Note: An appeal pursuant to s.604 (C2010/3078) was lodged against this decision - refer to Full Bench decision dated 4 May 2010 [[2010] FWAFB 3307] for result of appeal.

[2010] FWA 1170

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FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.643 - Application for relief re (Harsh, Unjust or Unreasonable) termination of employment

VICE PRESIDENT WATSON

SYDNEY, 15 FEBRUARY 2010

Termination of employment - jurisdictional objection – whether termination occurred during probationary period – whether termination occurred during qualifying period - whether probationary period reasonable – whether qualifying period reasonable – Workplace Relations Act 1996 – ss 638, 643

Introduction

[1] This decision relates to an application by Dr Paul Barach under s 643 of the Workplace Relations Act 1996 (the Act) alleging that the termination of his employment was harsh, unjust or unreasonable. The application was made on 13 July 2009. Pursuant to items 11 and 12 of Schedule 2 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Fair Work Australia can exercise the powers of the Australian Industrial Relations Commission under the Act.

[2] The University of New South Wales (the University) filed a notice of motion to dismiss the application on the grounds that at the time of termination of his employment Dr Barach had not completed his qualifying or probationary period of employment. The University contends that both the qualifying and probationary periods were determined in advance, were in writing and were reasonable having regard to the nature of employment.

[3] The matter was unable to be resolved through conciliation. The matter was listed for hearing in relation to the jurisdictional issue. During the proceedings Ms C Howell of counsel represented Dr Barach and Mr A Gotting of counsel represented the University. The matter was heard on 29 September, 1 October, 19 October, 12 November and 18 December 2009.

Background

[4] There is a complex history surrounding the commencement of Dr Barach’s employment by the University which is relevant to the determination of the issues before me. The key events in that history include the following:

• Dr Barach applied for the positions of Professor of Injury Risk Management and Director of the Industry Risk Management Research Centre (IRMRC) at the University on 10 August 2007. At the time he resided in the Netherlands. He was interviewed for the position on 28 September 2007 and advised that he had been selected as the successful candidate on 13 November 2007.



• The University emailed an offer of employment to Dr Barach on 16 November 2007. The original offer of employment contained the following paragraph:

“This appointment is available for an immediate start and will be for a period of 5 years. This appointment is also subject to the satisfactory completion of a qualifying probationary period of twelve months.”

• The offer also stated that Dr Barach would require an appropriate visa and that the University would sponsor his application for a visa after the offer of employment was accepted in writing. The University advised Dr Barach that it would sponsor his application for a permanent residence visa in late November 2007 and arranged for him to visit the University, meet certain stakeholders, investigate accommodation and schools and assist him in considering whether to accept the offer.



• On 16 January 2008 Dr Barach advised the University that he intended to accept the offer but there were a number of issues he wished to discuss further before finalising his acceptance.



• On 29 February 2008 the University advised Dr Barach that his employment cannot commence until he obtains a valid visa. The University subsequently sponsored his application and the Department of Immigration and Citizenship advised Dr Barach that he had been granted a permanent residency visa on 10 September 2008.



• Dr Barach had intended to take up his employment in around mid 2008 but the delay in obtaining his visa deferred the commencement of his employment. In the intervening period Dr Barach performed a range of activities relevant to his employment including having input into grant applications, attending advisory and selection committee meetings, planning a staff retreat and drafting a strategic plan for the IRMRC. He was subsequently paid for these activities as a consultant. Payment was made on the basis of a summary of activities and a claim for payment for 104 hours from 4 August to 14 September forwarded by Br Barach to the University on 21 September 2008.



• Dr Barach’s appointment at the Universitair Medisch Centrum in the Netherlands ended on 30 August 2008.



• Dr Barach formally accepted an amended offer of appointment on 8 September 2008 and commenced employment in Sydney on 15 September 2008. The amended offer contained the following paragraphs:

“This appointment is available for a September/October 2008 start and will be for a period of 5 years. This appointment is also subject to the satisfactory completion of a qualifying probationary period of twelve months.

.....

If you wish to accept this offer, please sign the attached copy of the letter and return all pages to the Human Resources Department.

….

Please note that no one other than the Director, Human Resources is authorised by the University to convey to you variations to the conditions of your appointment and this letter supersedes all prior discussions and communications and represents the entire conditions of employment.”

• On 23 June 2009, the University terminated Dr Barach’s employment.

Statutory Provisions

[5] Section 638(1)(c) of the Act provides:

(1) The following kinds of employee are excluded from the operation of Subdivisions B, D and E and sections 660 and 661:

........

(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] Section 643(6) and (7) of the Act provides:

(6) An application under subsection (1) must not be made on the ground referred to in paragraph (1)(a), or on grounds that include that ground, unless the employee concerned had completed the qualifying period of employment with the employer at the earlier of the following times:

(a) the time when the employer gave the employee the notice of termination;

(b) the time when the employer terminated the employee’s employment.

(7) For the purposes of subsection (6), the qualifying period of employment is:

(a) 6 months; or

(b) a shorter period, or no period, determined by written agreement between the employee and employer before the commencement of the employment; or

(c) a longer period determined by written agreement between the employee and employer before the commencement of the employment, being a reasonable period having regard to the nature and circumstances of the employment.

The Issues to be Determined

[7] The University contends that the application is beyond the jurisdiction of the tribunal because Dr Barach’s employment was terminated:

• during a 12 month probationary period which was determined in advance and was reasonable having regard to the nature and circumstances of the employment, and



• during a 12 month qualifying period of employment which was determined by written agreement between the parties before the commencement of the employment being a reasonable period having regard to the nature and circumstances of the employment.

[8] It is accepted that for practical purposes in this case the outcome is likely to depend on the conclusion to the first contention. It is not disputed that the probationary period was determined in advance. If a probationary period is not considered to be reasonable it is unlikely that any qualifying period which otherwise satisfies the requirements of s 643(7) would be considered to be reasonable. If the probationary period is considered reasonable it is unnecessary to consider whether the employment was also terminated within a qualifying period. Hence the parties concentrated their submissions on the reasonableness of the 12 month probationary period and the circumstances relevant to that question.

The Reasonableness of the Probationary Period

[9] The University contends that various circumstances of the position held by Dr Barach establish the reasonableness of the 12 month probationary period. These circumstances include:

• the written agreement of the parties,



• the University’s practice of including a 12 month probationary period in contracts for academic staff,



• the 12 month period was in line with the period permitted by the University’s enterprise agreement made with the National Tertiary Education Industry Union (NTEU),



• the 12 month period was consistent with the practices of some of the other Universities in the Sydney region,



• the key functions of the employment included elements which can only be fully assessed over a 12 month period, and



• Dr Barach had not previously been employed in Australia and hence had no experience in relevant functions in Australia, or dealings with relevant Australian bodies.

[10] The University also submits that the fact that the University adopts a practice of a 12 month probationary period and in some cases has reduced or waived its standard 12 month period does not render the 12 month period unreasonable.

[11] Dr Barach submits that the 12 month period was not reasonable because of factors which include the following:

• the enterprise agreement establishes 12 months as the maximum probationary period,



• the adoption of 12 months was generally and specifically to Dr Barach arbitrary, irrational and unfair,



• about 25% of the contracts of employment offered at Professorial level did not include a probationary period,



• Dr Barach was not aware and was not informed of the legal significance of the probationary period but was told that his employment was as a continuing employee,



• Dr Barach gave up secure paid employment to accept the University’s offer,



• Dr Barach relocated his family from overseas,



• the contract did not include financial compensation for relocation in the event of termination during the probationary period,



• the nature and seniority of the position,



• Dr Barach performed a significant amount of paid and unpaid work associated with the role and hence a longer than 12 months period existed to assess his conduct and performance,



• no identifiable process was put in place to assess Dr Barach’s performance during the probationary period,



• Dr Barach’s only Supervisor, Professor Archer did not consider a probationary period necessary and was unaware of its application.

[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. 1 The University bears the onus of establishing that the 12 month probationary period was reasonable.2 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.3

[13] In this matter there is little contest in the facts and circumstances involved. The parties have led evidence of different aspects of the employment and the events prior to the commencement of employment and sought to emphasise different aspects in their submissions. I have had regard to the totality of the evidence and the matters sought to be relied on by the parties.

[14] In my view it is significant that a 12 month probationary period is the standard probationary period for academic staff at the University, even though it is waived or shortened in some cases. It is also significant that the period is expressly permitted by agreement of the NTEU and is also utilised at other comparable tertiary institutions.

[15] The knowledge of Dr Barach’s work including his reputation and high standing and significant drive and energy by virtue of the work he performed during the extended period prior to commencing his employment are factors suggesting that a full 12 month probationary period may not have been necessary. However much of this work was performed from outside Australia when the Acting Director was in place and was of a piecemeal nature. It was not easy to monitor or supervise. Dr Barach’s unfamiliarity with Australia and the relevant Australian contacts and the staff of the University suggest that a longer than normal probationary period may be reasonable. Dr Barach’s reputation was impressive, but his effectiveness in the Australian environment was an unknown quantity.

[16] I also consider that the nature of Dr Barach’s employment – a responsible leadership position – is an important consideration. The nature of his role suggests that an extended period is necessary to assess his suitability. Short term experience may impress and show considerable promise. Whether the performance is sustained or whether anticipated achievements are delivered in practice can usually only be assessed over a more lengthy period of time.

[17] In a general sense the more complex the accountabilities of a position the more it is appropriate to consider performance over an extended period. This usually corresponds to the seniority of the position. The level of independence of the position is also a relevant factor. Generally positions which involve considerable independence require an extended period to assess effectiveness in the role. The level of existing familiarity is also a relevant consideration. A person promoted from within an organisation might reasonably expect that a probationary period should be shorter than for someone with whom the University has no direct experience.

[18] Dr Barach was offered employment on the University’s standard terms. He raised no issue with the probationary period. In my view the University adopted a course which it reasonably could be expected to follow and could not be described as unreasonable or unfair.

[19] Having regard to the factors relied on by the parties concerning the nature and circumstances of the employment I conclude that the 12 month probationary period was reasonable.

Conclusions

[20] I have concluded that Dr Barach’s employment was terminated during a probationary period which was reasonable having regard to the nature and circumstances of his employment. It is unnecessary to consider the alternative bases for submitting that the application is without jurisdiction. The tribunal does not have jurisdiction to deal with this matter. Dr Barach’s application is dismissed.

VICE PRESIDENT WATSON

Appearances:

Ms C Howell of counsel with Mr G Robertson for Dr Barach

Mr A Gotting of counsel with Ms N Gower for the University of New South Wales

Hearing details:

2009.

Sydney.

September 29

October 1, 19

November 12

December 18

 1   Mann v State Rail Authority [1999] 97 IR 385 at [18] and authorities therein cited.

 2   Ibid [19]

 3   Pisa and Merritt v Country Fire Authority Print T0960.

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