Employment Law – Probationary And Qualifying Periods - News Article 13/10/08
A recent decision of the Australian Industrial Relations Commission (“AIRC”) has highlighted the necessity for employers to ensure that they take care to properly calculate when a probationary qualifying period ends when dismissing an employee.
Background
Visy Pulp and Paper Pty Ltd (“Visy”) employed a “People Relations Advisor” on 2 July 2007 with a term of the written employment contract being that the employee’s continued employment with Visy was subject to the successful completion of a six-month probationary period. During the time of her employment, Visy grew increasingly concerned that the employee’s performance was not adequate. Towards the end of 2007 (and within the six month probationary period), Visy decided to terminate her employment.
In late December 2007, Visy sent an email to the employee requesting that she attend a meeting on 31 December 2007 or, should she be unable to attend that meeting, on 2 January 2008 . It was intended by Visy that the employee would be dismissed at this meeting. The employee responded by email that she was unable to attend the meeting on 31 December 2007 and therefore she would attend on 2 January 2008 . It was at the meeting on this later date that Visy presented its notice of termination of her employment. The employee subsequently commenced a claim in the AIRC against Visy for unfair dismissal.
The Proceedings
The Workplace Relations Act 1996 provides that an employee whose employment is terminated during a qualifying or probationary period cannot make an unfair dismissal claim. Visy argued that the dismissal took place on 31 December 2007 when it had initially intended to present the employer with the notice of termination. Visy further argued that the employee’s leave on 31 January 2007 was unauthorised. Therefore, it was Visy’s submission that the dismissal took place within the qualifying or probationary period and consequently the AIRC did not have the jurisdiction to hear the unfair dismissal claim.
The employee, on the other hand, argued that the dismissal occurred on 2 January 2008 and therefore the qualifying or probationary period had expired, allowing her to commence the unfair dismissal claim.
The AIRC agreed with the employee’s arguments and found that it did in fact have jurisdiction to hear the claim. It held that:
- The dismissal did not take place until 2 January 2008 ;
- The employee’s six-month probationary period ended on 1 January 2008 and therefore the employee was entitled to commence the unfair dismissal claim;
- Visy had alternatives available to it such as calling the employee in to work on 31 December 2007 or terminating her employment by email, particularly as she was in possession of a Blackberry during the time of her leave.
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