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PROBATION – EMPLOYERS ONLY GET ONE BITE OF THE CHERRY Alison James and Gallang Place Aboriginal and Torres Strait Islanders Corporation, Queensland Industrial Relations Commission, Commissioner Thompson, Brisbane, 25 March 2003
It is common for issues with employees to only become apparent after the probationary period has finished. However, no matter how frustrating an employee’s actions might become, it is not a solution to invoke a second period of probation and then terminate the employment at the end of that period. The applicant had been employed as a counsellor on a full time basis by the employer, a provider of counselling services to the indigenous community, from 1 February 1999 to 11 January 2002. Her position had become permanent upon completing a 3 month probationary period. The employer contended that over a period of time, the employee had been involved in a range of inappropriate actions including breaches of confidentiality, improper mileage claims and intimidatory behaviour. The employer’s Board decided to confront these issues in November 2001 and the applicant was placed on a 3 month probationary period. The applicant was not provided with any reasons for her dismissal at the end of that period. The Commission accepted on the evidence that the intention in putting the applicant on a second period of probation was to enable her dismissal without reason and was not a period of notice or review of her conduct, particularly given the applicant was absent on sick and annual leave for a majority of the 3 month period. The Industrial Relations Act 1999 (Qld) provides for a probationary period for employees for the first 3 months of their employment (s.72) and the Commission held that it was not within the employer’s power to place the applicant on a second period of probation. Having decided the applicant’s termination was unjust, the Commission went on to consider the issue of remedy. The applicant had suffered only limited financial loss as she was without work for only a short time. However, the Commission took into account the hurt, humiliation and distress suffered by the applicant, particularly with regard to her professional reputation within the indigenous community and awarded the applicant $9000.00. The decision is important in reinforcing that there is no easy or inexpensive way for employers to rid themselves of “problem” employees and also in confirming that compensation is not necessarily limited to loss of wages.
EMPLOYERS NEED TO BE ALERT TO IMPLICATIONS OF TRANSFER OF BUSINESS AND CHANGES TO BUSINESS STRUCTURES Two recent court decisions emphasise the need to carefully consider the potential for employee entitlement claims when considering changes to business structures or the framework for purchase of businesses. Amcor Limited v Construction, Forestry, Mining and Energy Union [2003] FCAFC 57 (28 March 2003) Amcor and the CFMEU had entered into a Certified Agreement under the Workplace Relations Act 1996 (Cth) which provided for payments to employees in cases of redundancy. Amcor subsequently transferred part of its business to a related company. Employees were also transferred and kept their jobs. The union then sought that Amcor make redundancy payments to its former employees in accordance with the Certified Agreement. Although the employees’ positions remained the same with the new employer, the Federal Court found that the specific clause in the Certified Agreement provided for payment “should a position become redundant.” On appeal, the Full Court upheld the interpretation of the trial judge in deciding that the word “position” means “a job that an employee is performing for a particular employer.” The Full Court accordingly upheld the trial judge’s decision to order the company to pay redundancy entitlements to the affected employees. This decision appears to be a correct, but strict interpretation of the Certified Agreement which was clearly not anticipated when the Agreement was made. An employer should arguably not be penalised for restructuring its business where employees suffer no loss. Special leave is being sought to appeal to the High Court by Amcor. Gribbles Radiology Pty Ltd v Health Services Union of Australia [2003] FCAFC 56 (28 March 2003) The Full Court of the Federal Court found that a “transfer” of business had occurred from one radiology service provider to the next even though there was no contractual relationship between the successive providers. Gribbles Radiology had taken over as the service provider to a Melbourne Health Clinic and had retained the same staff as the previous employer. A consequence of the take over was that it was found to be bound by the same award as the previous provider. Four radiographers who were subsequently made redundant by Gribbles sought that their service with the previous employer be counted for the purpose of calculating redundancy entitlements. The court found that there had been a transfer of part of the business and therefore the transmission of business provisions of the Workplace Relations Act 1996 (Cth) applied to allow their previous service to count towards their redundancy entitlements. This decision is consistent with a recent decision of the Queensland Industrial Relations Commission where an employee whose services had been retained by successive employers that had won tenders for an inner city car park, was able to claim long service leave for his entire length of service: Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND Wilsons Parking Australia 1992 Pty Ltd (No. C78 of 2002) (or refer Nathan Lawyers’ Workplace Bulletin, November 2002 edition). This is arguably a more just outcome than that in the Amcor decision although it is the last employer in the chain who bears the responsibility for payment of the long service leave entitlement. Both cases demonstrate the inequities which can arise when legislation is applied to situations which were probably not anticipated by the drafters.
BUT WAIT, MORE ON PROBATION!! Elena Amerikow and Tactiplan Pty Limited Australian Industrial Relations Commission, Commissioner Deegan, Melbourne, 7 April 2003 This case illustrates a subtle difference between state and federal industrial legislation and an area of potential advantage to employers. The applicant was a full time salesperson who had been employed on 8 October 2002 subject to an agreed 2 month probationary period when the employment could be terminated at any time by written notice. The applicant was given notice of the termination of her employment on 4 December 2002 because of poor sales but was allowed to work until 13 December because of the proximity of the Christmas season and was paid up until 17 December 2002. So, notice was given within the probationary period but the termination did not take effect until after the 2 month probationary period had ended. Both state and federal legislation contain provisions barring employees from the unfair dismissal jurisdiction when their employment is terminated within their agreed probationary period, or if there is no agreement, within a 3 month period of commencing work. However, the federal legislation, the Workplace Relations Act 1996 (Cth) also provides for a qualifying period of employment for employment before unfair dismissal proceedings can be commenced, which is also for a 3 month default period in the absence of agreement between the parties (s.170CE(5A)). The Commissioner ruled that the timing of the probationary period and qualifying period were 2 separate requirements to be met and the application was excluded because the employment was terminated within the qualifying period. There is no similar provision under the state legislation.
QUEENSLAND PARLIAMENT PASSES CIVIL LIABILITY PACKAGE Civil Liability Act 2003 (Qld) Following on from procedural reforms to personal injuries laws passed last year in the Personal Injuries Proceedings Act 2002, the Queensland Parliament passed legislation on 16 March 2003 effecting substantive restrictions to the common law of negligence with the aim of balancing the rights of injured people to sue for negligence and the need for the community and particularly volunteers, professionals, sporting organisations and community groups to be able to obtain affordable insurance cover. The legislation does not apply to work accidents but does have application to motor vehicle accidents, occupiers liability claims and claims of professional negligence, for example. The reforms include: A $250 000 cap on general damages; No liability for failure to warn of obvious risks; No liability for injuries arising from obvious risks from recreational activities; No liability where the injured person was engaged in criminal activity; Restricted claims where a person’s intoxication contributed to their injury; Changes in the standard of care for professionals.
It is hoped the changes will reduce the risk for insurance companies and accordingly result in reduced premiums. The majority of the reforms have retrospective effect from 2 December 2002. The reforms will certainly discourage smaller claims from being made. For a copy of any of the above decisions or legislation, or if you have any queries, please phone Rob Stevenson or Cecilia Doyle. |
2003 Bulletin Archive