Mr R v The Agency
[2010] FWA 3446
•6 MAY 2010
Note: An appeal pursuant to s.604 (C2010/3828) was lodged against this decision - refer to Full Bench decision dated 4 August 2010 [[2010] FWAFB 5626] for result of appeal.
[2010] FWA 3446 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr R
v
The Agency
(U2009/13157)
SENIOR DEPUTY PRESIDENT O'CALLAGHAN | ADELAIDE, 6 MAY 2010 |
termination of employment - arbitration.
[1] This decision deals with an application made pursuant to section 394 of the Fair Work Act 2009 (the Act) by Mr R, relative to the termination of his employment with The Agency.
[2] I have set out below the procedures followed to determine this application. I have then detailed the background to the application before considering the extent to which the termination of Mr R's employment was harsh, unjust or unreasonable.
[3] Mr R's application was lodged with Fair Work Australia on 23 October 2009. It was the subject of telephone conciliation on 1 December 2009, before being referred to me for determination.
[4] I convened a directions conference on 20 January 2010. At this conference, the parties outlined the background circumstances and agreed in principle that the matter should be determined largely on the basis of the substantial written material to be made available to me. Notwithstanding this, time was set aside for a hearing should this be necessary.
[5] I issued directions which confirmed the timeframes for the provision of this written material.
[6] The parties provided material to me in March 2010. Having considered this material, I concluded that there were a number of factual differences between the parties. Section 397 of the Act states:
“397 Matters involving contested facts
FWA must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute.”
[7] On 23 March 2010 I issued further directions in which I advised the parties that I would convene a conference to provide both parties with the opportunity to confirm the material before me. Additionally, I provided the parties with a detailed summary of the background facts and invited both parties to indicate, at this conference, their respective positions with respect to this summary. Finally, I invited the parties to address the concept of probationary employment at this conference.
[8] Subsequent to these further directions, Mr R formally objected to the Australian Government Solicitor being granted permission to represent The Agency at the conference. In this respect I note that The Agency is a large government department. I issued further directions to the parties in which I confirmed that permission would be granted pursuant to section 596(2) of the Act on the basis that:
- the application followed substantial disputation in other Courts, where legal representation had been permitted
- The Agency had been represented to that point, including in the preparation of the significant material provided to me
- Mr R was, on his own advice, a lawyer of long standing and experience,
- the matters to be considered include the nature of probationary employment and, finally
- the matter was set to proceed less than a week later.
[9] The conference on 27 April 2010 was recorded. At the outset, the parties were again advised of their capacity to provide sworn evidence. Both parties declined to provide further evidence and advised that they considered that the matter could be determined on the basis of the written material before me.
[10] The day after the conclusion of this conference Mr R provided further written submissions. Whilst I am not under any obligation to take these into account, I have done so.
[11] Finally, in terms of procedural issues, this decision does not disclose the names of the parties on the basis that section 398(2) requires that a conference be conducted in private.
The background
[12] I have set out the background to Mr R's application in a form which reflects a small number of amendments requested by the parties to the draft document I provided with my Directions of 23 March 2010.
“1. On 17 September 2007 Mr R was declared bankrupt as a result of an unpaid debt to The Agency.
2. Mr R was offered employment by The Agency in an APS5 position on 4 February 2008. Mr R accepted this employment offer and commenced employment on 21 February 2008.
3. Prior to, or around his commencement date, The Agency reviewed the extent to which Mr R's bankruptcy was an appropriate basis upon which to revoke the employment offer and decided that Mr R's employment should proceed.
4. A standard condition of Mr R's employment was a three-month probationary employment period. An attachment to his letter of employment relevantly states:
Probation
Your engagement is subject to a probationary period. Employees whose work performance and/or behaviour, including attendance, do not meet the required standard during their probationary period will have their employment terminated.
5. Just prior to the commencement of his employment, Mr R provided the pre-employment declarations requested by The Agency. In one of these statements, he confirmed that he retained his standing as a Registered Agent.
6. Mr C, an Assistant Director in the area in which Mr R worked, was nominated as his mentor and met and talked with Mr R at some length over the duration of his employment. Details of the exact content of the discussions between Mr R and Mr C are matters in dispute. There is no apparent dispute that Mr C provided advice to Mr R on various occasions relative to his communications with Ms S.
7. Shortly after the commencement of Mr R's employment issues arose with respect to his relationship and communications with Ms S. The extent and the cause of these issues is a matter in dispute between the parties.
8. As a consequence of these issues, Ms S placed Mr R on a formal Performance Improvement Plan on 28 March 2008. This plan identified Ms S's concerns with Mr R's compliance with her directions, and the courtesy and respect shown by him, to her. Mr R signed this plan which specified that: "If the situation does not improve termination may be considered".
9. This Performance Improvement Plan was reviewed at a meeting between Ms S and Mr R on 3 April 2008. At that time Ms S noted improvements in Mr R's performance.
10. Mr R completed a number of standard Agency training programs. He was also absent on sick leave over a number of days. He disagreed with Ms S over hours recording, sick leave validation, flexible working hours and communication issues generally. The cause and the extent of these communication difficulties or disagreements is a matter of dispute between the parties. However, in addition to discussing certain of these issues with Mr C, Mr R also discussed some of these matters with various Agency human resource management personnel.
11. In April, The Agency took action to address Mr R's continuing status as a Registered Agent on the basis of concerns that this represented a potential conflict of interest. Mr R initially requested that he be allowed to retain this agency status pending the successful completion of his probationary employment. The matter was the subject of various meetings and advices, and following the involvement of a very senior manager, Ms G, Mr R surrendered this Registered Agent status on the 23 April 2008.
12. On 5 May 2008 Ms S provided a report to her manager, Mr M, which detailed her assessment of Mr R's employment, and concluded with her recommendation that Mr R's probationary employment should be terminated.
13. Mr M was and is, an authorised officer with delegated authority, such that he is able to issue a notice of termination of employment.
14. On receipt of Ms S's advice, Mr M communicated with Mr C and with a Mr V, who shared various management functions with Ms S, but had limited involvement with Mr R. Mr M sought advice from these persons about their experience and dealings with Mr R in the context of the proposition that his probationary employment might be terminated. Both Mr C and Mr V provided written comments. The basis and justification for these comments is disputed but both comments expressed concern about Mr R. Mr R disputes that he was made aware of these comments at that time.
15. On 7 May 2008 Mr M provided Mr R with a formal advice to the effect that he was considering termination of employment and invited Mr R to show cause as to why this should not occur. In this correspondence, Mr M referred to the following concerns:
“
• Your intimidating behaviour and conduct in the workplace, which consisted of disrespectful and offensive behaviour, being condescending, sarcastic and argumentative, and ignoring directions,
• Your failure to adhere to The Agency * and Australian Public Service Values and Code of Conduct as prescribed by S13(3) of the Public Service Act “and APS employee, when acting in the course of APS employment, must treat everyone with courtesy and respect and without harassment:, and
• Your failure to follow The Agency* procedures and practices in relation to leave and the proper use of time recording systems.”
16. Mr R responded on 9 May 2008. In this response he referred to his decision to surrender his Registered Agent registration and his commitment to working at The Agency*, his desire to adjust to The Agency* systems and his view that his behaviour had improved. He requested that an alternative course of action to the termination of his employment be adopted.
17. Mr M considered this response but, on 13 May 2008, provided advice of the termination of Mr R's employment effective 16 May 2008. He provided reasons for this decision in the following terms:
“1 You commenced ongoing employment with The Agency* on February 21 2008
2 In your letter of offer of employment, it was noted that the first three months of your period of employment would be a probation period and that employment may be terminated during this period if it is considered that you are unsuitable for the duties being offered.
3 Since you commenced employment, your work performance has been unsatisfactory as outlined in my letter of 7 May 2008 requesting that you 'show cause' why your employment should not be terminated.
4 To assist you to improve performance you have been provided.
4 1 A mentor:
4 2 A performance improvement plan.
4 3 Feedback and counselling on various dates on your behaviours and the standard of conduct required in the workplace (with reference to the Code of Conduct)
4 4 A copy of the Australian Public Service Values and Code of Conduct
4.5 A copy of Workplace Harassment and Discrimination page from The Agency * Intranet that provides a link to the relevant Agency Corporate Management Practice Statement
4 6 And requested that you to complete the training package, "Valuing diversity in the workplace"
5 On 19 March 2008, you commenced a performance improvement plan which outlined deficiencies in your work performance wherein you were advised that if your work performance did not improve, your employment would be terminated. I note that you successfully completed the performance improvement plan April 4 2008
6 Since that time your work performance has not improved to a satisfactory level - as evidenced by;
6.1 An inability to sustain required standard of behaviour after conclusion of Performance Improvement Plan.
6 2 Your response to Show Cause letter dated May 7 2008 doesn't provide mitigating circumstance to support your behaviour
7 I have therefore decided that your employment should be terminated in accordance with sub-section 29(3) (f) of the Public Service Act 1999”
18. Mr R subsequently lodged an application in the Federal Court seeking a judicial review of the decision to terminate his employment. Mr R sought a declaration that the decision to termination his employment was void and of no effect, that he was an ongoing public service employee, that an order should be made for ongoing payments from 16 May 2008 and that damages should be paid.
19. The Agency filed a motion seeking to have the application dismissed on the ground that Mr R lacked standing to bring the application as he was a bankrupt or in the alternative, The Agency sought an order for security of costs.
20. On 22 December 2008 the Court dismissed both Agency motions.
21. Mr R's application was subsequently the subject of discussions, and on 17 March 2009, the Court made a consent order in the following terms:
“1. The decision subject to review, being the decision of the first respondent by his delegate the second respondent made on 16 May 2008, that the applicant’s employment with the Australian Public Service be terminated, be set aside with effect on and from 16 May 2008.
2. The matter be remitted to the first respondent for further consideration in accordance with law by a delegate other than the second respondent.
3. There be no order as to costs.”
22. I note that other Federal Magistrates Court actions occurred during this time with respect to Mr R's bankruptcy but do not consider these to be relevant to this matter.
23. Mr R did not return to work but was paid in accordance with the 17 March 2009 Order.
24. On 8 April 2009 Ms K, a senior manager responsible for the Professional Excellence Branch of The Agency advised Mr R that she would determine whether Mr R's employment should be terminated on probation grounds, and specifically, whether or not Mr R had failed to meet the probation condition and, if so, whether termination of employment was appropriate.
25. Ms K’s advice continued:
“I propose to consider whether you have failed to meet the probation condition, that is, whether your work performance and/or behaviour including attendance during the probationary period did not meet the required standard during that period. In doing so, I intend to have regard to your performance and behaviour in the period from your commencement of duties on 21 February 2008 until you ceased performance of duties on 16 May 2008.
If I need to consider whether I should terminate your employment I propose to have regard to any matters and materials which I consider to be relevant to the issue whether or not your employment should continue. These matters and materials might not be confined to your performance and behaviour in the probation period.”
26. Ms K’s advice concluded that she would enquire into the matter and advise Mr R further.
27. On 11 June 2009 Ms K again wrote to Mr R care of his solicitor. She advised that she had considered the following material.
a. the statement of reasons prepared by Mr M, dated 2 July 2008;
b. the documents referred to in Mr M’s statement of reasons;
c. a report of Mr V, dated 3 April 2009;
d. a report of Ms S, dated 29 April 2009;
e. a report of Mr C, dated 30 April 2009;
f. a report of Ms G, dated 18 May 2009;
g. a report of Mr D, dated 25 May 2009;
h. additionally, Ms K referred to a decision of the Federal Court of Australia and of the Federal Magistrates Court of Australia. (Note: points h. and i. have been altered to incorporate a general reference to the Courts.)
28. This large quantity of material was provided to Mr R, who was invited to make written submissions with respect to it, together with a proposed meeting.
29. Additional written material was also provided to Mr R in response to a request to this effect. This additional material related to records of various Agency human resources advices with respect to Mr R.
30. Mr R responded to Ms K in July 2009. His response included a comprehensive rebuttal of the reports and advices provided by The Agency personnel.
31. Mr R and Ms K met on 10 August 2009. Mr R's lawyer was present and the meeting was noted. A copy of these notes was later provided to Mr R. At this meeting, Mr R again confirmed his version of events and disputed the position adopted by The Agency personnel.
32. On 15 August 2009 Ms K provided Mr R with her documented preliminary view, that he had breached the probationary condition and it would be appropriate for her to exercise her discretion to terminate his employment on probation grounds. Specifically, Ms K stated:
6. I have now reached a preliminary view that you breached the probationary condition of employment that your performance and/or behaviour including attendance meet the required standard.
33. In this advice, Ms K expressed the opinion that termination of employment was appropriate and invited Mr R to provide any further comment or material.
34. Mr R's solicitor sought confirmation of the specific occasions on which Ms K considered that Mr R had failed to meet the requisite standards and what these standards were, and why such a breach would justify the termination of his employment.
35. Ms K declined to provide these details and provided additional information about her preliminary views on the required standard of performance and behaviour referenced in the probation condition. This was that:
“
• The required standard for Mr R is the standard of performance and standard of behaviour necessary for satisfactory working as an ongoing APS employee in The Agency * at the APS 5 level.
• The standards are informed by The Agency* documents relating to performance and behaviour.
• The standards are also informed by any other Agency * communications to Mr R relevant to expected standards of work performance and behaviour, including guidance or direction by managers or others on behalf of Agency* as employer.”
36. Mr R replied on 4 September 2009. In this reply, he asserted that the basis for Ms K’s conclusion had been withheld from him, that no claim regarding unacceptable conduct or a breach of the probation standards had been substantiated, and that he had not been treated fairly. Further, Mr R submitted that any breach of his probation conditions did not warrant termination of employment.
37. Ms K confirmed the termination of Mr R's employment on 9 October 2009.
Harsh, Unjust or Unreasonable
[13] Mr R asserts that the termination of his employment was harsh, unjust or unreasonable because information relied upon by The Agency was withheld or not made available to him in adequate time and, in any event, The Agency relied on assertions which were not real in fact. Mr R also asserts that even if he did make mistakes, those mistakes were not sufficient to justify the termination of his employment.
[14] The Agency position is that, whilst it conceded that the initial termination of Mr R's employment was flawed in that it relied on information not properly provided to him, the second termination of employment decision was properly founded and instituted fairly.
Preliminary Issues
[15] Section 396 requires consideration of specified preliminary issues before the merits of Mr R's application are considered. I am satisfied that none of these preliminary issues apply. Of particular significance in this respect, is the extent to which Mr R was protected from unfair dismissal. In this respect I have noted that Mr R was initially employed from 21 February 2008 to 16 May 2008. However, the effect of the Federal Court Order of 17 March 2009 was to set aside this initial termination of employment decision. Whilst he did not attend work again, by agreement with, or at the instruction of The Agency, Mr R remained an employee until the second termination of his employment, on 9 October 2009. Consequently, his employment was of a duration which was substantially longer than the 6 months specified in section 383 of the Act.
[16] Section 387 states:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.”
[17] Before addressing each of these factors, I have considered Mr R's status as an employee at the time of the termination of his employment.
[18] Consequent upon the 17 March 2009 Court Order, Mr R was reinstated. This meant that, consistent with the 4 February 2008 offer of ongoing employment, he had completed the specified three-month probationary period.
[19] I have considered the extent to which the factors specified in section 387 should be applied so as to consider the overall duration of Mr R's employment or should be restricted to his behaviour during the probationary period.
[20] I have determined that it is the probationary period that is relevant here for the following reasons.
[21] The matter referred to the Federal Court related to whether the 16 May 2008 termination of Mr R's employment as a probationary employee should be set aside. This Order did just that and remitted that probationary employment termination question back to The Agency.
[22] Secondly, the review undertaken by Ms K proceeded as a review of the probationary employment termination decision.
[23] Thirdly, Mr R, who was legally represented at that time, not only accepted this fundamental basis for the review, but sought to ensure that the review remained focused on his actions as a probationary employee.
[24] Fourthly, notwithstanding that he was paid as an employee, Mr R did not actually undertake any further work for The Agency subsequent to the initial termination of his employment. It would therefore be illogical to make an assessment of Mr R’s work, or capacity to do work, over the time from 16 May 2008 to 9 October 2009 in considerations of fairness, as the time following the Court Order was clearly understood by the parties as constituting a review of the initial termination of employment during which Mr R had an opportunity to respond to the employer concerns.
[25] Finally, to now take this time into account would be inconsistent with the concept of a fair go all round, referenced in section 381(2).
[26] As a consequence, I have considered each of the factors set out in section 387 in the context of whether Ms K’s decision of 9 October 2009, to terminate Mr R's employment on the basis that he breached the probationary condition of employment in that his performance and/or behaviour, including attendance had not met the required standard, was harsh, unjust or unreasonable.
Valid Reason
[27] I have adopted the concept of a valid reason as this was set out by North J in Selvechandron v Peteron Plastics 5 in the following terms:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly”.
[28] Mr R was employed on a probationary basis. The probationary terms of his employment offer stated:
“Your engagement is subject to a probationary period. Employees whose work performance and/or behaviour, including attendance, do not meet the required standard during their probationary period will have their employment terminated.”
[29] The relevant policy position adopted by The Agency at that time, established a standard 3 month period of probation. This policy statement required that all prospective employees must be advised of the duration and terms of probation in a written employment offer, and must be informed about the probation process when they commenced work. There is no dispute that this occurred in Mr R's case.
[30] The policy required that the principles of natural justice must be applied whenever performance or conduct issues arose and that where termination of employment during probation is to occur, formal notice of termination must be provided to the employees before the end of the probationary period.
[31] The purpose of the probationary employment is described in The Agency policy in the following terms:
“3. The primary purpose of probation is to allow an employer to assess an employee’s suitability for employment based on the probationer’s performance against the set of duties for the job and the probationer’s conduct. Where the employee’s work performance and conduct meet or exceed the required standards they will continue in their Agency * employment after the end of their probation period. If the employee is found to be unsuitable for the duties, consideration must be given to terminating their employment.”
[32] The policy adopts a number of principles. Of primary relevance to the valid reason consideration are that the requirements of probation must be seen as an integral part of the performance system framework and that employees must receive initial formal feedback no later than 6 weeks after they commenced duty.
[33] While Mr R disputes the cause and the extent of the communication and relationship issues which arose with Ms S shortly after the commencement of his employment, there is no dispute that these issues arose. Similarly, there is no dispute that Mr R was placed on a formal performance improvement programme which he signed on 28 March 2008 and which was reviewed on 3 April 2008 as part of his ongoing discussions with Ms S. Mr R was supported by a mentor, who discussed with him on various occasions, his concerns and relationship with Ms S. Similarly, Mr R accessed The Agency human resource management function for advice over this time.
[34] Consequently, I am satisfied that the probationary employment arrangement operated as part of the performance system. I am satisfied that Mr R had opportunities for counselling and feedback and was clearly aware that, relative to his work performance and relationship with Ms S, termination of employment was possible.
[35] Mr R clearly did not agree with some of the criticisms of his behaviour. However, agreement in this respect is not a prerequisite for compliance with The Agency policy.
[36] Leaving aside issues of process for later consideration, there is nothing inconsistent with the application of The Agency Probationary Employment policy with respect to Mr R.
[37] The behaviour exhibited by Mr R which led to the termination of his employment decision by Ms K was documented in reports provided to her by Ms S, and another Team Leader, Mr V. Additionally, reports were provided by Mr C, who was Mr R's mentor, Ms G, an Assistant Commissioner responsible for Government Relations and Mr D, another senior manager, based in Adelaide.
[38] I have considered all of the advice provided to Ms K by these persons in the context of Mr R's position that the behaviours ascribed to him either did not occur or were such that they did not warrant termination of employment.
[39] I have concluded that Mr R had a variable relationship with his manager, Ms S and that on occasion his communication style and approach were seen by her as offensive. In these respects Mr R's approach to Agency management lacked respect and was inconsistent with the work function allocated to him. A number of Mr R’s work actions were pedantic and inappropriate. These included his approach to time recording, his actions in response to training programs, and were further exemplified by his insistence on special treatment relating to matters such as which diary he used. In general terms, I have concluded that Mr R simply did not get along with his manager and that on numerous occasions he behaved inappropriately and without the respect that The Agency could reasonably have expected from him.
[40] I have concluded that Mr R was aware of The Agency requirements with respect to time recording requirements but that he did not comply with these requirements.
[41] I have concluded that Mr R demonstrated a substandard understanding of The Agency's conflict-of-interest requirements when he sought to retain a capacity to do work which was fundamentally inconsistent with his work role. In this respect I have noted that Mr R disclosed his position in accordance with The Agency requirements and that The Agency was slow and extraordinarily bureaucratically in its response. Nevertheless, Mr R displayed a poor understanding of the legitimate and important conflict-of-interest expectations.
[42] Ms K’s findings of 15 August 2009 and 31 August 2009 lacked specificity but, to the extent that her detailed conclusions of 9 October 2009 replicated and then clarified these findings, I consider them to be made out on the facts available to me.
[43] Ms K also had available to her, information relative to Mr R’s bankruptcy and Court records in this respect. There is nothing to indicate that her conclusions were founded on the bankruptcy issue and I do not consider that this was taken into account in the termination of employment decision.
[44] In order to reach a conclusion about whether Mr R's behaviour represented a valid reason for the termination of his employment during the probationary period, I have reviewed a range of decisions dealing with the concept of probationary employment.
[45] In Ex-Parte Wurth, Re Tully 7, the Supreme Court of New South Wales considered the concept of probation in the context of specific public-sector legislation in the following terms:
“…. An intending applicant for a position in the Public Service is required to undergo a fixed period of testing or trial for the purpose of ascertaining whether he has the necessary qualifications for a permanent appointment, and the word “probation” itself involves the idea of something in the nature of trial and experiment with a view to determining whether an applicant is to be appointed. ….”
[46] This concept of probation has subsequently been broadly adopted by the Federal Court in Busby v Chief Manager, Human Resources Department, Australian Telecommunications Commission and others 8, and again by the High Court in O’Rourke v Miller9. In each of these matters, the Courts considered legislative restrictions on probationary employment which are not relevant here.
[47] The Australian Industrial Relations Commission has broadly adopted the concept of probation as a trial, or testing period before ongoing employment is confirmed. In Sunshine Sugar Certified Agreement 10Munro J considered probationary employment concepts in the context of an obligation to inform an employee about work performance. In that matter His Honour reviewed the decisions I have noted and concluded:
“The right of a probationer, on those authorities, is to expect a bona fide decision by the relevant authority on suitability to continue in employment. There is one main proviso to that right. It is that if any material on which that decision might be adverse to the probationer, then the substance of that material will be made known to the probationer and an opportunity given to the employee to make his response.”
[48] In National Tertiary Education Industry Union and Australian Higher Education Industrial Association 11 a Full Bench of the Australian Industrial Relations Commission stated:
“Full-time employment will be defined in clause 2.1 of the HECE Award as all employment after the other three types of employment are excluded. We have incorporated provision for a period of probationary employment within full-time employment, and not treated probation as a separate fifth type of employment. However, we have linked with probation a requirement to specify the length and terms of the probation, (clause 3.5) and a requirement for the employee to be advised of and given an opportunity to respond to adverse material that may be taken into account in a decision to terminate the employment during probation. We consider that such a condition is reasonably associated with probation as a subtype of employment terminable at the discretion of the employer within the probationary period. The condition will not significantly inhibit the employer's freedom to act on that discretion but it may help to ensure that the purpose of allowing a reasonable period of probation is met in a way that is consistent with what we consider to be a minimum standard for fair and reasonable industrial practice toward employees on probation.”
[49] I have adopted these approaches such that I consider that a probationary employment period is a specified time during which an employer has the discretion to terminate the employment relationship if the employer considers the employee to be unsuitable to ongoing employment. Whilst the obligation on the employer to demonstrate the basis for such a decision may be less than the general obligation, there is no license to apply arbitrary, unfounded or unlawful criteria and there is an expectation that the reasons why an employee will be unsuitable will be established.
[50] There is no doubt that, by definition, most employees are learning about the job and about the employer's requirements over a period of probation. The extent to which this is taken into account will depend on the circumstances, but does not detract from the assessment of suitability in overall terms available to an employer within this trial period.
[51] I have considered Mr R's situation in this context. I have concluded that Ms K’s termination of employment decision was sufficiently grounded on information about Mr R's behaviours and attitudes so as to allow her to make an assessment that he did not suit The Agency as an ongoing employee.
[52] Had this assessment been made with respect to a time outside of probationary employment, more substantive evidence may have been required. However, given that Mr R was on probation over the time in question, I am satisfied that Ms K appropriately concluded that his attitude and behaviour toward Ms S, that his regard to time and absence recording requirements and to The Agency’s conflict-of-interest requirements were such that he was unsuited to ongoing employment. I am satisfied that this assessment, made in the context of Mr R's probationary employment, then constituted a valid reason for the termination of his employment.
Notification of the reason for termination of employment
[53] Mr R was aware of The Agency's reason for terminating his employment on 13 May 2008 when he received Mr M's advice confirming the reasons for the initial termination of his employment.
[54] In August 2009 Mr R received Ms K’s preliminary advice that she considered he had breached the probationary conditions of his employment. Mr R's then solicitor sought further particulars to enable Mr R to properly respond to the termination of employment proposition.
[55] Ms K provided limited advice in response to this. Nevertheless, Mr R provided a comprehensive rebuttal of the broad allegations against him.
[56] The final and detailed advice of termination of employment of 9 October 2009 made it clear that Ms K had reached a decision on the basis of a comprehensive assessment of Mr R’s behaviour as a probationary employee. Ms K concluded:
“30. I am satisfied that Mr R failed to meet the probation condition.
31. I consider that behaviour by Mr R during his probationary employment, did not meet the required standard. As set out in the findings below, I consider that Mr R’s workplace behaviour was inappropriate and did not meet the required standard, as Mr R did not follow management requirements about attendance, leave and time recording and as Mr R was discourteous and disrespectful to his manager Ms S. Overall, I consider that Mr R failed to cooperate with the reasonable requests and requirements of management.
32. I am not satisfied, and I do not make any finding that Mr R’s work performance did not meet the required standard during the probationary period. I am not satisfied that Mr R failed to meet the probation condition relating to performance. I have been unable to assess whether Mr R’s performance during the probationary period met the required standard of an APS 5 level employee because Mr R did not undertake any substantive work during the period of his probationary employment. This was due primarily to Mr R’s status as a registered agent which prevented him from obtaining the necessary level of access to Agency systems. As discussed below, in considering whether or not to terminate Mr R’s employment, I took into account that, by reason of his status as a registered agent, Mr R was unable to establish during the probationary period that his work performance met the required standard.” *
[57] Ms K did not base her conclusions on Mr R's work performance.
[58] I am satisfied that The Agency properly notified Mr R of the reason for the termination of his employment.
Opportunity to Respond
[59] The Agency probationary employment policy position relevantly required that probationary employees must be given a reasonable opportunity to comment on adverse decisions in accordance with the law and the principles of natural justice.
[60] Mr R was given a comprehensive opportunity to respond to the proposition that his employment would be terminated.
[61] Ms K’s advice of 8 April 2009 made clear the process to be followed by The Agency. The advice of 11 June 2009 included the material which she had considered and invited Mr R to respond in writing and to meet relative to disputed issues. Mr R's comprehensive response was forwarded in July 2009. He and his lawyer met with Ms K on 10 August 2009 and were subsequently provided with notes of this meeting.
[62] Following Ms K’s advice of 15 August 2009 where she confirmed that she considered termination of Mr R's employment to be the appropriate outcome, Mr R was given a further opportunity to respond. He did so on 4 September 2009.
[63] On this basis I am satisfied that Mr R was given an adequate opportunity to respond to both allegations about his conduct and the prospect of termination of employment.
Access to a support person.
[64] Mr R was provided with access to a support person in the form of his lawyer, throughout the review undertaken by Ms K.
Warnings
[65] To the extent that the termination of Mr R's employment reflected unsatisfactory performance, I have noted that his performance had previously been the subject of a formal performance improvement programme which noted the possibility of termination of employment, but that, following the institution of that plan, improvements were noted for some time.
[66] More particularly, Mr R was aware that he was a probationary employee and that there was a real possibility that his employment would not continue beyond the initial 3 months. That much is clear from the advice provided to him before and during his employment, and from the initial position he adopted with respect to the relinquishment of his registered Agent status.
Employer size
[67] The Agency is a very large organisation with comprehensive policies.
[68] In terms of the review undertaken by Ms K, I am satisfied that these policies were followed.
Dedicated Human Resource Management Expertise
[69] The Agency had access to substantial human resource management expertise. That this expertise could, or should have allowed issues associated with the initial employment of Mr R, his registered agency status and performance issues to proceed in the manner in which they did, is an efficiency matter for The Agency.
[70] However, in terms of the review undertaken by Ms K, and given that Mr R was paid for this substantial period of time, I do not consider that the ultimate termination of Mr R’s employment was inconsistent with any Agency human resource management policies.
Other matters considered relevant
[71] I have considered a number of other issues in reaching a conclusion.
[72] I have noted that the delay in the resolution of Mr R's employment was substantial. In overall terms, he was paid from February 2008 to October 2009, a total of some 19 months, for less than 3 months work. While this may not reflect well on the efficiency of The Agency, I do not consider it creates unfairness from Mr R's perspective.
[73] I have noted Mr R’s concerns that the mentor allocated to him failed to properly alert him to the negative views about him and his work performance.
[74] On the material before me I am satisfied that Mr C, as Mr R's mentor, provided advice and assistance to him appropriate to this role which was not a managerial function. It was a support function and the evidence before me indicates that Mr C approached it accordingly. While I am satisfied that this support assistance was offered I am not satisfied that Mr R was properly receptive to it.
[75] Mr R asserts he was kept in isolation from other personnel by Ms S and was not allowed access to information which would have assisted him to satisfactorily complete the probationary period. I am not able to discern any unfair treatment of that nature. To the extent that Mr R's continuing registered agent status limited his access to confidential material, this was an issue largely of Mr R's own making in that had he properly appreciated The Agency's conflict-of-interest requirements, he would have relinquished that agency status at the outset to allow normal access to confidential information.
[76] I have considered the extent to which the termination of Mr R's employment was an appropriate or proportionate sanction.
[77] The initial termination of employment decision was made at the conclusion of a probationary period. Leaving aside the process followed, I consider that it reflected the purpose of this probationary employment period as a trial.
[78] Ms K’s review was a review of that initial decision such that I consider it quite properly applied the concept of probation as a trial employment period prior to the establishment of the normal public sector employment protections and benefits.
[79] Mr R had, and took the opportunity to put information to Ms K relative to the effect of the termination of his employment on him personally. His relinquishment of his registered agent status in this respect is significant but, in the context of probationary employment, the decision to terminate Mr R's employment was not inappropriate, even though it undoubtedly had serious negative consequences for him.
Conclusion
[80] Having considered all of these factors, I am not persuaded that the termination of Mr R's employment was harsh, unjust or unreasonable. Mr R's performance as a probationary employee was fairly reviewed by Ms K such that she was entitled to conclude that he was not suited to ongoing Agency employment.
[81] Mr R's application must accordingly be dismissed. An order [PR996827] to this effect will be issued.
SENIOR DEPUTY PRESIDENT
* Identifying references to ‘The Agency’ have been altered.
* Identifying references to ‘The Agency’ have been altered.
* Identifying references to ‘The Agency’ have been altered.
* Identifying references to ‘The Agency’ have been altered.
5 (1995) 62 IR 371 at 373
* Identifying references to ‘The Agency’ have been altered.
7 (1954) 55 SR (NSW) 47
8 (1988) 20 FCR 463
9 (1985) 156 CLR 342
10 P9636
11 Q0702
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