In July 2007 the employee commenced employment with Visy Pulp and Paper (Visy) as a people relations advisor. Under her contract of employment the employee was required to complete a six month probationary period. Towards the end of 2007 Visy had a number of concerns about the employee's work performance, which included a failure by the employee to conduct an investigation into a complaint of harassment. As a result of these problems Visy decided to dismiss the employee.
In late December 2007 Visy sent an email to the employee requesting that she attend a meeting on 31 December 2007 for the purpose of reviewing her employment, if she was not on annual leave, or otherwise 2 January 2008. It was at this meeting that Visy intended to dismiss the employee. By reply email the employee told Visy that she could not attend the meeting on 31 December 2007 because she would be on leave, but she could attend it on 2 January 2008 when she returned to work. When the meeting took place on 2 January 2008 Visy gave the employee notice of termination of her employment.
The employee brought an unfair dismissal claim against Visy. Visy argued that the AIRC did not have jurisdiction to hear the employee's claim since she was dismissed within her six month probationary and qualifying period – the Workplace Relations Act prevents an employee from bringing an unfair dismissal claim in a probationary period or less than six months from the time the employee commenced employment with an employer (qualifying period). Visy argued that the dismissal occurred at the end of December 2007, when it initially sought to have a meeting with the employee. The employee argued that the termination of her employment did not occur until on 2 January 2008, after the expiry of her probationary and qualifying periods, when she was actually given the termination notice.
The Decision
The AIRC found that it did have jurisdiction to hear the employee's unfair dismissal claim on the basis that the dismissal did not occur until 2 January 2008, which was outside the probationary and qualifying periods.
The AIRC stated that if Visy had wanted to terminate the employee's employment at the end of December 2007 it could have taken further steps to do so, and would not have provided the employee with a choice to have the meeting in early January 2008. For example, Visy could have made a lawful request to the employee that she attend the workplace on 31 December 2007 for the purpose of terminating her employment. Alternatively, Visy could have communicated the employee's dismissal by some other means, such as by email (particularly given that the employee had a Blackberry during her period of leave). In light of these factors the AIRC found that Visy had been happy to wait until 2 January 2008 to dismiss the employee, when she returned from her period of leave. Since this date fell outside the probationary and qualifying periods, the AIRC had jurisdiction to hear the employee's unfair dismissal claim.
Tips for Employers
This case is important for employers since it demonstrates how critical the timing of a termination is when nearing the completion of a probationary period or the six month qualifying period. The decision whether or not to dismiss an employee should not be left to the final few days of a probationary period or qualifying period, but should be considered well in advance of this time as a result of careful review of the relevant employee. The AIRC in this case highlighted some alternatives the employer could have taken to ensure that the termination took place within the probationary and qualifying period.
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