Ullah v Department of Corrective Services

[1996] IRCA 527

DECISION NO:527/96

CATCHWORDS

INDUSTRIAL LAW - no UNFAIR TERMINATION - PROBATIONARY EMPLOYMENT

Indutrial Relations Act 1988 s 170EA, Regulation 30B(1)(c)
Public Sector Management Act 1988 ss 28, 29

Fischer -v- Commonwealth of Australia (1995) 63 IR 401

SAMI ULLAH -v- DEPARTMENT OF CORRECTIVE SERVICES

No. NI 1265 of 1996

Before:  WALKER JR
Place:  SYDNEY
Dates of Hearing:   8-10 JULY, 19-20 SEPTEMBER 1996
Date of Judgment:  8 NOVEMBER 1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

No. NI 1265 of 1996

BETWEEN

SAMI ULLAH
Applicant

AND

DEPARTMENT OF CORRECTIVE SERVICES
Respondent

Before:   WALKER JR
Place:                SYDNEY

Date:      8 NOVEMBER 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application be 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
NEW SOUTH WALES DISTRICT REGISTRY

No.  NI 1265 of 1996

BETWEEN

SAMI ULLAH
Applicant

AND

DEPARTMENT OF CORRECTIVE SERVICES
Respondent

Before:   WALKER JR
Place:                SYDNEY
Date:      8 NOVEMBER 1996

REASONS FOR JUDGMENT

The applicant, Sami Ullah, was appointed a probationary Prison Officer on 23 May 1994. His letter of appointment is set out hereunder:

Appointment on Probation

The Commissioner has recommended to the Govenor that you be appointed on probation as a Prison Officer effective from 23 May, 1994.

The purpose of the probationary period is to enable the Department to assess all aspects of your performance including standard of work, conduct and sick leave, prior to a decision being made to confirm your appointment.

While on probation you are regarded as permanent for all intents and purposes. The period of probation is twelve months from your entry on duty date, unless extended pursuant to Section 28 of the Public Sector Management Act 1988.

Notification of your appointment will appear in the Government Gazette in due course.

The applicant subsequently attended a ten week induction course and was then sent to the remand centre of the Long Bay Prison as a probationary Prison Officer.

The evidence suggests that the practice of placing probationary officers directly into a high security situation is aimed at on-the-job training and for the purpose of assessing the officer as to suitability for the position. In the applicant’s case, however, there unfolded a number of incidents that eventually caused the annulment of his position, one year and nine months after his probationary appointment.

It is the respondent’s claim in this matter that the applicant is excluded from the operation of the Industrial Relations Act 1988 as he was a probationary employee under Regulation 30B. The applicant, although accepting he was a probationary employee, argues that the period of probation was not reasonable in the circumstances and that he should be regarded therefore as a permanent employee.

The applicant was appointed pursuant to section 28 of the Public Sector Management Act 1988 No 3. The relevant sections are set out hereunder:

1. 28. Appointments on probation.
   (1) Subject to this Division, every person admitted to the Public Service as an officer shall, in the first instance, be appointed to a position on probation for a period of 6 months or such longer period as the appropriate Department Head directs.

   (2) A person may be appointed to a position in the Public Service without being required to serve such a period of probation if the Department Head thinks it appropriate in the particular case.

   (3) The period for which a person is appointed on probation may not exceed 2 years without the approval of the Public Employment Office.

   29. Confirmation or annulment of appointments on probation.

   (1) If a person is appointed to a position on probation under section 28, The Governor may, on the recommendation of the appropriate Department Head based on inquiry and report:

   (a) after a period of probation - confirm the appointment, or
   (b) during or after the period of probation - annul the appointment.

(2) If a person’s appointment is annulled under subsection (1), the person ceases to be an officer, unless appointed to another position as an officer.

(3) Section 75 does not prevent the Governor from exercising at any time the power to annul an appointment under subsection (1).

This legislation is similar to the commonwealth Public Service Act 1922 which was considered by Wilcox CJ in Fischer v Commonwealth and subsequently by the Full Court in the appeal against that decision. The period of probation in the present case did not exceed the legislative maximum of two years and the question therefore remains: was the period extended by the respondent a reasonable period, having regard to the nature and circumstances of the employment?

In order to answer this question it is only necessary to consider the method used by the respondent to train Prison Officers. The applicant in these proceedings completed his education in Pakistan, where he received a degree in science and a Master of Business Administration degree in 1989. He has worked with a bank, where he was an assistant manager and also worked with an American chemical company before arriving in Australia in October of 1992. He has worked as an insurance clerk and an insurance broker prior to being appointed as a probationary Prison Officer on 23 May 1994. It is clear from his previous work experience that he has had no training whatsoever that would prepare him for the position in the prison system. As with all other probationary prison officers the applicant attended a ten week training course and was then sent to Long Bay for hands-on training. When asked what training was provided at this stage, Ms Dinsdale, the applicant’s staff officer, gave the following evidence:

“The training I provided was usually on a needs basis given the fact that the remand centre is a maximum male security institution. It is a very volatile environment because of the nature of the inmates and the crimes contained there. So given the fact that we had a number of staff who were fairly junior in service, I directed a lot of training targeting probationary staff and giving them the skills to be confident and competent in their role as a PO or prison officer, given the fact that that probationaries have the most direct contact with the inmates.”

From this evidence it is clear that training and assessment of Prison Officers during their probationary period is vitally important in order to determine their suitability to such a position, where their actions in certain situations can mean the difference between the life and death of their fellow officers as well as inmates.

Mr Ullah, the applicant in this case, was not confirmed as a permanent appointed officer initally because he failed to satisfy his supervisors that he was competent in the handling of weapons and subsequently because of certain complaints made about him by other Prison Officers. Many of these complaints were addressed by the applicant and it appears that he improved his performance to overcome many of these problems. It was common evidence that the applicant was a likeable person but lacked the assertiveness required to be a Prison Officer. It was also evident that it is very unusual for Prison Officers to go to the length of reporting fellow officers on paper, yet in the applicant’s case this occurred on many occassions. The main cause for concern it seems was the applicant’s questioning of or failure to carry out orders.

The respondent in this matter could have at an earlier stage annulled the applicant’s employment; however, he was afforded the opportunity to reply to the various allegations concerning his work and a further period of probation was implemented in order to assess his suitability. In the end it was decided that he should be annulled. I am therefore satisfied that in the particular circumstances concerning the applicant that the probationary period put in place by the respondent was reasonable. The application therefore must be dismissed, as the applicant is excluded from bringing a claim pursuant to regulation 30B (1) (c) and I do so order.

I certify that this and the preceding three (3) pages are a true copy
of the reasons for decision of Judicial Registrar Walker.

Associate:

Date:    8 November 1996

APPEARANCES

Counsel for the applicant:     Mr C. Sandrasegara
Solicitors for the applicant:     McGrath, Dicembre & Company

Counsel for the respondent:    Ms E. Brus