Walczak v David Jones Aust Pty Ltd

[1996] IRCA 193

DECISION NO:  193/96

CATCHWORDS

INDUSTRIAL LAW - UNLAWFUL TERMINATION - PROBATION - Although the applicant did not sign a letter stating that he was to serve a three month period of probation, by his conduct in the commencing work after receiving the letter, he accepted that term as part of his contract of employment - three months was a reasonable period of probation, as the applicant was in a supervisory position - Application dismissed.

Industrial Relations Act ss 170CC, 170EA, Regulation 30B(1)(c).

DAMIAN ANDREW WALCZAK -v- DAVID JONES AUST PTY LTD

No.  NI 95/3924

COURT:       PATCH JR
PLACE:        SYDNEY
DATE:           29 MARCH 1996

THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

No NI95/3924

BETWEEN:

DAMIAN ANDREW WALCZAK
Applicant

AND:

DAVID JONES AUST PTY LTD
Respondent

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

29 MARCH 1996   PATCH  JR

This is an application under section 170EA of the Industrial Relations Act 1988 ("the Act") as it was prior to 15 January 1995.

As a preliminary point, by agreement between the parties, evidence was heard on the question of whether or not the applicant was a probationary employee and therefore excluded from the requirements of the Act for the termination of employment in accordance with section 170CC of the Act and regulation 30B(1)(c).

Regulation 30B(1)(c) reads as follows:

Subject to subregulation (2), for the purposes 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) an employee 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 applicant was employed as a sales supervisor in the Brookvale store of the respondent, which is a large and well known retail organisation.  He commenced work on Monday 18 September 1995.  Prior to that date he received a letter of appointment setting out the terms of his appointment.  The second paragraph of that letter asked him to come to the HR Department, which I take to be Human Resources, at 8.30 am to complete any necessary paperwork.  I therefore conclude that his duties commenced at that time. 

Paragraph 8 of that letter of appointment was as follows.  After a subheading with the word "probation", the text is as follows:

This offer is subject to a three month probationary period review [sic], i.e. your initial period of employment will be for three months.   Prior to end [sic] of that period you will be notified of the permanency or not [sic].

The applicant took that document with him when he commenced work on 18 September. He signed it at work some time on that day.  In my opinion, by attending work after receiving that document and commencing work, the applicant had agreed to the terms and conditions as set out in that letter.  He therefore, within the meaning of Regulation 30B, was an employee serving a period of probation which was determined in advance.

The final question which I have to determine is whether or not that period was reasonable having regard to the nature and circumstances of the employment.  In my opinion given that his employment was as a sales supervisor, that is to say he was in a supervisory position in the store, a period of three months was a reasonable period of probation.  If he was not in a supervisory role then I might have had a different view as to the reasonableness of the period.  But he was in a position of some responsibility, and, in my view, three months was a reasonable period for him to be on probation.

As I have found as a matter of fact that all of the matters set out in regulation 30B(1)(c) apply to this case I have no choice but to find that the application is excluded from the operation of the Act by virtue of section 170CC of the Act.

The applicant was eager to run his case, to prove his assertions that he had no chance to respond to the allegations in respect of which he was dismissed, and that there was no valid reason for his dismissal.  

However, I am bound by the legislation to not deal with the matter any further as this question of whether or not he was a probationary employee within the meaning of regulation 30B was dealt with as a preliminary point, and I have found against him. 

Therefore, without making any findings, one way or the other, as to the matters which the applicant wished to raise, the order that the Court makes is that the application be dismissed.

_________________________

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment of Judicial Registrar Patch.

Associate:     Renee Cauchi
Date:              17 May 1996

Appearances:

Applicant in person.

Counsel for the Respondent: Mr A Baumgartner

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES REGISTRY

No. NI 95/3924

BETWEEN:

DAMIAN ANDREW WALCZAK
Applicant

AND:

DAVID JONES AUST PTY LTD
Respondent

BEFORE:     PATCH JR
PLACE:        SYDNEY
DATE:           29 MARCH 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.