Chee v Chubb Security Australia Pty Ltd [2000] QIRC 133 (2001) 166 QGIG 54

54 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 January, 2001 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Malcolm John Chee AND Chubb Security Australia Pty Ltd (No. B1427 of 2000) COMMISSIONER BLADES 21 December 2000 Probation – Transfer of a business – Cessation of contract with former employer – New contract with new employer – Termination within 3 months – Whether applicant on probation – Certified agreement required new employees to be engaged on probation – Continuity provisions of ss 68 and 69 applied – Service with former employer to be taken into account – Applicant not on probation and not an excluded employee. DECISION Section 72(1) of the Industrial Relations Act 1999 provides as follows:– “Section 73(1) does not apply to – (a) an employee during the first 3 months of employment with an employer (the “probationary period”), if the dismissal is for a reason other than an invalid reason, unless the employee and employer agree in writing that the employee serve – (i) a period of probation that is shorter than the probationary period; or (ii) no period of probation;”. Section 73(1) provides for when a dismissal is unfair. The applicant in this case was employed as a Security Guard with ARM Security in about July 1998 and when the business was sold to Chubb Security, he “transferred” to Chubb Security. In saying he “transferred”, there is no doubt that the contract of employment with ARM Security came to an end. The applicant entered into a new contract of employment with Chubb on 30 June, 2000 in the following terms:– “LETTER OF APPOINTMENT We are pleased to offer you employment as a Part-Time Security Officer with Chubb Security Australia Pty Ltd (‘Chubb’). TERMS OF EMPLOYMENT You will initially be employed as a Part-Time Security Officer. As a Part-Time Security Officer there is a minimum amount of 12 hours work per week or (sic) ongoing employment. You may be offered a permanent position as a Security officer, in which case this signed letter of appointment will still apply. If initially employed on a casual basis you will be required to come in for another interview in your own time, prior to being offered a permanent position. PROBATIONARY PERIOD If you are offered a permanent position with Chubb you will be employed on a probationary basis for a period of three months. During this period either you or Chubb may terminate the contract of employment by providing one week’s notice.”. The respondent maintains that the applicant was employed on a three month probationary period and the employment contract came to an end during that period. The applicant is therefore excluded from the provisions of the Act by s. 72(1). The applicant alleges that the contract of employment constituted an implied agreement in writing to the effect that no probationary period should apply. This implied agreement is said to arise because the Letter of Appointment draws a distinction between a “part-time security officer” and a “permanent position” and also distinguishes staff employed on a casual basis. The submission is that the Letter of Appointment offers the applicant a “part-time position” and the probation provided by the contract applies only to a staff member offered a permanent position. The language used in the Letter of Appointment under Terms of Employment does appear to be somewhat confusing. At first glance it seems to suggest that part-time employment is not permanent employment. But permanent employment can be either part-time or full-time as opposed to casual employment. The second paragraph of the Terms of Employment clause cannot be read as suggesting that the employment of the applicant was other than permanent. The second sentence of that paragraph only has application if casual employment be offered. The applicant was not offered employment on a casual basis, it was part-time. The second paragraph is, in my respectful view, an unnecessary and confusing addition to the Letter of Appointment. The Certified Agreement under which the applicant was employed, the Chubb Protective Services Certified Agreement (Qld) 2000, provides at clause 2.1.6 that at point of engagement an employee shall be notified in writing whether the employment is full-time, part-time or casual. This was done. The Letter of Appointment then makes it clear that the employment is either permanent or casual. That Certified Agreement provides in clause 2.1.7 that an employee shall be engaged on probation for a period of up to three months duration. It is submitted that the Agreement binds both the employer and the employee. The applicant concedes that he knew of the existence of the Certified Agreement, that it was given to him at the time of his engagement and that he must have read it. While he claims that no one told him he was on probation for three months, he also concedes that no one told him he was not on probation for three months. The Certified Agreement required he be engaged on probation for a period and the Letter of Appointment nominated that period at 3 months. The applicant accepted those conditions of employment. I reject the submission that there was any implied agreement. -- 1 of 2 -- 12 January, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 55 Whether the applicant was on probation as a result of the application of the provisions of the Certified Agreement or whether he was on probation because of the provisions of s. 72(1) of the Act, ss. 68 and 69 provide the simple solution to the problem identified in this case. I set out the relevant parts of ss. 68 and 69:– “68 (1) This part applies when working out an employee’s rights and entitlements under this Act or an industrial instrument by prescribing when the employee’s continuity of service is not broken. . . . 69 (3) The transfer of the calling is taken not to break the transferred employee’s continuity of service. (4) A period of service with the former employer (including service before the commencement of this section) is taken to be a period of service with the new employer.”. “Industrial instrument” is of course defined in Schedule 5 to include a certified agreement. The question whether ss. 68 and 69 had application to the unfair dismissal provisions was briefly considered by the President in Harrison -v- Electcom Limited (2000) 163 QGIG 347 where his Honour had regard to extrinsic material including the report of the Industrial Relations Taskforce of December 1998 entitled “Review of Industrial Relations Legislation in Queensland”. At page 56 of the Report, the following appears:– “In relation to transfer of business, the majority of the Taskforce was of the view that continuity of service on transmission of business should be extended to family leave, notice requirements and unfair dismissal. This would prevent the current anomalous situation where an employee would find their entitlements to maternity leave or access to remedies for unlawful dismissal compromised on transfer of business, despite having many years of service.”. In his Second Reading Speech to the Industrial Relations Bill 1999 on 25 May, 1999, the Honourable the Minister said:– “Specifically, the Bill includes – • . . . • The protection of employee entitlements such as annual leave, sick leave, long service leave, family leave and protection of the employee’s continuity of service for dismissal and notice requirements when a business changes hands.”. How then does one protect the employee’s continuity of service for dismissal? How is one’s access to unlawful dismissal compromised in regard to continuity of service? Section 72 of the Act, relating to the exclusion of persons from the unfair dismissal provisions, makes the length of an employee’s service relevant in only two respects, namely for probation purposes and to determine whether an employee is a short term casual. That is the mischief that the Legislation is aimed at. In my view, in either case, ss. 68 and 69 operate to provide that the employee’s previous service with the former employer is taken to be a period of service with the new employer. Accordingly, the period of service with Chubb is taken to be from about July, 1998 when the applicant commenced with ARM Security. This is beneficial legislation [see B.C. Stubbs -v- Austar Entertainment Pty Ltd Print Q0008 (A.I.R.C. 9 April, 1998)] and in Bull -v- Attorney-General (NSW) (1913) 17 CLR 370 Isaacs J said:– “. . . if any ambiguity existed, like all such Acts should be construed beneficially . . . This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow.”. It is my view that the applicant was appointed to a permanent part-time position with Chubb when the previous contract of employment with ARM Securities came to an end. That employment was in accordance with the Chubb Protective Services Certified Agreement (Qld) 2000 which required a period of probation. Section 68 and 69 of the Act applied to that Certified Agreement to provide for the employees, a continuity of service which had specific application when considering the length of service of employees previously employed by ARM Securities. The applicant fell within that category, his service was longer than 3 months and he was not an excluded employee within the terms of s. 72(1). I order accordingly. B.J. BLADES, Commissioner. Released: 22 December 2000 Appearances:– Mr J. Dwyer of Reidy & Tonkin Solicitors, for the Applicant. Mr G. Muir of Employer Services Pty Ltd, for Chubb Security Australia Pty Ltd. -- 2 of 2 --