Levy v. New South Wales Fire Brigades [2009] NSWIRComm 1011

Industrial Relations Commission (NSW)|2009-07-01

CITATION: Levy v. New South Wales Fire Brigades [2009] NSWIRComm 1011

APPLICANT New South Wales Fire Brigade Employees Union PARTIES: RESPONDENT New South Wales Fire Brigades

CATCHWORDS: claim of unfair dismissal - fire brigade - annulment of appointment - probationary employment - claim of unfair dismissal - jurisdiction - matter the subject of earlier proceedings before the Government and Related Employees Tribunal which were dismissed on jurisdictional grounds - current claim out-of-time - jurisdiction for probationary employees - preliminary decision confirming jurisdiction

Anti-Discrimination Act, 1977 LEGISLATION CITED: Government and Related Employees Tribunal Act 1980 Industrial Relations Act 1996 Police Services Act 1990

Airline Hostesses Association v. Qantas Airways Limited (1974) 16 AILR Rep.785 Alchin v. South Newcastle Leagues Club (1977) AR 236 Alexander v. Commissioner of Police [2009] NSWIRComm 3 Attorney General's Department of New South Wales v. Dafkovski (2007) 164IR 268 Buckman v. Burdekin Resources NL (1998) 85 IR 415 Claric 218 Pty Limited trading as Sanity Music v. Meldrum - unreported Dafkovski v. Attorney General's Department [2006] NSWIRComm 378 Davy v. Hawkesbury District Health Service Limited - unreported Department of Corrective Services v. Boda [2006] NSWIRComm 1 Director General of the Department of Corrective Services v. Mitchelson (1992) 42 IR 38 Earl v. Tony Pollard Electrics Pty Limited - unreported Re Electricity Commission of New South Wales (1982) 2 IR 403 CASES CITED: Levy v. New South Wales Fire Brigades (2008) GREAT Appeal No.PSD/624/08 Meehan v. Commissioner of Police (1999) 47 NSWLR 284 New South Wales Independent Teachers' Association v. St Aloysius College (1976) AR 91 Nicholson v. Heaven and Earth Gallery Pty Limited (1994) 57 IR 50 Parker v. Capitol Painters Pty Limited (1996) 68 IR 100 Port of Melbourne Authority v. Anshun Pty Limited (1980) 147 CLR 589 Price v. Box Valley Pty Limited (1999) 90 IR 480 Public Service Association of New South Wales v. New South Wales Crime Commission (1993) 48 IR 363 Public Service Association of New South Wales v. University of New South Wales (1980) AILR Rep.182 Skelly v. Prouds Jewellers Pty Limited (1994) 53 IR 3 Smith v. Director-General of School Education (1993) 51 IR 204 Wijessuriya v. Department of Conservation (1994) 54 IR 384 Yat Tung Investment Company Limited v. Dao Heng Bank Limited (1975) AC 581 Zonneveld v. South Eastern Sydney and Illawarra Area Health Service [2008] NSWIRComm 1119

APPLICANT Jim Nolan LEGAL REPRESENTATIVES:

RESPONDENT Michael Easton

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Notification of an industrial dispute by the New South Wales Fire Brigade Employees Union under S.130 of the Industrial Relations Act, 1996 re termination of a probationary employee

Application by the New South Wales Fire Brigade Employees Union under S.84 of the Industrial Relations Act, 1996

1 Mr Michael Levy was employed as a probationary firefighter with the New South Wales Fire Brigades under the terms of the Crown Employees (New South Wales Fire Brigades Firefighting Staff) Award. Training arrangements for firefighters operate under the auspices of a Training Review Committee and in terms of Clause 13, Progression and Promotion Provisions, of the Fire Brigades Award [13.2]:

"....all employees shall be required to satisfy and maintain the competencies specified by the Commissioner on the advice of the Training Review Committee for the classification to which they are appointed..."

And Clause 13 provides further for promotion of probationary firefighters [13.3]:

"Recruit Firefighters shall be on probation until they have progressed to Firefighter Level 1, or for a period of six months, whichever is the lesser. Progression from Recruit Firefighter to Firefighter Level 1 shall be subject to the satisfactory completion of Certificate 3 (Firefighting Operations) undertaken by the New South Wales Fire Brigades Training College."

2 Mr Levy commenced employment on a part-time basis (as a Retained Firefighter) on Monday, 1 May, 2006 and commenced full time employment (as a Recruit Firefighter) on Friday, 15 February, 2008. He is a member of the New South Wales Fire Brigade Employees Union. Consistent with Clause 13, the letter of appointment dated Wednesday, 30 January, 2008 under which Mr Levy was engaged provided for a six month probationary period for him as a Recruit Firefighter. And, in accordance with Clause 13, at the satisfactory conclusion of that probationary period, Mr Levy was to progress to a Firefighter Level 1. But that did not occur. Mr Levy's services as a firefighter were annulled by the NSWFB effective from Friday, 15 August, 2008, ie at the conclusion of the six month probation, essentially due to his inability to complete the training required of him for his firefighting duties. However, the issue is somewhat more complicated than simply his failure to complete the necessary training.

3 On Thursday, 12 June, 2008 Mr Levy appeared in the Newcastle District Court for the offence of driving at a dangerous speed in his motor vehicle. He was disqualified from driving a motor vehicle for 18 months from Tuesday, 13 May, 2008 to Thursday, 12 November, 2009 and was ordered to perform 200 hours of community service. On Thursday, 31 July, 2008 the NSWFB wrote to Mr Levy in the following terms:

"...Due to your inability to drive a motor vehicle and the number of days missed as a result of your court appearances and being in custody, you did not complete the Certificate 3 course conducted at the New South Wales Fire Brigades Training College in the required time. You therefore did not graduate with the rest of your class on Thursday, 5 June, 2008.

Your letter of appointment on probation dated Wednesday, 30 January, 2008 and Clause 13.3 of the Crown Employees (New South Wales Fire Brigades Firefighting Staff) Award both require that you complete your Certificate 3 course within a maximum period of six months. That six month period is due to expire on Friday, 15 August, 2008.

I therefore propose to annul your appointment on probation and your last day of employment will be Friday, 15 August, 2008. You should return all departmental property, uniform and equipment that is in your possession by that date. You may have a right of appeal under the Government and Related Employees Tribunal Act, 1980..."

4 Notwithstanding the suggestion in that NSWFB's letter to Mr Levy that he may pursue a claim before GREAT, on Thursday, 18 September, 2008 its representatives informed the FBEU that it proposed to challenge his jurisdiction to mount any claim before GREAT and in the proceedings before GREAT on Wednesday, 1 October, 2008 it did so. In its unreported interlocutory decision of Thursday, 16 October, 2008 - Levy v. New South Wales Fire Brigades GREAT Appeal No. PSD/624/08 - GREAT accepted that it lacked jurisdiction to hear Mr Levy's application. I will deal with that decision in more detail later as it also touches on matters going directly to my jurisdiction in this hearing as well. But for present purposes it is sufficient to say that Mr Levy's claim failed because of the probationary nature of his employment and the view of GREAT that it therefore took his claim outside jurisdiction on that ground.

5 Consequently, on Wednesday, 22 October, 2008 the FBEU initiated proceedings under the 1996 Industrial Relations Act, before the Commission, viz:

(i) a notification of an industrial dispute under S.130 alleging that the termination of Mr Levy's services as a firefighter was procedurally unfair; and

(ii) an application under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] seeking his reinstatement in employment.

6 Both matters came initially before Murphy C who set the matters down for conferences on Friday, 21 November, 2008 and Monday, 1 December, 2008. Attempts at resolving the matters by conciliation were unsuccessful and, with respect to the S.130 notification, Murphy C completed the necessary certificate of attempted conciliation required by S.135 and lodged it in the prescribed manner.

7 In the first instance, there remains a challenge on three grounds to the jurisdiction of the Commission concerning the claims made by the FBEU on behalf of Mr Levy which I summarise as follows:

(i) the impact of the proceedings before GREAT and whether that constitutes a barrier to the matter proceeding before the Commission;

(ii) the delay in the FBEU lodging its Part 6 application, ie the fact that the Part 6 application was ultimately lodged outside the 21 day time limit prescribed by S.85(1); and

(iii) the probationary nature of Mr Levy's employment and the effect of Reg 6 on Mr Levy's Part 6 application.

8 In view of the impending retirement of Murphy C, the files were reallocated to me and set down for hearing on those threshold jurisdictional issues on Friday, 6 March, 2009. In the hearing Mr Nolan represented the FBEU and Mr Levy and Mr Easton represented the NSWFB. Mr Nolan indicated that he proposed to proceed on the Part 6 application alone and he requested that I adjourn the S.130 proceedings for the present time.

9 Pursuant to S.405(1)(a) any award or order of the Commission does not have effect to the extent that it is inconsistent with a right of appeal under the GREAT Act (or the 1990 Police Services Act). The raison d'etre of S.405(1)(a) is to achieve consistency between this Commission and GREAT. I note, however, that S.405(1)(a) speaks of "...a right of appeal..." and not strictly any decision of GREAT. In the light of the interlocutory decision of GREAT on Thursday, 16 October, 2008, it can be argued that Mr Levy did not have any right of appeal to GREAT in the first place. In any event, the Part 6 application, on which Mr Nolan relies in this hearing, is not affected by the restrictions referred to in S.405(1)(a). S.405(3) provides further that:

"This section does not affect any decision of the Commission under Part 6 of Chapter 2 (Unfair dismissals)."

10 The Part 6 application the FBEU lodged on behalf of Mr Levy therefore remains unaffected by the GREAT decision. That suggests the primacy of Part 6 over GREAT proceedings. The Full Bench of the Commission (Fisher J - President, Peterson J and McKenna CC) in Public Service Association of New South Wales v. New South Wales Crime Commission (1993) 48 IR 363 confirmed that point (at p.370) when it stated:

"....It is apparent...that Parliament went to some considerable detail to emphasise the primacy of (the equivalent of Part 6 in the 1991 Industrial Relations Act) over the GREAT Act..."

I therefore do not see myself as necessarily bound to follow the GREAT decision.

11 Nevertheless, if any matter in dispute has already been resolved in earlier proceedings, it may become an abuse of process to reactivate the same matter in subsequent proceedings and a party may be estopped from doing so [Port of Melbourne Authority v. Anshun Pty Limited (1980) 147 CLR 589]. In Yat Tung Investment Company Limited v. Dao Heng Bank Limited (1975) AC 581 at p.590, for instance, the Privy Council commented that:

"...there is a wider sense in which the doctrine of res judicata may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings…"

12 In particular, with respect to the Part 6 jurisdiction, S.90 provides as follows:

"The Commission must not determine an applicant's claim by making an order under S.89 if: (a) another Act or a statutory instrument provides for redress to the person in relation to the dismissal, and (b) the person has commenced proceedings under the other Act or instrument or has not lodged a written undertaking not to proceed under the other Act or instrument."

S.90 therefore gives employees, including those employees with access to GREAT, the option of pursuing either their statutory remedy before such a special appeals tribunal or before the Commission, but not both. 13 As the Full Bench of the Commission (Walton J - Vice President, Grayson DP and McLeay C) indicated in its unreported decision of Monday, 30 January, 2006 in Department of Corrective Services v. Boda [Matter No.IRC 4081 of 2005 at p.12], the purpose of S.90 was:

"....the avoidance of the possibility of two (or more) courses being available to access a remedy in relation to the same event - in short, the prevention of duality of proceedings..."

But the Full Bench spoke (at p.12) of the "...reluctance on the part of the Commission to limit remedial jurisdiction fatally unless this would be necessary to preclude duality of proceedings..." And, in any event, the question remains whether or not the matter has properly been disposed of before GREAT. I do not believe that it has been.

14 In Boda's Case there was appeal proceedings against an interlocutory decision that a dismissed employee was not barred by S.90 from proceeding to hearing. The dismissed employee had in that case first commenced proceedings before GREAT, attempted conciliation but later withdrew those appeal proceedings before GREAT, choosing instead to pursue a claim of unfair dismissal before the Commission. The Full Bench commented (at p.13):

"....When S.90 is read in that context, and with the purpose of preventing duality of proceedings in mind, we accept...submissions that sub-section (a) does not apply in this case. There is no dispute that, following an unsuccessful conciliation, as at the date of the impugned decision, the respondent was (and continues to be) barred from bringing fresh proceedings before the Government and Related Employees Appeal Tribunal. In those circumstances, it can not be said that, at the relevant time the Government and Related Employees Appeal Tribunal Act, 1980 '...provides redress...' to the respondent in relation to the dismissal..."

15 In his unreported decision of Thursday, 7 December, 2006 in Dafkovski v. Attorney General's Department [Matter No.IRC 890 of 2006] Grayson DP dealt with a similar situation. It had been argued successfully on behalf of the dismissed employee that any restrictions flowing from S.90 on proceedings before the Commission only operated where the appellant has fully exercised the right of appeal to GREAT, not where the appeal has been withdrawn before it has been heard. By filing a notice of discontinuance in GREAT, the dismissed employee had elected to forego his right of appeal under the GREAT Act. That left it open to him to pursue other remedies available to him at law.

16 Grayson DP had this to say in Dafkovski's Case [at p.7]:

"....Having considered the competing contentions and having regard in particular to the statutory objective of avoiding duality of proceedings, I am persuaded that the construction (made on behalf of the dismissed employee) is the proper one in the circumstances. This is not a case where appeal rights have been substantively exercised under the GREAT Act. Rather there has been an express written election by the applicant to forego those rights and, as may be apparent, I do not accept the respondent's argument that the procedural step of filing a notice of appeal under the GREAT Act amounts to a substantive exercise of the right of appeal..."

The decision of Grayson DP in Dafkovski's Case on that point was confirmed on appeal by the Full Bench of the Commission (Walton J - Vice President, Harrison DP and Boland J) in Attorney-General's Department of New South Wales v. Dafkovski (2007) 164 IR 268 at pp.281 and 282].

17 In these current proceedings, Mr Levy or the FBEU representing him, did not withdraw the appeal before GREAT as was the position in Boda's Case and Dafkovski's Case. The matter went to hearing on an issue of jurisdiction. But substantive issues involving the annulment of Mr Levy's employment as a firefighter were not, in fact, resolved before GREAT. They were disposed of on jurisdictional grounds alone and, in my view, S.90 should present no barrier to him any more than it did in Boda's Case and Dafkovski's Case. Indeed, in my opinion, the case the FBEU has mounted in these proceedings on behalf of Mr Levy is stronger than the situation in Boda's Case and Dafkovski's Case, where the appeal to GREAT was made and then withdrawn. Here GREAT decided that Mr Levy never had a case before GREAT. In view of the interlocutory decision of GREAT that his appeal to it was incompetent jurisdictionally, he was never effectively before it in the first place.

18 In my unreported decision of Wednesday, 14 November, 2001 in Davy v. Hawkesbury District Health Service Limited [Matter No.IRC 3143 of 2001] I dealt, among other things, with a claim under Part 6 which had been preceded with a complaint made under the 1977 Anti Discrimination Act but which had been rejected by the Anti Discrimination Board on the basis that it was not a matter which they would be prepared to investigate. I commented (at p.12) that:

"…by taking his claim before the ADB, acting under the Anti-Discrimination Act, is (the applicant's) subsequent Part 6 application defeated? In my opinion, the answer to that question is no for the simple reason that, as he was informed, he never had redress in the ADB in the first place. S.90 only comes into effect if '…another Act or statutory instrument provides for redress to the person in relation to the dismissal…' and that was not the case here. The Part 6 application is competent on that score…"

Therefore, I am satisfied that S.90 presents no barrier to Mr Levy's Part 6 application.

19 Nor do I believe that the delay in the FBEU lodging that Part 6 application should present any difficulties to Mr Levy proceeding for a remedy before the Commission. The FBEU did lodge its Part 6 application (and the accompanying S.130 notification) on Wednesday, 22 October, 2008, over seven weeks after Mr Levy's services as a firefighter were annulled effective from Friday, 15 August, 2008. A time limit of 21 days is imposed on the lodging of Part 6 applications. S.85(1) provides as follows:

"Any application under this Part must be made not later than 21 days after the dismissal."

20 But ultimately it remains a matter which goes to the discretion of the Commission if an out-of-time Part 6 application is to be admitted. In that respect S.85(3) is in the following terms:

"The Commission may accept an application that is made out of time if the Commission considers there is a sufficient reason to do so, having regard in particular to:

(a) the reason for, and the length of, the delay in making the application, and

(b) any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and

21 As I indicated in my unreported preliminary decision of Wednesday, 12 November, 2008 in Zonneveld v. South Eastern Sydney and Illawarra Area Health Service [Matter No.IRC 1409 of 2008 at p.5]

"...I would still regard, as the prima facie position, that Part 6 applicants be obliged to follow the 21 day time limit prescribed by S.85(1): it is a clear instruction of the legislature that such a time limit be imposed and to depart from it there must be some material upon which to exercise the discretion in favour of an out-of-time Part 6 applicant [ Skelly v. Prouds Jewellers Pty Limited (1994) 53 IR 3 at p.5]. Otherwise the time limit in S.85(1) would be meaningless..."

But equally, as I indicated in Parker v. Capitol Painters Pty Limited (1996) 68 IR 100 at p.101:

"...In my view, it is not appropriate to adopt a restrictive approach in exercising my discretion under S.85(3). It is a question of balancing the competing interests of (the applicant) and (the respondent)…"

22 In my opinion, the balance of convenience favours Mr Levy and the FBEU which represents him in these proceedings. The reason for, and the length of the delay in the FBEU lodging the Part 6 application on behalf of Mr Levy is obvious: it was pursuing a claim on Mr Levy's behalf unsuccessfully before GREAT. I note particularly that the FBEU was promptly pursuing Mr Levy's reinstatement before GREAT - and, in fact, that course had been suggested to it by the NSWFB in the first place in its letter to Mr Levy dated Tuesday, 31 July, 2008 when it indicated that he "...may have a right of appeal..." to GREAT. Then subsequently the NSWFB successfully challenged the jurisdiction of GREAT to hear the matter.

23 Admittedly, as the word "may" in the letter by the NSWFB suggests, there was to be no guarantee to Mr Levy and the FBEU that it would not raise any jurisdictional issues to bar Mr Levy's claim before GREAT. That was its right. And it did so. In any event, if GREAT lacked jurisdiction, it could not be given to it by the parties simply agreeing to that course. The jurisdiction of GREAT is dictated by the GREAT Act. But it would only be natural that the FBEU and Mr Levy would have acted on what had been suggested to him so clearly in the letter by the NSWFB.

24 The nature of Mr Levy's probationary employment would appear at first sight to present a far more formable problem for him, however. As I outline in more detail later in this decision, I would expect that, where the same set of rules apply to Part 6 applications and proceedings before GREAT - and that appears to be the case - the same result would be the outcome but, as I see it, that is not necessarily the position.

25 Historically, the position with probation has been that it has been a factor to take into account in assessing the fairness or unfairness of a dismissal. The judgment of the Court of Appeal of the State Supreme Court (Kirby P, Handley and Sheller JJA) in Director General of the Department of Corrective Services v. Michelson (1992) 42 IR 38 dealt with the question of probationary employment and in that respect Kirby P stated (at p.48) that:

"…the very purpose of probation will often be to consider, by observation of the probationer's work performance under trial, whether he or she is suitable to enjoy the privileges attaching to permanency…"

To that extent, in Airline Hostesses Association v. Qantas Airways Limited (1974) 16 AILR Rep.785 Commissioner Stanton of the Australian Conciliation and Arbitration Commission described probation as "…an extension of the selection process…".

26 In Alchin v. South Newcastle Leagues Club (1977) AR 236 Sheehy J of the former State Industrial Commission held (at pp.238 and 239) that, in considering the fairness or unfairness of a dismissal, the probationary nature of the employment - the fact that the employer had reserved for himself the right to revoke the employment at any time - was a relevant factor which should be taken into account in assessing whether the dismissal was fair or unfair. His Honour commented (at p.241) that:

"…in the present case I do not think that any provision can be implied which would impose objective standards of reasonableness on the board's function of deciding whether or not to continue the (dismissed employee's) employment. As his employment was on probation, I think that the board sought to retain for itself, by the use of that expression, the right to decide whether or not it wanted to employ him - the same right that any employer would have at an initial interview when deciding whether or not to engage an employee…"

27 In Public Service Association of New South Wales v. University of New South Wales (1980) AILR Rep.182 Liddy J of the former Commission declined to intervene in support of a dismissed probationary employee; the probationary period in that case had been extended longer than was normal university policy and it was apparent that, despite excellent qualifications and experience, the dismissed employee had been slow in learning her job, had adapted poorly to working life at the university and had problems with personal relationships there.

28 But in Re Electricity Commission of New South Wales (1982) 2 IR 403 Sweeney J of the former Commission said:

"....where an employee has been treated unfairly in relation to termination of employment, the Commission will, on application, intervene to order reinstatement. That proposition applies ...to persons employed on probation..."

And in Smith v. Director-General of School Education (1993) 51 IR 204 the Full Bench of the former State Industrial Court (Fisher CJ, Bauer and Hungerford JJ) considered the question of whether the annulment of a probationary school teacher constituted a dismissal for the purposes of Part 6, commenting (at p. 220) that:

"…it is entirely consistent then for an annulment of an appointment to represent the ending of a period of employment, in the same way as a dismissal. In any event, and even if the dismissal were more limited, the ordinary meaning of 'annul' readily comprehends the concept of a dispensing with the services of an employee. The respondent seemed very much to rely upon subtle distinctions in terminology to deny that what occurred to the appellant was other than a dismissal, and we consider (the appellant's) submission that such an approach would '…really represent the triumph of form over substance…' has persuasive force…"

29 Wilcox CJ of the Federal Industrial Court in Nicholson v. Heaven and Earth Gallery Pty Limited (1994) 57 IR 50 also provided some guidance to industrial tribunals (at pp.58 and 59) on the reasonableness of a probationary period for an employee, stating that:

"…whether or not the stipulated period is reasonable, is a matter that has to be determined by the person hearing the case, as an exercise of judgment. The judgment should be based on the proved objective facts, not on someone else's opinion. Probably the most important consideration, in determining what is a reasonable period, will be the nature of the job. In the case of a person employed to carry out repetitive duties under close supervision, a reasonable period may not exceed beyond a week or two. In the case of a person employed in a marketing or managerial position, working with little or no direct supervision and whose quality of performance cannot be immediately apparent, it may be reasonable for an employer to specify a probationary period measured in months. Circumstances will vary from case to case; the size, location and mode of operation of the employer being relevant factors, along with personal characteristics and circumstances of the employee. The legislature has not prescribed the maximum extent of a reasonable period. It is not for me to do so. But I suspect that an employer will rarely be able to justify a period exceeding two or three months in the case of…an award employee or a non-award employee whose wages do not exceed (the prescribed monetary ceiling prescribed for unfair dismissal claims)…"

30 It has to be recognised that, particularly in many areas of Crown employment - teachers, police officers, as well as firefighters - lengthy probationary periods are common. And Nicholson's Case has also to be considered in the context of Reg.6(1) to the State IR Act which came into effect from Wednesday, 1 October, 1997, excluding certain classes of employees from the Part 6 jurisdiction. In particular, probationary employees are excluded from Part 6 [Reg.6(1)(c)], viz:

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

To that extent the comments of Wilcox J in Nicholson's Case are undermined by Reg.6(1)(c) which clearly automatically excludes from the unfair dismissal jurisdiction employees serving a period of probation of three months or less if the duration of the probation period was determined in advance of the employment [Reg 6(1)(c)(i)]. However, I do not believe that the situation is so clear with cases where the probation period extends for more than three months as was the case with Mr Levy [Reg.6(1)(c)(ii)].

31 Reg 6(1)(c) provides that an employee must be informed of the duration of the probation in advance of the employment: as I indicated in my unreported decision of Tuesday, 5 October, 2004 in Earl v. Tony Pollard Electrics Pty Limited [Matter No.IRC 7138 of 2003 at p.3] if an employee is not informed of a probationary period, and accepts it, prior to the employment contract commencing Reg.6(1)(c) has no effect. But the letter of appointment which provided for a six month probation period for Mr Levy was dated Wednesday, 30 January, 2008, ie prior to the commencement of his employment as a Recruit Firefighter.

32 I now turn to examine the interlocutory decision of GREAT on Wednesday, 1 October, 2008 in more detail. In terms of S.23(1)(d) of the GREAT Act where the NSWFB makes a decision to annul the appointment of an employee appointed on probation, it shall, except as otherwise provided under S.24(3), give the employee notice, in writing of the decision as soon as practicable after the decision is made. And S.24(3)(b) is, as far as relevant in these proceedings, comparable to Reg.6(1)(c), excluding appeal to GREAT against a decision taken under S.23(1)(d) of the following classes of firefighters:

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

The language of Reg.6(1)(c) to the State IR Act is therefore identical with S.24(3)(b) of the GREAT Act on which GREAT based its interlocutory decision to exclude Mr Levy from pursuing his claim before it.

33 As recorded in the GREAT interlocutory decision (at p.4), with the letter of appointment dated Wednesday, 30 January, 2008 on which Mr Levy's employment as a Recruit Firefighter was based, it is clear that the duration of Mr Levy's probation - six months - was known by him prior to commencing his employment. The GREAT decision goes on to record (at pp.4 and 5):

"....The NSWFB argues that the six months period is reasonable because of the nature and circumstances of the employment of permanent firefighters and the applicable statutory provisions - in particular Clause 13.3 of the Fire Brigade Award...which provides: 'Recruit Firefighters shall be on probation until they have progressed to Firefighter Level 1, or for a period of six months, whichever is the lesser. Progress from Recruit Firefighter to Firefighter Level 1 shall be subject to the satisfactory completion of Certificate 3 (Firefighting Operations) undertaken at the New South Wales Fire Brigade Training College.'...

The union argues on behalf of Mr Levy that, firstly, the NSWFB is obliged to make out its case and has failed to establish that there is no jurisdiction. Secondly, that S.24(3)(b)(ii) must, as the GREAT Act is beneficial legislation, be interpreted in favour of Mr Levy. Thirdly, a six months probation period is excessive and unreasonable in the light of the approach outlined in Nicholson , a decision followed both in this Tribunal and the New South Wales Industrial Relations Commission. Fourthly, Mr Levy's 20 months of employment from May, 2006 to February, 2008 as a Retained Firefighter (effectively a part-time firefighter) should be taken into account and, if so, points to the unreasonableness of the six months probationary period. Finally, the dispute between Mr Levy and the NSWFB centres on the NSWFB's refusal to advance him as a Firefighter Level 1 and in the circumstances it is unreasonable for the NSWFB to withhold Mr Levy's progression..."

34 On those issues the interlocutory decision GREAT had this to say (at pp.6 and 7):

"....In jurisdictional disputes before the Tribunal it is clear that the onus lies on an appellant to satisfy the Tribunal that he has invoked the Tribunal's jurisdiction [ Meehan v. Commissioner of Police (1999) 47 NSWLR 284 at p.285]. However, it is also clear that where an employer raises an objection to the Tribunal's jurisdiction, it is for the employer to establish the evidentiary facts necessary to show the want of jurisdiction [ Wijessuriya v. Department of Conservation (1994) 54 IR 384 at pp.392 and 393]. The NSWFB has tendered documents that show that the probationary period was determined in advance, the probationary period served by Mr Levy, the notification of the annulment of his appointment and brought to the Tribunal's attention the relevant statutory and award provisions that regulate the employment of permanent firefighters.

The NSWFB material is sufficient evidence to establish the want of jurisdiction under S.24(3) by allowing the tribunal to exercise its judgment as to the reasonableness or otherwise of the probationary period. Therefore, the union's argument that the NSWFB has not made out its case is rejected. Similarly, although I accept the union's proposition that, as beneficial legislation, the GREAT Act should be interpreted in Mr Levy's favour, and would be prepared to give Mr Levy the benefit of any doubt if the reasonableness or unreasonableness of the probationary period was difficult to judge, in this instance I believe the period is clearly reasonable. In relation to the final point raised by the union - the dispute centres on the NSWFB's refusal to progress him to Firefighter Level 1 - this appears to properly go to the merits of the matter, rather than address the issue of jurisdiction under S.24(3)(b).

In conclusion, the Tribunal finds that the six month probationary period that applied to Mr Levy's appointment as a Recruit Firefighter was reasonable in all the circumstances. As such, S.24(3)(b)(ii) excludes any appeal by Mr Levy in relation to the annulment of his appointment to this Tribunal..."

GREAT therefore dismissed Mr Levy's appeal on that basis. The question remains whether I should also dismiss the Part 6 application the FBEU lodged on Mr Levy's behalf on the same basis.

35 Of course, these proceedings are not to be regarded as an appeal against the GREAT decision. Such appeals lie with the State Supreme Court (on very limited grounds). And it may seem odd that when these proceedings turn on a legislative provision in identical terms to that on which the GREAT decision was based, there may possibly be a different result before me. But with respect to GREAT, I disagree with the conclusion it reached on the question of jurisdiction, at least as far as it concerns the Part 6 jurisdiction before me. My decision would, of course, provide no precedent for GREAT but it seems to me that the precedents I am required to adopt in the Commission produce a different result than that which occurred for Mr Levy before GREAT. Notwithstanding the comments made by GREAT in dismissing the appeal the FBEU lodged to it on behalf of Mr Levy, and the fact that I am dealing with a similar claim based on virtually identical statutory provisions, I am not satisfied, that the Part 6 application is beyond jurisdiction.

36 To begin with, in an unreported decision of Thursday, 23 July, 1998 in Claric 218 Pty Limited trading as Sanity Music v. Meldrum [Matter No.IRC 5165 of 1997] a Full Bench of the Commission (Hungerford and Schmidt JJ and Connor C) commented (at p.4):

"...Necessarily, in our view, the fact a person may be engaged for a probationary period forms part of the relevant circumstances to take into account in determining whether relief should be granted if dismissal occurs, as here, during the alleged probationary period: see Alchin v. South Newcastle Leagues Club Limited (at pp.238 and 239 and New South Wales Independent Teachers' Association v. St Aloysius College (1976) AR 91. Of course, the extent to which such factor is to be taken into account and what effect it will have on the eventual outcome cannot be formulated in advance or laid down in any set of rules - each case will turn on its own facts, not the least of which will involve what the parties intended to convey in a contractual sense by the use of the phrase 'probationary period': see generally Alchin (at p.237) and Smith v. Director-General of School Education (at pp.216 to 218)..."

Those comments were adopted by a Full Bench of the Commission (Wright J - President, Walton J - Vice President and McLeay C) in Price v. Box Valley Pty Limited (1999) 90 IR 480 which (at p.483) described the observations made in the Sanity Music Case as "...an apt description of the discretionary considerations which arise in relation to the termination of probationary employment...".

37 In Buckman v. Burdekin Resources NL (1998) 85 IR 415 the Full Bench of the Commission (Wright J - President, Hungerford J and McKenna C) similarly commented (at p.418):

"....The onus to be discharged by the application in unfair dismissal proceedings is to establish, to the satisfaction of the Commission according to the civil standard on the probabilities, that the dismissal was harsh, unreasonable or unjust. Although an applicant's probationary status is a matter which properly may be taken into consideration in assessing whether a dismissal was harsh, unreasonable or unjust, there is no heavier onus for probationers to discharge in relation to an application under S.84 of the Act than otherwise would apply to non-probationers..."

38 The Full Bench of the Commission in the Box Valley Case, accepted that reasoning (at pp.484 and 485). The conclusion to be drawn from the Sanity Music Case¸ Buckman's Case and the Box Valley Case, as I understand it, is to suggest that any probationary period beyond what is reasonable in accordance with Reg.6(1)(c)(ii) is a factor which must be taken into account when ultimately assessing the fairness or unfairness of a dismissal. 39 As I indicated earlier in this decision, I am not entitled to intrude into any decision of GREAT and I do not do so. But, as far as the Part 6 proceedings before me, it seems to me that the GREAT decision has charted a course which was rejected in the Sanity Music Case¸ Buckman's Case and the Box Valley Case. As the Full Bench in the Box Valley Case indicated (at p.485) the "...statutory mandate..." on which Part 6 applications rely is to determine whether or not the dismissal was "...harsh, unreasonable or unjust..." and no "...special onus..." rests on a probationary employee which divests attention from that mandate.

40 The gist of the various precedents to which I have referred earlier in this decision, together with the wording of Reg.6, therefore suggests to me the following:

that notwithstanding the comments of Wilcox J in Nicholson , Reg.6(1)(c)(i), as a matter of jurisdiction , clearly excludes from the Part 6 jurisdiction a dismissed employee engaged on a probation period of three months or less (when the duration of that probation period was known by him prior to employment commencing); and

that where the employee was dismissed during a probationary employment in excess of three months, in assessing the reasonableness of the probationary employment in terms of Reg.6(1)(c)(ii) it is necessary for the member of the Commission to have "...regard to the nature and circumstances of the employment..." and, as suggested by the Full Benches of the Commission in the Sanity Music Case , Buckman's Case and the Box Valley Case , the task before the member is still to determine the fairness or otherwise of the dismissal - whether it was "harsh, unreasonable or unjust" for the purposes of S.84(1); included in the deliberations of the member of the Commission is the probationary nature of the employment), ie it is a matter going to the merit of the claim and not as to jurisdiction.

41 In short, as a matter of jurisdiction, I do not believe that a Part 6 claim by a employee whose services were terminated on a probationary period of in excess of three months may be dismissed without the member of the Commission hearing the matter and addressing the merits of the claim. It is only in that manner that the reasonableness of the probationary period may be properly assessed. When Reg.6(1)(c)(ii) speaks of the reasonableness of the probationary period being considered "...having regard to the nature and circumstances of the employment..." it dictates that all the circumstances of the particular employment of the dismissed employee should be borne in mind. The merits of the FBEU claim on behalf of Mr Levy is not before me at this stage in the proceedings.

42 I accept that, as I indicated earlier in this decision, it is common for Crown employment to have probationary periods of employment in excess of the three months stipulated in Reg.6(1)(c)(i). Such probationary arrangements are often conditions contained in State legislation or State Crown Awards. As far as firefighters are concerned, Clause 13 of the Fire Brigade Act confirms that position. I would expect that in such circumstances the probationary period set would prima facie be acceptable employment conditions. Mr Easton is no doubt correct when he asserts that since the probationary period is a State award provision, under the supervision of the Commission, it has to be accepted as a fair and reasonable employment condition. But, to my mind, that does not necessarily mean that such arrangements make the probationary employment automatically reasonable for each and every employment situation for the purposes of Reg.6(1)(c)(ii). 43 Probationary Crown employees in the past have often pursued a remedy under Part 6 without jurisdictional challenge. I see no reason that they should not be able to continue to do so. I note in that respect the so far unreported decision of Boland J, the President of the Commission, on Friday, 6 February, 2009 in Alexander v. Commissioner of Police [Matter No.IRC 1832 of 2008]. His Honour reinstated a probationary constable whose services were terminated over his failure to follow basic policing procedures and compounded that failure with subsequent untruths about his conduct. Whilst recognising the importance of integrity in a police officer, his Honour nevertheless formed the view that the dismissal of the probationary police officer was too severe a penalty for him.

44 No doubt Reg.6(1)(c) was drafted with Crown employment, and the more extensive probationary periods necessary for much Crown employment, in mind but the arbitrary line was drawn by the State legislature at three months. I consider that caution should be exercised by members of the Commission in dealing with dismissed employees with anything above three months of probation to ensure that in assessing the reasonableness of the termination of the employment, all issues relevant to that consideration are properly before the Commission. That does not occur when all that is before the Commission in the present case are issues going to jurisdiction.

45 Consequently, I am satisfied that the Part 6 application the FBEU lodged on behalf of Mr Levy is jurisdictionally competent. I propose to adjourn these proceedings on that basis. I will reconvene the proceedings for further mention and programming of the matter on Friday, 24 April, 2009.

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