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Tasmanian Industrial Commission

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T12717

 

TASMANIAN INDUSTRIAL COMMISSION

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

Paulene Stephanie Hutton
(T12717 of 2006)

and

Wattle Group Inc.

 

COMMISSIONER JP McALPINE

 5 December 2006

Industrial dispute - termination of employment - long service leave - application dismissed

REASONS FOR DECISION

[1] On 7 July 2006, Paulene Stephanie Hutton (the applicant) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984 (the Act), for a hearing before a Commissioner in respect of an industrial dispute with Wattle Group Inc. arising out of her termination of employment; and, a dispute over the entitlement to long service leave, or payment instead of any such leave, or the rate of ordinary pay at which any such leave or payment is to be paid.

[2] The matter was listed for hearing on: 25 July 2006 (Conciliation Conference); 13 October 2006 (Further Conference); and 10 November 2006 at the Supreme Court, Cameron Street, Launceston, Tasmania.

[3] The respondent engaged the applicant on a three-month trial basis commencing on 3 May 2006. She was dismissed on 23 June 2006.

BACKGROUND

[4] The applicant was engaged by the respondent on a return to work programme through CRS Australia, a provider of rehabilitation services.

[5] The respondent is a community service organization. Its clientele are drawn from the frail aged and young people with both physical and mental disabilities. It provides day care centres, meals, rehabilitation facilities and occupational therapies for its clients. The respondent also offers employment and training opportunities to people with disabilities. The applicant's engagement was under the latter arrangement.

[6] The applicant chose not to give sworn evidence. She did tender case notes prepared by Ms Lisa Nash of CRS Australia, her rehabilitation consultant, pertaining to her involvement with the respondent.

[7] Statutory declarations were tendered from Sonia Lee Carr and Marion Ellen Ling for the respondent. Joy Cox, Marion Ellen Ling and Narelle Austin all gave sworn evidence in support of the respondent.

[8] It was not disputed the applicant was engaged on a three-month trial basis, nor that she was expected to carry out a range of functions. It was common ground she had been warned her performance was not up to standard and that her employment was in jeopardy. It was also not disputed the applicant's employment was terminated over the telephone on Friday 23 June 2006.

[9] The applicant alleged she had not received any job descriptions, nor received adequate training. She also argued that the job for which she had been hired was changed after about two weeks.

[10] The respondent argued that appropriate training had been given and that the tasks the applicant was expected to perform were very basic. Multi-tasking, the respondent asserted, was a feature of all positions within the organization. The respondent also argued that each time the applicant was shown a task she claimed she knew how to do it and lost interest in the training. The witnesses supported this view. The respondent went to great lengths to illustrate the low level of skill required to competently carry out the tasks given to the applicant. Indeed, the respondent asserted the skill level was minimal to accommodate those with disabilities.

[11] Ms Cox, the CEO for the respondent, gave evidence that she had spent considerable time with the applicant showing her how to perform basic tasks, and became frustrated at the lack of application shown.

[12] The applicant denied this.

[13] In her evidence, Ms Cox also indicated that there had been client complaints regarding the applicant.

[14] The applicant alleged she had never been made aware of such complaints.

[15] Ms Ling gave evidence detailing how she had given up her own time to help train the applicant in the transport system. She gave a similar account to that of Ms Cox, of the applicant wandering off while she was being instructed and of claiming, prematurely, she understood the particular task in question.

[16] The applicant did not challenge the witness.

[17] Ms Austin, who performed the same range of tasks as the applicant, gave evidence to the effect that they were very basic and not onerous to master.

[18] The Statutory Declaration by Ms Carr depicted a number of incidents where the applicant did not follow procedures and where her work was unacceptable. Ms Carr was not present to be cross-examined by the applicant.

[19] The notes of Ms Nash indicated that she had discussions with Ms Cox regarding the applicant's work performance and her inappropriate behaviour early in June. They communicated again midway through the month on the 14th, 16th and 19th.

[20] A meeting was held between the applicant, her CRS Australia consultant and Ms Cox on 26 June 2006. At the meeting Ms Cox made it clear that the situation was not retrievable. The applicant asked that she be given a written list of issues. Ms Cox refused declaring that she had "already spent enough time on you, Paulene"1.

[21] The respondent paid the applicant two weeks wages in lieu of notice.

[22] The applicant claimed she was unfairly dismissed and sought payment for the balance of the full three months of her trial period, pro rata long service leave and any outstanding leave. The matter of her superannuation payments was resolved during the conciliation process.

[23] The applicant was engaged under the Clerical and Administrative Employees (Private Sector) Award, and she also claimed she may have been paid under the wrong award.

FINDINGS

[24] Neither party was skilled in the Commission's proceedings. The applicant, being unsupported, was at a particular disadvantage. I have taken these circumstances into account when considering evidence and submissions.

[25] I acknowledge the case notes2 on the applicant, provided by Ms Nash, as being an accurate objective account of her dealings with the applicant throughout this matter and reflect the applicant's views at the time.

[26] No contract was offered or accepted formalising the applicant's employment, however it was acknowledged by the parties that a three-month trial was the situation.

[27] I turn initially to the matter of the award. No evidence was adduced to support the applicant's position that she should have been paid under the Disability Service Providers Award. I find the applicant was employed under the correct award, namely the Clerical and Administrative Employees (Private Sector) Award.

[28] From the evidence it is clear the applicant, for whatever reason, was not fulfilling the respondent's expectations in a number of areas.

[29] There is evidence to show the applicant was made aware of her unacceptable performance throughout her employment. The applicant was also aware of the consequences of failing to improve her performance. Further, sufficient evidence was educed to support the respondent's position that more than a reasonable amount of instruction and support had been extended to the applicant to introduce her to her role.

[30] I believe a telling aspect is highlighted in Ms Nash's notes. On 2 June 2006, the applicant relayed to Ms Nash that she was to be given two weeks to improve her performance or she would lose her job. There is no evidence she made any attempt to reach the standard of performance required of her, despite the serious consequence of failure. It appears the applicant did not accept the situation. Her reaction to this ultimatum was to state she would consider it as unfair dismissal if she were to lose her job. Rather than seeking solutions to master the required tasks her immediate reaction, in my view, reflects the applicant's attitude at the latter stage of her employment with the respondent.

[31] Despite intervention by Ms Nash and the stated position of Ms Cox, that "she doesn't was (sic) to lose Paulene"3 the applicant, in my view, did not apply herself to improving her performance.

[32] I turn now to the applicant's employment position. From the definitions in the Act, the following:

""Probationary or trial period", means a period of employment, for the purpose of determining an employee's suitability for continuing employment, which -

(a) .......

(b) Is stipulated in writing at the time of engagement; and

(c) ........

(d) is reasonable and appropriate in the context of acquiring the skills and experience necessary to satisfactorily perform the duties of the job;"

[33] The definition is quite clear. The intent of probation or trial employment is "for the purpose of determining an employee's suitability". In the instant matter, the employee's suitability was determined not to be adequate after, in my view, reasonable efforts to train her. Nothing in the Act or the award deems that the entire probationary period must be served.

[34] The respondent satisfied s30(5) of the Act which requires:

"Where an employer terminates an employee's employment, the onus of proving the existence of a valid reason for the termination rests with the employer".

[35] The respondent executed its prerogative not to continue with the applicant's probation. Although the final act of terminating the applicant's employment by telephone is unpalatable, she was not unfairly dismissed, and I so find.

[36] The respondent employed the applicant for just over six weeks. Section 8(2)(b) of the Long Service Leave Act 1974 stipulates that a minimum of seven years of continuous service must be achieved before an employee is entitled to pro-rata long service leave on termination. I find the applicant is not eligible for payment in lieu of long service leave.

[37] In passing, the applicant claimed that she might be entitled to payment for accrued leave. No information was presented to the Commission by the parties, to validate or refute this claim. As there is no evidence upon which to assess the claim, I make no determination with respect to accrued leave entitlements.

[38] The application is dismissed, and I so order.

 

James P McAlpine
COMMISSIONER

Appearances:
Paulene Stephanie Hutton for herself
Mr G Smith, Mr S Williams and Ms J Cox for Wattle Group Inc.

Date and Place of Hearing:
2006
July 25
October 13
November 10
Launceston

1 Exhibit A.1, Folio C44
2 Exhibit A1
3 Exhibit A.1, Folio C37