Kapaklis v Cervara Twenty Four Pty Limited

[1995] IRCA 111

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 2512 of 1994

BETWEEN:

KAPAKLIS
Applicant

AND

CERVARA TWENTY FOUR PTY LIMITED
Respondent

REASONS FOR JUDGMENT (EX TEMPORE)
(Revised from Draft Transcript)

21 March 1995  Judicial Registrar Millane

By an application made on 30 November 1994 the Applicant seeks compensation under Division 3 of Part VIA of the Industrial Relations Act 1988, (“the Act”) alleging that on 28 November 1994 his employment was unlawfully terminated.

The Respondent concedes that from 15 November 1994 it employed the Applicant as a shed hand and as a truck driver in its transport business.  However, it is contended that such employment was subject to a three month probationary period, determined in advance, and such period was reasonable having regard to the nature and circumstances of the employment. 

The Applicant gave evidence that in November 1994 he sent letters to various prospective employers, including the Respondent, seeking employment as a truck driver and labourer or shed hand.  The original of such letter was produced by the Respondent and tendered in evidence (exhibit A1).  It contains the statement by the Applicant that:

“I would be willing to begin employment with your company at any reasonable wage agreement, as long as the position will or can lead to a full-time permanent one.”

It was conceded by the Applicant that during an interview with Mr Di Pietro, the Respondent's managing director, he was informed that his employment would be the subject of a three month period of probation.  The Respondent tendered in evidence exhibit R1, a document entitled Individual Employment Agreement, the front page of which was signed by the Applicant and dated 14 November 1994.  The Applicant agreed that he had signed that document as alleged, but could not recall the circumstances under which it was signed and whether it had attached to it two further pages setting out leave entitlements and definitions and conditions.

The Respondent drew the court's attention to part 2, paragraph 3 of the Agreement, which contains a definition of a probationary period of employment as the first three months of employment.  Mr Di Pietro conceded that he did not supervise the signing of or the explanation of the contents of the document to the Applicant, who denied reading the document before signing it.  According to Mr Di Pietro, his secretary arranged for interviewees to execute the Agreement after an interview, when the job offer was already made and accepted, with the proviso that there be a three month probationary period.

Mr Di Pietro's evidence was that the period of probation applied to all new employees.

The reason advanced for termination of the Applicant's employment on 29 November 1994 was that his performance in loading and unloading containers over a two-week period was unsatisfactory.  On the last day he did not follow written instructions as to the loading configuration of particular pallets and Mr Di Pietro, on being informed by him that the Applicant did not think it mattered, terminated the Applicant's employment.

If the only issues were of procedural and substantive fairness under the provisions of this Act, the Respondent would be hard pressed to say that it had complied with the spirit of the unlawful termination legislation.  It was acknowledged by Mr Di Pietro that even though he had observed instances of poor performance during the currency of the Applicant's employment, he had not raised these matters with the Applicant at any stage, nor had the Respondent seen the need to train and instruct its new employee in areas where it felt his employment performance was deficient.

On the evidence, I am satisfied that on the date the Applicant was interviewed and offered permanent employment, such employment was subject to a three month period of probation agreed in advance and it was a reasonable period, having regard to the nature and circumstances of the employment (see Regulation 30B(1)(c) of the Industrial Relations Regulations). On the question of the reasonableness of the period of probation, the court was referred to the certification of agreements by the Commission pursuant to section 170MC of the Act, which agreements were entered into as a result of transport workers’ disputes with transport companies (see for instance Agreements between Transport Workers’ Union of Australia and K. & S. Freighters Pty Ltd - C. No. 33805 of 1994, C. No. 35758 of 1994, C. No. 34675 of 1994 and C. No. 36528 of 1994).

The abovementioned agreements, amongst other things, contain agreed probationary periods of three months for transport workers employed by transport companies. Mr Ironmonger, appearing for the Respondent, pointed to section 170MD(2) of the Act, which requires the Commission to refuse to certify an agreement if it is of the view that a provision of such agreement is inconsistent with Part VIA of the Act.

In his decision in Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233, Wilcox CJ rejected the suggestion that a Respondent could not make out a case that a particular period of probation was reasonable without calling expert evidence. Indeed, his Honour observed that evidence concerning the practice in a particular industry is relevant and may even be decisive of this matter. In the case at hand, the Applicant was employed as a truck driver, although he commenced his employment as a shed hand, loading and unloading goods with a view to driving trucks once a truck-driving job became available and the Applicant had satisfied the Respondent that he was experienced and able to load and unload containers safely. In the circumstances, I am satisfied that the probationary period of three months was a reasonable one and certainly in keeping with industry practice.

Having found in favour of the employer on the preliminary question, the Applicant is excluded by the operation of section 170CC of the Act and regulation 30B of the Industrial Relations Regulations from the benefits conferred on employees by Sub-divisions B, C, D and E of Division 3 of Part VIA of the Act. Accordingly, the order I make is that this application is dismissed.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment of Judicial Registrar Millane as recorded in the draft transcript and revised by the Judicial Registrar.

Associate:

Dated:  21 March 1995

Solicitors for the Applicant: Counsel for the Applicant:
Solicitor for the Respondent: Counsel for the Respondent:
Dates of hearing:	21 March 1995
Date of Judgment:	21 March 1995

CATCHWORDS

INDUSTRIAL LAW - Unlawful termination of employment - 3 month probationary period - industry practice as to period of probation.

Industrial Relations Act 1988, ss.170CC, 170MC and 170MD(2).

Industrial Relations Regulations, Regulation 30B(1)(c)

Nicolson -v- Heaven & Earth Gallery Pty Ltd, (1994) 126 ALR 233.

KAPAKLIS -v- CERVARA TWENTY FOUR PTY LIMITED

NO. VI 2512 of 1994

Before:     MILLANE JR

Place:      MELBOURNE

Date:       21 MARCH 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 2512 of 1994

BETWEEN:

KAPAKLIS
Applicant

AND

CERVARA TWENTY FOUR PTY LIMITED
Respondent

MINUTES OF ORDER

21 March 1995  Judicial Registrar Millane

THE COURT ORDERS THAT:

1. The Application is dismissed.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.