Frattini v Mission Imports [2000] SAIRComm 20 (16 May 2000) Last Updated: 9 August 2000 Frattini v Mission Imports [ 2000] SAIRComm 20 INDUSTRIAL RELATIONS COMMISSION (SA) FRATTINI, Jack v MISSION IMPORTS JURISDICTION: Unfair Dismissal FILE NO/S: 1295 of 1999 HEARING DATES: 27 and 28 March 2000, and written submissions 31 March, 25 and 26 April 2000 JUDGMENT OF: Deputy President PJ Hampton DELIVERED ON: 16 May 2000 CATCHWORDS: Dismissal - Termination of Employment - Preliminary point - Probationary employment - Whether applicant excluded from the jurisdiction - Alleged period of work experience followed by employment - Whether employment offered on the basis of a probationary period - Some payment made during work experience - Whether work experience was employment - Whether probationary period determined in advance - Whether period must be in writing - Interaction between Act and regulations considered - Requirements of regulations discussed - Period of probationary employment determined, advised and accepted in advance - Whether three month period reasonable in the circumstances - Factors in making assessment discussed - Concept of work experience as used by the respondent considered - Applicant comprehensively assessed by way of work experience - Nature of position and circumstances of employment considered - In present circumstances period not reasonable - Application not excluded - Matter to be listed for hearing on the merits - S 105A Industrial and Employee Relations Act 1994 and r 10(b) Industrial and Employee Relations (General) Regulations 1994 . Melbourne v JC Techforce (1998) 65 SAIR 372 Dietrich v Dare (1980) 54 ALJR 388 Rogers v Booth (1937) 2 ALL ER 751 at 755 Nicholson v Heaven and Earth Gallery (1984) 57 IR 50 Mann v Ross and Others (1999) FCA 273 unreported 24 March 1999 REPRESENTATION: Counsel: Applicant: Mr D Palmer (agent) Respondent: Mr J Warren Solicitors: Applicant: D St J Palmer and Associates Respondent: Norman Waterhouse Introduction and Case Outline 1 This matter concerns an unfair dismissal application as made by Jack Frattini ("the applicant") pursuant to s 106 of the Industrial and Employee Relations Act 1994 , ("the Act"). The application alleges that the dismissal of the applicant by Mission Imports, ("the respondent") on 29 November 1999 was harsh, unjust and unreasonable on a number of grounds. 2 This matter has proceeded by way of the determination of a preliminary point, following a direction given by the Commission to that effect. The preliminary point as taken by the respondent is that the applicant is excluded from the jurisdiction by virtue of the operation of s 105A(2)(a) of the Act and reg 10(b) of the Industrial and Employee Relations (General) Regulations 1994 . I will detail the specific statutory context for the potential exclusion of the application in due course, but suffice to say at this juncture that the respondent alleges that at the time of his dismissal the applicant was serving a period of probationary employment that was determined in advance and was reasonable having regard to the nature and circumstances of the employment. 3 Given the nature of the argument as to the existence of a probationary or qualifying period, the respondent has accepted the onus of proving the exclusion on the balance of probabilities. I interpose that given the circumstances, this was the appropriate course of action. 4 The respondent's case was that the applicant was employed as a "Storeman" within its operations during the course of a conversation between the applicant and the respondent's Managing Director that took place on 9 September 1999. During this conversation, it is alleged that the respondent's Managing Director outlined the general basis of the offer of employment including the position, the general operation of the hours of work and other matters including that the applicant would be employed on a three month probationary period. The respondent's case is that the applicant accepted that offer and although no written contract of employment was entered into, such became the basis of employment of the applicant. In addition, it is the respondent's case that a general, although at the time unwritten, policy had existed for some years. That policy being that all new employees within the warehouse operations of the respondent would be employed on a three month probationary period. 5 It was also the respondent's case that at the time of being offered employment, the applicant was engaged on a period of one week of unpaid work experience that had been organised by an organisation known as Jobs Statewide, being the provider of an employment training program in which the applicant was involved. 6 Accordingly, it was the respondent's position that the applicant at the time of his dismissal was serving a period of probation, being three months, and that this period was determined in advance and was reasonable having regard to the nature and circumstances of the applicant's employment. 7 The applicant opposed a finding that he should be excluded from the operation of Pt 6 of the Act on a number of grounds. Firstly, the applicant denied that he was serving a probationary or qualifying period at the time of his dismissal. Indeed, the applicant denied that the respondent had raised the concept of a probationary or qualifying period at any stage prior to his dismissal by the respondent in November 1999. The applicant specifically denied any recollection of the most relevant detail of the conversation said to have occurred between himself and the respondent's Managing Director on 9 September 1999, and denied that he had been spoken to by any other officer or employee of the respondent in terms of a probationary or qualifying period, at any time. 8 The applicant also argued that there was no proof of any existing policy concerning the implementation of probationary periods within the respondent's operation, and given the apparent lack of any employment policies, contracts of employment, time and wages records as completed or shown to the applicant during his employment, and the possibility of inappropriate employment practices generally, the Commission should not accept that the respondent had any policy on probationary employment nor that it had sought to implement any such understanding with respect to the applicant. 9 In the alternative, it was submitted by the applicant that should the Commission find that employment was arranged and agreed to on 9 September 1999 on the basis as postulated by the respondent, a number of other grounds would operate so as to deny the applicant's exclusion from these proceedings. Firstly, that the period of one week of work experience was in fact and in law a period of paid employment and that such should be given that status in these proceedings. In that context, it was the applicant's submission that the exclusion as applying pursuant to s 105A(2)(a), could not be applied so as to allow for more than one probationary and/or qualifying period to apply with respect to the same employment. Secondly, the applicant argued that the probationary or qualifying period should be in writing and/or form part of a written contract of employment in order to be effective for present purposes. Lastly, the applicant argued that in any event a period of three months, given the position of the applicant and the initial one-week of work experience, was not reasonable. 10 Accordingly, there is a serious and direct conflict as to the context for and impact of the discussion that took place between the applicant and the respondent's Managing Director during the course of 9 September 1999. There is also a dispute concerning the discussions that led to the week of "work experience". In addition, there is a dispute between the parties as to the appropriate application of the potential exclusion created by s 105A(2)(a) in general terms and with respect to the particular circumstances of this application. The Evidence before the Commission 11 Although this matter involves the determination of a preliminary point, the Commission has heard extensive evidence from the parties regarding the entire circumstances of the applicant's employment. However, I have not heard evidence from the parties regarding the circumstances of the applicant's dismissal, other than as it would impact upon the determination of the preliminary point. In these circumstances, I have heard a great deal of evidence regarding the general operation and employment practices of the respondent, the particular circumstances surrounding the formation of the employment contract with the applicant, and the prevailing practices within the business with respect to employment generally. 12 The following persons gave evidence to the Commission:- Mr Heino Hinrichsen - Managing Director Mr Keith Turner - Sales Manager Mr Trevor Carr - General Manager Mr Peter Drakoulas - Storeperson Mr Stuart Florence - Storeperson Mr Jack Frattini - Storeperson - The Applicant 13 As alluded to above, there are two key conversations that are critical to the determination of this application. Firstly, a discussion which led to the week of work experience in early September 1999, and the conversation that took place on 9 September 1999 that allegedly led to the applicant's employment as a Storeperson. Both of these conversations involved only the applicant and Mr Hinrichsen, and the evidence is that there were no direct witnesses to these conversations. I should also indicate that none of the other witnesses called by the respondent were able to provide evidence as to the basis of the applicant's employment, either by way of any direct or even indirect understanding of that basis. Their evidence did however go to the existence or otherwise of a general policy with respect to probationary employment within the workplace and indeed to certain employment practices within the respondent's operations. 14 In general terms, I have no significant reservations regarding the evidence of Messrs Turner, Carr, Drakoulas and Florence as given on behalf of the respondent. I consider that the evidence was given openly and genuinely, and whilst this evidence is of some assistance to the Commission in determining the application, it does not directly assist in the resolution of the key factual disputes between the parties. In so finding, I note that Mr Florence, who had a "supervisory" role with respect to "Storemen", gave evidence that it was his normal practice to confirm to all new employees the basis of their employment including work times, the general hours of work, and in particular, that they were to be employed on three months probation. It was his evidence that although he generally gave this "talk" to all new employees, he could not specifically recall having that discussion with the applicant. I accept Mr Florence as a witness of truth but note that he could not recall having a discussion with the applicant as to his employment status, that he only assumed that the applicant would have been employed on a probationary period in any event, and that any such conversation would have occurred during the course of the employment and the alleged probationary period, rather than in advance. 15 I turn now to the credibility of the two key witnesses in this case. 16 Mr Hinrichsen's evidence was in general terms credible although there were a number of matters about which his evidence was less than convincing. Mr Hinrichsen was unable to recall whether he had interviewed one or more people for the week of work experience, was unclear as to the nature of time and wages records kept by the respondent and the conversion of hours worked into wages paid (although having direct responsibility for some part of that), and as to whether some employees had been engaged from time to time on a casual basis. In addition, I have considered the evidence of Mr Hinrichsen in the context of the apparent inability to recall certain other events that have occurred in and around the time of the conversation on 9 September 1999, and have factored such into the assessment of the overall credibility of his evidence. I would indicate that I am satisfied that Mr Hinrichsen did not attempt to mislead the Commission and generally gave his evidence with conviction. 17 The applicant's evidence in this matter was unsatisfactory to some degree. I do not necessarily consider that the applicant set out to deceive the Commission, however he was in my view less than candid as to the circumstances leading to his receipt of $100.00 during the week of work experience. This no doubt arose from the difficulties with such a payment given certain obligations arising from his `social security' payments at that time. More importantly, his recall of events and the inconsistency of the recollection of the key conversations, make his evidence generally unreliable. The applicant was unclear and inconsistent with respect to the circumstances that gave rise to his one week of work experience, and the relationship between that "work experience" and the training course being conducted by Jobs Statewide. In addition, the applicant was unsure and inconsistent in relation to the content of the interview which led to the offer of the work experience and his version of events as to what took place in that context is difficult to believe. In particular, the applicant's evidence that during the course of the first meeting between himself and Mr Hinrichsen, that the Managing Director would be so open with him as to advise him that if the applicant subsequently took a position with the respondent that one of the existing storemen would be sacked, is unlikely to say the least. The applicant also changed his evidence during the course of proceedings with respect to the conclusion of the first interview. Initially, the applicant indicated that the first interview involved the respondent confirming that the applicant would be given a week of work experience with a view to his subsequent employment, and that this was the definite result of the first meeting. Later, the applicant conceded that there was no definitive conclusion to the first interview, and that it was actually left on the basis that the applicant would be contacted if he was to subsequently be offered the work experience. It is also the case that the applicant had a tendency to overstate certain matters that were subsequently clarified and put into context during re-examination, and was unable to clearly differentiate between certain conversations that took place at different times. 18 In light of the above, the Commission must determine the factual disputes arising between the parties in a somewhat unsatisfactory context. I am not without reservation regarding the two key witnesses, and the applicant in particular. I have also not been assisted in this process by the fact that the applicant's representative, despite urging from the Commission on a number of occasions, did not clearly put to Mr Hinrichsen under cross-examination, the precise position of the applicant on a number of issues including the detailed conversation which was said to have taken place on 9 September 1999. This however may be a product of the lack of definite instructions from the applicant and that of itself may be a symptom of some of the problems alluded to above. 19 After concluding the hearing of this matter, and in light of the unsatisfactory nature of the evidence, I invited the parties to file certain documentary evidence referred to in the witness evidence. The applicant subsequently supplied two documents. The first being a copy of a "work experience agreement" apparently prepared by Jobs Statewide for the applicant and another company, not being the respondent. The second document apparently being a pro-forma version of a "work experience agreement" with accompanying documentation. Neither of these two documents fall within the scope of the directions given by me as to further evidence nor have they been put to the witnesses concerned. I have however noted the evidence that does exist as to the nature of the documentation provided by the applicant to the respondent with respect to the week of work experience. In light of the foregoing I do not propose to admit the further documentation but rather to deal with this matter based upon the material already before the Commission. 20 Whilst I am not without reservations, I find that the respondent's version of events with respect to the discussion that took place on 9 September 1999 is to be preferred. In so finding, I have had regard to the demeanour of the witnesses and consistency of their evidence as to these conversations, the overall credibility and probability of their version of events, and the degree of consistency in their evidence with respect to critical issues. On the balance of probabilities I find that the applicant was informed of the probationary period, however in light of the circumstances of being offered a position, he did not necessarily consider the matter in any detail and may not have appreciated the potential significance of that element. In that context some "post event" rationalisation may have been present in his evidence. There are also other factual issues that arise in this case, including the discussions which occurred in early September 1999 regarding the week of work experience, and I will return to the relevant detail of such in due course. The Legislative Context 21 Before dealing with the specific findings of fact and consideration of the issues arising in this case, I propose to confirm the legislative context in which this application is to be determined. S 105A(2)(a) of the Act reads as follows:- " Application of this Part 105A. (1) ... (2) The regulations may exclude from the operation of this Part or specified provisions of this Part - (a) employees serving a period of probation or a qualifying period providing that the period - (i) is determined in advance; and (ii) is reasonable having regard to the nature and circumstances of the employment; and (iii) does not exceed 12 months; or" 22 The relevant regulation, prescribes as follows:- " 10. Pursuant to section 105(2) (b) of the Act, the following classes of employees are excluded from the ambit of Part 6 of Chapter 3 of the Act: (a) ... (b) employees serving a period of probation or a qualifying period of employment, provided that the duration of the period or the maximum duration of the period - (i) is determined in advance; and (ii) is reasonable, having regard to the nature and circumstances of the employment;" 23 During the course of the proceedings, I raised with the parties the potential tension that existed between the relevant section of the Act and reg 10(b). The respondent's position as put by Mr Warren, was that the regulation was within the boundaries of s 105A of the Act and as such was valid and should be applied for these purposes. The applicant, via Mr Palmer, at one point in his written submission appears to indicate that the Act should prevail however he did not disagree with the respondent's submission as summarised above. I would indicate that I do not believe that the incorrect reference in the regulations to "section 105(2) (b) of the Act" is fatal (see Melbourne v JC Techforce (1998) 65 SAIR 372). In my view, the Act empowers the making of regulations so as to exclude certain employees from the operation of Pt 6. However, the regulations must operate within the statutory parameters and be consistent with the qualifications that are set out in the relevant sub paragraphs of sub-s (2) of the Act. In this case, I am satisfied that reg 10(b) is within the constraints of sub-s (2)(a) and is therefore valid. On this basis, it is the precise terms of the regulation that I propose to apply for present purposes. General Findings of Fact 24 It is not necessary to record specific findings on all of the material before the Commission. In addition, the broad finding that I have made as to the conversation between the applicant and Mr. Hinrichsen on 9 September 1999 has been outlined in par 20 of this decision. 25 It is however, important to record certain broad factual findings in order to establish an appropriate context for the consideration of this matter. 26 The respondent conducts an importing and warehousing operation involving "discount" products. This operation includes two relatively large warehouses, with one of these being at 21 George St, Thebarton and the other at 25 George St. The premises at 21 also include the administrative offices of the respondent and most of the events concerning the applicant took place at that address. The business of the respondent also involves supplying goods to a number of retail stores conducted by a related business. 27 The respondent employs a number of administrative, sales and store personnel, and has grown in recent years. Many of the administrative systems operated by the respondent, at least with respect to employment matters, have not kept pace with the growth of the business. In that context, the respondent does not apparently utilise conventional time and wages records, pays employees in cash without issuing pay slips, and has very informal procedures dealing with the calculation and payment of wages for periods beyond the normal pattern of working hours. At the time of the applicant's employment and apparent dismissal, there were no written policies and with one exception not relevant to these proceedings, no written employment contracts or letters of appointment. These aspects may not be directly relevant to the determination of the issues before me, but they do set some of the scene for the subsequent events. 28 Mr Hinrichsen interviewed the applicant in the week commencing 30 September 1999 in relation to a potential position with the respondent. Mr Hinrichsen had a vacancy for a Storeperson and had contacted Jobs Statewide, being an organisation that provides training and placement services for unemployed people. Jobs Statewide had previously supplied potential employees to the respondent, and the respondent had also provided work experience for some of their students who were completing courses in stores work and related areas. That organisation recommended the applicant and indicated that he would also be available to undertake a week of work experience and should be considered for employment. 29 At the time of the applicant being approached by Jobs Statewide in relation to work experience with the respondent, he was undertaking a training course offered by that organisation. The training course involved stores and materials handling aspects including the use of computers. This training was part of job placement efforts and also included a period of work experience as part of the prerequisites. The applicant was apparently in receipt of payments from "Centerlink" during this period, including for the period of the subsequent week of work experience. 30 The applicant and Mr Hinrichsen held a discussion at 21 George St, (probably on Thursday 2 September 1999 in the early evening), regarding the prospect of the applicant undertaking a week of work experience. It is also clear to me that the prospect of subsequent employment with the respondent was discussed at that time. This interview concluded on the basis that the respondent would consider his position and subsequently confirm such to the applicant. There was no discussion as to the conditions attaching to any potential future employment. It is also probable that the respondent interviewed other people at that time. 31 The respondent subsequently decided to offer the applicant the one week of work experience. It is also clear to me that the respondent saw this as a step directly leading to the likely employment of the applicant. Mr Hinrichsen contacted Jobs Statewide and informed them of the situation. Jobs Statewide then informed the applicant that he would be undertaking a week of work experience with the respondent and arrangements were made for the applicant to collect a "work agreement" that had been prepared and signed by Jobs Statewide. This agreement apparently dealt with insurance issues and other matters and was also signed by the applicant and provided to the respondent in due course. There is no evidence before me as to whether such was signed or otherwise accepted by the respondent. 32 The applicant undertook a week of "work experience" with the respondent from 6 September 1999 until 10 September 1999 inclusive. I will deal with the nature and implications of this work experience later in this decision. 33 On Thursday 9 September 1999, during the week of work experience, the respondent was paying employees, including those in and around the 21 George St premises. The applicant approached Mr Hinrichsen and I find that he sought some contribution towards his petrol costs. Mr Hinrichsen then obtained $100.00 in cash from his office and gave this to the applicant. The applicant sought some feed back on his work during the week and as to his prospects for employment. Mr Hinrichsen then indicated that he was happy with him, and that he could start (employment) on the following Monday. As part of this discussion, Mr Hinrichsen indicated that such employment would be on the basis of a "three month probationary period". The general operation of the hours of work and other related arrangements were also explained to the applicant. There was no further discussion as to any of these terms and I find that the applicant gladly accepted the proposed employment at that time. 34 The applicant "commenced" his employment with the respondent on 13 September 1999 in the position as a Storeperson. The duties involved various warehouse functions including packing boxes of orders, unpacking supplies, arranging shelving and displays, and tidying up. 35 The applicant also performed some work in the context of the related retail businesses however it is not necessary to deal with this aspect for present purposes. 36 There is no evidence that the concept of the applicant's probationary employment status was discussed with him by anyone on behalf of the respondent, other than during the discussion on 9 September 1999. 37 The respondent did have an unwritten policy that all full time employees would be engaged on the basis of a three month probationary period. This approach pre-dated the applicant's employment by some years. This was consistently applied to other Stores staff and was understood by those employees called to give evidence in this matter. 38 The applicant's employment was terminated, apparently by the respondent, on 29 November 1999. The alleged probationary period would have expired on 13 December 1999. Discussion 39 In order for the applicant to be excluded from Pt 6 of the Act he must have been serving a period of probation or a qualifying period of employment at the time of his dismissal. In addition, the duration or maximum duration of any such period must have been determined in advance and be reasonable having regard to the nature and circumstances of employment. In light of the factual findings made in this case, it is unnecessary for me to determine whether the period of probation or qualifying employment needs to be communicated to the applicant prior to the commencement of employment. In this case, I have found that such did occur, provided that the week of work experience is not treated as being employment with the respondent for these purposes. I will return to that issue shortly. In this case I have found that the applicant was informed of the three month probationary period prior to the commencement of the probationary period and his employment on 13 September 1999. 40 Whilst I have certain reservations regarding the use of so called unpaid "work experience", as applied in this case, as a prelude to employment, I do not find, based on the material before me, that such represented either a probationary or qualifying period of employment . It is true that the respondent effectively used that period as a means of making an assessment of the competence and capacity of the applicant to fulfil the job, which at that stage was vacant. It is also the case that the applicant performed meaningful and productive work and was paid $100.00. However, the work experience was arranged between Jobs Statewide, the applicant and the respondent, and was completed, at least in part, as an element of a training program in which the applicant was engaged. The respondent's witnesses were not directly questioned by the applicant on the obligations that existed between the parties (if any) during the period of work experience, however there was an unchallenged proposition in the evidence of Mr Hinrichsen that employees on work experience were not generally able to be compelled to attend or directed in the same way as "employees" (tr 86). There are certain elements in the evidence that do distinguish the applicant's work experience from the general operation of such schemes. However, in the absence of any meaningful challenge to the evidence of the respondent as to the lack of employment related obligations, I am unable to find the necessary prerequisites to establish an employment relationship at that point. The payment of $100.00 to the applicant as I have found it to be, was in response to a request for a contribution towards travel expenses, however there is an element of further consideration in that payment. The applicant however did not expect to be paid for the period, and indeed was aware that to do so would represent a problem given his status as a recipient of training benefits. It is clear to me that neither party accepted an obligation for, or right to, payment covering the week of work experience. The $100.00 was therefore an ex gratia payment and did not change the essential nature of the relationship. ( see Dietrich v Dare (1980) 54 ALJR 388 and Rogers v Booth (1937) 2 All ER 751 at 755). Notwithstanding my reservations about the concept of work experience in the manner in which it was utilised here, I am satisfied that in all of the circumstances, the period of one week of work experience should not be considered to be, in its own right, a probationary or qualifying period of employment as contemplated by the Act. More importantly, at the time that the actual employment relationship was being established, 9 September 1999, and prior to the employment relationship/contract and probationary period commencing, the probationary employment period was determined. In this case, the period was also communicated by the respondent and accepted by the applicant. 41 On that basis, at the time of his dismissal the applicant was serving a period of probationary employment, whose maximum duration was determined in advance of the probationary period and indeed the employment of the applicant. I do not accept the proposition advanced by Mr Palmer for the applicant, namely that any such probationary or qualifying period must be communicated in writing and/or contained in a written employment contract in order for it to be valid for these purposes. In my view the fact that a contract of employment was made orally does not of itself preclude it containing a probationary period which could invoke reg 10(a). Neither the Act or regulations require that the probationary period be committed to writing, and indeed it is common for many employment contracts to remain as verbal arrangements. I also note and respectfully adopt the approach on this aspect as taken by Wilcox CJ in Nicholson v Heaven and Earth Gallery (1984) 57 IR 50 at 58, as cited by Mr Palmer on another issue. However, the absence of a written policy, and more particularly a written contract of employment or other industrial instrument, may well lead to circumstances where the respondent employer is unable to demonstrate the necessary certainty of the relationship so as to meet the factual onus cast upon it in this context. In this case, I am satisfied on the balance of probabilities that there was a pre-existing policy of the respondent, that such involved the offering of employment to full time persons within the warehouses on the basis of a three month probationary period, and of most significance, that this was actually communicated to the applicant as part of the offer of employment as made on 9 September 1999. This offer formed the basis of the employment contract between the parties. 42 The remaining issue to determine is whether the three month period was reasonable having regard to the nature and circumstances of the employment of the applicant. In my view, the onus is also upon the respondent to satisfy the Commission that the period of probation was reasonable. In that regard I would refer to the decision of the Federal Court in Mann v Ross and Others (1999) FCA 273 , unreported 24 March 1999. Whilst in the context of the Commonwealth Act, it appears to be apposite for present purposes. 43 The respondent argued that the period of three months was within a range of reasonable periods given the nature and extent of work. In that respect, it was suggested that there was no close supervision and the position was not a simple one involving "process" work. The applicant argued that the period was unreasonable given the circumstances of employment and the nature of the position. In this respect I was referred to the decision of Wilcox CJ in Nicholson v Heaven and Earth Gallery (1984) 57 IR 50 at 59 where he says in part " In the case of a person employed to carry out repetitive duties under close supervision, a reasonable period may not extend beyond a week or two ....... But I suspect that an employer will rarely be able to justify a period exceeding two or three months, in the case of an employee to whom Part VIA now applies .... ". 44 Having regard to the requirements of the regulation it would appear to me that an objective judgment, based upon evidence, has to be made by the Commission in the specific circumstances of each employment relationship. It is also clear to me that whilst certain principles may be drawn, the approach of other tribunals must be considered with some caution given the different statutory parameters in which the decisions are made. Such differences include the degree of reliance upon the Termination of Employment Convention , the precise form of the potential exclusion, and the statutory directives that surround each of the jurisdictions. 45 Without attempting to limit the factors that might be relevant to such an assessment, it would appear to me that the judgment as to the reasonableness or otherwise of the probation or qualifying period might consider issues such as the nature and responsibilities of the position; the previous experience of the employee in similar positions; the degree of initiative and developmental work evident in the position and the necessary time that it would take to assess the effectiveness of the employee in that regard; the extent of training necessary to effectively undertake the position; the capacity of the respondent employer to assess the work, attitude and conduct of the employee; the award or enterprise agreement provision (if any) setting out a period of probation for new employees; accepted practice within an Industry, and other relevant factors concerning the general circumstances of the particular employment in question. In the present legislative context, the fact that Parliament has seen fit to establish a maximum probationary period of 12 months for this purpose, may need to be taken into account. However, this has not been reflected into the present regulations, and provided the period concerned is no greater than 12 months, the judgement and discretion is to be exercised by the Commission in the specific context of the employment concerned. 46 In this case, the position of Storeman as occupied by the applicant involved a limited degree of responsibility and self direction, and was not overly complex in its demands. The position was considered by the respondent as being a Storeperson classification 1 (the lowest relevant classification), and various respondent witnesses went to some effort to down-play the degree of responsibility and skill involved. There were no relevant provisions of the applicable Award or any other industrial instrument drawn to my attention. The respondent's Managing Director, Mr Hinrichsen, was responsible for all employment and termination decisions, and his actual supervision of the applicant was limited to a degree, but only due to the way in which he chose to conduct the business. However, the applicant worked in the main warehouse and administrative facility and in close proximity to the respondent's offices, and he worked with other employees, including some with positions of authority from time to time. Mr Hinrichsen worked from the same premises and regularly walked through the warehouse and had significant contact with the applicant. In that context, the respondent was in a position to make an on-going assessment of the applicant's conduct and work performance and to receive reports on those matters. The applicant also had some employment experience in materials handling and related work, and indeed had completed the academic parts of the course undertaken with Jobs Statewide, although he did not have direct experience in the operation of a wholesale warehouse such as that conducted by the respondent, at least prior to the week of work experience. There was no structured training provided to the applicant by the respondent and very little induction was given or apparently required. There is also no evidence of any meaningful or structured process to assess the applicant at the conclusion of the period. 47 The week of work experience itself is also in my view a factor to be taken into account. That week was in practice used by the respondent as a period where an assessment of the applicant could be made. Although I have found, on balance, that this was not a period of employment with the respondent, it was none the less specifically used by the respondent for the purpose of assessing the applicant and involved the applicant working in the full range of productive duties very much in the same practical manner as if he were employed. Indeed, it was the evidence of the respondent that the applicant had in that week "demonstrated that he could do what needed to be done" (Mr Hinrichsen - tr 68). In addition, it was the evidence of the respondent's General Manager, that "we would know within 6 to 8 weeks if somebody couldn't handle the work so I figured that 3 months would be long enough" (Mr Carr - tr 142). In that context a judgement must be made as to the reasonableness of the 3 month period given the assessment as made during and following the work experience period and the other circumstances outlined above. This is particularly the case given that the respondent had already made an assessment of the applicant following the work experience and was clear and unequivocal in that assessment. 48 Having considered the nature of the position and all of the circumstances of the employment as discussed above, including the particular nature, purpose and result of the work experience undertaken by the applicant with the respondent prior to his employment, I am on balance not satisfied that such a period was reasonable in this case. 49 I would stress that this judgement has been made in the specific circumstances of this case. There are a number of unique elements arising from the evidence in this case, and in other circumstances, a period of 3 months probation may well not be exceptional, including for an Award employee such as considered in this case. Conclusions 50 Based on my findings as outlined above, the applicant is not excluded from Pt 6 by virtue of s 105A(2)(a) of the Act. Accordingly, this application may be listed in due course for a hearing as to the merits of the matter. 51 I have made no findings as to the merit of the application. I would however urge both parties to seriously consider their respective positions given certain findings made in this decision. I have made certain findings adverse to both parties and certain reservations as to the employment practices of the respondent would be clear. On the other hand, the allegations made against the applicant are very serious and I have not found his evidence to date, to be of particular assistance to his cause. 52 Leave is granted to apply to have the matter listed for a hearing on the merits.