Australia, June 30 -- New South Wales Land and Environment Court issued text of the following judgement on May 29:
1. This appeal considers whether a 12-month probation period that applied to a NSW public servant was determined in advance and whether it was reasonable, preventing him from being able to bring an unfair dismissal claim. It requires consideration of whether r 5 of the Government Sector Employment (General) Rules 2014 (GSE Rules), which permits a 12-month probation period, has the effect of determining such a probation period to be reasonable.
2. At first instance Commissioner Muir (Commissioner), in an ex tempore decision Edward Simon v Industrial Relations Secretary in respect of Department of Customer Service (Decision), [1] found that because Mr Simon was dismissed during a probation period that was determined in advance and was reasonable, the Commission did not have jurisdiction to deal with his unfair dismissal claim by operation of s 83(2)(b) of the Industrial Relations Act 1996 (NSW) (IR Act) and reg 6(1)(c) of the Industrial Relations (General) Regulation 2020 (NSW) (IR Regulation).
3. The appeal requires the Full Bench to address two questions:
1) Did the Commissioner err in finding that the probation period was determined in advance, as required by reg 6(1)(c) of the IR Regulation, in circumstances where there was both a set period and a purported maximum period?
2) Did the Commissioner err in finding that the probationary period was reasonable?
4. We have decided to grant leave to appeal and uphold the appeal. There was no error in the Commissioner's conclusion that the probation period was determined in advance as required. However, in determining whether the probation period was reasonable the Commissioner fell into error by failing to have regard to relevant matters, namely the full nature and circumstances of Mr Simon's employment, and by giving too much weight to r 5 of the GSE Rules. Having reconsidered the circumstances for ourselves, we find his conclusion that the probation period was reasonable was correct. It follows that leave to appeal is granted, the appeal is upheld, the Decision is quashed and having redetermined the matter the proceedings are dismissed. Our reasons follow.
Background
5. Mr Simon was employed in the role of "Advisor, Safety and Wellbeing" at the Department of Customer Service (the Department) on 11 December 2023.
6. He was employed under a contract of employment which relevantly provided:
"Probation 6 months see appendix for further detail"
7. Further, the appendix to the contract provided:
"Probation if applicable
An employee serving a period of probation may have the period extended for up to 6 months (maximum total duration of 12 months)."
8. By letter dated 6 May 2024, the Department extended Mr Simon's period of probation by a further 11 weeks to 27 August 2024.
9. Mr Simon's employment was terminated on 26 August 2024. The reason for his dismissal by the Department was that Mr Simon had not satisfied the requirements for the role during his probation period. That is, his employment was terminated pursuant to s 47(1)(a) of the Government Sector Employment Act 2013 (NSW) (GSE Act) for not meeting a condition of engagement under s 54 of the GSE Act.
10. The Commissioner dismissed Mr Simon's unfair dismissal claim, on the basis that his employment was terminated during a probation period that was reasonable.
*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1970a237cfb38fb81b34ccc3)
Disclaimer: Curated by HT Syndication.
