Thomas Fischer and Commonwealth of Australia and Department of Social Security
[1994] IRCA 76
•25 Oct 1994
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA NI No.367 of 1994
SYDNEY DISTRICT REGISTRYBETWEEN:
Thomas FISCHER
ApplicantAND:
COMMONWEALTH OF AUSTRALIA
First Respondent
DEPARTMENT OF SOCIAL SECURITY
Second RespondentMINUTES OF ORDER
25th October 1994 TOMLINSON JR
THE COURT ORDERS THAT:
1.The Motion by the Respondent be dismissed
2. The Application by the Applicant be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA NI No.367 of 1994
SYDNEY DISTRICT REGISTRYBETWEEN:
Thomas FISCHER
ApplicantAND:
COMMONWEALTH OF AUSTRALIA
First Respondent
DEPARTMENT OF SOCIAL SECURITY
Second RespondentReasons For Judgment
25 October 1994
Tomlinson JRBy application dated 8 June 1994 Thomas Fischer under Section 170 EA of the Act claimed:
1.an order declaring the termination of the employee’s employment contravened Division 3 of Part VIA of the Act.
2. reinstatement
3. compensation
4.such other orders as would restore the applicant to the same position he held before the termination.
The applicant was employed as a clerk by the Commonwealth of Australia (First Respondent) in the Department of Social Security (Second Respondent).
Mr Fischer wished to enter the Public Service and so sat for the Public Service entry examinations in the middle of 1992 and attained sufficient marks to be put on the Public Service Recruitment Officer List. He then went for several interviews with different departments, one of which was conducted by Ms Naomi Robinson and Mr Martin Glenn on behalf of the second respondent. As a result of that interview the applicant started working with the second respondent on 8 February 1993 as a clerk. He was terminated on 15 June 1994.
By affidavit pursuant to Order 75 Mr Con Ktenas, Principal Solicitor employed by the Australian Government stated that he had carriage of the matter on behalf of both respondents and submitted that the Court lacked jurisdiction to hear the applicant’s case due to Section 170 CC of the Act and Regulation 30B(1)(c).
At the hearing of the matter the respondents indicated to the court that it was important to them to obtain a reasoned decision and so the parties were invited to make written submissions in relation to the evidence taken. Accordingly the issues raised will be dealt with now in some detail.
The affidavit of Mr Con Ktenas provided inter alia:
“3.The applicant was appointed to the Australian Public Service on probation pursuant to S. 42 of the Public Service Act 1922 (Commonwealth).
4. Three Probationer Reports were prepared on 15 May 1993, 13 September 1993 and 21 March 1994 respectively.
5. The Probationer report dated 21 March 1994 recommended the annulment of the applicant’s employment pursuant to S.47(11) of the Public Service Act 1988.
6.The reasons given on behalf of the respondents for the respondents’ decision to terminate the applicant’s employment are contained in a letter dated 1 June 1994 from the Personnel Manager, Department of Social Security, Area Sydney Central. This letter gives 29 reasons for the respondent’s decision to terminate his employment including, inter alia, the probationary reports, medical certificates, a counselling report by Mr Glenn Smith dated 3 May 1993, a complaint made by a staff member dated 28 February 1994 and information contained on the personnel file......
7.The decision to annul the applicant’s appointment took effect on 15 June 1994.
8. In my respectful submission the first and second respondents to (sic) not concede that the applicant is entitled to any of the relief sought because of the effect of S.170 CC and the Regulation 30B(1)(c).
9.In my respectful submission the first and second respondents contend that the alternative available remedy is under Regulation 83 of the Public Service Act 1922 and also under Regulation 84 of the Public Service Act 1922 to the Merit Protection and Review Agency. The applicant lodged a claim on 8 June 1994 with that Agency.”
By Notice of Motion filed 28 July 1994 the Respondent moved that the application be dismissed.
At the Directions Hearing of the matter on 8 September 1994 the Notice Of Motion was listed to be dealt with on 20 September 1994. By letter dated 14 September the respondents were advised in light of a recent decision of His Honour Mr Justice Northrop it would be incorrect to allow the issue of whether the applicant was employed on a probationary basis to be determined in advance of the trial and so the Directions were varied so that the whole of the matter would be dealt with on 29 September 1994.
At the hearing of the matter the applicant represented himself and the respondents were represented by Mr Godwin from the Australian Government Solicitors office. The respondent argued that the applicant was a probationer and further that he was a probationer for a term, the maximum period of which was fixed in advance and which was reasonable. Additionally it was argued that the applicant was still on probation when he was terminated. Mr Godwin stated in support of the Notice of Motion the respondent would be calling two people who interviewed the applicant and also evidence would be provided as to the various letters sent to the applicant and the instruments that were signed at the time of the appointment.
Section 170 CC of the Act provides as follows:
“The regulations may exclude specified employees from the operation of specified provisions of this Division. An exclusion has effect only if:
(a)it is permitted by paragraph 2 of Article 2 of the Termination of Employment Convention; and
(b)it is limited in such a way as to provide adequate safeguards as mentioned in paragraph 3 of that Article.”
Regulation 30B provides:
“EMPLOYEES EXCLUDED FROM REQUIREMENTS FROM TERMINATION OF EMPLOYMENT
30B(1) [Excluded employees] For the purpose 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)employees 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.”
The application was considered and it was determined that the issues raised by the respondent were matters of defence and not preliminary in nature. Further, that as the applicant was unrepresented and the matter had been fixed for hearing, determination of the issues raised by the respondent would only involve the re-canvassing of much of the evidence.
The Notice of Motion by the respondent was founded on the premise that the applicant remained a probationary employee. In accordance with the earlier ruling the court began to hear the matter in toto and determined that if appropriate a ruling would be handed down during the course of the hearing dealing with the jurisdictional issues raised by the respondent’s application. The matter was heard to the end of all evidence as it became apparent that the jurisdiction issues involved questions of fact which could only be provided by the witnesses.
The court heard evidence from:
·Mr Thomas Fischer, the applicant.
·Ms Naomi Robinson , former Personnel Officer Department of Social Security.
·Mr Martin Glenn, former Regional Manager of the Chatswood office of the Department of Social Security.
·Mr Glenn Smith, Regional Manager Department of Social Security.
·Mr Ken Anderson, former Manager Area Sydney Central, Department of Social Security.
It was common ground between the parties that the applicant began work at the Marrickville regional office of the Department of Social Security on 8 February 1993 as an ASO 1 - an Administrative Services Officer.
On behalf of the respondents Mr Robinson gave evidence that that her duties included interviewing prospective employees of the public service and that on the day the applicant underwent his interview she conducted a great many interviews. She stated however that she particularly remembered the interview with the applicant as he was unemployed at the time and gave every appearance that he was ready and willing to perform any task allotted to him and that he was most eager to commence. Prior to that the applicant had passed the necessary public service exams and had been adjudged suitable for employment. Under cross-examination the respondent put it to the applicant that on 16 December 1993 he was interviewed for the Department of Social Security by Ms Naomi Robinson and Mr Mark Glenn and at that time he was told :
“if you are appointed it will be initially for a minimum period - initially on
probation for a minimum period of six months.”
The applicant replied that he could not remember what he was told at that interview and it is noted that the verbal advice differs from the written notification subsequently received by the applicant from the respondent. On behalf of the respondent Ms Robinson stated:
“In late 1992 and early 1993 I was employed in the personnel section of the Sydney Central Area Office of the Department of Social Security. I recall that I conducted the interview with (the applicant) - here is the checklist I completed during that interview. On page 2 of that checklist, I have ticked the space alongside the words ‘Explain probation annulment process.’ ”
The court also heard from Mr Mark Glenn who conducted the preliminary interview with Ms Robinson concerning the applicant. In an affidavit dated 22 September 1994 Mr Glenn stated:
“10.Although I have no specific recollection of Naomi Robinson giving the outline of conditions of service applicable to Commonwealth Public Servants to Mr Fischer, it is my recollection that she gave similar explanation to each applicant.
11.To the best of my recollection, Naomi would explain the provisions relating to leave or flex time and then brief overview of promotion and higher duties based on merit ( I covered this with some candidates).
Naomi would then explain the probationary process in words to the following effect:
“Progress will be reviewed by written report at 3 and 6 months. If any problems wit the probationer’s progress were identified, the supervisor in consultation with the probationer would determine what action was necessary to over come the problem. If at 6 months the probationer’s progress was satisfactory, a recommendation for permanent appointment would be made. If the probationer’s progress at 6 months was not satisfactory the probationary period may be extended or depending on the circumstances, a recommendation to annul might be made”.
Naomi would then ask:
“Have you served in the Armed Forces?”
“Do you have any criminal conviction?”
“Do you have any physical impairment which would make it difficult for you to use screen based equipment?”
Mr Glenn was unable to tell the court how long probationary periods usually lasted and it is clear that Mr Glenn’s role in the interview role was secondary to that taken by Ms Robinson.
I am satisfied it is probable that during the course of the interview that occurred on 16 December 1993 between the applicant, Ms Robinson and Mr Glenn the term “probationary employment” would have been used. It remains now to determine the applicability of Section 170CC and Regulation 30B (1) (c).
Evidence was given on behalf of the respondent by Mr Glenn Gary Joseph Smith, the Regional Manager of the Department of Social Security and who has been so since 10 August 1992.
The evidence of Mr Smith is similar to that provided by Mr Ken Anderson and will be dealt with later.
The applicant stated on the day he began work, on 8 February 1993, he was “given forms to sign” and he provided a copy of those forms. One of the forms was headed Application For Employment Form and was dated 8 February 1993 which nowhere referred to the applicant’s employment as being probationary. On that date the applicant also signed the first-named respondent’s Consent To Obtain Personal Information form, the Relocation Acknowledgment form and the National Staff Induction form. None of those forms at any place used the words probationary employment.
One of the forms was the Temporary Employment Acknowledgment form and stated as follows:
“TEMPORARY EMPLOYMENT ACKNOWLEDGMENT PENDING PERMANENT APPOINTMENT
I understand the temporary nature of my employment and
(a) I acknowledge that I have been employed in a temporary capacity as an ASO 1 from 8.2.93 pending completion of pre-appointment checks and
(b) This temporary employment will cease upon
1.Permanent appointment
2.Should pre-appointment checks prove unsatisfactory
3.Should my service be unsatisfactory
(sgd) Thomas Fischer
8.2.93”
The applicant argued that form at no place mentioned the word “probation.”
The applicant in his evidence in chief stated that on 19 March 1993 some six weeks after he commenced work with the respondents, he received a letter from Ms F Go, Assistant Personnel Officer Area Sydney Central which read as follows:
“Dear Mr Fischer
I am pleased to advise you that you have been appointed to the Australian Public Service as an Administrative Service Officer Class 1 with this Department.
2.Confirmation of your appointment is subject to a six months Probationary period during which your conduct, work performance and medical fitness will be assessed. If the required standard has not been met at the completion of the six months service, the probationary period may be extended up to a total period of two years. If your conduct or work performance are considered unsatisfactory or you do not meet the required medical fitness standard, your appointment may be annulled.
3.Further details of your conditions of service, obligations as an officer and required performance standards are provided in your Handbook for Probationers.
4.Arrangements have been made for you to be medically examined at 8.30 am on Wednesday 31 March 1993 by the Commonwealth Medical Officer at the location specified on the enclosed Medical Report Form. IF FOR ANY REASON YOU CANNOT ATTEND THIS EXAMINATION (sic) please contact Lynette Tindall on 369-0465 beforehand to make another appointment.
5.Please find attached Form SMI and take it to the examination with you. You should read the instructions on the form carefully and then complete in ink Sections 2, 3 and 4 inclusive, found on Pages 2 and 4 of the form, in your own writing prior to the examination.
6.Please DO NOT SIGN the Declaration on Page 4, Section 5 until you are instructed to do so by the examining Medical Officer.
7.The Department of Social Security is an equal opportunity employer and actively supports the principles of industrial democracy. For further information on these topics, please refer to your Handbook for Probationers.
8.Details of your permanent appointment are attached. I wish you a successful career in the Australian Public Service.
Yours sincerely
F Go
Assistant Personnel Officer
Area Sydney Central.”
The applicant argued that that letter was the first time he had heard the word “probation” and there was no evidence presented by him that he clearly understood the implications of the terminology.
The Macquarie Concise Dictionary (second edition) defines “ temporary” as: “lasting, existing, serving, or effective for a time only.” The same dictionary defines “probationary” as: “the adjective probation” and that probation means: “the act of testing; the testing or trial of a person’s conduct, character, qualifications, or the like; the state or period of such testing or trial.” In favour of the applicant it can be stated that his employment could therefore become permanent simply with the effluxion of time.
I find that use of misleading terminology in the employment documents together with the unclear letter to the applicant from Ms F Go had the result of making the status of the applicant’s employment far from clear. Nothing in the employment forms mentioned probationary period of employment, and the confirmatory letter from Ms F. Go adds to the confusion The first paragraph of that letter begins by advising the applicant of his appointment to the public service. To my mind that first paragraph governs the tenor of the letter rather than the following second paragraph which speaks of confirmation of employment being subject to a probationary period. From the information presented by the applicant to the court I am of the view the applicant is entitled to view his employment as more permanent than probationary at that point of time.
The letter from Ms F Go refers to a probationary period of six months with a possible extension up to two years. I am of the view that this period of time is far too long for any employee to be on probation. If the probationary employment is unsatisfactory the employee must then leave the organisation and attempt to find employment elsewhere. Accordingly it is my view that the longer an employee is on an unsuccessful probationary employment exercise, the more disadvantaged that employee will be when the time comes for him to relocate to another job.
In the mind of a subsequent employer, it is likely that an impression would be created that any deficiencies that an employee may possess which were not immediately discovered by the previous employer they will be of a more serious nature given that such deficiencies provided reasons for the previous employer to annul the probationary employment and terminate the employee. Through no fault of the employee, he or she stands likely to be disadvantaged because of a careless work practice of the former employer.
As a result of his troubles with his employment, the applicant obtained access to his personal file. It seems that there he became aware of certain internal memoranda. It is noted that the letter from Ms F Go to Mr Fischer refers to probationary reports to be prepared at regular intervals.
The applicant argued that the lateness of the reports together with the failure to advise him of the results of the medical examination in March were breaches of regulations and staff policy. It was put to Mr Fischer on several occasions that the length of time that he was engaged as a probationary employee could only work in his advantage as he was given more opportunity to rectify any mistakes. The applicant strongly disagreed with this suggestion on each occasion and was of the view that the breaches in the regulations disadvantaged him substantially in that he was not aware of comments of his superiors concerning his poor performance and medical disabilities all of which combined to work against him.
The applicant read a memorandum from Ms Bronwyn Black, from the personnel section of the second respondent, to his supervisor. Mr Fischer indicated to the court that that memorandum stated:
“He has submitted a medical certificate stating that his back injury... and his six - month probationary report was due on 6.8 (August) and is now two months overdue. Please make a recommendation on the three month probationary report. Please see me if any problems.”
According to the applicant this note was dated the 15 October 1993. Further on, presumably in the file of the applicant, the applicant stated that there was a note saying:
“Urgently requests six months probationary report which is now three months overdue, and also a nine months report.”
The applicant told the court that there was a letter from a B Pain, Assistant Personnel Officer, addressed to Mr Gary Smith which provided:
“For your information, Mr Fischer’s six month probationary report is urgently requested as it has not yet been received. If the report is unable to be sent to Personnel prior to the medical appointment, please contact Steve Smith.”
The applicant read to the court a further file note from his file which stated in part:
“Mr Fischer should have attended a second medical about late July, early August. Due to an oversight, this was not followed up, nor was Mr Fischer advised that he had not passed his first medical. Mr Fischer’s three month report was due on 8 May but was not received until 19 July 1993. The six monthly report was due on 8 August 1993 and not received until 10 November 1993. Mr Fischer’s nine monthly report is now due.”
It is my opinion that there has been a failure by the respondents to act fairly towards the applicant and to treat his probationary period of employment according to the prescribed rules and regulations. There is nothing to suggest that he could not have had salary rises and promotions with the organisation whilst still a probationary employee. I find this to be an undemocratic and unsatisfactory situation as it would appear that the applicant has everything at risk and the respondent is able to take its time and interpret its rules according to circumstances at the time.
In her evidence Ms Robinson stated that an instrument of appointment was executed by her and was however not forwarded to the applicant. The applicant obtained access to the document when he obtained his personal records from the respondents. The instrument of appointment provided:
“Public Service Act 1922
Instrument of Appointment under Section 42
NAOMI DAWN ROBINSON, the Officer for the time being occupying an office to the occupant of which the Secretary has, by instrument in writing under Sub-section 18(3) of the Public Service Act delegated its powers and functions under Section 42 of that Act hereby appoint THOMAS FISCHER as Administrative Service Officer, Class 1 unattached, Department of Social Security, New South Wales with a salary of $20877 pa with effect from the date of this instrument or the date of commencing duty whichever is the later
(sgd) Naomi Dawn Robinson
Delegate of the Secretary
DATE: 8 February 1993.”
This document I find to be central to the employment of the applicant. The court heard evidence that it is not the policy of the respondents to forward an instrument of appointment to a prospective employee. I can see no logical reason for this and it is noted that in the case of Mr Fischer he was able to obtain access to his personal file and so gained access to the document. The document served only to confuse the matter further. No where does the term probationary employment appear.
Section 42 of the Public Service Act provides:
s.42
(1)Subject to this Part, the Board may appoint a person to a particular office in the Service (not being an office of Secretary) or as an unattached officer in the Service.
(2)An unattached officer appointed under subsection (1) shall have such classification as the Board determines to be appropriate to his duties.
(3)A person shall not be appointed as an unattached officer unless he is qualified for appointment to an office having a classification corresponding to his classification as an unattached officer.
Appointment of certain continuing employees.
s.42(A)
(1)Where the Prime Minister, by notice in the Gazette, declares that this section applies to a specified class of persons employed under section 82AC, the Board may appoint to an office in the Service (other than the office of Secretary) a person included in that class.
(2) An appointment of a person under subsection (1) may be made:
(a) on probation or otherwise;
(b) in accordance with such procedure (whether or not complying with paragraph 33 (1) (a) as the Board thinks fit; and
(c) whether or not the person is ineligible for appointment by reason of section 34.”
The applicant argued that Section 42 simpliciter does not mention probationary appointment. I am of the view that the document should have been worded more carefully by the respondent so that it accurately reflected the true position - in this case that the employment which was under offer was not permanent in nature. I am of the view that the correct section of the Public Service Act should have been referred to, and perhaps even reproduced in the instrument itself.
The court was told by Mr Fischer that he attended the medical appointment and the first probationary report which should have been produced within three months of the his commencing work was not produced until some six months after he commenced work.
That report was handed to him by Mr Glenn Smith, the Regional Manager at Marrickville. The applicant was most concerned that the report did not conform with the time frame set by the respondent itself, and it was in fact completed some 6 to 8 weeks after it should have been completed. In his affidavit which formed part of the record Mr Glenn Smith, the Regional Manager, stated:
“3. On March 31 1993 Mr Fischer was examined by the Commonwealth Medical Officer. The officer noted that Mr Fischer had a bilateral hearing loss of moderate severity and recommended that Mr Fischer be re-examined in 4 months time to enable demonstration of his capacity for a full range of duties.
4.A 3 month probation report was signed by Mr Fischer’s supervisor on 15 June 1993. Mr Fischer viewed the report and made a detailed reply to it dated 3 July 1993. I signed the report and supported the continuation of probation on 15 July 1993. The report and Mr Fischer’s comments are ..exhibits...in this affidavit.”
The applicant stated the first report should have been completed about 8 May 1993. Under cross-examination the applicant advised that he had in fact had signed the first probationary report presented to him towards the middle of 1993 but that he had done so under protest. He stated that he was shown the report and there were things wrong with it and further that nothing was done to take corrective action arising out of this report. The applicant stated that as there was no formal follow-through at this stage by the respondent and that he was substantially disadvantaged. I agree with this assertion.
At this and at subsequent stages in the hearing the applicant clearly demonstrated to the court that he felt the delay on the part of the respondent was to him a denial of natural justice. This denial took the form that he was unable to deal with criticisms of his conduct and his workplace performance and to adjust his conduct suitably to ensure he kept his employment. I find merit in this argument and am of the view that the parties had unequal bargaining strengths and the respondent, being the stronger of the two parties, should have taken care to see the opportunities of the applicant to do all he could to protect his employment were protected, at the least the following of its own internal guidelines.
The applicant presented the same argument to the court in relation to the six monthly probation report and stated that it also was late - about 2 months late (that then being September 1993) in being prepared and delivered to him by the respondent. Additionally, the applicant stated that the report was not discussed with him - that he wrote a lengthy response to the report as he disagreed with large parts of it, and that he did not hear anything further about the second probationary report until January 1994.
During the course of his employment the applicant developed problems with his back and submitted a medical certificate to the respondent in July of 1993. The applicant was unable to cope with filing as this involved reaching and stretching which aggravated the back condition. It seems Comcare paid compensation in regard of this injury as the applicant had sick leave . The applicant stated that he went to the doctor 10 time in a matter of 3 months from January 1994 until March 1994. Some of these visits were arranged by the respondent and some were privately arranged by the applicant with his own doctor. The applicant attended the Commonwealth Medical Officer at the request of the respondent who gave, according to the applicant, vague and imprecise medical certificates. The applicant expressed the view that the constant medical examinations conducted by the respondent in his view amounted to harassment.
The court heard evidence that on 7 January 1994 the applicant received a letter from Mr Anderson advising the employment had been extended, subject to certain modifications. That letter stated:
“Dear Mr Fischer,
I refer to your 6 monthly probationer report, your responding comments and the results of your medical examination conducted on 3 December 1993.
After considering the information presented, I have decide that your probationary period is to continue. The following information outlines the reasons for this decision.
1. Medical Reasons
The delegate of the Australian Government Health Services has not determined you to be medically fit for appointment to the Australian Public Service at this time.
The results of your medical examination have determined that:
You should not be required to work in an environment where there is excessive background noise and communication with you face to face. You are not to perform activities where there is repetitive lifting or bending and should not lift in excess of 15 kg. Dr Kong states that you should be capable of performing the normal filing duties within these restrictions and that you should be reviewed in 3 months time for a reassessment of these restrictions. Accordingly you will now be required to perform filing duties. I will be advising the management of the office that staff should take care to communicate with you face to face.
You appear to dislike some of the procedural aspects of your Public Service duties. You can be quite vocal about this dislike and this may be a cause for concern for your supervisors.. If this is found to be disruptive, then you should be counselled about this matter.
As a result of these findings, I have decided to extend your probation until these medical issues are resolved.
2. Non-medical reasons
Your 3 monthly and 6 monthly reports identify areas of concern from your supervisors in sections 6 and 7 of the probation report (relating to non medical problems), specifically in relation to the team goals, attention to detail, self motivation and enthusiasm.
In your response to the 6 monthly probation report you make the valid point that Ms Kennedy, in assessing your general behaviours gives no examples to back up her statement. This however does not necessarily negate there being a problem.
Until an accurate assessment which outlines that you have no difficulties in meeting the minimum performance standards of an ASO1 (both conduct and work performance) is achieved I have no alternative in extending your probationary period until I am satisfied that you have achieved a satisfactory level of performance.
For the remainder of your probationary period your supervisor will be instructed to provide you with regular feedback on your work performance in the following areas;
* quality of work, output and errors
* timeliness of processing
* general behaviour - interaction with other staff.
I have discussed the above requirements with the Regional Manager, Mr Grant Whittingham, who will arrange a meeting between your supervisors and yourself to ensure these procedures are put in place.
I have noted the comments by your supervisor in relation to your improvement in work performance, your greater flexibility and responsiveness since the completion to your 6 monthly report. Your are encouraged to continue this improvement.
As previously stated the Commonwealth Medical Officer has recommended a review of your medical condition in three months time and this will be arranged accordingly
A copy of you medical results was sent to your home address on 5/1/94
If you have any queries relating to this decision please contact the Personnel Officer on 3238342
Yours sincerely
Ken Anderson
Manager Area Sydney Central.”
This letter from the respondent is ambivalent. Set out are medical reasons why the work previously performed by the applicant is to be varied so that he will perform only light duties due to a lifting incapacity. It is noted that previously the applicant demonstrated that his permanent employment was subject to medical fitness - the letter from Ms F Go of 19 March 1993 refers to a “required medical fitness standard.” Yet the letter from Mr Anderson outlines physical limitations which apparently impair the applicant’s employment and yet at the same time the letter continues the employment. Accordingly it would not be possible for the applicant to estimate what degree of physical impairment would be necessary for permanent employment to be denied. I find this letter to the applicant from the respondent signed by Mr Anderson to add further to the confusion in that the standard of required medical fitness is meaningless as it is incapable of being defined. The respondents have failed to act with clarity and this failure can only work against the rights of the applicant.
The applicant stated that after he received the letter from Mr Anderson meetings were set up between various people including himself, the Union representative and Mr Grant Whittington. As a result of those meetings the applicant stated a draft Statement of Duties was produced , but that was as far as the matter went.
The applicant stated that one of the grievances the respondent outlined at the meetings involving his work performance was that he wished to represent his estranged wife in her appeal to the Social Security Appeals Tribunal. However the court heard that the Tribunal itself found no difficulty with the applicant so appearing. I consider this course of action by the applicant to perhaps have been imprudent as it could well have founded allegations of conflict of loyalties concerning confidential information.
A further grievance outlined to the applicant as a result of the meetings arising out of the letter from Mr Anderson related to allegations of sexual harassment made by female employees of the respondent against the applicant.
In the written submission on behalf of the respondents it was argued that the:
“Court had no jurisdiction to hear the matter as the applicant was serving a period of probation the maximum of which was determined in advance and was reasonable having regard to the nature and circumstances of his employment.”
I disagree with this submission. I find the evidence in fact points the other way; the duration, maximum or otherwise, was not pre-determined and this factor is the major factor which brings me to decide that the applicant was denied natural justice. It is unfair to expect an employee not to be able to determine when a probationary period of employment will end. I find a fair period of probationary employment to be six months. In my view it is imperative that an employer take decisive and definitive action if possible within the first three months of a probationary period of employment so that a prospective permanent employee clearly understands his rights and entitlement.
That did not happen here and accordingly I find the applicant Mr Fischer became a permanent employee from the second week of August 1993. It was submitted on behalf of the respondents that the two year maximum duration of the probation period for Commonwealth employees is reasonable, having regard to the nature and circumstances of their employment, and having regard to the fact that what is reasonable is a matter for the Australian Government to determine. The respondent referred to Section 47(7) of the Public Service Act and that there is nothing to suggest that Section 47(7) was not enacted in good faith. Further, it was argued that the length of a two year probationary period is in line with the goals of the government of serving the public efficiently, effectively and equitably. It is my opinion, having regard to the circumstances surrounding the employment of the applicant Mr Fischer that it is important the rights of both employer and employee be considered and that to strictly adhere to the government guidelines in the form of it’s legislation would be to disadvantage probationary employees.
The respondent submitted that:
· the applicant was appointed under Section 42 of the Public Service Act permanently.
·this appointment was capable of annulment if the applicant’s conduct, work performance or health were unsatisfactory in the initial period of his appointment.
· the initial period of appointment is known as the probationary period.
· Section 42 of the Public Service Act is subject to Part III of that act.
· Section 47 (1) (in Part III) of the Public Service Act mandates that such appointments are to be on probation.
· The evidence establishes that the applicant was appointed under Section 42 and that appointment was “on probation” under Section 47 (1) of the act.
However there was no evidence presented to the court that there was consensus in the minds of both the employer and the employee as to which act and which section was actually governing the employment conditions of the employee.
Accordingly I do not agree with these submissions made on behalf of the respondents.
The court heard evidence from Mr Kenneth Anderson, who from 4 May 1992 until 2 September 1994 was the manager of personnel in Area Sydney Central of the Department of Social Security. In his undated affidavit which was read to the court Mr Anderson stated inter alia:
“3.As manager of personnel I held a delegation to terminate probationary appointments pursuant to section 47 of the Public Service Act.
4. On 7 January 1994 I signed the six-month probationary report for Tom Fischer...I ticked the box in section 12(a) next to the words “Unsatisfactory” and “subsequent action recommenced below”. I also ticked the box I Section 12(d) next to the words “The probationary period be extended for” and wrote below this word “continue”. I also ticked the box in Section 12(b) next to the words “should be referred to the Senior Commonwealth Medical Officer for consideration.”
5.On 7 January 1994 I sent Mr Fischer a letter advising him of my decision that his probationary period was to continue My reasons for extending his probationary period are set out in that letter. In summary there were two reasons for extending the period. The first was Mr Fischer’s medical condition needed to be resolved. The second reason was that I was not convinced that Mr Fischer had met the minimum performance standards for an ASO1 in particular in relation to term goals, attention to detail, self motivation and enthusiasm. I also extended his probation to satisfy myself as delegate that previous inappropriate behaviour, in terms of comments to other staff, would not recur. In this respect I wished to give Mr Fischer the opportunity of demonstrating that he could meet these standards and I instigated an action plan for closer supervision. A true copy of this letter is annexed hereto and marked with the letter “A”.
6.It is not unusual for probationers to be extended beyond the 6 month probation report especially if there are concerns regarding conduct, work performance and medical fitness. A review period is generally set to ensure any demonstrated improvement by the probationer is maintained.
7.In February 1994, I received a report from Grant Whittingham written by Ms Zzrno which was a combined 9 monthly and 11 monthly probationary report. The report recommended annulment. I returned the report to Mr Whittingham asking for the contents to be further documented as I believed there was insufficient material on which Mr Fischer could comment.
8.On March 21 1994 I received Mr Fischer’s combined 9 and 11 month probation report from Grant Whittingham. This report stated there was still ongoing problems with Mr Fischer’s conduct and recommended annulment. I have viewed Exhibit GS12 to the affidavit of Glenn Smith and recognise it as being Mr Fischer’s probation report and a covering letter from the Acting Regional Manager, Grant Whittingham.
9. At the time I received this report I was aware that there had been a grievance lodged by Mr Fischer in relation to his 3 and 6 month probation reports. This grievance had been lodged on 18 November 1994 and had not as yet been resolved. I was reluctant to immediately act upon the annulment recommendation until the grievance relating to the probationary process had been resolved. I referred the report to Bronwyn Black, a member of my staff, pending the finalisation of the grievance and further medical assessments of Mr Fischer, due to further medical certificates presented by Mr Fischer stating he was unfit to complete filing tasks. This was contrary to the results of the previous Commonwealth medical examinations.
10. The grievance was dismissed on 7 April 1994
11.On 8 April 1994 the Commonwealth Medical Officer reported on Mr Fischer advising he was unfit to do filing.
12.On 22 April 1994 Bronwyn Black advised me by minute that she recommended that Mr Fischer’s appointment be annulled...
13.On 28 April 1994 I wrote to Mr Fischer seeking his written response to the recommendation that his appointment be annulled...
14.On 12 May 1994 I received a reply from Mr Fischer which was in the form of a grievance...
15.On 30 May 1994 I reviewed Mr Fischer’s file and made a file note of the considerations which led me to the conclusion that I should terminate his appointment. The Commonwealth Medical Officer considered Mr Fischer was unfit for confirmation of permanent appointment if the Department could not reasonably accommodate his inability to do filing duties. Reviewing this I considered further information was needed before an educated assessment could be made of the Department’s capacity to employ Mr Fischer given these restrictions. Therefore medical fitness was not an issue, at this stage, which influenced my decision to annul Mr Fischer’s appointment.
In regard to the issue of work performance, despite an enormous amount of training, Mr Fischer’s work performance was sporadic at best. There were at times during his probationary period where his performance for a number of weeks was considered satisfactory. However, this performance according to his many supervisors was not sustained. These difficulties mainly lay with Mr Fischer’s inability to accept directions which impacted on his and the section’s output. After some 13 months of employment, given the training and support provided to Mr Fischer in my opinion, it would be reasonable for Mr Fischer to have achieved a level of performance achieving the minimum standards of performance at the Administrative Service Officer Class 1 level Mr Fischer’s work performance difficulties, his inability to accept reasonable directions, had severe impact on the output and dynamics of the team of employees. These aspects influenced my decision to proceed with Mr Fischer’s annulment. There was nothing in Mr Fischer’s response which would allow me to draw a different conclusion.
Mr Fischer’s conduct during his period of employment also influenced my decision to annul his appointment. Despite information sessions on appropriate behaviour, counselling and information through various reports, Mr Fischer’s inappropriate behaviour recurred. I reviewed Mr Fischer’s comments in relation to various incidents involving female staff and on the balance of probabilities considered that the comments were made. I viewed these comments most seriously and deemed them inappropriate for an officer within a professional working environment. Supervisors had difficulties getting Mr Fischer to accept direction to perform normal office tasks and despite warnings, this behaviour continued.
In reaching my view that Mr Fischer’s appointment should be annulled I considered the matters raised in the letter from the PSU dated 16 May 1994,....however, I did not feel these matters warranted the continuation of probation of the entire employment history of Mr Fischer with the Department.......I am satisfied sufficient attempts were made by the office to comply with my requests in relation to providing feedback to Mr Fischer.....”
I am of the view that the additional information provided by Mr Anderson confirms the opinion already formed that there was no way the applicant could have determined the period of time that probationary employment was to continue.
In his written submissions the applicant advises he seeks:
· reinstatement
· back pay for the period since termination
· holiday pay and superannuation benefits to be adjusted to reflect the above.
· costs, $1000.
·compensation and punitive damages against the Department of Social Security for the sum of $925,000 on the basis that this sum should reflect the uncertainty of his future employment in the Department and the problems someone of the age of the applicant would face in obtaining fresh employment in the current economic climate.
Having dealt with the status of the applicant and having determined that as from a given period of time the applicant was a permanent employee, it is now necessary to determine whether the termination of the applicant was unlawful.Section 170DB provides an employee must be given either a required period of notice or compensation. I am satisfied that this section has been complied with.
Section 170DC provides an employee is to have opportunity to respond to allegations. It is clear from the evidence presented to the court that the respondents did everything possible to assist the applicant achieve the level of performance required to attain that necessary for Administrative Service Officer Class 1 level. Conduct of the applicant was a crucial factor in the respondent reaching the decision that the applicant failed to reach the minimum standard. It is clear that the medical condition of the applicant was not a factor that caused the respondent to concluded the applicant was unsuitable as an employee. Both the applicant and the Union were given ample opportunity to answer allegations made in relation to the continuation of employment of the applicant.
Section 170DE provides that a termination must not be harsh, unjust nor unreasonable. The court heard that female employees made allegations of sexual harassment. There was more than one allegation made and it is clear that the applicant was warned about his conduct in this regard. It is not harsh or unjust or unreasonable for an employer to terminate the employment of an adult male in these circumstances when the consequence of that conduct has been clearly explained to that male employee.
Accordingly I am of the view that the termination of the employment of the applicant did not contravene the Act and was not unlawful having regard to the spirit and intendment of the Public Service legislation I am satisfied that the correct procedures were observed when the employment of the applicant was terminated.
I certify that that this and the preceding twenty eight (28) pages are a true copy of the Reasons for Judgement of Judicial Registrar Tomlinson.
Associate :
Date : 25 October 1994
Counsel for the Applicant : In person
Counsel for the Respondent : Mr D Godwin
Solicitors for the Respondent : Australian Government Solicitor
Date of Hearing : 8 October 1994Date of Judgement : 25th October 1994
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