On 6 September 2024 Edward Simon filed an application for relief in relation to unfair dismissal, having been dismissed by the Department of Customer Service on 26 August 2024.
The applicant was employed as a Safety and Wellbeing Adviser of the respondent, he commenced employment with the respondent on 11 December 2023. It was an express term of his employment that he was subject to a period of probation of six months, it was also an express term of his employment that the period of probation could be extended by up to a further six months.
The applicant set out in his application that:
"I am a 'doer' and an achiever and could not accept the employer's literal repeated instructions that 'we are not doers', leading a toxic work culture, legal breaches and wrongdoing. I raised numerous issues of malfeasance and non-feasance by the employer which caused a dichotomy and significant conflict between my managers and I. Consequently, my managers engaged in bullying, dishonest conduct and 'mobbing bullying' concluding in the unfair termination of my employment."
This application was on time and other procedurally proper.
The employer's response to the unfair dismissal application set out that the respondent:
1. Challenged the jurisdiction of the Commission to determine the application based on the applicant serving a probationary period, and
2. Should the Commission determine that it had jurisdiction, also denied the dismissal was unfair and submitted that it was, "wholly justified on circumstances of failure to uplift performance and unsatisfactory performance … ." Further, that the applicant had, "not met the standards required of the role during probation to be confirmed for ongoing employment."
The application was listed for Conciliation and Directions on 2 October 2024, at which time the parties agreed that conciliation should be attempted notwithstanding the respondent's jurisdictional objection. The conciliation was unsuccessful.
Edward Simon v Industrial Relations Secretary in respect of Department of... [2024] NSWIRComm 1070 | Case summary | Zoe
The Commission determined that the question of jurisdiction must be addressed first, given the statutorily defined scope of the Commission's powers.
Since 2 October 2024, the respondent has filed:
1. A notice of motion seeking that:
"The application for relief in relation to unfair dismissal filed by the applicant on 6 September 2024 be dismissed for want of jurisdiction."
1. An affidavit of Georgia Madigan affirmed on 17 October 2024. The affidavit is 8 pages plus 72 pages of annexures.
2. An outline of submissions for the respondent (OSR).
The applicant has filed:
1. A statement by the applicant, this is of five pages and includes extracts from the attachments to the affidavit of Ms Madigan.
2. The applicant's submissions on jurisdictional arguments (ASJA).
The respondent's motion raises a narrow question. It is founded in the exclusion from Pt 6 of Ch 2 of the Industrial Relations Act 1996 (IR Act), empowered by s 83(2) of the IR Act, which provides:
83 Application of Part
…
(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, …
Regulation 6 of the Industrial Relations (General) Regulation 2020 (IR Regulation 6) provides:
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 -
…
(c) employees serving a period of probation or qualifying period if -
(i) he 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) the period, or the maximum duration, is more than 3 months - reasonable, having regard to the nature and circumstances of the employment, …
On the face of IR Regulation 6 the questions for determination are therefore:
1. Was the period of probation or its maximum determined in advance, and
2. Was the period of probation or its maximum reasonable having regard to the nature and the circumstances of the employment.
If these two questions are answered in the affirmative, then the applicant's dismissal is not subject to Pt 6 of Ch 2 of the IR Act. If Pt 6 does not apply, then whether the dismissal was harsh, unreasonable or unjust cannot be determined by the Commission. If Pt 6 does apply, those issues must be addressed, but such issues do not arise in answering the questions now before the Commission. If the probationary period is found to meet the requirements of IR Regulation 6, the applicant will not be able to test the fairness of his dismissal under the framework of harsh, unjust or unreasonable. If the probationary period does not meet the requirements of IR Regulation 6 the applicant will get that opportunity.
It was not disputed that the formal conditions under which the applicant was employed set out two matters in the letter of offer dated 28 November 2023. The letter set out:
"Probation 6 months see appendix for further detail,"
Further, in the appendix was set out:
"Probation if applicable
An employee serving a period of probation may have the period extended for up to 6 months (maximum total duration of 12 months)."
While the applicant formally demurred from accepting this combination as the determination of the probationary period in advance, it is difficult to see the two provisions as anything else.
The Commission determines that the first question is resolved in the affirmative. The period was determined in advance.
Moreover, given the wording of the appendix, the "maximum duration" of the period was determined in advance. This flows into the second question which is therefore unavoidably: "Was the maximum period of 12 months reasonable, having regard to the nature and circumstances of the employment?"
The Commission records that the applicant submitted the following as to determination in advance:
"4. WAS THE MAXIMUM DURATION OF THE PERIOD OF EMPLOYMENT DETERMINED IN ADVANCE?
4.1 The submissions of the Respondent proceed on the apparent basis that the fact that the maximum duration of the period of employment could be extended up to a period of 12 months - a matter admittedly raised in the offer of employment and contractually accepted by the Applicant - means that the maximum duration of the period of employment was by that fact determined in advance.
4.2 That is misreading of the Act and one which strikes at the exemption in section 83 (2) (b) of the Act.
4.3 Section 83 (2) (b) of the Act and Regulation 6 do not allow for extensions up to a predetermined maximum period.
4.4 They allow, and only allow, for reductions in the maximum period.
4.5 That is, on a proper reading of the Act and the Regulation, an employer is entitled to say that the period of probation shall be a fixed period of 12 months or a maximum period of 12 months.
4.6 But the employer is not entitled to say that the period of probation is an unfixed period of up to, but not exceeding, 12 months.
4.7 However, the effect of the submissions on behalf of the Respondent is that the employer can give an unfixed period of probation so long as it cannot exceed a certain notional. That is simply something that is not provided for in the Act.
4.8 There is no warrant in the Act to allow for extensions of a probationary period and it is a fundamental misunderstanding of the provisions to think otherwise.
4.9 On a proper reading of the Act an employer is entitled:
(i) to specify a fixed probationary period; or
(ii) to specify a maximum probationary period which can be shortened unilaterally by the employer.
4.10 On no reading of the Act or of the Regulation is there an allowance to create a probationary period (in this case 6 months) and then that period as such a construction does not represent the 'maximum duration' of a period of probation but merely represents period within which some period of probation might operate.
4.11 The matter can be tested in this way - if at the outset of the Applicant's employment the employer were asked 'What is the maximum duration of Simon's period of probation?' the answer would be 'We don't know, all we know is that we can't make the maximum exceed 12 months'.
4.12 The maximum duration therefore has not been determined in advance.
4.13 That leaves the Respondent with a period of 6 months which was exceeded.
4.14 Accordingly, the Respondent falls at the first hurdle.
4.15 Moreover, it can be added that an extension of a period probation is not merely a tweaking of an existing arrangement but rather represents a whole new set of arrangements, one which, relevantly, removes the certainty which an employee is entitled to expect.
4.16 Were the proper construction of the Act other than as appears above, an employer could, quite literally, extend an employee's period of probation on a daily or weekly basis.
4.17 That is, the period could be three months, then extended by up week, then extended by another week, then extended for up day ete until the so-called maximum duration were reached.
4.18 That so clearly flies in the face of the intent of the Act that it should be rejected as a proposition.
4.19 Such a construction would strike at the intended certainty which the Act seeks to give to both employers and employees.
4.20 To the extent that previous authority has taken a different view that authority is self-evidently wrong and should be departed from."
The Commission does not accept these submissions:
1. The interpretation advanced by the applicant is not obvious on the face of IR Regulation 6.
2. The GSE Regulations specifically contemplates extensions and, in that context, informs the way IR Regulation 6 should be understood.
3. It is an extremely normal thing to extend probation, and doing so is better for the employee than not being extended that further opportunity.
4. The arrangement is actually as contemplated by the contract of employment.
5. To the extent that previous authority supports this approach, implicitly accepting this as the correct interpretation, greater explanation would be required to walk away from those views.
That means, 'Was twelve months reasonable,' is a single question for determination by the Commission; not whether six and six months was reasonable, not whether six months and eleven weeks, and not whether the extension was reasonable.
The respondent submitted as extracted from their OSR:
"2. The respondent's position is that the applicant is ineligible to bring an application for unfair dismissal, on the basis that the applicant was dismissed during his probationary period. Specifically, Part 6, section 83(2)(b) of Industrial Relations Act 1996 (NSW) (IR Act) by virtue of regulation 6(1)(c) of the Industrial Relations (General) Regulation 2020 (NSW) (IR Regulation), provides an exemption for an employee serving a probation period.
…
B. Relevant legal principles
Probationary employment in the NSW public sector
5. The use of probationary periods in the public sector is common practice. Indeed, case law has established that, 'In NSW public sector employment... probation periods of six months or longer are the norm rather than the exception'. (Beadman v NSW State Emergency Service [2020] NSWIRComm 1043 at [39])
6. Prior to 2013, probationary periods for public sector employees were indefinite, were for a minimum of six months, and liable to be extended by agency heads at will. Multi-year probationary periods were contemplated. …"
The respondent then set out the relevant Act then applying, which need not be set out, but does provide as submitted by the respondent.
The respondent then continued:
"7. The position was modified by the Government Sector Employment Act 2013 (NSW) (GSE Act) from 2013 onward. The GSE Act did not reproduce the statutorily mandated minimum probation period, but instead provided that engagement of a public service employee might be subject to conditions notified on engagement, operating subject to the government sector employment rules: s54.
8. The Government Sector (General) Employment Rules 2014 (NSW) (GSE Rules) accompanying the GSE Act deals with probation as follows:
5 Probation periods
(1) The head of a Public Service agency may determine that the engagement of a person in ongoing employment in the Public Service for the first time or following the cessation of any previous employment in the Public Service is subject to the condition that the person is required -
(a) to serve a period of probation on commencing his or her employment, and
(b) to satisfy the requirements for the role in which the person is employed during that period of probation.
(2) The period of probation -
(a) for a Public Service senior executive is to be no more than 3 months, or
(b) for a Public Service non-executive employee is to be 6 months or such longer period as the agency head directs.
(3) A period of probation for a Public service non-executive employee may, before the period expires, be extended for such further period as the agency head directs.
(4) However, the probation period for a Public Service non-executive employee cannot exceed 12 months.
(5) If a Public Service employee is required to serve a period of probation, the employer may, at any time during or at the end of the probation period -
(a) confirm the person's employment, or
(b) in the case of a Public Service senior executive - terminate the person's employment under section 41 of the Act, or
(c) in the case of a Public Service non-executive employee - terminate the person's employment under section 47 of the Act on the ground that the person has not satisfied the requirements for the role in which the person is employed.
9. In short, the GSE Act and GSE Rules departed from the previous regime insofar as they introduced a fixed maximum probationary period of twelve months, while preserving the capacity of an agency head to extend probation unilaterally.
…
C. Factual background
14. The applicant was employed by the respondent on 11 December 2023 in the role of Safety and Wellbeing Advisor.
15. Georgina Madigan (Associate Director Safety and Risk Management of the respondent) has given evidence that in this role the applicant was required to provide specialist work health and safety advice and support to the business within the respondent. The applicant's role was grade 7/8, which means that he should have been able to work independently, with minimal supervision.
16. The applicant's employment was subject to a 6-month probation period, with a maximum possible probation period of 12 months. These timeframes were set prior to the applicant commencing employment and recorded in the Offer Letter dated 28 November 2023 (Offer Letter).
Ms Madigan has given evidence that the reason for the probation period being set at between 6-12 months was because this is standard practice in the Department, as it allows both the employee and manager time to ensure success and integration into the government working environment, and determine whether the employee satisfies the requirements of the role."
Paragraphs 18 through 30, as set out in the OSR, are issues as to matters during the employment, which do not reflect on the reasonableness of the maximum of the twelve-month period.
The respondent then continued:
"D. Legal analysis
31. The applicant was a non-executive employee. Accordingly, r5(2)(b) and r5(3) of the GSE Rules apply to his employment.
…
The duration of the probation period was reasonable having regard to the nature and circumstances of employment
37. It is the respondent's submission that the duration of the probation period was reasonable.
38. A critical feature of this case is that it relates to employment in the public service. The special character of employment in the public service has long been recognised.
39. While the issue of reasonableness is governed by the IR Regulation, it is submitted that it is relevant that the legislature has, by dint of s54 of the GSE Act and rule 5(4) of the GSE Rules, set a maximum period of probation of 12 months for all employees in the public service. As identified above, that cap on probation is a moderation of the previously open-ended nature of probation for public servants. That maximum period is in the context of public sector employment conservative, bearing in mind that it is fixed at the default period of probation for comparable workers including police officers and correctional officers.
40 The fact that the maximum period has been set by regulation is, without more, sufficient demonstration of reasonableness.
41. Notwithstanding the legislative framework provided by the GSE Act and GSE Rules, the nature of the applicant's employment in the Department justifies a probationary period of 6-12 months under the IR Act and IR Regulation.
42. Ms Madigan's evidence describes that an initial probation period of 6 months is standard across the Department, as it is considered necessary to provide the employee and their manager a period of time to ensure success and integration into the government working environment. However, given role requirements and complexities of government work and internal procedures, it was contemplated prior to the applicant's employment that a period of up to 12 months may be required in order determine whether the applicant satisfied the requirements of the position.
43. It has been recognised that a 6 month probation period is reasonable, having regard to the nature and circumstances of employment. However, as these submissions outline, the legislative framework provides for extending an employee's probationary period.
44. In order to extend an employee's probationary period (and satisfy r 5(3) of the GSE Rules) the agency head must extend the probationary period before it expires, and give express notification of the extension. It is submitted that both of these requirements were complied with in this case, given that Ms Machon provided express notice of the extension to the applicant on 8 May 2024 (with the initial probation period due to expire on 11 June 2024).
45. It is therefore further submitted that the extension of the applicant's probation period was reasonable. During the period from the commencement of his employment and 6 May 2024, issues were identified with the applicant's performance. However, rather than terminating his employment within the initial probation period, the respondent wanted to provide the applicant with a further opportunity to improve his performance and satisfy the requirements of his position. Accordingly, Ms Machon, directed that the applicant's probation period would be extended by 11 weeks.
46. This further period was reasonable, given that:
(a) the applicant was not meeting the requirements of his role;
(b) the decision to extend the probation period was made as an alternative to the applicant's dismissal; and
(c) the period of the extension was no longer than what the respondent considered necessary to provide the applicant with an opportunity to improve his performance.
47. Specifically, Ms Madigan has given evidence that the reason the probation period was extended by 11 weeks was because the applicant's performance was not meeting the standards required for his position, and this allowed sufficient time for the respondent to provide the applicant with a further opportunity for improvement (including by implementing a formal work plan).
48. Indeed, during the extended probation period, the respondent took meaningful steps to try to support the applicant in meeting the requirements of his role. It is submitted that this is demonstrated by the fact that the respondent implemented a work plan for the applicant, which was in place during extended probation period, held additional meetings with him and arranged for a work buddy. As part of this work plan, the respondent held regular meetings during which formal feedback was provided to the applicant in order to outline exactly how he could meet expectations.
49. In addition, Ms Madigan has given evidence that when the applicant reported directly to her from 19 June 2024, she continued to work with him to try to develop his performance, even though the formal work plan (which would have in any event concluded the week of 17 June) was paused due to the complaint against Ms Fraser."
The applicant's submissions, extracted from his ASJA, were:
"5. WAS THE PERIOD OF 12 MONTHS REASONABLE?
5.1 Regardless of the above, a period of 12 months cannot, for the purposes of the Act, be reasonable in the present circumstances.
5.2 Firstly, the onus of establishing that the period is reasonable falls upon the Respondent. It is a heavy onus.
5.3 Secondly, it can be taken as a given that if 12 months were reasonable as a period of probation that would have been the period proposed by the employer.
5.4 That itself is not a matter of insignificance.
5.5 Inducing an employee to commence employment on the basis that he/she might be dismissed without recourse for some relatively short period (typically 3 months having regard to the provisions of the Regulation) an employee might be willing to accept the risks inherent in such an engagement.
5.6 But a person might baulk at an engagement which allows, for the first 12 months of employment, the employer without any requisite justification, to dismiss the employee without fear of interference from the Commission, simply by reliance upon section 83 of the Act.
5.7 That is, the mere fact that a notional period of 3 months or 6 months is nominated leans against a conclusion that a period of 12 months (although not ultimately availed of in this case) is itself reasonable. Quite the contrary is the position.
5.8 Secondly, the extent to which a job is of a 'higher order' will impact upon the reasonableness of a period exceeding 3 months.
5.9 Mr Simon gives evidence of the relative straightforwardness of his work, a matter reflected in the modest salary on offer.
5.10 It can be taken as a given that the Respondent might wish (or need) to review the work of an employee at the higher levels of the employer, e.g. Department Head, for a full year having regard to the seriousness of the work involved.
5.11 However, the further down the ladder one goes the better an employer is able to promptly gauge the adequacy of the employee.
5.12 Indeed, on one view of the evidence of Ms Madigan (see below) the employer had formed a fairly firm view about Mr Simon early in the piece.
5.13 It is difficult to see how it can now say that it reasonably needed a longer period to form an opinion.
5.14 So far as salary is concerned one would not decry an income of $106,025 per annum. However, it cannot be ignored that the salary cap for unfair dismissal is now $175,000.
5.15 Nor is the statutory basis found in the GSE Rules which underpins the 12 month period itself sufficient to establish that 12 months is reasonable.
5.16 To the contrary, regard needs to be had to the responsibility and complexity of the job under consideration.
5.17 Mr Simon's work could never have required 12 months to analyse and, so far as necessary, correct, a matter referred to above and supported by Mr Simon's analysis of his work.
5.18 12 months was, on any view, an unreasonable period of probation.
5.19 In addition to the above it is instructive to consider the evidence of Georgina Madigan in her affidavit of 17 October 2024.
5.20 At paragraph 7 of Ms Madigan's affidavit Ms Madigan describes the probation period as being of "a minimum... of 6 months", noting what she describes as 'the possibility' that the minimum period 'would be extended for a maximum period of 12 months'.
5.21 Ms Madigan continues that these timeframes are 'standard' but, in apparent contradiction of that suggestion, adds that probationary periods 'are determined having regard to the roles we hire for, the complexities of government work, and typical arrangements and procedures which employees are expected to become familiar with'.
5.22 Apart from the contradiction it might be noted that none of the above qualifications appear in the Offer of Employment.
5.23 The failure to identify the basis upon which the period of probation might be extended is itself a marker of unreasonableness.
5.24 Ms Madigan continues by suggesting that 'issues' were identified in relation to Mr Simon's performance."
Thereafter the ASJA go to the irrelevance of: (a) the applicant's work performance; and (b) the respondent's view of that performance. It has already been determined that those issues are not relevant, as the applicant submitted.
The Commission accepts that it is for the respondent to persuade the Commission that the period was reasonable. This is perhaps more because on its face, Pt 6 applies unless the exclusion the Industrial Relations Regulation 6 is established than on onus.
Turning to the respondent's submission, has the respondent persuaded the Commission that the maximum of twelve months was reasonable? In short, the answer is yes:
1. The only possible reading available from GSE Rule 5 is that a probationary period of six months is reasonable under IR Regulation 6. Parliament did not disallow the GSE rules once made.
2. GSE Rule 5 is more specific, and less open to nuance than IR Regulation 6.
3. The twelve-month maximum is standard practise for the respondent which has been considered a factor, see for example the decision of Harrison DP in Smith and Corrective Services [2012] NSWIRComm 30.
4. The kind of employment is public sector employment which the parliament has on this occasion, as on other occasions, set different standards for compared with private sector employees. For example, the parliament has allowed a government employer to fine its employees and direct them to resign.
5. The legislation has, contrary to the norms in the private sector, set shorter limits for senior staff than for more junior staff.
6. It is questionable if the kind of rules set out by Wilcox CJ in Nicholson v Heaven and Earth Gallery Proprietary Limited (1994) 57 IR 50 has any role to play. Presumably, the right of the public sector to dispense with SES office holders without reason is a part of the reason that there are such apparently odd arrangements. Nevertheless, they exist.
7. The public sector has different values from the private sector. This impacts in two ways:
1. Firstly, it may take longer to understand if a new employee will accept and adopt the ethos of the public sector, as compared with the tasks of the job.
2. Secondly, the public sector will presumably be more inclined to extended probation if that option is available, than is the private sector where less consideration of the vocation of service exists. This also accords which the decision of Harrison DP in Smith and Corrective Services.
1. Indeed, having the maximum duration of twelve months will in the public sector more often lead to employment continuing. It should again be emphasised that the probationary period only applies to people who are not already employed in the New South Wales Public Sector.
2. Further, the GSE Rules are more recent and if directly inconsistent, must be taken to override the IR Regulations.
Turning to the submissions of the applicant:
1. The Commission does not accept the applicant's submission that, if twelve months is reasonable, that is what the employer would have proposed. This is because the submission proceeds on a false premise. Indeed, the respondent did propose twelve months because factually, that was the period set out in the letter of offer and annexure.
2. The applicant's submission as to employees generally baulking at a twelve-month probationary period because of a notional period of three or six months, and thus being unreasonable, also fails because that arrangement was unambiguously set out in the letter of offer. Moreover, it was agreed to by the applicant.
3. The applicant's submission as to the relatively junior level of his role is a more complex question. The authorities on reasonable length of probation are, to the extent they address this question, in support of the applicant's submissions; see for example Wilcox CJ in Nicholson. In Shrethra v City of Ryde Council [2024] NSWIRComm 1005, I adopted logic generally consistent with his Honour, albeit his Honour did not have a statutory safe harbour of three months to address.
4. What these decisions did not have to grapple with is GSE Rule 5. That rule is structured to be 180 degrees inconsistent with the prior line of authorities and with the applicant's submissions. Under that rule, contrary to the applicant's submissions, a department head can be subject to a maximum period of three months, whereas the most junior clerk in the department has a minimum of six months.
5. The applicant's submission as to the salary he enjoyed being around sixty per cent of the unfair dismissal income cap is relevant, but ultimately also needs to be assessed under the framework above. Those employees who would be above the cap, for example department heads, would be subject to a shorter probation period under GSE Rule 5.
6. The applicant's submission that less than twelve months would be needed to assess the applicant's work is logical but only part of the picture. Against this is the respondent's evidence that aptitude to public sector work and its environment, and the more structured and considered assessment of work that a public sector employee undertakes, and is expected to undertake, needs to be considered.
7. The question of not identifying the basis on which probation might be extended is rational but ultimately, irrelevant. The Commission is not testing whether the extension was reasonable. The Commission is testing if the maximum period is reasonable.
8. The applicant's submission that the respondent had formed a fairly clear view of the applicant early in the piece is again one that would have had more weight absent GSE Rule 5.
I note that the decision of Sams DP in Cullen and Carver [2004] NSWIRComm 206, cited to by the applicant, sets out a number of unobjectionable and ordinarily accepted views as to the purpose of probation and how it might be assessed. Unfortunately, I do not consider that they grapple with GSE Rule 5, which did not exist at the time.
There are factors against the outcome:
1. The absence of criteria in the rule, the contract of employment, or any standard operating procedure of the respondent as to the extension of the probation or how it might be assessed; and
2. The fact that the outcome essentially makes the maximum period allowable under GSE Rule 5 the de facto period.
The first of these can only take the case so far given the statutory scheme. The second has, unfortunately for the applicant, the same answer. The scheme is set out in the GSE Act and the GSE Rules, and it is sufficiently clear that it stands.
As Harrison DP said in Smith and Corrective Services at [42]:
"42. The Commission will not lightly intrude upon the exercise of a statutory right or the agreement of the parties."
The Commission lacks jurisdiction to hear the application.
[2]
Orders
Accordingly, the Commission orders that:
1. The application is dismissed for want of jurisdiction.
C Muir
Commissioner
[3]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 26 November 2024
Parties
Applicant/Plaintiff:
Edward Simon
Respondent/Defendant:
Industrial Relations Secretary in respect of Department of Customer Service
Legislation Cited (4)
Government Sector (General) Employment Rules 2014(NSW)