WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES EAST KIMBERLEY ABORIGINAL MEDICAL SERVICE V THE AUSTRALIAN NURSING FEDERATION, INDUSTRIAL UNION OF WORKERS PERTH

CORAM FULL BENCH

    HON PRESIDENT P J SHARKEY

    CHIEF COMMISSIONER W S COLEMAN

    COMMISSIONER P E SCOTT

DELIVERED  FRIDAY, 14 JULY 2000

FILE NO/S  FBA 16/2000 

__________________________________________________________________

Decision   Appeal dismissed

Representation

Appellant  Mr A J Randles (of Counsel), by leave

Respondent  Mr A M Dzieciol, as agent

________________________________________________________________
 

REASONS FOR DECISION:

THE PRESIDENT:

1                These are the unanimous reasons for decision of the Full Bench.  This is an appeal against the whole of the decision made by a single Commissioner on 2 March 2000 in matter No CR 172 of 1998.

2                The decision, formal parts omitted, was in the following terms (see page 7 of the appeal book (hereinafter referred to as “AB”):-

  “(1) DECLARES that Ms Julie Anne Darling was harshly, oppressively and unfairly dismissed from her employment by the respondent on or about 28 April 1998.

  (2) DECLARES that reinstatement of Ms Darling is impracticable.

  (3) ORDERS the East Kimberley Aboriginal Medical Service pay to Ms Darling as compensation the sum of $22,210.00.”

3                The decision was made on an application by the respondent, pursuant to s.44 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”), when it was alleged that the respondent’s member, Ms Julie-Anne Darling, had been unfairly dismissed.  That claim was opposed.

GROUNDS OF APPEAL

4                It is against that decision that the appellant now appeals on the following grounds (as amended upon the hearing of the appeal):-

  “1. The learned Commissioner erred in fact and law in finding that Ms Darling was not on probation at the time of her dismissal when he should have found that the probationary period continued until the time of her dismissal having regard to:

   1.1 the Appellant’s advice to Ms Darling that the issue of her tenure would be discussed at the next committee meeting;

   1.2 the learned Commissioner failing to afford the parties the opportunity to address the issue of probation, in disregard of s26(3) of the Act, when it clearly formed part of his reasons for decision;

   1.3 the learned Commissioner adopting a narrow, technical view of the duration of her probationary period which was completely at odds with s.26 of the Act which requires, inter alia, the Commission to act according to the equity, good conscience and substantial merits of the case without regard to technicalities or legal forms.

  2. The learned Commissioner erred in failing to have regard to, and hence apply, established case law principles to the probationary nature of Ms Darling’s employment in assessing the overall fairness of her termination.

  3. The learned Commissioner erred in law in failing to give reasons, or sufficient reasons, as to how he assessed compensation.

  4. The learned Commissioner erred in law in failing to properly exercise his discretion under s 26 of the Act in awarding compensation by failing to have had regard to, or sufficient regard to, a number of factors including:

   4.1 pay in lieu of notice;

   4.2 the length of Ms Darling’s service;

   4.3 the circumstances surrounding the end of the probationary period and the date of termination;

   4.4 the period when Ms Darling was unable to work due to  elective surgery;

   4.5 the work performed by Ms Darling after her dismissal;

   4.6 what was fair and reasonable in all the circumstances of the case, not just some of the circumstances.

  5. The Appellant seeks the following orders:

   5.1 the appeal be allowed;

   5.2 that Application No. CR172 of l998 be dismissed;

   5.3 that the decision of Commissioner CB Parks delivered on 2 March 2000 be quashed;

   5.4 any such other orders as the Full Bench deems fit.

   In the alternative, the Appellant seeks the following orders:

   5.5 the appeal be allowed;

   5.6 the decision of Commissioner CB Parks delivered on 2 March 2000 be varied in such a manner as the Full Bench considers appropriate.”

BACKGROUND

5                The appellant, the East Kimberley Aboriginal Medical Service (hereinafter referred to as “EKAMS”) is a body engaged in the delivery of health services to Aboriginal people in the East Kimberley region of Western Australia.  It is administered by a committee on behalf of the Aboriginal community.

6                The respondent is an organisation of employees, but it is not certain from its name whether it is the Federal body or the State body.

7                There was a quantity of documentary evidence before the Commission at first instance and, in addition, Ms Julie-Anne Darling, a member of the respondent (the applicant at first instance) was called as a witness, as was Ms Josephine Kathleen (Peppita) Pregelj, a registered nurse, the Acting Clinic Co-ordinator, and former Senior Aboriginal Health Worker with EKAMS.

8                For the appellant (the respondent at first instance), Ms Helen Elizabeth Gerrard, Chairperson of EKAMS at the material time, Mr Kimberley Allan Joseph Baird, the Vice Chairman of EKAMS at the material time, Ms Joyce Beryl Trust, the Administrator of EKAMS and Ms Jenny Anne Poelina, at the material time the Senior Regional Public Health Officer for the Kimberley Aboriginal Medical Health Service and a person involved in Aboriginal health all her working life of 23 years.

9                It was common ground that Ms Darling commenced employment with the appellant on or about 12 January 1998 as a Public Health Programmes Co-ordinator at the appellant’s premises in Kununurra.  She was, by qualification, a registered nurse.

10             The award applicable to her employment at the material time was the Nurses (Aboriginal Medical Services) Award (hereinafter referred to as “the award”).

11             The appellant employed Ms Darling on the basis that she was engaged for a period of twelve months and, initially, on probation for a period of three months of that term.  On or about 28 April 1998, her employment came to an end.

12             The meaning and effect of the probationary term in her contract of employment and the length of time in investigation of her performance during her probation was in issue in the proceedings and we will turn to it later in these reasons.

13             The respondent claimed that Ms Darling was employed by the appellant on the three month probationary period which ended on 12 April 1998 and submitted that, when she was notified of the dismissal on 24 April 1998, she had not been provided with an adequate assessment of her skills and performance.  The time which elapsed from the performance review of the probationary period and then the final notification of the dismissal was some twelve days.

14             The dismissal was alleged to be harsh, oppressive and unfair because Ms Darling was advised by the appellant that her employment was at risk at no time.

15             The respondent, first of all, sought the reinstatement of Ms Darling but an alternative remedy was sought because she gained other employment in the town of Kununurra on the final day of the hearing at first instance.

16             The respondent then sought compensation for the period between the date of Ms Darling’s dismissal and the time she obtained new employment on 18 January 1999, which was an amount in excess of the six months’ maximum payment for compensation awardable under the Act.

17             The appellant submitted that the probationary term of Ms Darling’s employment contract made it clear that, at the end of the three month period of probation, the appellant could terminate her employment and “nothing in the Industrial Relations Act (1988) shall diminish the rights of the employer in this regard”.  (It should be noted here that the Industrial Relations Act (1988) was a Commonwealth Act.)

18             The Commissioner noted that it was not possible to contract out of a statutory obligation.

19             The relevant clause in question in the written contract between the parties (see pages 344-360(AB)) and signed by or on behalf of them on 12 January 1998, reads as follows:-

  “Period of Probation

  The employee is engaged under the terms of this contract for an initial period of three (3) months. After this probationary period the work practices and attitudes of the employee will be evaluated in accordance with the criteria set out in Schedule Three to this agreement. The employer reserves the right to terminate the employment of the employee at that time should the employer judge that the work practices and/or attitudes of the employee are not in keeping with the general philosophy or needs of the corporation. Nothing in the Industrial relations Act [1988] shall diminish the rights of the employer in this regard.”

20             The clause prescribing the term of the contract (see page 346(AB)) reads as follows:-

  “Terms of this Contract

  This contract of employment is for a period of one year.  At the expiration of this period the parties may extend the contract for a further period.  The employer will not be obliged to renew the contract at the expiration of one year.  All contracts are subject to the availability of funding.”

21             Alternatively, and in any event, the appellant submitted that, by reason of her unsatisfactory work performance during the period of probation, Ms Darling was unsuitable for an extension of employment by the appellant and, accordingly, the appellant declined to extend her employment to the conclusion of the twelve month contract.

22             The Commissioner found that Schedule Three, as referred to, was unknown to all of the appellant’s witnesses.  It was, as a matter of fact, not brought to the attention of Ms Darling either.

23             The performance appraisal form [Exhibit 17] (see pages 400-406(AB)) used to assess Ms Darling’s performance (being the only one of the appraisal forms produced in evidence) showed little detail and did not contain written details, despite there being space available to provide it.

24             However, on the evidence, the appraisal forms completed and signed by Ms Joan Seaton and Dr Anne Tippetts were very favourable to Ms Darling in relation to her work.

25             The reason provided by the appellant in the termination letter of 24 April 1998 [Exhibit 4] (see page 343(AB)) was as follows:-

  “The reasons are, it is considered that you lack a clear understanding of Aboriginal cultural sensitivities and does (sic) not possess the bi-cultural communication skills required for the position.”

26             The appellant adduced evidence of two incidents which had occurred within the three month period of employment in support of this allegation.  It should be noted that the incidents both occurred within about three weeks of Ms Darling commencing employment.

27             The first incident involved Ms Judy May Shadforth, a receptionist employed by the appellant, and occurred on 3 February 1998.  It was established, on the evidence, that Ms Shadforth took a vehicle over the luncheon period, without asking permission from Ms Darling. 

28             Upon her return, Ms Darling approached Ms Shadforth and questioned her about this and Ms Darling was seriously physically assaulted by Ms Shadforth.  It should be observed that the evidence of Ms Trust, Mr Baird and Ms Pregelj was that Ms Shadforth had a history of disciplinary difficulty and an inability to accept direction, and that she had behaved in an insubordinate manner to Ms Kerryn Clay, who was also one of her superiors.

29             The Commissioner was satisfied that no fault was to be attributed to Ms Darling regarding the incident.  The committee which administers the respondent investigated this incident and dismissed Ms Shadforth.

30             Ms Darling was, however, counselled regarding the handling of the matter and instructed to talk to junior staff members in private when disciplining them.

31             The Commissioner found that Ms Darling did modify her behaviour after the counselling and did have occasion to show the appellant that the concerns raised had been erroneous.

32             The second incident occurred in late March 1998 and involved Ms Darling and Ms Joan Seaton in a difference of opinion.  The matter was later investigated by the Administrator and resolved.  It seems not to be in issue that Ms Seaton had failed to refuel the vehicle which Ms Darling was to take on a field trip the next morning.  As a result, 15 kilometres out of town, Ms Darling had to turn back to get fuel.  She sought to raise the matter that evening with Ms Seaton and there was a difference of opinion.

33             Ms Seaton then reported the matter to the committee, but the matter was given to Ms Trust to deal with.  Ms Seaton and Ms Darling resolved their differences and there is no evidence of any difference between them since.

34             The evidence of Ms Trust, the Administrator of the appellant, supported the position of Ms Darling in her opinion that the incident did not affect Ms Darling’s ability to carry out her duties for the appellant.  There was no evidence of any further difference between them and Ms Seaton’s tick in the box appraisal report on Ms Darling was favourable.

35             Further, there was evidence, not challenged or contradicted, from Ms Pregelj that that lady, an Aboriginal lady, had seen Ms Darling working with Aboriginal people and that, to paraphrase it, the interaction was satisfactory.

36             Ms Darling was also informed that she was dismissed because of her inability to interact with Aboriginal people.  Ms Darling was required to undertake a rigorous interview and selection panel process prior to being appointed and it was found that she did possess the adequate experience and skills to perform that aspect of the role.

37             Further, the Commissioner found that Ms Trust, an experienced Administrator and worker with Aboriginal people, stated that she did not discipline or discuss with Ms Darling during her period of employment the problems which she may have had with cultural sensitivity.  If there were problems, one would expect this to have occurred.  She was not sent to a training course available to staff, although the appellant’s final witness, Ms Poelina, stated that the panel that employed Ms Darling had recognised that there may be some concerns about her skills in this area.

38             It is quite clear, however, that there was no evidence of any of the appraisers or Ms Trust raising such matters with Ms Darling or giving evidence that they had any need to.

39             The Commissioner held that the concept of probation and the status of such had been well settled.  Probationary employment has been held to be but a step in the selection process and should be distinguished from permanent employment.  He cited Hutchinson v Cable Sands (WA) Pty Ltd 79 WAIG 951 (FB), which is binding on the Commissioner, as well as Re Alchin v South Newcastle Leagues Club Limited (1997) AR(NSW) 236, Westheafer v Marriage Guidance Council of WA 65 WAIG 2311 and also Department of Corrective Services v Mitchelson 42 IR 38 at 48 per Kirby P as he then was.

40             Ms Darling commenced her employment on 12 January 1998 and her employment ceased on 28 April 1998.  The Commissioner found that the probationary period had expired and she was no longer a probationary employee at the time of dismissal.

41             The Commissioner held that the obligation was upon the appellant to inform Ms Darling of her performance issues during the period of employment and, furthermore, to inform her of the cessation of her employment contract prior to the expiration of the three month probationary period.  None of these was done.

42             Whilst the appellant raised a number of allegations as to the conduct of Ms Darling, the Commissioner was far from satisfied that these matters warranted dismissal or led to the dismissal by the appellant in any event.

43             The Commissioner also held, on Ms Trust’s evidence, that she had not discussed with Ms Darling her performance with regard to cultural sensitivities.  The Commissioner was satisfied that the dismissal was unfair.  The Commissioner was also satisfied that reinstatement was impracticable, in view of the time which had elapsed between the date of dismissal and the matter being heard by the Commission.  He then ordered that compensation be paid.

ISSUES AND CONCLUSIONS

44             This is an appeal against a discretionary decision, as that is defined in Norbis v Norbis (1986) 65 ALR 12 (HC).

45             The Full Bench, therefore, cannot interfere with the course of the discretion at first instance, unless the appellant establishes that the exercise of the discretion has miscarried in accordance with the principles in House v The King [1936] 55 CLR 499 (see also Gromark Packaging v FMWU 73 WAIG 220 (IAC)).

46             Further, where questions of credibility are determined, the Full Bench, unless there are errors of fact, will not intervene unless it is established that the Commissioner misused the advantage which she/he had in seeing the witnesses (see Devries and Another v Australian National Railways Commission and Another [1992-1993] 177 CLR 472 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306).

47             The Commissioner at first instance adopted the approach of the Australian Industrial Relations Commission in determining whether Ms Darling was or was not a probationary employee.  However, that was erroneous because of the specific provision in the Federal legislation.  Whether it was fatal to the decision appealed against is another matter.  There is no statutory or other bar in this State to a probationary employee pursuing a claim for unfair dismissal (see Hutchinson v Cable Sands (WA) Pty Ltd (FB)(op cit)).

48             This appointment was an appointment for one year, subject to the satisfactory completion of a probationary period (see page 346(AB)) and accordingly, for the employment to come to an end, dismissal was necessary (see Hutchinson v Cable Sands (WA) Pty Ltd (FB)(op cit) at page 952 and the cases cited therein).

49             Again, the following principles apply:-

(a) The employer, throughout the period of probation, retains the right to see whether he/she wants the employee or not in his/her employment.

 (b) (i) The employer is entitled to consider the employee as if the employee was still at first interview with the following modifications in this case.

  (ii) There was an identifiable contract of employment for a period, indeed, a fixed term, including a period of probation of three months.  This advances the matter beyond a notional first interview situation.

 (c) Probation is an extension of the selection process, a period of learning and a time for attention, assessment and adjustment to standards of performance and conduct.  (Inherent in that is that it is a time for teaching, training and counselling.)

 (d) (i) However, a probationary employee knows that he/she is on trial and that he/she must establish his/her suitability for the post.  The employer, on his side, must give the employee a proper opportunity to prove him/herself, but he/she reserves the right to determine the employment with appropriate notice provided he has reason for so doing (see Sommerville v Brinzz Pty Ltd Clerk Vehicle Repair Industry [1994] SAIRComm 8 (31 January 1994), citing Re J M Hamblin v London Borough of Ealing (1975) IRLR 354 and see Hutchinson v Cable Sands (WA) Pty Ltd (FB)(op cit)).

  (ii) Further, an employee on probation can expect to be counselled and informed that she/he is not meeting the required standards of performance, to be given reasonable training in this respect, and to be warned of the possible consequences of a failure to improve.  Provided this is done, an employee who is on probation would have little cause to complain if a decision was taken during the course of or at the end of a probationary period to terminate the employment (see Sommerville v Brinzz Clerk Vehicle Repair Industry (op cit), citing Hull v F F Seeley Nominees Pty Ltd (1988) 55 SAIR 550 at 562).

 (e) (i) Consonant with those principles, a probationary employee is able to seek reinstatement, but an employer is entitled to terminate a probationary employee more easily, e.g length of service is not a factor generally, because probationary employment is for a finite period and, in that period, assessment, training and acquisition of skills and demonstration of ability can occur.  In addition, any genuine question of compatibility between employer, employee and other employees can be assessed.  (This is not a comprehensive inventory of such matters.)

  (ii) However, probation is not a licence for harsh, oppressive, capricious, arbitrary or unfair treatment of a probationer (see Hutchinson v Cable Sands (WA) Pty Ltd (FB)(op cit) and the cases cited therein).

Was Ms Darling on Probation?

Ground 1

50             First, it must be observed that Ms Darling had entered into a contract of employment which involved an initial period of service as a probationer for three months, as part of a fixed term employment for twelve months.

51             One first goes to the written contract of employment which Ms Darling entered into with the appellant (see pages 344-360(AB)).

52             Further, the letter signed by the appellant’s Administrator and dated 23 December 1997, Ms Joyce Trust, to Ms Darling advises her that she will be employed as the Public Health Programs Co-ordinator under a contract (see page 341(AB)).  The contract of employment was signed on behalf of the appellant and Ms Darling on 12 January 1998, the day when she commenced employment.

53             Of course, the provisions of the Federal Act do not apply.  The term of the contract was for one year (see page 346(AB)).

54             By this ground, it was alleged that the learned Commissioner erred in law and fact in finding that the probationary period had not continued until the time of Ms Darling’s dismissal.  The Commissioner correctly found that she commenced her employment on 12 January 1998 and that her employment ceased on 28 April 1998.

55             He therefore found that the probationary period had expired and Ms Darling was no longer a probationary employee at the date of dismissal.

56             The Commissioner found that the obligation was to inform her of performance issues during her period of employment and, further, to inform her of the cessation of her employment contract prior to the expiration of the three month probationary period, which he correctly found was not done.

57             He also found that the appellant raised a number of allegations as to Ms Darling’s conduct, but he was not satisfied that these matters merited dismissal.  It was plain, on Ms Trust’s evidence, that she had not discussed with Ms Darling her performance with regard to cultural sensitivities.

58             The appellant asserts that this finding was in error, having been made without having proper regard to the appellant’s advice to Ms Darling that the issue of her tenure would be discussed at the next committee meeting, and because the Commissioner adopted a narrow technical view of the nature of her employment which was at odds with s.26 of the Act.

59             It was at odds with s.26 of the Act because the Commissioner, it was submitted, did not act according to equity, good conscience and the substantial merits of the case.

60             What the Commissioner was entitled to find was as follows:-

(a) That there was a written prescription for a probation period in the contract of employment.

 (b) (i) By the contract, Clause 1 (see supra), the employee was engaged for an initial period of three months.  The provision clearly prescribes that “after this probationary period the work practices and attitudes of the employee will be evaluated in accordance with the criteria set out in Schedule Three to this agreement”.

  (ii) That clause provides, too, that the employer reserves the right to terminate the employment of the employee “at that time”, i.e. after the probationary period, and, after the evaluation.

  (iii) It follows that, on a fair reading of that clause that, for the purposes of and during the process of evaluation, the employee remains an employee until the employment is terminated.  That is because the right to terminate existed and was prescribed to exist at that time, that is, after the probationary period has expired and after the evaluation process has been completed.  There was not a right to terminate (except for misconduct) until after the evaluation process had been completed.

  (iv) Implicit in that is that the employee remains and remained, in this case, an employee until the right to terminate is exercised.

 (c) Accordingly, Ms Darling remained an employee until the right to terminate was exercised in accordance with the relevant clause, “after this probationary period”, and after the evaluation of work practices and attitudes.

 (d) It follows, further, that there was a right to terminate vested in the appellant by the contract of employment, at the time when the right was purported to be exercised.  (It is unnecessary to consider the effect of s.26 of the Act because the contract provided for that right, on a fair reading.)

  It really matters not that the dismissal occurred at the conclusion of the probation period.  There was an existing contract which was terminated.  Ground 1, even if made out, could not, therefore, determine the appeal or be fatal to the decision at first instance upon appeal.

S.26(3) of the Act

61             As to s.26(3) of the Act, it is alleged, by that ground, that the Commissioner at first instance erred in deciding the matter before him by failing to notify the parties and affording them the opportunity of being heard, in relation to the Commission taking into its account its view that Ms Darling was not a probationary employee when that matter was not raised before it on the hearing.

62             Further, it was submitted that the case at first instance was run on the basis that Ms Darling was a probationary employee whose employment was terminated at the end of her probationary period.

63             Accordingly, so the submission went, the probationary period had expired and Ms Darling was no longer a probationary employee at the date of termination and to so find, without giving a right to be heard, was in direct contravention of s.26(3) of the Act.

64             In reply, Mr Dzieciol, for the respondent, submitted that this error had only a minimal, if any, effect on the fairness and reasonableness of the conclusion which the Commissioner reached and the point was not really pressed by Mr Randles for the appellant.  It is not necessary to decide that point, because, in fact, the finding was erroneous.  Ms Darling was a probationary employee at the time of the dismissal or, if she was not, she was an employee employed on a collateral contract on an agreed extension of her employment.

65             Further, it is not at all material to the merit or otherwise of the ultimate finding that she was a probationary employee or not, because the question was whether her conduct and, indeed, her attitudes warranted dismissal, which is what the Commissioner ultimately and correctly decided, she having been dismissed.

66             Most cogently, the case was, as Mr Dzieciol submitted, run on the issue of her being subject to probationary employment which was based on the meaning of her contract of employment.

Ground 2

67             By Ground 2, it is alleged that the Commissioner failed to have regard to and to apply established case law principles to the probationary nature of Ms Darling’s employment in assessing the overall fairness of her termination.  We should add that, in our opinion, the submissions as to this ground went beyond the ground and canvassed the merits of the decision.  However, we will deal with the submissions.

68             The principles which we apply are those set out above which are those expressed by the majority in Hutchinson v Cable Sands (WA) Pty Ltd (FB) (op cit).  True it is that probationary employment is but a step in a selection process.  True it is, too, that the appellant reserved to itself, by the written contract of employment, the right to terminate the employment of the employee after the expiration of the probationary period, should the employer judge that the work practices of the employee are not in keeping with the general philosophy or needs of the appellant corporation.

69             The question, therefore, is whether the right to dismiss was availed of and used harshly, oppressively or unfairly (see Miles and Others t/a Undercliffe Nursing Home v FMWU 65 WAIG 385 (IAC)).

70             Ms Darling’s employment was terminated.  She was dismissed.  She had a right to claim that she was unfairly dismissed.  It matters not that she was a probationary employee or not.  The Commission deals with the complaint pursuant to the principles in Miles and Others t/a Undercliffe Nursing Home v FMWU (IAC)(op cit), and, if there has been a harsh, oppressive or unfair dismissal, the Commission will remedy the situation (see also in Hutchinson v Cable Sands (WA) Pty Ltd (FB)(op cit) per Sharkey P and Coleman CC at page 953).

71             Any right to subjective consideration, conferred by the contract or otherwise, cannot act as a cloak for unfairness.

72             True, in the circumstances of a termination during a probationary period, an employer does not have to take into account the range of factors which may impinge upon the decision when the appointment is not one of a probationer.  However, as here, where the appointment itself imposes an obligation to review, and that imputes procedural fairness, then the termination risks being considered unfair if an objective assessment of performance is not properly undertaken.

73             It would, of course, be manifestly unfair if a probationer, objectively viewed, had satisfactorily completed her/his term of probation and even then dismissed unfairly, arbitrarily or for no good or valid reason; or she/he had not been allowed to complete it, or was prevented unfairly from completing it.  As a matter of industrial fairness, a person who has demonstrated, objectively viewed, all the qualities and abilities fairly fit her/him, approved on probation, should be said to have passed probation.

74             Further, the principles of procedural fairness are applicable to the termination of services of a probationer (see O’Rourke v Miller (1985) 156 CLR 342).  We do not see that, because the mechanism for dismissal in that case was the regulations relating to police officers, that that case is in substance distinguishable form this on that point.  In any event, probationer or not, those principles apply to where a dismissal occurs (see Shire of Esperance v Mouritz 71 WAIG 891 (IAC)).

75             Natural justice or procedural fairness is also required to be afforded where the probationer’s appointment is expressed to be terminated for misconduct (see R v Police Commissioner; Ex parte Parker (1986) 18 IR 13).

76             It is not correct to say that the interests of a probationer are indistinguishable from the interests of an applicant for a job.  A probationer has a contract of employment, one condition of which is that his/her appointment will not be annulled unless and until the procedure prescribed has been followed.  In this case, the evaluation itself was required to be fair.  An employer is required to be good to her/his employees (see Chief Executive Officer, Department of Education Services v CSA (unreported) (No 716 of 1999) delivered 6 July 2000 (FB) and the cases cited therein).

77             Further, an unfair evaluation leading to a dismissal renders the dismissal unfair.

78             It was submitted that it was accepted by the appellant, as it was in formal submissions, that intervention by the Commission might be warranted if the probationer was given neither warnings or counselling.

79             It was, however, open to the Commissioner to find that the dismissal of Ms Darling was unfair, whether she was on probation or not, because the appellant had not provided Ms Darling with the required training and/or criticism relating to the standards of performance and conduct which were expected of her in the role in which she had been employed, particularly when it was considered by the employer at the outset that cultural sensitivity skills were necessary.  (That, in the case of probationary employees, but not confined to them, is contrary to the principles to which we have referred to above.)

80             The evidence before the Commissioner as to the issues of cultural sensitivity and bi-cultural communication was that these issues had been raised with Ms Darling by the appellant in relation to the “Judy Shadforth incident”.  This occurred early on in Ms Darling’s employment, indeed in the first three weeks, approximately, of her employment, and the matter was never raised again.

81             The Commissioner correctly found that the evidence showed that there had been no repeat of this type of conduct at any other time after she had been counselled concerning the Shadforth incident.  There was ample evidence from Mr Baird, Ms Trust, Ms Pregelj as to the acceptance of Ms Shadforth’s inability to accept direction or discipline and her major culpability in the matter.

82             Whilst Ms Darling said that the incident with Ms Shadforth could have been handled better, it is not easy to see how that could have been.  Certainly, as a matter of cultural sensitivity and, indeed, of ordinary discretion, where counselling or firm direction is necessary, it may be necessary that this occur in private.  However, in this case, as Ms Darling said in evidence and as the other evidence reveals, Ms Shadforth was not a person who was readily communicable with.  She had, that day, as seems to have been admitted, acted in a not dissimilar manner toward Ms Clay, another superior, and had been openly and defiantly insubordinate.  The better view, on all of the evidence, was that Ms Shadforth, who was not amenable to discipline and direction, was not receptive to counselling in private or at all.  Even if that were not so, there was no repeat of Ms Darling’s alleged error.

83             Indeed, it might be thought that Ms Darling’s conduct did not warrant the formal recording of the necessity for a warning or, indeed, a warning.

84             Ms Darling’s actual cultural sensitivity and ability to communicate with Aboriginal persons, who constituted 70% of the persons with whom she was required to communicate, should also be put in the context of the evidence of Ms Pregelj and Ms Trust (who are Aboriginal persons) that there were no other complaints about Ms Darling’s conduct, and that Ms Darling seemed to be able to communicate properly with Aboriginal persons.  That was also consistent with Ms Darling’s experience, particularly in a remote community, of three years of serving an Aboriginal community.

85             The Commissioner correctly found (see page 11(AB)) that no fault could be attributed to Ms Darling concerning the Shadforth incident.

86             As to the incident involving Ms Joan Seaton, the Commissioner correctly found that this conduct did not impact on Ms Darling’s ability to carry out her duties (see page 11(AB)).  The Commissioner correctly found that substantial weight had been placed on those incidents in reviewing Ms Darling’s probationary employment and in making the decision to terminate her employment.  It was weight which should not have been placed on them, for the reasons which we have expressed, and because of her subsequent history.

87             There was no evidence of any other incident which might form the basis of dissatisfaction with her work (see the evidence of Ms Trust).  Ms Trust, the Administrator of EKAMS, also gave evidence that she considered that Ms Darling would not have had any reason to be concerned about her position when she went for her review (see page 296(AB)).  Implicit in that was that a view was that she was worthy of continued employment.  Ms Pregelj, the Senior Aboriginal Health Worker, gave evidence that the staff were surprised when Ms Darling was dismissed (see pages 199-200(AB)).

88             There was no evidence that she received any warning or counselling after the “Shadforth” incident or was there any evidence that it was necessary.  Indeed, the evidence leads to the inference that it was not.  She did receive insufficient counselling and training and it was open to the Commissioner to so find.  Indeed, she received none after the initial stages of probation.

89             It is not necessary to decide the following because we are not certain that it was directly before the Full Bench.  However, the respondent was bound to provide procedural fairness.  That Ms Darling was not apprised that there was a recommendation that she be dismissed and the reasons therefor before the committee, not given an opportunity to be heard in her defence and to know the precise complaints about her performance, contributed to a clear denial of procedural fairness.

90             It is not sufficient to say that she could have pursued that herself.  She had no notice of what was occurring and, on her evidence, was subject to a chain of command which set her at a distance from the committee.  She had received no warning or counselling, no indication that her performance was defective, no counselling from the administrator, Ms Trust, in particular.  She was unaware of applicable criteria too, because she never saw Schedule 3 to the contract.  She understandably did not fear for her future.

91             It was open to the Commissioner to so find and to find that that alone constituted unfairness.

92             The assessment as to Ms Darling’s alleged deficiencies in the most important areas of cultural sensitivity and her cultural communication was said by the committee, as we understand it, to emanate from certain answers which she gave to questions framed by the committee and put to her.  While probationary employment is part of the selection process, it was wrong to treat the review as an initial interview, as appears to have been done.  The appraisals of her in the workplace made no mention of this.  There was also reference to the two earlier incidents which we have already commented on.  One would have expected those appraising Ms Darling’s performances, if she were deficient in such important areas, to say so.  They did not.

93             The Commissioner did not fail, as alleged by Ground 2, to have regard to and to apply established case law principles to the probationary nature of Ms Darling’s employment in assessing the overall fairness of her termination.  Indeed, he did apply the law.

94             In the face of the nature of the “Shadforth” and “Seaton” incidents, as the Commissioner found and as we have characterised them on the evidence, the lack of warning, counselling or training, no justified complaint subsequent to the incidents, the favourable appraisals and the favourable comments of Ms Pregelj and Ms Trust, to form the view in relation to an answer or two that Ms Darling lacked a clear understanding of Aboriginal culture and did not possess the bi-cultural communication skills required for the position, was not at all justified.  For all of those reasons, the Commissioner was entitled to find that the dismissal was unfair.

95             Insofar as Ground 2 was extended to his consideration of the merits, and his findings on the evidence and as to harshness, oppressiveness and unfairness, there was, for the reasons which we have expressed, no error.

Grounds 3 and 4

96             By these grounds, it is alleged that the Commissioner gave insufficient reasons how he assessed the compensation which he determined should be awarded to Ms Darling.  It is, however, possible to infer that the Commissioner arrived at the following conclusions:-

(a) That Ms Darling had been unemployed from the date of her dismissal on 28 April 1998 up until the conclusion of the hearing on 22 December 1998, a period of nearly eight months.

 (b) That had she not been unfairly dismissed, her employment would have continued for a further nine months as her contract was for an initial twelve months.

 (c) Her overall loss was for a period of nine months approximately, capped at six months.

 (d) She was unable to work for some time in September 1998 because she underwent surgery and the actual time is not clear.  She did obtain work at a hospital during the course of the hearing at first instance.  She gave evidence of these matters.  The question of mitigation was not raised at first instance on behalf of the appellant.  The principles as to mitigation are laid down in Growers Market Butchers v Backman 79 WAIG 1313 (FB).

 (e) It was right for the Commissioner to award compensation on that basis because:-

  (i) The Commissioner found a loss which was established.

  (ii) The Commissioner then assessed compensation for that loss.

  (iii) The compensation was capped at the statutory maximum as was required.

97             There were sufficient reasons given for that decision.  We are not satisfied that there was an error in the assessment of compensation or the manner of the assessment.

CONCLUSION

98             For all of those reasons, no ground of appeal was made out.  There was no error established in the exercise of the discretion.  It was not apparent, from the transcript, that Ms Darling, insofar as it was necessary, should not be regarded as a credible witness.  Indeed, it was clear that she should.  Further, she was corroborated by other witnesses in significant parts of her evidence.  The Commissioner did not misuse his advantage.

99             For those reasons, we would dismiss the appeal.

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES EAST KIMBERLEY ABORIGINAL MEDICAL SERVICE V THE AUSTRALIAN NURSING FEDERATION, INDUSTRIAL UNION OF WORKERS PERTH

HEARD FULL BENCH

    HON PRESIDENT PJ SHARKEY

    COMMISSIONER WS COLEMAN

    COMMISSIONER PE SCOTT

DELIVERED  FRIDAY, 14 JULY 2000

FILE NO/S  FBA 16/2000 

______________________________________________________________________

Decision   Appeal dismissed

Representation

Appellant  Mr A J Randles (of Counsel), by leave

Respondent  Mr A M Dzieciol, as agent

________________________________________________________________
 

ORDER

This matter having come on for hearing before the Full Bench on the 24th day of May 2000, and having heard Mr A J Randles, (of Counsel), by leave, on behalf of the appellant and Mr A M Dzieciol, as agent, on behalf of the respondent, and the Full Bench having reserved its decision on the matter, and reasons for decision being delivered on the 14th day of July 2000 wherein it was found that the appeal should be dismissed, it is this day, the 14th day of July 2000, ordered that appeal No FBA 16 of 2000 be and is hereby dismissed.

      By the Full Bench

          PRESIDENT