Wilson v Industrial Relations Secretary

Industrial Relations Commission (NSW)|2019-06-27

Solicitors: M Jaloussis of McNally Jones Staff Lawyers (appellant) File Number(s): 2019/23907

DECISION

The substantive matter before the Commission is an appeal by Mr Brock Wilson (the "appellant") pursuant to s 98(1) of the Industrial Relations Act 1996 ("IR Act") against a decision by the delegate of the then Secretary of Justice to terminate the appellant's employment on 21 December 2018 (the "Decision").
The matter was conciliated by me on 8 February 2019 but did not settle.
The respondent asserts that the Commission has no jurisdiction to determine the appeal because, at the time of the Decision, the appellant was serving a period of probation or qualifying period and consequently, pursuant to s 98(3)(b)(ii) of the IR Act, the appellant is precluded from appealing against a decision referred to in s 97(1)(f) of the IR Act, being a decision to dismiss the employee.
Sub-section 98(3) of the IR Act is in the following terms: 98 Right of appeal … (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.

Evidence

The respondent read: 1. an affidavit of Julianne Taverner sworn 15 March 2019; and 2. an affidavit of Richard Heycock sworn 15 March 2019.
The applicant tendered a statement by him dated 28 March 2019.

Agreed and not-agreed facts

The parties compiled a Statement of Agreed and Not Agreed Facts which narrowed the matters in dispute between them as follows: "1. The Appellant was employed by the Respondent as a casual correctional officer on 4 July 2016. 2. On 11 December 2017 the Respondent offered the Appellant ongoing employment as a Correctional Officer. The employment was to commence on 22 January 2018 at the Hunter Correctional Centre. 3. The offer of employment included the following statements: A probation period of 6 months applies … At the end of your probation period, confirmation of your ongoing employment will depend on satisfactory conduct and performance report. In the event that you fail to satisfy all requirements of the role, action may be taken to terminate your employment. … In accepting this offer of an ongoing employment, you are agreeing to work under the arrangements and principles of the: Crown Employees (Correctional Officers: Department of Attorney General & Justice - Corrective Services NSW) Award and in accordance with the Code of Conduct and all other relevant policies and procedures. 4. On 12 December 2017 the Appellant accepted the offer of ongoing employment with the Respondent commencing at the Hunter Correctional Centre on 22 January 2018. 5. The acceptance included the Appellant's acknowledgement of the following statement: At the end of your probation period confirmation of your ongoing employment will depend on a satisfactory conduct and performance report. 6. On 22 January 2018 the Appellant commenced duties at [the] Hunter [Correctional Centre] as a Probationary Correctional Officer. 7. On 24 March 2018 the Appellant was working in the control room monitor post at the Hunter Correctional Centre on the "N" watch. 8. By letter dated 4 June 2018 the Respondent advised the Appellant that it had received an allegation that he engaged in misconduct in the course of working in the control room on 24 March 2018. The allegation was that the Appellant was asleep in the course of his duties. The Respondent: a. advised that it had decided to proceed with the matter as an allegation of misconduct under s 69 of the Government Sector Employment Act 2013 (NSW) (GSE Act) b. advised that termination of the Appellant's employment was a possible action following a finding of misconduct c. invited the appellant to make a statement in writing to in relation to the allegation. [Appellant version] 9. Prior to the expiration of the Appellant's probationary period, the Respondent did not advise the Appellant that his probationary period was being extended. [Appellant version] 10. On or before 22 July 2018 the Respondent did not notify the Appellant that his employment would not be confirmed. 11. On 14 June 2018 the Appellant was served with the Respondent's letter dated 4 June 2018. 12. On 2 July 2018 the Public Service Association (PSA) wrote to the Respondent on behalf of the Appellant. The PSA advised that the Appellant denied that he had slept while on duty on 24 March 2018. 13. On 22 July 2018 the period of 6 months after the Appellant commenced employment elapsed. [Respondent version] 14. Prior to 22 July 2018, the Respondent did not advise the Appellant that his probationary period was being extended. 15. On 9 August 2018: a. The Appellant watched CCTV footage of himself in the control room on 24 March 2018. b. The Governor of the Hunter Correctional Centre Governor Heycock, advised the appellant that his progression from probation could not be confirmed until [Respondent version] the misconduct process was finalised [Appellant version] these matters were dealt with. 16. [Respondent version] On 27 August 2018 the Appellant attended a meeting with Governor Heycock. At that meeting: a. The Appellant queried whether his ongoing employment would be confirmed. b. The Governor reminded the Appellant that the Appellant still had outstanding disciplinary matters and that until these were finalised he (the Governor) could not support such confirmation. 17. On 20 September 2018 the Respondent wrote to the Appellant: a. Advising that it had formed the view that he had engaged in misconduct b. Advising that it was considering imposing misconduct action c. Advising that the action it proposed to take was termination of the Appellant's employment. d. Advising that it had not yet made a decision to terminate the Appellant's employment or take any other action e. Advising that before making a decision on the appropriate action, it would consider: i. CCTV footage ii. The objectives of the Government Sector Employment Act 2013 and Rules iii. Any other written and/or oral submissions the Appellant wished to make f. Inviting the Appellant to make a written or oral submission or both 18. On 13 December 2018 the Appellant (with a support person from the PSA) participated in an interview with the Director, Custodial Corrections, North Region in order to make oral submissions. 19. On 21 December 2018 the Respondent advised the Appellant that it had decided to impose the misconduct action of terminating the Appellant's employment, effective immediately. 20. At no stage prior to 21 December 2018 did the Respondent notify the Appellant that his ongoing employment had been confirmed." [Emphasis in original]

Respondent's submissions

The respondent's principal submission is that, subsequent to and despite the expiration of the appellant's nominal period of probation of six months, the appellant remained a probationary employee at the time of the Decision. This was because as there was an ongoing formal misconduct procedure underway, the respondent had not determined that the appellant had demonstrated satisfactory conduct and performance, and satisfaction of the requirements for the role. The respondent had therefore not confirmed the appellant in ongoing employment and consequently the appellant remained a probationary employee in a probation period and is precluded by s 98(3)(b)(ii) of the IR Act, from appealing against the decision by the employer to terminate the appellant's employment.
In his written submissions, the respondent set out: 1. the nature of employment in the public sector, referring to Director-General of Education v Suttling [1986] 162 CLR 427 ("Suttling") in which Brennan J observed at 437: "The relationship between a civil servant and the Crown has often been described as contractual, though the civil servant has been appointed pursuant to statute. … If the relationship is contractual, the contract must be consistent with any statutory provision which affects the relationship. No agent of the Crown has authority to engage a servant on terms at variance with the statute. … The statute itself controls the terms of the service." 1. the rationale for probation periods, referring to: 1. Director General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 in which Kirby P observed: "The very purpose of probation will often be to consider by observation of the probationer's work performance under trial, whether he/she is suitable to enjoy the privileges attaching to permanency." 1. Heydon J's observation, in Commissioner of Police v Eaton [2013] HCA 2 ("Eaton") at [16], referencing Ex parte Wurth; Re Tully & Craig (1955) 55 SR (NSW) 47: "… Probation involves a process of putting to proof. It is a process of investigation and examination. A probationary period is a "period of testing or trial for the purpose of ascertaining whether [a person] has the necessary qualifications for a permanent appointment, and the word 'probation' itself involves the idea of something in the nature of trial and experiment with a view to determining whether an applicant is to be appointed." 1. the following statutory provisions: 1. section 48 of the Government Sector Employment Act 2013 (NSW) ("GSE Act") which relevantly provides: 48 Matters that government sector employment rules may deal with The government sector employment rules may deal with any matter relating to the employment of Public Service non-executive employees, including (without limitation) the following matters: (a) the recruitment of any such employees (including the recruitment process and the application of the principle of employment on merit), (b) the circumstances in which any such employees may be employed in particular kinds of employment, (c) the conditions of engagement of any such employees, … 1. section 54 of the GSE Act which relevantly provides: 54 Conditions of engagement (1) The engagement of a Public Service employee may be made subject to conditions notified to the employee on his or her engagement. (2) The conditions may include (without limitation) conditions dealing with any of the following matters: (a) probation, … (3) The imposition of conditions of engagement is subject to the government sector employment rules. … 1. clause 5 of the Government Sector Employment (General) Rules 2014 (NSW) ("GSE Rules") which provides: 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. 1. Section 98(3)(b) of the IR Act which is set out above at [4]: 1. his submissions as to the operation of cl 5 of the GSE Rules including that even if the employee has served the period of probation, they remain a probationary employee unless, and until, they are adjudged to "satisfy the requirements for the role" and their appointment is then confirmed; 2. his contention that it is permissible for the Commission to have regard to the legislative history dealing with probation periods from the Public Service Act 1895 (NSW); Public Service Act 1902 (NSW); Public Service Act 1979 (NSW); the Public Sector Management Act 1988 (NSW) ("PSM Act"); the Public Sector Employment and Management Act 2002 (NSW) ("PSEM Act"); to the current GSE Act and the GSE Rules; 3. his submission that in the context of provisions in legislation governing employment as a public servant, confirmation of the appointment of a probationary employee is necessary before such an employee becomes a permanent employee. Such confirmation is a matter separate to and distinct from the mere expiration of the nominal period of probation which he submits is supported by: 1. the Court of Appeal in Wurth and his submission that although the central issue in Wurth, was somewhat removed from the issue in the present proceedings, it is significant that the nominal length of the probation period of the employee had already expired at the time the Public Service Board decided to recommend the annulment of his employment. Such expiration did not have the consequence that the permanent appointment of the employee was confirmed. Rather, a positive action by the Governor on recommendation by the Public Service Board was required; 2. the Commission in Parfrey v Commissioner of Police [2010] NSWIRComm 19 ("Parfrey") in which Grayson VP, relying on Wurth, and referring to public sector legislation including s 23(3) of the PSEM Act and s 48(2) of the Teaching Service Act 1980 (NSW) stated at [43] and [44]: "43 … Where a police officer's appointment is not confirmed, in the context of public sector employment, the appointment is annulled… 44 … The means of ending a probationary appointment by confirmation or annulment/discharge continues to apply in the public sector …" 1. the High Court decision of Eaton, including references to the following three passages from the plurality's decision: "38 … He was still a probationary constable, his appointment not having been confirmed. when, on 22 July 2009, a delegate of the appellant, the Commissioner of Police, dismissed him from the New South Wales Police Force. … … 52 Non-executive police officers include probationary constables. As the term suggests, such constables are on probation until they are confirmed as officers of the NSW Police Force. In O'Rourke v Miller, Gibbs CJ said that "probation is a time of testing or trial and a probationer whose conduct, character or qualifications fail to meet the test need not be confirmed in the office to which he was provisionally appointed". … 73 The starting point is the terms of s 80(3) in the context of the status of a probationary constable and the responsibilities vested in the Commissioner. A probationary constable is seeking to achieve confirmation. During this period, the probationary constable's conduct is monitored and subject to report, so that the Commissioner may determine whether the person is suitable for the role of a police officer within the NSW Police Force." (Footnotes omitted) 1. his submission that Beck v Darling Downs Institute of Advanced Education (1990) 140 IR 364 ("Beck") may be against him but he submits that the factual differences between the appellant's circumstances remove the availability of an inference of confirmation of appointment as was drawn in the factual scenario in Beck. These factual differences include that: the appellant had been informed by the respondent on 14 June 2018 that the respondent had received an allegation of misconduct against the appellant and that termination of the appellant's employment was a possible outcome; the unresolved misconduct procedure meant that the appellant's progression from probation could not be confirmed had previously been brought to his attention in the meetings he had with Governor Heycock; the payslips of the appellant after 22 July 2018 until the termination of the appellant's employment recorded his classification as "Correctional Officer Prob"; and in Beck there was no suggestion that the employee had other than successfully completed his probation period; 2. his submission that the multi-stage process, incorporating: the effluxion of the period of time of the nominal period of probation; and the determination that the appellant had demonstrated satisfactory conduct and performance during that period; and then confirmation of his appointment: 1. is expressly identified in the letter of 11 December 2017 ("Letter of Offer") which states: "A probation period of 6 months applies, as you have a current Certificate III in Correctional Practice. At the end of your probation period, confirmation of your ongoing employment will depend on satisfactory conduct and performance report. In the event that you fail to satisfy all requirements of the role, action may be taken to terminate your employment." 1. the document signed by the appellant accepting the Letter of Offer which states: "I understand: 1. The offer of ongoing employment as a Correctional Officer with Corrective Services NSW is in accordance with the Government Sector Employment Act 2013. 2. At the end of your probation period confirmation of your ongoing employment will depend on a satisfactory conduct and performance report. 3. By signing this you agree to work under the arrangements and principles of the Crown Employees (Correctional Officers, Department of Attorney General and Justice NSW) Award. … 5. I acknowledge that I must adhere with the Code of Conduct and all other relevant policies and procedures." 1. his submission that the terms of the Crown Employees (Correctional Officers, Department of Attorney General & Justice - Corrective Services NSW) Award (the "Award") operate consistently with the legislative scheme requiring that the removal of the probationary status of an employee requires the confirmation of their appointment in particular: 1. setting out sub-cll 8 (i) and 8(ii) of the Award: "(i) Officers, whose conduct and services are satisfactory, shall progress to the rank of Correctional Officer, subject to completion of twelve (12) months service as a Probationary Correctional Officer and having satisfactorily completed the appropriate training course/s as determined by CSNSW. (ii) Officers, who, having completed 12 months service on the Probationary rate, and who are refused progression to the rank of Correctional Officer, may request that the decision be reviewed by the Division Head or delegate." 1. submitting that sub-cl 8(ii) expressly contemplates a situation in which the probation period has expired yet the officer remains unconfirmed. In that situation, the officer may request that the decision to refuse progression (resulting in them remaining as a Probationary Correctional Officer) be reviewed by the Secretary of the Department of Justice (the "Division Head" as defined in cl 3 of the Award) or the Secretary's delegate. Such a review procedure would be otiose if the probationary status of the employee had already ceased by effluxion of the nominal term of the probation period. That is, the procedure for a review of the decision not to progress the employee from Probationary Correctional Officer to Correctional Officer can only operate if the employee remains on probation.
The respondent says that on the basis of the above, the proceedings should be dismissed.

Appellant's submissions

The appellant contends that the Commission has jurisdiction to determine the appeal because at the time of the decision to terminate the appellant's employment, the appellant had completed the period of six months' probation set down by the respondent in the Letter of Offer.
The appellant's principal submission is that the respondent did not extend the appellant's period of probation before that six-month period had expired, nor did it terminate his employment. These were the only two matters available to the respondent during the period of probation. It did neither by the time the period of probation had expired.
The appellant submits: 1. the respondent's submission that despite the expiration of the appellant's period of probation of six months, the appellant remained a probationary employee at the date of the termination of his employment, is contrary to the GSE Act and the GSE Rules; 2. there is no provision in the GSE Act and/or the GSE Rules that entitled the respondent to deem the probation period ongoing even though the period of six months had expired; 3. there is no provision in the GSE Act and/or the GSE Rules that entitled the respondent to prolong the appellant's probation period without giving the appellant formal notification in accordance with Rule 5(3) of the GSE Rules that his probation period was being extended; 4. the respondent was entitled at any time during, or at the end of, the probation period to terminate the appellant's employment under s 47 of the GSE Act. The respondent chose not to do so; 5. the offer of ongoing employment was made to the appellant at a time when the respondent was proceeding with a misconduct process against the appellant in relation to an earlier alleged misconduct, while he was employed as a casual Correctional Officer. It was open to the employer when it offered ongoing employment to the appellant to have imposed a probation period of more than 6 months and less than 12 months, but the employer chose not to do so.
In response to the respondent's written submissions, the appellant submitted, amongst other things: 1. the requirements of cl 5(1)(b) of the GSE Rules must be satisfied before the period of probation expires. If an employer does not extend the period of probation, before it expires, there is no scope for the probation to continue beyond the initial period. In the absence of an extension to the probation period or the termination of the person's employment under s 47 of the GSE Act, upon the probation period expiring, an employee should be deemed to have satisfied the provisions of cl 5(1); 2. the rationale and the legislative history of the probationary provisions do not assist the respondent in the present case for various reasons including: 1. whether the commencement of the probation period was on 12 December 2017 or 22 January 2018, as at the end of the six months' probation period, whichever date you take, no advice was provided by the respondent to the appellant that his probation period was to be extended. In the absence of an extension to the appellant's probation period, the probation period ended either on 11 June 2018 or 21 July 2018; 2. it was open to the respondent at any time during, or at the end of the probation period, to terminate the appellant's employment on the ground that he did not satisfy the requirements for the role in which he was to be employed; 3. there is no provision in the GSE Act or GSE Rules that sets out how confirmation of the person's employment is to be effected; 4. to interpret cl 5(1) of the GSE Rules in any other way would render the provision inoperative or ineffectual to a substantial degree, whereas the interpretation contended by the appellant would make the provision valid and workable which is consistent with the maxim Ut Res Magis Valeat Quam Perea!, it is better for a thing to have effect than to be made void; 5. the "two-step" condition referred to by the respondent must be concluded within the period of the probation. To do otherwise without an extension to the probation period, would be in breach of cll 5(2) and (3) of the GSE Rules. Any condition to satisfy the requirements for the role in which the person is employed during that period of probation must be examined and determined before the period of probation expires, unless the probation period is extended. The use of the conjunction "and" in cl 5(1) of the GSE Rules does not make satisfaction of the first part of the condition subject to satisfaction of the second. There is a temporal connection between parts (a) and (b) of cl 5(1). Unless there is an extension to the probation period, part (b) must be satisfied within the probation period, otherwise cl 5(3) would have no role to play in the overall scheme of Rule 5. In the absence of the probation period being extended, the person's employment is deemed to be confirmed upon the expiration of the probation period, particularly if the employee is provided with ongoing employment duties and pay, as in this case. 6. the respondent cannot ignore the statutory prohibition to a period of probation extending beyond the initial period without a decision being made by the employer and conveyed to the appellant that the probation period was being extended for such further period as the agency head had directed. That did not occur in this case; 7. headings in statutes are intended to indicate generally the nature of the subject matter contained within that part or division of the statute. The heading of GSE Rule 5 fulfils that role; 8. the sections set out from the 1895, 1902 and 1979 Public Service Acts and the PSM Act are of no assistance because each of these sections contemplate a decision on whether to confirm the employee being made after the period of probation has expired, i.e. sometime after, as there is no time limit specified. There is a distinction between the words "at the end of" and "after'' in the context in which they are used. The former prescribes the time for the confirmation or annulment to occur, i.e. on the day the probation ends, whereas the latter provides some latitude as it can be (sometime) after the period of probation has ended. The words of the relevant sections from the 1895, 1902, 1979 and 1988 Acts are clear and precise as to when the decision to confirm is to be made. No such similar words appear in Rule 5. The sections from the 1895, 1902, 1979 and 1988 Acts do not contain a two part condition similar to the one set out in cl 5(1). Furthermore, these sections do not contain a right to extend the probation. 1. The decisions referred to by the respondent are irrelevant as they do not deal with provisions that bear any similarity to those set out in Rule 5 of the GSE Rules. 2. The decision in Beck is important even though it did not deal with probation periods in the public sector. The factual matrix may be different; however, it is the interpretation of the employer's inactivity in Beck that is important and how that inactivity was interpreted by Dowsett J. 3. The respondent has misunderstood the distinction between an employee being engaged on an ongoing basis as a Probationary Correctional Officer under the terms of Rule 5 of the GSE Rules and the rank of a "Probationary Correctional Officer" as referred to in the Award.

Commencement of the period of probation

There is a dispute between the parties as to the date that the appellant's probation period commenced.
The respondent asserts that the appellant's probation period commenced on 22 January 2018, the date that the appellant commenced duties at Hunter Correctional Centre as a Probationary Correctional Officer, and therefore the "probation period of 6 months" referred to in the Letter of Offer dated 11 December 2017 ended nominally on 21 July 2018.
Further, the respondent contends that regardless of the effluxion of the nominated probation period of six months whatever the commencement date of that period, the department head did not confirm the appellant's employment; therefore the appellant remained subject to a probation period until the date of the Decision. If the respondent is correct, and formal confirmation of permanent employment is required to end the probation period, but such confirmation was not given before the Decision was made, then the date of commencement of the probation period is likely to be irrelevant.
The appellant asserts that the probation period commenced on 12 December 2017, the date he accepted the offer of ongoing employment contained in the Letter of Offer, and ended on 11 June 2018, unless his employment was terminated, or the probation period was extended, on or before that date, neither of which occurred in this instance.
The appellant says that whether the probation period commenced on 12 December 2017 or 22 January 2018 is irrelevant. The appellant says this is because prior to 22 July 2018, the person exercising the employment functions in respect of the appellant did not advise the appellant that his probation period was being extended; therefore, even if the respondent is correct and the probation period commenced on 22 January 2018, the probation period ended, without being extended prior to 22 July 2018, and the appellant was not serving a probation period at the time of the Decision.
If the respondent is correct as to his contentions in [19] or the appellant is correct in respect of his contentions in [21] then whether the commencement date of the probation period was 12 December 2017 or 22 January 2018 is likely to be irrelevant.
As the parties did not go into extensive arguments to support their relative positions, I will assume initially, for the purpose of considering the parties' primary submissions, that the probation period commenced on the date that the appellant commenced his first shift as a Probationary Correctional Officer, 22 January 2018.
If, in using the assumed date of commencement of the probation period of 22 January 2018, I determine that the appellant was serving a period of probation at the date of the Decision, I will then consider whether the asserted earlier commencement date has any effect on the answer to whether the appellant was serving a period of probation on the date of the Decision.

Consideration of the parties' primary submissions - inference of confirmation or formal process required?

The respondent contends that cl 5(1) of the GSE Rules requires a two-step process, being the effluxion of the period of time of the probation period, in this instance six months, and satisfaction of the requirements for the role. The respondent says that completion of the second step in cl 5(1) of the GSE Rules cannot be inferred from the completion of the first step, but rather, completion of the probation period requires the relevant decision maker to make a decision as to whether they are satisfied that the probationary employee has demonstrated that they satisfy the requirements for the role. Following this the employer may confirm or terminate the employment in accordance with cl 5(5) of the GSE Rules. Pursuant to the two-step process in cl 5(1) and the provisions of cl 5(5) of the GSE Rules, the probation period only ends on confirmation or termination.
The appellant accepts that a probation period can only end by confirmation or termination of employment but says that confirmation can occur by inference by virtue of continued employment after the period of probation has been served, and payment of remuneration beyond the probation period is sufficient confirmation that the employee has satisfied the second step in the two-step process that is, the requirements for the role.
The parties agree that the degree of formality required by the relevant legislation for confirmation of a permanent appointment has decreased over time but do not agree as to the consequence of this reduction and what is now required by the GSE Rules.
The respondent says that the power to confirm used to rest with the Governor but now rests with the appropriate agency head. The respondent submits that despite the reduction in formality, confirmation pursuant to cl 5(5)(a) of the GSE Rules remains an essential step of permanent employment.
The appellant says it is clear that confirmation by the Governor, as required in the 1895, 1902, 1979 and 1988 Acts, required some formal written notification given to the relevant employee by the Governor whereas the cl 5 of the GSE Rules does not require a formal written process.
Clause 5 of the GSE Rules is set out at [11(3)(c)]. Relevantly, cl 5(5)(a) provides no detail as to how the employer must or can "confirm the person's employment".
The appellant says that cl 5(5) of the GSE Rules now places the obligation to confirm or terminate the employee's employment on the "employer", whomever that person may be, either "during or at the end of the probation period".
The appellant submits that the use of the words "at the end of" in the current GSE Rules is significantly different from the word "after" in the Acts up to the PSEM Act. In the earlier Acts the use of the word "after" did not narrow the time period in which the action needed to be effected to the six months' probation period, but it left it open to some period after the six months had lapsed for an employee to be confirmed, so they could have been on probation and their employment annulled well after the period ended.
The appellant submits that changing the wording was not an accident and that changing the language from "after" to "at the end of", makes it a finite period.
The respondent says the slightly different language in the current cl 5(5) when compared with the Public Service Acts and s 23 of the PSEM Act is a difference without a distinction, and that cl 5(5) operates, in effect, the very same way as the earlier statutes. The respondent says that the decision maker is entitled to make the confirmation decision during the period of probation, where the period of probation would expire on the stroke of midnight on the day of the expiration of the nominal period, and "at the end of the probation period". In this instance the respondent submits that "at the end of" has the same meaning as "after" and, if it does not have this meaning then the only work it has is to permit the decision maker to make their decision on the stroke of midnight.
The Macquarie Dictionary Online defines "end" relevantly as "a place or section adjacent to an extremity or limit"; "the concluding part". "At the end of the probation period" does not mean "after the probation period" but is the concluding point in time of the probation period.
I do not agree that "at the end of" has the same meaning as "after" in the earlier legislation, nor do I agree that if it does not have this meaning then the only work "at the end of" has is to permit the decision maker to make their decision on the stroke of midnight.
The appellant points out that if the Commission accepts the respondent's submissions, then the employer would have the power to extend a person's probation period simply because the employer was still completing the second step, without communicating to the employee that the period of probation was being extended. The appellant contends that such an interpretation of cl 5(1) is contrary to cl 5(3) which allows for the extension of the probation period, before the period expires, for such a further period as the agency head directs.
In support of his contention that satisfaction of the requirements for the role can be inferred from the completion of the first step, the appellant refers to the consideration of s 48 of the Teaching Service Act 1980 (NSW) by Commissioner Newall in Mao v Secretary, NSW Department of Education [2016] NSWIRComm 1046 ("Mao") in which the Commissioner stated: "27 Mr Mao's argument was that, absent any instrument confirming him as a permanent teacher, he necessarily remained on probation. On any reading of it, that is not what the Teaching Services Act provides. And while it is not necessary to consider outcomes to determine the question, given the plain words of the statute, the vice of reading the provision to require a definite instrument confirming the conclusion of probation is obvious,. By simple administrative oversight a teacher might be condemned to remain a probationer for an indefinite period of time. And further, as that would be a probationary period sanctioned by statute, a teacher in that circumstance would be deprived of the ability to bring an application under s.84 of the Act. 28 I observe that were Mr Mao on probation effected by the statutory means for which he argued, his s.84 application would be without jurisdiction. 29 However, the true position is that at the time Mr Mao was placed on the TIP (and at the time he was dismissed) he was no longer a probationary teacher."
Section 48 of the Teaching Service Act provides: 48 Appointments on probation (1) Unless the Secretary, in a particular case or class of cases, otherwise determines, a person who is not an officer of the Teaching Service when the person is appointed by the Secretary to a position in that service shall be appointed on probation, which shall be for a period of 12 months or such longer period as the Secretary may in any particular case or class of cases determine. (2) The Secretary may: (a) after the expiration of the period of probation for which a person is so appointed, confirm or annul the appointment, or (b) during the period of probation for which a person is so appointed, extend the period of probation or annul the appointment. (3) If a person's appointment is so annulled, the person ceases to be an officer, unless appointed to another position as an officer. (4) (Repealed) (5) A person who, by reason of the annulment of an appointment, ceases to be a member of the Teaching Service under this section is not entitled to appeal to the Industrial Relations Commission against the annulment. (6) Action is not required to be taken under Part 4A in order to annul an appointment under subsection (2). (7) (Repealed)
There are differences between s 48 of the Teaching Service Act and cl 5 of the GSE Rules.
The Teaching Service Act allows for the person exercising the employer powers to: "annul the appointment" or "extend the probation" "during the period of probation"; and to "confirm or annul the appointment" "after the expiration of the period of probation".
The GSE Rules allow for the "period of probation" to "be extended" "before the period expires" "for such period as the agency head directs" and for the "employer" to "confirm" or "terminate" "the person's employment" "at any time during or at the end of the probation period".
Section 48 of the Teaching Service Act does not contain a provision as is included in cl 5 of the GSE Rules, separating the requirement for serving a period of probation from the requirement to satisfy the requirements for the role, in what the respondent refers to as the "two-step process".
The comments of Commissioner Newall in Mao, in particular his comment that "by simple administrative oversight a teacher might be condemned to remain a probationer for an indefinite period of time" highlight a significant disadvantage for probationary employees if the respondent's interpretation is correct. However, Commissioner Newall was not considering the same legislative scheme that applies to the appellant and given that there are differences in the legislative schemes, it is necessary to look more closely at cl 5 of the GSE Rules to determine whether "the vice of reading the provision to require a definite instrument confirming the conclusion of probation is [as] obvious" in respect of the GSE Rules as the Teaching Service Act.
The respondent submits that his interpretation of cl 5 of the GSE Rules is consistent with the legislative history which has applied to public servants since 1895 set out in his written submissions and referred to above at [11(5)], and is also supported by the authorities relied on in his submissions and referred to above, particularly at [11(2)] and [11(6)].
The legislative history relied on by the respondent commences with the Public Service Act 1895, which provided at s 27: After the period of such probation shall have expired, the Governor may on the recommendation of the Board, based on inquiry and report, confirm or annul such appointment.
The respondent relies on the Court of Appeal's decision in Wurth, to establish that confirmation cannot be inferred by continued employment beyond the nominal probation period term. The statute that applied to the employment of public servants at the time of the decision in Wurth was the Public Service Act 1902 which relevantly provided: 32 Unless the Board otherwise recommend every person admitted to the Public Service shall, in the first instance, be admitted on probation only, and may be continued in such probationary position for a period of not less than six months, or such longer period as the Board directs. After the period of such probation has expired, the Governor may, on the recommendation of the Board, based on Inquiry and report, confirm such appointment or during or after such period may annul such appointment. … 34. (1.) Subject to the provisions of section thirty-six hereof, no appointment of any person not already in the Service to any permanent office or position therein shall be made except - (a) at the instance of the Board ; or (b) upon the written request of the permanent head of a department to the Minister, to be transmitted by the Minister to the Board; or (c) upon the written request of the Minister himself, addressed to the Board. (2) No such appointment shall in any case be made except upon a certificate from the Board that such an appointment is required. 35. (1) The Board, in giving the certificate in the last section mentioned, shall in addition state therein - (a) the name of the person proposed to be appointed ; (b) that there is no person in the Public Service fit or qualified and available for such appointment; and (c) that a competitive examination under the provisions of this Act has been held, and that the person named in the certificate is the most successful candidate; or (d) having regard to the nature of the appointment that examination is not required, or may be dispensed with under the provisions of this Act. (2) The Governor may thereupon appoint the person named in such certificate, subject to the provisions of section thirty-two.
As the respondent submits, it is significant that in Wurth, the nominal length of the probation period of Mr Tully had expired at the time the Public Service Board decided to recommend the annulment of his employment. In Wurth, the expiration of the nominal term of the probation period did not have the consequence that the permanent appointment of the employee was confirmed. Rather, a positive action by the Governor on recommendation by the Public Service Board was required in accordance with the legislation. At page 49 of the decision in Wurth, Street CJ (with whom Roper CJ in Eq concurred) made the following comments: "During his probation, therefore, the officer had no security of tenure in the service beyond the period directed by the Board, and it would seem that if no action were taken at the expiration of that period, then his probationary appointment would lapse. Certainly, failure to take action in those circumstances by the Board could not amount to a confirmation of a permanent appointment to a position in the Public Service, which could only happen if the Governor confirmed such appointment on the recommendation of the Board."
The appellant says that the decision in Wurth should be viewed by reference to the provisions of the 1902 Act, which required confirmation by the Governor. A formal written process would have been contemplated in such a notification and it is in that context that the comments of Street CJ set out above should be considered.
The submission of the appellant regarding the statutory context which applied at the time of Wurth is apposite; the written process of confirmation which applied to Mr Tully's employment is no longer required under the current statutory scheme which provides the Public Service Commissioner the power to make rules consistent with the GSE Act (ss 12 and 48 of the GSE Act) and pursuant to these sections and s 54, and particularly sub-s 54(2)(a), of the GSE Act, the Public Service Commissioner has made cl 5 of the GSE Rules.
Nevertheless, the respondent submits that the reasoning in Wurth continues to apply to the current statutory scheme because of the two-step process required by cl 5(1) of the GSE Rules.
Further, the respondent says Wurth was relied upon by Grayson VP in 2010 in Parfrey in relation to an order by the Commissioner of Police dated 30 September 2008 removing Ms Parfrey from the NSW Police Force, at which time the PSEM Act, and not the Public Service Act 1902, applied to the employment of a public servant.
In Parfrey, his Honour stated at [43] that if "a police officer's appointment is not confirmed, in the context of public sector employment, the appointment is annulled". I understand the respondent's submission in respect of this comment by his Honour to be that his Honour considered that the requirement for formal confirmation of public sector employment to continue despite the change in the language between the 1902 Act and the PSEM Act. In particular, s 23 of the PSEM Act, like cl 5 of the GSE Rules, did not contain a requirement for a formal written process of the type set out in the 1902 Act, and further the PSEM Act did not contain a clause to the effect of what the respondent describes as the two-step process pursuant to cl 5(1) of the GSE Rules.
As at 30 September 2008, s 23 of the PSEM Act was in the following terms: 23 Appointments on probation (1) Subject to this Act, 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. (2) A person may be appointed to a position in the Public Service without being required to serve such a period of probation if the person has previously been an officer or the Department Head thinks it appropriate in the particular case. (3) The period for which a person is appointed on probation may not exceed 2 years without the approval of the Director of Public Employment. (4) If a person is appointed to a position on probation, the appropriate Department Head may: (a) after the period of probation - confirm the appointment, or (b) during or after the period of probation - annul the appointment. (5) If a person's appointment is so annulled, the person ceases to be an officer, unless appointed to another position as an officer. (6) Part 2.7 does not prevent a Department Head from exercising at any time the power to annul an appointment under this section. (7) This section does not apply to a chief or senior executive position.
However, in Parfrey his Honour was not considering the circumstances of a public service employee whose employment would have been subject to the PSEM Act, but rather, a police officer whose employment was subject to the Police Act 1990 (NSW) which his Honour described at [31] as an "exhaustive scheme dealing with the discipline and removal of probationary police officers".
Looking at his Honour's comments in context I do not accept that his Honour's comments about a police officer's appointment or non-appointment as a permanent employee under a different legislative scheme, reflected a considered view by him of the requirements for confirmation of a public servant under the PSEM Act. His Honour referred at [43], immediately before the quote relied on by the respondent, to the various powers of the Commissioner of Police "…in dealing with a probationary police officer including shortening or extending the probationary period (clause 13(1)), confirming the appointment in the rank of constable (clause 14) or not confirming the appointment (clause 15(1))."
Despite references to the Police Regulation 2008 (NSW) in Parfrey it appears that the references in the extract from the decision above refer to the Police Regulation 2000 (NSW) which applied during the employment of Ms Parfrey but which was repealed on 31 August 2008, before the Commissioner of Police issued the relevant order.
Sections 13, 14 and 15 of the Police Regulation 2000 were in the following terms: 13 Appointment of constables on probation (1) In accordance with section 80 (2) of the Act, a person when first appointed as a police officer of the rank of constable is to be appointed on probation: (a) for a period of 1 year, or (b) for such longer or shorter period (being not less than 6 months) as the Commissioner may direct in the case of that person. (2) Despite subclause (1), the Commissioner may direct that the period of probation be less than 6 months, or may waive the period of probation completely, if the person has previously served as a police officer in the NSW Police Force or in any other police service or police force (however called). (3) All or any part of such previous service may, with the approval of the Commissioner, be counted towards seniority. 14 Confirmation of appointment as constable Confirmation of appointment in the rank of constable is subject to: (a) the successful completion of initial basic training, as determined by the Commissioner, and (b) the completion of the period of probation, and (c) a satisfactory fitness report, and (d) the other requirements of this Division. 15 Fitness report for probationary constables (1) The appointment of a probationary constable is not to be confirmed unless a police officer designated by the Commissioner has reported that the probationary constable is fit to discharge satisfactorily the duties of constable. (2) Any such fitness report is to deal with the probationary constable's: (a) medical fitness, as indicated by a health assessment referred to in clause 11, and (b) aptitude for the discharge of the duties of constable, and (c) competence, integrity, performance and conduct. (3) If on the day on which the Commissioner would otherwise confirm his or her appointment the probationary constable is medically unfit but satisfies all other requirements, the Commissioner may confirm the appointment on and from the day the probationary constable is certified medically fit by a medical practitioner. (4) The seniority of a constable whose appointment is confirmed in accordance with subclause (3) is to be determined: (a) if the constable's medical unfitness was due to any wound, injury or sickness occasioned in the actual execution of duty, as though the appointment had been confirmed: (i) on the day on which it would have been confirmed but for the constable's medical unfitness, or (ii) if that day occurred more than 12 months before the day on which the appointment was actually confirmed, on the day occurring 12 months before the day on which it was actually confirmed, or (b) if the constable's medical unfitness was not due to any wound, injury or sickness occasioned in the actual execution of duty, as though the appointment had been confirmed: (i) on the day on which it would have been confirmed but for the constable's medical unfitness, or (ii) if that day occurred more than 9 months before the day on which the appointment was actually confirmed, on the day occurring 9 months before the day on which it was actually confirmed.
Sections 13 and 14 of the Police Regulation 2008 (NSW) which applied at the time that the Commissioner of Police issued the order removing Ms Parfrey from the NSW Police Force were in the following terms: 13 Confirmation of appointment as constable Confirmation of appointment in the rank of constable is subject to: (a) the successful completion of initial basic training, as determined by the Commissioner, and (b) the completion of the period of probation, and (c) a satisfactory fitness report, and (d) the other requirements of this Division. 14 Fitness report for probationary constables (1) The appointment of a probationary constable is not to be confirmed unless a police officer designated by the Commissioner has reported that the probationary constable is fit to discharge satisfactorily the duties of constable. (2) Any such fitness report is to deal with the probationary constable's: (a) medical fitness, as indicated by a health assessment referred to in clause 10, and (b) aptitude for the discharge of the duties of constable, and (c) competence, integrity, performance and conduct. (3) If on the day on which the Commissioner would otherwise confirm his or her appointment the probationary constable is medically unfit but satisfies all other requirements, the Commissioner may confirm the appointment on and from the day the probationary constable is certified medically fit by a medical practitioner. (4) The seniority of a constable whose appointment is confirmed in accordance with subclause (3) is to be determined: (a) if the constable's medical unfitness was due to any wound, injury or sickness occasioned in the actual execution of duty, as though the appointment had been confirmed: (i) on the day on which it would have been confirmed but for the constable's medical unfitness, or (ii) if that day occurred more than 12 months before the day on which the appointment was actually confirmed, on the day occurring 12 months before the day on which it was actually confirmed, or (b) if the constable's medical unfitness was not due to any wound, injury or sickness occasioned in the actual execution of duty, as though the appointment had been confirmed: (i) on the day on which it would have been confirmed but for the constable's medical unfitness, or (ii) if that day occurred more than 9 months before the day on which the appointment was actually confirmed, on the day occurring 9 months before the day on which it was actually confirmed.
In Eaton, the High Court also considered the legislative scheme which applied under the Police Act 1990 and the Police Regulation 2008.
The process for confirmation of a police officer pursuant to the Police Act 1990 and both the Police Regulation 2008 and the Police Regulation 2000 required a fitness report; this is not a requirement under the GSE Act or GSE Rules.
Given the difference in language in the various legislative schemes, I do not consider that Wurth, Eaton or Parfrey bind the Commission to accept the appellant's submission that without formal confirmation of permanent appointment by the "head of a Public Service agency" or another person exercising the employer functions, an employee whose employment is governed by the GSE Act, such as the appellant, remains in a probation period despite the effluxion of the relevant period of probation.
The appellant says that even though the decision in Beck did not deal with probation periods in the public sector, the decision supports his contention that his continued employment and payment of remuneration after the end of the six months' period is evidence requiring the inference that he has met the requirements for the role, and that it can be inferred that confirmation by the employer in accordance with cl 5(5)(a) has occurred. The appellant says that the interpretation by Dowsett J of the employer's inactivity in Beck is key.
The probation period in the Conditions of Employment document and the award which applied to Dr Beck's employment was set out in the decision at p 367 and provided: "(1) Appointment shall be subject to a probationary period of 12 months and shall then be subject to confirmation. (2) Should a probationary appointment not be confirmed, the appointment may be terminated or the probationary period may be extended for a further period not exceeding twelve (12) months. (3) When a probationary appointment is terminated, at least four (4) months' notice shall be given of the termination of appointment except that, with the agreement of the staff member concerned, shorter period of notice may apply. (4) A staff member shall give at least four (4) months' notice of resignation provided, in special cases, the Council may accept a short period of notice. (5) At the discretion of the Council, payment may be made in lieu of any or all of the required period of termination of an appointment for reasons of that than retirement."
The respondent recognises that Beck, in particular the following paragraph at 370, may be against him: "Although the probation provision contemplates an election between confirmation, determination or extension of the probation period, I believe that the usual nature of a probation period strongly suggests that the failure to exercise any of these options at the appropriate time will lead to an inference of confirmation of that appointment, particularly in the case of a senior employee such as the plaintiff in the present case."
The respondent seeks to distinguish Beck on the basis that there are significant factual differences between the appellant's circumstances and those in Beck including that in Beck there was no suggestion that the employee had other than successfully completed his probation period whereas the appellant had been informed by the respondent in the letter of 4 June 2018 from Glen Scholes, Director Custodial Operations - North that the respondent had received an allegation of misconduct against the appellant and that termination of the appellant's employment was a possible outcome.
I note parenthetically that the letter of 4 June 2018 was served on the appellant on 14 June 2018 which was after the end of the six months' probation period if the appellant is correct that the probation period commenced on 12 December 2017, but before 21 July 2018 which is the end of the six months' probation period that has been assumed for the purposes of dealing with the parties' primary submissions.
The respondent says further evidence that the respondent did not confirm the appellant's employment includes: 1. that the unresolved misconduct procedure meant that the appellant's progression from probation could not be confirmed had been brought to the appellant's attention in the meetings he had with Governor Heycock; and 2. the payslips of the appellant after 22 July 2018 until the termination of the appellant's employment recorded his classification as "Correctional Officer Prob".
Counsel for the respondent made the following oral submission about the letter of 4 June 2018 quoting from Beck at 371: "… 'The true position seems to me to have been as a result of inaction on the part of the defendant, Dr Beck's employment had been confirmed.' Now that stands in stark … contrast as to what was occurring here. … [I]n this case [the employer] had told the appellant on 14 June, that is the letter of 4 June, received before the expiration of the six month period, that he was the subject of a disciplinary process. …[T]he letter he received (r)efers, at various points, to the allegation of misconduct, telling him that the procedure under s 69 of the GSE Act had been invoked and … identifies the possible actions that might flow. The very first one, termination of employment. … … In circumstances where, what one has to satisfy under clause 5 of the GSE, to satisfy the requirements for the role in which the person is employed, it cannot be suggested that in circumstances where an employee has received a letter telling them that the termination of their employment is being contemplated, that it could be concluded or infer that they had satisfied the requirements for the role, they're just, in my respectful submission, irreconcilable."
The letter of 4 June 2018: sets out an allegation of misconduct; informs the appellant that Mr Scholes intends to deal with the matter as an allegation of misconduct under s 69 of the GSE Act; invites the appellant to make a statement in accordance with cl 38(4) of the GSE Rules; informs the appellant of the possible actions that may be taken against him pursuant to s 69(4) of the GSE Act, if the misconduct is sustained; and informs the appellant of his obligations of confidentiality and the availability of counselling services.
The actions that may be taken against the appellant pursuant to s 69(4) of the GSE Act which were listed in the letter are: terminate the employment of the employee (without giving the employee an opportunity to resign); terminate the employment of the employee (after giving the employee an opportunity to resign), impose a fine on the employee (which may be deducted from the remuneration payable to the employee), reduce the remuneration payable to the employee, reduce the classification or grade of the employee, assign the employee to a different role, caution or reprimand the employee.
The letter of 4 June 2018 does not, on its face, extend the probation period; nor does it explicitly inform the appellant that his employment may not be confirmed at the end of his probation period. In fact, the letter makes no mention of the probation period. However, the respondent submits that in light of the statutory scheme applying to the appellant's employment, telling the appellant "that termination is being contemplated as a possible outcome, … tells one pretty fairly and squarely, that depending on the outcome of this process … [you] may not be confirmed". Taking this submission to the next step, if the letter had the effect of informing the employee his employment was not confirmed but did not have the effect that the employment was terminated then the letter, on the respondent's submission must have the effect of extending the probation period.
I do not agree that the letter of 4 June 2018 told the appellant "fairly and squarely" that he "may not be confirmed". Informing an employee in a letter that does not mention his probation period that: he is subject to a process designed to deal with allegations of misconduct against non-probationary employees which includes provisions in the GSE Rules which provide for procedural fairness; and one of the possible disciplinary outcomes of the investigation into his alleged misconduct is that his employment may be terminated as a disciplinary action pursuant to s 69 of the GSE Act, and not pursuant to cl 5(5) of the GSE Rules, allows for an inference that the employer had not taken into account that the appellant was serving a period of probation.
As the solicitor for the appellant put it: "Here was an opportunity for the respondent to advise the applicant, "We're going to extend your probation because of these allegations, there's going to be an investigation, and it's clearly going to take longer than six months." They did not avail themselves of that opportunity. … Clearly, clearly, there was a lapse on the part of the respondent in that they did not do what they had to do to extend the probation while they were investigating the allegations against the applicant. But they can't benefit as a result of their lapse because to do so would go against the whole legislative scheme set out in cl 5."
The language of cl 5(3) of the GSE Rules is clear that the extension must be "before the period expires" and "for such period as the agency head directs". There is no such period set out in the letter from Mr Scholes. I agree with the appellant. The letter of 4 June 2018 did not either explicitly or by implication extend the probation period.
The respondent also relies on the meetings between Governor Richard Heycock and the applicant on 9 August 2018 and 27 August 2018 in support of his submission that the appellant was on notice that his employment may not be confirmed, and that his probation had been extended. Governor Heycock's evidence is as follows: "8. On 9 August 2018 I met with the Appellant along with his POVB representative SCO Rodney Martin. At this meeting I informed the Appellant that his ongoing employment had not been confirmed because of ongoing PSB action in relation to the allegation. I said words to the following effect to the Appellant: 'Due to the ongoing PSB matter, confirmation of your appointment is to be delayed until the matters are finalised.' The Appellant nodded in response and said words to the effect: 'How long will it take and what is the process' I said to the Appellant words to the effect: 'PSS will undertake an investigation. The decision-maker will consider it and advise you of the outcome. It is pretty much out of my hands until that is done.' I also asked the Appellant for his Health Declaration Form. 9. On 27 August 2018 I met with the Appellant following a request from him for a meeting. SCO Rodney Martin also attended the meeting. At this meeting the Appellant said words to the effect: 'Now that I have submitted the Health Declaration Form, will I be signed off?' I said words to the effect: 'The Health Declaration Form was a requirement to be signed off for your confirmation but due to the outstanding PSB matters, nothing can be done until the PSB matter is finalised.' "
The appellant's evidence about the meeting on 9 August 2018 is as follows: "19. At this meeting, Governor Heycock handed me my Certificate III. I said to him in words to the following effect: 'Does this mean I can be signed off for my first stripe?' Governor Heycock said: 'I'm not signing you off until the matters have been dealt with.' "
As I have determined that the letter of 4 June 2018 did not have the effect of extending the probation period, both of these meetings took place after the probation period ended. If I accept Governor Heycock's evidence over the appellant's evidence about the content of the meeting, it was at this meeting that Governor Heycock says he "informed the appellant that his ongoing employment had not been confirmed". Informing the appellant in these terms, at this time, did not bring about an extension of the probation period before the period expired.
Pursuant to cl 5(5) confirmation or termination could take place at any time during or at the end of the probation period. As this meeting took place after the end of the probation period, if the probation period was not extended in accordance with cl 5(3) and the appointment had already been confirmed by the employer's inactivity and the appellant's continued employment, then the Governor could not simply inform "the appellant that his ongoing employment had not been confirmed" and effectively withdraw confirmation at the meeting.
The respondent's submissions about the Award appear to misunderstand the relevance of the appellant holding the rank of a "Probationary Correctional Officer" in the Award. The submissions confuse the Award classification and rate of pay with the question as to whether an employee is serving a period of probation which is relevant for the employee to be excluded by s 98(3)(b)(ii) of the IR Act from bringing a public sector disciplinary appeal. This misunderstanding is reflected in the respondent's submissions about the appellant's payslips.
I do not agree with the respondent's submission that clause 8(ii) of the Award expressly contemplates a situation where the probation period has expired yet the officer remains unconfirmed pursuant to cl 5(5). Under clause 8 of the Award, a Probationary Correctional Officer who completes a six months' period of probation under cl 5 of the GSE Rules remains classified under the Award as a Probationary Correctional Officer until he or she has completed a further six months' service as a Probationary Correctional Officer and completed the appropriate training course. If this Award classification was intended to operate as a requirement for a 12 months' probation period then this would be set out in the Letter of Offer; whereas the Letter of Offer clearly sets out a "probation period of 6 months".
Unless the probation period is extended in accordance with the GSE Rules or the employee's employment is terminated, confirmation of the employment of the Probationary Correctional Officer occurs at the end of the six months' period of probation (or earlier). Once confirmed in employment, the officer serves a further six months in the rank of a Probationary Correctional Officer, under the terms of the Award before progressing to the rank of Correctional Officer.
The respondent submits that the GSE Act does not say that only the GSE Rules can impose conditions on the employment of government sector employees. The respondent says that other conditions can be applied, conditions which may flesh out the notion of probation as permitted by the GSE Rules. The respondent says that is reflected in the Letter of Offer and relevantly the paragraph set out at [11(8)(a)] and the acceptance document signed by the appellant set out at [11(8)(b)].
The respondent sought to rely on an extract from a document titled "Appointment and Commencing Salary for Corrective Officers Business Rules" ("Business Rules") as conditions which flesh out the GSE Act and GSE Rules and which the respondent says the appellant accepted as relevant policies and procedures applying to him.
As his Honour Justice Brennan, as the former Chief Justice was at the time, said in Suttling, and referred to in the respondent's submissions and set out at [11(1)] above "no agent of the Crown has authority to engage a servant on terms at variance with the statute". The Business Rules or any policy or procedure therefore cannot and do not vary the effect of cl 5(3) of the GSE Rules.

Summary of decision

Under the GSE Rules, the head of a Public Service agency may determine that an employee must serve a period of probation: cl 5(1)(a) of six months or longer as the agency head directs: cl 5(2) and satisfy the requirements of the role: cl 5(1)(b). During the probation period, the agency head may direct that the probation period be extended: cl 5(3). If the period is not extended then at the end of the period the employer may terminate the employment of the employee: cl 5(5)(c) or confirm the employment: cl 5(5)(a).
I agree with the appellant that the rationale and legislative history of probation periods set out by the respondent do not assist the respondent in this case for the reasons set out in the appellant's written submissions which are referred to at [16(2)] above. I also agree with the appellant that the decisions referred to by the respondent deal with provisions of legislation that is relevantly different from cl 5 of the GSE Rules.
I agree with the appellant that the respondent cannot ignore the statutory prohibition to a period of probation extending beyond the initial period without a decision being made by the respondent and conveyed to the appellant that the probation period was being extended for such further period as the agency head directs.
I reject the respondent's contention that despite there being a statutory scheme allowing for the extension of probation periods, the employer can extend a probation period by notifying the appellant that the employee is being investigated for misconduct and that a consequence of the investigation could be termination of employment in a letter which does not mention the employee's probation period.
I agree with the appellant that the decrease in formality and the failure to specify how notification is given, means that notification need not be formal; i.e. the provision of ongoing employment and payment of remuneration at the end of the probation period suffices to confirm that the employee has satisfied the requirements of the role and the confirmation of the employment has been effected.
I agree with the appellant's contention that: as he served the six months' period of probation determined in accordance with cl 5(1) of the GSE Rules and set out in the Letter of Offer, and the period of probation was not extended during that period in accordance with cl 5(3), or terminated during that period in accordance with cl 5(5)(c), then the employer was required to confirm or terminate the appellant's employment at the end of the six months' probation period. As the employment was not terminated at the end of the probation period and the appellant remained employed and remunerated, then the necessary inference is that the appellant served the six months' probation and satisfied the requirements of the position thus completing the "two-step process" and consequently the employment was confirmed at the end of the probation period.
It is not necessary to decide the question as to whether the commencement of the probation period was 12 December 2017 or 22 January 2018, as on the basis of assuming the later commencement date contended by the respondent I have determined that the appellant was not serving a period of probation on the date of the Decision.
The Commission has jurisdiction to determine the appeal because at the time of the Decision the appellant was not serving a period of probation, therefore the appellant is not precluded by s 98(3)(b)(ii) of the IR Act from bringing an appeal against the Decision.

orders AND DIrections

The Commission makes the following order: 1. The application by the respondent to have the disciplinary appeal struck out is dismissed.
The Commission makes the following directions: 1. Within 14 days of the date of this decision the parties must confer about any variation either party seeks to the standard directions set out in Practice Note 23A. 2. Within 21 days of the date of this decision, the appellant must provide to the Industrial Relations Commission Registry: 1. either: 1. proposed consent directions for the programming of the substantive matter; or 2. notification of the directions which are agreed and the directions which are not agreed and the parties' respective positions regarding the directions that are not agreed; 1. either: 1. an agreed estimate of the number of days that will be required for hearing of the substantive matter; or 2. the parties' respective estimates of the number of days that will be required for hearing of the substantive matter; and 1. mutually convenient dates for the appellant and respondent in the period May 2020 - September 2020 for the hearing of the substantive matter.

Amendments 14 February 2020 - Inclusion of the solicitor advocate's name, M Jaloussis, on cover page. 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: 14 February 2020

Police Regulation 2000(NSW)

Police Regulation 2008(NSW)

Public Sector Employment and Management Act 2002(NSW)

Public Sector Management Act 1988(NSW)

Public Service Act 1895(NSW)

Public Service Act 1902(NSW)

Public Service Act 1979(NSW)

("PSM Act"); the Public Sector Employment and Management Act 2002(NSW)

At a glance

Court

Decision date

Source

Judgment (11 paragraphs)

Parties

Legislation Cited (13)

Cases Cited (5)