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
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 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
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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