Unfair Dismissal During Six Month Probation Period - Industrial Relations Commission Decision

The Industrial Relations Commission decided that a six-month probation period was reasonable, thereby excluding the claimant from making an unfair dismissal claim under the Government Sector Employment Act 2013.

Industrial Relations Commission New South Wales Medium Neutral Citation: [NAME] v [NAME] [2020] NSWIRComm 1043 Hearing dates: 9 June 2020 Decision date: 17 June 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner [NAME] Decision: Application dismissed Catchwords: UNFAIR DISMISSAL – applicant dismissed during six month probation period – whether six month probation period was reasonable Legislation Cited: Government Sector Employment Act 2013 Industrial Relations Act 1996 Industrial Relations Act 1988 (Cth) Police Act 1990 Government Sector Employment (General) Rules 2014 Industrial Relations (General) Regulation 2015 Industrial Relations Regulations 1989 (Cth) Police Regulation 2015 Cases Cited: [NAME] v. Commissioner of Police [unreported-Matter No.IRC 1832 of 2008] Commissioner of Police v Eaton [2013] HCA 2 Levy v. New South Wales Fire Brigades [2009] NSWIRComm 1011 Nicholson v Heaven & Earth Gallery Pty Ltd [1994] 57 [NAME] 50 [NAME] [2012] NSWIRComm 30 Texts Cited: Nil Category: Principal judgment Parties: [NAME] (Applicant)

[NAME] (Respondent) Representation: [NAME], Solicitor, [NAME] (Applicant)

[NAME], Manager Government Relations and Legal, Office of the Commissioner, [NAME] (Respondent) File Number(s): 2020/00104524 Publication restriction: Nil

DECISION 1. On 2 April 2020, the applicant, [NAME], filed in the [NAME] an Application for Relief in relation to Unfair Dismissal ("Application") following the termination of her employment with the respondent, [NAME], on 13 March 2020.

2. On 9 April 2020, the respondent notified the Commission of a jurisdictional challenge to the Application, being that the applicant's employment was terminated during a six month probationary period which meant that the Application was excluded by the combined operation of subsection 83((2)(b) of the Industrial Relations Act 1996 ("[NAME] Act") and subclause 6(1)(c)(ii) of the Industrial Relations (General) Regulation 2015 ("[NAME]").

3. Practice Note 17A of the Commission's Practice Notes issued pursuant to section 185A of the [NAME] Act provides as follows:

6. Preliminary Issues (a) If a preliminary issue, for example, a jurisdictional challenge, is raised at or before the conciliation conference, the Member allocated to undertake the conciliation of the matter shall determine whether the matter shall be heard as a threshold issue or be dealt with after conciliation. If the Member determines that the issue should be heard before conciliation then the Member shall make appropriate directions for the hearing of the issue and determine the question or issue in advance of any conciliation, if required. In cases where the Member conducts a conciliation before the hearing of the preliminary issue, and the conciliation fails, the Member shall then forward the matter to the Industrial Registrar for the purposes of a date being fixed for the hearing of the preliminary issue. Directions will be made by the Member allocated to hear the preliminary issue in order to dispose of the question.

1. When the matter came before me on 30 April 2020, I determined that the respondent's jurisdictional challenge should be heard as a threshold issue in advance of any conciliation and made directions for the filing and service by the parties of evidence and submissions relevant to that issue.

2. This decision determines the respondent's jurisdictional challenge to the Application.

Background 1. The applicant was employed with the respondent in the role of Coordinator Media and Public Relations.

2. The letter of offer of employment dated 23 October 2019 from [NAME], Recruitment Support Officer, which was signed by the applicant and returned to the respondent two days later, contained the following: [NAME] I am pleased to offer you ongoing employment within [NAME], in accordance with the Government Sector Employment Act 2013. A probation period of 6 months applies. The details of your conditions of employment are as follows: Classification: Clerk Grade 7/8 Commencing salary: $97,152 p.a. (Grade 7, Year 1) plus any allowances that may be applicable to the role Award: Crown Employees ([NAME] of Employment) Award 2009 Hours per week: 35 Entry on duty: 13 November 2019 …………………………..

CONFIRMATION OF ACCEPTANCE I, [NAME], hereby accept the offer of ongoing employment within [NAME], based on the following conditions of employment. …………………………… I understand that a probation period of 6 months applies. …………………………… My signature confirms that I accept the terms and conditions set out in the offer letter dated 23 October 2019, and acknowledge that the salary and conditions stated therein are final. …………………………...

1. The applicant commenced employment with the respondent on 13 November 2019.

2. By letter dated 13 March 2020 from [NAME], Deputy Commissioner Corporate Services, the applicant's employment was terminated. The termination letter stated In accordance with section 47 of the Government Sector Employment Act 2013, your employment is terminated without notice on the grounds that you have not satisfied the pre-established requirements and expectations for the role in which you were employed, effective 13 March 2020.

The legislation 1. Part 6 of Chapter 2 of the [NAME] Act deals with unfair dismissals. Subsection 83(2)(b) is in the following terms: (2) This Part does not apply to an employee who is exempted from this Part by the regulations. Any such regulation may only exempt specified classes of employees included in any of the following classes— ……………………………. (b) employees serving a period of probation or qualifying period, 1. Subclause 6(1)(c) of the [NAME] is as follows: (1) For the purposes of section 83(2) of the Act, the following classes of employees are exempted from Part 6 of Chapter 2 of the Act— ………………………….. (c) employees serving a period of probation or qualifying period, if the duration of the period, or the maximum duration of the period, is determined in advance and either— (i) the period, or the maximum duration, is 3 months or less, or (ii) if the period, or the maximum duration, is more than 3 months—the period, or the maximum duration, is reasonable having regard to the nature and circumstances of the employment, 1. Subsection 47(1)(k) of the Government Sector Employment Act 2013 ("GSE Act") provides as follow: (1) The head of a [NAME] agency may, by instrument in writing, terminate the employment of a [NAME] non-executive employee of the agency on any of the following grounds if the employment is ongoing employment— …………………………… (k) on any other ground prescribed by the regulations.

1. Clause 5 of the Government Sector Employment (General) Rules 2014 ("GSE Rules") is in the following terms: (1) The head of a [NAME] agency may determine that the engagement of a person in ongoing employment in the [NAME] for the first time or following the cessation of any previous employment in the [NAME] is subject to the condition that the person is required— (a) to serve a period of probation on commencing his or her employment, and (b) to satisfy the requirements for the role in which the person is employed during that period of probation. (2) The period of probation— (a) for a [NAME] senior executive is to be no more than 3 months, or (b) for a [NAME] non-executive employee is to be 6 months or such longer period as the agency head directs. (3) A period of probation for a [NAME] non-executive employee may, before the period expires, be extended for such further period as the agency head directs. (4) However, the probation period for a [NAME] non-executive employee cannot exceed 12 months. (5) If a [NAME] employee is required to serve a period of probation, the employer may, at any time during or at the end of the probation period— (a) confirm the person's employment, or (b) in the case of a [NAME] senior executive—terminate the person's employment under section 41 of the Act, or (c) in the case of a [NAME] non-executive employee—terminate the person's employment under section 47 of the Act on the ground that the person has not satisfied the requirements for the role in which the person is employed.

Submissions of the respondent 1. The respondent relied upon the words "at any time" which appear in subclause 5(5) of the GSE Rules. The same phrase appears in subsection 80(3) of the Police Act 1990. Section 80 of the Police Act is in the following terms:

80 Appointment and promotion of constables (1) The Commissioner may, subject to this Act and the regulations, appoint any person of good character and with satisfactory educational qualifications as a police officer of the rank of constable. (2) A person when first appointed as such a police officer is to be appointed on probation in accordance with the regulations. (3) The Commissioner may dismiss any such probationary police officer from the NSW Police Force at any time and without giving any reason. (4) The promotion of police officers within the rank of constable is subject to the regulations.

1. I note that clause 13 of the Police Regulation 2015 provides for the initial appointment of a police officer to the rank of constable to be on probation for a period of one year or for such longer or shorter period (being not less than six months) as the Commissioner of Police may direct.

2. In Commissioner of Police v Eaton [2013] HCA 2 (8 February 2013) the High Court ([NAME], Crennan, Kiefel, Bell and Gageler JJ) considered whether or not a probationary police constable whose employment had been terminated pursuant to subsection 80(3) of the Police Act was able to pursue an unfair dismissal claim under the provisions of Part 6 of Chapter 2 of the [NAME] Act. In relation to the phrase "at any time", [NAME] stated (at [12], footnote omitted): "At any time". The words "at any time" point against any examination of whether the selection of a time for dismissal was harsh, unreasonable or unjust. That is because dismissal can take place at any time. If the Police Act gives the Commissioner power to dismiss a probationary constable at any time there is no room for complaint that dismissal should not have taken place at a harsh, unreasonable or unjust time. The words "at any time" did not appear in the precursor to s 80(3), namely r 11(b) of the Police Rules 1977. The words are the same as those in s 9(1) of the Police Regulation Act 1958 (Vic), which Gibbs CJ described in 1985 as giving "an unfettered power to dismiss". The adoption by the [NAME] of those words in 1990 suggests that they bear the meaning given to them by Gibbs CJ.

1. The respondent submits that the phrase "at any time" appearing in subclause 5(5) of the GSE Rules discloses a legislative intention that the power to dismiss a [NAME] non-executive employee during a probation period be similarly unfettered.

2. The reason given to the applicant for the termination of her employment without notice was that she had not satisfied the pre-established requirements and expectations for the role in which she was employed (see [9] above).

Accordingly, it was submitted that the termination of the applicant's employment was in accordance with subclause 5(5)(c) of the GSE Rules.

3. It was further submitted that the six month probation was reasonable as it was consistent with subclause 5(2)(b) of the GSE Rules.

Accordingly, it was submitted that, under subsection 83(2)(b) of the [NAME] Act and subclause 6(1)(c)(ii) of the [NAME], the Commission does not have jurisdiction to hear and determine the Application.

Submissions of the applicant 1. The applicant submitted that the sole issue for determination at this juncture was whether the respondent's "imposition" of a six month probation period was "reasonable having regard to the nature and circumstances of the employment" (subclause 6(1)(c)(ii) of the [NAME]).

2. The applicant relied upon the following passage from the judgement of Wilcox CJ in Nicholson v Heaven & Earth Gallery Pty Ltd [1994] 57 [NAME] 50 (at 58-59): Whether or not the stipulated period is reasonable, is a matter that has to be determined by the person hearing the case, as an exercise of judgment. The judgment should be based on the proved objective facts, not on someone else's opinion. Probably the most important consideration, in determining what is a reasonable period, will be the nature of the job. In the case of a person employed to carry out repetitive duties under close supervision, a reasonable period may not extend beyond a week or two. In the case of a person employed in a marketing or managerial position, working with little or no direct supervision and whose quality of performance cannot be immediately apparent, it may be reasonable for an employer to specify a probationary period measured in months. Circumstances will vary from case to case; the size, location and mode of operation of the employer being relevant factors, along with the personal characteristics and circumstances of the employee. The [NAME] has not prescribed the maximum extent of a reasonable period. It is not for me to do so. But I suspect that an employer will rarely be able to justify a period exceeding two or three months, in the case of an employee to whom [NAME] now applies: that is, an award employee or a non-award employee whose wages do not exceed (the prescribed monetary ceiling)… (applicant's emphasis)

1. The applicant also relied upon the following passage from the decision of [NAME] in Levy v. New South Wales Fire Brigades [2009] NSWIRComm 1011 (at [41]): In short, as a matter of jurisdiction, I do not believe that a Part 6 claim by a employee whose services were terminated on a probationary period of in excess of three months may be dismissed without the member of the Commission hearing the matter and addressing the merits of the claim. It is only in that manner that the reasonableness of the probationary period may be properly assessed. When Reg.6(1)(c)(ii) speaks of the reasonableness of the probationary period being considered "...having regard to the nature and circumstances of the employment..." it dictates that all the circumstances of the particular employment of the dismissed employee should be borne in mind.

1. It was submitted that the imposition of a six month probation period was unreasonable having regard to the following (references to the applicant's affidavit, Exhibit 3, omitted):

The nature of the Applicant's role 9. The Applicant's Statement of 29 May 2020… relevantly notes the following in relation to her role: (a) the Applicant had two direct reports…; (b) during her first month of employment in November 2019, the Applicant was provided with intensive training in relation to the Respondent's operations…; (c) from her second month of employment in December 2019, the Applicant's supervisor adopted a more detached management style and afforded her significant autonomy in her role…; (d) the Applicant would undertake a large variety of tasks without oversight or direction…; and (e) for those of the Applicant's tasks whereby superior sign-off was required, clear systems were in place...

10. From the above description it is apparent that the Applicant was succeeding in her role from at least December 2019 and that she was perceived as a valuable member of the Respondent's enterprise. Her high degree of autonomy and the responsibilities vested in her, further reaffirm the diligence and competency with which she approached her role. This is also captured by the constant commendations the Applicant received from the Respondent...

11.

Accordingly, it is submitted that a probation period of six-months, which would have continued until 13 May 2020, was unreasonable given the nature and circumstances of the employment.

The personal characteristics of the Applicant 12. It is also submitted that a probation period of six-months was unreasonable given the personal characteristics of the Applicant.

13. As outlined…, the Applicant has had a highly distinguished career in the [NAME], including extensive experience in the [NAME]. It was, seemingly, for this reason that she ultimately was chosen for the particular role in question.

14. Given the Applicant's experience and familiarity with the duties she was allocated, a six-month probation period was excessive and unreasonable. A probation of this length of time was not required for an employee with the Applicant's skill-set, proficiency and aptitude.

The size, location and mode of operation of the Respondent 15. As noted…, the Applicant was familiar with the structure of the Respondent's enterprise. To this end, an extended probation period was not required to assist with any adjustment. Again, the fact that the Applicant was acquainted with the [NAME] is significant.

The circumstances of her dismissal 16. Finally, in considering the probation period, pursuant to Levy, it is worth noting the circumstances of the Applicant's dismissal.

17. As captured…, the Applicant was dismissed without any prior notice for purported performance concerns. Herein it is noted that at no time had the Respondent raised such concerns with her. Rather…, the Applicant had been receiving praise for her performance thus far.

18. In this regard, the Applicant refutes the Respondent's contention that her dismissal was justified on the basis that she had "not satisfied the requirements for the role in which the person is employed" (Rule 5(c) of the GSE Rules).

19. On these grounds it is submitted that a probation period of six-months was unreasonable. Given the nature of the Applicant's role, her personal characteristics and her familiarity with the Respondent's operations, it is contended that there was no need for an extended probation period. At all times the Applicant demonstrated a high degree of competency, autonomy and proficiency and consequently there was no reason for her dismissal.

1. The applicant submitted that the respondent had misconstrued the interaction between the [NAME] Act and the GSE Act by claiming that "as Rule 5(2)(b) of the GSE Rules allows the Respondent to impose a six-month probation period, this automatically means that the period is reasonable as per Regulation 6(1)(c)(ii) of the [NAME]". The applicant rejected this contention and cited the following passage from the decision of [NAME] in Levy (at [42]): I accept that, as I indicated earlier in this decision, it is common for Crown employment to have probationary periods of employment in excess of the three months stipulated in Reg.6(1)(c)(i). Such probationary arrangements are often conditions contained in State legislation or State Crown Awards. As far as firefighters are concerned, Clause 13 of the Fire Brigade Act (sic Award) confirms that position. I would expect that in such circumstances the probationary period set would prima facie be acceptable employment conditions. [NAME] is no doubt correct when he asserts that since the probationary period is a State award provision, under the supervision of the Commission, it has to be accepted as a fair and reasonable employment condition. But, to my mind, that does not necessarily mean that such arrangements make the probationary employment automatically reasonable for each and every employment situation for the purposes of Reg.6(1)(c)(ii). (applicant's emphasis)

1. It was submitted that, when undertaking an assessment of whether a six month probation period was reasonable in the present case, having regard to the nature and circumstances of the applicant's employment, consideration is required to be given to factors such as those set out at [23] and the Commission "must not simply defer to alternative legislation such as the GSE Rules. Whilst it is acknowledged that alternative legislation like the GSE Rules may be relevant, they are not, in and of itself, the sole or primary issue for consideration". The applicant's submissions then continued as follows:

27. Herein it is noted that if the Commission were to adopt the Respondent's Submission that the GSE Rules automatically render the Applicant's probation period reasonable, then, consequently, this would mean that no non-executive public sector employee could ever seek relief pursuant to Part 6 of the Act if they were terminated within the first six months of their employment. Such a significant exclusion is clearly not intended by the Act, and, from a public policy perspective, is wholly unreasonable.

28. In this regard, the [NAME] Act and [NAME] requires an actual evaluation of the "nature and circumstances of the employment" of the Applicant. This encompasses a detailed consideration of the factors noted… above (at [23]) and is not an exercise that can be disregarded due to content of alternative legislation.

1. In addition, the applicant submitted that the respondent had misrepresented the actual GSE Rules on the basis that, under those rules, there was no alternative available to the respondent other than to impose a probation period of six months. This is not the case because subclause 5(5) of the GSE Rules provides that the employer may, at any time during or at the end of the probation period, confirm the person's employment, or, in the case of a [NAME] non-executive employee, terminate the person's employment under section 47 of the GSE Act on the ground that the person has not satisfied the requirements for the role in which the person was employed. This, it was submitted, demonstrates "that there is flexibility for the Respondent to shorten a probation period and confirm an employee's engagement. A fixed period of six-months' probation is therefore not required. Rather it is evident that the period of probation is dependent on the particular person's employment".

Reply submissions of the respondent 1. In reply, the respondent referred to the decision of [NAME] in [NAME] [2012] NSWIRComm 30 where his Honour stated: 39 The probationary period was determined in accordance with a statutory entitlement afforded the employer, and its application as a general policy does not visit any unfairness upon [NAME] or cause it to fail the test of reasonableness. ……………………………… 42 The Commission will not lightly intrude upon the exercise of a statutory right or the agreement of the parties.

1. In this matter, the relevant "statutory entitlement" is subclause 5(2)(b) of the GSE Rules which provides that the period of probation for a [NAME] non-executive employee is to be six months or such longer period as the agency head directs.

2. The respondent dealt with what was said to be nature of the applicant's role (see [23] above) and concluded as follows (footnotes omitted):

10. The role is responsible for coordinating public relations, engaging with key internal and external media stakeholders, and developing and implementing communication policy and procedures to contribute to the enhancement of the Respondent's brand and reputation. The role also ensures the preparedness of public information resources for emergency response including assisting in the development and utilisation of multiple communication channels.

11. The Applicant's role was part of the Media and Communications team within the [COMPANY]. The role was a key position in the Media and Communications team that was expected to lead and conduct live television and radio interviews, draft internal and external communications (including media releases and briefs) and public safety messaging, both during operational events and in non-operational periods. These responsibilities assist the Respondent to carry out its statutory function to protect persons from dangers to their safety and health, and to protect property from destruction or damage, arising from floods, storms and tsunamis.

12. Similar to the respondent's submissions in [NAME] which were made by reference to [NAME], the Applicant's role did not require the Applicant to carry out 'repetitive duties under close supervision' and the 'quality of performance cannot be immediately apparent'. The role is challenging and contributes to an important function of the Respondent to provide public safety messaging and notices to the public through media opportunities such as radio, print and television interviews. The content prepared is driven by the context and hazard (e.g. flood, storm, other significant events such as [NAME]).

13. In the Respondent's view, the description of the nature of role set out in paragraph 17 of the Applicant's Statement supports the challenging nature and importance of the role.

14.

Accordingly, a 6 month probationary period was reasonable given the nature of the role.

1. With respect to the personal characteristics of the applicant, the respondent submitted that the applicant's lack of emergency management experience was another factor supporting a six month probationary period, particularly given the importance of the role.

2. In relation to the respondent's size, location and mode of operation, it was submitted as follows (footnotes omitted):

20. The Respondent is a volunteer based organisation that provides emergency assistance to the public. The Respondent's major responsibilities are for flood and storm emergencies, but it also provides the majority of general rescue effort in the rural parts of New South Wales. The functions of the agency are set out in section 8 of the State Emergency Service Act 1989 (SES Act).

21. A 6 month probationary period applies to ongoing non-executive appointments of the Respondent.

22. In these circumstances, it was reasonable for the Respondent to require a 6 month probationary period.

1. Further, with respect to the circumstances of the dismissal, the respondent disputed the applicant's assertion that she was dismissed without any prior notice for purported performance concerns and maintained that the termination of the applicant's employment was effected in accordance with subclause 5(5)(c) of the GSE Rules.

2. The respondent's conclusion as to the reasonableness of the six month probationary was expressed as follows:

25. The Respondent rejects the conclusion set out in paragraph 19 of the Applicant's Submissions. It is the Respondent's view that a determination of the reasonableness of the 6 month probationary period should include a consideration of the statutory right under clause 5(2)(b) of the GSE Rules and the Applicant agreeing to the 6 month probationary period prior to commencing employment and that the Commission should attribute significant weight to these factors in favour of a reasonable probationary period. Having regard to all of the duties and circumstances of the Applicant's employment, the 6 month probationary period was reasonable.

Determination 1. The question to be determined by the Commission may be stated in the following terms: In the circumstances of the applicant's employment with the respondent in the role of Coordinator Media and Public Relations, including the nature of the role, the personal characteristics of the applicant, the size, location and mode of operation of the respondent and the circumstances of the applicant's dismissal, was a probationary period of six months reasonable having regard to the nature and circumstances of the employment so as to oust the jurisdiction of the Commission to hear and determine her unfair dismissal application by the operation of subsection 83(2)(b) of the [NAME] Act and subclause 6(1)(c)(ii) of the [NAME]? 1. If the answer to this question is "yes", then the Application must be dismissed for want of jurisdiction. If the answer is "no", then the Application is within jurisdiction and will be heard and determined on its merits.

2. It may well be accepted that Wilcox CJ was correct to state in [NAME] that, probably, the most important consideration, in determining what is a reasonable probation period, will be the nature of the job. Beyond that, the judgement of his Honour provides little assistance in answering the question posed at [34] above.

3. In [NAME] consideration was given to subclause 30B(1)(c) of the Industrial Relations Regulations 1989 (Cth) which excluded from the unfair dismissal provisions of the Industrial Relations Act 1988 (Cth): (c) employees serving a period of probation or a qualifying period of employment, if the duration of the period or the maximum duration of the period, as the case requires: (i) is determined in advance; and (ii) is reasonable, having regard to the nature and circumstances of the employment;

1. Subclause 30B(1)(c), unlike subclause 6(1)(c) of the [NAME] (see [11] above), did not provide a blanket exclusion for employees whose probation period was for a maximum of three months or less. No maximum probation period was specified so, presumably, a dismissed employee who was serving a probation period of as short duration as one or two months would still have been able to pursue an unfair dismissal remedy if it could be demonstrated that such period was not reasonable, having regard to the nature and circumstances of the employment. Consideration of what maximum duration of a probation period was "reasonable" under subclause 30B(1)(c)(ii) applied to all probation periods determined in advance whereas, under subclause 6(1)(c)(ii) of the [NAME], such consideration only arose in respect of probation periods with a maximum duration of more than three months.

2. Further, in [NAME] consideration of what was a reasonable probation period was not taking place, as it is in the present case, against the background of arrangements which exist in [NAME] employment where probation periods of six months or longer are the norm rather than the exception.

3. As stated at [22] and [24] above, the applicant relies on passages from the decision of [NAME] in Levy which are there set out. However, immediately following the passage cited at [24], the Commissioner stated as follows: 43 Probationary Crown employees in the past have often pursued a remedy under Part 6 without jurisdictional challenge. I see no reason that they should not be able to continue to do so. I note in that respect the so far unreported decision of [NAME], the President of the Commission, on Friday, 6 February, 2009 in [NAME] v. Commissioner of Police [Matter No.IRC 1832 of 2008]. His Honour reinstated a probationary constable whose services were terminated over his failure to follow basic policing procedures and compounded that failure with subsequent untruths about his conduct. Whilst recognising the importance of integrity in a police officer, his Honour nevertheless formed the view that the dismissal of the probationary police officer was too severe a penalty for him.

1. However, the Commissioner's reliance upon the decision of [NAME] in [NAME] must now be called into question in light of the judgement of the High Court in Eaton.

2. The starting point for consideration of the question posed at [34] above is subclause 5(2)(b) of the [NAME] (at [13] above), which provides for a probation period of six months or longer for a [NAME] non-executive employee. For the applicant to succeed, she must demonstrate that, in her case, a six month probation period, mandated as it is by subordinate legislation, was, nevertheless, unreasonable.

3. As noted at [15] above, police officers generally serve a period as probationary constables of one year which is also prescribed by subordinate legislation.

4. In [NAME] (cited at [27] above), [NAME] considered the situation of the applicant in that matter, who had accepted an offer of appointment on probation for twelve months to the position of Accommodation Support Worker. The applicant's employment had been terminated approximately seven and a half months after its commencement. After reviewing the nature and circumstances of the applicant's employment, his Honour concluded that the probationary period of twelve months was reasonable.

5. I also note that Correctional Officers are required to serve a probation period of twelve months or longer pursuant to an award prescription (Clause 8. Progression and Promotion, Crown Employees (Correctional Officers, Department of Communities and Justice – Corrective Services NSW) Award).

6. In her unfair dismissal application, the applicant stated:

35. The Applicant submits that her perceived reluctance to do live radio interviews cannot be considered a valid reason to terminate her employment in circumstances where: a. The Applicant completed a number of live interviews with zero assistance; b. [NAME] was consistently advising the Applicant that she was doing a good job and that the agency would 'ease' the Applicant into doing more live interviews; c. The Applicant's hesitancy did not impede her from doing live interviews. The Applicant's hesitancy was caused by the fact she had little experience in emergency management and could be asked complex questions not covered in pre-prepared talking points. In these circumstances, the Applicant did not want to be in a position where she was providing emergency information that would be relied on by the public without appropriate training and an in depth understanding of emergency management procedures. In the Applicant's view, this was too big of a risk to the Respondent; d. Until the Applicant was appropriately trained, it was logical to allow more experienced employees to conduct live interviews so that the Applicant could observe and learn; and e. The Applicant was not advised by the Respondent that she was not doing enough live interviews. The Applicant only received reassurance that it would take time for her to develop an understanding of emergency management and that the Respondent would assist her in developing this knowledge.

1. Having considered the nature and circumstances of the applicant's employment, including those matters set out on behalf of the applicant at [23] above and, in particular, the complexity and challenging nature of her role, I have formed the opinion that a probation period of six months was reasonable. It follows that the Commission lacks the jurisdiction to hear and determine the Application.

2. In the Application it was claimed that the requirements of clause 14 of the GSE Rules were not complied with in relation to the termination of the applicant's employment. Clause 14 is in the following terms:

14 Termination of employment (1) The employment of a [NAME] non-executive employee may not be terminated under section 47 of the Act unless— (a) the employee is, to the extent that it is reasonably practicable to do so, notified of the proposed termination and given a reasonable opportunity to make submissions in relation to the proposed termination, and (b) the agency head has taken any such submissions into consideration. (2) This rule does not limit any of the other requirements under these Rules that relate to the termination of employment of a [NAME] non-executive employee.

1. Given the determination I have made at [47] above, this is not a matter which the Commission is able to consider and rule upon. The Commission does not have the power to exercise a form of quasi-declaratory jurisdiction with respect to the administrative steps taken within a government agency's decision making processes, in circumstances such as those of the present case, where the Commission lacks the statutory power to grant the relief being sought.

Order 1. The unfair dismissal application filed by the applicant on 2 April 2020 is dismissed for want of jurisdiction. [NAME] Commissioner

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Amendments 29 June 2020 - In Catchwords deleted the word "probationary" and inserted the word "probation" and "probation period" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 June 2020