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T11604

     

    TASMANIAN INDUSTRIAL COMMISSION

    Industrial Relations Act 1984
    s.29 application for hearing of an industrial dispute

    Margaret Lesley Holbrow
    (T11604 of 2004)

    and

    The Richmond Fellowship of Tasmania Inc.

     

COMMISSIONER JP McALPINE

HOBART, 7 December 2004

Industrial dispute - alleged unfair termination of employment - application dismissed

REASONS FOR DECISION

[1] On 21 July 2004, Margaret Lesley Holbrow (the applicant), applied to the President, pursuant to s.29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of a dispute with The Richmond Fellowship of Tasmania Inc. (the respondent) arising out of her alleged unfair termination of employment.

[2] The matter came on for hearing on 12 August 2004 (conciliation conference) and 19 October 2004. The applicant represented herself; Ms N Butt and Mr J Munday for the respondent.

[3] The applicant commenced employment on 13 April 2004 as the Rokeby Program Manager with the respondent.

[4] The Richmond Fellowship of Tasmania Inc. is a charitable organization providing psych-social rehabilitation for adults experiencing mental illness. The applicant had previously worked with the Richmond Fellowship in New South Wales and had twenty years experience in the industry.

[5] The applicant was engaged for a probationary period of three months after which time it was expected she would assume her role in an ongoing capacity. The applicant, in the first three weeks of her employment, was given support by Mr Morton, the outgoing incumbent, by way of handover coaching. Subsequently, the applicant's performance was deemed, by the respondent to be less than adequate for the role and her employment was terminated at the cessation of the probationary period. The termination was effective 29th June 2004.

[6] The applicant has outlined a number of issues that were not to her satisfaction. However, from this Commission's point of view they can be summarized as:

  • Alleged breach of the Community Services Award in respect to procedures during her term of employment; and
  • The alleged unfair termination of her employment.

[7] During the hearing both the applicant and the respondent chose to make statements rather than give sworn evidence.

[8] Neither the applicant nor respondent chose to cross-examine.

[9] It should be noted that after the initial conciliation conference, Ms Holbrow was advised she had little chance of success on the evidence before me at the time. She was informed for the matter to go to hearing she would have to introduce new, supportive evidence. On commencement of the hearing she informed the commission she would be reiterating her previous position with no new evidence.

BACKGROUND

[10] The applicant listed 14 grounds covering her assertion of Award breach and Unfair Dismissal.

[11] The applicant claims:

"(1) I was falsely induced to apply for the position in the first place by Ms Butt, who told me that the future direction of the position was the job of the CEO and that the successful applicant would be trained for that role. She concealed this in a letter of employment which I received after I had resigned from my job in Sydney in which she includes a clause which says:

Do not rely on any statements made previously about the position."1

[12] There is no evidence to indicate there was anything false in the statement attributed to Ms Butt. Regardless, this has no bearing on the alleged unfair dismissal or breach of award.

[13] The applicant alleges:

"(2) The first probationary review is late and in breach of Community Services Award regulations;"2

[14] Ms Butt's response to this was that she had set out a time frame to conduct the first formal review that was indeed beyond mid-way through the probationary period due to other circumstances. She asserts the applicant was not disturbed by this when the time frame was discussed with her. Ms Butt and Mr Morton however, had a significant number of contacts with the applicant throughout her probationary period. There is evidence tendered that theses contacts ranged from performance evaluation, through coaching to goal setting.

"(3) The time frame for me to address the concerns raised in the first review is completely inadequate and obviously illegal;3

[15] As for the (2), there were a significant number of engagements with the applicant, as asserted by Ms Butt. It is asserted the applicant had sufficient opportunity to address shortcomings through the probationary period.

"(4) It is obvious that the time frame is crucial when one has a probationary period of 12 or 13 weeks in which to learn the basics of a complex and demanding job and be assessed;"4

[16] The respondent did not address this. It carried no weight with regard to the application.

"(5) The review is unfair and some of the claims made by Ms Butt have been clarified, which she has ignored;"5

[17] The review conducted by Ms Butt outlines the competencies as well as the shortcomings.

"(6) The content itself is evidence of the double standards that Ms Butt has applied to me, the former program manager and herself;"6

[18] There is no evidence of this assertion.

"(7) The content demonstrates that Ms Butt wanted to get rid of me and nit-picked to ensure her desired result;"7

[19] There is no evidence of this assertion.

"(8) I was not made aware of any concerns about my performance until the first probationary review";8

[20] Ms Butt's evidence, her notes and the statement of Mr Morton refute this claim.

"(9) I received no performance appraisals as preparation for the first probationary review;"9

[21] According to Ms Butt, the applicant was made aware of her performance throughout her tenure.

"(10) I had been performing successfully as a manager in Sydney for 18 months doing a more difficult job;"10

[22] This statement was not contested.

"(11) Other professional and humane options could have been pursued and implemented;11

[23] There was no response to this from the respondent.

"(12) The support offered to me in the review to cover industrial and legal requirements was provided to me in an intimidating and humiliating manner;"12

[24] There is no evidence of this.

"(13) The pressure which I was put under caused me to become sick;"13

[25] There is no evidence of this.

"(14) I was sacked while sick and covered by a workers compensation medical certificate;"14

[26] The applicant was notified of her termination on the day of the final review. She indeed was under worker's compensation arrangements until the following day.

[27] The hearing did not produce any further evidence from the applicant beyond her verbal submission at the conciliation conference and subsequent written submissions.

[28] The respondent did produce a statement from Mr Morton, the manager, whose role and responsibilities the applicant should have taken over.

FINDINGS

[29] In circumstances such as are evident in a case like this, emotion is often presented as fact.

[30] The applicant's case hinges on the timing of her initial, formal assessment and the subsequent short time left available to redeem the situation.

[31] The applicant is correct, the Community Services Award does state in Part II, 2 (d) (iv): "review no later than mid way through the defined probationary period". As a stand-alone issue this may well have left the respondent in breach of the award. However, the respondent has clearly and definitively shown the applicant had been very closely mentored/coached throughout whole length of her probation.

"... on 17 May I actually spoke to her about my requirements for that time......I advised her that I wouldn't be able to conduct her first probationary review until 11 June 2004. Now, The applicant was ok with that...."15

[32] The respondent submitted Exhibit R.2. The exhibit confirmed Ms Butt's statement.

"... 13 April to 29 June I met with Ms Holbrow in person on 13 separate occasions, spoke to her on the telephone on approximately 16 separate occasions and attended the Rokeby program on a total of eight occasions."16

[33] Coupled with this attention, the applicant also enjoyed almost three weeks of handover time with the previous incumbent Mr Morton. On top of this, we have Mr Morton's statement where he outlines the various concerns he had with the applicant's performance. I find it unreasonable to accept the applicant's assertion that she was not aware of Mr Morton's concerns.

[34] The intent of the inclusion in the award of "review no later than mid way through the defined probationary period" is there to ensure that probationers are given at least one feedback session with the expectation that any shortcomings are addressed.

[35] On the evidence before me the respondent made every effort to inform the applicant of her performance throughout the probation period. I am in no doubt the applicant was fully aware of what was required of her.

[36] The applicant also claimed in her statement:

"(10) I had been performing successfully as a manager in Sydney for 18 months doing a more difficult job;"17

[37] She confirmed she had twenty years in the industry. Yet despite these two assertions by the applicant, the management of Richmond Fellowship still spent an inordinate amount of time on her development through the probationary period.

[38] I deem Richmond Fellowship of Tasmania Inc, did not breach the Community Services Award in failing to conduct a formal performance review on or before mid-way through the applicant's probationary period.

[39] The applicant was well aware she was on probation. The applicant was also aware that she was not performing to the satisfaction of the business in a number of significant areas, such as conflict resolution, interpersonal skills, management skills and the required rate of introduction of Individual Program Plans. The inability to meet the requirements of the business in introducing Individual Program Plans appears to have been a major issue for the business.

[40] The applicant was made aware in writing of the consequence of her failing to reach the required standard. I accept Ms Butt's evidence that she also discussed this with the applicant.

[41] The applicant's contract came to an end on the 29th June 2004 and ongoing employment was not offered. The applicant was indeed in receipt of a Worker's Compensation Certificate until the 30th June 2004. The employer, however, did pay her two weeks salary on termination.

[42] The probationary period was intended to be used as a time to get used to the workings of the organization. Unfortunately, in this instance the probationer did not meet the requirements of the business. The applicant was counselled appropriately, her deficiencies articulated and was aware of the consequence of her failure to attain the required level of competence.

[43] I find that the Richmond Fellowship of Tasmania Inc. did not unfairly dismiss Margaret Lesley Holbrow.

[44] I dismiss the application by Margaret Lesley Holbrow for alleged unfair termination of employment against Richmond Fellowship of Tasmania Inc., and I so Order.

 

James P McAlpine
COMMISSIONER

Appearances:
Margaret Lesley Holbrow for herself
Ms N Butt and Mr J Munday for The Richmond Fellowship of Tasmania Inc.

Date and place of hearing:
2004
August 12
October 19
Hobart

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