Nunn v Calliope Shire Council

[1996] IRCA 260

DECISION NO: 260/96

CATCHWORDS

INDUSTRIAL LAW  - TERMINATION OF EMPLOYMENT - ALLEGED UNLAWFUL TERMINATION  -  PROBATIONARY EMPLOYEE

INDUSTRIAL RELATIONS ACT  1988 , s170EA

Industrial Relations Regulations, reg 30 B(1)(c)
Queensland Local Government Officers Award 1992

VICKI SUE NUNN  -v-  CALLIOPE SHIRE COUNCIL

QI 95/1268

BEFORE:   BOULTON JR

PLACE:     BRISBANE (HEARD IN ROCKHAMPTON)

DATE:       14 JUNE 1996    

IN THE INDUSTRIAL RELATIONS             )
COURT OF AUSTRALIA  )                  No. QI  95/1268
QUEENSLAND DISTRICT REGISTRY

BETWEEN:  VICKI SUE NUNN

Applicant

AND:  CALLIOPE SHIRE COUNCIL

Respondent

BEFORE:           BOULTON JR

PLACE:             BRISBANE (HEARD IN ROCKHAMPTON)

DATE:                 14 JUNE 1996

THE COURT ORDERS THAT:

1.The application be dismissed.

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

IN THE INDUSTRIAL RELATIONS             )
COURT OF AUSTRALIA  )                  No. QI  95/1268
QUEENSLAND DISTRICT REGISTRY

BETWEEN:  VICKI SUE NUNN

Applicant

AND:  CALLIOPE SHIRE COUNCIL

Respondent

BEFORE:           BOULTON JR

PLACE:             BRISBANE (HEARD IN ROCKHAMPTON)

DATE:                 14 JUNE 1996

REASONS FOR JUDGMENT

On 4 June 1996 I ordered that this application be dismissed.  What now follows are my reasons for so doing.

Background:

The applicant is now 33, having been born on 14 June 1963.

She answered an advertisement placed by the respondent in The Gladstone Observer on 11 February 1995 for the position of Trainee Technical Officer in the respondent's Mapping and Property Section.  Conditions of employment were expressed to be in accordance with the Queensland Local Government Officers Award.

The applicant was successful in her application.  The respondent confirmed her appointment by letter dated 30 March 1995.  Her employment was expressed to commence from 18 April 1995.  That letter also stated, "In line with Council's normal practice, this appointment is probationary for a period of three (3) months with a progress assessment review at four (4) week intervals, at the end of which your continued appointment will be re-assessed."

The applicant duly commenced her employment on 18 April 1995.  According to her evidence, her employment was terminated on 9 May 1995, she being told late on that day that her job no longer existed.

Issue:

The respondent relied on the provisions of reg 30B(1)(c) of the Industrial Relations Regulations which reads as follows:

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.

It was submitted that the applicant was serving a period of three months' probation, that the duration of that period was determined in advance, and the duration was reasonable, having regard to the nature and circumstances of the employment.

It was common ground between the parties that the duration of the period of probation was determined in advance.  The respondent focused attention on whether or not the period was reasonable.  It pointed to clause 27 of the Local Government Officers Award 1992 (the Award) which bound the parties, and which provides:

(a)Appointments to all positions shall be initially for a three month probationary period.

The respondent submitted that evidence of the reasonableness of the nominated period was the fact that the unions representing workers whose employment was governed by the award must have agreed to the period, before its adoption.

The responded called evidence also from a Mr Vincent, the Industrial Relations Manager with the Local Government Association of Queensland for the last three years.  He was involved in the negotiations which led to the making of the Award.  He confirmed that the two unions involved in the negotiations agreed to the insertion of clause 27.  Prior to the Award which came into operation from the beginning of the first pay period which commenced on or after 1 June 1992, there was no provision comparable with clause 27(a).  However, Mr Vincent stated that since 1979 it was standard practice in this area of employment for periods of probation of three to six months to be stipulated.

The respondent called evidence directed to the nature of the duties required of the applicant.  I am satisfied that her position was not some low grade clerical job.  There is in evidence a job description relative to her duties, which relevantly reads:

1.Title:  Assistant to the GIS Co-Ordinator/Rates Clerk with regard to the following:

GIS Section:

Objectives of Position:

Administration, Maintenance and Development of existing GIS system (Geographic Information System).

Daily Work Tasks:

Update the Shire DCDB according to new subdivisions (land parcel changes, services ie water/sewerage/power/telephone), Lands Department or Mines Department advice.

Ensure that the link to the MUNICS Rating System is accurate.

Inputting of survey information as required by Engineers.

Correction of existing data as needed.

Extraction of data as requested by other Departments within Council; by the public; by other Government Departments.

Ratings Section:

Objectives of Position:

Administration and Maintenance of Council's Rating System.

Daily Work Tasks:

Update Land parcel details according to new subdivisions; advice from other Government Departments.

Recording of Water meter connections.

Pro Rata Rates Levies - according to new water connections; new houses; change of valuations etc.

Correction/evaluation of current data to prepare for next years rates run.

Ms O'Brien was the employee the applicant was appointed to assist.  In her opinion, it would take a year for someone performing the applicant's duties to properly learn how to carry them out.

I accept the respondent's evidence.

Taking into account the evidence of Mr Vincent and Ms O'Brien, the terms of the Award and the job description of the applicant's position, I conclude that the period of three months' probation was reasonable.

The applicant sought to meet the respondent's point by arguing that a distinction ought to be drawn in the application of reg 30B(1)(c) dependent upon the reason for termination of an employee's employment. I can find nothing in the Act or Regulations which lends support to this submission, and I reject it.

The application must be dismissed, the applicant being excluded from those provisions of the Act upon which she relies.

The respondent sought an order for costs against the applicant, it having by letter dated 9 May 1996 to her solicitors warned of the point upon which it was relying and expressly stating it would seek costs against her should the point be upheld at trial. On balance I am persuaded, albeit only marginally, that it was not unreasonable for the applicant to institute the proceedings, if only to oblige the respondent to prove the reasonableness of the duration of the period of probation to which her employment was subject. I reach this conclusion despite the stance taken by the applicant's counsel to the interpretation and applicability of reg 30B(1)(c). There will be no order for costs against the applicant.

Order:

I order that the application be dismissed.

I certify that this and the preceding FOUR (4) pages are a true copy of my Reasons for Judgment.

Judicial Registrar:

Date:  14 June 1996

Counsel for the Applicant:  Mr Costello

Solicitors for the Applicant:  Louise M. Knox

Counsel for the Respondent:  Mr Murphy

Solicitors for the Respondent:                   Freehill Hollingdale & Page

Date of hearing:   4 June 1996

Reasons for judgment:  14 June 1996