Bradford v Darkinjung Aboriginal Land Council

[1996] IRCA 311

DECISION NO:  311/96 
CATCHWORDS

INDUSTRIAL LAW - alleged unlawful termination - PROBATIONARY EMPLOYMENT.

Industrial Relations Act 1988 Reg 30B

JEFFREY BRADFORD -v- DARKINJUNG ABORIGINAL LAND COUNCIL

No. NI95/3660

BEFORE:     WALKER JR
PLACE:       SYDNEY
DATE:          15TH JULY 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES REGISTRY

No. NI 3660 of 1995

BETWEEN:

JEFFREY BRADFORD
Applicant

AND:

DARKINJUNG ABORIGINAL LAND COUNCIL
 Respondent

CORAM:     WALKER JR
PLACE:       SYDNEY
DATE:          15TH JULY 1996

REASONS FOR JUDGMENT

At a meeting of the Darkinjung Local Aboriginal Land Council held on the
11 July 1995, there was discussion as to the employment of a Co-ordinator by the Land Council.  It was resolved at this meeting that an advertisement be placed in the Koori Mail, Express and the Sydney Morning Herald for this position.  A interview panel was selected and it was further resolved that the interview panel have the authority to employ the Co-ordinator.

The advertisement was subsequently published in the Koori Mail on the 26 July 1995.  The applicant in this claim, Jeffery Bradford, was advised by letter on the 14 August 1995, that he had been accepted for an interview at 2.00pm on Friday, 18 August 1995.
At the next meeting of the Darkinjung Aboriginal Land Council on the 8 August 1995, the Minute Book marked as (Exhibit R1), indicates that there was discussion as to the Minutes of the previous meeting of the 11 July 1995.  It was also discussed that the interview panel was to bring back its recommendation to the members of the Land Council for their consideration.  After that, the following is recorded;

“ACTION NOTE: THE INTERVIEW PANEL TO BRING BACK THEIR RECOMMENDATION TO MEETING.

ACTION NOTE: APPROACH NSWALC FOR FUNDING FOR THIS ADVERTISEMENT.

ACTION NOTE: REQUEST FOR NSWALC MINUTES.

ACTION NOTE: INQUIRE WHERE THE FUND CO-ORDINATOR COMES FROM AND THE AMOUNT OF WAGES.

Discussion on wages

Discussion on Executives of Darkinjung being Executives of another organisation.
Members felt this was an important issue, this matter was discussed at length.

MOTION: THAT THE INTERVIEW PANEL HAS ONLY POWER TO INTERVIEW APPLICANTS AND MAKE RECOMMENDATIONS TO NEXT FULL MEETING NOT EMPLOY, THAT DECISION IS UP TO THE MEMBERS.

MOVED: G. SMITH       SECONDED: J.SMITH
CARRIED.”

It is the applicant’s claim that these minutes are a fabrication and no such matters were resolved at this meeting. 

The day of the interview 8 August 1995.

The interview panel consisted of the Chairman, Mr Pross, an independent, Mr W. Kenworthy and three members Ms Jenni Williams, Ms K. Busbridge and Mr Greg Weatherby.  There were only two people to be interviewed for the position of Co-ordinator, the applicant, Mr Bradford and the Secretary of the Darkinjung Aboriginal Land Council, Ms Robyn Goodman.

After the interview it was the applicant’s evidence that Ms Jenni Williams approached him and asked him to telephone her that night.  He followed this advice and was told by Ms Williams that he had the job.  Ms Williams sent a letter to the applicant confirming this on the 21 August 1995 and setting out the offer of employment. Mr Bradford accepted these conditions by letter dated
21 August 1995, addressed to Ms Williams.

The letter of appointment by Ms Williams is set out below,

“Dear Mr Bradford,

RE: LETTER OF APPOINTMENT, CO-ORDINATOR’S POSITION
DARKINJUNG LOCAL ABORIGINAL LAND COUNCIL

I wish to confirm our telephone conversation of Friday evening, 18 August 1995 whereas I advised you that your application for the above position has been successful. I further wish to acknowledge your acceptance of the position.

As Darkinjung’s next pay week commences Thursday, 24 August 1995 could you please advise your availability to commence your employment on that date.

Your hours of work will consist of a 35 hour week in normal office hours, Monday to Friday.

As you were advised during your interview a Probationary period of three (3) months will apply. Your commencement salary will be $29,000.00. This will be reviewed at the end of your Probationary period”.

When the applicant arrived for work on the morning of the 24 August 1995, he was met by Mr Pross the Chairman of Darkinjung.  Mr Pross informed the applicant that he did not have the position as there was a dispute about his appointment within the Land Council and he was sent home.

It was the applicant’s claim that there is a valid contract of employment between the applicant and Darkinjung and that Mr Pross by his actions on the 24 August 1995, terminated the applicant’s employment.  The respondent says that there never was an appointment in the first place as the interview committee did not have the power to appoint the applicant.

What is clear in this case is the terms of appointment set out in the letter of Ms Williams above and in particular to the probationary terms. Under Regulation 30B of the Industrial Relations Act 1988, an employee is excluded from the operation of the Act if the employee is serving a period of probation and that period is determined in advance and is reasonable, having regard to the nature and circumstances of the employment. As the applicant was a probationary employee he is therefore excluded from the operation of the Act and the application must therefore be dismissed.

I certify that this and the preceding five (5) pages are a true copy of the reasons for judgment of Judicial Registrar Walker.

Date:  15 July 1996

Legal Assistant:       Claire McAuley

Appearances:

Counsel for the applicant:             Mr S. Crawshaw

Solicitor for the applicant:            Mr B. Woolf

Counsel for the respondent:  Mr J.P. Butland

Solicitor for the respondent:         Mr D. Wilson

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES REGISTRY  

No. NI 3660 of 1995

BETWEEN:

JEFFREY BRADFORD

Applicant

AND:

DARKINJUNG ABORIGINAL LAND COUNCIL

Respondent

BEFORE:                WALKER JR

PLACE:                   SYDNEY

DATE:  15 JULY 1996

MINUTES OF ORDER

1. The application be dismissed.