Cachuela v Commissioner of Police, NSW Police Force

Judgment (4 paragraphs)

[1]

The Applicant's Submissions

The Applicant filed a written Outline of Submissions on 13 August 2024 (AS) and made oral submissions.
The Applicant submitted that: 1. it would be unjust to deny her the protections afforded under the IR Act "due to a probationary period that was terminated unfairly" and the merits of her case "should be considered in full to ensure a fair and just outcome"; [12] 2. throughout her employment, which lasted over 180 days, "equivalent to six months" [13] , she exceeded expectations, received positive feedback and had no disciplinary actions; [14] 3. the environment she worked in, in particular after February 2024, made it impossible for her to demonstrate the full extent of her capabilities and perform at the level expected of a Senior Planning Officer, such that it was unreasonable and unjust to assess her performance under such constrained and unrepresentative conditions; [15] 4. that the prescribed six-month probationary period was excessive and unreasonable, particularly given her extensive experience and prior satisfactory/exemplary performance; [16] 5. that Deputy President Harrison in Smith v Corrective Services had emphasised the importance of fairness and reasonableness in the application of a probationary period and that such period "must be applied with due regard to the specific circumstances and performance of the employee"; [17] 6. that the decision of Commissioner of Police v Eaton "affirmed that while employers possess the statutory authority to establish probationary periods, the fairness of those periods is not beyond scrutiny" [18] and the decision of Beadman v NSW State Emergency Service "highlighted that the fairness of a probationary period is intrinsically linked to the employee's actual performance"; 7. the grounds for termination outlined in s 81E(1)(a) of the Police Act and r 28(3) of the GSE (NSWPF) Rules were not established; [19] 8. the "conditions of the exemption were not reasonably met, and the unreasonable application of the six-month probationary period undermines the principles of fairness that should guide such decisions"; [20] and 9. the Commission's prior acceptance of the Unfair Dismissal Application "reflects the Commission's recognition of the validity of [her] claim and the need to reconsider the termination decision based on the substantive evidence of [her] performance." [21]

Consideration

Section 84(1) of the IR Act provides: 84 Application for remedy by dismissed employee (1) If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part.
On an application under s 84(1), the Commission may make an order for reinstatement, re-employment, remuneration or compensation: s 89.
Section 88 of the IR Act provides: 88 Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate, take into account - (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant.
The Applicant complains that the grounds given for terminating her employment as set out in s 81E(1) of the Police Act and r 28(3) of the GSE (NSWPF) Rules were not established. She maintains that she had satisfactorily met the requirements of the role of Senior Planning Officer and consequently her dismissal was unjust or unreasonable. She says, in the alternative, that the extent to which she was adjudged not to have performed to the requisite standard, this was due to the actions of an acting supervisor who failed to assign her appropriate tasks which would have enabled her to demonstrate her competence and/or he was not sufficiently equipped to assess her performance, such that her dismissal was unfair.
The matters about which the Applicant's complains are certainly matters the Commission would take into account pursuant to s 88 of the IR Act when determining whether to grant relief pursuant to s 89. However, the Commission is unable to consider the merits of the Applicant's claim if she is in a class a person who is excluded from the application of Part 6 of Chapter 2 of the IR Act.
As the Respondent submitted, determining whether the Applicant falls with the exception prescribed by s 83(2)(b) of the IR Act involves a two-limbed test, as set out at paragraph [19] above.
The Applicant accepted that the maximum duration of the probation period had been determined in advance [22] and the evidence bears that out. I am satisfied that Limb 1, that is, that the precondition prescribed by reg 6(1)(c)(i), is satisfied.
Limb 2 requires an assessment as to whether the probation period of "up to six months", was reasonable, having regard to the nature and circumstances of the employment.
The Applicant contended that the period was not reasonable for essentially three reasons: first, that it was too long given her extensive experience; second, that it was too long given her exemplary performance during the probationary period, at least until the arrival of an Acting Supervisor in February 2024; and third, the probationary period had been 'unreasonably applied', or expressed another way, the circumstances of her termination was so unfair that the merits of her case "should be considered in full to ensure a fair and just outcome."
The Respondent submitted that I would not have regard to any of those matters when determining whether the probationary period of six months was reasonable in the face of r 28(2) of the GSE (NSWPF) Rules. I agree, at least in respect of the first and third reason.
Whether a probationary period of longer than three months is reasonable is to be determined having regard "to the nature and circumstances of the employment." The existence of legislation mandating a period of probation is plainly a highly relevant circumstance of the employment which must therefore be considered.
In Beadman v NSW State Emergency Services, Commissioner Murphy, at [42], stated that the starting point for consideration of whether the period of probation in that case was reasonable was r 5(2)(b) of the Government Sector Employment (General) Rules 2014, which applied to the employment in that case and which, as in this case, stipulated that the period of probation: "is to be 6 months or such longer period as the agency head directs." He then stated: "For the applicant to succeed, she must demonstrate that, in her case, a six month probation period, mandated as it is by subordinate legislation, was, nevertheless, unreasonable."
While Commissioner Murphy went on to find, at [47], that the complexity and challenging nature of the applicant's role was such that the probation period of six months was reasonable, that is, he applied the test formulated by Wilcox CJ in Nicholson v Heaven & Earth Gallery Pty Ltd at 58-59, it seems the Commissioner considered that the existence of subordinate legislation mandating a minimum probation period resulted in the applicant bearing an onus to establish that the period was unreasonable. In other words, the period of probation prescribed in the subordinate legislation resulted in the probation period being prima facie, reasonable.
I agree. Indeed, I consider that the existence of subordinate legislation mandating a minimum period of probation for all new employees must result in a finding that such period is reasonable within the meaning of reg 6(1)(c)(ii)(B) of the IR Regulation, at least in this case, at the commencement of the employment. This is first and foremost because a valid statutory rule, like all legislation, must be complied with. In the present case there is no discretion, at least at the commencement of a new employee's employment, for the Respondent to impose a probationary period of anything less than six months. In those circumstances it must be reasonable for the Respondent to impose a probationary period of that length as the Respondent simply cannot do otherwise.
In Smith v Corrective Services, Harrison DP was required to consider a probationary period of 12 months, which had been imposed pursuant to s 23(1) of the Public Sector Employment and Management Act 2002 (NSW), which was in similar terms to r 28 of the GSE (NSWPF) Rules and r 5 of the Government Sector Employment (General) Rules 2014. The evidence established a period of 12 months, rather than the minimum six months, was imposed on all employees. His Honour said (at [39] and [42]): "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. … The Commission will not lightly intrude upon the exercise of a statutory right or agreement of the parties."
I consider that his Honour's remarks to apply a fortiori where, as in the present case, the period is determined in accordance with a statutory obligation to apply a minimum probationary period.
It should be observed that pursuant to s 41 of the Interpretation Act 1987 (NSW), statutory rules may be disallowed by Parliament and of course, Parliament may repeal a statutory rule. In those circumstances, a valid statutory rule must be regarded as expressing the will of the legislature.
The second reason why I consider subordinate legislation mandating a minimum period of probation for all new employees must result in a finding that such period is reasonable within the meaning of reg 6(1)(c)(ii)(B) of the IR Regulation, at least at the commencement of the employment, is because it necessarily means that all new employees are subject to the same provision. The practice of an industry as regards the length of probationary periods, whatever the source of that practice might be, is a strong indicator of what is 'reasonable' within the meaning of reg 6(1)(c)(ii)(B). The fact that probation periods of six months or longer "are the norm rather than the exception" in NSW public sector employment was noted by Commissioner Murphy in Beadman v NSW State Emergency Service.
Thus, by reason of the terms of r 28 of the GSE (NSWPF) Rules, I find that the probationary period of six months was reasonable.
In a very rare case, an administrative employee of the Respondent may be able to establish that the minimum prescribed probationary period of six months, while reasonable due to its mandatory nature at the commencement of their employment, became unreasonable at a later date 'having regard to the nature and circumstances of the employment', due to their having met the conditions of their probation before the end of the period. This is because pursuant to r 28(3)(a) of the GSE (NSWPF) Rules the Respondent may, at any time during or at the end of the probation period, confirm the employee's employment and thereby bring the probationary period to an end. However, for the reasons I explain at [62] and [63] below, this was not established in this case and there is no other fact or circumstance which would otherwise displace a finding that the mandatory minimum probationary period of six months was reasonable.
If I am wrong, and the Commission should nevertheless consider whether the statutory period of probation is objectively reasonable through the application of the test set out by Wilcox CJ in Nicholson v Heaven & Earth Gallery Pty Ltd, as Commissioner Murphy did in Beadman and Commissioner Muir did in Shrestha, I would have no hesitation in doing so in this case. As the Applicant herself attested, the role was complex, strategically important and involved a high degree of professional judgment and autonomy. The nature of the work, the size of the organisation and impact the work has on the community objectively indicates that a period of six-months was reasonable, to allow the Respondent to adequately assess the ability of the Applicant to perform the role.
The reasons advanced by the Applicant as to why the period was not reasonable cannot be accepted for reasons I will briefly explain.
The Applicant contended that the period was too long given her extensive experience and breadth of knowledge. The Applicant gave uncontested evidence that she had over 17 years' experience in "law enforcement", however the nature and details of that experience were not explained. Regardless, as I have explained above, the Respondent had no discretion to impose a lesser period of probation at the outset of the Applicant's engagement, no matter how experienced and skilled she was. There was no evidence to suggest that the Respondent has a practice of exercising her discretion to confirm a new employee's employment before the conclusion of the six-month period mandated by r 28(2) because she considered that an employee's extensive experience prior to commencing employment with the Respondent, did not justify a probationary period of such length.
The Applicant contended that the probationary period of six months was not reasonable given her exemplary performance during the probationary period, at least until the arrival of an Acting Supervisor in February 2024, being over three months from her commencement. She also contended, in essence, that the Commission needs to assess the circumstances of her dismissal to determine the reasonableness of the probation period. Both arguments involve the Commission examining events after the period of probation had been determined in advance of the employment commencing and after the Applicant had commenced working.
Commissioner Muir in Shrestha v City of Ryde Council, at [34] - [39], found that "events after the employment commences or events involved in the circumstances of the dismissal", can only be used "to undermine the credibility of the reasons advanced as to constituting the reasonableness of the period", but: "Such events cannot, if at all, be themselves fundamental to the reasonableness of the period. In the present case, circumstances such as whether the employer followed its award obligation and whether the employer failed to provide adequate support are not relevant to the test in reg 6(1)(c) and, therefore, cannot form part of the question of reasonableness."
In the present case, unfortunately for the Applicant, whether the Respondent properly followed her obligation to only dismiss the Applicant for a reason identified in s 81E of the Police Act, as stipulated in r 28(3)(c) of the GSE (NSWPF) Rules, or whether she otherwise acted unfairly in terminating the Applicant, cannot form part of the question of reasonableness.
To the extent the Respondent maintained that a six-month probation period was reasonable due to the factors identified by Wilcox CJ in Nicholson v Heaven & Earth Gallery Pty Ltd, evidence that the Applicant was satisfactorily meeting the requirements of the role well before the expiry of the pre-determined probationary period could "undermine the credibility of the reasons advanced [by the Respondent]" as to why a probationary period of six months was reasonable. However, the evidence in this case falls well short of enabling me to make such a finding in this case. I accept the Respondent's submission that the role of Senior Planning Officer "was clearly a role that could not qualitatively be assessed, did not involve simple and repetitive tasks and requires the Applicant to think critically and engage in key decision making." [23] The Commission would need a lot more than the Applicant's own assessment of her performance to conclude that the application to her of an industry wide probation period, to a complex and senior role, was not reasonable.
In any event, for the reasons I have explained above, I consider that in circumstances where r 28(2) of the GSE (NSWPF) Rules mandates a minimum probation period, such period must be regarded as reasonable and it is not necessary to consider the specific requirements of the role for which the Applicant was hired, to arrive at this conclusion.
I discussed at [53] above the possibility that an administrative employee of the Respondent may be able to establish that the minimum prescribed probationary period, while reasonable due to its mandatory nature at the commencement of their employment, became unreasonable at a later date 'having regard to the nature and circumstances of the employment', due to their having met the conditions of their probation before the end of the period. I understand this is one of the grounds upon which the Applicant contended the probationary period was not reasonable.
However, to succeed on this ground the Applicant would need to establish that her performance, objectively assessed, was such that the Respondent ought to have exercised her discretion pursuant to r 28(3)(a) to confirm her employment, such that the continuation of her probation for the full, pre-determined period, was not reasonable. Given the unfettered discretion given to the Respondent by r 28(3)(a), evidence would also be required that the Respondent had a practice of confirming employment prior to the end of the pre-determined probationary period, where employees satisfactorily demonstrated the requirements of the role for which they were engaged, such that it could be said that the 'nature and circumstances of the employment' were such that the continuation of the probation for a period beyond satisfactory demonstration of the requirements of the role in this case, was not reasonable. This is a very high bar which the Applicant has failed to clear.
Two further matters need be addressed. First, the Applicant made a relatively faint submission that she had been employed for 180 days, which was "equivalent to six months" [24] . The Respondent submitted that the reference to "six (6) months" in the letter of offer, which also referenced r 28 of the GSE (NSWPF) Rules (being an "instrument" within the meaning of s 3 and 5 of the Interpretation Act), was to be interpreted according to the definition in the dictionary in Schedule 4 to the Interpretation Act. I agree.
"Month" in defined in the Dictionary to mean "a calendar month". "Calendar month" is defined in the Dictionary as follows: calendar month means a period commencing at the beginning of a day of one of the 12 named months and ending - (a) immediately before the beginning of the corresponding day of the next named month, or (b) if there is no such corresponding day, at the end of the next named month.
The Applicant's probation commenced on the first day of her employment, being 8 November 2023. The probation period therefore ended at midnight on 7 May 2024. The Applicant was terminated on 3 May 2024, being within the probationary period.
Secondly, the Applicant submitted that Commission's prior acceptance of the Unfair Dismissal Application "reflects the Commission's recognition of the validity of [her] claim and the need to reconsider the termination decision based on the substantive evidence of [her] performance." The Commission has not yet accepted the validity of the Applicant's claim. The acceptance of the Application for filing does not indicate that that the claim is validly made or that the Commission has jurisdiction to hear the claim.

The Respondent's Submissions

The Respondent filed a written Outline of Submissions on 30 July 2024 (RS) and made oral submissions.
The Respondent submitted that the Application should be dismissed on the basis the Applicant falls within a class of employees who are exempt from the unfair dismissal provisions found in Part 6 of Chapter 2 of the IR Act, in accordance with s 83(2)(b) of the IR Act and clause 6 of the IR Regulation.
Part 6 of Chapter 2 applies to the dismissal of any public sector employee: s 81(1)(a). Exemptions are then set out in s 83(2). Section 83(2)(b) of the IR Act relevantly states: (2) This Part does not apply to an employee who is exempted from this Part by the regulations. Any such regulation may only exempt specified classes of employees included in any of the following classes - … (b) employees serving a period of probation or qualifying period.
The exemptions of classes of employees as described in s 83(2) of the IR Act are prescribed by Part 3 of the IR Regulation. Relevantly in this case, reg 6 of the IR Regulation prescribes an exemption for workers who are subject to a probationary period. Specifically, reg 6(1)(c) states: (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 - … (c) employees serving a period of probation or qualifying period if - (i) the period, or the maximum duration of the period, is determined in advance, and (ii) the period, or the maximum duration of the period, is either - (A) 3 months or less, or (B) if the period, or the maximum duration, is more than 3 months - reasonable, having regard to the nature and circumstances of the employment,
The Respondent thus submitted, that for reg 6(1)(c) to be established, two limbs must be satisfied, namely: 1. that the period or maximum duration of the probation period was determined in advance (Limb 1); and 2. that the period or maximum duration, if it was longer than 3 months, was reasonable, having regard to the nature and circumstances of the employment (Limb 2).
As recorded at [14(4)] above the Applicant was advised in the letter offering her employment with the NSWPF, that her employment was subject to a probationary period of "up to 6 months". The Respondent says that Limb 1 is therefore established.
As regards Limb 2, the Respondent submitted that a maximum period of six-month period was reasonable given the circumstances of the employment, namely subordinate legislation containing conditions governing the Applicant's engagement. Alternatively, the Respondent submitted that the period was reasonable upon an objective assessment of the nature of the job and the size of the employer and the personal characteristics of the employee.
The letter of offer referred to the fact that the probationary period was in accordance with r 28 of the GSE (NSWPF) Rules. Rule 28 provides: 28 Probation period (1) This rule applies to an administrative employee whose engagement in ongoing employment with the NSW Police Force for the first time (or following the cessation of any previous employment in the NSW Police Force) is made subject to the condition that the employee is required: (a) to serve a period of probation on commencing employment, and (b) to satisfy the requirements for the role to which the employee is assigned during that period of probation. (2) Any such period of probation is to be 6 months or such longer period as the Commissioner may determine in respect of the administrative employee. (3) If an administrative employee is required to serve a period of probation, the Commissioner may, at any time during or at the end of the probation period: (a) confirm the employee's employment, or (b) in the case of a NSW Police Force senior executive - terminate the executive's employment under section 40 (2) of the Police Act 1990, or (c) in the case of a non-executive administrative employee - terminate the employee's employment under section 81E of the Police Act 1990.

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Judgment (4 paragraphs)

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