Dec 1145/99 D Print R9417

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996

s.170CE application to the Commission re: termination of employment

H.L. Brumby

and

Trans Territory Foods
(U No. 80160 of 1999)

COMMISSIONER EAMES DARWIN, 27 SEPTEMBER 1999

Jurisdictional grounds.

DECISION

[1] The following decision (now edited) was given in transcript on 22 September 1999, in Darwin.

[2] This is an application that has initially been made by Miss Brumby for relief in relation to her termination of employment by Trans Territory Foods. Following the initial conciliation conference conducted by the Commission, it was indicated by the Respondent, Trans Territory Foods that they wished to pursue an objection to the Commission dealing with the application on the basis that their employee, Miss Brumby was serving a period of probation or a qualifying period at the time of her employment. Regulation 30(b)1(c) of the Workplace Relations Act of 1996 (the Act) indicates that certain employees are excluded from the jurisdiction of the Commission.

[3] One of those categories includes:

[4] I've taken evidence today from the representatives of the company which would indicate that it was their view, and in the case of one witness, Miss Holloway, that in fact Miss Brumby was specifically told that a probationary period was attached to her employment and that it would be for a period of three months.

[5] Miss Brumby on the other hand has given evidence which stated that she was not aware of probation periods or trial periods or any form of qualifying period being mentioned at all in her interview for employment, and that the only reference that was made was to a period of orientation which was likely to take a period of one month. We obviously have contesting views as to what was said by whom, and about what during the actual interview process which led to Miss Brumby's employment.

[6] It's not clear to me on the material that has been produced to the Commission, that there was any written documentation at all that contained any reference to a probation period. The only indicator that we have that in fact makes reference to a probation period is contained in exhibit S2 which was drafted and provided at the request of Miss Brumby by an officer of the company following her successful interview but prior to her actually taking up employment with the company. It was Miss Brumby's evidence that she had not seen this document until it was produced at the conciliation conference conducted as part of these proceedings. The critical aspect of the regulations contained in the Act goes to whether or not the period of probation was determined in advance.

[7] Mr Matarazzo for the Applicant has produced an exhibit, which is the common rule declaration of the General Clerks (Northern Territory) Consolidated Award 1985, a declaration that was made on 3 June 1991. That declaration contains a reference in relation to a probationary employment and says:

[8] It would appear on what has been put to me today that it is likely that this award would have application in relation to the category of employment Miss Brumby was hired to begin, and accordingly that clause would have relevance. However, the other issue that I am more concerned about goes specifically to whether or not the probationary period was determined in advance. I cite a decision of Senior Deputy President Watson in the matter of Deligiannis v Village Roadshow Limited, contained in Print P6907 a decision issued on 1 December 1997. The Senior Deputy President in part of that decision made the following comment:

[9] It's clear to me that it should be very specifically identified where there are to be periods of probation put in place, that that fact is known, and the criteria associated with the probation, is known. The most effective way of achieving that end is to have a document created where it can be shown to prospective employees, have them sign so that it's indicated that they understand that there is a period of probation attached to their employment, and then there can be no doubt, and no prospect of any matters, in dispute, such as the one raised before the Commission in this matter.

[10] I'm therefore satisfied on all of the material presented before me that it was not clear that a probationary period was in place at the time of Miss Brumby's employment. I'm satisfied that, should the General Clerks Award be the appropriate award in this case that it would have been mandatory that such a period of probation should have been placed in writing. Accordingly I'm satisfied that the application does fall within the Commission's jurisdiction and the matter will proceed now to be dealt with through arbitration in due course.

ORDER

[11] That the matter being within jurisdiction proceed to arbitration.

BY THE COMMISSION:

COMMISSIONER

Appearances:

H. Brumby the applicant with L. Matarazzo union representative for the applicant.

A. Sawyer the respondent.

Hearing details:

1999.

Darwin:

22 September.

Decision Summary

 

1.

Termination of employment - unfair dismissal - jurisdiction - probation - whether probationary period determined in advance - Commission found no evidence that probationary period was determined in advance of employment relationship - matter within jurisdiction - to proceed to arbitration.

Brumby v Trans Territory Foods

U No. 80160 of 1999

Print R9417

Eames C

Darwin

27 September 1999

Printed by authority of the Commonwealth Government Printer

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