Sullivan, Christopher v FAB Glass Bathroom Products Pty Ltd
[1997] FCA 592
•20 JUNE 1997
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW - termination of employment - probation - reasonable period - determined in advance - resignation - termination not at the initiative of the employer
Workplace Relations Act 1996 ss.170CC, 170DE(1)
CASES:
Nicholson v Heaven and Earth Gallery Proprietary Limited (1994) 1 IRCR 199
SULLIVAN -v- FAB GLASS BATHROOM PRODUCTS PTY LTD
No. VI-2722 of 1996
Ryan JR
Melbourne
20 June 1997
FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-2722 of 1996
B E T W E E N :
CHRISTOPHER SULLIVAN
Applicant
AND
FAB GLASS BATHROOM PRODUCTS PTY LTD
Respondent
MINUTES OF ORDERS
Judicial Registrar Ryan 20 June 1997
THE COURT ORDERS:
That the application be dismissed.
FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-2733 of 1996
B E T W E E N :
CHRISTOPHER SULLIVAN
Applicant
AND
FAB GLASS BATHROOM PRODUCTS PTY LTD
Respondent
Ryan JR
Melbourne
20 June 1997
REASONS FOR JUDGMENT
(Delivered Ex Tempore)
THE APPLICATION
Christopher Paul Sullivan applied on 8 November 1996 for relief in respect of termination of his employment with the Respondent. He stated in his application that he was a chopper gun operator laminator and that he worked for the Respondent from August 1996 to 7 November 1996. The evidence suggests that he worked for the Respondent from 11 September 1996 to 7 November 1996.
EVIDENCE FROM THE APPLICANT
The Applicant claims that on the morning of the second day of his employment, the general manager, Mr John Moore, abused him and swore at him because he, the Applicant, had noticed and brought to Mr Moore's attention pin pricks in certain spa baths on which he, the Applicant, had worked on his first day. The Court observes that when questioned by the Court the Applicant conceded that Mr Moore had noticed the defect constituted by the pin pricks or pin holes.This is not a matter of moment but it was one demonstration of certain inconsistencies in the Applicant's evidence.
The Applicant states that in October and early November 1996, in the space of a week, he saw five or six people taken through the Respondent's factory. On Wednesday, 6 November 1996, he saw an advertisement in the Sun Herald (exhibit A1) which reads:
“Fibreglass. Experienced chopper gun operator and laminator. Good wages and conditions. Phone 9584 1022.”
He telephoned the number and Mr Moore answered and the Applicant hung up the telephone. The next day, 7 November, he observed more people coming around the factory and asked Mr Moore what was happening and he states that Mr Moore stated that he did not want the Applicant to work for him any more. At lunch-time on that day he, the Applicant, told Mr Moore that he had a migraine and that what Mr Moore had told him had made the migraine worse. He states that he was given permission to go to see a doctor.
At 7.45 am on 8 November he returned to work and was met by Mr Moore at the side gate and Mr Moore said words to the effect, “I accept your resignation, piss off”. He states that Mr Moore refused to accept a medical certificate (exhibit A7) which certificate certifies the Applicant as unfit for work on 7 November 1996 because of migraine. He, the Applicant, said words like, “fine, I will see you in the arbitration”. At about 2.30 pm he picked up his pay but refused to sign a document, (exhibit A3) because a two month's trial period and a statement, “resigned 1 pm, 7.11.96“ were contained therein.
The Applicant also claimed that at no stage had a trial period been mentioned.
EVIDENCE FOR THE RESPONDENT
Mr John Moore represented the Respondent, Fab Glass Bathroom Products Pty Limited. He gave evidence and called evidence from Gordon Fraser Cameron, the Respondent's sales manager, and from James Ferguson, a sales manager with International Products Pty Limited.
On several crucial issues the evidence of Mr Moore, Mr Cameron and Mr Ferguson conflicts with that of the Applicant. Mr Moore and Mr Cameron gave evidence of a practice of requiring new employees in their fibreglass industry to undertake a two month trial or probation period and both state that the Applicant was informed of this at his interview prior to employment.
The Court notes that exhibit A3 was prepared and typed by Mr Cameron at the direction of Mr Moore and that Mr Cameron's evidence is that at his initiative he included the reference to two month's trial period and the two references to “resigned 1 pm, 7.11.96”.
The Court also notes that exhibit A4, an Employment Separation Certificate dated 7 November 1996 and signed by Mrs Edna Moore refers to the reason for separation as “resigned, terms of employment, two month's trial period, paid over award $14.20 per hour for 38 hours week”.
The Court further notes that exhibit A8 is a copy of a Wages Subsidy Agreement obtained by the Applicant from the CES Moorabbin which provides for a 20 week subsidy commencing 11 September 1996 and that provision is made for probation but this has not been filled in in the boxes provided in paragraph 4 of the wage subsidy agreement-form 850.
The Court observes that probation is a very common requirement for employment under wage subsidy agreements and is specifically referred to in the terms and conditions printed on the back of such agreements and that Mrs Moore signed the agreement 10 days after the employment ended.
All three Respondent witnesses gave evidence that at about 1 pm on Thursday, 7 November 1996, the Applicant entered the Respondent's premises and used words as follows. Listed below are the words each witness recalls as the words of the Applicant.
Moore: “I've had enough. Stick the job up your arse. I am leaving.”
Cameron: “I am sick of this place. Stick the job up your arse. I am leaving.”
Ferguson: “I have had this (or had you). I am leaving (or I am going) (or I am off).”
Mr Moore states, and Mr Cameron confirms, that they both were concerned at the amount of sick leave the Applicant had taken in about eight weeks, being, according to Mr Cameron, in the order of six or seven days and that they were concerned about the effect on production.
Mr Moore admitted that he had placed an advertisement in the Sun Herald on 6 November and that he directed Mrs Moore to place a CES vacancy for a chopper gun operator dated 22 October 1996 (exhibit A2). He asserted and Mr Cameron confirmed that the intention was to locate another qualified operator but at the time no decision had been made and no decision was made to terminate the employment of the Applicant.
Mr Moore gave evidence, again supported by Mr Cameron, that the intention was to provide assistance to the Applicant and/or replace him when absent.
FINDINGS
I have concluded that Mr Moore may well have intended to consider termination of the Applicant before the expiry of the alleged probation period and replace him with a suitable operator, if such operator had been located and was available.
However, even if this was Mr Moore's intention it does not follow that he terminated the Applicant's employment on 7 or 8 November. It does not follow that the termination was at the initiative of the employer. This is a classic case of conflict of evidence. As the Chief Justice states in Nicholson v Heaven and Earth Gallery Proprietary Limited (1994) 1 IRCR 199:
“Courts must consistently resolve such conflicts and in civil cases do so on a test of balance of probability.”
The case of Nicholson bears much similarity to this case and I am much assisted by it. I should also add that I have not enumerated or outlined all the conflicts between the Applicant's evidence and that of the three Respondent witnesses but I have taken note of them. In Nicholson in respect of probation the Chief Justice stated at 207:
“Mr Christie emphasised the lack of documentary evidence of a probationary agreement. I quote from his written submission:
‘The Court should be pre-disposed against finding a probationary period in the absence of clear evidence to that effect. It is a drastic step and contrary to the policy of the legislation to entirely deprive an employee of the benefits of the Act on the basis of disputed oral evidence as to the existence of a probationary period. Indeed it is respectfully submitted that an employee should not be deprived of the benefits of the Act by recourse to a probationary period in the absence of clear evidence, preferably documentary. For that reason, in addition to the fact that it is going to the credit of the witnesses mentioned above, the Court is asked to find that there is no probationary period in relation to Mr Nicholson.’
The Chief Justice continues:
“I have some sympathy for this submission. It would have been easy for Mr Holt to send Mr Nicholson a short letter confirming the terms of his appointment including the fact that it was subject to a two month probationary period. Where such an easy step is omitted it is tempting for the judge to say that if employers do not bother to put the terms of the agreement in writing, they ought not to expect a Court to accept that there was an oral agreement for a probationary period. However, lawyers have been lamenting that commercial people often fail to put agreements in writing since time immemorial to little effect. Notwithstanding the failure of the parties to take this obvious step, courts have to take the evidence as they find it, and endeavour to divine the truth. I must resist Mr Christie's invitation to treat the absence of writing as a reason for preferring his case on this issue.”
And I too must resist the invitation to treat the absence of writing as a reason for preferring Mr Sullivan's case over that of Mr Moore in relation to the issue of probation.
I have, in this case, preferred the sworn evidence of Mr Moore and Mr Cameron over that of the Applicant and I have noted the documentary evidence (after the event but referring to probation).
I have also concluded that a period of probation of two months was reasonable and was determined in advance and that Mr Sullivan was an employee within regulation 30B(1)(c) and that that regulation applied and that it follows that he was excluded from the operation of subdivisions B and C of part VIA of the Workplace Relations Act 1996 and that the application must be dismissed.
If I am wrong or for instance, if it were to be held that two months is not a reasonable period of probation, I would still dismiss this application. I am of the view that the Applicant resigned his employment and probably did so because he was angry at the possibility, and I think it was a real possibility, that he would be replaced. If he resigned of his own initiative he is not entitled to notice under section 170DB. Indeed, the Court has no jurisdiction under part VIA in such circumstances. For that second “lack of jurisdiction” I too would be required to dismiss the application. The application is dismissed.
MINUTES OF ORDERS
THE COURT ORDERS:
That the application be dismissed.
I certify that this and the preceding 4 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan.
Associate:
Dated: 1 July 1997
Solicitors for the Applicant: Ms G Capasso
McDonald Murholme
Representative for the Respondent: Mr John Moore
Date of hearing: 20 June 1997
Date of judgment: 20 June 1997
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