Nicholson v Heaven & Earth Gallery Pty Ltd

Judgment 1This is an application pursuant to section 84 of the Industrial Relations Act 1996 ("the IR Act") by Leonie May Smith ("the Applicant") seeking relief from unfair dismissal from her employment with the NSW Department of Corrective Services ("the Department"). 2The application was filed on 7 November 2011 and first listed for the purposes of conciliation and if unsuccessful, directions on 5 December 2011. 3Ms Smith appeared on her own behalf supported by Ms L Rowe. Ms G Singer appeared for the Department. 4At the outset of conciliation Ms Singer gave notice of an issue of jurisdiction on the basis that Ms Smith was a probationary employee, submitting that the Department was seeking advice and reserved a right to press the issue if the matter went to hearing. 5The matter was unable to be resolved in conciliation and directions issued for preparation of the matter to hearing. 6The parties proceeded in accordance with the directions then made including the service of a subpoena by Ms Smith seeking a range of documents from the Department returnable on 20 December 2011. 7The matter was next before the Commission as presently constituted by teleconference on 10 February 2012. On that occasion Ms Smith appeared on her own behalf, Ms Jowett of Counsel appeared for the Department. 8Ms Jowett sought an extension of time to 5 March 2012 to serve and file material in response. Ms Jowett again mentioned the jurisdictional issue and was directed to put it as a notice of motion if they were so advised to pursue the matter. 9The Department was afforded to 5 March 2012 to file and serve. Ms Smith was allowed until 5 April 2012 to put on material in reply. The matter was listed for hearing on the estimate of 2 days from 10am on Monday 16 April 2012. 10The Department filed a notice of motion on 23 February 2012 challenging the jurisdiction of the Commission and the capacity of Ms Smith to make the present application, putting that she was precluded by Clause 6(1)(C) ii of the Industrial Relations (General) Regulations ("the Regulations") 11This Regulation states: 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: (a) employees engaged under a contract of employment for a specified period of time, if the specified period is less than 6 months, (b) employees engaged under a contract of employment for a specific task, (c) 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 3 months or less or (ii) if the period, or the maximum duration, is more than 3 months - the period, or the maximum duration, is reasonable having regard to the nature and circumstances of the employment, 12The Notice Of Motion was listed for hearing at 10am on Monday, 16 April 2012 prior to proceedings in the substantial application. 13Submissions on jurisdiction in response to the Notice of Motion were filed on behalf of Ms Smith on 16 April 2012 (Exhibit 4). 14The first argument advanced by Ms Smith relies upon Part 7 of the IR Act which states: 97 Notice of certain decisions etc (1) This section applies to the following decisions made by a public sector employer in relation to a public sector employee: (a) a decision to defer, for a period in excess of 6 months, the payment of an increment to the employee, (b) a decision to reduce the rank, classification, position, grade or pay of the employee, (c) a decision to impose a fine or forfeit pay, (d) a decision to annul the appointment of an employee appointed on probation, (e) a decision to suspend the employee as a punishment where the employee is held to be guilty of misconduct or contravention of any law or any rule or direction of the employer, (f) a decision to dismiss the employee, (g) a decision to direct or to require the employee to resign. [emphasis added] (2) A public sector employer who makes a decision to which this section applies in relation to an employee must give the employee notice, in writing, of the decision as soon as practicable after the decision is made, except as otherwise provided by an order made under subsection (4). (3) If the employer is unable to give the employee notice of the decision within 14 days after it is made, the employer may apply to the Commission for an order as to the giving of the notice. (4) On receipt of an application under subsection (3), the Commission may make such order as the Commission thinks fit as to the giving of the notice or may make an order dispensing with the giving of the notice. (5) A notice may be given, or the giving of a notice may be dispensed with, in accordance with an order made under subsection (4). (6) In subsection (1) (f): dismiss includes dispensing with the services of an employee (including under any right or power of the Crown to dispense with the services of an employee). (7) For the purposes of this Division: (a) a decision of a kind referred to in subsection (1) (d), (f) or (g) is a decision that may, subject to this Act, be appealed against under section 98 regardless of whether the decision was made for disciplinary reasons, and (b) a reference to a public sector employer making a decision of a kind referred to in subsection (1) includes a reference to any other person (including the Crown) who is authorised by or under any law to make that decision or to carry it into effect. 98 Right of appeal (1) Despite anything contained in any other Act, a public sector employee may, subject to and in accordance with this Part, appeal to the Commission against an appealable decision of his or her employer. (2) Such an appeal may be made on the ground that the decision appealed against was made substantially in reprisal for a public interest disclosure within the meaning of the Public Interest Disclosures Act 1994. (3) However, employees of the following classes cannot appeal to the Commission against an appealable decision referred to in section 97 (1) (d), (f) or (g): (a) employees engaged under a contract of employment for: (i) a specified period of time that is less than 6 months, or (ii) a specified task that is of less than 6 months duration, (b) 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 3 months or less, or (ii) if the period, or the maximum duration, is more than 3 months-the period, or the maximum duration, is reasonable having regard to the nature and circumstances of the employment and the statutory provisions relating to the probationary appointment of the employee concerned, (c) employees engaged on a casual basis for a short period except those who: (i) are engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months, and (ii) would, but for the decision of the employer, have had a reasonable expectation of continuing employment with the employer. [emphasis added] 15The argument advanced is that the application is not prohibited by s98(3)(b) on the basis that the probationary period of 12 months is unreasonable and should be subject to review of the Commission. 16The submissions on behalf of Ms Smith put that, having regard to the nature and circumstances of the position, there is no reasonable or satisfactory explanation as to why the probationary period was extended to 12 months. 17A second submission is put that a probationary period of 12 months with the capacity to extend it does not determine the maximum period of probation and accordingly the period of probation was not determined in advance and was not reasonable. 18The submissions filed further concern the merits of the case, making assertions as to the reasons for annulment of the employment, which are contended to be unlawful. 19It is necessary to resolve the issue of jurisdiction prior to consideration of substantive issues. 20The Department provided a response, dated 12 April 2012 (Exhibit 3), to the submissions filed on behalf of the applicant. 21The Notice of Motion was heard at the outset of proceedings of 16 April 2012. 22Ms L Rowe appeared as agent for and with Ms L Smith. 23Ms Jowett continued her appearance on behalf of the Department with Ms G Singer. 24The Notice Of Motion is supported by an affidavit by Ms Glenn Singer in the capacity of legal officer at the Department of Attorney General and Justice (Corrective Services NSW) dated 23 February 2012 (Exhibit 1). 25Ms Singer was not required for cross examination. 26The evidence of Ms Singer is that Ms Smith: (i) accepted and signed an offer of appointment, on probation for 12 months, to the position of Accommodation Support Worker ["ASW"] on 21 February 2011 ["Offer of Appointment"]; (ii) the position of ASW was for the diversionary Community Offender Support Program at Miruma Cottage, adjacent to the grounds of Cessnock Correctional Centre; (iii) commenced employment on 14 March 2011 with induction training at the Brush Farm Corrective Services Academy at 66 Terry Road, Eastwood; (iv) on 4 April 2011, commenced duties at Miruma Cottage; 27The evidence of Ms Singer is supported by a copy of the letter of offer of employment on the basis of probation for 12 months to Ms Smith undated and a copy of the acceptance of that offer signed by Ms Smith on 21 February 2011. 28The evidence of Ms Singer is that all employees of the Department are engaged on 12 months probation in accordance with section 23(1) of the Public Sector Employment and Management Act 2002 [NSW] ("PSEM Act"). 29Section 23(1) of the PSEM Act provides: "...every person admitted to the Public Service as an officer must, in the first instance, be appointed to a position on probation for a period of 6 months or such longer period as the appropriate Department Head directs." 30Ms Singer's evidence is that all new employees of the respondent are employed on a standard probationary period of 12 months, in accordance with the determination of the Head of the Department as authorised by s23(1) of the PSEM Act, expressed in a document titled "Confirmation of Appointment - Policy and Guidelines" of the Human Resources Division, tendered as attachment B to the affidavit of Ms Singer (Exhibit 2). 31Ms Rowe and Ms Jowett relied upon their written submissions. 32Ms Rowe pressed her argument that, having regard to the nature of the position, a 12 month probationary period was unreasonable. 33There was no substantive disagreement between the parties as to the scope and nature of the work performed. 34It is useful to record the Department's submissions in respect to the test of reasonableness. Ms Jowett submitted that: 24..... by applying the test in Nicholson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233; 57 IR 50, the nature of Ms Smith's position, shift work, the size, location and mode of operation of the Miruma facility of the Respondent, both lead to the conclusion that the 12 months probationary period is "reasonable having regard to the nature and circumstances of employment". Nature of the Job 25.Ms Smith's position did not involve "repetitive duties under close supervision". Rather, it was a level 5-6 position that required "the position holder [to] make[s] decision based on independent professional judgment" and "a high degree of autonomy in regard to the determination of priorities, workload and day to day delivery of services". The position holder was often working unsupervised for large portions of a shift or not supervised at all on the night shift. 26.The level 5-6 position is not a "relatively unskilled position". It requires the position holder to: