Mohamed and ASU v And Western Inner Region Migrant Resource Centre

[1997] IRCA 182

DECISION NO:182/97

CATCHWORDS

INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION -
JURISDICTION - whether PROBATIONARY PERIOD -

Workplace Relations Act 1996 ss170EA
Workplace Relations Regulations            Regulation 30B

MOHAMED & ASU -V-
WESTERN INNER REGION MIGRANT RESOURCE CENTRE
VI 2324 of 1996

Before  :          PARKINSON JR
Place              :          MELBOURNE
Date               :          21  MAY  1997

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 2324 of 1996

B E T W E E N:

Munira MOHAMED
Applicant

A N D

WESTERN INNER REGION MIGRANT RESOURCE CENTRE
Respondent

MINUTES OF ORDERS

21  MAY  1997  PARKINSON JR

THE COURT ORDERS THAT:

1. The application made pursuant to Section 170EA of the Workplace Relations Act, 1996, 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
VICTORIA DISTRICT REGISTRY

VI 2324 of 1996

B E T W E E N:

Munira MOHAMED
Applicant

A N D

WESTERN INNER REGION MIGRANT RESOURCE CENTRE
Respondent

REASONS FOR DECISION

21  MAY  1997  PARKINSON JR

This is a decision in relation to an application made pursuant to Section 170EA of the Workplace Relations Act 1996.(‘the Act’)  The respondent provides community development and support facilities to various migrant communities.  The applicant applied for a position with the respondent on 3 April, 1996, as a Community Worker for the African Community.  The position had been advertised and was the subject of a job description setting out the duties of the position and the terms and conditions of the appointment.(Exhibit R2)  The terms and conditions were stated to be in accordance with the relevant Social and Community Services Award and a salary dependant upon qualifications and experience.  The applicant was invited to attend an interview for the position, with some members of the Committee Of Management, held on 22 April 1996.  At that interview the various duties and functions of the role were discussed and the position was outlined.  Shortly after the interview the applicant was advised that she was successful and would be offered the position.  Arrangements were made for the applicant to commence employment with the respondent on 6 May, 1996, although at that time the written employment agreement in relation to the position offered had not been finalised and nor had all of the terms and conditions of appointment been agreed.  I am satisfied that the parties had agreed to finalise these matters at an early future date. 

On 10 May, 1996, after the applicant had commenced employment, the respondent wrote to the applicant offering her the position of Grant in Aid Worker for the African Communities.  (Exhibit R5)  That letter set out some of the terms and conditions of appointment, including a three month probationary period.  The letter stated the salary for the probation period to be at the Level of Social Worker Class 1 Year 4 or $ 28,501.20 per annum and at the expiration of the probationary period, Social Worker Class 1 Year 6 or $31,023.20.  The respondent sought the applicant’s acceptance of the offer in writing.  The applicant wrote to the respondent on 20 May, 1996 accepting the position offered, but not the terms and conditions attached to the position, in particular not the salary proposed.(Exhibit R8)  She noted in her letter that the position description which had been provided to her did not contain a probationary period.  It is clear from the course of the correspondence between the parties that the agreement between the parties for the employment in the position of Community Development Worker African Communities had not been finalised prior to the date the applicant commenced work at the respondent.  Nor had final agreement as to terms and conditions been reached at 20 May, 1996. 

On 21 May, 1996 the Committee of Management met and on advice of the executive officer, purported to withdraw the offer of employment previously made to the applicant.  This ‘withdrawal’ was because the applicant had accepted the position but not the terms and conditions.  The resolution was: “the offer of employment to Ms Mohamed be withdrawn as she is not prepared to accept the MRC’s offered terms and conditions of employment.”(Exhibit R9) 
On 22 May, 1996 the respondent wrote to the applicant advising her of the Committee of Management decision.(Exhibit R10)  Noting the disappointment of the committee, the letter advised that the applicant’s services would not be required as at the end of that day and that the applicant was to be paid for her services to date at the rate of Social Worker Class 1 Year 4.  Despite submissions of the respondent that there was no employment because no agreement had been reached on the final terms, I am satisfied that the applicant commenced employment with the respondent in the position to which she had been appointed,  on Monday 6 May, 1996 and I am satisfied that that the letter dated 22 May, 1996 constituted a termination of the employment at the initiative of the employer. 

Following the  termination of the employment, negotiations and discussions occurred, however the parties were unable to resolve the issues between them as to the rate of salary.  The applicant was offered reinstatement by the respondent on the terms of the salary initially offered.  This was rejected by the applicant who would only accept reinstatement if the issue of her salary level were to be referred to an independent person for determination.  No resolution was able to be reached and this application was then initiated.  The respondent relied upon the early offer of reinstatement as a matter of significance to any question of mitigation. 

Before proceeding to consider the substantive matters raised in this proceeding it is necessary to determine whether the Court has jurisdiction to hear and determine the application made pursuant to s170EA of the Act. The respondent contends that there is no jurisdiction in the Court to hear the application. The respondent contends that the applicant was employed on a 3 month probationary period and that consequently Regulation 30B(1)(c) operates to preclude the Court from exercising jurisdiction in relation to the termination of the employment. The respondent contends that the probation was determined in advance and that the period of the probation was reasonable. The applicant contends that no probationary period of the type contemplated by Regulation 30B(1)(c) applied, as there was no probationary period determined in advance and the period was not reasonable. Regulation 30B(1)(c) provides:

“30B(1)(c)[Excluded Employees]     Subject to subregulation (2), for the purposes of Section 170CC of the Act, the following employees are excluded from the operation of Subdivisions B, C, D, and E of Division 3 of Part VIA of the Act:

(c)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:

(i)    is determined in advance; and

(ii)is reasonable, having regard to the nature and circumstances of the employment. ...”

The evidence of the respondent is that the applicant was informed at the interview that the employment was subject to a probationary period.  The evidence of Mr Patsikatheodorou and Mr Hadgu, was that this information was given to the applicant at the time of the interview for the position on 22 April, 1996.  The evidence was that each interviewer had before him or her a list of some 15 or 16 standard questions to be asked of the interviewee.(Exhibit R17)  Prior to the interview commencing specific questions were allocated to particular people.  Mr Hadgu’s evidence was that he was allocated questions 5, 12, and 14.  His evidence was that he was careful, in view of his language difficulties, to ask the applicant whether she understood the terms and conditions as they applied to probation and other conditions.  His evidence was that the applicant indicated that she did understand.  Further his evidence was that shortly after the interview, the applicant telephoned him and raised her concern as to the 3 month probation period.  His evidence was that he took that opportunity to reassure her that the 3 months period was a period only to enable people to settle in and that with her abilities she would not have any difficulties. 

The applicant’s evidence is that she did not recall the issue of probationary employment being raised at the interview on 22 April, 1996, nor did she recall being asked by Mr Hagdu in the interview whether she understood the terms and conditions as they related to probation, hours of work, drivers license etc.  She did recall being asked one of the other questions raised by Mr Hagdu.  The applicant did concede in cross examination that she was a little nervous at the interview and it is clear from her evidence that she focussed her attention on questions relating to the performance of the duties of the positions.  Her evidence is that she first became aware of a probationary period existing as a consequence of the letter dated 10 May, 1996 offering her the position. 
(Exhibit R5) 

I prefer the evidence of Mr Hagdu’s evidence as to the discussions with the applicant of the probation period both during the course of the interview and during the telephone conversation.  I am satisfied that the telephone conversation took place prior to the employment commencing and evidences a knowledge of the existence of the probationary period being held by the applicant.  It is likely that the applicant did not pay significant amount of attention to the issue of the probationary period given her focus upon the manner in which the work was to be done and the possible demands of the position. 

Further, the evidence of the Management Committee members, Mr Patsikatheodorou, Mr Hadgu and Ms Coward, satisfies me that it was the practice of the respondent to only offer employment subject to a probationary period, with the length of that period generally being 3 months, although that period might vary depending upon the nature of the position.  Evidence was led as to the arrangements in this regard with other employees of the respondent. 

I am not satisfied that the Court has jurisdiction to hear and determine this application.  I am satisfied that the applicant was informed in advance of acceptance of the employment, as Grant in Aid Worker, African Comminuties, that the employment was subject to a probation.  I accept the evidence of Mr Hadgu as to the matters raised by him in the interview and the contents of the later telephone discussion.  The persons who gave evidence as to the interview process were firm as to their evidence that the probationary period was raised with the applicant.  Further it is reasonable to conclude having regard to the established usual practice of the respondent and the written notes of questions utilised in the interview, that the issue of probation and its period would have been likely to be raised with the applicant. 

I have considered the question as to whether the probationary period was a reasonable one in the circumstances.  Mr Hadgu’s evidence as to this matter is important in a consideration of this issue.  His evidence was that this is a publicly funded position and that its success depends upon the incumbents adaptability and acceptance by the community for which they are working.  His evidence was that this period allows sufficient time for both parties to the employment to assess the situation accurately.  I accept this evidence and am satisfied that the position whilst relatively junior in classification, was one which required the application of skills which may not be immediately apparent or exercised within weeks of employment.  In the absence of a relatively lengthy probationary period it may not be possible for an accurate assessment of the employees capacity or suitability for the position to be ascertained.  I am satisfied that the period was  a reasonable one.  In view of my findings as to the application of Regulation 30B(1)(c) the Court is precluded from considering the merits of this application.  The Order of the Court will be that the application be dismissed.

I certify that the preceding six (6) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson.

Associate      :          

Dated             :          21  May  1997

APPEARANCES

Counsel appearing for the applicant        :          Mr. M. Willoughby-Thomas
Solicitors for the applicant  :          Martin Willoughby-Thomas

Counsel appearing for the respondent     :          Mr. R. Marasco

Representatives for the respondent  :          Victorian Employer’s Chamber of
  Commerce & Industry

Date of hearing  :          3 & 4  March  1997