Babb, Jeffrey Robert v Commonwealth of Australia

[1998] FCA 649

FEDERAL COURT OF AUSTRALIA

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI 1183 of 1997

BETWEEN:	JEFFRY ROBERT BABB Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent
JUDGE:		RYAN J
DATE OF ORDER:		11 JUNE 1998
WHERE MADE:		MELBOURNE

MINUTES OF ORDER

THE COURT ORDERS:

1. That the order of the Court of 9 September 1997 be set aside and in lieu thereof it is ordered that the respondent pay to the applicant compensation in the sum of $8,162.40.

1. That liberty be reserved to either party to apply on not less than 72 hours notice in writing to the other party.

Note:Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI 1183 of 1997

BETWEEN:	JEFFRY ROBERT BABB Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent

JUDGE:	RYAN J
DATE:	11 JUNE 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

The applicant, Mr Babb, who is now aged 44 had, earlier in his career, worked as a journalist, business executive and research officer and had been on the staff of Senator Simm of Western Australia from 1975 to 1980 as a research officer.  In the latter part of 1996 he was employed as a research officer with the Institute of Public Affairs.  At the suggestion of Mr John Stone, a former Secretary to the Commonwealth Department of Treasury and Senator, he was contacted by Mr Pasquarelli, the senior adviser to Ms Pauline Hanson MHR, the Independent Member for Oxley in the State of Queensland.

On 30 October 1996, Mr Babb, by arrangement, was present at a barbecue in Yarraville, a suburb of Melbourne, for the purpose of an interview with Ms Hanson with a view to his engagement as one of her electorate officers.  The barbecue was a private social function which Ms Hanson attended on the eve of a political “walk” through the Footscray Fruit and Vegetable Market which had been arranged by Mr Pasquarelli. Mr Pasquarelli had no previous personal acquaintance with Mr Babb but believed from what he knew of his qualifications and experience that he would fulfil all the requirements of the position on Ms Hanson’s staff which was then vacant.  At that time, Ms Hanson’s staff consisted of Mr Pasquarelli, an Electorate Officer Grade C, Ms Barbara Hazelton, and an Electorate Officer Grade C, Ms Heidi Lewis.  A vacancy on Ms Hanson’s staff had arisen upon the resignation, on 20 September 1996, of Mr Brett Heffernan who had been an Electorate Officer Grade B since April 1996.

After being introduced to Mr Babb, Ms Hanson interviewed him in a room in the house where the barbecue was in progress.  Apart from Ms Hanson and Mr Babb no other person was present during the interview which occupied about a quarter of an hour.  In the course of the interview, Ms Hanson told Mr Babb that she did not know him but he had come highly recommended.  She went on to say that, having been in small business, she was aware that she was only as good as her staff.  After an exchange of further remarks, Ms Hanson offered Mr Babb an appointment as her Electorate Officer Grade B, saying, according to Mr Babb, words to the effect “we will give it three months and see how it goes.”  Ms Hanson testified that she stipulated that, as with other members of her staff, Mr Babb would be employed “on probation for” three months.  Whether or not she used that expression, I am satisfied that Mr Babb was told, and understood, that his employment was subject to a trial or qualifying period of three months.

Apparently Mr Babb indicated acceptance of Ms Hanson’s offer and it was agreed that he should start work in Canberra on 18 November 1996 in the last week of the then current parliamentary session.  Administrative arrangements to give effect to his appointment were made by Mr Pasquarelli who procured the execution of a pro forma employment agreement dated 13 November 1996 in the following terms:

EMPLOYMENT AGREEMENT
  PART IV OF THE MEMBERS OF PARLIAMENT (STAFF) ACT 1984

An Agreement made on    13th    day of    November    1996

BETWEEN

PAULINE HANSON MP (hereafter called “the Senator or Member”) on behalf of the Commonwealth of Australia (hereinafter called “the Commonwealth”)

AND
      JEFFRY ROBERT BABB (hereinafter referred to as the electorate staff member).

WHEREAS:

Under section 20 of the Members of Parliament (Staff) Act 1984 (hereafter called “the Act”) a Senator or Member may, on behalf of the Commonwealth, employ a person as a member of staff of that Senator or Member in accordance with arrangements approved by and conditions determined by the Prime Minister.

NOW THIS AGREEMENT WITNESSES as follows:

1.On and from the  18th  day of  November  1996 until terminated under section 23 of the Act, the electorate staff member for the consideration contained herein agrees to perform duties as directed by the Senator or Member.

2.The electorate staff member shall be paid within the range applicable to the classification of Electorate Officer Band B.

3.For the purposes of section 21 of the Act, the terms and conditions of the electorate staff member shall be the same as those applicable in relation to an officer performing the duties of an office of equivalent classification in the Australian Public Service, subject to any variations from time to time determined by the Prime Minister under sub-section 21(3) of the Act.

The electorate staff member hereby agrees to perform the duties associated with his or her Electorate Officer classification as set out in Schedule 1 of this agreement.

4.The electorate staff member, if not already a member of the Commonwealth Superannuation Scheme or the Public Sector Superannuation Scheme, agrees to the provisions in Schedule 2 of this agreement in relation to superannuation benefits for the electorate staff member as determined by the Senator or Member pursuant to section 22 of the Act and approved by the Minister for Finance.

5.The electorate staff member acknowledges and agrees that the provisions of the Act govern this agreement and in particular that this agreement may be terminated pursuant to section 23 of the Act. In the event that the engagement of the electorate staff member is terminated pursuant to section 23 of the Act and the electorate staff member is an officer or employee for the purposes of the Public Service Act then the officer/employee shall be entitled to the rights as determined by sections 24 and 25 of the Act.

IN WITNESS WHEREOF this agreement has been executed the day and year first written above.

That Agreement was signed by both Ms Hanson and Mr Babb.  Each signature was witnessed by Mr Pasquarelli.  As arranged, Mr Babb commenced work at Ms Hanson’s office in Parliament House, Canberra on 18 November 1996 and when the House rose at the end of that week he and the other members of staff moved to her electorate office in Ipswich, Queensland.  In the course of the second week of his employment, on 25 November 1996 Mr Pasquarelli requested Mr Babb to sign a document in the following terms:

FURTHER TO YOUR APPOINTMENT TO MY STAFF

JEFFRY BABB
ELECTORATE OFFICE
OXLEY

Dear Jeff

As per our discussions prior to your appointment, I wish to reiterate that such appointment is probationary for a period of three months (90 days) from the date of appointment.

Subject to your satisfactory performance during the probationary period, consideration will be given to your permanent appointment.

Yours sincerely  The conditions and terms
  of employment are
  accepted

PAULINE HANSON
INDEPENDENT MEMBER FOR OXLEY                JEFFRY BABB

Mr Pasquarelli, who was called to give evidence by Mr Babb, explained that he had brought the form of that document into existence on the advice of an industrial relations consultant to protect Ms Hanson “from frivolous unfair dismissal claims”.  He, Pasquarelli, and the other members of Ms Hanson’s staff, except, perhaps, Ms Hazelton, had signed a document in the same terms.  Mr Pasquarelli showed Mr Babb a copy of the document in the same form which he, Pasquarelli, had signed, and indicated that similar documents had been signed by the other members of Ms Hanson’s staff with the possible exception of Ms Hazelton.  He told Mr Babb that he had to sign it or “all bets were off”.  Mr Babb testified that he indicated that he would sign “under protest” and explained that he believed, in the light of what Pasquarelli had said, that he faced instant dismissal if he declined to sign.  The document was, in fact, signed by Mr Babb who inserted in his own hand the date “18/11/96” which he considered appropriate as the date on which he had commenced work on Ms Hanson’s staff.  After it had been signed by Mr Babb that document was countersigned by Ms Hanson and, as fully executed, was retained in a filing cabinet in her Ipswich office.

Parliament resumed sitting in the week beginning 2 December 1996 and Mr Babb and Mr Pasquarelli returned to work from Ms Hanson’s Canberra office.  They remained there until 9 December 1996.  On the afternoon of that day, Mr Pasquarelli who was in Ms Hanson’s personal office, was told to bring Mr Babb into her presence.  When he did so, she told Pasquarelli and Babb that she was dismissing them both. Pasquarelli asked the reason for their dismissal.  Ms Hanson replied that she did not have to give reasons.  Mr Pasquarelli suggested that they should sit down and talk about it but at that point Ms Hanson telephoned a number which she had earlier obtained from the Sergeant-at-Arms through which a request could be made for security assistance.  She indicated that she had just dismissed two members of her staff who were refusing to leave the office.  Thereupon Mr Taylor, the Director of Security for Parliament House, who was also a Superintendent within the Australian Federal Police and Dr Murney, the Deputy Director of Security, attended and entered Ms Hanson’s office.  Mr Taylor said that they proposed to relieve Mr Pasquarelli and Mr Babb of their parliamentary passes and keycards and escort them from the premises.  Some discussion then occurred about the opportunity which Mr Pasquarelli and Mr Babb required to remove their personal effects and arrangements which would be made through the Department of Administrative Services (“DAS”) for them to receive their termination pay and other entitlements.

After about 15 minutes had elapsed, Dr Murney walked down the corridor with Mr Pasquarelli followed at a short distance by Mr Babb.  After descending in a lift they proceeded along other corridors past offices occupied by Opposition front-benchers where they were observed by two or three members of staff from those offices and by the Hon. Simon Crean, a Shadow Minister.  Mr Pasquarelli acknowledged one of those persons but otherwise nothing was said by or to any of the observers and Mr Pasquarelli and Mr Babb were left by Dr Murney in a foyer which gave on to a public entrance to Parliament House and from which stairs descended to a Members’ and staff carpark.  Mr Pasquarelli and Mr Babb then proceeded outside the House where there was a gathering of media representatives who followed them putting questions about the dismissal to which Mr Pasquarelli responded.  Mr Babb removed himself a short distance from the media representatives gathered about Mr Pasquarelli and was only fleetingly noticed in radio and television coverage broadcast on the evening of 9 December and in Press reports of 10 December.  For example, the only reference to Mr Babb in an extensive article in the “Daily Telegraph” for 10 December was:

Ms Hanson yesterday dismissed her adviser, John Pasquarelli, and her researcher, Jeff Babb, after months of tension.

The “Herald-Sun” under the heading “Hanson dumps two advisers” noted in respect of Mr Babb:

A second staff member, researcher Jeffry Babb, was also sacked only three weeks after being appointed.

...

Mr Babb joined Ms Hanson on November 18 on a trial basis at Mr Pasquarelli’s recommendation. The former truck driver, handyman, trades assistant and gardener was described then by Ms Hanson as “a political professional hired to do a job”.

Similarly, an article in “The Australian” for 11 December 1996 contained only these two references to Mr Babb:

Ms Hanson confirmed to The Australian she “did not go into details” with Mr Pasquarelli on Monday when she summarily dismissed him and a newly-appointed researcher, Mr Jeff Babb.

...

She fired Mr Babb at the same time.  He had been appointed to her personal staff only three weeks earlier on Mr Pasquarelli’s recommendation.

On the following day, 10 December 1996, Mr Babb and Mr Pasquarelli attended by arrangement at the DAS office in Civic in the Australian Capital Territory.  There, Mr Babb was handed the following notice which apparently had emanated from Ms Hanson’s Ipswich office at 7.19pm on the evening of 9 December 1996:

I hereby formally notify you of my decision to terminate your services to take effect from close of business Monday 9 December 1996.

I have advised the Department of Administrative Services accordingly.

A time of 3.00pm on Tuesday 10 December 1996 has been set aside for you to clear your personal possessions from my Ipswich office.  Please adhere to this time.

As this time I request that you return any cards, (ie CabCharge), keys and other items issued to you as a member of my staff.

At the same meeting on 10 December, it was agreed by Mr Murray of DAS that Mr Babb and Mr Pasquarelli should each be provided with air travel to Melbourne instead of being repatriated to Ipswich in accordance with their strict entitlements.  Mr Babb thereupon returned to Melbourne and since that time has been unemployed except for occasional work as a freelance journalist.  As Mr Babb acknowledged under cross-examination, he has not made application to, or enquiries of, any Member of Parliament with a view to obtaining employment of the kind which he had followed on Ms Hanson’s staff. 

The benefits receivable by Mr Babb in consequence of the termination of his employment by Ms Hanson were outlined as follows in a letter to him from DAS dated 17 December 1996:

I am writing to you with reference to your termination from the office of Ms P Hanson MP with effect from close of business 10 December 1996.

Provided below are details of your entitlements:

Overpaid Salary
11 December 1996 to 11 December 1996

1 day @ $35485.00 pa  $136.04(M)

Severance Benefit
Based on less than a year’s service
2 weeks @ $35485.00 pa  $1360.45

Total Gross  $1224.41
less tax  $364.90
NET  $859.51

The above net amount was deposited into your Westpac account on 13.12.96.

It should be noted that where severance benefits have been paid on termination in accordance with provisions of the Members of Parliament (Staff) Act 1984 and the officer is re-employed by another member shortly thereafter, depending on the circumstances, it may be a condition of the employment of that staff member that the severance benefit be repaid.

As a result of a previous National Wage Case Decision, the Government introduced an additional Superannuation Benefit payable to all qualifying employees.

That amount has been automatically paid into the fund nominated by the Department of Finance - Australian Government Employees Superannuation Trust (AGEST).  Details regarding your options are attached.

Attached is a Statement of Termination Payment (Employer) relating to your severance benefit.  This statement should be included with your 1996/97 financial year tax return, as this payment will be included on your 1996/97 group certificate.

In order to ensure prompt forwarding of your group certificate, please advise this office should you change your postal address.

As you have ceased employment under the Member of Parliament (Staff) Act 1984, your entitlement to a photographic pass to enter Parliament House is no longer valid.  If you were issued with a pass (which remains the property of the Federal Parliament) and have not already returned it, please forward it to the Security Controller, Parliament House, Canberra.

It is convenient to consider first whether the provisions of Pt VIA of the Industrial Relations Act (“the Act”) as then in force apply to the termination of Mr Babb’s employment. By s 170CC of the Act it is provided:

The regulations may exclude specified employees from the operation of specified provisions of this Division.  An exclusion has effect only if:

(a)it is permitted by paragraph 2 of Article 2 of the Termination of Employment Convention; and

(b)it is limited in such a way as to provide adequate safeguards as mentioned in paragraph 3 of that Article.

The relevant regulation is Reg 30B(1) which provided:

Subject to subregulation (2), for the purposes of section 170CC of the Act, the following employees are excluded from the operation of Subdivisions B, C, D and E of Division 3 of Part VIA of the Act:

(a)an employee engaged under a contract of employment for a specified period of time, being a contract that was entered into before 16 November 1994;

(aa)     an employee engaged under a contract of employment for a specified period of time, being a contract that was entered into on or after 16 November 1994, if the specified period is less than 6 months;

(b)an employee engaged under a contract of employment for a specified task;

(c)an employee serving a period of probation or a qualifying period of employment, if the duration of the period or the maximum duration of the period, as the case requires:

(i)is determined in advance; and

(ii)is reasonable, having regard to the nature and circumstances of the employment;

(d)a casual employee engaged for a short period within the meaning of subregulation (3).

As already indicated, I am satisfied that Ms Hanson stipulated, in the conversation on 30 October 1996, that Mr Babb should serve a qualifying period or period of probation for three months after becoming a member of her staff. It is also clear that the period which he was to serve in that way was determined in advance as required by Reg 30B(1)(c)(i). However, Mr Sharp of Counsel for the applicant has pointed to s 20 of the Members of Parliament (Staff) Act 1984 (“the Staff Act”) which provides:

(1)A Senator or a Member of the House of Representatives may, on behalf of the Commonwealth, employ, under an agreement in writing, a person as a member of the staff of the Senator or Member.

(2)The power conferred on a Senator or Member of the House of Representatives by subsection (1) is not exercisable otherwise than in accordance with arrangements approved by the Prime Minister, and the exercise of that power is subject to such conditions as are determined by the Prime Minister.

Because of the mandatory requirement in s 20(1) for a member of the staff of a Member of the House of Representatives to be employed under an agreement in writing, Mr Sharp contended that any stipulation of a qualifying or probationary period also had to be in writing. In support of that argument, he invoked the parol evidence rule as expounded e.g. in Cross on Evidence (5th Australian Edition) p 1161 where it is observed:

Extrinsic evidence is generally inadmissible when it would, if accepted, have the effect of adding to, varying or contradicting the terms of a judicial record, a transaction required by law to be in writing, or a document constituting a valid and effective contract or other transaction.

Most judicial statements of the rule are concerned with its application to contracts, and one of the best known is that of Lord Morris who regarded it as indisputable that:

parol testimony cannot be received to contradict, vary, add to or subtract from the terms of a written contract, or the terms in which the parties have deliberately agreed to record any part of their contract (Bank of Australasia v Palmer [1897] AC 540 at 545).

Another well-known statement is that of Lord Denman when he said:

If there be a contract which has been reduced into writing, verbal evidence is not allowed to be given of what passed between the parties, either before the written instrument was made, or during the time it was in a state of preparation, so as to add to or subtract from, or in any manner to vary or qualify the written contract. (Goss v Lord Nugent (1833) 5 B & Ad 58; 110 ER 713; [1824-34] All ER Rep 305 (KB).

It is clear that the contract to which Mr Babb became a party was required by law (s 20 of the Staff Act) to be in writing. Ms Hanson’s oral stipulation on 30 October 1996 that the employment was to be subject to a probationary period of three months which Mr Babb, as I have found, orally accepted had the effect of adding to or varying the agreement as reduced to writing in accordance with s 20 of the Staff Act on 13 November 1996. All that written agreement said about the period of Mr Babb’s employment was that it was “until terminated under Section 23” of the Staff Act. Sub-sections (2) and (3) of that section provide:

(2)A Senator or Member of the House of Representatives may at any time, by notice in writing given to a person employed by the Senator or Member under this Part, terminate the person’s employment.

(3)A person employed by a Senator or Member of the House of Representatives under this Part may at any time, by notice in writing given to the Senator or Member, terminate the person’s employment.

It may be doubted whether, in the light of those sub-sections, a Member of the House of Representatives could ever agree in writing or otherwise to employ a member of staff “on probation” in the sense of providing that, after the expiration of some qualifying period, the contract would inure for some stipulated fixed term or would only be determinable after the expiration of some agreed period of notice.  In any event, for the reasons I have indicated, I consider that evidence of the conversation of 30 October 1996 is inadmissible to establish, for the purposes of Reg 30B(1)(c), that Mr Babb was serving a period of probation or a qualifying period of employment which had been determined in advance.

Mr Tracey QC who appeared for the respondent sought to overcome this obstacle to his invocation of Reg 30B(1)(c) by contending that s 20(2) of the Staff Act assumes that additional terms may form part of the contractual arrangement. However, s 20(2), in my view, merely imposes restrictions on the terms which a Senator or Member may include in a contract of employment concluded with a member of his or her staff. It does not exclude any terms of such a contract, whether additional or not, from the necessity imposed by s 20(1) to be in writing.

It was next submitted on behalf of the respondent that the written contract of employment dated 13 November 1996 would be wholly lacking in business efficacy unless it were construed as containing implied terms dealing with matters such as classification, wage rates and overtime payments. On the applicant’s argument as to the necessity for writing, Mr Tracey contended, there would be no scope for the implication of any terms including some on which the applicant sought to rely.  Finally, in this context, Mr Tracey submitted that there was nothing inconsistent between a stipulation that the applicant serve a probationary period and any of the terms of the written contract. 

In my view, the written contract of 13 November 1996 does contain within its four corners the terms necessary to give it business efficacy.  Mr Babb’s classification was specified in cl 2 as Electorate Officer Band B and the duties for that classification were specified in Schedule 1 to the contract.  The remuneration was that specified in some other instrument as appropriate to an Electorate Officer Band B having regard to Mr Babb’s length of service from time to time.  The contract’s silence as to overtime does not rob it of business efficacy but may simply indicate that it was not contemplated that Mr Babb would work overtime or that, if he did, it would be governed by some other instrument such as that prescribing wage rates for an Electorate Officer Band B or would be the subject of a separate supplementary agreement.  As Mason J observed in Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 346-7, it is not sufficient that it be reasonable to imply a term into a contract; it must be clearly necessary to give business efficacy in the sense that the contract would not be effective without it and it must be obvious in the sense that it “goes without saying”. What was clearly not necessary to give business efficacy to the present contract was an implied term that Mr Babb should serve a term of probation of three months or any other period.

The parol evidence rule is not limited to proof of a term which would be inconsistent with the terms of the written contract.  It is sufficient to attract the rule if the term which is not in writing would add to or vary the written contract.  A term that the employee serve a period of probation or a qualifying period clearly has the effect of adding something to the present contract.

For these reasons, I have been led to conclude that, in the absence of a document in writing signed by the parties establishing a probationary period determined in advance, the respondent is precluded from resorting to Reg 30B(1) to avoid the application of Subdivisions B, C, D and E of Div 3 of Pt VIA of the Act to the termination of Mr Babb’s employment. I should add that the argument advanced by Mr Sharp on the hearing of the review was not put to the learned Judicial Registrar who held that the respondent had successfully invoked Reg 30B(1)(c).

As one alternative to his pursuit of a claim for relief under Pt VIA of the Act, the applicant contended that his employment on Ms Hanson’s staff had never effectively been determined because the notice of termination served on 10 December 1996 did not comply with s 23 of the Staff Act. I reject that argument. Section 23 of the Staff Act enables a Senator or Member “at any time by notice in writing” to terminate the employment of a member of his or her staff.  It may be that the notice, contrary to what it claimed, did not take effect until it was served on Mr Babb on 10 December but it unequivocally indicated that his employment was terminated at the moment of his receiving the notice if not before.  The fact that he was paid as if he had worked on 10 December is consistent with this view. 

A further alternative basis on which the applicant sought relief in the accrued jurisdiction of the Court involved a claim that there had been a breach of an implied term of the contract of employment that the employer would not act, without reasonable cause, in a manner likely to damage or destroy the relationship of confidence and trust between the parties as employer and employee.  In support of an implied term to that effect, Mr Sharp cited Malik v Bank of Credit and Commerce International [1997] 3 WLR 1. In that case it was held that employees of a bank, who were innocent of a massive fraud which the bank had perpetrated, might be entitled to damages to compensate them for the difficulty, after the bank’s collapse, of obtaining alternative employment in the banking field. Lord Nicholls of Birkenhead observed, at 7:

Exceptionally, however, the losses suffered by an employee as a result of a breach of the trust and confidence term may not consist of, or be confined to, loss of pay and other premature termination losses.  Leaving aside injured feelings and anxiety, which are not the basis of the claim in the present case, an employee may find himself worse off financially than when he entered into the contract.  The most obvious example is conduct, in breach of the trust and confidence term, which prejudicially affects an employee’s future employment prospects.  The conduct may diminish the employee’s attractiveness to future employers.

The loss in the present case is of this character. BCCI promised, in an implied term, not to conduct a dishonest or corrupt business.  The promised benefit was employment by an honest employer.  This benefit did not materialise.  Proof that Mr Mahmud and Mr Malik were handicapped in the labour market in consequence of BCCI’s corruption may not be easy, but that is an assumed fact for the purpose of this preliminary issue.

There is here an important point of principle.  Are financial losses of this character, which I shall call “continuing financial losses”, recoverable for breach of the trust and confidence term?  This is the crucial point in the present appeals.  In my view, if it was reasonably foreseeable that a particular type of loss of this character was a serious possibility, and loss of this type is sustained in consequence of a breach, then in principle damages in respect of the loss should be recoverable.

The short answer to the applicant’s reliance on that case is that it cannot be a breach of an implied “trust and confidence term” for an employer to terminate the contract in accordance with a right to do so expressly reserved by the contract itself or arising by operation of law (in this case s 23 of the Staff Act). Nor can I regard the present as a case “where the manner of the dismissal involved a breach of the trust and confidence term and this caused financial loss” (Malik v Bank of Credit and Commerce International (supra) at p 9). I consider that the actions of Mr Taylor and Dr Murney in escorting Mr Babb and Mr Pasquarelli from Ms Hanson’s offices in Parliament House were entirely reasonable and appropriate to the circumstances. There was nothing to suggest to the casual observer that they were being forcibly ejected, or, indeed, that they had just been dismissed from a Member’s staff. What happened outside Parliament House, as far as Mr Babb was concerned, resulted from his electing to remain in the vicinity of Mr Pasquarelli. The subsequent publicity attracted to the dismissals was not the result of any action by Ms Hanson or any other person for whom the respondent can be made liable.

Since I have rejected each of the three alternative bases on which the applicant has sought to establish his claim for relief, it only remains to consider the relief to which he is entitled as a result of the respondent’s conceded failure to discharge the onus imposed on it by s 170DE(1) of the Act. That sub-section provided:

An employer must not terminate an employee’s employment unless there is a valid reason, or valid reasons, connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service.

It is clear from the terms of s 23 of the Staff Act and the nature of the relationship between an Electorate Officer and a Member that the reinstatement of Mr Babb as a member of Ms Hanson’s staff has always been impracticable. Accordingly, there is a discretion under s 170EE(2) of the Act to: “...if the Court considers it appropriate in all the circumstances of the case, make an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate.” Sub-sections (3) and (4) of the same section provided, so far as is relevant:

(3)In working out the amount of the compensation for the purposes of subsection (2), the Court is to have regard to the remuneration that the employee would have received, or would have been likely to have received, if the employer had not terminated the employment, but the amount of compensation:

(a)must not exceed, in respect of any employee, the amount of the remuneration that would have been received by the employee in respect of the period of 6 months that immediately followed the day on which the termination took effect if the employer had not terminated the employment and the employee had continued to receive remuneration in respect of the employment at the rate at which he or she received remuneration immediately before the termination took effect; and

(b)must not exceed, in respect of an employee who is not employed under award conditions, the applicable amount on the day on which the termination took effect.

4.The applicable amount for the purposes of paragraph (3)(b) is:

(a)subject to paragraph (b), $30,000;

Although, as I have already held, evidence of the oral agreement that Mr Babb’s employment should be subject to a qualifying or probationary period of three months is not admissible to add to his written contract of employment, I consider that it is permissible and appropriate to have regard to that agreement in exercising the Court’s discretion to assess compensation under s 170EE(2). The Court is required by s 170EE(3) to have regard to the remuneration which Mr Babb would have been likely to receive had his employment not been terminated in contravention of s 170DE(1). In my view, the agreed probationary term provides some guidance as to how long Mr Babb would have remained on Ms Hanson’s staff had he not been dismissed on 10 December 1996. Having regard to the changed staffing arrangements which must have been necessitated by Mr Pasquarelli’s dismissal on the same date, I have been led to conclude that Mr Babb’s employment would have continued only for a matter of weeks rather than months. I have therefore adopted 18 February 1997, being the expiration of the agreed period of probation, as the date of the notional lawful termination of Mr Babb’s employment. On that basis, I assess compensation payable under s 170EE(2) at $8,162.40 being sixty days from 18 December 1996 to 18 February 1997 at the rate of $35,485 per annum. I have not considered it appropriate to deduct from that amount the severance benefit of $1,360.45 based on less than a year’s service which Mr Babb was paid on 13 December 1996 since he would have received that amount irrespective of when, in his first year of service, his employment had been terminated. In any event, at least half of that amount must be taken to have been compensation in lieu of notice which was required by s 170DB of the Act.

I acknowledge that in Purazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144, a Full Court of the Industrial Relations Court of Australia held that, as well as lost remuneration, the Court is entitled to take into account, in assessing compensation up to the limits prescribed by s 170EE(3), other damage flowing from the unlawful termination including matters such as shock, humiliation and distress. However, in that case the applicant, after being notified unilaterally that she was to work shorter hours and for a reduced commission, was forcibly removed from the premises by two police officers who had been summoned by another employee. As discussed above, there was no forcible removal of Mr Babb from Ms Hanson’s offices and I consider that he and Mr Pasquarelli were escorted from Parliament House in a discreet way not calculated to increase their discomfiture at their dismissal. Nor were they otherwise subjected to treatment likely to cause offence or distress. It is true that the fact of their dismissal attracted some publicity, but I am not persuaded that any public perception was created that the dismissal was attributable to anything other than personality or policy differences between Ms Hanson and the two former members of her staff. There was nothing in the circumstances which could reasonably be regarded as likely to cause humiliation or distress to an electorate officer of ordinary sensibilities. Accordingly, I am not persuaded to add anything in recognition of injury to Mr Babb’s feelings to the amount of compensation already indicated.

At the conclusion of oral argument in this matter, I intimated that, after publishing my findings of fact and analysis of the relevant legal principles, I would afford Counsel an opportunity to speak to the form of orders which should be made.  I shall preserve that opportunity by reserving liberty to apply as I have come to a clear conclusion that the order of the learned Judicial Registrar of 9 September 1997 should be set aside and in lieu thereof it should be ordered that the respondent pay to the applicant compensation in the sum of $8,162.40.

I certify that this and the preceding fifteen (15) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:             11 June 1998

Counsel for the Applicant:	Mr D Sharp with Mr J Ireland (from 24 February 1998)
Solicitors for the Applicant:	Zolis
Counsel for the Respondent:	Mr R Tracey, QC
Solicitors for the Respondent:	Australian Government Solicitor
Date of Hearing:	23, 24 and 25 February 1998
Date of Judgment:	10 June 1998