Cranitch v Commonwealth of Australia

[1996] IRCA 356

DECISION NO:  356/96

CATCHWORDS

INDUSTRIAL LAW  - TERMINATION OF EMPLOYMENT - ALLEGED UNLAWFUL TERMINATION  -  VALID REASON  -  PROCEDURAL FAIRNESS

INDUSTRIAL RELATIONS ACT  1988 , s170EA, s170DE, s170DC

Selvachandran v Peteron Plastics Pty Ltd  VI 1322 of 1994
         Northrop J, 7 July 1995, unreported

Johns v Gunns Ltd (1995) 60 IR 258

THOMAS ANTHONY CRANITCH  -v-  COMMONWEALTH OF AUSTRALIA

QI 95/1367

BEFORE:   BOULTON JR

PLACE:     BRISBANE

DATE:       8 AUGUST 1996

IN THE INDUSTRIAL RELATIONS             )
COURT OF AUSTRALIA  )                  No. QI  95/1367
QUEENSLAND DISTRICT REGISTRY

BETWEEN:  THOMAS ANTHONY CRANITCH

Applicant

AND:  COMMONWEALTH OF AUSTRALIA

Respondent

BEFORE:           BOULTON JR

PLACE:             BRISBANE

DATE:                8 AUGUST 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

The application be dismissed.

NOTE:       Settlement and entry of orders are dealt with in Order 36 of the   Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS             )
COURT OF AUSTRALIA  )                  No. QI  95/1367
QUEENSLAND DISTRICT REGISTRY

BETWEEN:  THOMAS ANTHONY CRANITCH

Applicant

AND:  COMMONWEALTH OF AUSTRALIA

Respondent

BEFORE:           BOULTON JR

PLACE:             BRISBANE

DATE:                8 AUGUST 1996 

REASONS FOR JUDGMENT

Background

The applicant is now aged 27, having been born on 13 June 1969.  He successfully answered an advertisement for employment as an Electorate Officer Grade 2 with a Mr Gibson, the then Federal member for the electorate of Moreton, in Brisbane.  Proven experience in journalism and research work, inter alia, was stipulated in the advertisement.  The applicant and Mr Gibson signed a document styled agreement of employment made on 7 November 1994 under the Members of Parliament (Staff) Act 1984.

With effect from the close of business on 10 October 1995, the applicant's employment was terminated.

The applicant brings application in this court seeking compensation for the alleged unlawful termination of his employment.  I understand that he accepts that reinstatement is impossible, given that Mr Gibson lost his seat at the 2 March 1996 elections.

It is necessary to recount some of the detail leading up to the applicant's termination.  During the course of his employment, Mr Gibson and the applicant had met on 15 August 1995 at which time Mr Gibson had advised the applicant that he thought his work performance was unsatisfactory.  They met again on 2 October 1995 at which time Mr Gibson told the applicant that his work performance in the intervening period had worsened.  Mr Gibson handed the applicant a letter dated 2 October in which, inter alia, he referred to having to "reconsider your contract of employment".  The letter also stated:

I believe there has been a considerable breakdown in the interpersonal relationships within the office involving you.  In particular, I no longer feel confident that I can trust your word, after a number of occasions where there is clear evidence that you have not told the truth to me about certain situations or your actions.

On two separate occasions in the last few months, the most recent being Tuesday, 15 August 1995, I have advised you of my concerns regarding your work performance and the achievement of deadlines for specific tasks.  In the six weeks since that occasion, I do not believe there has been any improvement in your performance.

The letter sought the applicant's response by 9 am on Tuesday, 10 October 1995, and told the applicant he was not required to present himself at the electorate office until then.

The applicant responded by letter dated 10 October 1995.  Mr Gibson and he met on that day and discussion ensued about the applicant's response.  The upshot was that Mr Gibson told the applicant his services would be terminated as from 5 pm that day.  Mr Gibson confirmed his decision in writing that same day.  That letter stated, inter alia:-

The main reasons for your dismissal are:

*your failure to complete the requirements of your position within reasonable deadlines set;

*your inability to work without constant supervision and guidance;

*my lack of trust and confidence in you following a number of incidents where you have not been truthful about certain situations or your actions;

*the breakdown of relationships between yourself and other members of staff, local Party members and constituents which is having a deleterious effect on the harmony and performance of the office.

Findings

What follows is a summation of what I consider to be the more important features of the case.

The applicant had little regard for the truth in some of his dealings with Mr Gibson.  He lied to Mr Gibson about the reason for his late return to a senior citizens’ picnic in the electorate (the biggest constituents’ function with which Mr Gibson was associated all year) in late July 1995.  His lateness occasioned disruption of food delivery arrangements, and no doubt embarrassment to Mr Gibson who was heavily involved in the organisation of the picnic.

He lied again to Mr Gibson on 4 September 1995 about a matter which was of particular electorate importance to Mr Gibson.  This concerned the dispatch of a document known as the Moreton Report which was distributed from time to time to all Australian Labor Party members in Mr Gibson's electorate.  Mr Gibson had been pressing the applicant to complete preparation of the report, and dispatch it, by the end of July 1995.  This did not occur.  Mr Gibson spoke to him about it on 15 August.  He requested a first draft of it by 21 August.  This date came and went.  Mr Gibson left Canberra to go overseas with a parliamentary delegation on 31 August.  He phoned the applicant, from Europe, on Monday, 4 September at which time the applicant told him most of the report had gone out the previous Friday, and he should get the rest out the same day.  The dispatch of the report did not in fact occur until the Wednesday, 6 September.  Mr Gibson had been particularly concerned, the applicant knowing of this concern, to get the report out in time for special Party branch meetings, scheduled on 5 and 6 September.  The report arrived too late for these meetings.

The applicant's motto in political life was "lie, lie like fuck and then lie some more" (or a variation of these words).  Having observed the applicant give evidence, I was singularly unimpressed with his regard for the truth.

Maintenance of confidence by Mr Gibson in the applicant was a key to the employment relationship.  The applicant was the public face of Mr Gibson in his relations with constituents.

In my view, the findings I have made in respect of the senior citizens’ picnic and the Moreton Report would be enough on their own to justify Mr Gibson concluding that there was clearly a fundamental breakdown in his relationship with the applicant.

I will deal, however, with some other issues raised.  The letter of termination of 10 October had made reference to "your failure to complete the requirements of your position within reasonable guidelines set" and "your inability to work without constant supervision and guidance".  There is no doubt the applicant failed to produce the Moreton Report on time, despite reminders.  Evidence was led designed to show that the applicant regularly played games on his computer at work rather than attending to the proper duties of his employment.  I accept this evidence.  The general impression of the applicant I was left with was one of an opinionated, headstrong and self-centred young man who put his own interests ahead of focusing sufficiently on the tasks for which he was employed.  I do not place much store on the evidence relating to the untidiness of his desk and office space, nor on the alleged long telephone conversations and meetings with friends and relatives while at work.  I am not altogether convinced that the applicant was responsible for "a breakdown of relations between yourself and other members of staff", although I have little doubt that his relationship with a Mrs Green, Mr Gibson's one-time office manager, was less than cordial.  Nor am I completely convinced there was a "breakdown of relationships between yourself, local Party members and constituents" for which the applicant should be blamed.  I accept evidence that, particularly after 15 August, the applicant was less than diligent in returning the telephone calls, and answering the correspondence, of these latter groups.  After this date, he indulged in what appeared to be "work avoidance techniques".

Ss 170DE(1)

There were valid reasons for the termination of the applicant's employment, in the sense of sound, defensible and well-founded reasons - Selvachandran v Peteron Plastics Pty Ltd VI 1322 of 1994, Northrop J, 7 July 1995, unreported.

Ss 170DE(2)

Viewed objectively, the decision to terminate was not harsh, unjust or unreasonable.

S 170DC

The applicant was given ample opportunity to defend himself against the allegations which led to his termination.  I have traversed how, on 15 August 1995, Mr Gibson brought the applicant's work deficiencies to his attention, including how seriously he viewed the applicant having lied to him about the reason for his absence from the picnic in late July.  Subsequently, the substance of the allegations was put to the applicant by the letter dated 2 October, and there followed discussion in detail of these issues later that day, at which time the applicant admitted that his work performance since 15 August had been very poor.  The applicant was given more than adequate time to provide his response.  This he did, by his letter of 10 October.  After Mr Gibson read his response, there was conversation between the two of them in which the issues were further canvassed, before the decision to terminate was made.

"In construing and applying section 170DC of the Act, it must be remembered that the section is to be applied in practical situations of employer and employee" - Johns v Gunns Ltd (1995) 60 IR 258 at 269.  The applicant was accorded procedural fairness in the manner of the termination of his employment.

Generally

The trial of this application took place on 3 and 4 April, and 16 July 1996.  I had offered the parties a date earlier than 16 July to conclude the hearing, but that date was unsuitable to the applicant.

Order

I order that the application be dismissed.

I certify that this and the preceding four (4) pages are a true copy of my Reasons for Judgment.

Judicial Registrar:

Date:  8 August 1996

Appearing for the Applicant:  In person             

Counsel for the Respondent:  Mr Tracey QC              

Solicitors for the Respondent:                   Australian Government Solicitor               

Dates of hearing:  3 & 4 April 1996 and 16 July 1996

Date of judgment:  8 August 1996