[2010] FWAFB 3307 |
FAIR WORK AUSTRALIA |
DECISION |
Workplace Relation Act 1996
s.120—Appeal to Full Bench
JUSTICE GIUDICE, PRESIDENT |
MELBOURNE, 4 MAY 2010 |
Appeal – termination of employment –jurisdiction – whether probationary period reasonable – Workplace Relations Act 1996, ss.120, 643, 638(1).
[1] This is an application for leave to appeal and an appeal pursuant to s.120 of the Workplace Relations Act 1996 (the WR Act) against a decision made by Vice President Watson on 15 February 2010. 1 In the decision, the Vice President concluded that there was no jurisdiction to deal with an application made by Dr Barach (the appellant) under s.643 of the WR Act alleging that the termination of his employment by the University of New South Wales (the University) was harsh, unjust or unreasonable. This conclusion was based on a finding that the termination took place within the probationary period of employment provided for in the contract of employment and that the length of the probationary period was reasonable.
[2] The background to this matter may be set out in brief terms. The appellant commenced employment with the University on 15 September 2008 as the Director of the NSW Injury Risk Management Research Centre (IRMRC). The contract of employment provided that the appointment would be for a period of five years and was “subject to satisfactory completion of a qualifying probationary period of twelve months.” The contract also provided that at the end of the appointment the appellant would, unless the appointment as Director was extended, return to a full time continuing position in the IRMRC as Professor of Injury Risk Management.
[3] The appellant was notified about the offer of employment as Director of the IRMRC in November 2007 but for various reasons, including the need to obtain an appropriate visa, was not able to leave his employment in the Netherlands and take up the position in Sydney until September 2008. During this period, the appellant was involved in a range of activities relating to the IRMRC and, in respect of some of these activities, received payment as a consultant.
[4] On 23 June 2009 the University terminated the appellant’s employment on the ground of misconduct. On 13 July 2009 Dr Barach made an application under s.643 of the WR Act on the ground that the termination was harsh, unjust or unreasonable and sought reinstatement. As the matter was unable to be resolved through conciliation, it came before the Vice President for hearing of the jurisdictional issue raised by the University, namely that the appellant had not completed his probationary period of employment and was therefore not able to pursue the application for relief.
[5] Subsection 638(1) of the WR Act excludes various kinds of employees from the operation of the unfair termination provisions of the WR Act, including as presently relevant:
“(c) an employee serving a period of probation, if the duration of the period or the maximum duration of the period, as the case may be, is determined in advance and, either:
(i) the period, or the maximum duration, is 3 months or less; or
(ii) the period, or the maximum duration:
(A) is more than 3 months; and
(B) is reasonable, having regard to the nature and circumstances of the employment;
… …”
[6] The essential issue before the Vice President was whether the twelve months’ period of probation in the appellant’s contract of employment with the University was “reasonable, having regard to the nature and circumstances of the employment.” The approach adopted by the Vice President in considering this issue is set out in his decision as follows:
“[12] In determining whether the 12 month period of employment was reasonable it is necessary to have regard to all of the circumstances of the employment which existed at the time the employee was engaged (Mann v State Rail Authority [1999] 97 IR 385 at par [18] and authorities therein cited). The University bears the onus of establishing that the 12 month probationary period was reasonable (Mann v State Rail Authority at par [19]). The determination of whether the probationary period was reasonable is an exercise of judgement based on objective facts. The nature of the job is an important consideration (Pisa and Merritt v Country Fire Authority Print T0960).”
[7] Extensive evidence and submissions were presented on behalf of the appellant and the University in the proceedings before the Vice President. The Vice President considered the evidence and submissions of the parties and concluded that the twelve month probationary period was reasonable.
[8] In the appeal proceedings, it was submitted that the Vice President erred in finding that the twelve month probationary period was reasonable and consequently in determining that there was no jurisdiction to deal with the application. It was also submitted that the Vice President erred in that he failed to give adequate reasons for his decision.
[9] The issues concerning the reasonableness of the probationary period were extensively canvassed in evidence and submissions before the Vice President. It was said in the appeal proceedings that the areas of factual dispute between the parties were minor and that the main area of dispute concerned the nature and amount of work performed by the appellant when he occupied the role of “Director Designate” of the IRMRC between February and September 2008. It was submitted by the appellant that the work performed during this period demonstrates that the probationary period applied to the appellant’s employment was significantly more than the maximum permissible period under the terms of the UNSW (Academic Staff) Enterprise Agreement 2006 2 (the Agreement), namely twelve months. It was also submitted that the availability of a process for the confirmation of continuing employment within a period of three years provided under the Agreement was also relevant in the consideration of the reasonableness of the twelve month probationary period applied in the appellant’s case.
[10] In general, the appellant relied in the appeal upon the same matters as presented in the proceedings before the Vice President. We were taken or referred to the evidence and submissions before the Vice President and in particular to that relating to the scope and importance of the paid and unpaid work associated with the role of Director of the IRMRC which the appellant performed prior to 15 September 2008.
[11] The Vice President noted in his decision that there was little contest relating to the facts and circumstances involved although the parties emphasised different aspects of the employment and the events prior to the commencement of employment in their submissions. The Vice President had regard to “the totality of the evidence and the matters sought to be relied on by the parties” concerning the nature and circumstances of the appellant’s employment and concluded that the twelve month probationary period was reasonable.
[12] It has been not shown in the appeal proceedings that the Vice President was in error in reaching that conclusion. In this regard we note the approach adopted by the Vice President in the consideration of the jurisdictional issue and the factors taken into account and weighed in reaching a conclusion. In particular, we note the standard probationary period used by the University for appointments at the professorial or associate professorial level, the material relating to departures from this standard in the case of some continuing professorial appointments, the nature and seniority of the position to which the appellant was appointed (including the ongoing professorial post) and the circumstances that the appellant had not previously worked in Australia or with the University. We have also considered the work performed by the appellant prior to the commencement of employment, his academic standing and reputation, his personal circumstances including leaving a secure position and having to relocate with his family to Australia, the absence of an identifiable process for assessment during the probationary period and the opportunities that the University had to assess his performance during the pre-commencement work and the opportunity it would have during his employment.
[13] Having regard to the nature and circumstances of the appellant’s employment, and on our assessment of the evidence and factors relied upon, we consider that a twelve month probationary period was reasonable. This was the general standard applied by the University for appointments at the relevant level and was reasonable having regard to the senior and continuing post to which the appellant was appointed and his limited prior involvement with the University. Whilst other considerations might suggest that a shorter probationary period was appropriate or that further terms should have been considered for inclusion in the appellant’s contract of employment (e.g. relating to relocation expenses etc.), we do not consider that these would outweigh the factors to which we have referred. The determination as to what might be considered reasonable in a particular case involves an exercise of judgement based on an objective assessment of the overall circumstances.
[14] The consequence of the determination of the threshold jurisdictional issue in the present matter is that the appellant’s application for relief in relation to the termination of his employment cannot be pursued under the WR Act. We note that this results from the operation of the exclusionary provisions in the previous legislation and not from any consideration of the merits or otherwise of the grounds relied upon by the appellant in making the application.
[15] It was also submitted in the appeal proceedings that the Vice President failed to give adequate reasons for finding that the probationary period was reasonable. We do not agree with this submission.
[16] The duty to give adequate reasons for decision has been considered on many occasions. 3 Important public policy considerations underlie this duty. In particular, the reasons for decision must be sufficient to allow the parties to exercise such rights of appeal as may be available and to enable an appeal bench to determine whether or not error has occurred in relation to a decision. Consequently the reasons given must articulate the essential grounds for reaching the decision and must address material questions of fact and law in a manner which discloses the steps which lead to a particular result. However the reasons for decision of a tribunal member need not be lengthy or elaborate and need not spell out every detail in the reasoning process or deal with every matter of fact or law which was raised in the proceedings.
[17] The present matter involved the consideration of a preliminary jurisdictional issue regarding an application for relief in respect of termination of employment. In his decision, the Vice President set out the relevant principles to be applied in determining whether the twelve month probationary period was reasonable and then made an assessment of the various matters relied upon by the parties concerning the nature and circumstances of the appellant’s employment. The Vice President identified key considerations and generally explained the relative importance of the factors relied on by the parties. In our view the Vice President in his decision succinctly and sufficiently exposed the essential grounds as to why he decided that the probationary period was reasonable. As we have concluded earlier, the Vice President made the correct finding regarding the reasonableness of the probationary period.
[18] For all of the above reasons, we do not consider that the decision of the Vice President is attended with sufficient doubt as to warrant re-consideration on appeal or that substantial injustice might result if leave were not granted. Nor are we of the opinion that the matter is of such importance that, in the public interest, leave should be granted. We have decided not to grant leave to appeal in this matter.
PRESIDENT
Appearances:
C. Howell, of counsel, for Dr Barach.
A.B. Gotting, of counsel, for the University of New South Wales.
Hearing details:
2010.
Sydney.
April 19.
2 AC301436.
3 See generally Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247, at 269-271, 280; Re Astec Pty Ltd (1992) 45 IR 261; Edwards v Giudice (1999) 169 ALR 89 at [10]-[11], [44]-[48]; Alchin v Daley [2009] NSWCA 418 at [35]).
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