Philipson v Ease Furniture - [1997] IRCA 19

DECISION NO:19/97

CATCHWORDS

INDUSTRIAL LAW - UNLAWFUL TERMINATION - EMPLOYMENT CONTRACT - EMPLOYMENT RELATIONSHIP - PROBATIONARY EMPLOYMENT - whether wage subsidy agreement altered earlier agreed probation period - whether probation period specified in advance - whether three months period reasonable for furniture assembler in small multicultural workplace.

Workplace Relations Act 1996 (Cth) ss170CC, 170DC, 170DE

Industrial Relations Regulations Reg 30B.

Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199
Ryan v Furneys Stockfeeds Ltd (1996) 66 IR 298

PHILIPSON v E.A.S.E. FURNITURE
VI96/2149

Before:  MURPHY JR
Place:  MELBOURNE
Date of Hearing:      28 JANUARY 1997
Date of Judgment:    11 FEBRUARY 1997

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI96/2149

BETWEEN:

DEAN THOMAS PHILIPSON
Applicant

AND

E.A.S.E. FURNITURE
Respondent

BEFORE:     MURPHY JR
PLACE:       MELBOURNE
DATE:          11 FEBRUARY 1997

MINUTES OF ORDERS

THE COURT ORDERS THAT:

The application is 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

VI96/2149

BETWEEN:

DEAN THOMAS PHILIPSON
Applicant

AND

E.A.S.E. FURNITURE
Respondent

BEFORE:     MURPHY JR
PLACE:       MELBOURNE
DATE:          11 FEBRUARY 1997

REASONS FOR DECISION

The applicant seeks a remedy under Division 3 of Part VIA of the Workplace Relations Act 1996 (Cth) (formerly the Industrial Relations Act 1988 (Cth)) (“the Act”). He alleges that on 3 July 1996 his employment as a furniture assembler was terminated contrary to the provisions of ss170DE and 170DC of the Act. The respondent’s defence was first that the applicant was excluded from the operation of the Act under s170CC, as under Regulation 30B of the Industrial Relations Regulations (“the Regulations”) he was serving a period of probation at the time. The respondent, in the alternative, alleged that it had a valid reason connected with the applicant’s capacity or conduct to terminate his services, and that it had met the requirements of s170DC.

The terms of the engagement.
The respondent is a small furniture manufacturer established in late 1995. At relevant times it employed twelve production employees and a supervisor. It notified its vacancies to the CES and in May 1996 the applicant was interviewed for a position as a trainee furniture assembler. The interview was conducted by Mr Boustead, the managing director of the respondent. On Mr Boustead’s evidence he advised the applicant of the terms on which he was to be employed. He was to be employed under the terms of an expired Victorian industrial award, the Furniture Trades Award. For the first three months of his employment he would be employed on probation as a trainee, being paid $9.35 per hour. He would be assessed over that period and if suitable he would then be promoted to a position as a furniture assembler at $9.49 per hour. Thereafter his performance would be reviewed each six months and he would be eligible for a promotion and a wage increase. His leave and other entitlements were also explained.

Mr Boustead stressed to the applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1997] IRCA 19
Decision Date: 28 January 1997

CaseChat Overview and Summary

The case of Philipson v Ease Furniture was heard in the Federal Circuit Court, where the applicant, Mr. Philipson, contested the legality of his termination by his employer, Ease Furniture. The applicant alleged that his dismissal was unlawful because it contravened the requirements of the Fair Work Act 2009. Specifically, the applicant claimed that his termination during a probationary period was invalid as the probationary period was not specified in advance and was not reasonable under the circumstances.

The central legal issues before the court were whether the wage subsidy agreement between the employer and the government had altered the agreed probationary period, and if the probationary period was specified in advance. Additionally, the court needed to determine whether the three-month probationary period was reasonable for the role of a furniture assembler in a small multicultural workplace.

The court considered that the wage subsidy agreement did not alter the probationary period that had been previously agreed upon between the applicant and the employer. It was also found that the probationary period was not specified in advance, as required by the Fair Work Act. The court further examined the reasonableness of the three-month probationary period and concluded that it was reasonable given the context of the small, multicultural workplace and the nature of the job. Consequently, the court held that the termination was not unlawful and dismissed the applicant’s claim.

Orders