Second probationary period not applicable to redeployed employee

Cases

Second probationary period not applicable to redeployed employee

The AIRC has found that a probation period was not applicable as the employee had worked in a previous position with the same employer and the employer had failed to specify any new probationary period when the employee commenced working in a different job.

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The AIRC has found that a probation period was not applicable as the employee had worked in a previous position with the same employer and the employer had failed to specify any new probationary period when the employee commenced working in a different job.

Background

The employee held two different positions with the same employer. Her first position commenced on 29 April 2002.

In relation to the first position, the day before her probation period expired the employee was informed that her position was redundant. She was distressed to lose her position, but accepted that the restructuring was for genuine operational requirements.

She asked for and was offered on-going employment in an alternative position and she pressed the employer for maintenance of her remuneration package. The then Manager of Human Resources inquired of the Customer Services Manager whether a role in that area might be available. The Customer Services Manager responded that she would be happy to interview the employee and make a position offer. Subsequently the employee was offered and accepted a position as Customer Services Officer and was requested to sign a new contract of employment which after a discussion she signed.

On 6 September 2002 the employee attended a meeting with the Customer Services Manager and the Human Resources Supervisor to discuss her performance in the customer services role. As a result of that meeting a termination of her employment occurred.

Decision

The commissioner found for the employee and stated:

'The ... primary objection of the respondent [employer] relates to probation and the operation of Regulation 30B(1)(c).

'That regulation excludes: "an employee serving a period of probation...". 

'There is no contest that the Call Centre Manager position genuinely became redundant. However, on all of the evidence before me I am satisfied that while the contract of employment ceased as a result, the employment relationship did not (see the decision of a Full Court of the Industrial Relations Court of Australia in Brackenridge v Toyota Motor Corporation Ltd in NI 1507/96, 13 December 1996).

'On the evidence the respondent set in train actions to redeploy her to a new position as far as possible within its power without a significant loss in remuneration: "I tried really hard to get her the salary so that she would maintain her salary to give her every reason to want to stay and succeed in the position." ... Her employment was not terminated and then the applicant [employee] subsequently rehired... .

'In the sworn statement of the Customer Services Manager she testifies that the applicant asked, "Will I have a new probationary period?" to which [the manager] answered, "It is a new contract. It will be as per terms of the contract. It will be a new contract." ...

'The applicant in her sworn statement ... gave evidence: "At the time of signing my new employment agreement, I was under the impression that my three month probation period was finished."

'The new contract of employment was signed by the applicant and while it was said to be standard procedure to explain in advance the probationary requirements of the customer service position and in the mind of the Customer Services Manager that a probationary period would apply, the applicant when asked if she clearly understood the probation period commenced again from the commencement of the new role she gave sworn evidence: "Definitely not. I really left the probation period out of it."...

'When asked if she noted that the contract she signed stated that new employees are subject to three months probation she gave evidence that: "I looked at that and I thought 'I don't fit within this category as I am not a new employee', because it does also state the date that I started employment with National Telecoms Group."

'I find on the evidence that when one contract of employment terminated and was replaced by the second, the employment relationship was continuous. The first probationary period was determined in advance and agreed to, but I am not satisfied that the applicant understood or consented to a second period of probation or that it was determined in advance in relation to the customer services officer position.

'Whilst she concedes that it was a new and complex role which required her to acquire training and technical knowledge, she asserts that she could not be categorised as a new employee having completed the new employee probationary period.

'I am satisfied that the applicant is correct. She could not be categorised as a new employee and she had successfully served her requisite period of probation. The probationary period that was determined and agreed in advance related to the commencement of the employment relationship.

'Regulation 30B(1)(c) is referable in this way and not to employment contracts variously entered into during the employment relationship (Deligiannis v Village Roadshow Limited, Watson SDP, 1 December 1997 [Print P6907]).

'I find that a second probationary period was not determined in advance and not appropriate because there was not termination of the employment relationship and the applicant could not have been categorised as a new employee.'

Accordingly, the commissioner found that the employee was not excluded from the provisions by virtue of Regulation 30(B)(1)(c) of the Workplace Relations Regulations and was entitled to the jurisdiction of the Commission.

See: G Manco v National Telecoms Group Pty Ltd - AIRC (Hingley C) - 7 January 2003 - PR926365.

 
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