WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES JOANNE STOWELL APPLICANT -v- ROLCOL PTY LTD T/A PERTH IMAGING RESPONDENT CORAM COMMISSIONER J F GREGOR DATE THURSDAY, 8 JULY 2004 FILE NO APPLICATION 1310 OF 2003 CITATION NO. 2004 WAIRC 11952 84 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2345 Catchwords Termination of employment – Unfair dismissal – On Probation – Principles applied – Industrial Relations Act, 1979, s.23A, s.29 Result Dismissed Representation Applicant Mr R. Clohessy appeared on behalf of the Applicant Respondent Mr J. Brits, of Counsel, appeared on behalf of the Respondent Reasons for Decision 1 On 2nd February 2003 Joanne Stowell (the Applicant) applied to the Commission for an order pursuant to s.23A of the Industrial Relations Act, 1979 (the Act) on the grounds that she had been unfairly dismissed from employment with Rolcol Pty Ltd t/a Perth Imaging (the Respondent). Much of this case revolves around an employment contract between the Applicant and the Respondent which on the available evidence seems not to have progressed beyond the probationary stage. 2 The Applicant has had two separate relationships with the Respondent the first appears to be as an employee on a fixed term contract. That contract finished on 22nd September 2000, the details of how it was brought to an end are contained in Exhibit C2. It seems that the success of that contract caused the parties to enter into another employment relationship. This relationship became imbedded in a contract of employment which was executed in February 2003. The details are set out in Exhibit C5. For the purposes of these Reasons, Clause 8 - Termination Notice is relevant, I include a copy of that clause hereunder: “Should you wish to terminate your employment you are required to give two (2) weeks written notice to the General Manager. Failure to do so will lead to forfeiture of pay for the balance of the notice period, unless a variation is mutually agreed. During the first three (3) months of your employment you are under a probationary period where either party may terminate employment without reason but with reasonable notice. This contract and the employment of the employee may be terminated by Perth Imaging if the employee gives notice as required or: a) The employee commits a serious breech of this contract or for misconduct in respect of their duties. b) The employee is engaged in any conduct which, in the opinion of Perth Imaging, may tend to injure the reputation or standing of the organisation.” [Emphasis Added] 3 It can be seen from the quotation that during the first three months of the employment that the Applicant was subject to a probationary period where either party could terminate employment without reason but with reasonable notice. 4 The employment relationship proceeded on its way but during that probationary period it appears though that the Respondent was not entirely satisfied with the way the Applicant conducted herself in a number of facets of her employment and it saw fit to draw those complaints to her attention. Particularly this occurred on 11th July 2003 when the Applicant had a meeting with Mr Michael Tait the General Manager. 5 It appears from Mr Tait’s evidence and the letter that he wrote soon after the meeting that while there was an acknowledgement of some improvements there were still many underlying issues causing concern to the Respondent. The most significant was the attitude and subsequent behaviour of the Applicant; this was notified to the Applicant as something which must be addressed immediately. There was advice given to the Applicant about how she might deal with the problems she was facing arising from her conduct. For instance trying to lobby other members of staff about her personal issues was seen as a hindrance. It was suggested to her that she be positive in dealing with other staff. Attention was also drawn to her grooming. After giving some suggestions in that respect Mr Tait offered to make other senior members of staff available to give the Applicant feedback when she needed it. It was then that the probationary period was extended for a further term of four weeks time during which time marked improvements were to be made. 6 The Applicant had been told that there would be a final review on or about 6th August 2003. Mr Tait pledged to the Applicant that she would be given support to overcome the difficulties the Respondent saw with her performance and he was available to help in that respect. 7 The Commission was told that the comments of the letter of 5th June 2003 (Exhibit B1) were very much similar to areas of improvements which were raised with the Applicant following the meeting with her on 7th May 2003. At that time too because of the situation there had been an extension of the probationary period until 10th July 2003. 8 From both the evidence of the Applicant and the Respondent it is clear to the Commission that in due course on 8th August 2003 the Applicant’s employment was brought to an end. 9 At a meeting a termination letter was given to the Applicant. The letter which advised her of the termination is included hereunder: “TERMINATION OF EMPLOYMENT I advise that your employment with Perth Imaging has been terminated. Termination is effective from 6th August 2003. The reasons for termination were discussed fully with you at meetings held on 7th May 2003 and 11th July 2003. I attach copies of those letters for your reference. In summary the following matters were put to you at those meetings. ƒ Attitude ƒ Subsequent behaviour ƒ Grooming ƒ Professional polish 2346 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 84 W.A.I.G. Your response to these matters were noted at the meeting and carefully considered. The decision to terminate your employment was made after full investigation and consideration of the facts. You have been counselled on previous occasions regarding these issues and your initial probation period has been extended on two separate occasions to allow for improvement in these areas and to allow you to overcome the issues you have been experiencing. In light of the above, the decision has been made by Perth Imaging to terminate your employment. $1987.00 will be directly deposited into your account today. Your entitlements are detailed in the attached pay advice. You will find attached to this letter an Employment Separation Certificate. Yours faithfully” 10 The Commission has heard evidence from the Applicant. The significant aspect of her evidence in chief is the failure in that evidence to address the major issues which are before the Commission in this application. Apart from admitting that there had been extensions to the probationary period and from saying that she was stunned about some of the allegations which were made during the meetings which led to her termination, the Applicant says little of substance about the issues that Mr Tait had mentioned to her. However she acknowledged that there had been meetings in May and July and the same issues of attitude, subsequent behaviour, grooming and professional polish were raised. There is nothing in the examination in chief about what she may have done to address those matters. Mr Brits, of Counsel, was able to cross examine her about these issues and she was a little more forthcoming about what had happened but not to the extent that appropriate answers were given. 11 I am able to conclude that the Applicant did nothing other than tell the Commission her story from her point of view and she should be rated as credible because of that. That though is not to say that at the end of the day her story ultimately helps her. 12 The Applicant also called evidence from Brett Douglas Armstrong, a Radiographer, he gave very little evidence because once she moved into reception duties he was not her direct supervisor. He was able to give some evidence which was not helpful to the Applicant in that he thought that things were not as amiable as they should be in the office, in fact when Mr Tait consulted with him he opined that the lack of polish and presentation was still continuing. 13 As for Mr Armstrong’s evidence I can find no fault with it on the base of truthfulness and credibility and I regard his evidence as the evidence of a witness of truth. 14 Evidence was taken on behalf of the Respondent from Mr Michael Tait, the General Manager. Mr Tait gave thorough and thoughtful evidence and no questions of credibility arise from it and nor is there from the evidence given by other the witnesses, Ms Slattery and Ms Africk. The Respondent’s witnesses were all credible. 15 I analyse the facts and rule on this matter as follows. A fundamental issue to be determined is whether there was a probationary aspect to the contract of employment. The seminal case dealing with the issue in this jurisdiction is Westheafer v Marriage Guidance Council of WA (1985) 65 WAIG 2311. The nature of probation was described by Fielding C as he was then in the following way: “The concept of probationary employment is well known and well understood in employment law. It is that an employer by engaging someone on probation throughout the period of probation retains a right to see whether he wants the employee or not in his employment as if the employee was still at the first interview. Hence there is no obligation on the employer to even objectively consider whether or not he should re-engage an employee at the end of the probationary period. The principles associated with probationary employment are now so well established that it is sufficient to refer in passing to in re Alchin and South Newcastle Leagues Club Limited (1977) AR (NSW) 236, a case with many features in common with this one and also to the New South Wales Teachers Federation and the Education Commission of New South Wages (NSW Industrial Commission Application No. 969 of 1984; 13 September 1984), where it was pointed out that probationary employment is but a step in the selection process and should be distinguished from permanent employment [see too: Ex parte Wurth case (supra)].” 16 These were issues dealt with in the Decision of the Supreme Court of NSW, ex parte Wurth and Ors re Cully and Others (1954) AR 369. Since Wurth’s case the Commission has dealt with these similar issues of annulment and dismissal in Dehaan v Little Angels Day Care Centre (1998) 78 WAIG 740 and Benjamin v Gold Corp (1998) 78 WAIG 1392. 17 In my respectful view ratio of these cases is that the concept of probation whether as a condition of permanent employment or as a separate appointment in its own right still brings with it the factors identified by Fielding C in Westheafer (ibid). These are: (1) The employer throughout the period of probation retains the right to see whether he wants the employee or not in his employment; (2) That the employer is entitled to consider the employee as if the employee was still at first interview; (3) The employer is under no obligation to even objectively consider whether or not to continue with/or re-engage the employee at the end of the probationary period; and (4) Probationary period is but a step in the selection process and should be distinguished from permanent employment. 18 The Applicant in this case has sought to establish that she has been unfairly dismissed. The facts in the matter seem to be that she had an employment relationship on a fixed term contract with the Respondent or a predecessor to the Respondent and there were no difficulties arising from that relationship nor were there difficulties when she worked behind the scenes in the Radiography department. Her only contact with the public then was on the night shift sometimes she would come to the front counter. 19 It seems when she was shifted to Bethesda Hospital she entered into a new contract and had constant exposure to the public and her colleagues in the presence of the public, that a series of issues arose concerning her employment. It is abundantly clear on the evidence that the Respondent’s concerns with her behaviour were brought to her attention before the end of her probationary period as set out in the contract of employment. There was so much concern about the quality of her work in areas that were clearly identified to her before that the probationary period came to an end. 20 There is no evidence from the Applicant that she attempted to remediate the complaints regarding her conduct which were made by the Respondent. In fact the evidence called in support from Mr Armstrong did not support her contentions at all and while it was clear that Mr Armstrong was sympathetic in some ways to the Applicant it is clear that the majority of his evidence confirms the complaints that the Respondent had made about the Applicant. It is also clear from his evidence that Mr Tait had consulted with Mr Armstrong about the Applicant and nothing Mr Armstrong was able to say satisfied Mr Tait that 84 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2347 the Applicant’s conduct could be re-meditated to such an extent that the employment contract could be continued. Mr Tait conferred with Ms Slattery and Ms Africk that there had not been sufficient improvement in the problem areas. 21 What the Respondent had to do, even though it is entitled to consider the employee as if the employee was still at the first interview during the probationary period, was to attempt to assist the employee to fulfil the requirements of the job. 22 It is clear on the evidence that the Respondent tried to do this. It did not make a decision to end the relationship without careful thought or without attempting to help the Applicant. It did all what could be reasonably expected of the employer to do to assist her to make the grade, as it were, but she was unable to do so ultimately. 23 That being the case it was not unfair of the Respondent to bring the relationship to an end in the way that it did. In my view the Respondent has done all that it must do and more before it brought the relationship to an end. The probationary period is but a step in the selection process and should be distinguished from permanent employment. That has happened in this case and on the test in Undercliffe Nursing Home v Federated Miscellaneous Workers Union (1985) 65 WAIG 385 there has been a fair go all round, the Commission should not interfere with the termination and the application will be dismissed. 2004 WAIRC 11951