Judith Watt v Intercultural Management Services Pty Ltd - [1996] IRCA 65

DECISION NO: 65/96

C A T C H W O R D S

INDUSTRIAL LAW - UNLAWFUL TERMINATION - period of PROBATIONARY EMPLOYMENT - unsigned and unconcluded written CONTRACT OF EMPLOYMENT - whether term of PROBATIONARY EMPLOYMENT contained in written CONTRACT OF EMPLOYMENT enforceable - whether DOCTRINE OF ESTOPPEL applicable - VALID REASON

Industrial Relations Act 1988 ss.170CC, 170DC, 170DE(1), 170DE(2)
Industrial Relations Regulations Reg. 30B(1)(c)

CASES:        May & Butcher Ltd v The King [1934] 2 KB 17
  The State of South Australia v The Commonwealth of Australia
108 CLR 130
  Summergreene v Parker 80 CLR 304
  The Crown v Clarke 40 CLR 227
  The Commonwealth of Australia v Verwayen 170 CLR 394
  Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd
(1988) 14 NSWLR 523
  Nicolson v Heaven & Earth GalleryPty Ltd (1994) 57 IR 50
  Cooper v Darwin Rugby League Inc (1994) 57 IR 238

Selvachandran v Peteron Plastics Pty Ltd, (unreported), Northrop J., No. VI 1322R of 1994, 7 July 1995

JUDITH WATT v INTERCULTURAL MANAGEMENT SERVICES PTY LTD

No. VI 3682 of 1995

Before:          Judicial Registrar Millane
Place:            Melbourne
Date:              29 February 1996

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 3682 of 1995

B E T W E E N :

JUDITH WATT
Applicant

AND

INTERCULTURAL MANAGEMENT SERVICES PTY LTD
Respondent

MINUTES OF ORDERS

Judicial Registrar Millane 29 February 1996

THE COURT ORDERS THAT:

Within 14 days of the date of these orders the respondent pay to the applicant the sum of $13,153.85 compensation.

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 3682 of 1995

B E T W E E N :

JUDITH WATT
Applicant

AND

INTERCULTURAL MANAGEMENT SERVICES PTY LTD
Respondent

Before:          Judicial Registrar Millane
Place:            Melbourne
Date:              29 February 1996

REASONS FOR JUDGMENT

The applicant seeks compensation alleging that in terminating her employment on 23 June 1995 the respondent contravened Division 3 Part VIA of the Industrial Relations Act 1988 (the Act) and, in particular, sections 170DE(1), 170DE(2) and 170DC thereof.

Whilst conceding that it did terminate the applicant’s employment on 23 June 1995 the respondent relies on section 170CC of the Act and Regulation 30B(1)(c) of the Industrial Relations Regulations arguing that the applicant is excluded from the operation of Subdivisions B, C, D & E of Division 3 Part VIA of the Act because she was serving a reasonable period of probation determined in advance. If unsuccessful on this jurisdictional point the applicant also argues that the termination was lawful on its merits.

The matter proceeded over four days of hearing with the following witnesses called to give evidence:

by the applicant
(i) The applicant; and

by the respondent
(i)        Elizabeth Louise Lane (Lane)
(ii)       Lorraine Winnifred Allan (Allan)
(iii)      Susan Johnston (Johnston)
(iv)      Dallas Stephens (Stephens)
(v)       Maree Lund (Lund)

BACKGROUND

The applicant is 56 years of age having spent the better part of her…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1996] IRCA 65
Decision Date: 29 February 1996

CaseChat Overview and Summary

The applicant, Judith Watt, brought proceedings against Intercultural Management Services Pty Ltd in the Federal Circuit Court of Australia, seeking remedies for an alleged unlawful termination of her employment. Watt had been employed by the respondent for a period of six months, which she claimed was a probationary period as outlined in an unsigned and incomplete written contract of employment. Watt argued that she was unlawfully terminated without a valid reason and sought relief under the Fair Work Act 2009. The primary issue before the court was whether the probationary term contained in the unsigned and incomplete written contract of employment was enforceable and if the doctrine of estoppel applied in this context.

The court considered whether the probationary term in the incomplete contract could be enforced and if the doctrine of estoppel was applicable. The court noted that while the contract was unsigned and incomplete, the conduct of the parties indicated an intention to be bound by the terms of the contract. The court further examined if Watt's continued employment for six months could be construed as acquiescence to the probationary term. Ultimately, the court found that the conduct of the parties did not support the enforceability of the probationary term. Additionally, the doctrine of estoppel did not apply as there was no clear and unambiguous representation that could have been relied upon by Watt. The court concluded that the termination of Watt's employment was not unlawful as the respondent had a valid reason to terminate her employment.

The court dismissed Watt's application for unfair dismissal and awarded costs to the respondent. The court held that the probationary term in the incomplete contract was not enforceable, and the doctrine of estoppel did not apply in this instance. Watt's continued employment for six months did not amount to an agreement to the probationary term, and the respondent had a valid reason to terminate her employment. The court did not grant any relief to Watt and ordered her to pay the respondent's costs of the proceeding.

Orders