Rout -V-Actew Corporation (No 1)

[1997] IRCA 263

DECISION NO:263/97

CATCHWORDS

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

Workplace Relations Act, 1996, ss 170EA
Workplace Relations Regulations, regulation 30B

Fisher v The Commonwealth  (1995) 63 IR 401
Nicolson v Heaven and Earth Gallery 126 ALR 233
Potter v Australian Capital Territory  (Moore J. unreported judgment no. 24/ 1997)

Ryan v Furney’s Stockfeeds Limited (1996) 66 IR 298.

IMOGEN MARY ROUT -V-ACTEW CORPORATION (NO 1)

AI  1014 of  1997

CORAM:      LINKENBAGH JR
PLACE:        CANBERRA

DATE:           9 MAY 1997

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY  NI  1014 of  1997

IMOGEN MARY ROUT
Applicant

ACTEW CORPORATION
Respondent

Coram:         Judicial Registrar Linkenbagh
Place:  Canberra
Date:             9 May 1997

REASONS FOR JUDGMENT (NO.1)

Delivered ex tempore and revised from the transcript

The Court proposes to determine as a preliminary issue the question raised by the Notice of Motion filed on 5 May 1997 supported by an affidavit of Graham Hilton Campbell, sworn on 2  May and filed on 5 May 1997.

The issue raised by the Notice of Motion is the question of whether the Application under Section 170 EA of the Workplace Relations Act, 1996 is excluded by the provisions of Regulation 30B of  the Workplace Relations Regulations because the applicant was serving a period of probation.  Regulation 30B(1)(c) provides  that an employee is excluded from the operation of the unlawful termination provisions of the Act if the employee was 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, is determined in advance and is reasonable having regard to the nature and circumstances of the employment.

The parties in this case concede that the relevant maximum duration of the probation period was 12 months and that that period was determined in advance.  The respondent is a Statutory Corporation and the coverage of the applicant's employment by the relevant legislation applicable to employees of the respondent are set out concisely in the affidavit of Mr Campbell.

The dispute between the parties is as to whether or not the period of 12 months was reasonable, having regard to the nature and circumstances of the employment.  The meaning of those words was  considered by  this Court in Nicolson v Heaven and Earth Gallery 126 ALR 233. Chief Justice Wilcox gave some examples of matters which might properly be taken into account in considering the application of the regulation to particular employment circumstances. One of the matters he identified was that the nature of the employers' undertaking and its size and location could be considered. In Potter v Australian Capital Territory which is a decision of Justice Moore, (unreported judgment number 24 of 1997), his Honour summarised the law as it stands in relation to the meaning of regulation 30B(1)(c)(ii).  His Honour referred to the decision of Wilcox CJ in Fisher v The Commonwealth (1995) 63 IR 401 and noted that the parts of the Chief Justice's decision to which he referred were not challenged in the appeal to the Full Court in that matter. Wilcox CJ was of the view that it is not possible to justify a probationary period of two years in relation to a base grade Administrative Service Officer, that is, a clerk. The question in this case is whether it is possible to justify a period of one year in the circumstances of this employment.

Moore J noted that the maximum period in Potter's case was:

No doubt determined to accommodate the appointment of officers to all levels of the Australian Public Service, including more senior levels.

and that the purpose of a period of probationary employment is to provide for a period in which an employee can be trained to do the work and in which an assessment can be made of their aptitude and capacity to do the work once the employee is trained or partly trained. That statement is taken by Moore J from Ryan v Furney’s Stockfeeds Limited (1996) 66 IR 298.

Moore J notes that the nature of the requirement to consider the nature of the employment is a reference to the type of work involved in the employment and that the expression is sufficiently wide to comprehend consideration of circumstances personal to the employee, including his or her state of health as they related to the employment and the probationary employee's capacity to do the work.  In the case of Potter, his Honour found that a period of two years was reasonable because of circumstances peculiar to Ms Potter, being her state of health.

In the present case the applicant first commenced work with the respondent on 17 April 1995.  She was employed as a Trainee under a scheme administered by an authority other than the respondent, but worked on a full time basis in a clerical capacity with the respondent.  The traineeship was for an initial period of six months and was extended for a second period of six months.  During that second period the applicant was offered permanent full time employment as an Administrative Service Officer Class 2/3.  The applicant was then aged 18 years and she took up the offer of full time employment, commencing on 25 January 1996.  That is the relevant date for assessment of the reasonableness of the probation period under regulation 30B.

At that stage there were two significant factors.  One was that the applicant had worked as a trainee for several months and the respondent must have  had in that time, ample opportunity to assess the applicant's performance in a clerical capacity. The second significant factor is that the respondent offered the applicant the full time employment, and one can only presume that that was because of its assessment of her performance during the period in which she was a trainee.  This is not a case where an employee comes afresh to the respondent's workplace and the respondent has no knowledge of the employee's personality, aptitude or capacity to fulfil the duties of the position.

That is not to say that it would not have been reasonable to have some period of probation.  The question that the Court must determine is whether a period of 12 months was, in those circumstances, a reasonable period.  The respondent argues that the 12 months period arises under the legislative provisions which apply to its employees, and that being essentially a Public Service organisation, the provisions should apply uniformly to all employees.  The respondent also argues that the provisions relating to the probationary period had their history in the history of the Australian Capital Territory Public Service and that that is a factor which should be taken into account following the advice of Wilcox CJ in Nicolson’s case.

Whilst that argument is understood by the Court, it is the duty of the Court to apply the provisions of regulation 30B and the Court is bound by the wording of those provisions.  Certainly it would be understandable that it might be advisable for a probationary period for employment in the public sector to be longer than that in the private sector, but that could only ever be seen as a very, very general proposition.

In all of the circumstances, this Court is of the view that a period of 12 months was not reasonable in relation to this employment and the applicant is therefore not excluded from bringing her application by the provisions of regulation 30B.  The court will now proceed to the hearing of the substantive application.

I certify that this and the preceding 2 pages are a true copy of my Reasons for Judgment

Judicial Registrar Linkenbagh

Date:              26 August 1997

Solicitor for the Applicant:             Mr J Bundock
  Hanstein Stacy and Nyman

Representative of the Respondent:  Ms D Evans