Worker argues she had almost two decades of industry experience
The Industrial Relations Commission of New South Wales recently dealt with a case involving an unfair dismissal claim by a former administrative employee of the New South Wales Police Force (NSWPF). The case focused on the application of probationary periods and their impact on unfair dismissal protections.
The worker challenged her dismissal, arguing it was unjust and unreasonable. She claimed that her performance during the probationary period had been satisfactory and that the six-month probation was excessive given her extensive experience.
The worker also argued that circumstances leading to her dismissal were unfair and should be taken into account. However, the employer maintained that the worker was exempt from unfair dismissal protections due to being on probation.
Dismissed before end of probationary period
The worker, who had been employed as a senior planning officer, filed an unfair dismissal application following the end of her employment. She had started her role on 8 November 2023 and was dismissed on 3 May 2024, just days before the end of her six-month probationary period.
The worker's role involved contributing to corporate planning, coordinating strategic planning, and enabling command business planning in support of the NSWPF objectives. The job required a high degree of professional judgment and autonomy.
The employer cited unsatisfactory performance as the reason for termination. However, the worker maintained that she had performed her duties to the required standard.
She argued that any perceived shortcomings were due to a lack of appropriate tasks assigned to her during a specific period from mid-February 2024 to April 2024.
Probation and unfair dismissal
The Commission examined the relevant legislation, including the Industrial Relations Act 1996 (NSW) and the Government Sector Employment (NSW Police Force) Rules 2017. These laws set out the conditions under which employees could be exempt from unfair dismissal protections.
A key focus was Regulation 6 of the Industrial Relations (General) Regulation 2020, which exempts employees serving a probationary period from unfair dismissal provisions if certain conditions are met.
The regulation states that the probationary period must be determined in advance and, if longer than three months, must be reasonable given the nature and circumstances of the employment.
The Commission had to determine whether the worker's probationary period met these criteria and whether it exempted her from unfair dismissal protections.
The employer's arguments
The employer argued that the worker was exempt from unfair dismissal provisions due to her probationary status. They emphasised that:
- The probationary period was determined in advance, as stated in the worker's offer letter.
- The six-month duration was reasonable given the nature of the role and industry standards.
- Subordinate legislation mandated a minimum six-month probation for all new NSWPF administrative employees.
The employer said that the Commission should not consider events after the start of employment when assessing the reasonableness of the probationary period. They cited previous cases to support their position.
The worker's counter-arguments
The worker challenged the fairness and reasonableness of the probationary period, arguing that:
- The six-month period was excessive given her extensive experience of over 17 years in law enforcement.
- Her performance during the probationary period had been satisfactory, at least until February 2024.
- The circumstances of her dismissal were unfair and should be considered.
She emphasised that denying her unfair dismissal protections due to a probationary period that was "terminated unfairly" would be unjust.
Commission’s decision
The Commission examined the legal framework and arguments presented. It focused on two key questions:
- Was the probationary period determined in advance?
- Was the six-month duration reasonable given the nature and circumstances of the employment?
The Commission found that the probationary period was indeed determined in advance, as stipulated in the worker's offer letter and mandated by the Government Sector Employment (NSW Police Force) Rules 2017.
Regarding reasonableness, the Commission placed significant weight on the fact that subordinate legislation mandated a minimum six-month probation for all new NSWPF administrative employees. The Commission stated:
"[The employer] simply cannot do otherwise."
This legislative requirement was deemed a crucial factor in determining the reasonableness of the probationary period.
The Commission also considered whether events after the start of employment could affect the reasonableness of the probation period. It noted:
"[The worker] would need to establish that her performance, objectively assessed, was such that [the employer] ought to have exercised her discretion pursuant to r 28(3)(a) to confirm her employment, such that the continuation of her probation for the full, pre-determined period, was not reasonable."
The Commission found that the worker had not provided sufficient evidence to meet this standard.
Ultimately, the Commission ruled in favour of the employer, finding that the worker was exempt from unfair dismissal protections due to her probationary status. The Commission emphasised:
"I consider that subordinate legislation mandating a minimum period of probation for all new employees must result in a finding that such period is reasonable within the meaning of reg 6(1)(c)(ii)(B) of the IR Regulation, at least at the commencement of the employment."
The Commission also addressed the worker's arguments about her performance during the probationary period:
"The Commission would need a lot more than [the worker's] own assessment of her performance to conclude that the application to her of an industry wide probation period, to a complex and senior role, was not reasonable."
As the Commission noted:
"The practice of an industry as regards the length of probationary periods, whatever the source of that practice might be, is a strong indicator of what is 'reasonable' within the meaning of reg 6(1)(c)(ii)(B)."
This decision underscores the importance of understanding the legal framework surrounding probationary periods and unfair dismissal protections.
