Alamzeb v Education Queensland (No.1) [2001] ICQ 72 (2001) 168 QGIG 347

7 December, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 347 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal against decision of industrial commission Muhammad Alamzeb AND Education Queensland (No.1) (No.C55 of 2001) PRESIDENT HALL 28 November 2001 REPORT ON DECISION (as edited) In giving a decision from the Bench on 15 November 2001, President Hall stated:– “I have in this matter determined to allow fresh evidence to be given pursuant to s. 348(2). One is necessarily reluctant to take such a course but it seems to me to be unavoidable. In terminating the employment of Mr Alamzeb Education Queensland proceeded on the view that he was a probationary employee. The processes of the review and the decision making steps were those appropriate for a probationary employee. Had Mr Alamzeb been a teacher on tenure the review process and the decision making steps would have been different. Mr Alamzeb vigorously contends that he was not a probationary employee. He develops a number of arguments. The first argument is that he was in fact reviewed twice by the head of the department of mathematics and by the principal in 1999, that his performance was satisfactory, that his initial probationary period was eight months and that in those circumstances Education Queensland had a duty to appoint him to a permanent position at the end of the eight months. It is contended that Education Queensland having failed to do so, Mr Alamzeb should be treated (constructive) as having tenure from that point. An alternative argument is that it is the effect of the regulations made under the Public Service Act 1996 that when at the expiry of the eight month period Mr Alamzeb was neither told that his position was confirmed nor told that his probation had been extended, he was deemed to have tenure. Further and in the alternative, it is argued that in the circumstances of Mr Alamzeb’s employment the maximum period of probation was twelve months. The twelve month period having expired and Mr Alamzeb having been neither told that he was confirmed nor told that he was dismissed he was deemed to have been confirmed from the end of the twelve month period. I do not at this time rule on any of those submissions. It is with a fourth submission that I am concerned. It is put, in reliance of s. 73 of the Public Service Act 1996, that in any event at the expiry of thirteen months, by operation of law, Mr Alamzeb’s position became a tenured position. At that point the evidence becomes critical. The thirteen months ran out at or about the time Mr Alamzeb’s termination. The application for reinstatement filed by Mr Alamzeb variously nominates 1 June 2000 and 2 June 2000 as the date of termination. With the benefit of hindsight it is now apparent that from about halfway through the trial that was not Mr Alamzeb’s contention at all. The difficulty is of course that the now respondent acted on the basis of the pleadings. It was not remiss of them to do so. Ultimately on the very last day Mr Alamzeb sought leave to amend his pleadings. If that application had been refused it would seem to me that on a normal application of the rule in House v The King (1936) 55 CLR 499, the matter being one of the exercise discretion about practice and procedure, one would not have interfered with the decision. If the amendment had been allowed once again it seems to me one would not have interfered. Unfortunately, having rejected the application, the Commission in its decision treated the matter of date of termination as being in issue and did decide it upon such evidence as had been led on that matter. It seems to me that at that point there was unfairness to the point of injustice to each of the appellant and the respondent. In particular the respondent is now put in the position of seeking to support the Commission’s decision that the dismissal occurred on 9 June 2000 (the very last day) on the basis of what is on any view of it meagre and argumentative material. I am told by the respondent, and I accept, that the respondent is in a position to call substantial evidence bearing upon the issue of date of termination. Equally from Mr Alamzeb’s point of view his inability to understand the limitation which the application form imposed upon him meant that he was not able to pursue with witnesses, in the way that he might have wanted to do so, matters relevant to the date of termination. In all those circumstances it seems to me that the only satisfactory course is to exercise the power to hear fresh evidence. The option of holding that the Commissioner erred in law on that narrow point and remitting a matter, which took 17 days in the first instance, to be heard yet again is, as I understand it, unattractive to all parties. To hold the appellant to his pleadings would be unfair to the appellant and unjust to tax payers who paid for a 17 day hearing. Further, it is plain from the transcript that the Commissioner rejected the application to amend because the Commissioner intended to decide the issue on the evidence which had been led. For those reasons I have decided to hear fresh evidence.”. Dated this twenty-eighth day of November, 2001. By the Court, [L.S.] E. EWALD, Industrial Registrar. Released: 28 November 2001 Appearances:– The appellant in person. Mr C. Murdoch instructed by Crown Law for the respondent. -- 1 of 1 --