Ncube v Cairns Regional Council
[2022] QIRC 75
•9 March 2022
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Ncube v Cairns Regional Council [2022] QIRC 75 |
PARTIES: | Ncube, Nehemiah v Cairns Regional Council |
CASE NO: | TD/2021/5 |
PROCEEDING: | Application for reinstatement |
DELIVERED ON: | 9 March 2022 |
MEMBER: HEARD AT: | Hartigan IC On the papers |
ORDER: | The application for reinstatement in matter TD/2021/5 is dismissed. |
| CATCHWORDS: | INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – where applicant was on a longer probationary period than the prescribed statutory period – whether the longer probationary period was reasonable in the circumstances – where the applicant was summarily dismissed and was paid in lieu of notice – where employment contract did not expressly provide for payment in lieu of notice – where dismissal was intended to be effective immediately – where dismissal occurred within the probationary period – where longer probationary period is reasonable in the circumstances – where applicant is excluded from the unfair dismissal regime – where application for reinstatement is dismissed |
LEGISLATION: CASES: | Industrial Relations Act 2016 (Qld), ss 315, 316 and 317 Martin v Tasmania Development and Resources (1999) 163 ALR 79 |
Reasons for Decision
The Applicant in these proceedings, Mr Nehemiah Ncube ('Mr Ncube') commenced employment with the Cairns Regional Council ('the Council') on 6 July 2020. Mr Ncube was engaged as a Fleet Workshop Supervisor at the Martyn Street Depot. On 5 January 2021, Mr Ncube was dismissed from his employment.
On 25 January 2021, Mr Ncube filed an application for reinstatement pursuant to s 317 of the Industrial Relations Act 2016 (Qld) ('the Act'), on the basis that his dismissal was an unfair dismissal within the meaning of the Act.
On 1 February 2021, the Council filed a response opposing the application for reinstatement on the grounds that, at the time Mr Ncube's employment with the Council was terminated, Mr Ncube was a probationary employee and therefore excluded from making an application for reinstatement pursuant to s 315(1)(b) of the Act.
The Respondent, in its response, stated that:
The Applicant signed and accepted a letter of offer from Council dated 11 May 2020. The letter provides at clause 6 that the employment is subject to a six-month probationary period from the date of commencement. The Applicant accepted Council's offer with a confirmed commencement date of 6 July 2020. The first day the Applicant would have no longer been in the probationary period was 6 January 2021. Council's decision not to confirm employment was communicated to the Applicant on 5 January 2021 within the probation period, and the Applicant was paid in lieu of one weeks' notice.
The application for reinstatement was the subject of a conference before Industrial Commissioner Knight on 1 March 2021. Following the conference, the parties were engaged in settlement discussions, however ultimately on 28 April 2021, Industrial Commissioner Knight issued a certificate in accordance with s 318(3)(a) of the Act, advising that a jurisdictional question may need to be determined ahead of the determination of the substantive matter.
On 8 November 2021, the matter was listed before me for telephone mention. Following the mention of the matter, I issued directions, requiring the parties to each file in the Industrial Registry and serve on each other, written submissions outlining their position with respect to the jurisdictional question. Submissions were filed by the parties in accordance with those directions.
However, on 6 December 2021, Mr Ncube filed further written submissions outside the scope of the directions issued on 8 November 2021. Consequently, I issued further directions providing the Council with an opportunity to respond to Mr Ncube's further submissions. The Council filed those further submissions on 9 December 2021.
On 9 December 2021, Mr Ncube again filed further submissions outside the scope of the further directions order issued on 6 December 2021.
On 14 December 2021, the Council, by email correspondence wrote to the Industrial Registry in the following terms:
…Council submits that Mr Ncube’s letter of 9 December 2021 again does not comply with the Commission’s Further Directions Order dated 6 December 2021 and is not relevant to the jurisdictional question.
The further submissions filed by Mr Ncube sought to supplement his earlier written submissions which expanded upon his earlier arguments regarding the Council's potential breach of contract but did not add any fresh matters.
On perusal of the written submissions filed, I formed a view that the Council had not adequately responded to the submissions made by Mr Ncube regarding the Council's alleged breach of contract and specifically what the Council's position with respect to that argument was.
Accordingly, on 11 January 2022, I issued further directions that the Council file any written submissions in reply to the matters raised by Mr Ncube after 3 December 2021 by 4.00pm on Friday, 21 January 2022.
The question for my determination is whether Mr Ncube is precluded from the unfair dismissal regime under the Act because he was dismissed whilst still employed during a probationary period.
Relevant legislative provisions
Section 317(1) of the Act states that if it is claimed that an employee has been unfairly dismissed, an application for reinstatement may be made to the Commission for the dismissal to be dealt with under this part.
Section 316 of the Act provides, inter alia, that a dismissal is unfair if it is harsh, unjust or unreasonable.
Section 315 of the Act relevantly identifies employees to whom Chapter 8, Part 2 of the Act do not apply to as follows:
315 Employees to whom this part does not apply
(1)Section 316 does not apply to any of the following –
(a) an employee during the first 3 months of employment with an employer (the probationary period), unless the employee and employer agree in writing that the employee serve—
(i) a period of probation that is shorter than the probationary period; or
(ii) no period of probation; or
(b) an employee serving a period of probation that is longer than the probationary period, if the period decided, by written agreement between the employee and employer before the employment started, is a reasonable period having regard to the nature and circumstances of the employment.
…
Relevant background
Mr Ncube commenced employment with the Council on 6 July 2020 ('the commencement date').[1]
[1] Confirmation of State Date WS 1109 – Fleet Workshop Supervisor (Attachment 3 to Respondent's submissions filed on 16 November 2021).
Prior to the commencement date, Mr Ncube signed a Confirmation of Appointment letter ('the appointment letter').[2] Relevantly, cl 6 of the appointment letter was in the following terms:
[2] Attachment 2 to the Respondent's submissions filed on 16 November 2021.
6. Employment Status/Probationary Period
Your employment status will be full-time permanent and is subject to a six (6) month probationary period from the date of commencement. You will be advised one (1) week prior to the expiry of your probationary period whether or not you will be confirmed to this position in a permanent capacity.
During the probationary period either party may terminate this employment by giving one (1) weeks' notice.
The appointment letter was authored and signed by Mr Andrejic, Chief Executive Officer of the Council and counter signed by Mr Ncube on 14 May 2020, indicating his acceptance of the position and the conditions of employment referred to in the appointment letter. Mr Ncube commenced employment on 6 July 2020. It follows, that the probationary period of six months is from 6 July 2020 to 6 January 2021.
The Council terminated Mr Ncube's employment on 5 January 2021. The correspondence[3] advising Mr Ncube of the termination of employment was in the following terms:
The purpose of this letter is to confirm the termination of your employment with the Cairns Regional Council, effective today.
As set out in your letter of appointment dated 11 May 2018, your employment was subject to an initial probationary period of six (6) months. During your probationary period your suitability for the role of Fleet Workshop Supervisor and performance and progress in the role, was assessed.
Following advice from your Manager, I wish to advise that Council will not be confirming your employment. Council has therefore decided to terminate your employment during your probationary period, effective immediately. The decision to terminate your employment has been made on the basis that various aspect of your performance and suitability for the role are deemed to be unsatisfactory.
[3] Attachment 4 to the Respondent's submissions filed on 16 November 2021.
Contentions of the parties
The Council contends that the termination of Mr Ncube's employment was effective immediately on 5 January 2021 and consequently, fell within the six-month probationary period.
Mr Ncube contends the following matters in support of his position that he is not excluded, by operation of s 315(1)(b) of the Act, from making an application for reinstatement:
(a) the six-month probationary period was agreed upon the premise that both parties would abide by the terms of the agreement; and
(b) the Council has failed to abide by the terms of the agreement insofar as it failed to:
(i)give feedback on performance areas that were below the expected standard on all three formal reviews that were conducted; and
(ii)give one weeks' notice of termination as clearly stated in the contract.
Additionally, Mr Ncube contended that the Council's failure to abide by the terms of the agreement 'invalidates' the six-month probationary period, and, consequently, the notice of termination given by the Council is not within the three-month probationary period required by the Act.
Mr Ncube further argues that the 'letter of offer' that was agreed to by the parties did not agree that payment in lieu of notice acts to absolve the Council from the requirement to advise Mr Ncube one week prior to expiry of the agreed period.
Mr Ncube argues that the dismissal is harsh and unreasonable because, on 24 December 2020, his direct manager discussed the issue of confirming his permanent position and assigned Mr Ncube two new projects to prioritise in the first quarter of 2021.
Mr Ncube contends that the Council should not be permitted to rely on an agreement that it failed to abide by.
The Council contends that Mr Ncube's employment was terminated within the probationary period and is excluded from making an application for reinstatement in accordance with s 315(1)(b) of the Act.
Relevantly, the Council argues that Mr Ncube's employment with Council commenced on 6 July 2020 and his employment was terminated effective 5 January 2021, which falls within six months of his commencement date.
In the Council's supplementary submissions filed on 21 January 2022, it submitted, in summary, as follows:
(a) the employment was terminated within the agreed probationary period; and
(b) the probationary period was reasonable and had been decided and agreed upon in writing prior to the commencement of Mr Ncube's employment pursuant to s 315(1)(b) of the Act.
In response to Mr Ncube's contentions regarding the alleged breach of contract, the Council contended that the effect of the dismissal was to terminate
Mr Ncube's employment at the commencement of the period to which the payment related, that being the payment in lieu of notice.Further, the Council contends that even if there was a breach of the employment contract (which the Council does not accept) then:
(a) such a breach does not affect the date that the Applicant's dismissal took effect; and
(b) the Applicant was provided a payment of a sum equal to the remuneration he would have received during the notice period.
Consideration
The primary issue I must consider is whether s 315(1)(b) of the Act applies to the circumstances of this matter, so as to operate to exclude Mr Ncube from the application of the unfair dismissal scheme.
A related consideration is what effect did the Council's purported termination of
Mr Ncube without notice, together with the payment of an amount equivalent to one weeks' salary, have on the length of the period of employment.The terms of the employment contract with respect to the probationary period are clear and unambiguous. The parties agreed to a period of probation longer than three months, namely a period of six months.
That period was agreed between the Council and Mr Ncube in writing before the employment commenced.
I consider the period of six months was reasonable, having regard to the nature and circumstances of the employment. Relevantly, Mr Ncube was employed at a senior level. The role Mr Ncube was appointed to had responsibilities including to supervise the Fleet Workshop for the Council. This required, amongst other things, effectively managing the Fleet Mechanical and Metal Fabrication Service business. The role required Mr Ncube to report to the Fleet Coordinator whilst a number of employees reported to Mr Ncube including leading hands, mechanics, boiler makers and support staff. Given the responsibilities of the role, I consider a period of six months' probation to be reasonable.
Mr Ncube maintains that the Council did not provide one weeks' notice as required by an express term in the contract. I accept, on the facts, that the Council did not provide one weeks' notice. Instead, the Council made a payment in lieu of notice in circumstances where the contract did not expressly provide for payment in lieu of notice. There are several potential consequences of this conduct.
The first potential consequence is that in issuing the termination letter, the Council sought to summarily dismiss Mr Ncube on 5 January 2021 and sought to treat the payment of a lump sum as compensation to Mr Ncube for loss of wages for the notice period. In this scenario, the Council's conduct, while not providing notice in accordance with the terms of the contract, and in the absence of an express term permitting payment in lieu of notice, may amount to a breach of contract.[4] The payment made to Mr Ncube could potentially equate to a payment on an account of damages. In any event, the relevant issue arising for my consideration is that in this scenario the termination would take place effective on 5 January 2021, which falls within the probation period.
[4] Whether the Council has breached the contract is not a matter under my consideration.
The alternative scenario is that the payment of one weeks' wages for the notice period excuses Mr Ncube from the performance of his duties for the notice period but extends the employment until the expiry of the period for which the payment was made. In this case, the payment was for five days' notice, meaning that the period of employment would be extended to 10 January 2021. If this scenario applies to the circumstances of this matter, the termination would have occurred outside the probationary period and the Commission would have jurisdiction to hear the application.
The case of Martin v Tasmania Development and Resources[5] provides useful guidance on why the concepts of 'notice' and 'payment in lieu of notice' are not 'the same thing' and relevantly states:[6]
…Notice and pay in lieu of notice are not the same thing. As the example of Mr Martin shows, an employee who is given actual notice will often be in a much better position than [sic] an employee who is shown the door, albeit with money in his pocket. The former has the opportunity to make inquiries for new employment from a position of current employment and is saved the distress and humiliation of unexpected and virtually unexplained termination. If TDR had wished to have the right to terminate on payment of salary for the period of notice as well as actual notice, it could have so stipulated, but did not.
[5] [1999] FCA 593; (1999) 163 ALR 79.
[6] Ibid, [54].
The High Court case of Sanders v Snell[7] considered the effect of a payment in lieu of notice where the terms of the contract of employment did not expressly provide for payment in lieu of notice. The majority of the High Court relevantly held:
[16] In terminating the respondent's employment, the Bureau did not act under cl9(a) of the contract of employment. It did not contend at the time of the termination (and has not contended subsequently) that the respondent had been absent from duty without authority or was guilty of misconduct. Rather, it sought to act under cl9(b). Only cl9(a) speaks of payment of salary in lieu of notice. Cl9(b) does not refer to payment of salary in lieu; it speaks only of "two months notice of intention to terminate the employment" being given by either the Bureau or the employee. The contract being cast in these terms, it is not possible to imply in it some term that would permit the Bureau to make payment to the respondent in lieu of notice except in the cases specifically identified in cl9(a) - absence or misconduct. To imply such a term would fly in the face of the express provisions of the agreement . It follows that for the Bureau to terminate the contract of employment under cl9(b) without first giving the notice stipulated in that clause would be a breach of the contract, unless the parties agreed to the contract being terminated in this way.
[7] [1998] HCA 64; (1998) 196 CLR 329.
Having regard to the circumstances of this matter, I have concluded that the Council sought to terminate Mr Ncube's employment with immediate effect on 5 January 2021.
Relevantly, the letter of termination provided to Mr Ncube on 5 January 2021 clearly states that the intention of the Council is to terminate the employment and to be of effect immediately. The Council specifically states that it has 'decided to terminate
[Mr Ncube's] employment during [his] probationary period'. Whilst the Council advised that it would pay Mr Ncube five days in lieu of notice, I consider that such a payment did not operate to extend the employment. Such a view is consistent with the Council's intention to end the employment immediately, as stated in the termination letter.I do not accept Mr Ncube's contention that the failure of the Council to provide notice in accordance with an express clause of the contract renders the six-month probationary period as 'invalid'.
Whilst the failure of the Council to abide by an express term may result in Mr Ncube having an avenue to seek remedies in another court, it does not render the probation period in the contract as invalid.
Conclusion
I have ultimately concluded that the Council dismissed Mr Ncube on 5 January 2021 and that the employment ceased on that day and consequently fell within the probationary period.
Consequently, Mr Ncube is not a person who may make an application for reinstatement by operation of s 315 of the Act.
Order
I make the following order:
The application for reinstatement in matter TD/2021/5 is dismissed.
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