Cameron v Warakurna Community Inc

DECISION NO:109/97

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - aboriginal community - complaint of UNLAWFUL TERMINATION - VALID REASON - PROCEDURAL FAIRNESS - acting outside authority - BREACH OF CONTRACT - COMPENSATION - resignation effective on re-employment

Workplace Relations Act 1996 (C'th) (formerly Industrial Relations Act 1988 (C'th)) Ss) 170CC, 170DC, 170DE(1), 170EA, 170ED(A), 170EE, 170EE(2) and (3)

Aitken v CMETSWU (1995) 63 IR 1

Burazin v Blacktown City Guardian Pty Ltd., unreported, IRCR 606/96, Full Court (Wilcox CJ, von Doussa and Marshall JJ) 13 December 1996

Fargie v Freedom Foods (Aust) Pty Ltd, unreported, IRCA 498/96, Parkinson JR, 14 October 1996

Garbutt v Stothers, unreported, IRCA 416/96, Ritter JR, 27 August 1996

Gibson v Bosmac Pty Ltd (1995) 60 IR 1

Lupoi v Philips Fox, unreported, IRCA 485/96, Ritter JR, 3 October 1996

McLeod v Caroline Scicluna & Associates, unreported, IRCA 77/97, Ritter JR, 13 March 1997

Nettlefold v Kym Smoker Pty Ltd, unreported, IRCA 469/96, Lee J, 4 October 1996

Nicholson v Heaven and Earth Gallery Pty Ltd (1994) 1 IRCA 199

Percival v Studioline Holdings Pty Ltd, unreported, IRCA 39/96, Ritter JR, 9 February 1996

Powers v Ani Corporation Ltd, unreported, IRCA 391/96, Ritter JR, 22 August 1996

Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371

Williams v Kirkman's Crane Trucks of Melbourne Pty Ltd, unreported, IRCA 140/94, Staindl JR, 23 November 1994

Crow, R. "Reasonable Notice - The Common Law Remedy for a Dismissed Employee - What is Reasonable Notice and When is It Required", Law Society Journal, November 1994, page 48

IAN CAMERON and ANNETTE CAMERON - v -

WARAKURNA COMMUNITY INC.

DI 1029 AND DI 1030 of 1996

Before: RITTER JR

Place: PERTH

Date: 8 APRIL 1997

IN THE INDUSTRIAL RELATIONS COURT )

OF AUSTRALIA )

WESTERN AUSTRALIA DISTRICT REGISTRY )

DI 1029 of 1996

B E T W E E N:

IAN CAMERON

Applicant

A N D:

WARAKURNA COMMUNITY INC.

Respondent

MINUTE OF ORDERS

8 APRIL 1997 PERTH RITTER JR

THE COURT ORDERS THAT :

The application under section 170EA of the Workplace Relations Act 1996 be dismissed.

The claim for damages for breach of contract be dismissed.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT )

OF AUSTRALIA )

WESTERN AUSTRALIA DISTRICT REGISTRY )

DI 1030 of 1996

B E T W E E N:

ANNETTE CAMERON

Applicant

A N D:

WARAKURNA COMMUNITY INC.

Respondent

MINUTE OF ORDERS

8 APRIL 1997 PERTH RITTER JR

THE COURT ORDERS AND DECLARES THAT :

The respondent terminated the employment of the applicant in contravention of section 170DE of the Workplace Relations Act 1996.

Subject to order 3 hereof, the respondent pay to the applicant the amount of $3,250.00 within 21 days of the date hereof.

The amount to be paid to the applicant in satisfaction of order 2 is less any sum required to be deducted therefrom by the respondent pursuant to the Income Tax Assessment Act 1936 and actually paid by the respondent to the Commissioner of Taxation with proof thereof to be served upon the applicant or her solicitors within 21 days of the date hereof.

There be liberty to apply as to the terms of this Order.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT )

OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )

DI 1029 of 1996

B E T W E E N:

IAN CAMERON

Applicant

A N D:

WARAKURNA COMMUNITY INC.

Respondent

DI 1030 of 1996

B E T W E E N:

ANNETTE CAMERON

Applicant

A N D:

WARAKURNA COMMUNITY INC.

Respondent

REASONS FOR DECISION

8 APRIL 1997 RITTER JR

INTRODUCTION

This trial primarily involved an application by each of Mr and Mrs Cameron pursuant to section 170EA of the Workplace Relations Act 1996 (the "Act"), for a remedy in respect of the termination of their employment by the respondent. There was in addition and in the alternative, a claim by each of Mr and Mrs Cameron for damages for an alleged breach by the respondent of a suggested implied term in their contracts of employment that they receive reasonable notice upon the termination of employment.

Whilst, of course, the applications by Mr and Mrs Cameron are separate and distinct, they were heard together as a matter of administrative convenience.

The respondent is an incorporated body under the Associations Incorporation Act 1895. The Warakurna Community is 800 kilometres from Alice Springs. Membership of the respondent is open to aboriginals who either derive descendance from the original inhabitants of the "Giles" area and whom either expressly or impliedly subscribe to the tenor of the Constitution and Rules of the respondent or those who reside at Giles and elect to abide by "the conforms and sanctions of the Community". (Constitution and Rules of the respondent, clause 5). The objects of the respondent include promoting the overall community development of the Warakurna Community, the achievement of self support of the Community by the development of economic projects and industries, the promotion of adequate education, training, health, welfare services, employment and housing for the Community, the development of a satisfying sense of community identity and to assist and encourage the Community to develop an effective system of self government upon its own lands. (Clause 3 of the Constitution and Rules.)

The respondent is one of eleven remote communities with the common language called "Ngaanyatjarra" who have together have formed a resource agency and an advocacy service dealing with regional matters. The resource agency and advocacy service is known as the Ngaanyatjarra Council (Aboriginal Corporation).

Mr Cameron was employed as a community development officer / adviser by the respondent from 18 February 1991 to 9 February 1996. On the latter date the employment of Mr Cameron was terminated by the respondent. There was no dispute on that issue. The main issues of contention in Mr Cameron's application under the Act were:

(a)Whether there was a valid reason for the termination of his employment under section 170DE(1) of the Act; and

(b)Whether there had been a contravention of the procedural requirements of section 170DC of the Act.

The remedy that Mr Cameron sought was that of compensation under section 170EE of the Act. Mr Cameron conceded through his counsel, Mr Wood, that reinstatement was impracticable in all the circumstances of the case. The respondent, through their counsel, Mr Waugh, agreed that if I were to conclude there was a contravention of the Act, then compensation was the appropriate remedy to consider.

Mrs Cameron was also first employed by the respondent on 18 February 1991. She was initially employed as the Warakurna Community store manager and was employed in that capacity for three years. From about February 1994 she became the bookkeeper and women's project officer for the Community.

With respect to Mrs Cameron, it was agreed that she left the Community with her husband on 12 February 1996. The main dispute was whether her employment was terminated by the respondent at that time or whether she had resigned from her employment in late November 1995. The respondent did not assert that if Mrs Cameron had been employed by it until 12 February 1996, there was a valid reason for the termination of employment. Again, the parties were agreed that reinstatement of Mrs Cameron's employment was impracticable and that the appropriate remedy to consider, if the Court found a contravention of the Act, was that of compensation.

The respondent largely presented its case first, although some of the respondent's witnesses gave evidence after Mr and/or Mrs Cameron, due to travelling difficulties in attending Court from the Warakurna Community.

The respondent called the following witnesses:

Mr Michael Hales, the store manager of the respondent at the relevant time;

Ms Diane Schultz, a registered nurse and midwife who works at the Warakurna Community and together with her husband runs the health centre of the respondent;

Mr Gary Stevens, the chairman of the respondent;

Mr Peter Rapkins, the coordinator of the Ngaanyatjarra Council;

Mr Ivan Shepherd, an executive member of the Warakurna Community Council;

Mr Bernard Newberry who is employed by ATSIC as chairman of the Western Desert Regional Council and who ordinarily lives at the Warakurna Community;

Ms Jorna Newberry who is the wife of Mr Bernard Newberry and who also lives at the Warakurna Community;

Mr David Stern who lives at the Warakurna Community and is employed by the Ngaanyatjarra Council as a dentist.

Both Mr and Mrs Cameron gave evidence in support of their own applications and that of their spouse.

Although the applications were heard together, the evidence and issues raised by them are quite different. Accordingly it will be necessary to separately consider the cases of Mr and Mrs Cameron. I will first consider the application of Mr Cameron and then that of Mrs Cameron. Prior to doing this I will set out something of the structure of the respondent that applies to both applications.

I should also mention at this stage that the applications of Mr and Mrs Cameron were heard over four days at Alice Springs. This was over two time periods. The first three days were 4, 5 and 6 November 1996. The fourth day was 10 December 1996. The respondent made an application for costs against the applicants' solicitors and/or counsel. The application was for one or both of these parties to pay for the costs occasioned to the respondent by the adjournment of the trial from 6 November 1996 to 10 December 1996. The application was opposed. That application raises issues which are quite separate to the applications of Mr and Mrs Cameron, and will be the subject of a separate judgment.

THE STRUCTURE OF THE RESPONDENT

I have earlier mentioned the basis of incorporation of the respondent and its objects. Clause 6 of the Constitution and Rules of the Respondent provides that the responsibility for carrying out the objects of the association is vested in the council. Any member is eligible to be a councillor. Councillors are appointed by a consensus decision of the Community and hold office for three years from the date of appointment.

Clause 10 provides that the council shall meet for the dispatch of business as often as the occasion may require and at such time and place as it may appoint. A meeting of the council is to be held whenever any councillor so requests; Clause 11. There is no limit as to the number of councillors but unless and until the council determines that a greater number is required, five councillors shall form a quorum at any meeting of the council, provided that whenever the number of councillors has been reduced below five, or below the number required for a quorum, the remaining of the councillors may act for the purpose of appointing new councillors who shall hold office until the next annual general meeting.

According to Clause 13, questions arising at any meeting of the council shall be decided by a majority of votes and each councillor present shall have one vote. The council shall from time to time appoint one of its members as the chairman of the council; Clause 14. The chairman is to preside at all meetings at which he is present provided that if he is not present or does not wish to take the chair, the councillors present shall elect a chairman for the meeting.

Clause 19 provides that the council is also responsible for the management and conduct of the affairs of the association and shall control its funds and property. By clause 21, the council may delegate any of its power and functions to a committee or committees consisting of such councillor or councillors and/or other persons as the council thinks fit. Any committee so formed shall in the exercise of the powers so delegated conform to any regulations and directions which may from time to time be imposed upon it by the council.

Clause 36 provides that the council and any committee thereof shall cause minutes to be entered in books kept for the purpose. Minutes are to be kept of the names of all councillors, the names of the councillors present at each meeting of the council and the names of persons present at any meeting of a committee, the orders, regulations and directions made by the council and committees and all resolutions of the council and committees.

During the evidence there was mention made at various times of the executive of the respondent and executive meetings. In the context of the Constitution and Rules this was clearly a reference to councillors and council meetings.

There was, in addition, reference to Community meetings. As I understand it, this was a reference to a meeting which was open to all members of the Community and therefore the respondent.

THE APPLICATION OF MR CAMERON

Mr Cameron's Employment

As stated earlier, Mr Cameron was employed as the community development adviser of the Community from 18 February 1991 to 9 February 1996. When he was first employed, there was a written contract of employment. This contract was expressed to be between the respondent, the applicant and the Ngaanyatjarra Council as a third party. The preamble to the contract states that the respondent requested the Ngaanyatjarra Council to monitor some aspects of the employment of the employees of the respondent. The written contract was expressed to be for a period of two years from its commencement date. However the period of employment could, expressly under the written contract, be extended by agreement between the respondent, the applicant and the Ngaanyatjarra Council. As stated earlier, the employment relationship between Mr Cameron and the respondent continued until 9 February 1996.

It appears there was no written documentation of the extensions of Mr Cameron's contract of employment with the respondent beyond the initial two year period. Mr Cameron accepted, however, when cross examined, that the written contract still applied to his employment in 1996. (Transcript 288).

Clause 9 of the agreement referred to the termination of employment. Clause 9(b) provided that, at any time after an initial probation period, Mr Cameron's employment could be terminated by the respondent by the giving of four weeks' notice or by the payment to him of four weeks' salary in lieu of notice, in the event that:

Mr Cameron was in breach of any of the terms and conditions of the agreement; or

Mr Cameron was absent from work due to sickness or injury for a continuous period of not less than 12 weeks.

Clause 9(c) stated that for the purposes of the agreement, misconduct on the part of Mr Cameron included the failure to obey a lawful direction of the respondent or the Ngaanyatjarra Council. Clause 9(d) said that notwithstanding Subclause 9(b), Mr Cameron's employment could be terminated by the respondent without notice or moneys in lieu thereof where Mr Cameron had been guilty of misconduct.

The schedule to the written agreement provided the job duties of the community development adviser. Under the heading "General" was provided:

"The community services officer shall assist the governing committee of the employer in its overall responsibility for the ongoing development of the Community and for the supervision, management and control of all services, activities and enterprises in or controlled by the employer or any other body corporate controlled by the Community at the location. Whilst the community services officer shall have wide administrative powers, the exercise of those powers will be done in full recognition that it is the Community through the governing committee of the employer which is responsible for making decisions in relation to all aspects of community life and that the community services officer must act in accordance with the directions of the employer and of Ngaanyatjarra Council."

The underlining in the above is in the original document.

Under the heading of "Administration", the community services adviser is said to have the duties of supervising, controlling and disciplining all community staff, including hiring and dismissing such staff in consultation with the governing committee and where appropriate with the manager of the particular area in which the staff member is employed. As will be detailed later, this part of the contract of employment was altered by direction from the respondent.

When Mr Cameron's employment was terminated, he was paid to the end of the relevant fortnightly pay cycle, paid for four weeks in lieu of notice, six weeks for accumulated leave and also provided with money for an airfare. Accordingly, it is clear that the respondent did not rely on Clause 9(d) of the contract which entitled it to dismiss Mr Cameron without notice for misconduct.

The Termination of Mr Cameron's Employment

The immediate events which led to the termination of Mr Cameron's involvement involved his interaction with Mr Hales, the Warakurna Community store manager.

Mr Cameron received from the respondent a letter dated 15 February 1996 confirming the decision to terminate his employment. The letter was signed by Mr Stevens. In the letter Mr Stevens referred to two meetings of Warakurna Community members, which occurred on 9 and 12 February 1996 and which Mr Cameron attended. The letter said that:

"Although there were a number of issues discussed by Community members, the central reason for the members of Warakurna expressing their dissatisfaction with the manner in which you have performed your duties as community development adviser relate to your failure to follow the specific instructions given to you in writing on 30 June 1994, to the effect that you were not permitted to make decisions regarding the employment of Warakurna Community staff without first referring the matter to the governing committee of the Community. Specifically, you were instructed not to employ or terminate the employment of any staff, as decisions regarding employment are a matter specifically for the governing committee of the council.

As you are aware, at the meeting on 9 February 1996 you were given an opportunity to explain your involvement in the circumstances under which the community store manager decided to leave the Community at short notice. The members of the Community who heard your explanation did not accept it, and expressed their dissatisfaction and lack of confidence in your continued employment as community development adviser. I confirm that the decision of 9 February 1996 was ratified at the subsequent meeting held on 12 February 1996."

Reference will be made to the letter dated 30 June 1994 later in this judgment. I will also refer to the detail of the meetings which took place on 9 and 12 February 1996.

It can be seen that the letter confirming termination specifically referred to Mr Cameron's "involvement in the circumstances under which the community store manager decided to leave the Community at short notice”. It was the respondent's submission that Mr Cameron's conduct in respect of this matter was such that it provided a valid reason for the termination of employment.

In opening the respondent's case, Mr Waugh submitted there were four particulars of Mr Cameron's conduct which provided a valid reason for the termination of his employment. These were:-

Mr Cameron terminating the employment of Mr Hales;

Alternatively, unilaterally, and without consultation with the respondent, changing the terms of the contract of employment with Mr Hales. Specifically, this referred to an alteration to Mr Hales' probationary period of employment, without consultation or authority from the respondent;

Alternatively to 1, accepting Mr Hales' resignation of employment without consulting with the respondent;

Directing Mr Hales to leave the Community after a few days rather than letting him work out his month's notice, without consultation with the respondent.

The respondent submitted that Mr Cameron's conduct was serious misconduct given the contents of the letter dated 30 June 1994 and also a letter dated 6 December 1993.

To understand the factual basis for the respondent's submissions, it is necessary to consider the employment relationship between Mr Hales and the respondent.

The Employment Relationship with Mr Hales

In September 1995 Mr Hales was working as a roadhouse mechanic at the Warakurna Community. The position of store manager of the respondent was advertised and Mr Hales applied for the position. In November 1995 he was appointed to the position and commenced his employment. Mr Hales was assisted by his wife, Ms Dawn Hales, although it is unclear whether she was also an employee of the respondent. Mr Hales' employment had a three-month probationary period. When the three-month period was almost up, Mr and Ms Hales took one week of leave which had been authorised by or on behalf of the Community. During this period, Mrs Cameron assisted with the running of the store. It came to her attention that there were some stock ordering and storage difficulties. Accordingly, and after discussion with Mr Stevens, Mr and Mrs Cameron recorded in letter form a list of things which they thought that Mr and Ms Hales should improve in the running of the store.

The first day that Mr and Ms Hales returned from their leave was Monday 15 January 1996. On that day, in the afternoon, Mr and Mrs Cameron and Mr and Ms Hales had a meeting. During the meeting, Mr and Mrs Cameron gave Mr and Ms Hales what was termed "constructive criticism" in relation to a number of matters involving the store. In giving this "constructive criticism", Mr and Mrs Cameron made reference to the letter that had been prepared, although this was not given to Mr and Ms Hales during the course of the meeting. The letter was given to Mr and Ms Hales at the end of the meeting. It was explained in evidence by Mr Cameron that not all of the matters had been fully discussed at the meeting before they ran out of time. Accordingly, he gave the letter to Mr Hales upon completion of the meeting and said that if he had any trouble with any of the other aspects of the letter, Mr Hales should advise him.

The letter covered cleaning, stacking of shelves, freezers and fridges, store stock control, stock control sheets, bookkeeping, a new cash book, use of the new cash register, and a stock take. The final part of the letter contained a "summary". The final line of the letter was that "your employment probationary period will be extended for a further month". This was not explained to Mr and Ms Hales during the course of the meeting. The letter dated 15 January 1996 was unsigned. However, at the conclusion of the letter, in the place where the letter would ordinarily have been signed, was typed in brackets "Chairman of Warakurna Community". As stated earlier, the chairman of the Warakurna Community was Mr Stevens. Mr Stevens was not present in the Community on 15 January 1996. A few days earlier he had left the Community to work on "cultural business". Further, Mr Stevens did not expressly authorise Mr Cameron to issue this letter to Mr and Ms Hales in the name of Mr Stevens or at all. Further, Mr Stevens was not explicitly aware of Mr Cameron extending the employment probationary period of Mr Hales. Mr Cameron claimed, however, that he had been given general authority by Mr Stevens to write such a letter. This will be considered later.

Mr Hales said that when he returned home and saw the final paragraph of the letter he had a strong reaction to it. He decided to speak to Mr Cameron about the letter the next day. Mr Hales then spoke to Mr Cameron and said that he was not impressed with the letter and asked whether he was getting an official warning. Mr Hales said that Mr Cameron said "I just want people to get off their butt and do more than what they're doing". Mr Hales said in evidence that Mr Cameron had said "If you get and do some more work - put more time in, and get it up and going, you'll be fine". Mr Hales again asked Mr Cameron whether this was an official warning. Mr Hales said that Mr Cameron just shrugged.

Mr Cameron's evidence of this conversation was that Mr Hales saw him and was concerned about the extended probationary period and was frightened it could jeopardise his job. Mr Cameron told Mr Hales he was not going to be dismissed over the contents of the letter, but that given an experience the Community had had with a previous store manager, Mr Cameron thought it was necessary to give a written warning. Mr Cameron also said that he could not at present recommend Mr Hales' continued employment to the Community, and that he could not do this until the store was up and running properly. This was the reason for the extended probationary period.

In the week leading up to 9 February 1996, a delivery truck arrived at the Community with a full pallet of Coca-Cola bottles that had collapsed. When the gates were taken off the side of the truck, the whole pallet of bottles fell to the ground. This annoyed Mr Hales. Mr Cameron assisted Mr Hales in clearing up the mess. Mr Hales said that he could not get any of the Community people to give him a hand. The bottles were put in a disused freezer and Mr Hales said to Mr Cameron that he thought this was "about the last straw". Mr Hales said that he thought "well that's about it, as far as I'm concerned", meaning that he had just about had enough of the job. Mr Hales said that cleaning up the bottles was a big job because each bottle had to be individually wrapped and washed before it could be put in the freezer. As he said, "you can't display grotty plastic bottles". There were sixty dozen bottles involved.

Despite what he said and his thoughts on this occasion, Mr Hales did not resign his employment at the time. However a few days after that Mr and Ms Hales decided that they did not wish to continue in their position. Mr Hales explained this to Mrs Cameron. She said that Mr Hales should talk to Mr Cameron about it at their home, which is what Mr Hales then did.

There was then a discussion between Mr Hales and Mr Cameron, though Ms Hales was also present. Mr Hales and Mr Cameron, in their evidence, were in broad agreement with what was said. Mr Hales told Mr Cameron that he had "just had enough". Mr Cameron then said that "whilst you were at the roadhouse, you complained that you could never use your initiative". Mr Cameron then said, "why didn't you use your initiative and have the guts to shut the door of the store to keep the people out when you didn't get help". Mr and Ms Hales then terminated the conversation and left.

Mr Cameron's comment referred to the fact that Mr Hales was not getting help in the store from the people at the Community. This was one of the problems that Mr and Ms Hales were having - they were not getting help from the people at the Community to run the store, as they were supposed to. Mr Hales said that before he left Mr Cameron's house that day he responded that "well, I don't think I'm in the position to do that as the store manager. That's surely got to be a Community thing".

In his evidence, Mr Cameron agreed that he made the comment to Mr Hales. Mr Cameron said that if the store was shut and people were not able to purchase food, for example, the Community would soon get the message and assist in the running of the store. Prior to the commencement of his position as store manager, Mr Hales had received advice from another community store manager that this was a tactic which could be employed to ensure that help was provided by the Community. At that time, Mr Hales discussed the matter with Mr Cameron who endorsed the tactic and said that if he employed such a measure, Mr Hales would not be dismissed from his employment. The respondent relied on this comment by Mr Cameron as being indicative of him acting as though he was the controlling will of the Community, as opposed to an employee of the Community acting in accordance with their directions, particularly in employment-related matters.

Mr Hales said that before leaving the Camerons' residence on the day of his resignation, he advised Mr Cameron that he was giving four weeks' notice as of that day. Mr Cameron agreed that this occurred.

The next day Mr Hales saw Mr Cameron again. Mr Cameron asked Mr Hales for his resignation in writing. He told Mr Hales that he had known people to change their minds. Mr Hales agreed with this and wrote a letter of resignation and brought it back to Mr Cameron.

Mr Cameron then said that Mr Hales could finish on the Saturday of that week, and that Mr Hales would be paid four weeks' pay in lieu of notice. Mr Hales indicated that he and his wife could not be out of the store manager's house within that time period and Mr Cameron said that that would be fine, "just stay on for a week until you get tidied up".

Mr Hales said that after this conversation he advised Mr Stern and Mr Paul Porter, an executive member of the Community, of what had occurred. Mr Hales said that he indicated he had no objection to finishing on the Saturday. These conversations were on the Thursday, as best as Mr Hales could recall.

Mr Cameron did not specifically consult with any executive member or member of the Community about Mr and Ms Hales finishing on the Saturday. The reason for requesting that Mr and Ms Hales finish on the Saturday, rather than later, was that Mr and Mrs Cameron were due to take holidays after a four-week period and Mr Cameron's preference was to have in place a new arrangement for the management of the store prior to their leave, rather than leaving the matter in abeyance until they returned. The respondent relied upon this conduct as showing that Mr Cameron put his own interests in front of those of the Community.

Although it was not clear on the evidence, it is probable that Mr Hales gave Mr Cameron his written resignation on Thursday 8 February 1996.

On the next day, 9 February 1996, there was a Community meeting at which Mr Cameron's employment was terminated. What happened at this meeting is of some importance and I will discuss the evidence about the meeting in some detail. Before doing this, however, I will reflect upon the status of Mr Hales' employment in the context of the submissions Mr Waugh made when opening the respondent's case, as outlined above.

The Status of Mr Hales' Employment and the Respondent's Particulars of Misconduct

As set out earlier, the first particular was that Mr Cameron had terminated the employment of Mr Hales. Given Mr Hales' evidence, I think it is clear that he resigned his employment on 7 or 8 February 1996. I do not think it could be said that he was actually or constructively terminated from his employment by Mr Cameron. Therefore the respondent has not succeeded in proving the factual basis for the first suggested particular of misconduct.

The second particular was that Mr Cameron unilaterally and without consultation with the Community, changed the terms of the contract of employment with Mr Hales by the letter dated 15 January 1996. Subject to the question of Mr Cameron having been given a general authority to write a letter to Mr Hales in the terms of that dated 15 January 1996, from Mr Stevens or Mr Newberry, which I will discuss later, I think the factual basis for this particular has been proved. The letter dated 15 January 1996 certainly changed the employment relationship between Mr Hales and the respondent. Further, Mr Cameron did not get specific authority to do this.

Prior to the receiving of the letter dated 15 January 1996, Mr Hales understood he was a probationary employee whose period of probation was about to expire. This period of probation, being three months, had been agreed between Mr Hales and the respondent prior to Mr Hales commencing as the store manager. There was no information before the Court which would suggest that the contract of employment between Mr Hales and the respondent, as initially entered into, had an option for the respondent to increase the probationary period from three months to four months. By imposing this term upon the employment relationship between the respondent and Mr Hales, Mr Cameron was, in my opinion, significantly altering the employment relationship. The difference in status between a probationary employee and a permanent employee is not one without significance. Generally, a probationary employee is serving a trial period during which the employer can assess the employee's aptitude and character and during which the employee's employment can be terminated. This can often be done quite legally without any, or at least very little, notice. As at February 1996, if a period of probationary employment was specified in advance and was reasonable having regard to all the circumstances of the employment, then such a probationary employee was excluded from the benefits in relation to the termination of employment that ordinarily applied to employees under part VIA of Division 3 of the Act; see section 170CC and Regulation 30B of the Act prior to the November 1996 amendments to the Workplace Relations Act and regulation; and McLeod v Caroline Scicluna & Associates, unreported, IRCA 77/97, Ritter JR, 13 March 1997.

Being a probationary employee as opposed to a permanent employee can place an employee under additional pressures. That this is so was evident from the testimony of Mr Hales. He indicated that after receiving the letter dated 15 January 1996 he felt that Mrs Cameron was checking up on him and Ms Hales whenever Mrs Cameron was at the store and that the extended period of probation placed additional stress on him.

In all the circumstances, in my opinion, Mr Cameron's decision to increase the period of probation by one month was something of significance and was something which, in part, contributed to Mr Hales' decision to resign from his employment.

With respect to the third particular, in my opinion Mr Cameron did accept Mr Hales' resignation without consulting with the Community. In relation to particular 4, he also agreed with Mr Hales that Mr Hales should leave his position as store manager after a few days rather than let him work out his month's notice, without consultation with the Community.

In his evidence, Mr Cameron attempted to deny that he did this. He said that he merely wished to have Mr Hales agree to these matters so that Mr Cameron could take them to the Community for acceptance or negotiation. Given all of the evidence, including that of what occurred on 9 February 1996 (as to which see below), I do not accept this.

Overall, I find, subject to the question of Mr Cameron's general authority, that the respondent has proved particulars 2, 3 and 4. The extent to which these matters comprise misconduct, and whether the misconduct was such as to provide a valid reason for termination of employment, is a separate matter which will be discussed later.

The Meeting of 9 February 1996

The witnesses who were present at this meeting, in whole or in part, were Mr Hales, Ms Schultz, Mr Shepherd, Mr Stern, Mr Cameron and Mrs Cameron.

There was no issue that Mr Stern took handwritten minutes at the meeting. He was also an active participant in the meeting. After the meeting, Mr Stern typed up the minutes and took them to some executive members of the Community for signature. The minutes were signed by Paul Porter, Ivan Shepherd and Kumanara ("Owen") Mitchell. In addition, Mr Richards, B.O.B. Shepherd and Mr Mitchell placed their mark, a cross, next to or underneath their typed names at the conclusion of the minutes.

The minutes recorded that the Community meeting took place on Friday 9 February 1996 at approximately 12 p.m. Each of the witnesses who was referred to the minutes agreed that they were generally an accurate record of what was said at the meeting, although it was suggested by some witnesses that certain things which were said at the meeting were not recorded in the minutes. Mr Stern said in his evidence that the minutes did not purport to be a verbatim account of what was said at the meeting.

The minutes recorded that Mr Ivan Shepherd was the acting chairman of the meeting and that it was attended by "many members of the Warakurna Community".

The minutes recorded that Mr Cameron told the meeting that Mr and Ms Hales had resigned because of the state of goods that had arrived on a truck on Wednesday, which was "Coke bottles were everywhere and there were damaged goods, also they were not getting any help, no staff were turning up for work. Although they gave one month's notice he asked them to finish on Saturday, as this was better for the Community, especially in light of "business" and that there's going to be lots of people". The reference to "business" was apparently to cultural business about to take place in the Community. Mr Cameron reported that Mrs Cameron was willing to work in the store in the meantime for no extra pay with the help of others. Mr Cameron also reported that the principal's wife would help in the office for 20 hours per week. Mr Shepherd then translated this to the Community and Mr Porter asked for Mr and Ms Hales to talk to the meeting.

Mr Hales attended and addressed the meeting. He told the meeting that it was hard for Mr and Ms Hales without regular staff and that when the truck had come on the Wednesday with the damaged goods this was the last straw. He said that he told Mr Cameron on Wednesday afternoon that he would resign in a month and that he was not happy about the letter (dated 15 January 1996) that they had received when they returned from their leave. On the Thursday morning Mr Cameron had told Mr and Ms Hales to finish on the Saturday. Mr Shepherd then translated and asked Mr Stern to read to the Community the letters of 30 June 1994 and 15 January 1996. There was then recorded some discussion between Mr Stern and Mr and Mrs Cameron about the letter of 30 June 1994.

Mr Stern asked Mr Shepherd whether he had seen the letter dated 15 January 1996. Mr Shepherd said that he had not. Mr Stern also asked the council members if they had seen it because it had written at the bottom "Chairman of Warakurna Community". The council members all said no. Mr Stern said that he had personal problems with Mr and Mrs Cameron, which Mr Shepherd then translated. Mr Stern said to the meeting that if Mr and Mrs Cameron were to go, Mr and Ms Hales might stay because maybe there were other reasons that had made them resign. Mr Stern said that it was not his business but if the Community wanted Mr and Mrs Cameron to leave, they could ask questions of him about that. The minutes recorded Mr Stern saying this was all he knew about such matters, but that if anyone had a question, they could ask him.

Mr Cameron said that he would do what the meeting decided and that it was "all right either way for them". Mr Shepherd then thanked Mr and Mrs Cameron and said that they wanted them to go. The minutes then concluded by Mr Stern asking people to come and give their names if they were happy with the decision that Mr and Mrs Cameron were to go.

As a document, the minutes do not clearly set out the suggested misconduct of Mr Cameron or the reasons why his employment was terminated.

Mr Hales said in evidence that he understood that the Community were concerned at the meeting about the letter to Mr Hales dated 15 January 1996 being in conflict with the letter to Mr Cameron dated 30 June 1994. When cross examined, Mr Hales confirmed that there had been no agenda or items written on a whiteboard in respect of the meeting. Mr Hales agreed that Mr Shepherd did not put any specific allegations to either Mr or Mrs Cameron. He also agreed that the meeting was in effect taken over by Mr Stern. Mr Hales agreed that Mr Stern may well have said that Mr Cameron had been there as community adviser for five years and that now was the time to get rid of him. However, in re-examination Mr Hales said that this part of the conversation was reflected by that part of the minutes which said that if Mr and Mrs Cameron were to go, Mr and Ms Hales might stay.

In her evidence, Ms Schultz said that there were about 30 to 40 members of the Community present. She said that the Community dislikes changes of staff and did not want Mr and Ms Hales to go. When cross examined, Ms Schultz could not recall whether Mr Stern had with him the two letters at the meeting or whether he had a copy of the Pitjantjatjara Award, which was relevant to people employed on the Pitjantjatjara lands. Ms Schultz said that she could recall Mr Stern saying words to the effect that the Camerons had been there for five years. However, she could not recall Mr Stern saying that it was time for the Camerons to go. When asked what she understood from the meeting to be the reason for Mr Cameron's termination of employment, Ms Schultz answered that the Community felt they had not been told about things that had been happening, they were not included in judgment making and decision making, they wanted to become more involved in that area, and Mr Cameron had shown a resistance to that. She was asked whether there were precise details of Mr Cameron's alleged resistance that were discussed. Ms Schultz said there were several things discussed but this was mostly in "language" so it was hard for her to understand everything. Ms Schultz was asked whether she understood that Mr Cameron's employment was being terminated for a reason, amongst others, of sacking Mr Hales. She said that she was under the impression that this was one of the examples of Mr Cameron not including the committee in decision making. The applicant relied upon this answer as showing that there was confusion at the meeting, given that Mr Hales reported that he resigned from his employment rather than that Mr Cameron had terminated it.

In his evidence-in-chief, Mr Shepherd agreed that he signed the minutes and thought they were a correct representation of what happened at the meeting. In cross examination, Mr Shepherd remembered Mr Stern holding up some letters at the meeting. He also remembered Mr Stern saying that the Camerons had been there for five years and that they had been there too long. He also said that Mr Stern indicated that it was time for them to go. He remembered that on the Thursday prior to the meeting, there had been a meeting with Mr Cameron and Mr Porter in the Community office, at which Mr Cameron had indicated that Mr Hales had resigned. Mr Shepherd then organised a Community meeting to take place to have a discussion about Mr Hales' "problem". Mr Shepherd agreed that Mr Stevens was away from the Community and that he was in charge of the meeting.

Mr Shepherd agreed that at the meeting there was a lot of talk and that it was difficult to understand what was being said.

He recalled saying with respect to the letter dated 30 June 1994, that that was all "history" and "over". Mr Shepherd said that the people at the meeting were upset because Mr and Mrs Cameron and Mr and Ms Hales were having problems. There was also some evidence from Mr Shepherd which, although unclear, suggested that the people may have thought that Mr Cameron had a five-year contract which had run out. Mr Shepherd also indicated that the people thought they had previously given Mr Cameron a warning. I took this as a reference to the 30 June 1994 letter.

Mr Shepherd also said that Mr Stern made a lot of noise at the meeting and had stirred people up. However, he denied that after Mr Stern was talking, the Community got angry or upset.

In re-examination, Mr Shepherd indicated that the main reason why Mr and Mrs Cameron were asked to leave was because of their conflict and arguments with Mr and Ms Hales.

Mr Stern in his evidence explained his understanding of the background to the meeting on 9 February 1996. He said that on the Thursday of that week, three or four men of the council had come to his clinic to discuss what was going on in the Community. They did not like the fact that Mr and Ms Hales were leaving. He said that earlier in the week three men had come into the clinic and talked to him about the Camerons not listening to them and not consulting them. Mr Stern said that because of these things, he telephoned Mr Rapkins and then the Pitjantjatjara lawyers. They sent to Mr Stern a copy of the letter dated 30 June 1994. On 9 February 1996 Mr Stern was in his clinic when he observed Mr Cameron and some of the older men in the area in front of the office, which appeared to be the beginning of a meeting. Mr Stern went and approached the meeting. He was then invited to join the meeting. Mr Cameron had at that time spoken a little about the storekeepers and Mr Stern asked the men if they wanted to say anything about that which they had spoken to him the previous day. They encouraged Mr Stern to stand up and speak about the issues that he had spoken about with the lawyers.

In cross examination, Mr Stern agreed that he had read to the meeting the letters of 30 June 1994 and 15 January 1996. He also agreed that he had with him and spoke about the Pitjantjatjara award, with respect to the termination of employment of Mr Cameron, if that is what the Community wanted to do. He also agreed that the minutes were not a verbatim record of what happened. He agreed that he spoke fairly loudly to the meeting. Mr Stern said that as far as he was aware, he did not say that the Camerons had been there for five years and that five years was too long for an adviser. He denied saying that it was time for Mr and Mrs Cameron to go. He also denied pointing to the Pitjantjatjara Award and saying that if the Community wanted to get rid of Mr Cameron, that that was the way to do it. Mr Stern agreed that he did not check with Mr Cameron about the details of the letters dated 15 January 1996 or 30 June 1994.

Mr Stern, in re-examination, said members of the Community said at the meeting they were dissatisfied with the Camerons with respect to irregular hours that the office was open and the Community's access to it, that a lot of equipment was at the Camerons' house rather than the office and they were unhappy that they had just heard that the storekeepers were leaving. They were also unhappy with the lack of communication and consultation in the past with the Camerons and with their rude manner and outbursts of anger and shouting and tears on frequent occasions. Although Mr Stern was asked this question with respect to the meeting on 9 February 1996, I gathered from his answer that he was referring to what was expressed both at that meeting and at the meeting he had with some council members earlier in the week.

In his evidence, Mr Cameron said that the meeting on 9 February 1996 was so that he could tell the Community about the resignation of Mr Hales. He said that he had told members of the executive about this the day before. He agreed that both he and Mr Hales spoke at the meeting. Mr Cameron alleged that Mr Stern said at the meeting that Mr Cameron had been there for five years, that "don't you think that five years is a long time for an adviser to be in the Community" and that now was the chance to get rid of him. Mr Cameron said that Mr Stern had a booklet in his hand which he waved around and said this was the Pitjantjatjara Council award, and that "if you want to know your rights, if you're thinking that Mr Cameron is doing the wrong thing by you, come and see me. It's all in this little book.". Mr Cameron said that Mr Stern produced the letter dated 30 June 1994 and read that to the meeting. Mr Shepherd indicated that the subject matter of the letter was "finished". Mr Stern also read the letter dated 15 January 1996 that had been given to Mr Hales. Mr Stern waved this letter around in front of the people and asked if anybody had seen the letter, and nobody had. Mr Cameron said that the meeting had become a bit disruptive after Mr Hales had earlier said that Mr Cameron told him that he did not have the guts to close the store. Mr Cameron said that this seemed to disrupt the people. After Mr Stern spoke, it was quite noisy. After Mr Stern spoke about the award and the two letters, Mr Cameron was quite annoyed with the way the staff were carrying on and said that he was not concerned which way the meeting went. Mr Shepherd then said that the Community did not want Mr Cameron any longer. Mr Cameron said that he did not hear any resolution being put to the meeting, although he did not understand all of the language spoken at the meeting. He said that he did not really know what was happening at the meeting. He said that he did not have much idea what it was all about. He thought it was about working out what could be done about the store in view of Mr Hales' resignation and with "cultural business coming up".

In her evidence, Mrs Cameron said that Mr Stern became involved part way through the meeting. She said that Mr Stern said Mr Cameron had been there for five years, that "don't you think that's too long for any white person to be in a Community" and that now was the time to get rid of him. She said that Mr Stern was quite aggressive in his approach. He was standing at the time and had a lot of papers in his hand that he waved above his head. Mrs Cameron said that when Mr Cameron spoke, the meeting was subdued. Mr Hales then spoke and the people started to become restless or uneasy. Then, after Mr Stern spoke, they became quite agitated.

I find it difficult to clearly ascertain what was said at the meeting on 9 February 1996. To some extent there is a conflict between the evidence of Mr Hales, Ms Schultz, Mr Shepherd, Mr Stern and Mr and Mrs Cameron on this. In particular, there is a conflict in the evidence of the role that Mr Stern played at the meeting. According to the evidence of Mr and Mrs Cameron, he, in effect, told the Community that Mr Cameron had been there for too long and that they ought to get rid of him. To an extent this evidence is supported by that of Mr Shepherd and Mr Hales. However, it was not agreed to by Ms Schultz and Mr Stern. I am not able to resolve this conflict in the evidence. In general, I thought that Mr Stern was an impressive witness. He gave his evidence in a straight forward and calm manner. He was not at all evasive when answering questions and did not present as someone who had an agenda to have Mr Cameron's employment terminated. By the same token, I thought that Mr Hales was also straight forward, unexaggerated and honest in the way that he gave evidence. Likewise, I thought that Mrs Cameron gave her evidence in a clear and unexaggerated fashion. I have some difficulties with Mr Cameron's credibility, which will be set out later. I thought that Ms Schultz gave her evidence to the best of her ability, but was vague in her recollection of some aspects of the meeting that occurred. With respect to Mr Shepherd, I had no reason to doubt the honesty of his evidence. However, he gave his evidence in part through an interpreter, and there were some communication problems with this process. As a result it was not always easy to determine precisely what he intended to convey in his answers. Overall, I am not satisfied that Mr Stern imposed his influence on the Community at the meeting to achieve the aim of the termination of Mr Cameron's employment. Mr Stern, as said above, admitted that he had some difficulties with Mr Cameron. However, on the other hand, he said that "the devil you know" may be better than an alternative.

On balance, I think it likely that the Community were concerned about Mr Hales leaving his employment on such short notice. I think that they were concerned at Mr Hales having his probationary period extended by Mr Cameron and Mr Cameron having agreed to the short notice period for Mr Hales, without consultation with the Community. I also think, as reported in evidence, the Community were uneasy about the comment made by Mr Cameron that Mr Hales did not have the "guts" to close the store when he did not get any help. Overall, I am satisfied that it was the way in which Mr Cameron had interacted with Mr Hales that led the Community to make the decision that Mr Cameron's employment should be terminated at the meeting on 9 February 1996.

The Meeting of 12 February 1996

There was another meeting of the Community on 12 February 1996. The evidence differed as to how the meeting came to be called. Mr Rapkins said that he received a telephone call from Mr Cameron on 9 February 1996 in which Mr Cameron said his employment had been terminated. There was a previously scheduled meeting of Community advisers and store managers at the Warakurna roadhouse for the following night. Therefore, as Mr Rapkins was going to the Warakurna Community anyway, he decided to go and see Mr and Mrs Cameron when he was there. He told Mr Cameron this. On Sunday 11 February 1996 Mr Rapkins met with Mr and Mrs Cameron. Mr Rapkins said that Mr Cameron had with him his contract of employment which contained an entitlement to have a meeting with the Community to seek reasons for his termination. Mr Rapkins decided to talk to the Community and arranged for a meeting on the Monday. There was then a meeting held on Monday 12 February 1996.

Mr Cameron's evidence was different. He agreed that he telephoned Mr Rapkins after the meeting on 9 February 1996. He said that he told Mr Rapkins that he had been "sacked" but did not know the reason why. He agreed that Mr Rapkins said that he would attend at the Warakurna Community on the weekend. Mr Cameron said that he met Mr Rapkins on the Saturday. Mr Cameron spoke to Mr Rapkins about the meeting on Friday 9 February 1996. He said that Mr Rapkins acknowledged that a complaint had been made to him about Mr Cameron and he knew that there was going to be a meeting held at some time, but he regarded the matter as confidential and therefore could not have spoken to Mr Cameron about it prior to the meeting.

With respect to the Monday meeting, Mr Cameron said that on Sunday 11 February 1996 he went to get some fuel to travel to Alice Springs in his motor vehicle. When he attended at the petrol bowser, John Richards, B.O.B. Shepherd and Ken Shepherd told Mr Cameron not to leave that day as there was going to be another meeting on the Monday.

It is not necessary to decide the difference in the evidence between Mr Rapkins and Mr Cameron as to the origin of the meeting on 12 February 1996.

The witnesses who gave evidence about the meeting on 12 February 1996 were Mr Rapkins, Mr Shepherd and Mr Cameron.

Mr Rapkins arranged for Mr Kevin Black, one of the relief staff of the Ngaanyatjarra council, to take minutes at the meeting. These minutes were hand written by Mr Black. After the meeting, Mr Black gave the minutes to Mr Rapkins who checked them and filled out abbreviated names and "things like that" while the meeting was fresh in his mind. Mr Rapkins did that either that night or the next morning. Mr Rapkins then returned to Alice Springs and gave the minutes to his secretary to type. The typed form of the minutes was tendered as an exhibit. Mr Rapkins believed that the minutes taken were accurate. The following is a summary of the minutes.

The meeting commenced at 10:30 a.m. with Mr Ivan Shepherd as acting chairman. Mr Rapkins specifically required that all white staff other than himself, Mr Black and Mr and Mrs Cameron, not attend the meeting. This therefore included Mr Stern. Mr Rapkins explained that under the grievance procedure of "the expired employment contract", Mr Cameron was entitled to address a meeting of the Community with the administrator or chairman of the Ngaanyatjarra Council present. Mr Cameron said that he had been at the Community for five years and could not understand why he had to go. B.O.B. Shepherd said that "this was said at last meeting. Ian is to go for growling at store manager" (sic). Mr Cameron said that the dispute was between him and the store manager. He said that "White staff did not like taking direction, and I had to do it because the chairman was not available". Mr Ivan Shepherd said that Mr Cameron did not consult the council. Mrs Cameron said that she had to do a food order while the store manager was on leave, or there would have been no food for the people. Mr Cameron said that the store manager did not know how to run the store and the chairman (Gary Stevens) had asked him to speak to the store manager. Mr Cameron said that he did not sack the store manager, but that the store manager had resigned when he was angry. Mr Porter pointed out that the store manager said he would go in a month and that Mr Cameron had said he could go on the Saturday. There was then some discussion between Mr Rapkins and Mrs Cameron about Mr Rapkins' knowledge of the meeting on Friday. Mr Rapkins then called the meeting to order and suggested they get back to the issue of the meeting. Mr Porter and Mr Richards shook hands with Mr Cameron and thanked him for what he had done. Mr Cameron said that he still wanted to know why he had been sacked. Ms June Richards was recorded as saying that the "meeting on Friday was only for the store. Nobody knows what is happening, and does not understand the letter to the manager". I find this comment to be unclear, and the lack of clarity was not removed by any oral evidence. Mr Cameron said that as there had been no relief for the store organised, the Community would end up with no assets or money. He asked "why are you doing this to us when the other staff are leaving". Ms Newberry then said that the Community was sick of white people arguing. Ms Evelyn Reid was recorded as saying that the trouble started over the letter to the store manager. She also said, however, that "Ian doing good job" (sic). Ms Newberry said that no chairman had signed the letter, presumably meaning the letter dated 15 January 1996. Mr Porter said to give Mr Cameron a chance to talk. Mr Cameron said that a letter was written by a solicitor about 18 months ago. This was a reference to the letter dated 30 June 1994. Mr Ivan Shepherd said that at that time at a meeting Mr Cameron had been sacked, but then the people at the meeting decided to give him one more chance. Mr Cameron then suggested that the people were not happy with the store manager. Mr Ivan Shepherd said that the office was closed too much because Mr Cameron was always working at home. Mr Cameron said he still wanted answers and that if the Community were not happy 18 months ago, "why didn't they complain earlier". Ms Newberry suggested that they could not complain because there were no Community meetings. Mr Cameron suggested that the letter dated 30 June 1994 to him was false and that the people were happy. Mr Cameron said that he was not satisfied and would take the matter further, because he gave the store manager the option of staying one month. Mr Ivan Shepherd said that the Community gave Mr Cameron one more chance last time and now it was time to "finish". Mr Cameron claimed that "people had gone to business, so it was left up to me". I took this as meaning a reference to Mr Stevens having gone away on "cultural business" at the time of the letter being written to Mr Hales. Ms Jorna Newberry said that the people were not informed of decisions made. Mr Cameron told the meeting that he would be in Alice Springs for three days. Mr Rapkins then asked what the Community's final decision was to be. There was then recorded a unanimous agreement that their decision of Friday was the same, that the Camerons should leave the Warakurna Community.

When cross examined, Mr Rapkins said that in discussions with the Camerons over the weekend prior to the 12 February meeting, they had indicated that staff had influenced the previous meeting. Therefore, he thought that to make things completely fair, he would ask the other white staff not to attend. Mr Rapkins agreed that there was no notice given nor agenda prepared for the meeting. However, in re-examination he said that this would have had little impact as many of the members of the Community could not read. He also said that he did not explain to the meeting what the allegations against Mr Cameron were, but said that he thought people knew perfectly well what the issue of the meeting was. He agreed that he did not speak to Mr Stevens about the letter dated 15 January 1996, but said that he did not know where Mr Stevens was. He said that he did not think that it was possible for the meeting to be put off until Mr Stevens returned. Mr Rapkins said that he did not think that it would have been difficult for Mr Cameron to have responded to allegations made at the meeting.

When Mr Shepherd gave evidence, he agreed that Mr Cameron had asked for someone other than himself to translate to the Warakurna people, but he did not permit this. He agreed that there was a lot of talking at the meeting and that it was at times difficult to understand. He said that he told the meeting that the letter dated 30 June 1994 did not matter, because Mr Porter and Mr Richards, as council members, had asked him to say that.

In his evidence, Mr Cameron said that he asked Mr Shepherd for an independent interpreter but that Mr Shepherd did not allow this. Mr Cameron said the Community wanted him to explain "the bit of paper". Mr Cameron said that he thought they were referring to the letter dated 30 June 1994. However, Mr Shepherd said "not that bit of paper, that was finished with". Then Mr Cameron thought that they must have been referring to the letter that he wrote to Mr Hales dated 15 January 1996. Mr Cameron then explained that and also the unloading of the Coca-Cola from the truck which led to Mr Hales putting in his resignation. Mr Cameron said the meeting got disruptive and Mr Porter and Mr Richards at one stage shook his hand and said "thank you for what you have done". Later Mr Porter shook his hand and said "thank you, you have to go". The meeting closed. Mrs Cameron had left the meeting earlier and went to speak to people "underneath the tree". Mr Cameron was asked in examination-in-chief whether he understood what was being said at the meeting. He said that he did not understand what was happening and "had no idea what the - I mean, I knew it was over the store manager and that was all". He said he did not understand the reason that Mr Shepherd and Mr Porter told him that he had to go. He said that "the only thing that I knew that there was some complaint they told me with the store manager". In cross examination Mr Cameron agreed that the minutes were generally accurate. He agreed therefore that he had told the meeting that "the dispute was between [Mr Cameron] and the store manager". This was implicitly relied on by the respondent as indicating that Mr Cameron thought that matters relating to Mr Hales' employment were not matters for the Community, but instead were for him to consider.

The outcome of the meeting of 12 February 1996 was clear - the Community ratified their decision of 9 February 1996 to terminate Mr Cameron's employment. A little later, Mr Hales was re-employed, on different terms that he negotiated with Mr Rapkins on behalf of the Community. As at the time of trial Mr Hales was still employed, happily, as store manager.

The key issues with respect to Mr Cameron are whether the meetings of 9 and 12 February 1996 satisfied the requirements of section 170DC of the Act and whether there was a valid reason for the termination of Mr Cameron's employment. In determining the latter, it is relevant to consider the evidence of the letters to Mr Cameron dated 6 December 1993 and 30 June 1994, and the evidence relating to Mr Cameron's claim that he was authorised to write the letter to Mr Hales dated 15 January 1996. It is to this evidence that I now turn.

Letter of 6 December 1993

The letter dated 6 December 1993 was from Mr Rapkins as coordinator of the Ngaanyatjarra Council to Mr and Mrs Cameron. The letter referred to an attached memorandum; however, the memorandum was not tendered as an exhibit. It appears from the contents of the letter that the memorandum related to complaints about store prices, communication and consultation in making major decisions and office hours at the community adviser's office. The letter concluded:-

"I trust you will be able to resolve these matters with the Community in a way that is advantageous to both yourselves and the members of Warakurna".

Mr Rapkins said that after sending this letter he had a telephone call from Mr and Mrs Cameron. They were both angry and said that the letter was totally incorrect. As a result of that, Mr Rapkins contacted the Pitjantjatjara Legal Service to see if one of their lawyers could mediate with the Camerons and the Community. This led to a meeting between Mr Ken Grimes, a lawyer at the Pitjantjatjara Legal Service, and the Community which in turn culminated in the letter to Mr and Mrs Cameron dated 30 June 1994.

When cross examined, Mr Rapkins agreed that the matters contained in the letter dated 6 December 1993 were not complaints that he personally had with Mr and Mrs Cameron but were matters raised by others to him. Mr Rapkins also agreed that he received a letter from the respondent signed by Mr Stevens dated 15 December 1993 about the matter. This letter referred to a Community meeting held on 11 December 1993 to discuss Mr Rapkins' letter dated 6 December 1993. In his letter dated 15 December 1993 Mr Stevens indicated that the Community did not think the matters complained of in Mr Rapkins' letter dated 6 December 1993 were correct. The Community requested that all records relating to Mr Rapkins' letter and a letter from Mr Brookes, an anthropologist, dated 26 November 1993, be "eradicated from Ngaanyatjarra Council computer and files". The letter concluded that "I suggest that in future before damaging comments of this nature are written, that you thoroughly investigate the situation".

This letter had been drafted for Mr Stevens by Mr Cameron. Mr Cameron said that in his telephone conversation with Mr Rapkins, he wanted to know who had suggested there were communication problems. Mr Rapkins had answered that it was Mr Brookes and that he would have to speak to Mr Brookes to obtain further details. Mr Rapkins in his evidence said that he did not speak to Mr Brookes about the issue again as he referred the whole of the matter to the Pitjantjatjara Legal Service for mediation. Mr Rapkins did not speak to Mr Cameron about the matter again.

Mr Cameron also said that in January 1994 he spoke to a senior man of the Community. This person is now deceased and for cultural reasons was referred to in evidence as "Bernard's brother". This person was Mr Newberry's brother. Mr Cameron said that in January 1994 Bernard's brother told him that "everything seemed to be ok" in relation to the matters raised in the letter of Mr Rapkins dated 6 December 1993.

In all of the circumstances, I do not think there is evidence upon which I could make a finding that there had been misconduct by Mr Cameron which had led to the letter dated 6 December 1993. What the letter reinforced, however, was that issues of consultation and communication were important to Mr Rapkins and the respondent.

The letter dated 30 June 1994

This letter was from the respondent and signed by Mr Stevens and Mr Ivan Shepherd. It was addressed to Mr Cameron.

The letter was initially drafted by Mr Grimes after Mr Grimes had a meeting with the Community on 29 June 1994. The letter referred to the Community meeting to discuss Mr Cameron's role as community adviser. The letter said that:

"Recently, the Community feels that problems have started with how you do your job. These problems are of great concern to the Community and if them (sic) are not resolved the Community is concerned that they will break up the Community and prevent its further development.
To prevent this occurring the Community directs you to take the following action:-
(i)Make sure that the Warakurna Council is consulted on any staff hiring or firing matters. You are not to hire or fire staff, that is a matter for the Council.

(ii)If there are problems that you see with the Store Project Officers, teachers, nursing staff or any other employees you must raise them with the Council before you take any action or speak with the people concerned. The Community is very worried about the recent high staff turnover and wants it to stop.

(iii)On any funding matters or decisions to be made about the Community you must speak to the Council and take its direction in your work.

The Community sees your job as being important to maintain good staff and Community relations. At the moment those relations are at a low point and it is greatly affecting the life of the Community. The Community is concerned that, for whatever reason, your attitude to staff and Community responsibility needs to be improved.
The Community decided to allow you one month to improve relations and implement the above directions. It took this decision in good faith and out of respect for your long association with the Community. It hopes to receive your respect and cooperation in return.
If matters do not improve the Community may have to reluctantly seek your resignation."

In relation to the last paragraph of the letter, the respondent did not seek Mr Cameron's resignation. What this letter did, however, was to make it clear that the Council should be consulted on staff hiring and firing and the taking of action with respect to employees. On their face, Mr Cameron's actions with respect to Mr Hales contravened (ii) above of this letter. In his evidence, Mr Cameron agreed that he received the letter and that it would be a serious breach of his duties if he were to ignore the warnings contained in the letter. (Transcript 299).

However, Mr Cameron disputed the factual basis of the letter. He agreed that there had been a turnover of staff including Mr Sherrin, Mr Newton, Ms Hample and Mr Needs; however, he said that each of these had resigned. Their employment had not been terminated by Mr Cameron. Mr Cameron did not attend the meeting on 29 June 1994. Mr Cameron said in evidence that a reply was sent to the letter dated 30 June 1994, although neither Mr Cameron nor the respondent had the letter or a copy of it. Mr Cameron said that the letter was drafted after an executive meeting at the community office. Those present were Ivan Shepherd, B.O.B. Shepherd and Gary Stevens. Each item on the letter was discussed. He said that none of the executive members present could elaborate on any of the suggested problems in the letter. In general terms, Mr Cameron felt that after this meeting with the executive and given the letter that was sent in reply, the matters complained about in the letter dated 30 June 1994 had been dealt with and were not substantiated. In his evidence, Mr Stevens said that the letter dated 30 June 1994 had been sent so that Mr Cameron would "follow the right guidelines of the Community". He said that this meant that "any problems with the white staff bring it to the meeting". Mr Stevens was not cross examined about the letter dated 30 June 1994, or the meeting after that which Mr Cameron said that he attended.

However, the matter was raised with Mr Shepherd in his cross examination. He said that he missed the meeting which led to the letter on 30 June 1994 being sent. However, he could recall a meeting where he was present with Mr Porter, Mr Richards, Mr Lewis, B.O.B. Shepherd, Sandra Shepherd, Eunice Porter, Lindsay Reid, James Shepherd and Hayden Scott. This was to discuss the letter dated 30 June 1994. He recalled that Mr Cameron read the letter to the meeting. He also agreed that those in the group at the meeting decided that the letter was not true.

Given Mr Shepherd's evidence, I am again not satisfied that there is evidence before the Court to substantiate the allegation that Mr Cameron had been involved in misconduct which led to the letter dated 30 June 1994 being sent. However, I think that the contents of the letter should have brought home to Mr Cameron the importance of consultation with the Community, especially in employment-related matters.

The letter dated 15 January 1996 - The Question of Mr Cameron's Authority

In his evidence, Mr Cameron claimed that he had two sources of authority for the writing of the letter to Mr Hales dated 15 January 1996. This was from Mr Stevens and Mr Bernard Newberry.

With respect to Mr Newberry, Mr Cameron said that in October 1995 he had a conversation with Bernard and Jorna Newberry at the community adviser's house. Mrs Cameron was also present.

Mr Cameron said that there was a discussion about the store, books, the previous store manager and how the store could be improved. Mr Cameron said that Mr Newberry had told him that he did not want Mr Cameron to bother "us with all this stuff". He said that there was discussion about profits, losses and "that sort of thing" and that Mr Newberry admitted that he did not understand "all that margin of profits, and all that sort of thing". Mr Newberry told Mr Cameron that the Community needed the store up and running and "you sort out all your white fellows' problems at your house and then come down and let the Community know". Mr Cameron said that Mr Newberry used to do that type of thing regularly with him and that he had a good relationship with Mr Newberry. Mr Cameron said the effect of what Mr Newberry had told him was "don't bother us with the staff problems. You sort out your staff, recruit them, tell us what you've done . . . you've been here a long time now . . . we've got faith in what you do and know you'll do best for the Community".

Mr Cameron did not resile from this position in cross examination.

Mr Newberry, when cross examined, agreed that he had a discussion with Mr and Mrs Cameron in October 1995. He was asked whether he said to Mr and Mrs Cameron, in effect, "you look after the white fellow business with the staff. We don't want to know about that". Mr Newberry said "I brought that to his attention because there was a lot of hiring and firing and fighting going on with the staff, to sort it out at their level rather than bring it to the Community to be sorted out". That answer concluded Mr Newberry's cross examination. In re-examination, Mr Newberry was asked whether he asked the Camerons to hire and fire people. Mr Newberry said it was not within the Constitution of the Community. The Community were the people who employed people and hired and fired, not the employees. I then asked Mr Newberry what he meant by saying that Mr and Mrs Cameron should sort out matters with staff rather than bring it to the Community. He said "I mean like any other business, people have among themselves, like, if I have a family gossip or family differences, I sort it out with my own family rather than involving the whole community. I didn't mean anything like, you know, to - I cannot go into anything and undermine the Community power and authority". I asked Mr Newberry for an example of the sort of things that he meant that Mr and Mrs Cameron should do. He said "if I have differences with you . . . over anything, you might - for some reason, you mightn't like me the way I - how I operate. Then you and I might finish up having a fight". He said that he meant that things should be sorted "out at your own level".

Mrs Newberry also recalled a conversation with Mr and Mrs Cameron at their house in October 1995. She recalled Mr Newberry saying words to the effect that he was sick and tired of white people arguing and that they ought to resolve matters between themselves. She agreed that when the trouble occurred that led to the meetings in February 1996, that the "white people" should have sorted things out between themselves. However she reiterated the comment she made at the meeting on 12 February 1996 that Community decisions were required "if white people argue and cannot resolve matters".

In all the circumstances, I do not regard the evidence about the conversation between Mr Newberry and Mr Cameron in October 1995 as authorising what Mr Cameron did in relation to Mr Hales' employment in January 1996. Firstly, what Mr Newberry authorised was general in nature and not specific to Mr Hales. Secondly, the authorisation, such as it was, occurred in October 1995, approximately three months prior to the letter to Mr Hales dated 15 January 1996. Thirdly, I do not regard the authorisation which Mr Newberry purported to give to Mr Cameron as authorising what Mr Cameron did in relation to the employment relationship with Mr Hales. As I have set out earlier, Mr Cameron in effect unilaterally changed the employment relationship between Mr Hales and the respondent by extending the probationary period of employment of Mr Hales for an extra month. I do not think it can be said that Mr Newberry gave Mr Cameron authority to do this.

With respect to Mr Stevens, Mr Cameron said that he spoke to him concerning Mr Hales' performance as store manager, whilst Mr Hales was absent on leave, prior to the letter dated 15 January 1996 being written. Mrs Cameron was also present. Mr Cameron asked Mr Stevens how he thought the store was running. Mr Stevens said there were a few problems. He instanced that blankets and tyres were stored in the back shed. When people asked Mr Hales for these goods, people were "running through the store with stuff unpaid for". Mr Cameron said that he discussed this with Mr Stevens. He told Mr Stevens that things had to be paid for otherwise the Community would not make a profit from the store. He said that Mrs Cameron came up with a few suggestions such as stock control. Mr Cameron said in evidence that Mr Stevens said he thought Mr and Mrs Cameron knew what was required to get the store up and running and the Community would like to have a statement presented to it every quarter. Mr Cameron said that after this, and with Mrs Cameron's help, he worked out a "constructive criticism of how [Mr Hales] could improve his running and managing of the store". Mr Cameron dated this conversation with Mr Stevens as being on about 13 January 1996. Mr Cameron drafted the letter to Mr Hales dated 15 January 1996. He put this in Mr Stevens' name, however Mr Stevens had left the community by the time it was prepared and so Mr Stevens could not sign the letter as chairman of the Community.

When cross examined, Mr Stevens did not accept that this conversation occurred precisely as Mr Cameron alleged. He agreed that he saw Mr and Mrs Cameron before he went away on cultural business in January 1996. He recalled a discussion about Mr Hales' performance as store manager. In evidence he said, "put it this way: a mechanic come straight from the roadhouse, how do you expect him to jump straight in and do this shop straight away and get it - slowly - slowly get onto it . . .you have got to give him time to get used to the store". Mr Stevens was then asked whether he had asked the Camerons to explain to Mr Hales how to run the store. Mr Stevens said that he told Mr and Mrs Cameron to straighten things out and that the aboriginal staff and other people should help Mr and Mrs Hales in the store.

Mr Stevens was shown the letter dated 15 January 1996. He had not seen the letter at the relevant time.

Mrs Cameron did not give evidence on this issue.

Again, I am not satisfied that Mr Stevens gave Mr Cameron the authority to increase Mr Hales' probationary period by an extra month. In my opinion, what Mr Stevens said to Mr Cameron was that Mr and Mrs Cameron should assist Mr Hales by providing him with relevant information on how to run the store efficiently. Mr Stevens did not indicate that Mr Hales' probationary period of employment should be extended, nor could it be said, in my opinion, that the general words of authorisation Mr Stevens used were sufficient to allow Mr Cameron to increase Mr Hales' probationary period. Mr Stevens' evidence indicated that he thought Mr Hales should have been given time and assistance to improve the management of the store - not something like a probationary period extension, which could be seen as an ultimatum.

In my opinion, Mr Cameron increased the probationary period of Mr Hales because he thought it was in the best interests of the Community that he do so. It may have been a correct decision. However, Mr Cameron was not generally nor specifically authorised to make the decision. The respondent was entitled to regard Mr Cameron's actions as being outside the scope of his employment duties. In short, Mr Cameron assumed a responsibility that he was not entitled to.

I have mentioned that Mrs Cameron was first employed by the respondent on 18 February 1991. She was initially employed as the Warakurna Community store manager and was employed in that capacity for three years. It appears clear from all of the evidence that she did an exceptional job and earned vast revenue for the benefit of the Community. From about February 1994 Mrs Cameron became the bookkeeper and women's project officer for the Community.

It was from that position that Mrs Cameron wanted to resign in late November 1995. The reason that Mrs Cameron resigned was that she had been threatened by a member of the Community to whom she refused to give money for his mother. Mrs Cameron said that she did not have authority to give the mother any more than $20 she had given to her earlier. The person involved had a gun. He left the Community for some months but then returned. Mrs Cameron then saw him at her front door. She felt that she was under threat and therefore decided to resign. Mrs Cameron wrote a letter of resignation dated 29 February 1995. The letter was directed to Mr Stevens as the chairman of the Warakurna Community. The letter indicated that Mrs Cameron would like her resignation to take effect from 1 January 1996. The letter stated that Mrs Cameron felt that "I can no longer tolerate the level of physical and verbal abuse which has been directed towards me over the past six months".

Mrs Cameron gave the letter to Mr Stevens that day.

Mr Stevens said that he faxed this letter to Mr Rapkins at the office of the Ngaanyatjarra Council. However, Mr Rapkins denied receiving the letter. Although there is an apparent conflict between the evidence of Mr Stevens and Mr Rapkins, the conflict is not such that one of them is necessarily incorrect. For example, Mr Stevens may have intended to send the letter by facsimile to Mr Rapkins but typed in the incorrect facsimile number; on the other hand, the document may have been received by Mr Rapkins' office but misplaced by someone else in the office.

Despite putting in the letter of resignation, Mrs Cameron continued to be paid by the respondent after 1 January 1996 and to the time of her leaving the community. The payment was at the same rate as applied to Mrs Cameron prior to 1 January 1996. Mr Rapkins indicated in a reference that he wrote for Mrs Cameron that she was employed by the Warakurna Community in various capacities from 18 February 1991 to 20 February 1996.

At trial, the respondent attempted to resile from this and relying on Mrs Cameron's resignation, disputed that she was employed after 1 January 1996.

The applicant countered this by submitting that Mrs Cameron either continued to be employed or was re-employed by the respondent after 1 January 1996. The applicant submitted that Mrs Cameron was "re-engaged in a number of ways", and that Mrs Cameron still did productive work for the Community until the time that she left it. This, coupled with the fact that Mrs Cameron continued to be paid, indicated that there was an on-going employment relationship until the time that Mrs Cameron left the community with her husband, according to the applicant's submission.

The Re-Engagement of Mrs Cameron

Mrs Cameron said in her evidence that when she gave her letter of resignation to Mr Stevens, he read it and did not pass any comment about it at the time. Mrs Cameron said that there was then an executive meeting at which Mr Cameron was present but that she was not present. Mr Cameron told her what occurred at the executive meeting. Mrs Cameron was told that the executive would only accept her resignation from working in the Community office. She was informed the executive wanted Mrs Cameron to continue doing community work at her house and they thought that Mrs Cameron might be able to work with the women doing women's projects. This had also hitherto been one of Mrs Cameron's duties. Mrs Cameron was told that the work with the women was a suggestion which would have to be negotiated with and agreed to by the women of the Community.

Mr Stevens' evidence was not entirely consistent with this. He agreed that Mrs Cameron's resignation was raised at an executive meeting in December. This was attended by Mr Cameron, Mr Paul Porter, Mr Ivan Shepherd and Mr Stevens. Mr Stevens said that at that meeting Mr Porter said that Mrs Cameron could do "paperworks at the house" (sic). Although his evidence was not entirely clear on this, Mr Stevens seemed to be saying that he did not disagree with this proposition of Mr Porter. Mr Stevens indicated that he thought Mrs Cameron was going to continue "to give Mr Cameron a hand". However, he had not adverted to whether she was going to be paid for this.

Mr Stevens said that there was a suggestion raised that Mrs Cameron might work at the women's centre but the women's centre did not want her there. Then, Mrs Cameron tried to "make a little sewing class" but that did not work out. Mr Stevens also said that he could not remember whether there was a suggestion that Mrs Cameron work in providing "meals on wheels" for the elderly.

Ivan Shepherd also recalled the executive meeting with Mr Stevens, Mr Cameron and Mr Porter which discussed Mrs Cameron's resignation. Mr Shepherd said that at that meeting, the executive told Mr Cameron that Mrs Cameron could work with the women's centre and assist with things like making curtains and cooking for the elderly. Mr Shepherd also agreed that the council indicated to Mrs Cameron that she should give Mr Cameron a hand with the books. This was in cross examination. In re-examination, Mr Shepherd said that the council indicated that Mrs Cameron should assist the women at the women's centre. He said that this "worked out". He said that Mrs Cameron asked the women about this and that the women agreed that Mrs Cameron should work with them. However, Mr Shepherd did not attend the meeting where Mrs Cameron was engaged by the women. He was aware that Mrs Cameron then worked in cooking and sewing with the women.

Mrs Newberry's evidence about these issues was not clear. She agreed that Mrs Cameron spoke to the women about doing work at a tin shed behind the clinic at the Community. However, she did not know what the conversation was about. She agreed with the suggestion that Mrs Cameron was talking about setting up programs for women involving painting, batique work and other art activities. There was conversation about the work being done at the women's centre or the tin shed behind the clinic. However, Mrs Newberry thought that these conversations took place in 1995 and not 1996; although Mrs Newberry was not at the Community for the first week in January 1996.

Mrs Cameron said that after the executive meeting I referred to earlier, the women held a meeting. Mrs Cameron said that she was not present at the meeting but was called there. Mrs Cameron said she was returning from the swimming pool after performing duties and the women called her over to the meeting. She said the meeting had broken up and there were three women present by the names of June Richards, Eunice Porter and Myra Richards. Another woman, who has since passed away, was walking away from where they were having the meeting. Mrs Cameron said that the women explained that through cultural reasons they were unable to continue their women's work from the main women's centre and they asked whether Mrs Cameron could help find an alternative building. The women suggested an old tin shed that used to be a women's centre. It was suggested that Mrs Cameron help the women restore this and conduct women's work with them in the building. Mrs Cameron said that she did this work (see below). Mrs Cameron said this meeting with the women would have been in early January 1996.

Around the same time, Mrs Cameron said that she had a discussion with Mrs Sandra Shepherd (the wife of Mr Ivan Shepherd) about helping with the old people. Mr Shepherd in his evidence said that he had heard of this discussion.

Mrs Cameron also referred to a meeting of the whole Community in mid December 1995. Mrs Cameron said that Mr Cameron addressed the meeting saying that there had been an executive meeting and that Mrs Cameron had tendered her resignation and would be resigning from working at the front office in the Community building but would be continuing to work at the house in the capacity of bookkeeper and, if the women would like, would be available to help in women-related activities or projects. The women's meeting that Mrs Cameron referred to occurred separately and later.

Mr Hales in his evidence spoke of a meeting of the Community in December 1995 when the Community were advised of Mrs Cameron's resignation. Mr Hales said that the Community did not do anything to contradict the resignation at the time. Mr Hales said that Mr Cameron said that Mrs Cameron would like to work at the women's centre. However Mr Hales said that he thought there was a few heads of the women shaking to indicate they did not agree with that. He said that he was not aware of any resolution by the Community that Mrs Cameron be employed in any capacity. Mr Hales was not cross examined about this.

Ms Schultz agreed that there was a meeting prior to Christmas 1995 in which it was indicated that Mrs Cameron would not be working in the office. Ms Schultz said that Mr Cameron indicated that Mrs Cameron would be willing to work in the women's centre as an alternative employment or use of her time. Ms Schultz said that the response from the Community was very quiet. She said that most of the women looked at the ground or at each other as if they did not want to answer the question. Ms Schultz said that Mrs Cameron appeared hurt and left the meeting.

Whilst the accounts given by Mr Hales and Ms Schultz are not entirely consistent with that given by Mrs Cameron, the testimony of neither witness contradicts Mrs Cameron on the evidence of the executive meeting, the meeting between her and representatives of the women and her conversation with Mr Stevens in January 1996 (see below). In addition, both Ms Schultz and Mr Hales agreed that Mrs Cameron continued to do work for the Community (see below).

In January 1996, Mrs Cameron said that Mr Stevens came to the house and asked whether she would be prepared to go back and help the community adviser (Mr Cameron) whilst Mr Stevens was away on cultural business. She told Mr Stevens that she would think about it. Mrs Cameron decided the next day she would go to the Community office and tell Mr Stevens that she would perform these duties. However, Mr Stevens had already left. Mrs Cameron then did work in the Community office doing the work that she had done previously. Mrs Cameron said that she did this because she had been informed that the person who had previously threatened her had been apprehended and imprisoned. Mr Stevens did not have a recollection of this conversation with Mrs Cameron. However, I accept the evidence of Mrs Cameron that the conversation occurred.

Mrs Cameron continued her duties at the Community office, except for a few days, until the time that she and her husband left the community.

In his evidence, Mr Cameron gave evidence of the executive meeting with himself, Mr Porter, Mr Shepherd and Mr Stevens. As set out earlier, in the part of the judgment upon Mr Cameron's credibility, in cross examination he changed those people who he said were at this meeting. Mr Cameron said there was discussion at this meeting about Mrs Cameron's resignation. He said that Mr Stevens made the comment that Mrs Cameron was only resigning from office work. She could work at the house and work for the women and the old people in the Community. Mr Cameron said that he informed Mrs Cameron of this. The full Community meeting was the next day. Mr Cameron spoke about what had been discussed at the executive meting. Mr Cameron said that he told the Community that it was up to them as to whether Mrs Cameron could work in the women's centre and continue to do book work at the house. Ivan Shepherd said that the women would work that out for themselves. Mr Cameron was not present at any subsequent meeting involving the women on this issue.

Overall, I am satisfied that either Mrs Cameron's resignation was not accepted, in the sense that although she was not going to continue working at the office, she was to work at the house and in addition do other duties, or that Mrs Cameron was re-engaged to do other duties.

Although the evidence is not entirely clear, in general terms I accept the evidence that Mrs Cameron gave on this issue. I think that the evidence proves that:-

At an executive meeting in mid December 1995, the executive agreed that Mrs Cameron could continue to do book work at the house and that she could, if assented to, work with the women.

The above propositions were put to a full Community meeting the next day. The issue of working with the women was deferred to a separate meeting involving the women.

As relayed to Mrs Cameron by June Richards, Eunice Porter and Myra Richards, the women agreed that Mrs Cameron should work with them in creating a new women's centre.

Mrs Cameron spoke with Mrs. Sandra Shepherd about working with the elderly, including providing food for them.

Mr Stevens asked Mrs Cameron to return to the Community office in January 1996.

Quite apart from the above evidence, as the next part of the judgment will show, Mrs Cameron continued to work for the Community until the time that she left Warakurna with her husband. During this time, no one challenged Mrs Cameron as to the tasks that she was doing and suggested she was no longer employed by the respondent. In my opinion this is consistent with the employment relationship between the respondent and Mrs Cameron continuing during this time. I also note that neither June Richards, Eunice Porter, Myra Richards nor Sandra Shepherd were called to contradict Mrs Cameron's evidence of her conversations with them.

In his closing, Mr Waugh submitted that the executive meeting was not of a sufficient quorum to re-employ Mrs Cameron. He also submitted that there had been no meeting of the Community to decide the nature of her duties or remuneration after December 1995. Further, he submitted that there were no minutes of the meetings which purported to decide these things. In addition he submitted that there was no communication to the Ngaanyatjarra Council to advise of the change of her duties or to raise the question of her remuneration consequent upon a change of duties. He also pointed to the fact that there was no written re-engagement of Mrs Cameron. However, there was no written contract in February 1994 when Mrs Cameron's duties had changed. This was despite the fact that when she commenced in 1991 as the store manager, there had been a written contract.

The submissions of Mr Waugh raise questions of whether the people or bodies which purported to re-employ or continue to employ or change the duties of Mrs Cameron, were competent to do so. In my opinion, I do not need to determine such issues in this case. From Mrs Cameron's perspective, at all times the people she dealt with were purporting to represent the Community. In my opinion it is likely that they were authorised to do so. Certainly, I think that Mrs Cameron was entitled to regard them as so acting. As a result of the discussions Mrs Cameron had with various people, she continued to work for the Community as will be set out below. The members of the respondent were aware of this and no one challenged Mrs Cameron's right to continue to work for the Community nor her remuneration until after the termination of her employment. In all the circumstances, even though the contractual niceties of the situation may be difficult to discern, in my opinion, the relationship of employment between Mrs Cameron and the respondent clearly continued until the time that she left the community with her husband.

The Work of Mrs Cameron after 1 January 1996

The conclusion I reached in the previous paragraph is supported by the fact that Mrs Cameron continued to work for the Community in January and February 1996. Mrs Cameron said that she continued to work as a bookkeeper from the house. This continued to February 1996. She also began to work in the Community office again in January 1996, after her conversation with Mr Stevens. She said that it was only three or four days in January 1996 that she did not go to the Community office.

In addition, as a result of the conversation that she had with June Richards, Eunice Porter and Myra Richards, she worked with several of the women, some children and some male participants to convert the tin shed into a women's centre. This involved putting in a new window, moving a pool table and cleaning the building of cobwebs and debris. Benches were covered with plastic contact. As there were no curtains, plastic bags were put over the windows and furniture was moved in.

As a result of the conversation with Mrs Sandra Shepherd, Mrs Cameron assisted Mrs Shepherd in selecting foods and helping her with the preparation of meals for the elderly. This included the provision of "meals on wheels". This took place from early January 1996.

Mrs Cameron also assisted with the running of the store in the absence of Mr and Ms Hales in the week leading up to 15 January 1996. This involved the compilation and arrangement for delivery of a grocery order.

I accept the evidence of Mrs Cameron on each of these matters. Much of it was corroborated by other witnesses. Mr Hales said that from December 1995, Mrs Cameron remained working in the office doing "what she normally did". Ms Schultz said that after a break in December, Mrs Cameron went back to work in the office. Ms Schultz said that because of the coincidence of clinic hours and office hours, she would see Mrs Cameron when she went for lunch at about 12 p.m. or in the evenings at about 5 p.m.. Mr Stevens agreed that Mrs Cameron carried on with doing the wages and book work at the house. He also recalled in January 1996, Mrs Cameron coming back to work at the office again. Mr Ivan Shepherd said that Mrs Cameron showed the women how to make curtains for the women's centre and assisted with cooking for the old people. In doing this, Mrs Cameron worked with Mrs Sandra Shepherd. Mr Shepherd agreed that Mrs Cameron assisted Mrs Shepherd with the ordering and cooking of the food. Mr Shepherd agreed that Mrs Cameron helped the women fix up a tin shed. Mr Shepherd also said that he saw Mrs Cameron assisting Mr Cameron in the office after her letter of resignation.

Mrs Newberry saw Mrs Cameron taking food to the elderly people, although she thought this was in September and October 1995. She said that she did not see this taking place in January and February 1996. However, when it was put to her that Mrs Cameron did do those jobs in January and February 1996, Mrs Newberry simply said that "no, I don't remember". She was asked whether she might have forgotten. She said, "I must have seen it, but I forgot. I don't know". Accordingly, I do not regard this evidence as being contradictory to that of Mrs Cameron.

Overall, I accept Mrs Cameron's evidence that she remained fully employed by the respondent until she left the community on 12 February 1996. During the period from 1 January 1996 to 12 February 1996, she was engaged in working at the Community office, doing book work at the adviser's house, assisting the women in converting the tin shed to a women's centre, providing food for the elderly with Mrs Shepherd, and assisting with other matters.

Contravention of the Act

As set out earlier, the respondent did not submit that it had a valid reason for the termination of Mrs Cameron's employment if she was employed until 12 February 1996. As I have found that Mrs Cameron was so employed, there has been a contravention of section 170DE of the Act.

Compensation

As set out earlier, the appropriate remedy in this case is that of compensation. In assessing compensation I need to take into account that Mrs Cameron has already been paid for four weeks in lieu of notice.

I also need to take into account the likelihood that the relationship of employment between Mrs Cameron and the respondent would have ceased due to the valid termination of Mr Cameron's employment.

Sections 170EE(2) and 170EE(3) of the Act provide as follows:

"170EE(2) [Reinstatement impractical] If the Court thinks, in respect of a contravention of a provision of this Division (other that section 170DB or 170DD) constituted by the termination of employment of an employee, that the reinstatement of the employee is impracticable, the Court may, 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.

170EE(3) [Calculation of compensation] 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.

Section 170EE(3) provides that in assessing compensation the Court is to have regard to the remuneration that the employee would have been likely to have received if the employer had not terminated the employment.

As Lee J said in Aitken v CMETSWU (1995) 63 IR 1 at page 9:-

"In assessing the compensation that is appropriate the Court will have regard to what is reasonable in the circumstances and will look at would have been likely to occur had the Act not been contravened (see: Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 1 IRCR 199 at 211 per Wilcox CJ). The Court will consider the detriment occasioned to the employee by the employer's contravention of the Act, and the extent to which it is reasonable to compensate the employee for such consequences."

It was put to Mrs Cameron that she would not have remained at the community after the termination of her husband's employment. Mrs Cameron vehemently refuted this. She said that she would have left the community on 12 February 1996 for a week's leave as she was entitled. She said that after that she would have gone back to work at the Warakurna Community because "I am not a person that shirks responsibility". She was asked whether she would have come back to the community without her husband. She said "Yes, I would have . . . my employment was not terminated. . . .When we shifted to Alice Springs, we came up here and I fulfilled three months' duties at Quorn Area School before joining [Mr Cameron] in Alice Springs because I had a commitment with the school and I would do the same thing for Warakurna Community." I accept this evidence that Mrs Cameron gave.

I then asked Mrs Cameron how long she would have remained with the Community to fulfil what she thought was her obligation. She said that she would have come back and given proper notice and stayed on until the Community found someone to fulfil the position. Again, I accept this evidence of Mrs Cameron. However, it clearly indicates that the compensation that can be awarded to Mrs Cameron for loss of wages is limited to the length of time that would give the Community proper notice to allow it to employ someone else in her position. There was no evidence given of the employment of somebody to fulfil Mrs Cameron's position which could be used to assist in the consideration of this matter.

In my opinion, on balance, the period of proper notice for Mrs Cameron to have given was that of four weeks. This is the approximate period of notice that Mrs Cameron gave in her letter of resignation on 29 November 1995. It was to take effect from 1 January 1996. In addition, although he was employed in a different position, Mr Cameron's contract of employment contained a notice period of four weeks on termination.

If compensation for this period, four weeks, is the sole basis upon which Mrs Cameron's compensation is assessed, Mrs Cameron has not suffered any loss which should be compensated. This is because the respondent has already paid Mrs Cameron four weeks' pay in lieu of notice.

However, I am satisfied that there are separate bases upon which to award Mrs Cameron compensation. Firstly, it is at least possible that Mrs Cameron would have remained with the respondent for a longer period of time than four weeks if the respondent had been unable to find a suitable replacement within that time frame. Secondly, although in making an assessment of compensation the Court is obliged to have a regard to lost remuneration, it "is not limited to that item"; Burazin v Blacktown City Guardian Pty Ltd., unreported, IRCR 606/96, Full Court (Wilcox CJ, von Doussa and Marshall JJ) 13 December 1996 page 27. In that decision, the Full Court confirmed that compensation could be awarded under the Act for the distress caused by an unlawful termination. Mrs Cameron gave evidence of such matters. She indicated that after she left the Warakurna Community for Alice Springs, she felt nauseated, had diarrhoea and could not sleep. She saw a doctor because she thought there was something drastically wrong with her. She continued to see a doctor until June 1996, and it was not until the end of June that Mrs Cameron felt as though she was capable of starting to be able to concentrate and seek employment. Before then she did not feel as though she was able to concentrate and look for employment. Mrs Cameron said that she could not read properly during this time. Her eyes were "doing funny things to me and I just couldn't concentrate. I felt I was inadequate to perform bookkeeping duties because I wouldn't be able to add up correctly". She said that her span of concentration "just wasn't there". Mrs Cameron was prescribed sleeping tablets because she had not been sleeping at night. She attributed at least part of her problems to the threat that she had with the shotgun. By the end of June 1996 she was able to look for employment, although she was unable to find any up to the time of trial. However, the field in which she and Mr Cameron looked for employment was fairly selective. It was largely in a similar field to that in which they had been employed with the Warakurna Community. There were also other reasons why Mrs Cameron did not earlier seek employment, including Mr Cameron having a knee injury and needing an operation and the looking after, and relocation of Mr Cameron's elderly father.

Lee J suggested in Aitken that compensation can be awarded in the following circumstances (page 9):

"It is also appropriate to keep in mind that the purpose of the Act in providing for compensation to be paid to an employee for an employer's failure to abide by the terms of the Act is not only to redress a wrong done to the employee but, in the public interest, to instil greater awareness of, and adherence to, the provisions of the Act. A measure of compensation which addresses the consequences caused by the conduct that has breached the Act assists to meet that purpose.

See also Powers v Ani Corporation Limited, page 40.

Mrs Cameron can also be compensated to a limited degree, given the facts of this case, for the loss of the security of employment, superannuation, sick leave and possible other entitlements. These benefits though substantial can be difficult to quantify; Williams v Kirkman's Crane Trucks of Melbourne Pty Ltd, unreported, IRCA 140/94, Staindl JR, 23 November 1994; Percival v Studioline Holdings Pty Ltd, unreported, IRCA 39/96, Ritter JR, 9 February 1996.

One deficiency in the evidence led on behalf of Mrs Cameron was the lack of medical evidence to support or substantiate Mrs Cameron's claims that the symptoms she experienced from February to June 1996 were in part linked to the termination of her employment. As I indicated in McLeod v Caroline Scicluna & Associates, unreported, IRCA 77/97, Ritter JR, 13 March 1997, ordinarily, for a substantial quantum to be awarded for the distress suffered by an unlawful termination of employment, there would need to be evidence of psychiatric or psychological illness or effects from the unlawful termination of employment. However, this need not be so in all cases. The facts and decision in Burazin as referred to in the McLeod judgment illustrate this. But, in this case I think the lack of such evidence decreases the extent to which I can award compensation for this factor. However, despite the lack of medical evidence, I am satisfied that the circumstances of the termination of Mrs Cameron's employment were at least, in part, a cause of the symptoms that she suffered from February to June 1996. In addition, I am satisfied that such distress went beyond the element of distress which occurs in every termination; see Burazin page 28. Mrs Cameron had been a hard-working and proficient employee of the respondent for five years. Then, her employment was terminated simply because the employment of her husband was terminated for valid reason. The termination of her employment was not discussed with her, either at the meetings on 9 or 12 February 1996 or separately. No one asked Mrs Cameron whether she wished to remain with the respondent, given the termination of her husband's employment. The termination of her employment was without warning or notice.

Taking into account all the evidence and circumstances set out above, I think it appropriate to award Mrs Cameron compensation of $3,200. This amount represents roughly four weeks' ordinary wages for Mrs Cameron (calculated at her hourly rate of $15.5765 for a 40-hour week), plus $750. The total amount represents a synthesis of my consideration of all relevant factors as set out above.

I will make an order that the amount to be paid to Mrs Cameron be paid to her within 21 days of the date of this judgment.

Breach of Contract Claim

The claim of Mrs Cameron for damages for the breach of her contract does not need to be considered. As stated at the outset, this was an alternative claim to Mrs Cameron's claim for compensation under the Act. As this claim of Mrs Cameron has succeeded, there is no need to consider separately the breach of contract claim. Mr Wood conceded that if the claim under the Act were to succeed, any lack of appropriate notice or payment in lieu thereof could and would be taken into account in assessing the compensation payable for the contravention of the Act.

I certify that this and the preceding seventy-three (73) pages
are a true copy of the reasons for decision of

Judicial Registrar Ritter.

Associate:

Date: 8 April 1997

APPEARANCES

Counsel for both Applicants Mr S. Wood
Solicitor for both Applicants McBride & Stirk

Counsel for the Respondent  Mr M. Waugh
Solicitors for the Respondent  Legal Department of
  Pitjantjatjara Council Inc.

Dates of hearing: 4, 5 and 6 November 1996 and
10 December 1996

Date of judgment: 8 April 1997

[1997] IRCA 109

08 April 1997