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[2002] AIRC 1381
plaintiff. The respondent's application to dismiss for lack of jurisdiction is dismissed; the Commission finds it has jurisdiction to determine the applicant's s170CE application (The application by Martrak...
The Commission rejected the employer's argument that the unfair dismissal application should be dismissed for lack of jurisdiction because the employee was dismissed during a probationary/qualifying period. The Commission accepted documentary material showing the employee began permanent employment on 22 April 2002 and was terminated on or about 24 July 2002, a period exceeding three months. Because there was no written qualifying period and the statutory three months had been exceeded, the exclusion in s170CE(5) and Regulation 30B did not apply. The respondent's application to dismiss was dismissed and the Commission found it had jurisdiction to hear the substantive s170CE claim.
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1,652 words · generated 06/07/2026
This is a jurisdictional ruling by the Australian Industrial Relations Commission (Commissioner Holmes) on an application under section 170CE of the Workplace Relations Act 1996. The applicant, Marcus William Veedikint, alleged unlawful termination and sought relief under s170CE. The respondent, Martrak (Vic) Pty Ltd, applied to have the application dismissed on the ground the Commission lacked jurisdiction because the applicant had been dismissed during a probationary or qualifying period and therefore fell within exclusions in s170CE(5) and Regulation 30B (see [1]).
2 cited instruments linked from this judgment.
The factual dispute turned on two pivotal questions: when did the applicant commence permanent employment, and when was he terminated. The papers and submissions disclosed that the applicant undertook trial/casual work on 18 April 2002 and 20 April 2002, and that he commenced permanent employment on 22 April 2002. His last day actually worked was 17 July 2002, and the Commission found, on balance, that termination occurred on or about 24 July 2002 ([3], [13], [14]). On that basis, Commissioner Holmes held that the applicant’s period of permanent employment extended beyond three months (computed under section 22 of the Acts Interpretation Act 1906) and that no written qualifying period had been shown to the Commission. Therefore the statutory exclusion under s170CE(5) and the Regulation 30B category of employees did not apply. The respondent’s dismissal application was accordingly dismissed and the Commission declared it had jurisdiction to determine the s170CE application ([14], [15]).
Procedurally, both parties were offered the opportunity to give sworn evidence but declined; the Commission therefore proceeded on submissions and documentary exhibits and made findings on the balance of probabilities ([2], [13]).
The decision turns on statutory construction and on basic fact-finding.
Statutory framework. The respondent relied on section 170CE(5)(a) and (b) and Regulation 30B, which exclude certain employees, including those serving a probationary or qualifying period (if the period is 3 months or less, or a longer reasonable period determined in advance), from the protections in the Part. The Commission had to determine whether the applicant fell within that exclusion ([1]).
Calculation of qualifying time. The Commission applied the Acts Interpretation Act 1906 (s22) to compute the length of employment. The key factual determinations were that the applicant commenced permanent employment on 22 April 2002 and was terminated on or about 24 July 2002 ([13], [14]). Applying s22 to that period produced a term in excess of three months, so the applicant had not been dismissed within a three-month probationary exclusion.
Requirement for a specified written qualifying period. The decision emphasises that subsections (5)(b) and (c) would apply where a qualifying period of employment was specified by way of written agreement. No such written qualifying period was before the Commission; consequently the respondent could not rely on an unproved qualifying period to displace the applicant’s entitlement to pursue a s170CE claim ([14]).
Fact-finding approach in absence of sworn testimony. Both parties chose not to give sworn testimony. The Commission therefore relied on the documents (time and wages sheet exhibit R1; payments exhibit R2), submissions and the balance of probabilities to determine commencement and termination dates ([2], [3], [13]). Where there was uncertainty (for example, about the exact date of certain phone conversations) the Commission declined to accept the respondent’s chronology and found termination occurred on or about 24 July 2002 ([13], [14]).
Putting the statutory test to the found facts led to the single legal outcome: the exclusion did not apply and the Commission had jurisdiction.
Before this decision: The statutory exclusions in s170CE(5) and Regulation 30B were already settled features of the Workplace Relations Act framework. Those provisions exclude some employees, including those on qualifying probationary periods, from the unfair dismissal protections in Part VIA. The law required a correct construction of the qualifying period rules and proper factual identification of when employment became 'permanent' for the purposes of counting the qualifying period.
After this decision: The Commission's ruling is a straightforward application of those provisions to the facts. It confirms the practical points that:
The decision is primarily a fact-driven application of established statutory provisions rather than an innovation in the law. It emphasises procedural realities in contested jurisdictional challenges: the Commission will make findings on the balance of probabilities from the evidence before it, even if the evidence is unsworn.
Quotation (statute): The Commission reproduces s170CE(5) and Regulation 30B in full at [1]. Plain English: These legal provisions say that some employees are excluded from unfair dismissal protections, including employees serving a probationary period determined in advance that is three months or less (or longer if reasonable).
Factual finding about commencement: “In light of the documentary material before me I find that Mr Veedikint commenced casual employment ... on Thursday, 18 April 2002 ... He commenced permanent employment on the following Monday, 22 April 2002.” ([13]). Plain English: The Commission accepted the time sheets and payment records showing the applicant did some trial shifts and then started full-time work on 22 April 2002.
Factual finding about termination date: “Consequentially on balance I find that Mr Veedikint was terminated on or about 24 July 2002.” ([14]). Plain English: Given the documents and the lack of direct sworn proof of an earlier dismissal, the Commission found the employer’s termination took effect around 24 July 2002.
Legal conclusion on jurisdiction: “I find therefore that Mr Veedikint's application ... is not excluded because of the operation of section 170CE(5)(a) and (b) as Mr Veedikint had completed more than three months employment ...” ([14]). Plain English: Because his permanent employment lasted more than three months, the statutory exclusion did not apply and the Commission can hear his unfair dismissal claim.
Disposition: “The application by Martrak (Vic) Pty Ltd is therefore dismissed.” ([15]). Plain English: The employer’s attempt to have the unfair dismissal complaint dismissed for lack of jurisdiction failed.
This decision is relevant where an employer contends an employee was dismissed within a probationary or qualifying period and therefore excluded from unfair dismissal protection. The factual triggers include:
If an employer cannot produce a demonstrable written qualifying period or cannot show that the employee's employment was terminated within the three-month statutory window, the Commission will likely conclude it has jurisdiction, provided documentary evidence supports the employee’s longer service.
This decision is a single-instance Commission determination that applies statutory provisions to found facts. The decision itself contains no citations to later treatment or higher court authority. The reasons are fact-specific and apply established statutory rules rather than evolving or novel principles. The decision therefore serves as an exemplar of Commission practice on jurisdictional challenges under s170CE and Regulation 30B, especially where documentary material is available and parties elect not to give sworn evidence.
Because this is a Commission decision on jurisdictional facts, any later judicial or industrial tribunal treatment is not discussed within these reasons. Practitioners should treat the case as persuasive Commission practice on how to approach competing unsworn evidence and the need for employers to provide clear written qualifying agreements or contemporaneous evidence to support a Regulation 30B/probation exclusion argument.
Written qualifying period evidence: The decision emphasises the lack of a written qualifying period. It remains open on what form of written agreement or contemporaneous documentation would be sufficient to invoke subsections 170CE(5)(b)/(c) and Regulation 30B in contexts where an employer claims a longer-than-three-month reasonable qualifying period. The decision notes the absence of such a document but does not further elaborate criteria for adequacy.
Computation nuances: The Commission applied s22 of the Acts Interpretation Act 1906 to compute 'three months', but the decision does not set out the full method of calculation in this instance (for example, whether specific days are included/excluded in other factual permutations). Parties should take that computation point forward, but detailed borderline questions remain to be decided in other cases.
Evidence rules and procedural approach: The Commission observed that both parties declined sworn evidence and proceeded to resolve conflicting accounts from the bar table. While this outcome is clear, there is scope for delineating the weight to be given to particular documentary exhibits versus oral unsworn assertions in different fact patterns. The decision applies ordinary balance-of-probabilities reasoning, but finer-grained guidance on evidentiary weighting in jurisdictional challenges would assist practitioners.
Substantive unlawful dismissal grounds: The Commission's decision resolves jurisdiction only and does not decide whether the termination was unlawful under s170CK(2)(a) (temporary absence due to illness). The substantive merits of the applicant’s s170CE claim thus remain open and would require further factual exploration, sworn evidence and assessment of statutory defences by the employer.
Practical takeaways for litigators and compliance professionals: ensure clear written documentation of any qualifying/probationary terms if an employer intends to rely on Regulation 30B; preserve contemporaneous records of commencement and termination communications; and be aware that the Commission will rely on documents and may make decisive findings even where parties decline to give sworn testimony.
s.170CE application for relief in respect of termination of employment
[1] The Commission had before it an application by Martrak (Vic) Pty Ltd, (the respondent) that the Commission dismiss the application by Mr Marcus Veedikint (the applicant) made pursuant to section 170CE of the Workplace Relations Act 1996 (the Act) on the basis that it did not have jurisdiction to deal with this matter as the applicant was dismissed during a period of probation. Thus it was submitted that section 170CE(5)(a) and (b) which states:
" (5) An application under subsection (1) may not be made:
(a) on the ground referred to in paragraph (1)(a) or on grounds that include that ground-unless, under subsection 170CB(1), Subdivision B applies to that application; or
(b) on a ground referred to in paragraph (1)(b)-unless Subdivision C applies to that application."
" 30B. Certain employees excluded from requirements for termination of employment:
(1) For subsection 170CC (1) of the Act, the following kinds of employees are excluded from the operation of Subdivisions B, C, D, E and F of Division 3 of Part VIA of the Act:
(a) an employee engaged under a contract of employment for a specified period of time;
(b) an employee engaged under a contract of employment for a specified task;
(c) an employee serving a period of probation or a qualifying period of employment, if the duration of the period or the maximum duration of the period, as the case may be, is determined in advance and, either:
(i) the period, or the maximum duration, is 3 months or less; or
(B) is reasonable, having regard to the nature and circumstances of the employment;
(d) until the end of 11 September 2004, a casual employee engaged by a particular employer for a short period, within the meaning of subregulation (3);
(e) a trainee whose employment under a traineeship agreement or an approved traineeship:
(ii) is, for any other reason, limited to the duration of the agreement;
(i) who is not employed under award conditions; and
(ii) to whom subsection 170CC (3) or (4) of the Act applies."
precluded the matter being dealt with by the Commission had not completed a three month period of probation.
[2] The applicant Mr Veedikint appeared for himself and Mr Reardon, a director of Martrak Pty Ltd, appeared for the respondent. Both parties were advised that they could give sworn evidence if they so desired but in the event chose not to. Thus the Commission is faced with choosing between contradictory evidence/submissions given from the bar table.
[3] Mr Riordan submitted that Mr Veedikint had commenced employment on Thursday, 18 April 2002 as a casual and worked from 12:00 p.m. to 5:00 p.m. and again on Saturday, 20 April 2002 from 6:00 p.m. to 2:30 a.m. and tendered a time and wages sheet which had been signed by Mr Veedikint [exhibit R1]. That time sheet indicated that Mr Veedikint was paid at the casual rate. He submitted that Mr Veedikint started full-time work on Monday, 22 April 2002 and continued until he took leave without pay, with management approval, in order to go on holidays for the period 3 June 2002 until 16 June 2002. Mr Reardon also tendered an exhibit R2 which set out payments made to Mr Veedikint on 29 April 2002, 6 May 2002 and 13 May 2002. The first entry for 29 April 2002 indicated that Mr Veedikint had been paid as a casual whilst the second entry for 29 April 2002 indicated that he was paid at the normal weekly rate. The same arrangement applied for the entries for 6 and 13 May 2002. Further it was submitted that Mr Veedikint was terminated by Mr Andrew McDonough, the hotel's Manager, on 17 July 2002 and that the basis for the termination at the end of the qualifying period was a belief that Mr Veedikint would not fit the ongoing requirements of the hotel.
[4] Mr Veedikint submitted that he commenced employment with the respondent on 16 April 2002 on the basis of it being a trial period. He had been interviewed by Mr McDonough on 13 April 2002 and was asked to undertake a trial of a couple of hours on 16 April 2002 during which time he was asked to come again on Thursday, 18 April 2002 for approximately four hours and again on Saturday, 20 April 2002 for a further trial. The latter trial was designed to establish whether he could handle a busy night. He commenced full-time work on Monday, 22 April 2002. He submitted that he worked approximately 60 to 65 hours a week even though he had been told in the initial interview that he would be required to work approximately 50 hours a week. He submitted that his net rate of pay was $501.00 per week irrespective of the hours that he worked and he acknowledged that he had asked for some time off without pay early in May and had a long discussion with Mr McDonough about that matter and was advised that it would not affect his continuing employment. Mr McDonough had indicated that that advice was subject to discussion with Mr Reardon but there had been no difficulty in that regard. He also indicated that in either late May or early June he raised with Mr McDonough and Mr Riordan the fact that he was a little bit disillusioned with a number of hours he was required to work which were in the order of 60 to 65 hours a week and his conditions of employment. He also advised them that he had been looking for another job because of that situation. He took leave from 7 June to 18 June 2002 and claimed that he possessed documentary evidence in the form of entries in his passport although that documentary evidence to support this claim was not with him at the time of the hearing.
[5] Mr Veedikint indicated that at meeting on 24 June 2002 with Mr Reardon he reiterated his unhappiness with his conditions of employment including his lack of control over staff and that he had a final interview for another position that afternoon and that depending upon the outcome of this discussion with Mr Reardon and whether he was offered the position by the prospective employer he would be leaving to take up the new position. He submitted that Mr Reardon had indicated that he would look at these issues of concern namely the control of staff, the pay and the rostered hours in an attempt to keep Mr Veedikint in his employee. On Wednesday, 26 June 2002 whilst working at the hotel Mr Reardon had offered him additional pay and proposed to introduce a new rolling roster [exhibit V2] which meant a reduction in the number of hours he was required to work such that he and the other Manager named Andrew McDonough would work approximately the same number of hours. Although he had received an offer of employment from the other company he had turned down the position because of the rostered changes, the increase in pay and that he had been given an assurance that his position within Haskins Hotels was secure.
[6] He submitted that on 17 July 2002 he injured himself at work, that he had left a note on the till at closing time about the matter as he had been unable to contact Mr McDonough or Mr Reardon about the situation despite a number of attempts to ring them. Subsequently he obtained a medical certificate for 17 and 18 July 2002 and had spoken with Mr McDonough at approximately 2.00 p.m. on 18 July 2002 about the situation. During his conversation with Mr McDonough on 18 July 2002 he advised that he had sprained his ankle and had x-rays taken and was walking on crutches. He contended that Mr McDonough had advised him to let him know how things went. On 24 July 2002 he again spoke with Mr McDonough following his visit to the doctor and advised him that he would not be able to return to work until at least Sunday, 28 July 2002. He submitted that Mr McDonough had advised him that if he couldn't come to work then it would be necessary for the hotel to find a replacement as Mr McDonough himself could not cover all of the hours.
[7] Mr Veedikint indicated that the position of assistant manager at the hotel was re-advertised in The Age on 24 July 2002. He claimed that he had been unlawfully dismissed because of his absence from work due to illness and thus his termination fell within the scope of section 170CK(2)(a) which states:
" (2) Except as provided by subsection (3) or (4), an employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
(a) temporary absence from work because of illness or injury within the meaning of the regulations;"
[8] As a result of questions from the Commission Mr Veedikint claimed that he had worked three trial periods on 16, 18 and 20 April 2002 and that he started, on a full-time basis on Monday, 22 April 2002 and had been terminated on Wednesday, 24 July 2002. Moreover Mr McDonough had offered him that job on a permanent basis and that offer was affirmed by Mr Reardon. He submitted that there had not been any discussion about a probationary period other than in relation to the three trial periods and that when he was offered the position on a full-time basis there was no mention of a probationary period.
[9] Mr Reardon submitted that the first day upon which Mr Veedikint commenced employment was Thursday, 18 April 2002 and not Monday, 15 April 2002 as claimed by the applicant. He also acknowledged that the applicant had worked on Saturday, 20 April 2002. In relation to the events of 17 July 2002 he submitted that the note left by Mr Veedikint indicated that:
"I will be away for the next two days due to personal reasons."
[10] In so doing he advised the Commission that he was summarising the note from memory as he did not have a copy of it with him. He indicated that the respondent took that action of Mr Veedikint as the "final straw" and as a consequence it was decided to terminate his employment. It was decided to advertise the position and that occurred in The Age on Wednesday, 24 July 2002. He submitted that it was not possible to place such an advertisement on Tuesday, 23 July 2002. It was his submission that Mr Veedikint was advised of his termination at the next available time that the company spoke with him. In response to a question from the Commission he advised that he believed that that contact occurred "on 19 July when Mr Veedikint spoke to Andrew McDonough." Moreover in relation to the commencement date he contended that Mr Veedikint commenced permanent employment on Monday, 22 April 2002 following his trial period on the previous Thursday and Saturday.
[11] In response to another question from the Commission Mr Reardon submitted that Mr Veedikint had been advised that there was a three month probationary period at the time of his initial discussions with Mr McDonough and also at his initial meeting with the applicant which took place:
" . . . around about 18 April or maybe the Saturday the 20th".
[12] Mr Veedikint submitted that there was never any mention of a three month probationary period throughout his time at the hotel and only that there was a three day trial which occurred on the Tuesday, Thursday and Saturday night proceeding his commencement of work on a full-time basis on Monday, 22 April 2002.
[13] In light of the documentary material before me I find that Mr Veedikint commenced casual employment with the respondent at Haskins Hotel on Thursday, 18 April 2002 beginning at noon and working until 5.00 p.m. He worked again on Saturday, 20 April 2002 from 6.00 p.m. until 2:30 a.m. on Sunday morning. He commenced permanent employment on the following Monday, 22 April 2002. I find that the last day on which Mr Veedikint actually worked at the hotel was Wednesday, 17 July 2002. In relation to the date of termination of Mr Veedikint I am not satisfied on the material before me on balance that he was advised prior to 24 July 2002 of his termination. It is not clear from an examination of the transcript (see PN 56-57) on what date the conversation between Mr McDonough and Mr Veedikint took place regarding the his visit to his doctor on 24 July 2002. Mr McDonough was not called to give evidence, in fact no evidence other than the documents tended as exhibits was placed before the Commission. There is no material before the Commission concerning payments made to Mr Veedikint in relation to the last period of his employment.
[14] Consequentially on balance I find that Mr Veedikint was terminated on or about 24 July 2002. Thus Mr Veedikint was employed on a permanent basis from Monday, 22 April 2002 until 24 July 2002. That period is in excess of three months having regard to the definition contained in section 22 of the Acts Interpretation Act 1906. I find therefore that Mr Veedikint's application made pursuant to section 170CE of the Workplace Relations Act 1996 is not excluded because of the operation of section 170CE(5)(a) and (b) as Mr Veedikint had completed more than three months employment and therefore even if the alleged probationary period of three months had been in place he had been employed beyond that time. Moreover sections 170CE(5) (a) and (b) do not apply as there was no qualifying period of employment specified by way of written agreement such that subsections (5)(b) and (c) would have application and the statutory period as specified in section 170CE(5B)(a) of three months had been exceeded.
[15] In light of the above I find that this Commission does have jurisdiction to determine the application made by Mr Veedikint pursuant to section 170CE of the Act. The application by Martrak (Vic) Pty Ltd is therefore dismissed.
Printed by authority of the Commonwealth Government Printer
Marcus William Veedikint
Martrak
The respondent's application to dismiss for lack of jurisdiction is dismissed; the Commission finds it has jurisdiction to determine the applicant's s170CE application (The application by Martrak (Vic) Pty Ltd is therefore dismissed: [15]).