Interpreting the Power to Sack Probationary Employees and the Right to a Fair Dismissal: Commissioner of Police v Eaton

By Brad Jessup

Commissioner of Police v Eaton Case Page

If you are employed on probation then you typically will not have the benefit of unfair dismissal laws. This is because probation periods are usually no more than six months – and parliamentarians have decided that this is a reasonable time within which employers can decide whether or not they should keep an employee on the job. However, some workers have much longer probationary periods. David Eaton, a former police officer from New South Wales, had an indefinite probationary period. That is, there was no end to his probationary period. He would stay on probation until his supervisors promoted him or, as happened in this case, they sacked him.

In the recent High Court case of Commissioner of Police v Eaton [2013] HCA 2 the Court provided some insights into the nature of probationary employment, highlighting the insecure nature of that stage of employment, particularly for police officers. The Court also commented on the implications of employers having an “unfettered power” to dismiss their employees. In reaching their decisions the judges relied on some different, and incompatible and incomplete, approaches to interpreting legislation. This suggests that there are disagreements within the Court on how to tackle the task of giving meaning to statutes.

The Sacking of David Eaton
In this case David Eaton had been a probationary police officer for two years and three months when he was sacked in July 2009. He successfully complained to the NSW Industrial Relations Commission that his dismissal was unfair under NSW’s unfair dismissal laws for its public servants. In the NSW Court of Appeal, David Eaton was successful. The NSW Police Commissioner, however, appealed to the High Court, arguing that David Eaton did not have the benefit of these laws because he was a probationary police officer. The Police Commissioner argued that the police could sack any police officer on probation regardless of how long he or she had been employed. The Police Commissioner relied on provisions of the Police Act 1990 (NSW). (See Commissioner’s written submissions here.)

The Statutory Conflict?
In this case the words in the two statutes were of critical importance. There were two main competing provisions in the different statutes.

Section 80(3) of the Police Act stated that:

The Commissioner may dismiss any such probationary police officer from the NSW Police Force at any time and without giving any reason.

This provision gave to the Police Commissioner the power to sack David Eaton. Potentially inconsistent with this provision was the Industrial Relations Act 1996 (NSW), which gave public service employees a right to claim that their termination was unfair (and seek compensation or reinstatement). The relevant provision was section 84(1) of the Industrial Relations Act. It stated that:

If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply … for the claim to be dealt with [under the law].

The Dissenting View – The Acts are Consistent
I think that the preferred and most logical view of the meaning of the two Acts was expressed by Justice Gageler, who found himself in dissent in one of his first judgments. He found that the two laws were consistent. In doing so he used the statutory interpretation principle of harmonious construction. That is, a principle that courts should interpret statutes so as to not create an inconsistency or contradiction between them. According to this principle, the only time inconsistency should be preferred is where the consequence of giving effect to both laws is clearly unintended.

For Justice Gageler there was no inconsistency between laws allowing termination of employment and of allowing claims for unfair dismissal. The unfair dismissal laws, as interpreted, clearly applied to probationary officers. Exemptions were specified in the Industrial Relations Act, including for public servants on conventional probationary periods. However, those exemptions did not extend to include probationary police officers.

Moreover, the Police Act included a provision that preserved the Industrial Relations Act. Section 218(1) of the Police Act stated that:

The Industrial Relations Act is not affected by anything in this Act.

The Majority View – A Search for Incompatibility
Nevertheless, the majority found for the Police Commissioner, upholding the appeal, and concluding that probationary officers of the police force do not have access to NSW’s unfair dismissal laws.

Justice Heydon, in one of his final cases, led the judgment. In his separate judgment, Justice Heydon looked very closely at the words in the Police Act, and he found that the Police Commissioner had an ‘unfettered power’ to dismiss. Justice Heydon’s approach of searching for incompatibility was in contrast to Justice Gageler’s approach of seeking out consistency. The presence of a power to dismiss within the Police Act, Justice Heydon said, meant that the Police Commission was “necessarily immune’ from unfair dismissal laws. He was very much influenced by the probationary status of David Eaton’s employment. For Justice Heydon this was a key factor pointing towards a conclusion that unfair dismissal laws do not apply.

Justice Heydon was joined by Justices Crennan, Kiefel and Bell in forming the majority in the case.

Whereas Justice Gageler relied on the principle of harmonious construction in reaching his outcome, Justices Crennan, Kiefel and Bell all prioritised the statutory interpretation approach of preferring the intention of an earlier and more specific law (the Police Act) over a later and general law (the Industrial Relations Act).

Like Justice Heydon they concluded that the Police Act gave an unfettered power of dismissal to the Police Commissioner. They thought the ability of the Police Commissioner to dismiss a probationary officer without giving reasons supported this viewpoint.

The joint majority judges were also influenced by the fact that alternative unfair dismissal provisions had been introduced into the Police Act that applied to permanent police officers. Those legislative changes created a different route for permanent (that is, not probationary) police officers to complain about unfair dismissal. In the judges’ view this alternative process was more restrictive than the unfair dismissal provisions that applied more broadly to NSW public servants (and hence potentially to David Eaton). These judges asserted that:

An anomalous position would result whereby probationary constables would enjoy greater procedural rights than confirmed police officers.

What is implicit in this statement is a belief, not apparent in the law that the judges were required to interpret, that probationary employees should be treated more poorly than other workers. The judges did not consider that perhaps especially vulnerable workers, who are susceptible of being dismissed at will for an indeterminate period, should be assured fairness and reasonableness when having their employment terminated.

In reaching their conclusion the majority judges read-down s 218(1) of the Police Act, the provision that states that the Police Act does not affect the Industrial Relations Act. The majority judges argued that because the Police Act does deal with unfair dismissal, with its alternative route for confirmed police officers, s 218(1) was “patently erroneous’. This is an unconventional approach to statutory construction. Overlooked by the majority judges was a widely applied principle of law that just because a provision needs to be read-down in one instance, does not make that provision invalid in all circumstances. If the provision does not create an anomalous outcome in a different context, for instance with respect to probationary officers, then the law should remain valid in that context.

The Fragility of Probationary Employment and the Might of Unfettered Dismissal Powers
Justice Heydon’s judgment offers the greatest potential legacy. His judgment could, for instance, be used in similar situations to argue that probationary work status means fewer rights, and that where an employer has unfettered powers of dismissal then its workers will be unable to make a claim for unfair dismissal.

The Judgment as an Incomplete Picture of Statutory Interpretation
There were two other statutory interpretation principles that the Court did not address. First, throughout Australia each Parliament has directed judges to interpret legislation in a manner that is consistent with the purpose of the legislation. While the judges referred to the intention of each law, they did not turn their minds to the purpose of the laws within a broader context. If they had, they might have decided that the purpose (of the Police Act) of an effective and regulated police force was consistent with the purpose (of the Industrial Relations Act) of a fair and regulated work force.

Second, the High Court has previously held that parliaments cannot take away individual fundamental rights unless they use clear, unambiguous and intentional language. By overlooking this principle, we can assume that the judges do not consider a right to fair treatment in employment to be a fundamental right founded in the common law, or are unwilling to extend the principle to apply to rights created by statute.

AGLC3 Citation: Brad Jessup, ‘Interpreting the Power to Sack Probationary Employees and the Right to a Fair Dismissal: Commissioner of Police v Eaton’ on Opinions on High (15 March 2013) <>.

Brad Jessup is a Lecturer at Melbourne Law School and an Editor of Opinions on High.