Reynolds v McKenna t/as Aristocut Hair Studio

[1997] IRCA 278

DECISION NO:278/97

INDUSTRIAL RELATIONS COURT OF AUSTRALIA

INDUSTRIAL LAW - Unlawful termination - review of Judicial Registrar's decision - Probationary period

Workplace Relations Act 1996 s 170EA

MAREE ELLEN REYNOLDS v KIM MCKENNA trading as ARISTOCUT HAIR STUDIO

No. AI 1051R of 1996

MOORE J
SYDNEY
28 FEBRUARY 1997

IN THE INDUSTRAL RELATIONS                   )  General Distribution
  )
COURT OF AUSTRALIA  )
  )
ACT DISTRICT REGISTRY  )  No. AI 1051R of 1996

BETWEEN:  Maree Ellen REYNOLDS

Applicant

AND:  Kim MCKENNA trading as
  ARISTOCUT HAIR STUDIO

Respondent

JUDGE:        Moore J

PLACE:        Sydney

DATE:          28 February 1997

ORDER OF THE COURT

THE COURT ORDERS THAT:

1.The orders of the Judicial Registrar be set aside.

2.The application be dismissed

NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE INDUSTRIAL RELATIONS                 )  General Distribution
  )
COURT OF AUSTRALIA  )
  )
ACT DISTRICT REGISTRY  )  No. AI 1051R  of 1996

BETWEEN:  Maree Ellen REYNOLDS

Applicant

AND:Kim MCKENNA trading as

ARISTOCUT HAIR STUDIO

Respondent

JUDGE:        Moore J

PLACE:        Sydney

DATE:          28 February 1997

REASONS FOR JUDGMENT
  (Delivered ex tempore - revised from transcript)

I will endeavour to deal with the matter now and deal with it as briefly as I can but nonetheless elucidating the reasons for forming the view that I have. 

This is an application for a review of a decision by the Judicial Registrar of 17 October 1996.  The decision of the Judicial Registrar was to order that Kim McKenna, trading as Aristocut Hair Studios, pay Maree Ellen Reynolds the sum of $4,680 by way of compensation arising from the termination of Ms Reynolds' employment on 3 June 1996.  In the review I have heard evidence both from Ms McKenna and Ms Reynolds, and an affidavit has been read from a Ms Treloar who was the manager at the relevant time of the hairdressing salon or studio run by Ms McKenna.

Ms Reynolds was employed by Ms McKenna as an apprentice and her employment started on 21 March 1996.  There is no issue, as a matter of fact, that prior to Ms Reynolds commencing employment, there had been discussion to the effect that her employment would be for a probationary period of three months.  Engagement on such a basis is consistent with the provisions of the Vocational Training Act 1989 (ACT). Having commenced employment on 21 March 1996, Ms Reynolds worked and her evidence, which I accept, is that there was no complaint about her employment prior to, at the very earliest the Saturday preceding the time of the termination. As I will shortly make clear, the facts or events of that Saturday are not relevant to the conclusion I have reached as to the manner in which this application should be dealt with.

On 29 April 1996, Ms Reynolds was asked to, and did, sign an agreement.  She gave evidence that she was asked to, and did, read the terms of the agreement.  It is not entirely clear whether she read what is now exhibit A in these proceedings or, in addition, read the back of another document that formed part of exhibit A at the time it was signed, which itself was an exhibit before the Judicial Registrar.  In any event, whether one or both were read is, in my view, of no great moment. 

I say that because both exhibit A and the document that was in evidence before the Judicial Registrar make it plain that, at least prima facie, an employee who is an apprentice is employed on probation for a period of three months.  That is entirely consistent with the arrangement that was reached between Ms McKenna and Ms Reynolds before Ms Reynolds commenced employment. At the time the agreement was signed, Ms Reynolds was told by Ms McKenna that the latter was happy with the work that Ms Reynolds was doing, and also said: "I'd love you to stay on", or words to that effect.  That is the evidence of Ms Reynolds.

Ms McKenna's evidence goes further. She says that: "At that time Ms McKenna said to Ms Reynolds that the period of probation was still on foot and that it would not expire till June." I must say, having regard to the evidence given by Ms McKenna and Ms Reynolds, I would be inclined to prefer the account of events of Ms Reynolds. However, even on her account of what occurred, there was no express discussion of any variation of the probationary period that had been agreed to prior to Ms Reynolds commencing employment. This issue assumes significance in these proceedings because the application bought by Ms Reynolds under section 170EA of what was then the Industrial Relations Act 1988 ("the Act") depends upon her establishing that the termination of her employment was in contravention of provisions of that Act.

However, regulation 30B of the Industrial Relations Regulations denies to an employee the benefit of the relevant provisions of the Act if certain conditions are met. These conditions are, first, that the employee is serving a period of probation, second, that that period of probation has been determined in advance and, third, that that period of probation is reasonable having regard to the nature and circumstances of the employment. I am satisfied that, as a matter of fact, a period of probation was determined in advance. Namely, a period of three months. I am also satisfied, and no argument or submission was put to the contrary, that the period of probation is reasonable having regard to the nature and the circumstances of the employment.

Whilst the provisions of the Vocational Training Act are not decisive in establishing whether the period of probation is reasonable, they plainly have a bearing on the courts consideration of that issue. It is to be noted that the definition of "probationary period" in section 6 of the Vocational Training Act provides that the probationary period is, for a trainee under a contract who is an apprentice, a period of three months unless some other period is prescribed.  There is no suggestion that some other period has been prescribed.

More importantly in the present case, the period of three months was not only a period agreed to but was a period referred to in the agreement that was signed on 29 April 1996 and the terms of which were read by Ms Reynolds. 

I am not satisfied that there was any agreement to either abandon or vary the earlier agreement that Ms Reynolds was employed for a period of three months on probation. That being so, the termination of Ms Reynolds occurred during the period she was employed on probation. The effect of regulation 30B is to deny to Ms Reynolds the benefits otherwise conferred by the Act insofar as it deals with the lawful or unlawful termination of an employee's employment.

It is therefore unnecessary for me to embark upon a consideration of whether the termination was in contravention of the Act, as I have concluded that the employer was not required to effect a termination in a way rendered lawful by the Act because the Act had no application to Ms Reynold's employment at the relevant time. Having formed that view, it follows that the conclusion of the Judicial Registrar is one with which I would not agree and the orders made by the Judicial Registrar proceeded on the basis that the termination of Ms Reynolds was in contravention of the Act. In my view it was not in contravention of the Act simply because the Act had no application to the termination at the relevant time. Accordingly, I propose to order that the order of the Judicial Registrar of 17 October 1996 is set aside and I further order that the application under section 170EA is dismissed.

I should add, by way of concluding remarks, that I derive no satisfaction from making such a decision as I entertain reservations as to whether or not, had the Act applied, the termination of Ms Reynolds was a lawful one. However, the operation of the Act expresses the will of Parliament and the will of Parliament is that employees in the position of Ms Reynolds are not entitled to the benefits otherwise conferred by the Act. I order that the order of the Judicial Registrar of 17 October 1996 be set aside and that the application be dismissed.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.

Associate:  

Dated:     28 February 1997  

Advocatefor the Applicant:             Mr J Garvin    

Ms McKenna appeared in person  

Date of Hearing:  28 February 1997