Attwood v Wangka Maya Pilbara Aboriginal Language Centre
[2010] FMCA 342
•21 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ATTWOOD v WANGKA MAYA PILBARA ABORIGINAL LANGUAGE CENTRE | [2010] FMCA 342 |
| INDUSTRIAL LAW – Termination of employment – whether termination based on race by reason of applicant being a registered native title claimant – whether contravention of s.659(2)(f) of the Workplace Relations Act. CONTRACT – Unpaid employment entitlements – terms of contract based on industrial award – interpretation of award – termination of employment – whether fixed term contract or contract terminable on notice. |
| Aboriginal Communities and Organisations (Western Australia) Award 1996 Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) Evidence Act 1995 (Cth), ss.59(1), 135(a) Federal Magistrates Act 1999 (Cth), ss.3(2), 14, 18, 42, 76(3)(d), 77(3)(a) Federal Magistrates Court Rules 2001 (Cth), rr.1.03(4), 26.01 Industrial Relations Act 1988 (Cth), ss.170 CA, 170CB, 170 CC Industrial Relations Regulations (Cth), reg.30B Workplace Relations Act 1996 (Cth), ss.650, 659(2)(f), 663, 664, 665(1)(a) & (c), 841 |
| Amcor Ltd v Construction, Forestry, Mining and Energy Union & Ors (2005) 222 CLR 241; [2005] HCA 10 Australasian Meat Industry Employees Union (WA Branch) v Woolworths Ltd (2007) 164 FCR 420; [2007] FCAFC 201 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Skilled Engineering Ltd [2003] FCA 260 Finance Sector Union of Australia v Commonwealth Bank of Australia (2001) 106 IR 172; [2001] FCA 335 Kucks v CSR Ltd (1996) 66 IR 182 NSW Nurses Association v Ramsay Health Care Australia Pty Ltd (2009) 185 IR 1; [2009] FMCA 579 |
| Applicant: | MARY MAGDALEN ATTWOOD |
| Respondent: | WANGKA MAYA PILBARA ABORIGINAL LANGUAGE CENTRE |
| File Number: | PEG 53 of 2008 |
| Judgment of: | Lucev FM |
| Hearing dates: | 23-24 September 2008 |
| Date of Last Submission: | 24 September 2008 |
| Delivered at: | Perth |
| Delivered on: | 21 May 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Rumsley |
| Solicitors for the Applicant: | Alan Rumsley |
| Counsel for the Respondent: | Ms K Reid |
| Solicitors for the Respondent: | Freehills |
ORDERS
That the application under s.663 of the Workplace Relations Act 1996 (Cth) (“WR Act”) for an order under s.665 of the WR Act in relation to an alleged unlawful termination of employment of the applicant under s.659(2)(f) of the WR Act be dismissed.
That the application under s.18 of the Federal Magistrates Act 1999 (Cth) in relation to alleged unpaid entitlements under the applicant’s contract of employment be upheld, and that by 4 June 2010 the respondent pay the applicant:
(a)the sum of $37589.20 for unpaid salary;
(b)the sum of $3383.03 for unpaid superannuation;
(c)a lump sum in lieu of interest of $3758.92 on unpaid salary;
(d)a lump sum in lieu of interest of $338.30 on unpaid superannuation.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 53 of 2008
| MARY MAGDALEN ATTWOOD |
Applicant
And
| WANGKA MAYA PILBARA ABORIGINAL LANGUAGE CENTRE |
Respondent
REASONS FOR JUDGMENT
Application
The applicant, Ms Attwood, seeks compensation in the amount of $24,443 under s.665(1)(c) of the Workplace Relations Act 1996 (Cth)[1] in respect of alleged conduct by the respondent, the Wangka Maya Pilbara Aboriginal Language Centre,[2] said to be conduct in contravention of s.659(2)(f) of the WR Act, namely termination of employment for a prohibited reason, that reason being Ms Attwood’s race. Further, and in the alternative, Ms Attwood seeks damages in the amount of $44,271.98 in respect of alleged unpaid entitlements under an employment agreement between Ms Attwood and Wangka Maya dating from about July 2007, which expired on 30 June 2008. That claim is brought under s.18 of the Federal Magistrates Act 1999 (Cth),[3] in the Court’s statutory associated jurisdiction.
[1] “WR Act”.
[2] “Wangka Maya”.
[3] “FM Act”.
An interim application to amend the application
At hearing, Ms Attwood sought to amend the application to include a claim for penalty to be imposed under ss.665(1)(a) and 841 of the WR Act. That application was dismissed on the first day of the hearing. The reasons for dismissal of the application to amend the application, edited from the oral reasons given on the first day of the hearing, appear immediately hereunder.
There is an interim application made in opening under ss.665(1)(a) and 841 of the WR Act, for the application to be amended to include a claim for an order that a penalty be imposed on Wangka Maya, and that any such penalty be payable to Ms Attwood.
It is relevant to note the litigation history of this matter in this Court. The application was filed in April 2008, together with a statement of claim. The matter came before the Court for a first court date on 22 April 2008, at which time it was adjourned to 19 May 2008. On 19 May 2008, orders were made listing the matter through to the hearing on 23 and 24 September 2008, and providing for the filing and serving of a defence, the filing and service of affidavits and referral to mediation. There was a subsequent application in the case by Wangka Maya. That application in the case was made on 13 August 2008 and came before the Court on 18 August 2008 and related to an allegation that Ms Attwood had failed to file affidavits in accordance with the orders of the Court. That matter was dealt with by the Court at that time, with orders made extending the timetable with respect to the filing of affidavits and various procedural matters and imposing costs orders upon Ms Attwood, who at that time was in default. Affidavits were subsequently filed on behalf of Wangka Maya in relation to the application as it then stood and various objections were filed in relation to those affidavits and responded to by Wangka Maya.
In looking at the question of whether or not an application of this type ought to be granted at this stage of a hearing, the Court must have regard to the provisions of the FM Act and the Federal Magistrates Court Rules 2001 (Cth),[4] and in particular ss.3, 14 and 42 of the FM Act. The objects of the FM Act in s.3(2) require the Court to operate informally in the exercise of the judicial power of the Commonwealth, which it exercises, and also to use streamlined procedures and to encourage appropriate dispute resolution procedures. Section 42 of the FM Act provides that the Court must proceed without undue formality and must endeavour to ensure that proceedings are not protracted. Section 14 of the FM Act requires the Court to determine a matter completely and finally, granting all remedies to which any of the parties appear to be entitled in respect of any legal or equitable claim which is put forward.
[4] “FMC Rules”.
Rule 1.03 of the FMC Rules reflects the objects of the FM Act and in particular, reflects s.3(2) of the FM Act. It also provides that the parties themselves must avoid undue delay, expense and technicality.[5] In the circumstances, and given that:
a)there was no prior indication that an application of this type was to be made; and
b)it may be the case that Wangka Maya would have approached the matter differently, both in terms of mediation and its evidence had there been such a prior indication,
the Court does not propose to grant the application to amend the application. The Court takes the view that the objects of the FM Act and the FMC Rules require it to deal with the application as it presently stands.
[5] FMC Rules, r.1.03(4).
Furthermore, there is no good reason put forward as to why such an application was not made at an earlier stage, and that also bears upon the conclusion that the Court has reached. In all of those circumstances, the application to amend the application to include provision for a penalty and payment of any penalty to Ms Attwood is dismissed.
Wangka Maya response to the application
Wangka Maya opposes the application, and denies that Ms Attwood is entitled to any relief at all.
Issues
The issues in these proceedings are whether:
a)Ms Attwood was unlawfully terminated on the basis of race; and
b)Ms Attwood is entitled to be paid out the balance of the term of her employment agreement on the basis that it was a fixed term employment agreement.
Evidence
The evidence in these proceedings comprised:
a)for Ms Attwood:
i)the affidavit of Ms Attwood;[6]
ii)attachments to an affidavit of Alan Phillip Rumsley sworn 13 August 2008,[7] being annexures APR 1 to APR 18, the annexures going into evidence through Ms Attwood’s oral evidence, without Mr Rumsley’s Affidavit being admitted into evidence; and
iii)an email from “Fran Haintz” to “Rose Murray” dated 10 November 2006;[8] and
b)for Wangka Maya:
i)the affidavit of Frances Veronica Haintz, sworn 27 August 2008.[9] Ms Haintz was the manager of Wangka Maya, and was responsible in particular for personnel management of Wangka Maya at all material times. She left Wangka Maya in February 2008 to work for BHP Billiton Iron Ore;[10] and
ii)the Aboriginal Communities and Organisation (Western Australia) Award 2001.[11]
[6] Affidavit of Mary Magdalen Attwood, sworn 13 August 2008 (“Ms Attwood’s Affidavit”).
[7] “Mr Rumsley’s Affidavit”.
[8] Exhibit A1.
[9] “Ms Haintz’s Affidavit”. Parts of Ms Haintz’s Affidavit were struck out as inadmissible: see transcript pages 41-46. An affidavit of Lorraine Injie, sworn 26 August 2008, was filed but ultimately not relied upon by Wangka Maya: see Transcript at page 60.
[10] Ms Haintz’s Affidavit, paras.4-7.
[11] Exhibit R1 (“Award”).
Ms Attwood also sought to have admitted a number of emails. Apart from the fact that the emails were sent to an email address at Wangka Maya no person in these proceedings had ever previously seen the emails or had any involvement in their drafting or the matters adverted to in them. In short, no witness called in these proceedings could actually give evidence about those emails. The content of the emails is therefore hearsay, and not admissible.[12] Further, because the emails were tendered in an attempt to establish that at least one other employee of Wangka Maya engaged in email activities unrelated to the business of Wangka Maya, to admit the emails into evidence without having any evidence as to what the content of the emails actually related to, would be unfairly prejudicial to Wangka Maya when compared to its probative value, and the Court would therefore exclude the evidence under s.135(a) of the Evidence Act. The Court has reached that view because, whilst on their face the emails appear to deal with matters which might not be part of the business of Wangka Maya, it is not possible to say that that is the case with any degree of satisfaction in the absence of evidence as to the content of the emails from a person involved in the drafting or receipt of the emails.
[12] Evidence Act 1995 (Cth) (“Evidence Act”), s.59(1).
Facts – agreed
There is agreement that:
a)Ms Attwood was employed by Wangka Maya:
i)from 8 February 2006 until 17 September 2006 as a Link Up Caseworker;
ii)from 18 September 2006 as a Link Up Co-ordinator; and
iii)from 1 July 2007 to 10 September 2007 as a Link Up Co-ordinator;
b)Wangka Maya was at all material times:
i)incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), being incorporated on 19 September 1989; and
ii)an employer for the purposes of the WR Act;
c)the then Australian Industrial Relations Commission certified under s.650(2)(a) of the WR Act that all reasonable attempts to settle the matter by conciliation had been or were likely to be unsuccessful; and
d)Ms Attwood gave notice of her intention to bring proceedings in this Court for an order under s.665 of the WR Act in respect of alleged contraventions of s.659 of the WR Act by way of Notice of Election to Begin Court Proceedings dated 21 March 2008.[13]
[13] This point was conceded part way through the hearing by Wangka Maya’s Counsel: see Transcript at page 39.
Facts – not admitted
Wangka Maya does not admit that Ms Attwood is and was at all material times:
a)an aboriginal person; and
b)a registered claimant in the Kariyarra native title claims, being Bridie v Western Australia in the Federal Court of Australia, Action Numbers WAD6148-6150 and 6155-6156 of 1998.[14]
[14] “Kariyarra Native Title Claims”.
The evidence is that Ms Attwood is aboriginal: she asserts that she is “an Aboriginal person”.[15] Ms Attwood refers to “Aboriginal people” as being “my people”.[16] Ms Attwood was not challenged in cross-examination as to her aboriginality. The Court finds that she is an Aboriginal person.
[15] Affidavit of Mary Magdalen Attwood, sworn 13 August 2008 Ms Attwood’s Affidavit, para.4 (“Ms Attwood’s Affidavit”).
[16] Ms Attwood’s Affidavit, para.4.
Ms Attwood gave evidence that she was a registered claimant in the Kariyarra Native Title Claims.[17] That evidence was not challenged in cross-examination. The Court finds that Ms Attwood is a registered claimant in the Kariyarra Native Title Claims.
[17] Ms Attwood’s Affidavit, para.13.
Termination of employment on the basis of race
Ms Attwood alleges that on or about 10 September 2007 Wangka Maya’s manager, Ms Haintz, informed her that Wangka Maya had decided to bring her employment to an end, and that that advice was contained in a letter to her dated 30 August 2007.[18] Ms Attwood says that Wangka Maya gave notice of termination of her employment effective 10 September 2007.
[18] “30 August 2007 Letter”: Ms Attwood’s Affidavit, para.29.
Ms Attwood says that the termination of employment was by reason of her status as a registered claimant in the Kariyarra Native Title Claims, and was therefore by reason of race, in breach of s.659(2)(f) of the WR Act. That is denied by Wangka Maya.
Wangka Maya said that it had concerns regarding Ms Attwood’s performance in her role, and gave her repeated opportunities to address those concerns. Wangka Maya says those opportunities consisted of invitations to meet with Wangka Maya’s Executive Committee and written requests to address those concerns. Wangka Maya says it came to a decision to terminate Ms Attwood’s employment on 27 August 2007 due to her inability to satisfactorily perform her role, and/or to address the concerns Wangka Maya had about her performance. Wangka Maya says that Ms Attwood’s employment was terminated on 10 September 2007, and confirmed by letter on 11 September 2007.[19]
[19] “Termination Letter”: Ms Haintz’s Affidavit, Annexure FVH 24.
Wangka Maya – purpose and Link Up programme
Wangka Maya is a not-for-profit organisation set up to promote Pilbara Aboriginal languages.[20] Its role has been formally described as the research, receipt, collation, recording and storing of information and materials relating to languages of numerous Aboriginal groups in the Pilbara region, so as to facilitate the preservation of the information as an integral part of the culture of the relevant Pilbara Aboriginal group.[21]
[20] Ms Haintz’s Affidavit, paras.8-11.
[21] See Ms Haintz’s Affidavit, Annexure FVH 1, being a Memorandum of Understanding between Wangka Maya and Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation for the Pilbara Native Title Service, clauses 1.1, 3.1 and 3.2 (“Memorandum of Understanding”).
The Link Up programme was established to carry out research and family tracing of Aboriginal persons from the Stolen Generation who had been removed from their Aboriginal communities by government policy. The research and tracing work involves establishing a connection, and if possible reuniting families. It involves a not inconsiderable research component. It is for clients to originate the contact with the Link Up programme, and not the other way around.[22]
[22] Ms Haintz’s Affidavit, paras.12-14.
Wangka Maya is essentially externally funded by both Federal and State governments.[23] The Link Up programme is the subject of strict funding criteria, which requires an application for renewal every three years and the provision of budgets, strategic plans and other management requirements.[24] The purpose of the Link Up Co-ordinator role is described in the position description in the following terms:
Reunite families from the Stolen Generations and other separations due to previous government policies and practices and provide public information, education and awareness campaigns and services for ongoing healing..[25]
[23] Ms Haintz’s Affidavit, paras.16-20.
[24] Ms Haintz’s Affidavit, para.21.
[25] Ms Haintz’s Affidavit, Annexure FVH 7.
The nature and purpose of the Link Up programme and the role of Link Up Coordinator at Wangka Maya contains no reference to Native Title issues.
In her evidence Ms Attwood acknowledged that the issues with which Link Up dealt were “sensitive”,[26] that because of that sensitivity confidentiality had to be maintained,[27] and further that if performance indicators set down by the funding body were not met then there was a risk that the programme would lose its funding.[28]
[26] Transcript at page 15.
[27] Transcript at page 16.
[28] Transcript at page 17.
Background to termination of employment of Ms Attwood
On 3 July 2007 a “Staff Appraisal Form” was completed in relation to Ms Attwood by Wangka Maya’s manager, Ms Haintz and another Wangka Maya employee, Lorraine Injie.[29] Relevantly, the Staff Appraisal Form contains a recommendation that Ms Attwood be offered a renewed contract for new (2007-2008) financial year.[30]
[29] “Staff Appraisal Form”; Annexure APR 9; Ms Haintz’s Affidavit, Annexure FVH 9.
[30] Staff Appraisal Form, page 5.
The Staff Appraisal Form related to Ms Attwood’s performance to 30 June 2007. There is no dispute that a variety of issues were raised with Ms Attwood and that various actions were noted as being required of Ms Attwood in the future. Those actions, as noted in the Staff Appraisal Form as amended, appear as follows:
1.Mary to amend plan and ensure relevant and have it ready to commence 1 July 07.
2.Weekly Staff Meetings for Link Up to recommence. – Mary to action.
3.Link Up to be physically present at committee meetings on a quarterly basis. – Fran to action.
4.Mary needs ensure weekly meetings to ensure projects and case management actions are completed and timelines are met.
5.Mary to work toward catching up data entry for next reporting period.
6.Mary agreed to implement system or time weekly when Caseworker staff maintains data entry.
7.Mary to speak with female Caseworker re absences and report back to Management.
8.Fran to negotiate with funding body around purchase/lease of second vehicle.
9.Mary to prepare agreements for presentation to AMS by the end of July 07 with a view that all MOUs or agreements are in place by the end of August 07.
10.Mary to implement travel plan ensuring one caseworker visits Roebourne on a regular basis as well as Carnarvon.
11.Mary to get CSTS calendar from DCD to ensure staff participation in relevant training.
12.Fran to check pay rates, Coordinator compares to Caseworkers.
13.Questionnaire to be given to all Carnarvon Mission attendees get BSF worker in Carnarvon to assist. – Mary to follow up and check out.[31]
[31] Staff Appraisal Form.
There does not appear to be any dispute that the actions set out above were “clear goals”[32] which had been agreed to by Ms Attwood.[33]
[32] Transcript at page 26.
[33] Ms Haintz’s Affidavit, para.72.
The Executive Committee of Wangka Maya met on 14 August 2007[34] and the minutes of that meeting[35] provide as follows:
[34] Ms Haintz’s Affidavit, paras.92-94.
[35] “Executive Committee Minutes 14 August 2007”.
“2. Issues to be discussed
Alleged misuse of Resources for personal gain i.e. Native Title Research
Alleged withholding of client files – Fran found five client files in Mary’s office in her filing cabinet. Some un opened and had been received in April.
Alleged forcing clients or community members to sign applications for information.
Performance Management Issues
Staff Resigning – All staff have stated they do not wish to work under Mary any longer.
Staff Absences – Staff are often away and take leave.
Staff not willing to work under Mary coordination
Lack of Management and Direction
Lack of outcomes –
Implications
Lack of services to clients
Inability to keep staff leading to lack of service provision to clients
Reporting late to funding body
Recommendations
Option 1 – Mary asked to explain above from her point of view
Option 2 – Look at terminating contract.
Committee discussed the above and felt that there was cause to question Mary’s workplace behaviour.
Committee agreed that they need to meet with Mary and ask for a response regarding the above. Meeting was set for Thursday at 9am.
Actions
1.Advise Mary in writing about meeting Thursday.
2.Removed computer from Mary’s office.
3.Advised Hazel Lockyer to work from home.
4.Seek legal advice for workplace and industrial relations advice.
5.Requested computer consultant to access records on computer.”[36]
[36] Ms Haintz’s Affidavit, Annexure FVH16.
On 14 August 2007 Ms Haintz wrote to Ms Attwood[37] and said that the Executive Committee had met that day concerning the Link Up programme. The 14 August 2007 Letter then advised that “allegations have been made regarding the program that may have implications on your contract of employment”, and invited Ms Attwood to a meeting with the Executive Committee the following Thursday 16 August 2007.
[37] Ms Haintz’s Affidavit, Annexure FVH17 (“14 August 2007 Letter”).
Ms Attwood responded to Ms Haintz’s letter on 15 August 2007 alleging failure by the Executive Committee to comply with various principles in relation to natural justice or procedural fairness.[38] The 15 August 2007 Letter did not deal with matters other than these procedural issues, the removal of Ms Attwood’s computer and the consequences that that would have in delaying various reports. Ms Attwood also requested that the Executive Committee meeting on 16 August 2007 be cancelled and that she be provided with details of the complaints against her, and that adequate time be provided to her to respond to the complaints. Ms Haintz did not receive the 15 August 2007 Letter until after the Executive Committee meeting on 16 August 2007.[39]
[38] Ms Haintz’s Affidavit, Annexure FVH19 (“15 August 2007 Letter”).
[39] Ms Haintz’s Affidavit, para.103.
The Executive Committee met on 16 August 2007 concerning Ms Attwood. The following is a record of the issues to be discussed at that meeting, the minutes of the meeting and actions following the meeting:
“2. Issues to be discussed
Alleged misuse of Resources for personal gain i.e. Native Title Research
Alleged withholding of client files.
Alleged forcing clients or community members to sign applications for information.
Performance Management Issues
Staff Resigning
Staff Absences
Staff not willing to work under Mary coordination
Lack of Management and Direction
Lack of outcomes
Implications
Lack of services to clients
Inability to keep staff leading to lack of service provision to clients
Reporting late to funding body
FYI – Actions from Performance Appraisal
A.Mary to amend plan and ensure relevant and have it ready to commence 1 July 07.
B.Weekly Staff Meetings for Link Up to recommence. – Mary to action.
C.Link Up to be physically present at committee meetings on a quarterly basis. – Fran to action.
D.Mary needs ensure weekly meetings to ensure projects and case management actions are completed and timelines are met.
E.Mary to work toward catching up data entry for next reporting period.
F.Mary agreed to implement system or time weekly when Caseworker staff maintains data entry.
G.Mary to speak with female Caseworker re absences and report back to Management.
H.Fran to negotiate with funding body around purchase/lease of second vehicle.
I.Mary to prepare agreements for presentation to AMS by the end of July 07 with a view that all MOUs or agreements are in place by the end of August 07.
J.Mary to implement travel plan ensuring one caseworker visits Roebourne on a regular basis as well as Carnarvon.
K.Mary to get CSTS calendar from DCD to ensure staff participation in relevant training.
L.Fran to check pay rates, Coordinator compares to Caseworkers.
M.Questionnaire to be given to all Carnarvon Mission attendees get BSF worker in Carnarvon to assist. – Mary to follow up and check out
Recommendations
a.Instant Dismissal – see work choices options 1 (If we feel the actions of Mary are putting the organisation and it’s reputation at risk).
1.Provide letter stating the above fact.
2.Payout three weeks notice.
3.Change locks in the office.
3. Minutes
Mary failed to attend the meeting as requested.
Following Tuesday’s meeting
Fran actioned the following:
1.Advised Mary in writing about meeting today.
2.Removed computer from Mary’s office.
3.Advised Hazel Lockyer to work from home.
4.Spoke to lawyers for workplace and industrial relations advice. (Lawyers from Freeman’s in Perth)
5.Requested computer consultant to access records on computer.
Issues above were not discussed other than to note the evidence of two letters written by Mary on Wangka Maya computers during work hours that related to personal issues particularly related to native title meetings. See attached.
Fran explained discussions she had with two separate lawyers.
Lawyers advised that under work choices laws with Wangka Maya an employer of less than 100 people it was possible to terminate the employee. However lawyer also advised that it would be prudent to follow regular procedure and have evidence of issues leading to the termination.
The lawyer advised that employee can still take case to unfair dismissal. The worse case scenario if the employee took case against Wangka Maya in common law that the contract would need to be paid out. The contract is until 30 June 2008. However it is most likely that the payout if successful would be up to 6 months of the contract. An estimate cost of this outcome is approximately $25,000.
On this information and under the belief that the situation will now only deteriorate the committee resolved to terminate Mary’s employment with Wangka Maya on the grounds of conduct that was putting the organisation and its reputation at risk.
Actions:
1.Fran to write letter of termination and deliver to Mary.
2.Fran to arrange payment for Mary including outstanding leave and three weeks pay in lieu of notice payment.
3.Fran to seek further legal advice and document thoroughly proceedings.
4.Fran to change locks of Link Up office.
5.Fran to arrange whole of staff meeting for Monday lunchtime.
6.Fran to advise existing Link Up staff of termination immediately and advise that no discussion is to be had regarding the situation. Staff to be advised of ramifications of such actions.
7.Fran to manage Link Up staff directly until the position is filled.”[40]
[40] Ms Haintz’s Affidavit, Annexure FVH18 (“Executive Committee Minutes 16 August 2007”).
On 17 August 2007 Ms Haintz wrote to Ms Attwood.[41] The 17 August 2007 Letter indicated that:
a)the 15 August 2007 Letter had been received and read by the committee;
b)Ms Attwood had not attended the Executive Committee meeting on 16 August 2007; and
c)matters related to Ms Attwood’s absence and concerns regarding her employment had been discussed by the Executive Committee at the meeting.
[41] Ms Haintz’s Affidavit, Annexure FVH20 (“17 August 2007 Letter”).
In relation to the concerns regarding Ms Attwood’s employment the 17 August 2007 Letter advised as follows:
“The committee discussed your absence and concerns they have regarding your employment. Based on those concerns the committee has directed me to terminate your employment. Before I proceed with termination I am giving you a final opportunity to respond to the following issues:
Specific issued regarding your employment
Native title
In the past we have discussed the importance of Wangka Maya Link Up not being seen to be involved in activities related to Native Title. As you know this is to ensure we do not become involved with the community politics involved and therefore affect our ability to provide a service for all members of the community.”
The 17 August 2007 Letter then sets out a number of other specific concerns including:
a)a number of matters asserted not to have been completed or implemented arising from the Staff Performance Appraisal, and indicating that the Executive Committee would like to understand why those matters had not been completed;
b)alleged misuse of resources for personal gain, and specifically:
“We are aware of a number of letters being written regarding native title and the Equal Opportunity Commission. Letter 1 was in relation to you and the Kariyarra working group, Letter 2 was in relation to Eileen Rule. Copies of these letters are attached. As mentioned earlier, Wangka Maya Link Up can not be involved with Native Title work, we are not funded to assist the native title process, and native title is clearly excluded from the services of Link Up.”
c)withholding of client files;
d)staff resigning and constant staff absences;
e)staff meetings and planning,
in relation to which the letter concludes that:
“These issues and concerns do have implications for our clients and our ability to provide them adequate services.”
The 17 August 2007 Letter then requests a response from Ms Attwood by close of business on 24 August 2007, and then indicates that:
“We take these concerns very seriously and failure to provide an adequate response may lead to disciplinary action or termination of your employment with Wangka Maya Link Up.”
Cross-examined in relation to the 17 August 2007 Letter Ms Attwood admitted that:
a)the 17 August 2007 Letter raised an allegation in relation to Native Title, not in relation to her being a Native Title claimant, but rather that it was important for Wangka Maya not to be seen to be involved in Native Title matters;
b)the 17 August 2007 Letter asked her to explain why certain matters raised in the Staff Appraisal Form remained incomplete; and
c)
the 17 August 2007 Letter raised an allegation that she was
mis-using Wangka Maya’s resources for personal gain in relation to letters written concerning Native Title and equal opportunity issues.[42]
[42] Transcript at page 28.
Ms Attwood responded by letter dated 24 August 2007[43] in which she:
[43] Annexure APR 15; Ms Haintz’s Affidavit, Annexure FVH 21 (“24 August 2007 Letter”).
a)said in relation to Native Title issues that:
I do not believe that I have compromised our Link Up clients or our Link Up work in respect to Native Title Involvement. Where there are Native Title Activities which affect me personally I have taken time off to attend relevant meetings and activities, this leave is recorded in my leave application and were approved like other Wangka Maya staff who have take leave to participate at these meeting to ensure their rights and interests are protected.[44]
b)dealt with a number of the other operational issues raised in the Staff Appraisal Form, and conceded that:
i)there had not been weekly staff meetings;
ii)there were some client files in her office and not with the relevant caseworker; and
iii)there were still “staff volatility” issues.[45]
[44] 24 August 2007 Letter, para.2.
[45] Transcript at page 31.
In relation to the alleged mis-use of resources for personal gain Ms Attwood asserted in the 24 August 2007 Letter that whilst there were letters concerning the Kariyarra working group these were “in respect to representation and protection my family rights and interests I certainly have not received any personal gain from this process it was about accessing and protecting our cultural heritage rights and interests.”[46]
[46] 24 August 2007 Letter, para.15.
A further letter in relation to a client (Eileen Rule) concerning equal opportunity matters was said to have been made on the basis that the client had requested assistance due to her exclusion from attending meeting and activities of the group that she belonged to despite the fact that her brother had been accepted.[47]
[47] 24 August 2007 Letter, para.15.
In relation to the withholding of client files Ms Attwood asserted in the 24 August 2007 Letter that the files were “’personal files, which I have been working on’” and which the clients had requested her to hold.[48]
[48] 24 August 2007 Letter, second para.15.
In cross-examination Ms Attwood agreed that there were certain standards, set out in the Staff Handbook,[49] which applied to her employment, namely:
a)confidentiality and privacy requirement;[50]
b)maintaining positive relations with fellow staff members, clients and the Executive Committee;[51]
c)avoiding conflicts between Wangka Maya’s interests and her own personal or business interests;[52] and
d)that email content must not be detrimental to, nor adversely affect, the reputation and operations of Wangka Maya, its staff, clients or any business partner,[53] although she asserted that it was the norm within Wangka Maya to use business email for “personal deeds or whatever”.[54]
[49] Ms Haintz’s Affidavit, Annexure FVH 5.
[50] Transcript at page 31.
[51] Transcript at page 31.
[52] Transcript at page 32.
[53] Staff Handbook, para.3.8.
[54] Transcript at page 32.
The Executive Committee met again on 27 August 2007. The chairperson was Ms Haintz.[55] The 24 August 2007 Letter was tabled.[56] Ms Haintz advised of certain legal advice which had been received from Wangka Maya’s lawyers.[57] The Executive Committee Minutes 27 August 2007 indicate what then occurred:
[55] Ms Haintz’s Affidavit, paras.107-108 and Annexure FVH 22.
[56] Executive Committee Minutes 27 August 2007, Part 2.
[57] Executive Committee Minutes 27 August 2007, Part 3.
Committee discussed the response letter.
Committee asked what options they had:
Fran advised as per David’s advice to continue with employment or terminate and negotiate terms.
Question was asked could we put on three-month probation? Fran advised she would need to seek advice on this question from David.
Further discussion was that the whole issue of Link Up Service had been on the committee agenda for too long and too often due to lack of management of staff and the service by the Coordinator.
Meeting members felt strongly that we could no longer move forward with employment due to relationship being broken.
Committee advised following actions to take place:
1.Lorraine, Harry and Fran to meet with Mary and her chosen representative on Wednesday 5th September.
2.Put letter to Mary advising of the meeting and her ability to bring a representative.
3.Ask David Rodgers for advice re above.
4.That the contract will be terminated after this time and that settlement will be negotiated.
5.Other Link Up staff will be met with on return from Canberra and advised of new arrangements and reminded of their roles and responsibilities.[58]
[58] Executive Committee Minutes 27 August 2007, Part 4.
On the basis of the Executive Committee’s decision at the meeting on 27 August 2007 Ms Haintz wrote to Ms Attwood on 30 August 2007. The 30 August 2007 Letter provided as follows:
Re: Employment issues
I acknowledge receipt of your letter dated 24th August 2007. The committee met on Monday 27th August to read your letter. The committee has considered your responses and still have serious concerns about the following issues:
Alleged misuse of Resources for personal gain
Wangka Maya Link Up Resources are not intended for use to protect ‘cultural heritage rights and interests’, nor are they intended to assist people to be recognised in Native Title meetings.
Withholding of client files
Client files should all be kept in client filing system not in your office in separate file. Requests by clients to hold files need to be documented and the reasons why in the clients file and kept in the system. You did not explain why this has not happened.
Performance appraisal
Committee consider the need for the staff meetings imperative to service delivery and management of staff. No Link Up staff meeting was held for a period over five weeks since being discussed in your appraisal. A request at a Special Committee Meeting held in May also requested weekly staff meetings to commence immediately, this did not occur between May and July. This is not satisfactory.
Staff Resigning and constant staff absences
Another staff member has resigned since these proceedings commenced.
Meeting members felt strongly that we could no longer move forward as the relationship of mutual trust and confidence has broken down.
On the basis of these concerns the committee has decided to proceed to bring your employment with Wangka Maya Link Up to an end, preferably by mutual agreement. The Wangka Maya Executive Committee have delegated authority to me to negotiate an agreeable settlement. Please contact me when you return from leave, so that we can commence negotiations.[59]
[59] Ms Haintz’s Affidavit, Annexure FVH 23.
Ms Attwood was on leave at the time the 30 August 2007 Letter was written and was due to return from that leave on 10 September 2007.[60]
[60] Ms Haintz’s Affidavit, para.114.
Termination Letter
The Termination Letter (dated 11 September 2007) from Ms Haintz to Ms Attwood read as follows:
“I confirm that you advised me that you would be completing employment with Wangka Maya Pilbara Aboriginal Language Centre this afternoon, Monday 10 September. I confirm that you stated that you were not willing to negotiate a settlement. With this in mind I am now effectively advising you of the termination of your employment contract with Wangka Maya Pilbara Aboriginal Language Centre effective 4.30pm Monday 10th September 2007.
Today I have made a final payment directly into your bank account details as follows and in the attached payroll advice slip:
o 2 weeks ordinary pay in lieu of notice;
o 3 days annual leave due for Wednesday, Thursday and Friday last week;
o 7.6 hours normal pay for Monday 10 September;
o 142.14 hours of outstanding annual leave due;
o 35.86 hours of TOIL; and
o Entitlement of one airfare to Perth paid as a cash component due after 12 months of service.
No deduction was made for salary sacrifice in this final payment.”
Was involvement in native title matters part of Ms Attwood’s duties?
In order to determine whether or not Ms Attwood was terminated for reasons of race it is necessary to determine whether or not native title matters were part of her duties as coordinator.
Under cross-examination Ms Attwood agreed that:
a)she was not at Wangka Maya to perform native title work; and
b)it was not part of her role to do native title research, either for herself or for other people.[61]
[61] Transcript at page 19.
This was re-affirmed in re-examination when Ms Attwood gave evidence to the effect that her role was to find out who a client’s family was and to establish the family connections. It was the family which then connected those people back to their land or their country, but in the Link Up programme the information that she dealt with was in respect of family not land.[62] The work that Ms Attwood did as a Link Up coordinator was, effectively, pre-native title.
[62] Transcript at page 38.
Because Ms Attwood understood that native title matters and research were not part of her role as the Link Up coordinator, it is unnecessary to resolve a conflict on the evidence as to whether or not she was specifically told by Ms Haintz that she was not to be involved in native title matters or research. Further, there is nothing in the evidence which contradicts Ms Haintz’s evidence that it was important for Wangka Maya not to be seen to be part of native title matters.[63]
[63] Ms Haintz’s Affidavit, para.82.
The native title matters related to termination
Ms Haintz gave evidence that:
a)there were various documents and emails on Ms Attwood’s computer related to native title matters; and
b)various complaints made to Wangka Maya, and the concerns over other matters raised in the Staff Appraisal Form which had not been remedied that lead her to approach the Executive Committee for advice on how to proceed further.[64]
[64] Ms Haintz’s Affidavit, paras.83-90.
It is necessary to consider the documents relied upon as relating to native title which were considered by the Executive Committee in relation to the decision to terminate Ms Attwood’s employment.
The first document is a fax from Mr Rumsley to Ms Attwood dated 31 January 2007 in relation to a forthcoming examination in the Federal Court of Australia. Although the applicant and respondent in the Federal Court proceedings are both aboriginal corporations it is simply not possible to tell from the documents whether or not they related to native title issues. However, under cross-examination Ms Attwood admitted the respondent (the Pilbara Aboriginal Land Council) was a body established to further native title claims, at least for a period of time, but she did not say what period of time.[65] However, under cross-examination, Ms Haintz conceded that the Pilbara Aboriginal Land Council had not dealt with native title claims since about 2000.[66]
[65] Transcript at page 20. See Ms Haintz’s Affidavit, Annexures FVH 11 and FVH 13.
[66] Transcript at page 47.
A further document discovered on Ms Attwood’s computer was a “Response to Native Title Survey/Review” addressed as a submission to the Aboriginal and Torres Strait Island Commissioner.[67] The Response Submission deals with the purpose of the Review which is said to be “… part of the package of reforms to the native title system…”[68] The Response Submission was submitted by Ms Attwood. The representative body was said to be the Yamatji Marlpa Bana Baba Maaja Aboriginal Corporation and Ms Attwood indicated that she was “… a traditional Owner, a registered member of the Kariyarra Native Title Claim in Western Australia.” She also indicated that she had been provided information by other traditional owners to enable her to submit complaints with the Response Submission to substantiate the issues that she dealt with below. Ms Attwood also indicated that she wanted to make the Aboriginal and Torres Strait Island Commissioner aware of issues facing the stolen generation and that “… some of the attached letter [Response Submission] relate to this specific issue”.[69] There are then a variety of issues dealt with relating to:
a)land use for traditional owners;
b)representative organisations’ priorities for land use in the representative area;
c)meetings of claim groups or traditional owners for the purpose of progressing negotiations;
d)requirements to facilitate more regular meetings with traditional owners; and
e)the use of translators during meetings with traditional owners and community members.
[67] “Response Submission”: Ms Haintz’s Affidavit, Annexure FVH 12.
[68] Ms Haintz’s Affidavit, Annexure FVH 12.
[69] Ms Haintz’s Affidavit, Annexure FVH 12.
Ms Attwood submitted the Response Submission as a “Registered Native Title Claimant” for the “Kariyarra Native Title Claim.”[70]
[70] Ms Haintz’s Affidavit, Annexure FVH 12.
In addition to the above summary of issues dealt with, the tenor of the Response Submission can be ascertained from some of the submissions made by Ms Attwood, which included:
“One of the main focuses of the PNTS in the Pilbara Region is the right to negotiate. Priority is given to Section 29 over and above anything else, the progression of the claim towards determination is nil.”
“In order to progress the right to negotiate the PNTS has established a policy for negotiations which is in conflict with:
(1) the Objectives of the Native Title Act;
(2)the Procedural Process identified in the Native Title Application.
(3) Procedural Fairness & Natural Justice Principals.”
“The Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation has developed a policy (which is part of the criteria for assistance and funding) which requires the claimant group to establish working parties to deal with the administration issues.
The PNTS are using this process, which contravenes both the procedural requirements of the NTA in that the working party does not consult with the rest of the Native Title Claimant Group.
…
I have received many complaints from different groups who say that they are not consulted about things that are happening to their land.”
“In conclusion I would say, timelines are met by the PNTS but Native Title Rights and Interests are being compromised and in some cases extinguished by people other than the native titleholders of specific areas of land. This is being done by the use of Native Title Working Parties who in some circumstances are not the Traditional Owners of the area where there are acts, which are extinguishing Native Title.”
Although the Response Submission makes reference to the Stolen Generation, genealogies and the identification of groups and connections, those references are incidental and not the primary focus of the Response Submission. The primary focus of the Response Submission is in relation to the form of the native title claims process, and relates to native title issues. That is unsurprising given that the document is headed “Response to Native Title Survey/Review”.
WR Act provisions
Section 659(2) of the WR Act provides as follows:
(2) Except as provided by subsection (3) or (4), an employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
…
(f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Section 664 of the WR Act provides as follows:
In any proceedings under section 663 relating to a termination of employment in contravention of section 659 for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section:
(a) it is not necessary for the employee to prove that the termination was for a proscribed reason; but
(b) it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 659(3) or (4) applies).
In Randall v Greyhound Australia Pty Ltd[71] this Court said that:
[71] [2008] FMCA 1191 (“Randall”).
There are three elements that must be established to succeed in a s.659(2) action:
a) the Respondent terminated the employment of the Applicant (termination of employment);
b)the Applicant had a particular attribute described in one of the paragraphs in subsection 659(2) (proscribed attribute); and
c) the Respondent terminated the Applicant’s employment by reason of the Applicant having the attribute, or for reasons that included that attribute as an operative reason (proscribed reason).[72]
[72] Randall at para.112 per O’Sullivan FM.
In Hayward v Rohd Four Pty Ltd[73] this Court dealt with the onus of proof in cases such as this one, and said as follows:
[73] (2008) 177 IR 212; [2008] FMCA 1490 (“Hayward”).
11.In my view, in proceedings under either Part 12 or Part 16 of the Act the applicant bears the legal onus of proving his or her case to the requisite civil standard. As will shortly be discussed, the respondent bears the evidential onus of proving a negative, regarding the reason or reasons for termination of employment. That is, in the absence of the employer proving that the reason for termination of employment was not for a proscribed reason, under either s.659(2) or 793(1) of the Act, it is not necessary for the employee to prove such facts; they are presumed in his favour.
12.What then does the applicant have to prove, before the evidential onus shifts to the respondent? In my view, quite clearly an applicant will have to prove that:
(a)He or she is an employee; and
(b)His or her employment has been terminated.
13.Is it then sufficient for the employee to simply allege that the employment was terminated for one or more of the proscribed reasons in s.659(2) or s.793(1) of the Act or is something more required?
14.Common sense dictates that, at the least, the applicant must identify those reasons under either s.659(2) or 793(1) that are alleged to have formed the contravening conduct. In a case with pleadings, such particulars would be ordered as a matter of course. Otherwise a respondent would have to devote resources to proving a negative that could never arise on the facts.
15.In Galvin v Renito Pty Ltd [1999] FCA 1005 Ryan JR applied the reasoning of Mason J in General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 concerning an earlier statutory incarnation of ss.659(2) and 664. At [28] Ryan JR said:
“At 617 Mason J referred to the onus on the employer of establishing affirmatively that it was not actuated by the reason alleged in that case in the charge laid under s. 5. He held that the consequence was that the employee, in order to succeed, was not bound to adduce evidence that the employer was actuated by that reason, a matter peculiarly within the knowledge of the employer. He found the employee was entitled to succeed if the evidence was consistent with the hypothesis that the employer was so actuated and that hypothesis was not displaced by the employer. He said:
“To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge.””
16.However, this says nothing of whether it is a requirement for the applicant to prove, by evidence, as opposed to assertion, facts such as:
(a)The fact of a temporary absence from work because of illness or injury;
(b)The fact of the filing of a complaint or having recourse to competent administrative authorities;
(c)The fact of having a disability;
(d)The fact of being entitled to the benefit of an industrial instrument;
(e)The fact that he had made or proposed to make an inquiry or complaint to a capable body;
(f)The fact that he proposed to participate in proceedings under an industrial law.
17.In Bahonko v Sterjov [2007] FCA 1244 Jessup J said:
“95 The applicant relies upon s 170CQ of the WR Act. At the relevant time, it provided:
In any proceeding under section 170CP relating to a termination of employment in contravention of section 170CK for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section:
(a) it is not necessary for the employee to prove that the termination was for a proscribed reason; but
(b) it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 170CK(3) or (4) applies).
Although it is well-established that the effect of this provision is to reverse the onus of proof on the matter of reason under s 170CK(2), there is an aspect of the operation of s 170CQ of the WR Act which has been little discussed in the cases, but which is of some importance in the present matter, largely because there is no evidence as to the applicant’s political opinion, social origin or physical or mental disability. Notwithstanding that she has not proved those matters, is the applicant entitled to rely upon s 170CQ merely by alleging that she was dismissed because of those reasons, or one or more of them?
96 There were two distinct groups of provisions of the WR Act which used "reverse onus" sections in circumstances where the reason for which an act was done was part of the legislative prohibition. One group was that with which this proceeding is concerned, s 170CK(2)(f). For the sake of convenience, I shall call that paragraph the anti-discrimination provision. The other group was to be found in Part XA of the WR Act, which I shall call the anti-victimisation provisions. The latter group had its origins in s 5 of the Conciliation and Arbitration Act 1904 (Cth). That section created a prohibition, as part of the criminal law, upon employers taking specified action against their employees for the reason that the employees were union members or officers, or in other specified respects involved in union activities. Under s 5(4) of the 1904 Act,
... if all the facts and circumstances constituting the offence, other than the reason for the defendant’s action, are proved, it shall lie upon the defendant to prove that he was not actuated by the reason alleged in the charge.
Under that provision, it lay upon the prosecutor to prove the existence of the factual circumstance alleged to provide the basis of the defendant’s reasons for dismissal. For example, if it were alleged that an employee had been dismissed because of his or her union membership, it was for the prosecutor to prove that the employee was a union member; by s 5(4) it then lay upon the defendant to prove that that circumstance was not the reason why the employee had been dismissed. Examples of informations which were dismissed because the prosecution had failed to prove the existence of the circumstance said to provide the basis of the defendant’s reason may be seen in Heidt v Chrysler Australia Limited (1976) 26 FLR 257, 270-271 and Leontiades v F T Manfield Pty Ltd (1980) 43 FLR 193, 198-199.
97 Section 5 of the 1904 Act was replaced by s 334 of the IndustrialRelations Act 1988 (Cth). The provision setting up a reverse onus of proof was subs (6), as follows:
In a prosecution for an offence against subsection (1), (2), (3), (4) or (5), it is not necessary for the prosecutor to prove the defendant’s reasons for the action charged nor the intent with which the defendant took the action charged, but it is a defence to the prosecution if the defendant proves that the action was not motivated (whether in whole or in part) by the reason, nor taken with the intent (whether alone or with another intent), specified in the charge.
In Lawrence v Hobart Coaches Pty Ltd (1994) 57 IR 218, 219, Northrop J held that the legal effect of the new s 334(6) was the same as the effect of the previous s 5(4).
98 The anti-discrimination provision was first introduced by an amendment made to the 1988 Act in 1993 (with effect from 30 March 1994). The new provision, s 170DF(1), was supported by a reverse onus section, s 170EDA(2), in the following terms:
If an application lodged under section 170EA alleges that a termination of employment of an employee contravened subsection 170DF(1) on the ground that the termination:
(a) was for a particular reason or reasons referred to in that subsection that were stated in the application; or
(b) was for reasons stated in the application that included a particular reason or reasons referred to in that subsection;
the termination is taken to have contravened subsection 170DF(1) unless the employer proves, in any consent arbitration arising from the application or in any proceedings arising on the referral of the application to the Court, that:
(c) the employment was not terminated for the particular reason or reasons or for reasons that included the particular reason or reasons; or
(d) the particular reason was a reason, or the particular reasons were reasons, to which subsection 170DF(2) or (3) applied.
One difference between s 170EDA(2) and the pre-existing s 334(6) was that the new provision operated in a civil, whereas the other provision operated in a criminal, context. That difference does not, however, explain why the legislature chose different terminology by which to give effect to its reverse onus policy in the context of the new anti-discrimination provision.
99 The 1988 Act was substantially amended, and renamed as the WR Act, in 1996. What was s 334(6) – reverse onus in the context of the anti-victimisation provisions – became s 298V, and what was s 170EDA(2) – reverse onus in the context of the anti-discrimination provision – became s 170CQ. In the course of these amendments, a transposition occurred. The terminology of the new s 298V followed the general terms of what had been s 170EDA(2), and the terminology of the new 170CQ followed the general terms of what had been s 334(6). That is to say, the now anti-victimisation reverse onus section looked more like the previous anti-discrimination reserve onus section; and vice-versa. The Parliamentary materials accompanying the amendments of 1996 do not explain this transposition. The circumstance that, at the same time, the anti-victimisation provisions were broadened and de-criminalised does not, of itself, provide an obvious explanation.
100 Whatever be the reason for the legislative changes of 1996 to which I have referred, the result was that s 170CQ came to be expressed as s 334(6) had been. As held by Northrop J in Lawrence, that provision was of the same legal effect as s 5(4) of the 1904 Act. It follows that s 170CQ was likewise of that legal effect, and that the established jurisprudence, to which I have referred in par 95 above, applied to the construction and operation of s 170CQ. The jurisprudence to which I refer, of course, is that which made it part of the prosecutor’s (or applicant’s) case to prove as an objective fact the circumstances alleged to constitute the basis of the "reason" to which the reverse onus section applied. Indeed, one of the three grounds in Lawrence itself was determined in favour of the respondent employer for the very reason that the prosecutor had called no evidence to establish that the union in question was seeking better industrial conditions: see 57 IR at 220. The same approach, in my view, should be taken under s 170CQ.
18.In Buckingham v KSN Engineering Pty Ltd & Anor [2008] FMCA 546 at [93] Lucev FM said:
“A consideration of s.809(1) makes it immediately apparent that any application (here the Amended Statement of Claim) must allege conduct (and more than merely a breach reciting the relevant provisions of the WR Act). The onus of proof in relation to the conduct alleged is what is reversed, as was explained in Geraldton Port Authority as follows:
“If the applicant proves the conduct and alleges that the conduct was carried out for a prohibited reason, it is for the respondent to prove, on the balance of probabilities, that it was not motivated by an impermissible reason: s 298V; Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 266-271 per Northrop J. The reversal of the onus in respect of proof of the reasons for the conduct is a recognition that "the circumstances by reason of which an employer may take action against an employee are, of necessity, peculiarly with the knowledge of the employer": Heidt v Chrysler Australia Ltd at 267.””
19.In Rojas v Esselte Australia Pty Limited [2008] FCA 1585 at [46] – [50] Moore J held that the applicant must prove the existence of objective facts which are said to be a basis for the respondent’s conduct.
20.I respectfully adopt the reasoning of Jessup J, Moore J and Lucev FM and conclude that the applicant must prove the preliminary facts necessary to enliven the need for a respondent to embark upon attempting to discharge its evidential onus of proof.
21.The next question that arises is what the respondent must establish to discharge its onus of proof under either s.664 or s.809 of the Act.[74]
34.From the above review of the authorities I conclude that the determination of this proceeding requires the following:
(a)The applicant proving the fact of employment and its termination;
(b)The applicant proving such of the facts as he intends to rely upon to invoke one or more of the provisions in ss.659(2) and 793(1) of the Act;
(c)The respondents proving that such identified reasons were not the reason, or one of the reasons, for the termination of the applicant’s employment;
(d)In discharging that onus the respondents do not have to prove that the applicant’s employment was terminated for a valid reason, as long as it was not terminated for a proscribed reason.[75]
[74] Hayward IR at 218-221 per Wilson FM; FMCA at paras.11-21 per Wilson FM.
[75] Hayward IR 223-224 per Wilson FM; FMCA at para.34 per Wilson FM.
Was the termination for a proscribed reason?
In this case there is no question that Wangka Maya terminated Ms Attwood’s employment. Further, by reason of findings that the Court has made above, there is no doubt that Ms Attwood has a proscribed attribute, namely race, on the basis that she is an Aboriginal person.
The real question in these circumstances is whether Wangka Maya terminated Ms Attwood’s employment for a proscribed reason, that is, by reason of Ms Attwood having the attribute, or for reasons that include that attribute as an operative reason. Ms Attwood claims that her employment was terminated because she was a Native Title claimant which includes the attribute of aboriginality. Wangka Maya says that Ms Attwood was terminated because of her performance and conduct, particularly the carrying out of activities which were not part of her employment duties and which were perceived as being detrimental to Wangka Maya.
There is no dispute that Ms Attwood was involved in Native Title activities during her employment by Wangka Maya. Indeed, that fact is central to her claim. The extent of that involvement is not particularly material once it moves beyond the trifling. In this case there is evidence of involvement which is more than trifling, including:
a)Ms Attwood’s admission of her involvement;[76]
b)the Response Submission, which is a substantial piece of work in its own right; and
c)albeit anonymous, a written complaint delivered to Wangka Maya by a “Concerned Community Member”.[77]
[76] Ms Attwood’s Affidavit, para.33.
[77] Ms Haintz’s Affidavit, Annexure FVH 10. An objection to this Annexure was not pursued, and the Annexure went into evidence by agreement: Transcript at page 42.
The submission by Ms Attwood that her employment was terminated because she was a Native Title claimant is significantly weakened by evidence which tends to indicate that her being a Native Title claimant was not an impediment to her employment or continued employment, namely, evidence that:
a)Ms Attwood was a Native Title claimant when she was first employed by Wangka Maya, and that Wangka Maya knew that;[78] and
b)most employees of Wangka Maya were Native Title claimants.[79]
[78] Ms Haintz’s Affidavit, para.42.
[79] Ms Haintz’s Affidavit, para.43.
Wangka Maya says that it was Ms Attwood’s performance and conduct which resulted in the termination of her employment. Her conduct in that regard included the fact that she was engaged in activities at work which, by Ms Attwood’s admission, were not part of her duties, namely Native Title activities.[80] There was also evidence of involvement in equal opportunity matters. Further, Ms Attwood admitted that the allegation raised by Wangka Maya was not in relation to her being a Native Title claimant, but rather that the allegation was that it was important for Wangka Maya not to be seen to be involved in Native Title matters. The fundamental importance to the proper and effective operation of Wangka Maya not being involved in Native Title matters was reiterated in the evidence of Ms Haintz.[81]
[80] It is unnecessary to resolve a conflict in the evidence as to whether Ms Attwood was expressly told not to engage in Native Title activities, because of Ms Attwood’s admission that she knew that those activities were not part of her duties.
[81] Transcript at pages 67-68. See also Ms Haintz’s Affidavit at paras.22-28.
Ms Attwood’s performance per se was also raised with her by Wangka Maya prior to her termination of employment. The performance issues raised flowed directly from issues raised in early July 2007 in Ms Attwood’s Staff Appraisal. There was sufficient evidence for the Court to conclude that many of the performance issues remained unresolved, at least from Wangka Maya’s perspective, leading up to and at the time of the termination of Ms Attwood’s employment.
Ms Attwood submitted that the performance and conduct issues were raised in August 2007 in circumstances where all previous Staff Appraisals had been satisfactory, and that Ms Attwood had not previously been informed (including in the Staff Appraisal Form of July 2007) that her performance and conduct were unsatisfactory.[82] However, in the Court’s view, an objective review of the Staff Appraisal Form of July 2007 shows that Wangka Maya had concerns with Ms Attwood’s performance across a range of areas, albeit that at that time those concerns were not sufficient to prevent Ms Attwood being offered a new contract of employment. That evidence is:
a)consistent with a concern about Ms Attwood’s performance manifested prior to questions being raised and discussed in August 2007 about her suitability for ongoing employment; and
b)inconsistent with performance first being raised in August 2007, and with it being raised as a ruse for a termination based on Ms Attwood being a Native Title claimant.
[82] Ms Attwood’s Affidavit, para.20.
The evidence of the Executive Committee’s consideration of Ms Attwood’s employment during August 2007 shows that it was focussed on the performance and conduct issues, including the failure to perform to proper standards by reason of Ms Attwood’s involvement in activities (including Native Title matters) outside of the scope of her duties. It was not focussed upon, and does not appear to have been motivated by, the fact that Ms Attwood was herself a Native Title claimant.
The Executive Committee Minutes 27 August 2007 are particularly relevant for it was at that meeting that the decision to terminate Ms Attwood’s employment was finally made. Those Minutes indicate that:
Further discussion was that the whole issue of Link Up Service had been on the committee agenda for too long and too often due to lack of management of staff and the service by the Coordinator.
Meeting members felt strongly that we could no longer move forward with employment due to relationship being broken.[83]
[83] Executive Committee Minutes 27 August 2007, Part 4.
(Emphasis added)
Immediately thereafter the Executive Committee determined that Ms Attwood’s “contract [of employment] will be terminated”.[84]
[84] Executive Committee Minutes 27 August 2007, Part 4.
The evidence establishes that the termination of employment ultimately occurred because of dissatisfaction with Ms Attwood’s performance and conduct, including the carrying out of activities (such as Native Title activities) which were not part of her employment duties and which were perceived as being detrimental to Wangka Maya, manifesting in a lack of service, and resulting in the Executive Committee viewing the employment relationship as “broken”, and seemingly beyond repair.
The evidence led by Wangka Maya has established, in the Court’s view, that Ms Attwood’s employment was not terminated by reason of her being a Native Title claimant. Wangka Maya has therefore satisfied the onus of proof under s.664 of the WR Act and established that termination of Ms Attwood’s employment was not for a proscribed reason.
Submissions made on Ms Attwood’s behalf relied upon some evidence that other employees of Wangka Maya undertook activities which were outside the scope of their employment duties. The primary evidence of that occurring is contained in Exhibit A1 which is an email in relation to another employee’s involvement with regional arts funding. It must be said that it is not readily apparent on the evidence that that is a matter which is not related to the language and cultural activities of Wangka Maya. However, even assuming that it is not, and even assuming that other employees do undertake activities outside of the scope of their duties, the issue in these proceedings is not about the fairness or validity of the reasons for termination, but whether they are proscribed or unlawful reasons. For that reason, whether or not other employees have undertaken activities outside the scope of their duties at Wangka Maya is irrelevant to whether Ms Attwood was terminated from her employment for a proscribed reason.
Conclusion – termination of employment on the basis of race
In all of the circumstances described above, the Court has come to the conclusion that the termination of Ms Attwood’s employment was not on the basis of race, but rather her performance and conduct, including the carrying out of activities which were not part of her employment duties and which were perceived as being detrimental to Wangka Maya. It follows that the application alleging unlawful termination of employment on the basis of race must be dismissed.
Employment agreement for specified period
Employment with Wangka Maya
Ms Attwood commenced employment with Wangka Maya as a Link Up Caseworker on 8 February 2006.[85] Ms Attwood was promoted to the position of Link Up Coordinator on 18 September 2006. That contract expired on 30 June 2007.[86] Ms Attwood alleges that in or about July 2007 she entered into an employment agreement for a fixed term as Link Up Co-ordinator employed by Wangka Maya from 1 July 2007 until 30 June 2008.[87]
[85] “Caseworker Employment Agreement”: Annexure APR 4.
[86] “2006 Employment Agreement”: Ms Haintz’s Affidavit, Annexure FVH 6.
[87] “2007 Employment Agreement”: Annexure APR 10; Ms Haintz’s Affidavit, Annexure FVH 8.
Caseworker Employment Agreement
The terms of the Caseworker Employment Agreement are as follows:
“The Wangka Maya Pilbara Aboriginal Language Centre would like to offer you the position of Link Up Caseworker. The employment contract period will commence Wednesday 8 February 2006 for an initial period of 3 months with an option of renewal to 30 June 2006 depending on performance.
A review of your position will be made at the completion of the initial three-month probationary period. At this time the employer or employee may choose to terminate the contract.
Your terms of employment will be based on the Aboriginal and Community Organisations Award (WA) 1996 (A copy of this award is available in the Wangka Maya’s Manager’s Office).
Details of your appointment are as follows:
Commencement Date: Wednesday 8 February 2006
Probationary Period Date: Tuesday 9 May 2006
Contract Expiry Date: 30 June 2006
Position Title: Link Up Caseworker
Supervisor: Manager
Duties/Responsibilities: As per duty statement attached
Contract Status: Fulltime 5 months
Contract Payment Conditions:
Salary:
Wage ACOA WA 1996 Level 6.1 $43513pa
District Allowance $2563.50 or $5127.00
Superannuation 9%
Salary Bar Level 8
Hours per fortnight 76 Hours (8.30am – 4.30pm)
Annual Leave: 5 weeks/year (Leave Loading 17.5%)
Annual Airfare: After 12 months of continuous service employee will be entitled to one return economy airfare to Perth.
Payment will be made on a fortnightly basis during the contract and upon receipt of completed Wangka Maya timesheets.
Copyright of any materials produced in the contract period belongs to Wangka Maya with acknowledgment of the work to the contractor. Any future reproductions of the work are at the discretion of Wangka Maya, however, the employee’s contribution shall always be acknowledged.
I fully understand the contents of this document and accordingly I accept the conditions of employment.”[88]
[88] Annexure APR 4.
2006 Employment Agreement
The terms of the 2006 Employment Agreement are as follows:
“The Wangka Maya Pilbara Aboriginal Language Centre would like to offer you the position of Link Up Coordinator. The employment contract period will commence Monday 18 September 2006 for an initial period of 3 months with an option of renewal to 30 June 2007 depending on performance.
A review of your position will be made at the completion of the initial three-month probationary period. At this time the employer or employee may choose to terminate the contract.
Your terms of employment will be based on the Aboriginal and Community Organisations Award (WA) 1996 (A copy of this award is available in the Wangka Maya’s Manager’s Office).
Details of your appointment are as follows:
Commencement Date: Monday 18 September 2006
Probationary Period Date: Monday 18 December 2006
Contract Expiry Date: 30 June 2007
Position Title: Link Up Coordinator
Supervisor: Manager
Duties/Responsibilities: As per duty statement attached
Contract Status: Fulltime 10 months
Contract Payment Conditions:
Salary:
Wage ACOA WA 1996 Level 7.1 $47866pa
District Allowance $2563.50 or $5127.00
Superannuation 9%
Salary Bar Level 8
Hours per fortnight 76 Hours (8.30am – 4.30pm)
Annual Leave: 5 weeks/year (Leave Loading 17.5%)
Annual Airfare: After 12 months of continuous service employee will be entitled to one return economy airfare to Perth.
Payment will be made on a fortnightly basis during the contract and upon receipt of completed Wangka Maya timesheets.
Copyright of any materials produced in the contract period belongs to Wangka Maya with acknowledgment of the work to the contractor. Any future reproductions of the work are at the discretion of Wangka Maya, however, the employee’s contribution shall always be acknowledged.
I fully understand the contents of this document and accordingly I accept the conditions of employment.”[89]
[89] Ms Haintz’s Affidavit, Annexure FVH 6.
2007 Employment Agreement
Ms Attwood says that the 2007 Employment Agreement was in writing and that its material terms were that:
a)it would be for a fixed term of 12 months expiring on 30 June 2008; and
b)Wangka Maya would pay Ms Attwood $48,866 per annum by way of remuneration.
Wangka Maya says that the 2007 Employment Agreement:
a)was not a fixed term contract, but rather a maximum term contract, which, subject to funding and performance, was renewable after 12 months, and was therefore an ongoing contract of employment; and
b)in respect of termination, incorporated the provisions of the Award.
The terms of the 2007 Employment Agreement are as follows:
“The Wangka Maya Pilbara Aboriginal Language Centre would like to offer you the position of Link Up Coordinator. The employment contract period will commence 1 July 2007 until 30 June 2008.
A review of your position will be made at the completion of the 12-month period. At this time, dependant on funding and performance the contract may be renewed.
Your terms of employment will be based on the Aboriginal and Community Organisations Award (WA) 1996 (A copy of this award is available in the Wangka Maya’s Manager’s Office).
Details of your appointment are as follows:
Commencement Date: 1 July 2007
Contract Expiry Date: 30 June 2008
Position Title: Link Up Coordinator
Supervisor: Manager
Duties/Responsibilities: As per duty statement attached
Contract Status: Fulltime 12 months
Contract Payment Conditions:
Salary:
Wage ACOA WA 1996 Level 7.2 $48866pa
District Allowance $3141.84
Superannuation 9%
Salary Bar Level 8
Hours per fortnight 76 Hours (8.30am – 4.30pm)
Annual Leave: 5 weeks/year (Leave Loading 17.5%)
Annual Airfare: After 12 months of continuous service employee will be entitled to one return economy airfare to Perth.
Payment will be made on a fortnightly basis during the contract and upon receipt of completed Wangka Maya timesheets.
Copyright of any materials produced in the contract period belongs to Wangka Maya with acknowledgment of the work to the contractor. Any future reproductions of the work are at the discretion of Wangka Maya, however, the employee’s contribution shall always be acknowledged.
I fully understand the contents of this document and accordingly I accept the conditions of employment.”[90]
[90] Ms Attwood confirmed that she did sign a copy of the Employment Agreement: see Transcript at page 14, although the copies of the Employment Agreement tendered in evidence bear only Ms Haintz’s signature.
There was unchallenged evidence that it was standard practice at Wangka Maya for contracts to expire on 30 June each year, and to be renewed subject to funding being made available.[91]
Termination of the 2007 Employment Agreement
[91] Ms Haintz’s Affidavit, para.46.
The Award and the contract of employment
Wangka Maya is a party bound by the Award.[92] The position of the Manager at Level 8 appears to be covered by the Award.[93] The application was not however argued on the basis that the Award applied, but rather the 2007 Employment Agreement contained “terms of employment … based on the … Award”. There was no dispute that by reason of the terms of employment being “based on” the Award, that the terms of the Award were incorporated into the contract of employment. It is therefore still necessary to have regard to relevant terms of the Award, and principles of award interpretation, in determining what, if any, entitlement Ms Attwood has to damages for the alleged breach of the 2007 Employment Agreement.
[92] Award, Schedule F.
[93] Award, Schedules A and B.
Relevant Award provisions
In relation to termination of employment the Award contains clause 13 – Notice of Termination, which, relevantly, is in the following terms:
“13. NOTICE OF TERMINATION
13.1 Notice of termination by employer
13.1.1In order to terminate the employment of an employee the employer must give to the employee the period of notice specified in the table below:
Period of continuous service
Period of notice
Less than 1 year
1 week
Over 1 year and up to the completion of 3 years
2 weeks
Over 3 years and up to the completion of 5 years
3 weeks
Over 5 years of completed service
4 weeks
13.1.2In addition to the notice in 13.1.1, employees over 45 years of age at the time of the giving of the notice with not less than two years continuous service, are entitled to an additional week's notice.
13.1.3Payment in lieu of the prescribed notice in 13.1.1 and 13.1.2 must be made if the appropriate notice period is not required to be worked. Provided that employment may be terminated by the employee working part of the required period of notice and by the employer making payment for the remainder of the period of notice.
13.1.4The required amount of payment in lieu of notice must equal or exceed the total of all amounts that, if the employee's employment had continued until the end of the required period of notice, the employer would have become liable to pay to the employee because of the employment continuing during that period. That total must be calculated on the basis of:
13.1.4(a)the employee's ordinary hours of work (even if not standard hours); and
13.1.4(b)the amounts ordinarily payable to the employee in respect of those hours, including (for example) allowances, loading and penalties; and
13.1.4(c)any other amounts payable under the employee's contract of employment.
13.1.5The period of notice in this clause does not apply:
13.1.5(a)in the case of dismissal for serious misconduct;
13.1.5(b)to apprentices;
13.1.5(c)to employees engaged for a specific period of time or for a specific task or tasks;
13.1.5(d)to trainees whose employment under a traineeship agreement or an approved traineeship is for a specified period or is, for any other reason, limited to the duration of the agreement; or
13.1.5(e)to casual employees.”
13.1.6Continuous service is defined in clause 7.5.
Clause 12 sets out various employment categories including probationary, full-time, part-time, casual and specific period or specific task employment. Relevantly, it provides as follows:
“12.2 Full-time Employment
12.2.1An employee engaged for 38 hours per week in accordance with Part 6 of this Award shall be regarded as full time.
12.2.2At the time of engagement, an employer must give full-time employees a written notice that states:
12.2.2 (a)the hours that the employee will normally work;
12.2.2 (b) which days of the week the employee will normally work on; and
12.2.2 (c)the usual starting and finishing times for work each day.
12.5Specific Period or Specific Task Employment
An employer may engage a full-time employee or a part-time employee to work on a fixed-term basis or for a specific task or tasks. The following conditions apply:
12.5.1The employer must give the employee a written notice which stipulates how long the employee will be employed for.
12.5.2If the employee starts working for the same employer on a permanent basis immediately after finishing the fixed term, the amount of time that the employee spent working on the fixed term will count as continuous service when calculating leave entitlements. An exception is that it will not count as continuous service if the employer has paid the employee in lieu of those leave entitlements.”
Interpretation of Award
In this case there was no evidence of or reliance sought to be placed upon:
a)the intent of the framers of the Award;[94]
b)the context of the making of, and the practical purpose intended to be served by, the Award;[95]
c)the history of the Award.[96]
Therefore, in interpreting the Award as incorporated in the 2007 Employment Agreement the Court must:
a)begin with a consideration of the ordinary meaning of the words of the Award;[97]
b)generally give ordinary or well-understood words their ordinary or usual meaning;[98]
c)have regard to the context and purpose of the provision being construed, where context may appear from the whole of the text of the Award, the arrangement of the text, or the place in the text of the relevant provision;[99]
d)have regard, as a contextual consideration, to the fact that it is an industrial award being construed, and therefore not open to literal, narrow or pedantic construction.[100]
[94] Kucks v CSR Ltd (1996) 66 IR 182 at 184 per Madgwick J (“Kucks”); Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Skilled Engineering Ltd [2003] FCA 260 at para.21 per Finkelstein J.
[95] Kucks at 184 per Madgwick J; Finance Sector Union of Australia v Commonwealth Bank of Australia (2001) 106 IR 172 at 175 per Gyles J; [2001] FCA 335 at para.11 per Gyles J.
[96] Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518-519 per Burchett J; NSW Nurses Association v Ramsay Health Care Australia Pty Ltd (2009) 185 IR 1 at 26-27 per Barnes FM; [2009] FMCA 579 at para.122 per Barnes FM.
[97] City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at 438 per French J; [2006] FCA 813 at para.53 per French J (“City of Wanneroo”).
[98] Kucks at 184 per Madgwick J.
[99] Amcor Ltd v Construction, Forestry, Mining and Energy Union & Ors (2005) 222 CLR 241 at 246 per Gleeson CJ and McHugh J; [2005] HCA 10 at para.2 per Gleeson CJ and McHugh J; City of Wanneroo IR at 438-439 per French J; FCA at para.53 per French J.
[100] George A Bond & Co Ltd (In liq) v McKenzie [1929] AR (NSW) 498 at 503-504 per Street J; City of Wanneroo IR at 440 per French J; FCA at para.57 per French J; Kucks at 184 per Madgwick J; Australasian Meat Industry Employees Union (WA Branch) v Woolworths Ltd (2007) 164 FCR 420 at 424 per Siopis J; [2007] FCAFC 201 at para.21 per Siopis J.
The Court turns now to the issue of whether the contract is for a specified period.
In Andersen v Umbakumba Community Council[101] Mr Anderson was employed by the Umbakumba Community Council under a written contract providing for a maximum period of employment of two years. The contract also gave either party the unqualified right to bring the employment to an end on two weeks notice, and the respondent employer the additional right to bring the employment to an end without notice on payment of two weeks salary. Mr Anderson’s employment was terminated within the two year period and he sought relief from the then Industrial Relations Court of Australia on the basis that his termination was harsh, unjust or unreasonable. Umbakumba Community Council contended that Mr Anderson was employed under a contract of employment for a specified period of time and was therefore excluded from the operation of the relevant provisions entitling him to seek relief against a harsh, unjust or unreasonable termination.[102]
[101] (1994) 126 ALR 121 (“Umbakumba”).
[102] The relevant provisions were contained in the Industrial Relations Act 1988 (Cth), ss.170 CA, 170 CB, 170 CC and the Industrial Relations Regulations (Cth), reg.30B; Umbakumba at 122-123 per von Doussa J.
In Umbakumba the Industrial Relations Court said that:
“A “specified period of time” is a period of time that has certainty about it. A contract of employment for a specified period of time would be one where the time of commencement and the time of completion are unambiguously identified by a term of the contract, either by the contract stating definite dates, or by stating the time or criterion by which one or other end of the period of time is fixed, and by stating the duration of the contract of employment. As the period of time is defined in this way, it is apt to refer to a contract of employment for a specified period of time as a contract of employment for a fixed term, …
A contract of employment to run throughout a nominated number of days, weeks, or years would be a contract of employment for a specified period of time. If the terms of the contract of employment, instead of identifying in this manner the period of time during which it is to run, provides that it is to run until some future event, the timing of the happening of which is uncertain when the contract is made, the contract will be for an indeterminate period of time.”[103]
[103] Umbakumba at 125-126 per von Doussa J.
The Industrial Relations Court went on in Umbakumba to observe that:
“In the present case cl 3 and Sch 1 of the employment agreement clearly state both a commencement date for the employment and a cessation date, but in light of the right on either party to the contract arising under cl 21(c) to bring the employment to an end on two weeks notice, and the right of the employer under cl 21(d) to bring the employment to end without notice on payment of two weeks salary, the cessation date merely records the outer limit of a period beyond which the contract of employment will not run (unless a new agreement is entered into pursuant to cl 29). Within the period stated in Sch 1 the period of the contract of employment is indeterminate. At any point during the two year period identified by the commencement and cessation dates neither side could know with any certainty when the period of the contract of employment might come to an end.
It is significant that the rights to terminate the contract of employment arising under cl.21(c) and 21(d) are not conditioned on a breach of any term of the contract. The rights are unqualified. Different considerations may apply where a contract of employment for a period of time fixed by clearly stated dates of commencement and cessation contains a term which permits either side to terminate the contract on breach by the other side. In such a case, it is possible that the contract would be characterised as a contract of employment for a specified period of time notwithstanding the possibility that on breach of its terms by one side or the other it may soon come to an end. In this case, however, the unqualified rights to terminate without reason under cl 21(c) and cl 21(d) make it clear, in my opinion that the contract cannot be so characterised.”[104]
[104] Umbakumba at 126-127 per von Doussa J.
In Cooper v Darwin Rugby League Club Inc[105] the termination provisions of the contract gave either party the right to terminate the employment on notice at any time during the three year period.[106] In that case, involving the same statutory provisions as were considered in Umbakumba, the Industrial Relations Court held that “the contract of employment is for a specified time but can be terminated before the expiration of that period by either party on notice or by the respondent, as employer, for the misconduct of the applicant, as employee. On this construction of the contract of employment, the applicant is not a worker engaged under a contract of employment for a specified period of time …”[107]
[105] (1994) 57 IR 238 (“Cooper”).
[106] Cooper at 241 per Northrop J.
[107] Cooper at 241 per Northrop J.
In Trigar v La Trobe University[108] a specified initial term had been agreed, but the parties contemplated another contract for a further specified period of time being entered into by agreement. A contract of that type, which was held to be a contract which remained for a specified period because of the nature of the agreement, was to be distinguished from one where provision was made for alteration of the date for completion which was not one for a specified period of time.[109]
[108] Australian Industrial Relations Commission, Giudice P, Acton SDP and Gay C, Print T2860, 1 November 2000, unreported (“Trigar”).
[109] Trigar at para.5 per Giudice P, Acton SDP and Gay C.
In Pacific Rim Employment Pty Ltd v Lloyd and Clarke[110] it was held that if a term of employment is established at the outset of a contract of employment it may be extended by consent and still remain a contract for a specified period.[111]
[110] Australian Industrial Relations Commission, Giudice P, Kaufman SDP and O’Connor C, PR 912882, 4 January 2002, unreported (“Pacific Rim Employment”).
[111] Pacific Rim Employment at para.20 per Giudice P, Kaufman SDP and O’Connor C.
In Re Table Tennis Australia Incorporated[112] it was held that a contract terminable if funding was withdrawn or restricted was not a contract for a specified period of time.[113]
[112] Australian Industrial Relations Commission, Giudice and Boulton JJ and Cribb C, Print R7452, 23 July 1999, unreported (“Table Tennis Australia”).
[113] Table Tennis Australia at paras.8-10 per Giudice and Boulton JJ and Cribb C.
In Kavanagh v National Tertiary Education Industry Union[114] the applicant’s employment of 17 years was governed by a series of fixed term contracts, each consistent with an understanding that renewal of the contract would be automatic and a mere formality. In those circumstances it was found that there was in substance a continuing employment relationship and that the contract was not for a specified period.[115]
[114] (1997) 42 AILR 3-574 (“Kavanagh”).
[115] The case went on appeal, but the appeal was dismissed because there was in fact no right of appeal under the relevant legislation, and the first instance reasons were not the subject of further consideration: see Kavanagh v University of Melbourne (1997) 77 IR 310.
In D’Lima v Board of Management, Princess Margaret Hospital for Children[116] the Industrial Relations Court of Australia determined that an ongoing series of short term contracts of employment constituted continuous employment, where Ms D’Lima was employed continuously from 18 June 1993 to 11 December 1994 under a series of 14 separate form contracts varying in length from just less than four weeks to just over four weeks.[117] In D’Lima the Industrial Relations Court observed that:
The practice of signing of further contracts for alleged periods of temporary employment appears to have been one of mere administrative convenience and cannot compel the Court to ignore the weight of strong countervailing factors indicating a continuous employment relationship.[118]
[116] (1995) 64 IR 19 (“D’Lima”).
[117] D’Lima at 24-26 per Marshall J.
[118] D’Lima at 26 per Marshall J.
Reference was made in the evidence to the Staff Handbook and provisions therein related to the application of the Award.[119] It is unnecessary to have regard to these provisions of the Staff Handbook as it is the 2007 Employment Agreement and the Award which fall to be interpreted. Ancillary documents such as the Staff Handbook and Wangka Maya policies and procedures were, in any event, not argued to have, or relied upon as having, any contractual effect.[120]
[119] Ms Haintz’s Affidavit, paras.49-50 and clauses 5.1 and 5.3.1 of the Staff Handbook.
[120] See Transcript at page 33.
In this matter the requirements of clause 12.5.1 of the Award that the employer, Wangka Maya, give the employee, Ms Attwood, a written notice stipulating how long the employee will be employed for has been complied with in terms in the 2007 Employment Agreement which prescribes that the appointment under the 2007 Employment Agreement commences on 1 July 2007 and ends on 30 June 2008. Absent any other consideration the period of notice prescribed in clause 13.1.1 of the Award would not therefore apply because Ms Attwood would be an employee engaged for a specific period of time under clause 13.1.5(c) of the Award. Thus, absent any other consideration, the 2007 Employment Agreement is a contract for a specified period of time, that is, from 1 July 2007 until 30 June 2008.
The view expressed by Ms Haintz that “there was always room to terminate an employment contract prior to the expiry date” does not find support in the terms of the Award insofar as it relates to an unqualified right to terminate on notice. That is because once the employee is given a written notice stipulating how long they are employed for they are, absent other considerations, employed under a fixed term contract to which the unqualified notice periods do not apply. Likewise, they do not apply in the case of dismissal for serious misconduct under clause 13.1.5(a) of the Award, but that right of termination is not an unqualified one. In order for it to exist there must be serious misconduct. Thus, although Ms Haintz’s evidence on this point[121] was not challenged, it cannot stand in the current context because it is inconsistent with the terms of the Award and therefore inconsistent with the terms of the 2007 Employment Agreement.
[121] See Ms Haintz’s Affidavit, para.48.
Wangka Maya argued that the 2007 Employment Agreement was not a fixed term contract, because it was the practice to roll-over the contracts of employment on an ongoing basis. However, that is not the effect of the evidence given by Ms Haintz, which was not challenged. The standard practice was for contracts to expire on 30 June each year, and to be renewed subject to funding being made available. That conclusion was drawn from the unchallenged evidence of Ms Haintz, which was as follows:
“The standard practice at Wangka Maya has always been that whatever contract of employment staff are employed under, including me as the Manager, was only ever up until 30 June. This was because we were subject to funding reviews each year. Most of the time we were sure that most programs would be refunded, but just in case, we kept the contract dates to be renewed each year on 30 June.”[122]
[122] Ms Haintz’s Affidavit, para.46
Ms Haintz’s evidence makes it manifest that this was not a contract automatically rolled over or continued as a formality, but one (as with others at Wangka Maya) which had to be assessed on 30 June each year from a funding perspective in order to determine whether it would continue or not.
The 2007 Employment Agreement also provided that it was renewable, at its conclusion, “dependant on funding and performance”. The evidence here shows that performance was reviewed, and that a decision to make an offer which concluded in the 2007 Employment Agreement was a consequence of that review, as reflected in the Staff Appraisal Form.
The position with respect to review of funding and performance outlined immediately above means that Ms Attwood’s contract and employment circumstances were manifestly different to those in D’Lima and Kavanagh, and those cases are therefore distinguishable on their facts. Those cases are further distinguishable by reason of the fact that in Ms Attwood’s case the three employment agreements or contracts of employment related to two different positions, and of the two contracts for the Link Up co-ordinator’s position the first was not a fixed term contract because it was subject to termination without cause at the conclusion of the three month probationary period.
The provisions in the 2007 Employment Agreement which refer to funding and performance do not provide for the contract of employment to be terminated during the period of 12 months, but rather, for the position to be reviewed at the completion of the 12 month period depending on funding and performance. It can be inferred that if funding is available and performance has been satisfactory then the contract may be renewed. Thus, it is not a contract expressed to be one that may be extended by consent or agreement between the parties.[123] Further, it is not a contract terminable if funding is withdrawn or restricted during the specified period of time.[124]
[123] As in Trigar and also Pacific Rim Employment.
[124] As in Table Tennis Australia.
The factual position was therefore that the period of employment under the 2007 Employment Agreement was discrete. It stood alone. It was for the fixed period referred to in that contract, namely, 12 months from 1 July 2007 to 30 June 2008, and was a fixed term contract.
Conclusion – employment agreement for a specified period
For the reasons set out above, the Court considers that the 2007 Employment Agreement was a fixed term contract, that is, a contract for a specified period, namely 1 July 2007 to 30 June 2008. The contract was not terminable by notice. The contract was not purported to be terminated on the basis of serious misconduct. Therefore, Ms Attwood was entitled to work for the remaining period of the 2007 Employment Agreement. The termination of her employment on 10 September 2007, with two weeks payment in lieu of notice, was in breach of the terms of the 2007 Employment Agreement.
Quantum of damages
The unchallenged evidence is that following her termination by Wangka Maya Ms Attwood was not employed again until July 2008.[125] There is no evidence or suggestion of a failure by Ms Attwood to mitigate her loss.
[125] Ms Attwood’s Affidavit, para.36.
In relation to the assessment of the quantum of damages Ms Attwood submitted that:
a)she was paid fortnightly with payment being made in the amount of $1879.46 on every second Thursday, as at the time of the termination of her employment;[126]
b)two weeks payment was made in lieu at the time of termination and Ms Attwood was therefore due three days salary on 27 September 2007. That three days amounts to $563.84;
c)$1879.46 is payable for each fortnight after 27 September 2007, with payment ceasing on 30 June 2008.
[126] Ms Haintz’s Affidavit, Annexure FVH 8.
The above submissions were not challenged.
There are 19 fortnights between 27 September 2007 and 30 June 2008, with 11 days between the date of the final completed fortnight and 30 June 2008. There is also the three days following 24 September 2007 which have not been paid. Therefore there are 20 unpaid fortnights in total. Payment for 20 fortnights at $1879.46 per fortnight equals $37,589.20 which is the total outstanding salary payable.
Superannuation was also payable at the rate of 9% in respect of salary.[127] Therefore, superannuation in the amount of $3383.03 is payable on the total outstanding salary.
[127] Ms Haintz’s Affidavit, Annexure FVH 8.
On each of the above amounts a lump sum is to be paid in lieu of interest,[128] the lump sum to be an amount equal to 10% of each amount, being:
a)$3758.92 on the unpaid salary; and
b)$338.30 on the unpaid superannuation.
[128] FM Act, s.76(3)(d).
Conclusions and orders
The Court has concluded that:
a)Ms Attwood’s termination of employment was not by reason of her race, but rather her performance and conduct, particularly the carrying out of activities which were not part of her employment duties and which were perceived as being detrimental to Wangka Maya and her application alleging unlawful termination on the basis of race will be dismissed; and
b)Ms Attwood’s claim for unpaid entitlements under her contract of employment has been made out, and there will be orders for payment of unpaid salary and superannuation plus interest, in the amounts set out above,[129] payable within fourteen days.
[129] See para.110 above.
The Court will hear the parties as to costs.
I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: S. Gough
Date: 21 May 2010
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