100420854

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES MR S MAY T/A LITTLE MUPPETS CHILD CARE CENTRE

APPELLANT

 -and-

 MS CARA HEDLEY

RESPONDENT

CORAM FULL BENCH

  HIS HONOUR THE PRESIDENT P J SHARKEY

  CHIEF COMMISSIONER W S COLEMAN

  COMMISSIONER J H SMITH

DELIVERED FRIDAY, 6 FEBRUARY 2004

FILE NO/S FBA 36 OF 2003

CITATION NO. 2004 WAIRC 10651

_______________________________________________________________________________

Catchwords  Industrial Law (WA) – Claim for unfair dismissal granted – Appeal to the Full Bench – Meaning of probationary employment – Issue of whether probation part of the contract of employment – Commission preferred evidence of applicant at first instance – Question of credibility – No error at first instance – Appeal dismissed – Industrial Relations Act 1979 (as amended), s29(1)(b)(i), s49 – Workplace Relations Act 1996, s500(1) – Children’s Services (Private) Award No A 10 of 1990

Decision  Appeal dismissed

Appearances

Appellant   Mr S G May, on his own behalf

Respondent   Ms C S Hedley, on her own behalf

_______________________________________________________________________________

Reasons for Decision

THE PRESIDENT:

INTRODUCTION

1          This is an appeal by the above-named appellant against the decision of the Commission at first instance, constituted by a single Commissioner, and given on 30 September 2003 in matter No 580 of 2003.

2          The appeal is brought pursuant to s49 of the Industrial Relations Act 1979 (as amended) (hereinafter called “the Act”).

Decision

3          The decision is in the following terms, formal parts omitted:-

 “(1) DECLARES that the applicant, Cara Samantha Hedley, was harshly and unfairly dismissed by the respondent on the 18th day of April 2003;

(2)               DECLARES that reinstatement is impracticable;

(3)               ORDERS that the respondent do hereby pay within 7 days of this order, as and by way of compensation the amount of $1,680.42 to Cara Samantha Hedley, less any taxation that may be payable to the Commissioner of Taxation.”

Grounds of Appeal

4          The grounds of appeal can be summarised as follows:-

5          The Commissioner at first instance erred in his findings as to the terms of the contract of employment.  In particular the complaint is that:-

(a)          The contract of employment included a term which meant that the respondent was on probation.

(b)          The employment was not continuing but limited.

(c)          The Commissioner’s exercise of his discretion miscarried.

(d)          That there were a number of errors in fact finding, particularly those relying on the credibility of witnesses.

(e)          That the appellant was denied natural justice or procedural fairness and that the Commissioner was not impartial.

(f)           That the Commissioner failed to take into account the appellant’s rights to “restructure his business”.

(g)          That the Commissioner made errors in the calculation of the amount ordered to be paid for compensation.

BACKGROUND

6          The respondent, Ms Cara Samantha Hedley, incorrectly referred to in the papers as Ms Cara Hedley (hereinafter called “Ms Hedley”), made application to the Commission, filed pursuant to s29(1)(b)(i) of the Act on 8 May 2003, claiming that she was unfairly dismissed by the appellant and also claiming compensation.  She did not claim reinstatement.  She claimed an amount equal to the loss of income incurred by her in her new employment for the duration of the six month term which was entered into with the appellant (hereinafter called “Mr May”).

7          Ms Hedley was employed as a day care worker at the appellant’s child care centre “Little Muppets Child Care Centre”, from 17 March 2003 until 18 April 2003.

8          Previous to that time, during 2001, before her son was born, she had worked for the appellant for almost a year.  She left work on 7 August 2002 to have her son, and when he was about four and a half months old, she sought work again with the appellant because she knew from Ms Janet Turner who was “non-contact” co-ordinator with administrative duties and Ms Susan Boardman who was “contact” co-ordinator with administrative duties, employed by Mr May, that there was a job available.  When she returned to work for the appellant, she did relief work.

9          Then she was offered a contract of employment in writing which she accepted and which, in its material parts, reads as follows:-

“CONTRACT OF EMPLOYMENT

BETWEEN :  LITTLE MUPPETS CHILD CARE CENTRE

AND : Cara Hedley

The Position : Child Care Giver

Pay Grade :  $12.38c per hr.

Date of Commencement  :  17th March 2003

Hours : to be flexible/part-time to fit the operations of the centre, but based on 5.5 hrs per day.

Contract Period : this is a fixed term 6 month contract

Salary : All normal and statutory benefits of employment will apply during this period.

Conditions of Employment are as per the Staff Handbook, a copy of which is attached.”

10       The agreement was signed by both parties on 17 March 2003 (see page 30 of the appeal book (hereinafter referred to as “AB”)).

11       Questions arose in the Commission at first instance about whether the staff handbook formed part of the contract of employment.  Ms Hedley said in evidence that she was not given the staff handbook at the time of her engagement, however she did, she said, have a copy of the staff handbook from her previous time of employment.  She also said that she knew the basic outlines of the handbook.  It was not the evidence that the handbook was attached to the written contract of employment, despite the fact that the contract asserts the contrary.

12       Mr May, both at first instance, and on appeal, relied on the probation clause in the staff handbook (exhibit R1 and pages 31-34 (AB)), asserting that such clause was part of the contract of employment.  That clause (see page 33 (AB)) reads as follows:-

“PROBATION.

All staff must complete one months probation.  A three month contract of employment will be required prior to permanent employment being offered.  These periods may be extended by mutual consent if it is felt necessary.  All normal staff benefits apply during this period.”

13       On 11 April 2003, what occurred, following the oral dismissal of Ms Hedley on 10 April 2003, was not in dispute.  Mr May handed to Ms Hedley a letter terminating her employment.  The letter was dated the same date, and, formal parts omitted, reads as follows (see page 35 AB)):-

“Re:  Termination of Employment

As discussed with you yesterday, due to restructuring of staffing requirements and procedures the position you are holding at the centre is no longer available.

I therefore give you formal advice of your one weeks notice.  I will waive the requirement for you to work out your notice and will if you wish, place you on our relief list should other part-time work become available.

As a gesture I will also waive your notice period/fees for Drew who attends in the baby room.

I thank you for your assistance in this matter.”

14       I now turn to the evidence.  There was documentary evidence tendered on behalf of both sides.  There was oral evidence given by Ms Hedley for herself and oral evidence given on behalf of the appellant by Mr May at first instance, as well as by Mrs Carol May, his wife, and Ms Turner and Ms Boardman.

Ms Cara Samantha Hedley’s Evidence

15       Her evidence was that on 17 March 2003, Mr May offered her five and a half hours per day, five days a week, Monday to Friday, on a six month fixed term contract.  She said that she was very pleased with this because it gave her time to spend with her baby.

16       Mr May also asked her to be “flexible” which was not, she said, a problem.  She was not spoken to about her performance whilst she was employed, she said.  She also said in evidence in chief that at no time was she offered a full-time job by Mr May.  She also said that Mr May and employees held regular meetings at work to ensure that the centre operated well, but that they did not talk about anything different only what hours needed to be covered.  Ms Hedley offered to do extra hours, she said.

17       It was common ground that during the four weeks when Ms Hedley worked for the appellant this second time she worked successively 31.5 hours, 27.5 hours, 37.5 hours, and 30.5 hours respectively.

18       Ms Hedley’s evidence was, also, that on 10 April 2003, Mr May called her into the office and advised her that he did not need her any longer, that it was too expensive to employ her, and that in her place he could employ two juniors.  He said that he did not require her in a part-time capacity anymore.  Ms Hedley said that she told him that she would do extra hours, but that that offer was rejected.  She offered to work longer hours three days per week, but this offer was not accepted.  She asked for two weeks notice, to which he agreed, but she was subsequently paid one week’s pay in lieu of notice.  She was not paid any annual leave entitlement.  She said in evidence that she thought that she was unfairly dismissed because Mr May claimed that staff restructure was the reason for the dismissal, but that he immediately employed a junior staff member in a similar position (see page 7 of the transcript at first instance (hereinafter referred to as “TFI”)).

19       At the time when this application was heard, namely 4 September 2003, Ms Hedley was working at a child care centre in Carramar, named “Junior Junction”, as a qualified care giver seven and a half hours a day, two days a week.  She started there on relief a couple of weeks after she was dismissed by Mr May.  Then, about a month later, she obtained a permanent position two days a week and was also called in for relief every now and again.  She was then earning $264.55 per week net.  (She produced a number of payslips).  She said that she was “still down on the salary” which she would have earned with Mr May.  The difference in amount was $1,912.71 which she claimed (see exhibit A2).

20       In cross-examination, inter alia, she gave evidence that she filled in for a co-worker, one Jennifer, who was on maternity leave.  Ms Hedley also said that she was given a six month contract because Mr May said that he wanted to see “how it went”.

21       She reiterated that she offered to work as many hours as were required to be worked but that Mr May rejected this offer.  Ms Hedley denied that she was offered a full-time position at any time and said in cross-examination that she did not know why Mr May would not have given her a full-time job.  She expressly denied that such an offer was made to her on 14 March 2003.  The contract was for six months for a part-time position of 5.5 hours per day, she said. 

22       She denied that there was any mention of a probationary period on 14 March 2003 during the discussion with Mr May, but did admit that there was a probationary period referred to in the staff handbook.  Ms Hedley also gave evidence that, during her employment by the appellant, staff were overstretched and the child-care centre was understaffed.  Ms Hedley said, too, that she offered, in discussion with Mr May, to work 7.5 hours a day for three days a week.  She said that he rejected this offer.  She said that she was offered relief work after her dismissal and agreed to accept some, but she did not receive any.  She did not, nor was she required to work out her notice.  Ms Hedley said she was not aware of receiving any holiday pay at all on her last payslip.  I should add that, on appeal, Ms Hedley readily admitted that she had received her holiday pay.  During cross-examination of Ms Hedley, Mr May sought to have proceedings “delayed” at first instance because the wages file was not with him, he having left it behind and it would take an hour for it to be brought into him.  However, the Commissioner required him to put his questions at the time.

23       Ms Hedley also said that she was unaware that she was on relief work when she worked from 14 March to 18 March 2003.  She reiterated that she was offered a six month contract.  She took it.  She said that she did not query why she was given a six month contract, she was just happy to have a job.  Ms Hedley said that Mr May called her into the office on the Thursday before her dismissal and told her that he did not think the hours which she was doing, worked.  She said that she offered to do extra hours and Mr May said “No”.  She said that he said that he was going to replace her with two juniors.  She said also that she offered to do as many hours as he needed and he said “No”.

24       Ms Hedley was not shaken in her evidence that Mr May at no time offered her full-time employment.  She admitted earning $359.55 per week, for two working days.  She said that because she had worked for him before she did not have a probationary period.  She said that she did not know that the contract was a six month contract extended from three months.  She said that Mr May and she agreed on a six month contract, and she signed a six month contract.  She reiterated that she was employed for six months for five and a half hours per day.  She agreed that the centre was overstretched and understaffed.  She denied being stressed out when she worked five full days in the third week of her employment.  She said that she was contracted to five and a half hours a day and that is what she wanted to work.

25       Ms Hedley said also that she wished to work according to her contract which is why she did not work full-time for a second week.  She said also that another employee, Ms Turner, suggested that they job-share.

26       Mr May, she said, came in and told her on the day before her dismissal, namely 10 April 2003, that part-time work was not working and she offered to do full-time work and he said “No”.  She said that no full-time work was mentioned other than that.  Next day she, Ms Hedley, had a discussion with Mr May’s wife, Mrs Carol May, and suggested that she might be able to do relief work.  She said “Yes”, but nothing came of it.

Mr May’s Evidence

27       Mr May’s evidence was that Ms Hedley was well aware that the part-time position which she accepted was “to be tried for a month as her probationary period and that a decision would be made on the success or failure of it during the period of this month”.  He also said in evidence in chief, that the one month probationary period had not been completed before her employment was terminated (page 32 (TFI)) and that she had not therefore entered the six months contract.  He said that it was “expressly understood” that a probationary period applied.  He further said that he was entitled under the Act to “terminate” an employee’s position where the operation of the business has been jeopardised, “should I fail to restructure either the work practice, the positions, or working hours of staff members.  And this is what I did” (page 32 (TFI)).

28       Mr May said, too, in the evidence in chief that it was a condition of Ms Hedley’s employment that the probationary period applied even though “… she did work for me adequately the previous … the previous year and I had no complaints about her at all, things do change and people change as well.  As it was, I didn’t believe that she had changed at all.  I believe that she … she carried out other work to the best of her ability.  So I didn’t have a serious query on that, but nevertheless, it is a condition of our employment that they undergo this one month’s probation”.  He then read a statement of evidence in the course of which he said that Ms Hedley worked on 10 March 2003 to 14 March 2003 and said that if the job required it she would work full-time.  He said that on 14 March 2003, in the presence of his wife, he explained that the position would operate for a probationary period, and “we would see how it went”. He said that he told her that he would only be prepared to employ her on a part-time basis for six months, since he would then need a full-time staff member then to take over the position of his other qualified member when she took maternity leave.

29       He said that Ms Hedley was employed as an unqualified worker.  The part-time position would not be extended into permanent employment.  He described the contract as a “fixed term six month contract” which replaced the fixed term three month contract described in the paragraph headed “probation” in the handbook.  He said that it was agreed between Ms Hedley and his senior staff and between Ms Hedley and himself that, if the months probation did not provide the same level of service for children and parents or if it was stressful for other staff members, she would work full-time.  He gave evidence that staff were overstretched and that there were numerous complaints about service.  He went on to say that on the Monday of the final week of her employment “there was a common agreement” that the centre was operating badly and that the part-time position “had failed”.  He also said that Ms Hedley informed the co-ordinators that her earlier undertaking to work full-time would be broken, because the pressure of long days had been too much.  He said that she suggested either job share or another part-time staff member be employed just to work afternoons, but, as he said, he was not at all enthusiastic.  He told the staff, he said, that he would look at the options and they could look at theirs, and that, in the meantime, they should do their best.  Ms Hedley worked an extra half hour each day that week.  On the Thursday morning (one infers before she was dismissed) two staff were off sick and the children were suffering from stress due to the constant changing of shifts.  He said that, as far as he was concerned, and the staff in consensus were, they should return to “a full-time policy”.  He asked Ms Hedley into his office and asked if she would take a full-time position, which, to his surprise, he said, she declined.  He said also that she was fully aware of everything that had happened over the previous weeks and knew that he had no choice in the matter.

30      The following week Mr May placed an existing staff member in Ms Hedley’s position on a full-time basis.  He did not say whether this position was “junior” or not.  This person was a trainee, however, as he said in evidence.  Mr May did not by implication admit replacing or intending to replace her with two juniors, on that evidence.  He was cross-examined. 

31      Mr May said in answer to the Commissioner that the question of probation was raised with Ms Hedley in the presence of his wife on the Friday morning before Ms Hedley was offered the part-time position for six months and before she signed the contract on the following Monday.  He believed that another staff member was probably present.  He did not identify that person.  He said that the question of a probationary period of one month was discussed prior to “the formalities” of the agreement with Ms Hedley with Ms Turner and Ms Boardman.  He did not raise this matter in his answer and counter proposal he agreed.

32       The situation did not work out, Mr May said, and staff could not stretch themselves anymore to cover the afternoon period each day at the centre.  He also said in evidence that he asked Ms Hedley to work three full days and that this request was rejected.  Mr May said that he had waived the outstanding child care fees for the care of Ms Hedley’s child, amounting to $370.00.  He therefore paid her one week’s pay in lieu of notice he said.  There was no provision for notice in the handbook, but there is in the Children’s Services (Private) Award No A 10 of 1990 (hereinafter called “the award”).

33       Mr May did refer to the probationary period being mentioned on 14 March 2003 to Ms Hedley.  He also said that, during the third week, she worked full-time but it was too much for her.  Mr May’s evidence was that Ms Hedley’s earlier undertaking to work full-time was broken arose because the long days were too much for her.  Ms Hedley, he said, had a sick child, the stress of work and her financial situation and all of this was placing too much stress on her. 

Ms Janet Turner’s Evidence

34       Ms Janet Turner, a non-contact co-ordinator with administrative duties who had been employed by the appellant for nine years gave evidence.  She said that the full-time work in the third week was better for the centre, but Ms Hedley found this “hard work”, Ms Turner opined.  She said that Ms Hedley knew that she was needed for full-time work.  Ms Turner also said that she suggested a job sharing arrangement for Ms Hedley but this was not feasible.  Mr May however, said, in evidence, that that was one of two suggestions put to him by Ms Hedley which he rejected; the other being that he engage another part-time employee.  Ms Turner described Ms Hedley as a good worker and said that they felt that employing someone they knew would work rather than having to go looking for somebody else.  Ms Turner said that they were going to give it a try and see how it would work.  She did not give evidence that the words “probationary period” were mentioned (see page 42 (TFI)).  She said that “it could have changed to maybe needing full-time sooner, later”.  “It might not have worked at all … for both people”, she said.  The problem, Ms Turner said, was how to fill in at the end of the day after Ms Hedley left.  All of the staff, she said, were trying to make it work.  The week when Ms Hedley worked full-time was better for the centre because she was there all day, Ms Turner said.  Ms Turner told Ms Hedley that she would get her hours down because Ms Hedley looked tired.  She said that Ms Hedley knew that the pressure was coming on to them to do full-time work.  They had discussions, in that context, in the course of which Ms Hedley told her that she wanted to work part-time.  They discussed job sharing, but Ms Turner said it was not feasible.  Ms Hedley was offered relief work, Ms Turner said.

35       In cross-examination, Ms Turner said that she could not remember Mr May mentioning that he was looking for another junior.  She was taken aback when Ms Hedley told her that she had lost her job, although Ms Turner said that she knew that the situation was not working.

Ms Susan Boardman’s Evidence

36       Ms Boardman said that Ms Hedley was offered a part-time position, but said that she told her that she would work full-time if required.  Ms Boardman had worked for 30 years almost in the child care industry and was also a co-ordinator with administrative duties employed by the appellant.  She went on to say that another staff member was leaving and this occurred when Ms Hedley told them that she would like to work part-time only, but that if she needed to she would work full-time.  Ms Boardman said that her employment was to be on a trial basis.  Ms Boardman said that, as far as she knew, Ms Hedley was aware that there was a probationary period.  She said that they knew Ms Hedley really well, but that Ms Hedley found the week during which she worked full-time very tiring and very stressful.  During the following week, which I understand to be the final week of her employment, there were several meetings about the problems caused by lack of staffing and the complaints from parents.  Ms Boardman said that “we’d” come to the conclusion that part-time was not going to work and that the only alternative might be therefore to put on another person in a part-time position, but that the ideal would be to have a full-time person (see page 49(a) (TFI)).  She was not surprised, she said, when Ms Hedley declined the full-time position.  Ms Boardman was not cross-examined, however.  She informed the Commissioner at first instance that she had not discussed the terms and conditions of Ms Hedley’s employment with her.  Ms Boardman said that Ms Hedley had told her that she had discussed the matter with Mr May and that they were going to try the part-time situation and see what happened.  They were going to try it and then it was for six months until the other staff member was going off to have a baby.

37       There were no discussions by her with Ms Hedley about probation, she admitted.  Ms Hedley told her about her dismissal.  Ms Boardman said that Ms Hedley said that Mr May had offered her a full-time position and that she had offered to do three days a week and he had said “No”.  Ms Boardman said that Ms Hedley was very upset about it.  Mr May told her that he had terminated Ms Hedley’s employment, Ms Boardman said.  Mr May asked her to ask if Ms Hedley would do relief work.  Ms Boardman mentioned it and Ms Hedley seemed happy to do it, she said in evidence.  However, she did not do any relief work.

Mrs Carol May’s Evidence

38       Mrs Carol May, the wife of the appellant, gave evidence of her work as a part-time administrator for the appellant.  She said that on 14 March 2003 Mr May told Ms Hedley that it was a trial thing and they would see how it would work.  She then went on to say when prompted that the word “probation” was used.  She said that she was in and out of the office while this discussion was occurring.  She also said that, the next morning after the dismissal of Ms Hedley she offered her relief work, but there was a dispute about the non-payment by Ms Hedley of child care fees for her child which ended up in court.  It is not clear to me why that ended up in court when Mr May had said that he would waive his claim to those fees.

39       It was accepted that the award, an award of this Commission, applied to Ms Hedley’s employment.

40       There is a provision in the staff handbook (see page 33 (AB)) relating to stress, which reads as follows:-

“It is the Directors (sic) opinion that stress is a self inflicted state of mind caused by the inability of a caregiver to stimulate the children’s mind or their inefficiency in controlling the noise level because of boredom within their room.  As a consequence it will play no part in the smooth running of the centre.”

FINDINGS

41       The Commissioner at first instance made the following findings, summarised:-

(a)          That Ms Hedley’s employment was covered by an award of this Commission, namely the Children’s Services (Private) Award No A 10 of 1990.

(b)          That the award provided for one week’s notice for a child care giver, the classification applying to Ms Hedley’s position.

(c)          That there was nothing in the award providing for probationary employment.

(d)          That the provision in the handbook relating to probation was at variance with the contract offered to her.

(e)          That the contract offered to her was one of six months duration, not the three months contract required by the handbook and further, it was not a three month contract of employment, offered, “prior to permanent employment being offered”.

(f)           That Mr May’s evidence on the question of probation was not credible.

(g)          That Ms Boardman admitted that she had no discussion with Ms Hedley about her terms and conditions of employment.

(h)          Mrs May admitted that she was “in and out of” the discussions between Mr May and Ms Hedley about employment on 14 March 2003.

(i)            That the whole of the provision in the staff handbook in relation to probation was not a feature of Ms Hedley’s contract.

(j)            That Ms Hedley was a credible witness.  She was ready to concede points but was clear that she was offered a six month contract and was not offered a full-time position on termination.

(k)          That the Commissioner preferred entirely Ms Hedley’s evidence to that of Mr May and the other witnesses for the appellant.

(l)            That Ms Hedley accepted that she would have worked full-time if a full-time job was offered, but was not offered a full-time job.

(m)        That the Commissioner accepted Ms Hedley’s evidence in preference to that of Mr May in that regard.

(n)          That Ms Hedley was unfairly dismissed because:-

(i)            Her work with the appellant was good and she was never warned or counselled about her work.

(ii)         She sought to be flexible in her work as evidenced by her pattern of hours.

(iii)       Having been granted a part-time contract for six months her services were suddenly terminated without warning or discussion because she was a part-time worker.

(iv)        She was performing well in accordance with her contract and was dismissed.

(v)          That although Mr May said that she was a satisfactory worker, the arrangements for part-time work were not satisfactory, and that he was therefore entitled to restructure, Ms Hedley was entitled to better treatment.

(vi)        That the dismissal was patently unfair because the appellant had created the expectation of six months employment on a part-time basis and then terminated her services at short notice simply because they were part-time.

(vii)     She did not receive “a fair go all round” (see Miles and Others t/a Undercliffe Nursing Home v FMWU (1985) 65 WAIG 385 (IAC)).

(o)          That Ms Hedley sought to mitigate her loss.

(p)          That reinstatement was not practicable.

(q)          That her earnings since dismissal were $4,369.03.

(r)           That her loss was $1,680.42 gross.

ISSUES AND CONCLUSIONS

42       The decision appealed against is a discretionary decision as that is defined in Norbis v Norbis [1986] 161 CLR 513 and Coal and Allied Operations Pty Ltd v AIRC and Others [2000] 203 CLR 194.

43       Accordingly, the appellant cannot succeed upon this appeal unless he establishes that the exercise of the discretion at first instance miscarried according to the principles laid down in House v The King [1936] 55 CLR  499 and Gromark Packaging v FMWU (1992) 73 WAIG 220 (IAC).

44       Whether the dismissal was harsh, oppressive or unfair or not is to be determined by reference to the principles laid down in Miles and Others t/a Undercliffe Nursing Home v FMWU (IAC) (op cit).  The question can be answered by determining whether there was a “fair go all round” or whether the right of the appellant to terminate Ms Hedley’s employment was exercised harshly, unfairly and oppressively. 

45       Of course, the onus of establishing that the dismissal was unfair lies upon and lay upon Ms Hedley.

46       Questions of credibility arose in this matter and the matter was determined to some extent by the Commissioner relying upon findings as to the credibility of witnesses.  The manner in which appellate courts and tribunals are required to deal with appeals concerned with fact finding based on questions of credibility is well known and has been laid down by the High Court in Devries and Another v Australian National Railways Commission and Another [1992-1993] 177 CLR 472 at 479 and 482-483 and recently restated in Fox v Percy (2003) 197 ALR 201 at 206-210 per Gleeson CJ, Gummow and Kirby JJ.  An appellate court is not excused from the task of “weighing conflicting evidence and drawing its own inferences and conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect” (see too Dearman v Dearman [1908] 7 CLR 549 at 564, cited by Gleeson, CJ, Gummow and Kirby JJ in Fox v Percy (op cit) at page 208.

47       Nonetheless, Devries and Another v Australian National Railways Commission and Another (op cit) was simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.  In Devries and Another v Australian National Railways Commission and Another (op cit), the majority of the High Court (Brennan, Gaudron and McHugh JJ) said at page 479:-

“A finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding.  If the finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the judge has failed to use or has palpably misused his advantage, or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable.”

48       This was a matter which was relatively simple.  There was a written contract of employment so entitled, signed by both parties which expressly prescribed the contract period of six months and described it as a fixed contract.  It was no more and no less.  This was signed on 17 March 2003.  The agreement further prescribes that the conditions of employment are as per the staff handbook, a copy of which was said to be attached, but which was not attached, at least in the appeal book.  The undisputed evidence of Ms Hedley was that she was not given a copy of the staff handbook but, that she had a copy of it from her previous period of employment by the appellant.  The hours to be worked are prescribed in the contract as part-time “but based on 5.5 hours per day”.  There is no prescription for any probationary period expressed in the signed contract, but there is, of course, in the staff handbook.

49       (Ms Hedley did attempt to be flexible and did work more than 5.5 hours per day as the evidence above reveals).  Ms Hedley’s evidence and that of other witnesses was that she wished clearly to work part-time.  A major issue in this matter was whether it was a term of the contract that she was on probation at the time of her dismissal, which was effected by letter dated 11 April 2003, she having been advised of her dismissal on 10 April 2003 and having commenced her employment only on 17 March 2003.

50       It was part of the appellant’s case that, because she was on probation for one month, then the contract had not commenced to operate.  That, of course, is entirely erroneous.  The contract in its express terms provides that the contact of employment commences on 17 March 2003 and makes no reference to probation.  The appellant relied at first instance and relies on the probation paragraph of the handbook as an express term of the contract to establish that, at the time of her dismissal, Ms Hedley was on probation.  First, let me observe as an undisputed fact that Ms Hedley had worked for the appellant for almost a year not long previously and that she was described by Mr May, Ms Turner and Ms Boardman as a good worker.  At no time was her performance and her ability to perform questioned.  Further, they ((ie) Mr May, Ms Boardman and Ms Turner) knew her and her capacity and did not have to look for another employee whose capacity they did not know, as Ms Boardman clearly said in evidence.  In other words, Ms Hedley was a proven, competent worker who worked competently and whose work attracted no criticism.

51       Let me say also, that in industrial law, probationary employment has a clear meaning.  That meaning has been clearly explained by the Full Bench of this Commission in East Kimberley Aboriginal Medical Service v The Australian Nursing Federation, Industrial Union of Workers Perth (2000) 80 WAIG 3155 at 3158 (FB).  At page 3158 the Full Bench said this in paragraph 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]SAIR Comm 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).”

52       What is quite clear is this.  There was no question of her ability and suitability being on trial.  Her ability was known, accepted and approved, and, indeed, that she was a good worker was borne out by the evidence of the witnesses for the appellant at first instance, including Mr May himself whose evidence I have quoted above.

53       As a matter of fact and law she was not therefore on probation and there was no requirement for her ability to be assessed.  There was no question that she was dismissed for lack of ability or application.  Cogently, she was not told that she had failed to perform satisfactorily at any time.  The evidence was to the contrary.  Further, the letter of termination gives only one reason for the dismissal, a restructuring of the staff organisation.  There is no mention of any failure to satisfactorily complete the probation period and there is no mention of the probation period.  There is no evidence of any assessment of skills or training or none of the features of a probationary period, simply because it was not necessary.  It was clearly open to so find.  Next, the written contract itself made no provision for a probationary period and prescribed a period of employment at variance with and in conflict with the probation clause in the staff handbook.  The probation clause provides that one months probation is to be served by all staff members and then a three months contract for a fixed term is offered.  In this case a six months fixed term contract was entered into in lieu of a three months fixed term contract by a proven employee whom the appellant was happy to employ and who indeed proved her worth again during the small period of her employment before her dismissal.

54       The six months fixed term contract in its express terms signed after a discussion and omitting any reference to probation as such, was clearly at variance with that part of the handbook referring to probation.  Put simply, not only was the probation clause in the staff handbook at variance with or in conflict with the express terms of the document signed by both parties, there was no requirement for probation and no probation at law or in fact because it was simply inapplicable, was not part of the contract of employment, and could not correctly be found to be such a part.  It was thus open to find, and it was correct to find, that a probationary period was no part of the contract of employment for those reasons.  In any event, even if that were wrong, then that a probationary period was part of the contract depended on the oral evidence of Mr and Mrs May.

55       Ms Hedley denied, and was unshaken in her denial, that any probationary period was ever discussed by them.  The two employee witnesses, Ms Boardman and Ms Turner, could give no direct evidence that Mr May had discussed a probationary period with Ms Hedley.  They assumed or indicated that she knew.  They did refer somewhat vaguely to a trial period, which period was not expressed clearly or at all in time or effect.

56       Further, it is difficult to understand why it was necessary to say that there was a one month’s probationary period if the handbook itself applied.

57       Mrs May said in evidence that Mr May had mentioned the probationary period to Ms Hedley.  Further, there was no evidence from any person that Ms Hedley had agreed to probation as a term save and except as it might appear in the handbook.  There is no evidence that she was taken to the probation clause in the handbook, which one might have expected if it were so important.  Most cogently, however, as I have observed, and as the Commissioner correctly found, the probation clause was in conflict with the terms of the written contract which provided a fixed term of six months part-time employment and not three months.

58       I now turn to the question of credibility.  The Commissioner at first instance did not accept the evidence of Mr May as credible compared to that of Ms Hedley, particularly in relation to whether there was a conversation on 14 March 2003 in which Mr May mentioned probation.  He also did not place great weight on Mrs May’s evidence because she was coming in and out of the office where Mr May and Ms Hedley were speaking.

59       In my opinion, the evidence that the contract did not contain a term prescribing probation was to be accepted because:-

(a)          Mr May’s evidence was not impressive on a fair reading of the evidence.  Not the least was his unimpressiveness due to the necessity for him to read a statement of evidence, rather than to give his evidence from memory as all of the other witnesses, including Ms Hedley, did.

(b)          Ms Hedley was unshaken in her denial that probation was discussed and was, on a fair reading of all of the evidence, a credible witness.

(c)          There was no direct evidence from Ms Turner and Ms Boardman which corroborated this in any way.

(d)          On a fair reading it was open to find that Mrs May’s evidence was not reliable, on this point, because she was coming in and out of the office on 14 March 2003, in the face of Ms Hedley’s unequivocal and unshaken denial.

(e)          There was no convincing evidence that Ms Hedley accepted the probation period, even if she were told about it.

(f)           Mr May’s own evidence was that Ms Hedley was a good worker having worked for him for almost a year before and accordingly his explanation of why a probationary period was required was, on a fair reading, unconvincing in the face of the facts.

(g)          (i)              There was no necessity, on any objective consideration of all of the evidence, particularly the evidence of Ms Hedley’s ability and performance, for a probationary period.

(ii) In particular, the reason for Ms Hedley’s engagement as expressed credibly and unchallengedly by Ms Boardman and Ms Turner, the appellant’s own witnesses, was that Ms Hedley was a good worker whom they knew and they did not have to go through the process of seeking another employee whom they did not know.  That highlights that in credible practical terms a probationary period was not required.

(h)          Further, there was no evidence of any necessity for training, counselling and advice, nor was there any advice given to her.  The employment was not terminated, nor was it suggested that it was, because she was unable to successfully complete the probationary period.  It was only raised to justify a termination of employment on the ground of restructuring, it was open to find.

(i)            Certainly there was evidence of some vague reference to a trial attaching to the part-time employment.  There was no mention, however, of any condition of trial in time or otherwise.  However, that was put clearly in Mr May’s submissions on appeal as pertaining to the six months part-time period, that is there could be no permanent employment of Ms Hedley until the six months fixed term contract had been completed which is why a six month period was offered and accepted.  Ms Hedley did not agree that there was a trial.  In any event, it was contemplated clearly on the evidence, that a full-time employee would be required after the six month period because a permanent employee was going on leave.  Thus, it was open to find for those reasons that one months probation was at no time a part of the contract of employment and that the fixed term contract was current when the dismissal occurred.  It was also current because it specifically prescribed that it was current, having commenced on 17 March 2003, according to the express terms of the contract.  In any event, the evidentiary onus to establish that it was a term of the contract was not discharged either.  For all of those reasons, and for the reasons which I will refer to hereinafter, the evidence of Ms Hedley was correctly accepted, and it was correctly found that there was no probationary period either as contained in the staff handbook or of any other type applying as a term of the contract of employment of Ms Hedley.

60       It was also not in dispute and it was the appellant’s case that the dismissal was effected because of the restructuring of staff.  In particular, Ms Hedley’s part-time job was abolished and a new full-time job was created which was filled by another staff member who was a trainee and also on Ms Hedley’s uncontroverted evidence, a junior.  There was no denial that this employee was a junior, and, in fact, it was admitted that she was a trainee, unlike Ms Hedley who, although unqualified, was an experienced employee and a good worker.

61       Questions arose in relation to the events leading up to the dismissal.  Again, there was a conflict between the evidence of Mr May and Ms Hedley about the question of full-time work.  Mr May said that Ms Hedley had said that if she was required to do full-time work and she would do it.  She denied that she said so.  Ms Boardman said that she had said that she might do it.  Ms Boardman said that Ms Hedley looked tired after the week of full-time hours.  Ms Turner said that Ms Hedley had said that she wanted to do part-time work and made this clear to Ms Turner.  Indeed, they discussed job sharing on the evidence of both of them.  Before she was dismissed, Ms Hedley again offered to work three days a week but this was refused.  It is clear that there was no binding agreement or undertaking that she work full-time.  She was offered the full-time position because of the proposed abolition of the part-time position, according to Mr May.  Her evidence was that no such offer was made.  It is clear that she attempted to work extra hours to assist and that in Ms Boardman’s and Ms Turner’s judgement she became tired as a result.  Mr May said that Ms Hedley was suffering stress.  Ms Turner and Ms Boardman also remarked on the fact that she was tired after working full-time for a week in the third week of her employment.  It is also clear that there was an agreement that she work part-time, not full-time, for a fixed term, which was the agreement offered by her employer, the appellant, and which she accepted and which they both signed.  It is also clear that though there were discussions of the undisputed problems caused by understaffing, that there was no warning to Ms Hedley that her employment was in jeopardy, and that it was not said to her that she would be dismissed if she failed to accept the full-time employment.  It should be clearly understood, put at best for Mr May, that what was proposed to her on the day of her dismissal, 10 April 2003, was that she enter a new contract for full-time employment and agree to the termination of her part-time employment contract.  Even on her employer’s and his witnesses’ evidence, it was known to them that because of her baby and other commitments, she could not or did not want to work full-time.  On his own evidence, therefore, Mr May offered Ms Hedley full-time work which he himself by inference knew, because of what he himself said in evidence and as was the evidence of Ms Turner and Ms Boardman, that the full-time work caused Ms Hedley stress and impliedly that she could not therefore perform it.  Such an act was unfair.  Ms Hedley credibly denied that any offer of full time employment was made to her.  Mr May well knew and said himself in evidence that the week in which Ms Hedley did full-time work was stressful to her.  I have already said that Ms Boardman and Ms Turner corroborated the view that she suffered from stress or was weary when she worked full-time hours, which was, as a matter fact, contrary to her part-time contract.  However, she co-operated and was quite “flexible”.  She clearly had an expectation of six months part-time employment brought about by the precise terms of the agreement to which she had bound herself.  That was the obligation she undertook and which the appellant undertook to provide.  Certainly, it was subject to notice of termination by one week’s notice.

62       The Commissioner at first instance correctly found that she was not on probation.  She was not on probation, and the clause in the handbook relating to probation was not part of the contract of employment.  The Commissioner correctly found that she did offer to work full-time and that this was rejected.  She was, as the Commissioner correctly found, terminated on one day’s notice on 10 April 2003, confirmed by letter dated 11 April 2003.  She was a good worker who had and expected to enjoy six months employment as a part-time worker.  After both parties committed to a fixed term contract, her contract was terminated within a month of it commencing because full-time employment was required.  As the Commissioner held, Mr May was entitled to restructure the business and this included making positions redundant which was done.  However, he correctly held that Ms Hedley was entitled to better treatment and that her dismissal was unfair because the respondent, having created the expectation of six months on a part-time basis and indeed, done more than that, signed a binding contract, dismissed her at short notice because her contract was a part-time contract.

63       The matter goes further than that.  A contract was entered into by both parties for six months, fixed term.  Their intention was that there would be such a term and they bound themselves to it.  That was the term nominated by the appellant for his own purposes.  Within a month of the contract being signed, Ms Hedley’s position was abolished and she was retrenched, that is dismissed on little notice.

64       Further, as the Commissioner correctly found, he preferred Ms Hedley’s evidence to that of Mr May and other witnesses, including Mrs May, the Commissioner found that she was not offered a full-time job, but that she would have accepted it.  Indeed, he found correctly that she herself offered to work full-time, but that this was rejected.  The Commissioner correctly found, too, that the dismissal was unfair because, within a month of the contract being entered into, and notwithstanding that Mr May had created an expectation of six months employment on a part-time basis, she was dismissed on short notice.  More than that, I would add, she was dismissed from a six month fixed term contract to which her employer had bound himself, without proper  warning, with little or no notice, because he did not wish to himself to remain bound by the contract.  That was unfair, and it was open to so find that it was.  Further, Mr May terminated the contract of an employee who was a good and competent worker, who offered to work full-time on her own credible evidence, and during her period of employment, worked “flexibly”, and indeed gave more than she was required to do by working one week full-time when she was on a part-time contract.  The dismissal was unfair for those reasons, too, and was correctly found to be unfair.  Admittedly she was offered relief work which, by its nature is, of course very much lesser reliable or definite than a fixed term agreement part-time for six months.  However, that was a new and entirely different contract offered after her dismissal.

65       Next, the Commissioner did not find, but it was open to him to find, that the dismissal was unfair also because Ms Hedley was dismissed when another part-timer could have been employed.  That was the clear evidence of the appellant’s witness, Ms Boardman, that that could have been done, and not denied.  It was not denied either by Mr May that this could have been done, although he was not enthusiastic about it as he said.  It was also unfair for Mr May to repudiate the contract for a fixed term, which in his own evidence he correctly admitted the contract to be.  That repudiation occurred when he unilaterally terminated the agreement in the face of a refusal by Ms Hedley to agree to the termination of the fixed term agreement, on his evidence, and the substitution of a new full-time contract for it.  In fact, her evidence was that she was agreeable to entering an agreement to work full-time, but that it was rejected, which, of course, even more renders the dismissal unfair.  (As to the repudiation question see Byrne v Twaddle (2003) 83 WAIG 5 (FB)).  I make it clear that it was open to find that an element of unfair dismissal was that Mr May, well knowing that Ms Hedley could not perform, in his judgment, full-time work because of the stress which he said she suffered, terminated her part-time employment which he had offered and contracted to provide.  In fact, as I have observed, if Ms Hedley’s evidence was accepted, which it should have been, and which it was, she at no time refused to work full-time, and, indeed, offered to work full-time.

66       As Ms Boardman also said, employing a full-time employee in this case instead of Ms Hedley was the ideal situation.  However, on Mr May’s own case, it was quite unfair, in the circumstances of the case, not to honour the contract and employ another part-timer or permit job sharing, at least until the contract expired rather than to dismiss her within a period of less than one month when she was a person who had given good service and attempted to be co-operative and to assist her employer, at her own cost in stress, on the employer’s own case.

67       For the reasons expressed above in paragraph 59, which, in my opinion, apply generally to the credibility of Ms Hedley, Mr May and his witnesses, and also because Mr May did not establish that the findings made by the Commissioner were glaringly improbable, or, indeed, improbable, it was open to find, and should have been found, that:-

(a)          An experienced and competent employee would not be required to work on probation and was not.

(b)          That by implication such a term was not included in the contract when Mr May wanted her to work a fixed term six month contract.

(c)          That the fixed term contract did not mean that she was on trial, save and except for the whole period of six months.

68       The Commissioner made correct findings on the basis of credibility and it was open to him to find, and he should have found for all of those reasons, that the dismissal was harsh, oppressive or unfair.

Quantum of Loss and Compensation

69       The appellant appeals against the finding of loss and the award of compensation in the sum of $1,680.42 less tax.

70       The Commissioner made the following findings:-

(a)          Ms Hedley earned a total of $1,572.26 during the period when she worked for the appellant at an average weekly amount of $393.07.

(b)          In addition, she was paid one week’s pay in lieu of notice.  The appellant therefore paid her a total of $1,912.71.  That was not in issue.

(c)          Not all of her payslips were available but he made a finding that she earned $4,369.03 in her new employment with a child care centre called Junior Junction and alternatively that she expected to earn an average of $297.06 per week according to the payslips which she produced which was her current income.

(d)          This was for two days work per week.  The Commissioner therefore made the following calculations:-

71       No evidence was tendered contrary to that.  There was no error established and that ground failed, in my opinion.

Bias and Impartiality

72       It was submitted by the appellant that the Commissioner was biased against him and partial.  I have read the transcript carefully.  There was no evidence of that.  The Commissioner, clearly confronted with two parties in person, endeavoured to ensure that both parties were properly heard and had full opportunity to put their cases and achieved such a goal.  Indeed, Mr May was allowed to read his evidence from a prepared statement, something of an advantage which, with respect, I might not have afforded him.  The real complaint by Mr May was that the Commissioner was biased because he did not accept Mr May’s evidence in preference to Ms Hedley’s evidence.  On a consideration of all of the evidence, it is clear that the Commissioner did not accept Mr May’s and his witnesses’ evidence in preference to that of Ms Hedley.  For the reasons which I have expressed above, it has not been established that the Commissioner erred, and, in fact, in my opinion, did not.  By performing his function to make findings as to credibility, he did not, of course, demonstrate any bias or lack of impartiality.  Indeed, he acted, quite clearly, impartially, on a fair reading of all of the evidence and carried out his duty properly and correctly.

The Federal Award

73       Some recourse was sought to be had to the Workplace Relations Act 1996 by Mr May, in particular, Schedule 1A Clause 48(1)(d) thereof, but pursuant to s500(1), the Schedule only applies to employees in the state of Victoria and the reference to the Workplace Relations Act 1996 was entirely irrelevant.  Indeed, the federal act was not at all applicable.

Finally

74       For all of those reasons, I am not satisfied that there was any miscarriage of the Commissioner’s discretion.  I am certainly not satisfied that the Commissioner misused the advantage he had in seeing the witnesses at first instance.  For all of those reasons, I would dismiss the appeal.

CHIEF COMMISSIONER W S COLEMAN:

75       I have had the benefit of reading the Reasons for Decision of His Honour, the President.  I agree and have nothing to add.

COMMISSIONER J H SMITH:

76       I have had the benefit of reading in draft the reasons to be published by the President.  For the reasons his Honour gives, I agree the Appeal should be dismissed and I have nothing further to add.

THE PRESIDENT:

77       For those reasons the Full Bench dismissed the appeal.

Order accordingly