Dec 1154/98 D Print Q6136
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.170CE application to the Commission re: termination of employment
and
(U No. 80143 of 1998)
COMMISSIONER EAMES DARWIN, 11 SEPTEMBER 1998
Jurisdictional grounds.
DECISION
Contained within the Respondent's notice of appearance was an indication that they objected to the application on jurisdictional grounds, in that the Applicant was employed as a casual for a short period, and should be excluded pursuant to Regulation 30B(3), however that was subsequently amended to an objection on the basis that the employee was serving a period of probation or a qualifying period at the time of her termination.
At the hearing of the jurisdictional question on 24 August 1998, Mr Blandy for the Respondent tendered an Exhibit B1 which contained admissions agreed to by the parties as to matters of fact.
The admissions indicate that the Applicant commenced employment on 15 June 1998; that she was advised prior to commencing work that she would be on a three month probation period and that her services were terminated on 28 July 1998.
Mr Blandy put the following submissions. The Award which the Applicant nominates as relevant to these proceedings is the Social and Community Services Industry - Community Services Workers - Northern Territory Award 1996 [S1100CRN]. That award came into existence in 1996 and on 16 June 1998 a common rule declaration was issued by the Commission as currently constituted pursuant to s.140(1) of the Act. That declaration was to take effect from midnight on 30 June 1998. BRADAAG is now, by virtue of that declaration a common rule respondent to the Award. Mr Blandy continued to put, that pursuant to s.142(7) of the Act, a common rule declaration cannot have any application before a period of 28 days has elapsed, and in the current matter, the termination was on the 28th day, 28 July 1998, and technically the respondency of BRADAAG to the Award could not apply until at least midnight on the day of the Applicant's termination.
The second element of Mr Blandy's argument, is that in the absence of the Award, and even if the Award applied, there was a common law contract of employment between the parties, in which a three month probation period was imposed, and accepted, by the Applicant. This aspect has to take precedence over any other consideration, submitted Mr Blandy.
The third argument put by the Respondent is that if the first two elements failed then the Commission should take note of a decision of the High Court in the matter of Byrne and Frew v Australian Airlines Limited (1995 131 ALR 422). It was put that that decision determined that one cannot import terms and conditions contained in an Award, into the contract of employment. Accordingly, the Commission should ignore the Award provision, determine that the Applicant was a probationary employee as set out in the contract of employment.
Mr Matarazzo for the Applicant indicated that the contract supplied to the Applicant was never signed, and a legal question arises as to whether the employment contract was, at common law, effective. Ms Alderslade wanted to negotiate some of the terms contained in the contract. In addition, it was submitted, that the letter of offer dated 26 May 1998, did not contain any reference to a three months probation period. [Exhibit M1] Mr Matarazzo did however concede that the offer of employment was made on the basis of three month probation period, to begin on 15 June 1998, but it was only a verbal offer, never committed to writing. He continued, that even if it was determined by the Commission that a probationary period was in place, was it the contract which governed the arrangement, or was it governed by the Award?
It was Mr Matarazzo's submission that the common rule award applied at the time of the Applicant's termination. Clause 4.1.3 of that Award provides that a probationary period shall be no greater duration than six weeks for grades 1 to 4. The Union was contesting her classification level with the employer, but the Applicant in any event was either a grade 3 or grade 4 classification. The Applicants termination was effected, more than six weeks after her commencement date. Accordingly, at the end of the six weeks period, in accordance with clause 4.1.3 of the Award, no evidence was produced to establish an unsatisfactory work performance, and so she progressed to be a weekly engaged employee on 27 July 1998.
With regard to the 28 day period associated with a common rule declaration in which an organisation may object to the declaration being made, Mr Matarazzo submitted that s.142(7) of the Act, is non enforceable, in the case, between 1 July 1998 and 28 July 1998. Any situation after 28 July 1998 is enforceable, and binding on BRADAAG, with effect from 1 July 1998. It was his submission that the Applicant's terms of employment, with regard to the period of probation, had changed, from when the Applicant was engaged on 15 June 1998. Mr Matarazzo did concede when questioned from the bench that "for the purposes of our submission today what we are saying is that she was award free." [Transcript p13]
There is no doubt that the Applicant moved from interstate to take up a position with the Respondent, having been offered that position. Whilst some of the terms of her appointment apparently weren't quite satisfactory to her, she did commence employment.
The contract of employment had not actually been signed by her, however I believe it is arguable that a common law contract was in place, with obligations on both parties, once employment had commenced. The disputed aspects of the contract, appear to involve aspects of salary and salary sacrifice as detailed in a letter from the Applicant to a Mr Mills [Exhibit B2], however there is reference to "my three months probation" which is significant in my view, in that correspondence.
There has been some debate as to the application of, and the effect of common rule declarations in these proceedings, and the parties have sought the Commissions determination of some of those questions. I have decided not to do so, as it may be more appropriate to determine those questions, in another forum.
However, I have concluded on all of the evidence before me, and based on the submissions of the parties, that a probationary period of three months was agreed before Ms Alderslade commenced her employment, and some six weeks into that arrangement she was terminated. The contract was not signed, but I am of the view that a common law contract was in place. Both parties knew what the arrangement was, and even though the Applicant wanted to improve aspects of her contract before signing it, there was not only no dispute about a probation period, but an acknowledgement of its existence by the Applicant in her correspondence to her employer.
For all of the above reasons, the application meets the criteria set out in s.170CC(1)(b) and Regulation 30B(1)(c) and is excluded from the Commissions jurisdiction.
That the application made in this matter pursuant to s.170CE be dismissed.
BY THE COMMISSION:
COMMISSIONER
Appearances:
L. Matarazzo union representative for the applicant.
M. Blandy representative for the respondent.
Hearing details:
1998.
Darwin:
August 24.
Decision Summary
Termination of employment - unfair dismissal - jurisdiction - probation - respondent submitted that common law contract of employment in which three month probation period imposed existed between parties - applicant submitted that contract was never signed thus raising legal question whether contract was, at common law, effective - Commission noted that applicant acknowledged three months probation in a letter to her employer - Commission found that probationary period of three months agreed upon before applicant commenced employment and that a common law contract was in place despite contract not being signed - application dismissed. | ||||
Alderslade & Australian Municipal, Administrative, Clerical and Services Union v Barkly Region Alcohol and Drug Abuse Advisory Group Inc. (BRADAAG) | ||||
U No 80143 of 1998 |
Print Q6136 | |||
Eames C |
Darwin |
11 September 1998 | ||
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