACE:  CANBERRA

THE COURT ORDERS THAT:

The Respondent pay to the Applicant the sum of $13,500.00 as compensation pursuant to Section 170 EE (3) of the Industrial Relations Act, 1988

Settlement and entry of Orders is dealt with in Order 36 of the Industrial Court Rules.

IN THE INDUSTRIAL RELATIONS COURT    )
OF AUSTRALIA  )
AUSTRALIAN CAPITAL TERRITORY        )
DISTRICT REGISTRY                   )    No. ACT AI 1061 of 1995

JENNIFER MARIE YOUNG

Applicant

HOME HELP SERVICE A.C.T. INC.

Respondent

BEFORE:             JUDICIAL REGISTRAR LINKENBAGH

DATE:          19 July 1995

PLACE:              CANBERRA

REASONS FOR JUDGMENT

This is an application under Section 170 EA of the Industrial Relations Act, 1988, in which the Applicant seeks a remedy in respect of the termination of her employment as a Personal Care Co-ordinator by the Respondent.
The applicant answered an advertisement for the position and was interviewed. She was provided with a Duty Statement for the position, and on 14 November and 22 November, 1994 the Respondent wrote to the Applicant informing her that she was successful in an application for employment as a Personal Care Co-ordinator and setting out the terms of her employment. The Duty Statement and the letters are comprehensive in their terms and I find that they reflect accurately the understanding of the parties at the time.
The applicant was to commence work on 5 December, 1994. On 1 December the Director of the respondent telephoned her to request that she take the alternative position of Combined care Co-ordinator. I accept the applicant's evidence that she had some reservations about her capacity to perform the duties of that position, and that she agreed to take up that position on a trial basis for three months, with her performance and suitability being reviewable by either party within that period. I accept her evidence that she understood that if the alternate position did not suit her, then she would return to the position for which she had initially been employed. The applicant's evidence accords with the terms of a letter concerning her performance of her duties which she wrote to her employer dated 10 January, 1995, which is Exhibit "A".
The respondent argues that this Application must fail because the employment contract was subject to a period of probation within the meaning of Regulation 30B (1) (c) of the Regulations under the Act and that the employment was terminated during the probation period. That Regulation provides that, in effect, if an employee is serving a period of probation which is determined in advance and is reasonable, and the employment is terminated during the period, then the employee is precluded from making an Application under Section 170 EA of the Act.
The respondent relies on the evidence of Ms Dadge and Ms Paxton, and the evidence of the applicant as to the three month trial period in the alternate position, to prove that there was a probation period. The requirement of the Regulation that the period be determined in advance means that the details of the probation must be known to the parties before the employment commences, and there should be clear and unequivocal evidence before the Court to ground a finding that a period of probation was part of the employment contract. The applicant denied that probation was discussed, and told the Court that as she wanted full-time permanent employment, because of her financial position, she would have reassessed her decision to accept the employment if she had been told the appointment was subject to a period of probation.
Neither of the respondent's witnesses could give evidence of the terms of any document or conversation prior to 5 December, 1994 which spelled out the terms of a probationary period, nor could they offer any satisfactory explanation for the absence of any mention of the terms of the probation they allege were agreed, from the Duty Statement, or either of the letters of 14 and 22 November. The account by Ms Dadge of her conversation with the applicant on 14 February works against the assertion that there was a probationary period. Ms Dadge says that she said to the applicant "you should look at your future with the organisation" without any reference to a period of probation. It may also be said that if the applicant were on probation, and Ms Dadge was dissatisfied with her performance, Ms Dadge could have taken the opportunity to terminate the employment on 14 February, rather than leaving the matter undecided. Further, Ms Dadge's account of her actions on 16 February is that she suspended the applicant, an action which is in my view inconsistent with the assertion of a right to terminate probationary employment.
The respondent attempted to rely on the terms of a Draft Contract which was prepared in January 1995 and submitted to the applicant. The Draft is in effect in the same terms as the letter of 14 November, 1994, but it includes a probation period of three months. The respondent's witnesses explanation for that is unconvincing. In any event, a document produced in January 1995 is of no assistance to me in determining the terms of the employment which were agreed to in November, 1994, and none of the three documents produced at that time mention a probation period. I find therefore that the employment of the applicant was not subject to a period of probation and the right of the applicant to bring this Application is not excluded by the provisions of Regulation 30 B.
I turn then to the merits of the Application. The applicant's employment was without incident until 14 February, 1995 when Ms Dadge, the Director, initiated an impromptu meeting with her with the words "You are not very happy here, are you?" and there followed an exchange of words which left the applicant feeling very upset, but which did not put to her any specific complaints or criticisms concerning her capacity or performance in the workplace.
On 16 February, 1995 Ms Dadge telephoned the applicant. The applicant understood what was said to her to be words terminating her employment and she filed this application the next day. Ms Dadge gave evidence that she said "I will be terminating you" and she invited the applicant to come and see her. The applicant did not do so, as she was distressed and she went to see her doctor. On 16 February Ms Dadge wrote to the applicant informing her "your duties as Personal Care Co-ordinator are suspended with pay until further notice", and requesting the return of her vehicle and mobile phone. The reason for the "suspension" has not been explained to the Court. On 20 February Ms Dadge sent the applicant a copy of the staff grievance policy. On 21 February the applicant wrote to Ms. Dadge and the Board of Directors of the respondent. Those letters are Exhibits  "D" and "E" and summarise the applicant's understanding at that time. On 24 February the respondent wrote to the applicant terminating the employment from 3 March, 1995, enclosing a cheque, and inviting the applicant to inform Ms Dadge by return post if she wished to attend a meeting to discuss the decision. There was no further communication between the parties.
The respondent suggests in the evidence that the termination was caused by complaints about the applicant's discharge of her duties and dissatisfaction with her attitude and performance. No allegations were put to the applicant prior to termination, nor was any evidence led as to the facts which gave rise to Ms. Dadge's decision to terminate the employment, other that the generalised statements in paragraph 8 of the affidavit of Ms Dadge.
I find therefore that the respondent is in breach of Section 170 DC of the Act.
I also find that the respondent has failed to prove that there was a valid reason for the termination of the employment, and the applicant is therefore entitled to a remedy. Her annual salary was $34,857.00 and she had earned about $3,500.00 from other employment since termination up to the date of the hearing. She did not produce any documentary evidence as to those earnings. If the respondent's generalised assertions that there were inadequacies in the applicant's suitability for the employment had been supported by evidence, and I were convinced that the employment was destined to end sooner rather than later, I would have had to consider reduction in the amount of compensation otherwise payable on the basis confirmed by Chief Justice Wilcox in Nicholson v. Heaven and Earth Gallery Pty Limited (AILR 3-028). I am not so convinced, and I therefore determine that an appropriate amount of compensation is 26 weeks pay, or $17,428 less an allowance for the probable earnings of the applicant from other employment. I determine that an appropriate sum is $13,500 and I order that the respondent pay that sum to the applicant.

I certify that this and the preceding 5 pages are a true copy of my reasons for judgment.

Date:

Maria Linkenbagh
          Judicial Registrar

Counsel for the Applicant:       Ms J. Godtschalk

Solicitor for the Applicant:        Mr I. Bradfield       
  Porter Pilkington and  Bradfield  

Representative of the Respondent: Mr A. Chase       
  Confederation of A.C.T.  Industry

Date of hearing:  19 July 1995

Date of Order:                 29 August 1995