//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2002] AIRC 1302
procedural. Jurisdictional objection based on an asserted probationary period dismissed; statutory declaration given minimal weight; substantive hearing to resume. Commissioner adopted reasoning in Pontidis v...
The employee (Mr Sabeto) was dismissed after about four months. The employer said he was still within a four month probation period established by a Branch Managers Agreement; if true, that would remove the Commission's jurisdiction under regulation 30B. The employer could not produce the signed document containing the probation clause and relied on oral evidence and an unavailable witness's statutory declaration. The Commissioner found the employer had not proved, on the balance of probabilities, that the probation period applied, gave minimal weight to the unsigned statutory declaration, followed prior Commission reasoning in Pontidis, and dismissed the jurisdictional objection so the substantive matter could proceed.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
1,734 words · generated 20/06/2026
The Applicant, Mr Ben Clifford Sabeto, was employed by Waterloo Car Centre Pty Limited (trading as Red Spot Car Rentals) as Manager of the Melbourne branch from early December 2001 and was terminated on 9 April 2002 (see [9]-[10], [22]). The Respondent asserted that the Applicant was subject to a four month probationary period set out in a Branch Managers Agreement that entitled the company to terminate the employment without the protections in Part VIA, Division 3 of the Workplace Relations Act (see [11], [6]-[7]). The Applicant denied ever receiving or being told of such a probationary term (see [14]-[15]).
1 cited instrument linked from this judgment.
At a jurisdictional hearing the employer produced signed copies of other employment documents but not the critical Branch Managers Agreement said to contain the probation clause; the employer's witness, Mr Benn (General Manager - National Operations), said he witnessed the Applicant sign the Agreement on 10 December 2001 but the signed copy had been misplaced during an office refurbishment (see [16]-[18], [21]). The Respondent also tendered a statutory declaration from a former employee, Mr Arnold, claiming to have witnessed the signing, but Mr Arnold was not produced for cross-examination (see [29]-[31]).
Commissioner Spencer held that the onus lay on the Respondent to prove, on the balance of probabilities, that the Applicant was serving a probationary period at the time of termination (see [27]). The Commissioner found the evidence difficult to resolve, attached minimal weight to the untested statutory declaration, adopted the reasoning of Commissioner Whelan in Pontidis v Pepsup Management Pty Ltd, and concluded that the Respondent had not discharged the onus. The jurisdictional objection was dismissed and the substantive hearing directed to resume (see [32]-[34]).
There are three connected reasons recorded in the decision.
The allocation of the evidentiary onus. The Commissioner emphasised that the party asserting the existence of the probationary period (the Respondent) bears the burden of proof to establish it on the balance of probabilities (see [27]). That placed a positive obligation on the employer to produce sufficient evidence.
The absence of the critical signed document. Although the Respondent produced other signed employment documents, it could not produce the signed Branch Managers Agreement containing the probation clause. The Respondent's explanation, that the signed copy had been misplaced during an office refurbishment, did not supply the missing evidentiary link. The Commissioner found the absence of the document made the question difficult to determine, and that the mere credibility of oral witnesses was insufficient to discharge the onus without the document or adequate corroboration (see [12]-[19], [26]).
The limited weight afforded to the statutory declaration of an unavailable witness. The Respondent relied on a statutory declaration by Mr Arnold that he witnessed the Applicant sign the Agreement. Commissioner Spencer considered whether the Respondent had taken sufficient steps to secure Arnold for attendance and cross-examination and concluded that those steps were insufficient. Consequently the declaration was admitted only with minimal weight (see [30]-[32]). The Commissioner also expressly adopted the approach in Pontidis where similar evidentiary balancing led to dismissing a jurisdictional objection (see [33]-[34]).
Finally, the Commissioner noted the practical consequence: finding for the Respondent on the jurisdictional point would have denied the Applicant an opportunity to have the merits of his claim tested. That consequence weighed in the balance where the evidence was evenly poised (see [33]).
Before this decision (and as restated in it), regulation 30B(1)(c) operates to exclude certain employees from termination protections where they are serving a probationary/qualifying period provided three prerequisites are met: (1) the employee is serving such a period, (2) the duration or maximum duration was determined in advance, and (3) the period is reasonable having regard to the employment (see [6]-[8], [11]). The legislative threshold for exclusion thus requires a factual finding about the contractual term and its reasonableness.
Commissioner Spencer applied established evidentiary principles: the party asserting a jurisdictional exclusion must prove it; documentary proof is the most cogent; hearsay statutory declarations from unavailable witnesses may be received but must be afforded weight only after considering whether reasonable steps were taken to secure the witness for cross-examination (see [27], [30]-[32]). The Commissioner expressly followed the reasoning in Pontidis v Pepsup Management Pty Ltd, signalling continuity within decisions of the Commission when dealing with similar evidentiary difficulties (see [33]-[34]).
After this decision, the practical approach confirmed is that employers relying on a probationary clause to exclude jurisdiction must ensure the contractual documentation is produced and, if relying on witness statements, secure attendance for cross-examination; absent that, the Commission will likely dismiss a jurisdictional objection. The decision is consistent with prior Commission practice rather than a change of law.
Paragraph 27: "The onus lies with the Respondent to establish that it was more probable than not that the Applicant was serving a period of probation at the time of his termination of employment." Plain English: The employer must prove, on the balance of probabilities, that a probationary term applied when it dismissed the employee. If the employer cannot prove this, it cannot rely on reg 30B to avoid the Commission's jurisdiction.
Paragraph 26: "In the absence of the signed document setting out the probationary period, the matter has been difficult to determine, principally as both witnesses were credible." Plain English: Because the company could not produce the signed contract with the probation clause and both sides’ witnesses seemed believable, the Commissioner could not comfortably decide the dispute in the employer’s favour.
Paragraph 32: "I am not satisfied that sufficient endeavours were made to bring Mr Arnold before the Commission... I therefore have attached minimal weight to this declaration." Plain English: The Commissioner admitted the statutory declaration from the absent witness but would not give it much importance because the company had not done enough to get that person to testify live.
Paragraph 34: "I adopt the reasoning of Commissioner Whelan... I am not satisfied that a probationary period was in existence. The jurisdictional objection is therefore dismissed..." Plain English: The Commissioner followed an earlier Commission decision with similar facts, concluded the employer did not prove there was a probationary period, and threw out the employer’s objection so the main case can go ahead.
Paragraph 11: Quoted probation clause text. Plain English: The clause alleged the manager was on probation for four calendar months starting from commencement and could be dismissed with seven days' notice during that period, with no claim allowed.
This decision is directly engaged where an employer seeks to rely on a probationary clause to oust the Commission's jurisdiction but cannot produce the signed contract containing that clause. Triggering features include:
This decision itself records reliance on and adoption of Pontidis v Pepsup Management Pty Ltd (see [33]). The judgment cites and follows prior Commission authority when facing an evidentiary stalemate: if the employer cannot prove the probationary term, the jurisdictional objection should be dismissed to preserve the employee's opportunity to have the merits determined (see [33]-[34]). The present decision does not itself report any subsequent appellate treatment. The immediate effect within the Commission is to reinforce the evidentiary posture described above: documentary production and live testimony are crucial when seeking to deny jurisdiction under reg 30B.
Because the judgment does not canvass later appellate authorities or subsequent treatments outside the Commission, this deep dive cannot assert how superior courts have treated this specific decision beyond the Commission's internal precedent pattern demonstrated here.
The decision leaves some issues not finally resolved within the text and which may arise in future litigation:
Concluding observation: Commissioner Spencer’s decision is a practical demonstration that when employers seek to exclude statutory termination protections by relying on probationary clauses, they must front up with solid documentary proof or live witnesses. Otherwise, because of the potentially decisive effect of the jurisdictional finding on an employee’s right to have the merits of their claim heard, tribunals will not lightly infer the existence of a probationary term from uncorroborated oral evidence or untested declarations (see [26]-[34]).
s.170CE application for relief in respect of termination of employment
Termination of employment -jurisdiction - probationary period
[1] This matter concerns a jurisdictional objection raised by the Waterloo Car Centre Pty Limited, trading as Red Spot Car Rentals (the Respondent), to an application filed by Mr Ben Clifford Sabeto (the Applicant) for relief pursuant to s.170CE of the Workplace Relations Act 1996 (the Act) in relation to his termination of employment.
[2] The objection is based on the Respondent's contention that the Applicant was serving a period of probation or qualifying period of employment pursuant to s.170CEA.
[3] The hearing of the substantive matter, with the jurisdictional issue proceeding initially, occurred in Melbourne on Wednesday, 2 October 2002. Prior to commencing this jurisdictional hearing, the parties agreed to endeavour to conciliate this matter with the Commission's assistance. It was resolved that the matter could not be conciliated, and both parties recorded that they did not object to then proceeding with the arbitration.
[4] The hearing of the jurisdictional matter proceeded until approximately 2.30pm that day, at which time I adjourned to consider the matter. On resumption of the hearing I made the following statement:
"In the interim adjournment, I would indicate that I have not been able to satisfy myself in the limited time on the consideration of the materials before me in relation to the jurisdictional issue. Accordingly, I intend to reserve my decision on that particular issue and proceed to hear this matter to conclusion and then provide a decision in these matters".
[5] The hearing of the substantive matter did not conclude on that day and is scheduled for final hearing in Melbourne on Monday, 28 October 2002. Accordingly, the following decision is provided on the jurisdictional issue as to whether the Employee was serving a probationary period at the time of termination.
[6] Section 170CC of the Act provides, in part, as follows:
(1) The regulations may exclude from the operation of specified provisions of this Division specified classes of employees included in any of the following classes:... ...
....(b) employees serving a period of probation or qualifying period;......"
[7] Pursuant to s. 170CC, Regulation 30B provides, in part:
"30B Certain Employees excluded from requirements for termination of employment
(1) For subsection 170CC (1) of the Act, the following kinds of employees are excluded from the operation of Subdivisions B, C, D, E and F of Division 3 of Part VIA of the Act:... ...
...... (c) an employee serving a period of probation or a qualifying period of employment, 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....."
PROBATIONARY OR QUALIFYING PERIOD OF EMPLOYMENT
[8] Regulation 30B(1)(c) includes three prerequisites that must be met to exclude employees on the jurisdictional basis of a period of probation or qualifying period:
· the employee must be serving a probationary or qualifying period of employment;
· the duration of that period or the maximum duration of it must have been determined in advance; and
· the length of the period must be reasonable in the circumstances.
[9] The head office management base of the business is in Sydney, near Mascot Airport. The business incorporates car rental and car sales divisions and a licensing division for car rentals. The business has five state offices including the head office in Sydney.
[10] The Applicant commenced employment with the Respondent as Manager of the Melbourne Branch in early December 2001. The parties disagree on the commencement date. The Applicant was terminated on 9 April 2002 for alleged misconduct. The Respondent states that the terms of his employment were specified in a series of five documents. However, the Applicant denies that he was ever shown one of the documents (the Branch Managers Agreement[1]) that includes the term of the probationary period. The Respondent was able to produce signed copies of all of the employment related documents, except this document which specified the probationary period.
[11] The Respondent contends that the Branch Managers Agreement included a four month probationary period in the following terms:
"Probation Period: Until the date 4 calendar months from commencement date. Probation means the Company may terminate employment at any time by giving the manager 7 days notice without recourse of claim by the Manager."
[12] In the absence of the signed copy of the Branch Managers Agreement, in combination with the Applicant's denial of the existence of a probationary period, this matter therefore predominantly turns on the evidence of the Applicant and Mr Benn, General Manager - National Operations.
[13] There was no definitive evidence, apart from the Respondent's contention that the probationary period was a term of the Branch Managers Agreement, that a probationary period was specifically conveyed to the Applicant or relied upon during the period of employment.[2]
[14] The Applicant denies having ever discussed that he was subject to a probationary period with the Employer. He also denied having ever received the Branch Managers Agreement document setting out the four month probationary period[3]. However, he did provide copies of the other documents; namely, the Management Agreement[4], the Internet and Email Policy[5], the Staff Accident Declaration[6], and the Tax File Declaration Form[7].
[15] Mr Grey, on behalf of the Applicant, submitted:
"It is my client's assertion that he, at no stage, was the subject of - a probation period ever broached with him. On the contrary he presumed that he had a job as from day one. He had undergone the requisite training period and had been placed in charge of a Melbourne office of the Respondent company. The Respondent had at - on a daily basis, an opportunity to raise with Mr Sabeto the idea of a probation period. Similarly, the Respondent had ample opportunity to raise with him the opportunity of a probation period, if and when any discussion was made about his - the way he operated the Melbourne branch of the office. At no stage was that ever done."[8]
[16] It is curious that the Respondent could produce signed copies of all the other documents, with the exception of the critical document containing the alleged probationary period.
[17] Mr Benn stated he witnessed the Applicant signing the document on the tenth of December in Sydney. However, when asked: "And where is a signed copy of that document now?"[9], he said:
"We have actually misplaced the signed document. We have had a refurbishment at our Mascot office. We have a small, humble office there. We have upgraded the office, put in new, basically, work stations, etcetera. Obviously through the course of us archiving a lot of our materials, one key ingredient has gone astray out of the whole scenario".[10]
[18] Under cross-examination, he confirmed that the copy of the document containing the probationary period had been kept with the other documents in a manila folder, in a cabinet, and had somehow been misplaced in the office refurbishment[11]. He noted that other documents have also been misplaced as a result of the office refurbishment. However, he could not confirm the timing of the refurbishment.
[19] The Respondent contends that a number of parts of the employment contract (for example, the mobile phone and fuel allowances) would not have been known to the Applicant if the Branch Managers Agreement had not been in place. However, the Applicant asserted that these issues were not confirmed with him.
[20] It is agreed that Mr Benn, General Manager - National Operations for the Company, interviewed the Applicant in the Melbourne office on 3 December 2001. The Applicant was invited to fly to Sydney at his own cost for a second interview. He was the only Applicant invited for a second interview. From here, the evidence of the parties is opposed. Whilst it was confirmed that the second interview took place on Friday, 7 December 2001, the parties disagree on the issue of whether the Applicant undertook a five day training period in the Sydney office prior to 10 December 2001.
[21] Mr Benn provided evidence that the Applicant's employment commenced on 10 December 2001, on the day he signed his employment documents, and he was paid from this date. However, the Applicant stipulates he was not paid for the five day training period undertaken prior to 10 December 2001. I prefer Mr Benn's evidence on this issue.
[22] The termination occurred on 9 April 2002, one day prior to the expiration of the probationary period, on the Respondent's evidence, with the contract commencing on 10 December 2001. The termination date is outside the four month period if the Applicant's stated one week of training prior to 10 December is included.
[23] Mr Benn stated that the Branch Managers Agreement is a standard template document used by the company to employ all Branch Managers[12]. Mr Benn referred to the four month probationary period in this document as being the standard period used to assess managers and that he considered this period to be a reasonable period, given the distance of the interstate offices from the head office where he was based, and the autonomy of the managers.
[24] The nature of the Applicant's job was outlined by Mr Benn as follows:
"Insofar as Mr Sabeto returned to Melbourne to run the office, what level of autonomy did he have in that office?---Complete control of the organisation, including hiring and firing of staff, basically as well office administration, daily banking duties such as American Express, such as credit card entries, also barter card conciliation, security of the branch; just all facets that basically a manager would have I guess under the circumstances.
And how regularly did you travel to Melbourne?---Depending, normally what I used to normally do is I would visit our Brisbane office. That was normally on a five to six week basis. In return I guess basically down to Melbourne. Initially I guess the visitation frequency was probably I guess four to five weeks. Then as Mr Sabeto settled in, obviously it was five to six weeks where I would appear down at the offices.
And who ultimately was responsible for the running of the Melbourne office in Melbourne?---In Melbourne itself, Ben Sabeto was."[13]
[25] This issue of whether the period was reasonable is dependent on the initial finding of the existence of a probationary period. If, in the alternative, I had found that a probationary period existed, I note that the four month period may be considered to be reasonable, given the autonomous nature of the Applicant's management of the Melbourne Branch and its removed location from the head office in Sydney.
[26] In the absence of the signed document setting out the probationary period, the matter has been difficult to determine, principally as both witnesses were credible.
[27] The onus lies with the Respondent to establish that it was more probable than not that the Applicant was serving a period of probation at the time of his termination of employment.
[28] I acknowledge Mr Harrington's submission that this is not a case involving a complete absence of documentation[14] on the probationary period, but the absence of the critical signed copy of that document. I am cognisant of the fact that the only evidence (open to examination) in support of the probationary period was that of Mr Benn.
[29] I have considered the declaration of Mr Michael Joseph Arnold, in line with the fact that Mr Arnold (a former employee of the Respondent) was not produced as a witness to be cross-examined "due to his work commitments".
[30] Mr Harrington submitted that Mr Arnold's declaration provided corroboration of Mr Benn's evidence, in that Mr Arnold set out that he witnessed the Applicant signing the Branch Managers Agreement. Mr Harrington stated:
"Commissioner, you have a document here before you which is not just a document like a file note it is actually a declaration under statute which has been witnessed. Referring, as I must, to the unavailability of persons, if you turn to page 160, the next page in the document I handed to you, which sets out the provision, unavailability of persons is defined in section 4(1) of the Evidence Act - Commonwealth Evidence Act. And at section 4(1)(f):[15]
That a person is taken not to be available to give evidence about a fact if all reasonable steps have been taken by parties seeking to prove the person is not available to compel the person to give the evidence but without success.[16]
Mr Benn today gave evidence that he did speak to Mr Arnold and Mr Arnold was not in a position to attend Melbourne today. On that basis, Commissioner, I seek to tender this statutory declaration. It is open to the Commission to accept the declaration as evidence of its contents, even though it is hearsay, but attribute the appropriate weight to the statements and the facts that it asserts given that my learned friend has not been given an opportunity to cross-examine Mr Arnold with respect to that which Mr Arnold asserts in the statutory declaration."[17]
[31] In response to the declaration, Mr Grey, on behalf of the Respondent, argued it would be necessary to cross-examine Mr Arnold as to which documents he saw the Applicant sign and which were witnessed in writing. Mr Grey highlights the fact that the Staff Accident Declaration form which includes provision for a witness to sign was not actually witnessed. Mr Grey also submitted:
"...You also heard that there was various people moving around the office; that work was being carried on. I think it would be necessary, Commissioner, to discuss with Mr Arnold exactly what he did see, what he could recall.[18]
"Whether he saw Mr Sabeto sign each document individually and who else was present. I also submit that if you do, in your discretion, admit the document, that you give it minimal weight, Commissioner."[19]
[32] I am not satisfied that sufficient endeavours[20] were made to bring Mr Arnold before the Commission given that the Respondent argues his evidence is critical in establishing that that the Applicant signed the document including the probationary period. As a further consideration of this matter, I emphasise that I must afford the parties natural justice and a "fair go all round". I therefore have attached minimal weight to this declaration.
[33] This matter has been difficult to assess due to the disparity in the evidence. I find myself in similar circumstances to Commissioner Whelan in the case of Pontidis v Pepsup Management Pty Ltd[21], a copy of which was tendered on behalf of the Respondent. My conclusions are reached in a similar manner to those expressed by the Commissioner in that decision, where she stated:
This matter has been difficult to determine, principally because both witnesses were believable and cross-examination produced little to impugn their credibility. On balance, however, I find that I am not satisfied that the Respondent has established to my satisfaction that it is more probable than not that the Applicant was serving a period of probation at the time of the termination of his employment. The onus lies on the party who seeks to claim that there was a period of probation to establish that case. While I accept the argument of Mr Lindeman that the absence of a written contract should not be considered to go against the Respondent, I am mindful of the fact that there was no evidence to support the contention apart from the testimony of Mr Best.
I am also mindful that the Respondent still has the opportunity to defend the termination of the Applicant's employment based on the merits of the case. Were I to find against the Applicant he would have no opportunity to have the merits of his claim tested. In circumstances such as these, I believe it is also relevant to consider the consequences of the decision in the context of the objects of Part VIA Division 3 of the Workplace Relations Act."
[34] Accordingly, I adopt the reasoning of Commissioner Whelan, and find that, on balance, based on the evidence and material before me, I am not satisfied that a probationary period was in existence. The jurisdictional objection is therefore dismissed, and the hearing of the substantive matter will be resumed on Monday, 28 October 2002.
Mr N. Harrington, Barrister-at-law, appeared for the Respondent
Mr S. Grey, solicitor of Goldsmiths, appeared for the Applicant
Printed by authority of the Commonwealth Government Printer
14 Nicolson v Heaven & Earth Gallery Pty Ltd, Wilcox CJ [57 IR 50 at 58-9].
Ben Clifford Sabeto
Waterloo Car Centre Pty Limited - PR924001 [2002] AIRC 1302;
Jurisdictional objection based on an asserted probationary period dismissed; statutory declaration given minimal weight; substantive hearing to resume. Commissioner adopted reasoning in Pontidis v Pepsup Management Pty Ltd (see [32]-[34]).