Boland v Maningrida Council Inc
[1996] IRCA 150
•24 April 1996
DECISION NO: 150/96
INDUSTRIAL LAW - Termination of employment - Review of Judicial Registrar's decision to dismiss application - Employee dismissed for "gross neglect of duty" leading to loss of money under his control - Validity of expressed reason for termination - Whether the applicant was afforded an opportunity to defend himself.
Industrial Relations Act 1988, ss.170DC and 170DE.
KEVIN BOLAND v. MANINGRIDA COUNCIL INC
NO. DI.159 of 1994
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 24 APRIL 1996
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA ) No. DI.159 of 1994
NORTHERN TERRITORY DISTRICT REGISTRY)
BETWEEN: KEVIN BOLAND
Applicant
AND:MANINGRIDA COUNCIL INC
Respondent
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 24 APRIL 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application for review of the order of Judicial Registrar Tomlinson made on 16 August, 1995 be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA ) No. DI.159 of 1994
NORTHERN TERRITORY DISTRICT REGISTRY)
BETWEEN: KEVIN BOLAND
Applicant
AND:MANINGRIDA COUNCIL INC
Respondent
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 24 APRIL 1996
REASONS FOR JUDGMENT
WILCOX CJ: This is an application to review a Judicial Registrar's decision dismissing a claim of unlawful termination of employment. The hearing before the Judicial Registrar took place at Darwin. It occupied seven days. This was largely because counsel for the parties spent considerable time on issues that were, at best, of peripheral relevance. If counsel had confined themselves to matters that really needed to be investigated, the hearing would have occupied only a small fraction of that time.
When the review application came before me, I was asked to take an unusual course. Neither party wished to supplement the evidence given before the Judicial Registrar or recall any of the witnesses for further cross examination. Because the parties and their legal representatives were geographically scattered, they asked that I conduct the review on the basis only of written submissions. I pointed out that this would not be practical if there was a dispute about the correctness of the Judicial Registrar's primary findings of fact but I was assured that the critical primary facts were now common ground and the issue for determination was the results that flowed from them. In light of this assurance, I accepted this proposal and fixed a timetable for submissions on behalf of the applicant, the respondent and the applicant in reply. I have now read and considered all those submissions.
The submissions contain references to some contentious factual allegations. This has caused me some concern but, on reflection, I think this does not matter. As the solicitors for the parties previously suggested, the critical facts are not now in dispute. I can decide the case without reference to the contentious matters.
The submissions also contain comments about the Judicial Registrar's conduct of the hearing and the proper approach by a Judge to the review of a Judicial Registrar's decision. In relation to the former matter, counsel suggests that the Judicial Registrar should have disqualified herself for apprehended bias. In relation to the latter matter, counsel for the applicant submits that a review "is in the nature of a rehearing" in which the Court may form its own judgment about the facts. He goes on to equate the position of the reviewing Judge to that of an appeal tribunal, saying in effect that the Judge must take the Judicial Registrar's findings and inferences into account unless the Judicial Registrar has failed to use, or palpably misused, his or her position of advantage. Counsel for the respondent puts a submission to similar effect.
When they wrote their submissions, counsel did not have the benefit of the decision in Wyndham Lodge Nursing Home Inc v Reader (Wilcox CJ, Ryan and North JJ 15 April 1996). For the reasons set out in that decision, the approach they suggest is inappropriate. My task is to take the uncontested primary findings of fact and determine whether they establish the case that the relevant party has to prove. Except to the extent that she made findings that are not now in dispute, the Judicial Registrar's statement of reasons for decision is irrelevant to my task. Because of that fact, it is unnecessary for me to deal with the allegation of apprehended bias.
The facts
The applicant, Kevin Boland, was employed by the respondent, Maningrida Council Inc, from 1 March 1990 until 26 September 1994. Maningrida Council is an Aboriginal community council governing a settlement known as Maningrida in Arnhem Land. Mr Boland was initially employed as a bank clerk. At that time, I gather, banking services were provided to the Maningrida community by Westpac Bank, Darwin. Mr Boland was employed on behalf of the Maningrida Council in connection with those duties but was not in charge of the local agency.
On 24 January 1992, Mr Boland was dismissed from his employment. Much time was spent at the hearing before the Judicial Registrar investigating the cause, and reasonableness, of this dismissal. But these matters are not important. It is common ground, first, that there was no suggestion at that time of dishonesty by Mr Boland and, second, that Mr Boland was reinstated by the Council on 19 February 1992.
At some stage, possibly before Mr Boland's dismissal and reinstatement, the Maningrida banking arrangements were altered. Westpac decided to close its agency. The Council thereupon resolved itself to provide a limited banking service for members of the local community, mainly the cashing of cheques. This facility was to be provided in conjunction with an existing postal service. Mr Boland was appointed to manage this service, subject to the supervision of the Council Clerk, Alan Clough. An employment agreement was executed on 3 March 1993 by which it was provided that Council would employ Mr Boland in the position of "Bank and Postal Services Manager" for a term of two years from 1 March 1993 to 28 February 1995. Schedule 2 of the agreement set out a job description in which it was stated that Mr Boland was to be "supervised by the Maningrida Council through the Council Clerk". The "main purpose" of the job was "(t)o ensure that the Bank and Postal Services of the Council operate in an effective and businesslike manner at all times". There was a list of specific jobs. They included:
"(c)With the assistance of the Finance Officer/Accountant as needed, maintain periodic reconciliations (as required by the Council Clerk) of all bank accounts associated with the bank facility".
In the period between the execution of this employment agreement and Mr Boland's eventual dismissal, he took on other duties: the ordering of liquor supplies, an Air North agency, some Telecom responsibilities, receipt of electricity and water payments and sale of diesel fuel. There is some controversy as to the extent of the work that these new responsibilities entailed but I do not think that is relevant to the present issues. During this same period, additional staff were employed, no doubt because of the additional work.
It was common ground at the hearing that it took some time to develop a reliable system of reconciling the bank's daily cash but this was achieved before 12 August 1994, a date of critical importance in this case. There was some dispute at the hearing as to who should be given the credit for developing a proper system. It is not necessary for this to be resolved; although it is only fair to Mr Boland to say that it seems he should be given at least some of the credit for this achievement.
One of Mr Boland's duties was to anticipate the cash needs of the community and to arrange for appropriate sums to be sent from Darwin by Westpac. Mr Boland had determined that it would be desirable to receive $40,000 on Friday, 12 August 1994 and he arranged for this sum to be sent out by aeroplane. The money was sent in a sealed box that was delivered to him at the bank just before lunch time.
Mr Boland had his lunch and then commenced to count the money. At this point in the story, evidentiary differences emerge. According to Mr Boland, while he was engaged in this task, he briefly left the bank. He did so in order to speak to a Council employee, Vern Pech, whom he saw outside and with whom he needed to speak urgently. At the trial before the Judicial Registrar, he could not remember why he had needed to speak to Mr Pech. On earlier occasions, he had named three different people as the person to whom he had needed to speak.
The most important aspect of Mr Boland's leaving the bank is that he took the money with him. He stuffed the rolls of notes back into the box in which they had arrived and went outside with the box under his arm. Mr Boland estimated that he was absent from the bank for only a couple of minutes. This estimate was confirmed by two bookkeepers working in the bank, Patrick Kernan and Michelle Nathan. But they gave different accounts of the money counting process. Mr Boland said that, when he returned to the bank, he completed counting the money, found that it came to $40,000, and had Ms Kiernan check this and sign the cash control book. Ms Kernan said that she was not asked to check the count and did not do so; that Mr Boland asked Ms Nathan to check the count and she did so; but the count was completed before Mr Boland took the money outside the bank. Ms Nathan agreed that she was the person who checked the count; but she did not count every note, she merely checked the bundles.
She said in evidence: "They're in bundles, ten bundles of 10 notes and I counted the bundles and noted that there was $40,000 in the box". Later she said that there were "six bundles of $50 notes and five bundles of $20 notes, which was $30,000 in $50 notes and $10,000 in $20 notes". Ms Nathan was not asked to sign a certificate and did not do so. The cash control book was not signed by anybody. Ms Nathan agreed with Mr Boland that he took the money outside the bank during the course of his own count; that is, before it was checked by her.
The bank closed at 3pm but nobody did a cash reconciliation count that afternoon, although this was one of Mr Boland's routine responsibilities. The staff left from 4pm onwards. The two last people to leave were Mr Boland and Ms Nathan. Mr Boland put the cash in the safe and locked it. He also locked the bank door. He took both keys home and hung them in a secret place in his kitchen. Apparently he was the only staff member to have copies of these keys, or at least the key of the safe. According to Mr Boland, so far as he is aware, nobody interferred with the keys over the weekend.
Mr Boland arrived at the bank at about 8am on the morning of the following Monday, 15 August. He immediately opened the safe, took out the money and did a cash reconciliation count. He was assisted by another bank employee, Sharon Hayes. They found that the cash was $5,000 short. After searches failed to locate the missing money, the loss was reported to Mr Clough and the Police. Constable Taylor, the local police officer, took statements from everybody concerned but the money was not found.
Following various conversations, on Friday, 19 August, Mr Clough instructed Mr Boland to work in the workshop yard, rather than in the bank, while he obtained advice about the missing money. This situation continued until 13 September when a meeting was held between Mr Clough and Mr Boland and two Council members, Reggie Wuridjal (the President) and Milak Winunguj. Mr Clough made notes about this meeting on what he called his "running sheets". The accuracy of the notes was not challenged in submissions to me. According to the notes, Mr Clough commenced the discussion by telling Mr Boland that he had "talked with Milak and Reggie" and "we had decided it would be good if they could have a chance to hear his story". He then asked Mr Boland to give his accounts of events from the Friday through to the Monday. He did so. In the course of his account, Mr Boland said that the Friday was a pay day and very busy and that a lot of people came into the bank that day. It is now agreed that the Friday was not a pay day and not busy, at least in relation to banking operations. Mr Clough particularly asked Mr Boland about taking the money outside the building. He expressed dismay that Mr Boland had not been prepared to trust the other staff with the money. Mr Boland agreed that the money was his responsibility, especially because he held the keys. During the course of the meeting Mr Boland apolgised to the Council for causing this problem. The notes concluded in this way:
"I then reminded him that in our earlier conversation he had indicated to me that he would probabaly [sic] not renew his employment contract and that he felt that the bank job had grown too big and complex for his skills.
He agreed.
I reminded him that he had been urged to take on training so that he could get more skills for the more complex tasks that were developing in the bank.
He said that it was his fault for not taking up the opportunity of training.
Kevin then offered the information that since there were more and more women working in the bank, he was starting to feel uncomfortable and that he should not be there.
I asked him how he saw his future in Maningrida.
Kevin said that it was not good and that he realised that if the Council wanted to sack him then he would accept the decision. He added that while he felt this was the proper thing, he nevertheless wanted to stay at Maningrida.
I advised him that the Council will carry out a special audit on the period during which the money went missing and that we would have a meeting after we have sought the appropriate advice and make a decision.
I apologised for taking so long about the matter but he had to realise that the Council must try to do the right thing by the community and its workers."
On 15 September, Mr Clough wrote to Mr Wuridjal, as President, advising him about the options open to Council. The options included dismissal of Mr Boland. On 21 September, the Council's auditor confirmed the loss of $5,000 between 11 August and 15 August.
On 23 September the Council met. Mr Boland was not present. Four advisers were present, including the auditor and Martin Blandy of the Northern Territory Chamber of Commerce and Industry. According to the minutes, made by Mr Clough, four options were discussed. There was lengthy discussion, some of it "in language" and so not comprehensible to Mr Clough. Ultimately, Council decided to terminate Mr Boland's employment and ask him to leave the community, but "give him at least three weeks before he has to leave the community so that he has time to pack his things and to try to find another job somewhere". No reason for dismissal was stated in the decision. There is nothing in the minutes to suggest that anybody accused Mr Boland of stealing. At one stage Mr Blandy said "it would be very hard to blame Kevin for stealing the money". However, he added "but he has admitted that he was responsible for the money going missing". That seems to have been the point, for most participants. Mr Wuridjal made statements about "his making this problem" and said "Kevin has admitted that the job is much bigger than he is qualified to handle".
On 26 September two letters were sent to Mr Boland. One was from Mr Clough. It relevantly read:
"At its meeting on Friday the 23rd of September, the Maningrida Council resolved to terminate your employment with this Council.
The reason for your termination is your gross neglect of your responsibilities leading to the loss of $5,000 of Council money from our bank. This loss has been confirmed by an independent audit of the books for the period.
Clause 43(d) of the Remote Communities Local Government (Northern Territory) Interim Award provides for summary dismissal for inefficiency, neglect of duty and misconduct. However, in view of your family situation as principal income earner with 3 dependents, I have decided to dismiss you with the notice period appropriate to your length of service (CL24 of the Award), namely 4 weeks. Your termination becomes effective then on Friday the 21st of October, 1994."
The other letter was written by Mr Wuridjal as Council President. It relevantly read:
"At a meeting held on Friday the 23rd of September, the Maningrida Council decided to terminate your employment with the Council. The reasons for your dismissal have already been explained to you by the Council Clerk and in my view they are very serious.
At the same meeting, the Council with senior landowners present also decided to terminate your permit to enter and remain on Aboriginal land. Your period of notice to leave the community is 4 weeks. Please make preparations to leave the community by Friday the 21st of 0ctober?"
On the same day Mr Boland filed an application in this Court seeking reinstatement and compensation. However, by the time the matter came on for hearing, Mr Boland had left Maningrida and was living at Oenpelli where his wife had obtained employment as a nurse. He conceded that reinstatement was impractical and sought only compensation. Moreover, at the hearing, his counsel accepted that he would have been unlikely in any event to renew his contract on its expiration at 28 February 1995. So he limited his compensation claim to cover the period from 26 September to 28 February 1995.
Mr Boland's counsel claimed breaches by the Council of both s.1710DE and s.170DC of the Industrial Relations Act 1988.
Section 170DE (substantive fairness)
Section 170DE(1) provides:
"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."
The employer bears the onus of establishing the existence of a valid reason or reasons connected with the employee's capacity or conduct or the employer's business or undertaking: see s.170EDA(1)(a) of the Act. In this case, therefore, Maningrida Council must establish the reason for termination of Mr Boland's employment and its validity. If that is established, the termination may nevertheless be unlawful, if it was harsh, unfair or unreasonable: see s.170DE(2). But Mr Boland bears the onus of establishing that: see s.170EDA(1)(b).
The first question, then, is what was the reason for termination. In his written submissions, counsel for the applicant maintained at some length that the true reason for dismissal was that Council believed Mr Boland had stolen the money. This was a tactically astute submission, since the evidence falls far short of establishing theft. But the difficulty with the submission is that it lacks foundation in the evidence. It is true that, in a letter of 26 September 1994 to Ray Walton of the Australian Services Union, Mr Clough expressed the opinion "that there is a strong prima facie case with powerful circumstantial evidence suggesting that Kevin stole the money". He explained why he held that opinion. It is not necessary to set out his explanation. The more important point is that he preceded the comment with the following paragraph:
"The reason for his termination is gross neglect of his responsibilities in the bank operations leading to the loss of $5,000 from the Maningrida Council bank. The loss of the money has been confirmed by an independent audit of the books for the period concerned. Kevin has also admitted his own incompetence and inefficiency in his job in the bank."
The reason for termination stated in this paragraph is the same as that stated in the letter from Mr Clough to Mr Boland of 26 September. Whatever Mr Clough's personal opinion might have been, the only stated reason for the termination of employment was Mr Boland's "gross neglect of his responsibilities" leading to the loss of the $5,000. This reason is consistent with the tenor of the debate at the Council meeting of 23 September, so far as it was recorded in the minutes made by Mr Clough. That being so, there is no reason to conclude that Council made its decision on some other ground or to impute to Council an allegation of stealing.
It cannot, I think, be disputed that the reason stated by Mr Clough was a reason "connected with (Mr Boland's) capacity or conduct or based on the operational requirements of the (employer's) undertaking". The only question is whether the reason was valid, in the sense of being justified.
I think the reason was valid. In saying that I wish to emphasise that I do not conclude that Mr Boland stole the missing money. As I have said, the evidence falls well short of proving theft. But I do think that Mr Boland neglected his duties and the probability is that this caused, or contributed to, the loss of the money.
First, it seems to me that it was irresponsible of Mr Boland to take the money outside the bank in the way he did. The money had arrived from Darwin in a sealed container. No doubt a receipt was sought and given on delivery. If the money had failed to arrive, no receipt would have been given on behalf of Maningrida Council. The Council would not have suffered any loss. Moreover, there would be no risk of loss through accidental spillage from a sealed container. But when the money was hastily stuffed back into the box and taken outside, there must have been some risk of spillage. And the risk of any theft or loss was borne by the Council.
The evidence does not establish a causal relationship between the money being taken out of the bank and the loss of the $5,000. Perhaps the money "went missing", through theft by some person or spillage during the time Mr Boland was outside the bank and Ms Nathan failed to detect the deficiency; a distinct possibility if she quickly looked at the bundles of notes. Perhaps there was no connection between Mr Boland's action in taking the money outside and the loss. Nonetheless, the Council was entitled to take a serious view of his action.
Mr Boland's second act of neglect was in failing to make a cash count before he left the bank on the Friday afternoon. The evidence does not explain this failure. Apparently Mr Boland was anxious to go pig shooting, but there would appear to have been ample time for a cash count between the closure of the bank at 3pm and his departure at 4.30pm. Morning and afternoon cash counts were an important feature of the system of control that he had assisted to evolve.
Once again, it is not possible to say that there was a causal relationship between the failure to do a Friday afternoon cash count and the loss of the money. The money might have "gone missing" and proved irrecoverable even if its absence was detected on the Friday afternoon. A Friday afternoon cash count might have shown no loss; the loss having occurred over the weekend. But a Friday afternoon cash count would have better defined the period during which the loss was sustained, thus enabling more focussed inquiries. Once again, whether or not there was a causal relationship between the omission and the loss, I think the Council was entitled to take a serious view of Mr Boland's failure to follow proper procedures.
The stated reason for termination is "gross neglect ... leading to the loss of $5,000". This reason asserts a causal relationship between Mr Boland's neglect of duty and the loss of the money. As I have said, I do not think the evidence establishes a causal relationship between either of the omissions of duty on the Friday: taking the money outside the bank and failing to conduct an afternoon cash count. But, even if it is not possible to say that a particular neglect of duty caused the loss, it is not unfair to conclude that the loss was caused by some act of neglect. There is no suggestion in the evidence of an act outside Mr Boland's control, such as a robbery or burglary. There seem to be only three possibilities: loss or theft of the money when it was taken out of the bank by Mr Boland, embezzlement by someone on the Friday afternoon or a theft over the weekend by someone who took the keys from Mr Boland's kitchen. If the loss occurred by reason of either the first or third possibility, it is reasonable to hold Mr Boland directly responsible. On the second possibility, it might not be reasonable to say that Mr Boland was directly to blame, but it would certainly be fair to say that the failure to conduct a Friday afternoon cash count, before the staff left the bank, prejudiced the chance of detecting the embezzlement and recovering of the money.
I think the evidence establishes the validity of the reason for termination expressed by Mr Clough on behalf of the Council to Mr Boland.
In relation to s.170DE(2) of the Act, I do not think the termination was harsh, unjust or unreasonable. Mr Boland's acts of neglect were serious matters. I appreciate that the relevant events occurred in a small community, where everyone knows everyone else, but this is no excuse for a sloppy performance of community responsibilities. I appreciate, also, that Mr Boland had received limited training for his duties. He was not a professional accountant or even a trained bookkeeper. But he was not dismissed because of his lack of accountancy expertise or bookkeeping skills. He was dismissed because he neglected to follow simple, commonsense procedures with which he was well familiar. There was nothing harsh, unjust or unreasonable about that. Mr Boland himself conceded this, in advance of the dismissal decision, at the meeting of 13 September. He then said that, if the Council wanted to sack him, he would accept the decision and added that he felt this was "the proper thing".
Section 170DC (procedural fairness)
Section 170DC of the Industrial Relations Act provides:
"An employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless:
(a)the employee has been given the opportunity to defend himself or herself against the allegations made; or
(b)the employer could not reasonably be expected to give the employee that opportunity."
Paragraph (b) is obviously inapplicable to this case. The question is whether Mr Boland was "given the opportunity to defend himself ... against the allegations made". Counsel for the applicant submitted that he was not. He gave three reasons. First, he said, "the allegations were always by way of innuendo, and were never expressly articulated ... in such a situation it is difficult if not impossible for an employee to himself elicit the precise allegation hidden in the murk of innuendo and successfully argue his defence". Second, Mr Boland was not expressly invited to the Council meeting at which his fate was decided; although Mr Clough said that he would have been allowed to attend if he had expressed a wish to do so. Third, it was claimed, the investigations conducted by the respondent concentrated suspicion on the applicant alone, when the position of others might have been more thoroughly examined.
I do not think that the third submission goes to procedural unfairness. It probably has its origin in the misconception (unwitting or tactical) that the applicant was dismissed for stealing. Once it is realised that the reason for termination was his neglect of duties as manager of the bank, it cannot be material whether or not there should have been deeper investigation into the possibility that some other employee stole the money.
As to the first matter, I agree that an opportunity for self-defence involves knowledge by the employee of the misconduct or incapacity with which he or she is accused. The Full Court said as much in Reader. But it pointed out that this does not necessarily mean that the allegations must be expressed:
"In a case where an employee knows the allegations being made, it is not necessary for it to be stated. For example, an employee may be caught in an act of apparent wrongdoing. Then it may be sufficient simply to ask for an explanation of what the employee is doing, without expressly stating the allegation. The allegation will be implicit in the circumstances in which the employee is required to give an explanation. Similarly, an employer may be aware that someone else has already told the employee the nature of the allegation. In such a case repetition is unnecessary. Again, the nature of the problem may already be apparent to the employee from previous conversations ..."
In the present case, Mr Boland was well aware, before 13 September, that his general stewardship was under scrutiny. As early as Tuesday, 16 August, the day after the money was reported as missing, Mr Clough had conducted a meeting with all bank staff at which he sought and obtained a detailed account of what had happened. This extended to the counting and care of the money and the location of the keys over the weekend. Mr Boland had mentioned taking the money outside the bank and Mr Clough had asked him why he had done that. On the following day, 17 August, Mr Clough had a conversation with Mr Boland, alone, in his office. During this meeting he took Mr Boland through the sequence of events once again, asking questions that clearly went to Mr Boland's administrative responsibilities rather than his personal honesty. According to Mr Clough's notes, this revealing exchange occurred:
"At about this point Kevin told me that for some time he had been feeling that the bank job was beyond him. It was OK when it was a small job, but now that it is much bigger, he feels that he can't work in there any more. He also said that for some time he had been considering that he would not renew his employment contract. He said that he would not be surprised if he lost his job over this matter.
I responded by saying that it is not my decision about whether or not he should lose his job. That was a matter for the Council. I said to him that I realised for some time that the job was beyond him and that is why I had encouraged him to get some training to improve his skills in order to be able to do the job more effectively.
Kevin said that he accepts that I encouraged him to get some training but that he had never acted upon it and that he regretted not doing so and admitted that it was his own fault for not doing so."
Later in the conversation, Mr Clough said:
"Whatever happens from this investigation, I have to take strong disciplinary action over the fact of you leaving the bank with the money under your arm? I don't know what that is at this stage, but I will be seeking advice on the matter."
Against this background, it must have been apparent to Mr Boland, before the commencement of the 13 September meeting, that there was concern about his neglect of duty. When he was asked at the beginning of the meeting to give his account of events from the Friday through Monday, he did so, dealing with his management generally. In the course of discussion, Mr Boland twice admitted that the money was his direct responsibility. He was clearly not being interviewed in relation to an allegation of stealing; no such allegation was put to him. He was being interviewed in relation to neglect of duty. He understood that, as is evident from his comments (quoted above) about not taking up the opportunity of training. I think Mr Boland had an opportunity of addressing the neglect of duty for which he was subsequently dismissed. He knew this and said what he could about it.
As to counsel's second point, I do not think there was a denial of procedural fairness by reason of the Council's failure to invite him to its meeting. He did not ask to attend the meeting. I agree that the onus is on an employer to provide procedural fairness; an employee does not have to ask for it. However, Mr Boland's failure to ask to attend the meeting is significant because it reinforces the impression that I gain from the notes of the meeting of 13 September that Mr Boland thought he had been given an ample opportunity to put his case. The meeting of 13 September was a full discussion with Mr Clough, his immediate superior, and two Council members, one of them the President. It concluded with Mr Boland saying that, if the Council wanted to sack him he would accept the decision. In other words, he had put his case; it was now for Council to determine his fate and he would accept its decision. I do not think there was a denial of procedural fairness.
Orders
It follows that I am of the opinion that the claim of unlawful termination of employment must fail. I think that the Judicial Registrar correctly dismissed Mr Boland's application. The application to review must be dismissed.
I certify that this and the preceding twenty-one (21) pages
are a true copy of the Reasons for Judgment
of the Honourable Chief Justice Wilcox.
Associate:
Dated: 24 April 1996
APPEARANCES
Solicitors for the Applicant: Waters James McCormack
Solicitors for the Respondent: William Robert Somerville
Date of hearing: There was no oral hearing
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