Andrew Tobin - Partner
The Australian Industrial Relations Commission has recently considered the question of when a probationary period ends. The decision provides guidance on how to properly calculate the period in which an employee is excluded from making an unfair dismissal claim.
Visy Pulp and Paper Pty Ltd (Visy) terminated its "People Relations Advisor" on 2 January 2008. The employee had started working for Visy on 2 July 2007, having signed an employment contract which provided for a 6 month probationary period.
The employee was requested to attend a meeting to discuss her employment on either 31 December 2007 or 2 January 2008. The employee told management that she would be on leave after Christmas (27, 28 and 31 December) but would return to work on 2 January 2008 and could meet on that date. The meeting was held on 2 January, during which Visy terminated the employee's employment.
The employee made an unfair dismissal claim in the Australian Industrial Relations Commission (AIRC). Visy argued that:
1. the employee was terminated during her probationary period, which ended on 2 January 2008, and was therefore excluded from making the claim;
2. the employee was on unauthorised leave and that the decision to terminate her employment was made on 31 December 2007;
3. if the end of the probationary period fell on a public holiday (1 January), it should be extended to 2 January 2008.
Decision
The AIRC decided that the last day of the probationary period was 6 calendar months from the commencement date. As the employee started work on 2 July 2007, her probationary period ended on 1 January 2008. The employee was terminated on 2 January 2008, which was after the end of the probationary period. She was therefore entitled to bring an unfair dismissal claim.
Visy had attempted to rely upon the Acts Interpretation Act 1901 (Cth) (AIA) in calculating the 6 month probationary period, meaning that the employee's first day at work and 1 January (as a public holiday) were not counted in calculating the 6 month probationary period.
The AIRC said that the way in which the Workplace Relations Act 1996 (Cth) (WRA) was drafted meant that the relevant provisions of the AIA did not apply. It also decided that it was not correct to extend the probationary period on the basis that the last day of the period fell on a public holiday because the WRA did not refer to probationary periods as being exclusive of weekends or public holidays. Visy could have called the employee in to work if the employee was in fact on unauthorised leave. The AIRC also said that just because Visy had the intention on 31 December 2007 to terminate the employment, it did not mean the termination occurred within the probationary period.
Lessons For Employers
Employers must carefully check the date on which a probationary or qualifying period ends. This decision highlights the risk an employer takes in not complying strictly with the dates when looking at terminating an employee's employment. We recommend that employers take a cautious view of the dates and discuss continuing employment with a probationary employee well before the last day of the probationary period, particularly when the last day may fall on a public holiday or weekend.
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