Industrial Relations Commission New South Wales

• Medium Neutral Citation: Smith and Corrective Services [2012] NSWIRComm 30
• Hearing dates: 16 April 2012
• Decision date: 17 April 2012
• Jurisdiction: Industrial Relations Commission
• Before: Harrison DP

Decision

• Catchwords: Jurisdiction - Unfair dismissal. Annulment of probationary employees - contract of employment of probationary employee during probationary period.; Held - probationary period determined in advance - 12 month probationary period reasonable in all the circumstances. Application precluded by section 98(3)(ii) of Industrial Relations Act 1996. No jurisdiction. Application dismissed.
• Legislation Cited: Industrial Relations Act 1996; Industrial Relations (General) Regulations 2001; Public Sector Employment and Management Act 2002
• Cases Cited: Nicholson v Heaven & Earth Gallery Pty Ltd (1994) 57 IR 50
• Category: Principal judgment
• Parties: Leonie May Smith (Applicant); Corrective Services NSW (Respondent)
• Representation: Ms L Rowe, Agent (Applicant); Ms T Jowett (Respondent)
• File Number(s): IRC 1717 of 2011

Judgment

1 This is an application pursuant to section 84 of the Industrial Relations Act 1996 ("the IR Act") by Leonie May Smith ("the Applicant") seeking relief from unfair dismissal from her employment with the NSW Department of Corrective Services ("the Department").

2 The application was filed on 7 November 2011 and first listed for the purposes of conciliation and if unsuccessful, directions on 5 December 2011.

3 Ms Smith appeared on her own behalf supported by Ms L Rowe. Ms G Singer appeared for the Department.

4 At the outset of conciliation Ms Singer gave notice of an issue of jurisdiction on the basis that Ms Smith was a probationary employee, submitting that the Department was seeking advice and reserved a right to press the issue if the matter went to hearing.

5 The matter was unable to be resolved in conciliation and directions issued for preparation of the matter to hearing.

6 The parties proceeded in accordance with the directions then made including the service of a subpoena by Ms Smith seeking a range of documents from the Department returnable on 20 December 2011.

7 The matter was next before the Commission as presently constituted by teleconference on 10 February 2012. On that occasion Ms Smith appeared on her own behalf, Ms Jowett of Counsel appeared for the Department.

8 Ms Jowett sought an extension of time to 5 March 2012 to serve and file material in response. Ms Jowett again mentioned the jurisdictional issue and was directed to put it as a notice of motion if they were so advised to pursue the matter.

9 The Department was afforded to 5 March 2012 to file and serve. Ms Smith was allowed until 5 April 2012 to put on material in reply. The matter was listed for hearing on the estimate of 2 days from 10am on Monday 16 April 2012.

10 The Department filed a notice of motion on 23 February 2012 challenging the jurisdiction of the Commission and the capacity of Ms Smith to make the present application, putting that she was precluded by Clause 6(1)(C) ii of the Industrial Relations (General) Regulations ("the Regulations")

11 This Regulation states:

6 Other exemptions from unfair dismissal provisions

(1) For the purposes of section 83 (2) of the Act, the following classes of employees are exempted from Part 6 of Chapter 2 of the Act:

(a) employees engaged under a contract of employment for a specified period of time, if the specified period is less than 6 months,

(b) employees engaged under a contract of employment for a specific task,

(c) employees serving a period of probation or qualifying period, if the duration of the period, or the maximum duration of the period, is determined in advance and either:

(i) the period, or the maximum duration, is 3 months or less or

(ii) if the period, or the maximum duration, is more than 3 months - the period, or the maximum duration, is reasonable having regard to the nature and circumstances of the employment,

12 The Notice Of Motion was listed for hearing at 10am on Monday, 16 April 2012 prior to proceedings in the substantial application.

13 Submissions on jurisdiction in response to the Notice of Motion were filed on behalf of Ms Smith on 16 April 2012 (Exhibit 4).

14 The first argument advanced by Ms Smith relies upon Part 7 of the IR Act which states:

97 Notice of certain decisions etc

(1) This section applies to the following decisions made by a public sector employer in relation to a public sector employee:

(a) a decision to defer, for a period in excess of 6 months, the payment of an increment to the employee,

(b) a decision to reduce the rank, classification, position, grade or pay of the employee,

(c) a decision to impose a fine or forfeit pay,

(d) a decision to annul the appointment of an employee appointed on probation,

(e) a decision to suspend the employee as a punishment where the employee is held to be guilty of misconduct or contravention of any law or any rule or direction of the employer,

(f) a decision to dismiss the employee,

(g) a decision to direct or to require the employee to resign.

[emphasis added]

(2) A public sector employer who makes a decision to which this section applies in relation to an employee must give the employee notice, in writing, of the decision as soon as practicable after the decision is made, except as otherwise provided by an order made under subsection (4).

(3) If the employer is unable to give the employee notice of the decision within 14 days after it is made, the employer may apply to the Commission for an order as to the giving of the notice.

(4) On receipt of an application under subsection (3), the Commission may make such order as the Commission thinks fit as to the giving of the notice or may make an order dispensing with the giving of the notice.

(5) A notice may be given, or the giving of a notice may be dispensed with, in accordance with an order made under subsection (4).

(6) In subsection (1) (f):

dismiss includes dispensing with the services of an employee (including under any right or power of the Crown to dispense with the services of an employee).

(7) For the purposes of this Division:

(a) a decision of a kind referred to in subsection (1) (d), (f) or (g) is a decision that may, subject to this Act, be appealed against under section 98 regardless of whether the decision was made for disciplinary reasons, and

(b) a reference to a public sector employer making a decision of a kind referred to in subsection (1) includes a reference to any other person (including the Crown) who is authorised by or under any law to make that decision or to carry it into effect.

98 Right of appeal

(1) Despite anything contained in any other Act, a public sector employee may, subject to and in accordance with this Part, appeal to the Commission against an appealable decision of his or her employer.

(2) Such an appeal may be made on the ground that the decision appealed against was made substantially in reprisal for a public interest disclosure within the meaning of the Public Interest Disclosures Act 1994.

(3) However, employees of the following classes cannot appeal to the Commission against an appealable decision referred to in section 97 (1) (d), (f) or (g):

(a) employees engaged under a contract of employment for:

(i) a specified period of time that is less than 6 months, or

(ii) a specified task that is of less than 6 months duration,

(b) employees serving a period of probation or qualifying period, if the duration of the period, or the maximum duration of the period, is determined in advance and either:

(i) the period, or the maximum duration, is 3 months or less, or

(ii) if the period, or the maximum duration, is more than 3 months-the period, or the maximum duration, is reasonable having regard to the nature and circumstances of the employment and the statutory provisions relating to the probationary appointment of the employee concerned,

(c) employees engaged on a casual basis for a short period except those who:

(i) are engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months, and

(ii) would, but for the decision of the employer, have had a reasonable expectation of continuing employment with the employer.

[emphasis added]

15 The argument advanced is that the application is not prohibited by s98(3)(b) on the basis that the probationary period of 12 months is unreasonable and should be subject to review of the Commission.

16 The submissions on behalf of Ms Smith put that, having regard to the nature and circumstances of the position, there is no reasonable or satisfactory explanation as to why the probationary period was extended to 12 months.

17 A second submission is put that a probationary period of 12 months with the capacity to extend it does not determine the maximum period of probation and accordingly the period of probation was not determined in advance and was not reasonable.

18 The submissions filed further concern the merits of the case, making assertions as to the reasons for annulment of the employment, which are contended to be unlawful.

19 It is necessary to resolve the issue of jurisdiction prior to consideration of substantive issues.

20 The Department provided a response, dated 12 April 2012 (Exhibit 3), to the submissions filed on behalf of the applicant.

21 The Notice of Motion was heard at the outset of proceedings of 16 April 2012.

22 Ms L Rowe appeared as agent for and with Ms L Smith.

23 Ms Jowett continued her appearance on behalf of the Department with Ms G Singer.

24 The Notice Of Motion is supported by an affidavit by Ms Glenn Singer in the capacity of legal officer at the Department of Attorney General and Justice (Corrective Services NSW) dated 23 February 2012 (Exhibit 1).

25 Ms Singer was not required for cross examination.

26 The evidence of Ms Singer is that Ms Smith:

(i) accepted and signed an offer of appointment, on probation for 12 months, to the position of Accommodation Support Worker ["ASW"] on 21 February 2011 ["Offer of Appointment"];

(ii) the position of ASW was for the diversionary Community Offender Support Program at Miruma Cottage, adjacent to the grounds of Cessnock Correctional Centre;

(iii) commenced employment on 14 March 2011 with induction training at the Brush Farm Corrective Services Academy at 66 Terry Road, Eastwood;

(iv) on 4 April 2011, commenced duties at Miruma Cottage;

27 The evidence of Ms Singer is supported by a copy of the letter of offer of employment on the basis of probation for 12 months to Ms Smith undated and a copy of the acceptance of that offer signed by Ms Smith on 21 February 2011.

28 The evidence of Ms Singer is that all employees of the Department are engaged on 12 months probation in accordance with section 23(1) of the Public Sector Employment and Management Act 2002 [NSW] ("PSEM Act").

29 Section 23(1) of the PSEM Act provides:

"...every person admitted to the Public Service as an officer must, in the first instance, be appointed to a position on probation for a period of 6 months or such longer period as the appropriate Department Head directs."

30 Ms Singer's evidence is that all new employees of the respondent are employed on a standard probationary period of 12 months, in accordance with the determination of the Head of the Department as authorised by s23(1) of the PSEM Act, expressed in a document titled "Confirmation of Appointment - Policy and Guidelines" of the Human Resources Division, tendered as attachment B to the affidavit of Ms Singer (Exhibit 2).

31 Ms Rowe and Ms Jowett relied upon their written submissions.

32 Ms Rowe pressed her argument that, having regard to the nature of the position, a 12 month probationary period was unreasonable.

33 There was no substantive disagreement between the parties as to the scope and nature of the work performed.

34 It is useful to record the Department's submissions in respect to the test of reasonableness. Ms Jowett submitted that:

24..... by applying the test in Nicholson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233; 57 IR 50, the nature of Ms Smith's position, shift work, the size, location and mode of operation of the Miruma facility of the Respondent, both lead to the conclusion that the 12 months probationary period is "reasonable having regard to the nature and circumstances of employment".

Nature of the Job

25.Ms Smith's position did not involve "repetitive duties under close supervision". Rather, it was a level 5-6 position that required "the position holder [to] make[s] decision based on independent professional judgment" and "a high degree of autonomy in regard to the determination of priorities, workload and day to day delivery of services". The position holder was often working unsupervised for large portions of a shift or not supervised at all on the night shift.

26.The level 5-6 position is not a "relatively unskilled position". It requires the position holder to:

• "supervise, support and case management of offenders in a residential setting";

• "make informed judgments in deciding if a resident is deemed to have breached house rules and therefore must undergo a search, urinalysis and/or counselling."

• "provide information, advocacy and counsel in an objective fashion in a sometimes stressful environment";

• "provide information, expertise and support in terms of crisis intervention that assists in the resolution of critical situations";

• "Maintain a high level of communication between staff members through verbal and written means, including fully briefing colleagues at the changeover of shifts";

• "Resolving conflicts between residents utilising current conflict resolution practices";

• "Remaining objective when dealing with emotional situations";

• "Operating within a sensitive environment that is open to public scrutiny and remaining conscious of the possible repercussions of decisions and actions";

• "Working with medium to high risk clients with complex needs and issues";

• "Balancing the dual role of providing support and guidance whilst ensuring the protection of the community";

• "Proven ability to carry a case load and work as part of a team dedicated to the wellbeing of the residents and safety of the community".

27.The above list demonstrates that Ms Smith's job is challenging and is one that the "quality of performance cannot be immediately apparent" given that she was on rotating roster of shift work over 5 months.

28.The imposition of a 12 months probationary period by the Respondent is necessary and reasonable to enable the Respondent to ensure that the job can be performed by employees with demonstrated ability to meet the challenge of the job.

Size, location and mode of operation of the Respondent and the Miruma facility

The Respondent

29.The Respondent provides custodial and community-based correctional services as an important element of the NSW criminal justice system. Its priority is to contribute to a safer community by reducing the risk of re-offending.

30.The Respondent needs to ensure that the probationary officer has the skills and behaviours to: (a) maintain appropriate standards of conduct and work-related performance; (b) protect and enhance the reputation and integrity of CSNSW and (c) ensure the public interest is protected.

31.In the circumstances it is reasonable that the Respondent to sets a probationary period of 12 months in order to achieve the above objectives of the Respondent.

The Miruma facility

32.The Miruma facility is a new diversionary program aimed at providing "an alternative to custody for female offenders with mental health disorders and/or mild intellectual disabilities who also abuse alcohol or other drugs".

33.It is reasonable for the Respondent to set a 12 months probationary period for a job that has to deal with female offenders with mental health disorders and/or mild intellectual disabilities who also abuse alcohol or other drugs.

Location

34.The Miruma facility is "on the grounds of the Cessnock Correctional Centre".

35.The location of the Miruma facility highlights the inherent importance and risky nature of the position. This again makes it necessary and reasonable to have a probationary period that is 12 months.

Size

36.The Miruma facility "consists of five refurbished three bedroom homes, accommodating up to 11 residents". This is akin to a small office environment where the employees would have to work closely together as a team.

37.If a probationary officer cannot work closely and harmoniously with other employees and residents, the problem is exacerbated given the size of the facility.

38.Therefore, it is reasonable for the Respondent to require a 12 months probationary period because of the importance of ensuring that the probationary officer can work closely with other employees and as a team and with residents with special needs.

Personal characteristics and circumstances of the employee

39.Before joining the Respondent, Ms Smith had considerable experience in residential care facilities.

40.However, Ms Smith had no prior experience within Corrective Services NSW.

41.Ms Smith also had no prior experience in dealing with female offenders with mental health disorders and/or mild intellectual disabilities who also abuse alcohol or other drugs.

42.Given the inherent importance and risky nature of the job, it is therefore reasonable for the Respondent to require a 12 months probationary period to assess Ms Smith's suitability and fitness to carry out the duties of the position.

35 Ms Rowe also relied upon the Decision in Nicholson, submitting that the applicant is an experienced caseworker with extensive experience in dealing with complex-needs people. Ms Rowe submitted that the position of Accommodation Support Worker with the Department has the same roles and functions as the applicant's former positions and other similar positions within non-Government organisations, all of which have a three month probationary period.

36 In her written submissions Ms Rowe put:

"The probation period set out by CSNSW is not directly related to the tasks or role it is the standard period of probation which is assigned to most new public service employees without regard for the experience, training and qualifications; including IT positions, client services positions, youth workers, cleaning and so on."

CONSIDERATION

37 The unrefuted evidence is that Ms Smith commenced employment with the respondent on 14 March 2011 on the basis of 12 months probation. The probationary period was agreed by Ms Smith in advance of her employment by signature accepting the offer of employment on those conditions on 21 February 2011.

38 Having regard to all of the duties and circumstances of the position I conclude that the probationary period of 12 months was reasonable.

39 The probationary period was determined in accordance with a statutory entitlement afforded the employer, and its application as a general policy does not visit any unfairness upon Ms Smith or cause it to fail the test of reasonableness.

40 I do not regard the capacity to extend the probationary period beyond 12 months as fatal to the jurisdictional argument in this case.

41 The employment of Ms Smith was terminated by the employer within the 12 month probationary period on 4 November 2011.

42 The Commission will not lightly intrude upon the exercise of a statutory right or the agreement of the parties.

43 The capacity to extend the probationary period did not arise. The letter of offer of employment accepted by Ms Smith (Exhibit 1 attachment B) does not mention a capacity to extend the probationary period beyond 12 months.

44 Should that occur each case must be considered on its merits, however, an extended probationary period will more often be an advantage to the employee compared to termination of employment.

45 I determine that Ms Smith is precluded from making the present application by the terms of s 98(3) of the IR Act and cl 6(1)(ii) of the Regulations, both of which give clear expression of the legislative exclusion of probationary employees from this part of the IR Act.

46 The matter fails for want of jurisdiction and is so dismissed.

47 Matter No IRC 1717 of 2011 is so concluded.

**********

Decision last updated: 18 April 2012