HR Information Sharing Session

1

• HR Information Sharing Session
• September 2007
• Probation

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Presenter

• Bradley Beasley LLB, LLM, Grad Cert Legal
  Practice
• Legal Practitioner of the
• Supreme Courts ACT, NSW and the High Court of
  Australia.
• Senior Employment Strategies Advisor Legal
• Telephone [phone]
• Facsimile [phone]
• Email Bradley.Beasley_at_anu.edu.au
• Address Human Resources Division Building
  10B,   Chancelry The Australian National
  University ACT 0200 Australia

3
Overview

• Probation
• The Law
• The VANUEA and Policy

4
Probation

• Generally, employees are excluded from running an
  unfair dismissal case if they are on probation
  or subject to a qualifying period.1
• The terms qualifying period and probation are
  effectively interchangeable.2
• However it is important that both periods should
  be the same to avoid confusion and affording the
  Commission jurisdiction when it is not intended.
• 1 The Workplace Relations Act 1996 states
• 638 Exclusions
• (1) The following kinds of employee are excluded
  from the operation of Subdivisions B, D and E and
  sections 660 and 661
• (c) an employee serving a period of probation,
  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
• (ii) the period, or the maximum duration
• (A) is more than 3 months and
• (B) is reasonable, having regard to the nature
  and circumstances of the employment
• 643 Application to Commission to deal with
  termination under this Subdivision
• (6) An application under subsection (1) must not
  be made on the ground referred to in
  paragraph (1)(a), or on grounds that include that
  ground, unless the employee concerned had
  completed the qualifying period of employment
  with the employer at the earlier of the following
  times
• (a) the time when the employer gave the employee
  the notice of termination
• (b) the time when the employer terminated the
  employees employment.
• (7) For the purposes of subsection (6), the
  qualifying period of employment is
• (a) 6 months or

5
The Law

• The Courts have held that the annulment by the
  employer of the employees appointment on
  probation was not a "dismissal" within the terms
  of the Act.1
• Termination of services brought about by the
  employer without the consent of the employee,
  distinguish between dismissal and dispensing
  with services and annulment of employment.2
• "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"3
• However, the full bench of the Commission4 has
  found that an annulment by an employer was a
  dismissal providing the commission the right to
  hear and determine such a matter.5
• 1 Ex parte Worth Re Tully 1954 55 S.R.
  (N.S.W.) 47 (Street C.J., Roper C.J. in Eq., and
  Brereton J.) referred to in Smith, A T -V-
  Director-General Of School Education 1993
  NSWirc 57 (27 August 1993)
• 2 Smith, A T -V- Director-General Of School
  Education 1993 NSWirc 57 (27 August 1993)
• 3 Smith, A T -v- Director-General Of School
  Education 1993 NSWirc 57 (27 August 1993)
• 4 Smith v Director-General of School 1993 51
  IR 204
• 5 Smith v Director-General of School 1993 51
  IR 204 at p 220 per Fisher CJ, Bauer and
  Hungerford JJ

6
The Law

• WHEN DO YOU NEED TO ENTER INTO PROBATION?
• "In advance" prior to the actual employment
  commencing.1
• WHAT DOES ADVANCE MEAN?
• Agreeing to and signing in confirmation of a
  probationary period on the first day of
  employment would not be sufficient. The
  probationary period must have been confirmed and
  accepted prior to the first day of
  employment.2
• WHAT IS THE COMMISSIONS ATTITUDE TO ENTERING
  INTO LATE PROBATION?
• It is not sufficient to establish that a
  probationary period was agreed after the
  commencement of employment.3
• 1 Robyn Key v Stuart Upton Pymble 1999
  NSWIRComm 150 (19 April 1999)
• 2 Robyn Key v Stuart Upton Pymble 1999
  NSWIRComm 150 (19 April 1999)
• 3 Robyn Key v Stuart Upton Pymble 1999
  NSWIRComm 150 (19 April 1999)

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The Law

• DOES THE PROBATION PERIOD HAVE TO BE IN WRITING?
• Preferably in writing.1
• WHAT IS THE PERIOD OF PRABATION?
• The period of probation itself will depend on the
  circumstances of each case. Reference is made to
  the following
• I do not propose to determine the upper limit of
  a probationary period that would be appropriate,
  but I believe that certainly a twelve months
  period of employment is not reasonable for the
  purposes of Regs2
• 1 Robyn Key v Stuart Upton Pymble 1999
  NSWIRComm 150 (19 April 1999)
• 2 In the Matter of a claim for relief relating
  to the dismissal of Richard Esmond Price by Box
  Valley Pty. Limited. 1998 NSWIRComm 648 (4
  December 1998) Connor C and see Smith v Director
  General of School Education (1993) 52 IR 204

8
The Law

• Commissioner Grainger indicated what was
  useful1 for determining a reasonable period
• The issue was a matter to be determined by the
  person hearing the case as an exercise of
  judgment that should be based on the proved
  objective facts, not on someone else's opinion
• The most important consideration was the nature
  of the job and
• The size, location and mode of operation of the
  employer would be relevant, along with the
  employee's personal characteristics and
  circumstances.
• 1 Andrew Conway v Norman G. Clark (Australasia)
  Pty Ltd (U2001/8392) 1 May 2002 PR917226
• 2 Ian Samuel Mcgregor Nicolson  v Heaven
  Earth Gallery Pty Ltd (940068)

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VANUEA Policy

• The VANUEA prescribes the terms of probation at
  clause 15.
• University Policy and Procedures outline the
  process for dealing with both academic and
  general staff on probation.
• There are forms available from HR for the dealing
  with staff on probation who are not performing.

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VANUEA Policy

• It is important to follow the process set out in
  the Universitys policy and procedures.
• Generally probation is dealt with between the
  supervisor and the staff member.
• With staff who are not performing the process
  escalates to the Delegate for general staff and
  in some cases a committee for academic staff.
• The supervisor prepares a report to either
  extend or annul the probation for the
  Delegates consideration, the staff member is to
  be given a copy of the report to comment on. The
  staff member then forwards their comments to the
  Delegate.
• The Delegates findings are then referred to the
  Director Human Resources for consideration and
  implementation. This may include the annulment of
  the staff members probation.
• The staff member must be advised at least 10 days
  prior to the end of their probation period of
  confirmation or annulment of the employment, or
  extension of the probation period.
• The decision of the Director Human Resources may
  be reviewed in accordance with clause 20 of the
  VANUEA

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Questions ?
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