Welcome to the November edition of the McKays Consulting newsletter.  In this issue we review two recent AIRC cases dealing with issues affecting nearly every business.

The AIRC has confirmed the difference between the qualifying period, and a probationary period, for new employees under WorkChoices. by refusing to allow an unfair dismissal claim brought within 6 months of commencement of employment.

We hope these case summaries are useful and practical for your business.

Qualifying period... not a probationary period

Most employers are familiar with how probationary periods work...  but may not be familiar with the new WorkChoices "qualifying period."

Under WorkChoices, an employee cannot usually claim for unfair dismissal unless he/she has completed the "qualifying period of employment" of 6 months.

The AIRC has recently confirmed the difference between the qualifying period, and a probationary period, by rejecting an unfair dismissal claim brought within 6 months of commencement of employment.

The facts

·        On 11 April, 2006, GBF Underground Mining Co employed Mr JB

·        On 20 July, 2006 GBF terminated Mr JB's employment without warning

·        Mr JB's unsigned and undated AWA specified a probationary period of three months

·        Mr JB applied for unfair dismissal, saying that he had served out his probationary period and wasn't given a fair warning process before dismissal.

The issues

GBF had more than 100 employees.  Mr JB had served out his probationary period.  Therefore Mr JB was eligible to apply for unfair dismissal. unless prevented by the WorkChoices 6 month qualifying period.

The decision

The Commission:

·        Carefully explained the difference between a probationary period and the qualifying period as:

o       A probationary period is the period set by the employer to assess the suitability for employment

o       The qualifying period states how long an employee must be employed before being able to lodge an unfair dismissal application

o       An employer and employee can agree in writing to reduce the qualifying period - section 643(7) WRA, but that was not done here

·        Dismissed the application for unfair dismissal.

Implications

·        Under WorkChoices, a probationary period is different to the qualifying period

·        Take care that the wording of your probationary periods cannot be mistaken for an agreement to reduce the qualifying period

·        Give careful thought to the length of the probationary period.  Sometimes it is reasonable to require a period longer than six months - eg a senior management position where it will take some time to assess the management performance.

* Justin Bartle v GBF Underground Mining Company AIRC PR 964349

Termination for serious breach of email policy

The Full Bench of the AIRC recently upheld the termination of an employee with an otherwise unblemished long record of service, for email policy breach.

·        Mr MW was employed by Queensland Rail for 27 years

·        Apart from e-mail policy breaches, his performance record was very good

·        QR had clear and well explained policy against e-mail use and from time to time reminded employees of its policy

·        Since 1999, QR had electronic warnings on its computers about improper e-mail use

·        In 2003, Mr MW improperly saved 6 files.  This was located by QR on audit in September 2005, but QR did not raise this with Mr MW until 5 months later

·        From November 2005 to January 2006, 9 improper emails were identified

The issues

·        QR's policy and electronic warnings were clearly given

·        QR's policy was breached, as some of the e-mails and files had sexual content of varying seriousness

·        There was a delay of five months (after September 2005) before QR raised the issue with Mr MW

·        Was termination of employment a disproportionate response by QR?

The decision

Nothwithstanding QR's delay after first discovering the breach, the Full Bench of the AIRC upheld the termination, emphasising:

·        QR's repetitive warnings of the consequences of breaching its email policy; and

·        The repetitive breaches of QR policy.

Implications

Employers should:

·        Have clear e-mail policy, and explain the policy

·        Regularly remind about the consequences of breach of policy

·        Not delay before raising an email breach with an employee.  Nevertheless, delay may not be fatal to a decision to terminate employment

·        Carefully note the significance of repeated breach of policy, as compared to a "one off" breach.

Queensland Rail v M. Wake AIRC (PR974391)

How we can help?

If you require our assistance with:

·        drafting probation periods;

·        employee termination issues; or

·        drafting or enforcing email and other workplace policy;

Contact us at: