Cullen, Rodney v Greater Shepparton City Council

[1998] FCA 1598

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - termination of employment - whether employment relationship established - whether contract of employment meeting statutory requirements - credibility of witnesses - possibility of employment on a “day to day” basis or on an “acting” basis

Workplace Relations Act 1996 ss 170CA, 170CB, 170DE, 170EA, 170EE
Local Government Act 1989 (Vic) ss 3(1), 94, 95A

Siagian v Sanel Pty Ltd (1994) 1 IRCR 106
Capay Holdings Pty Ltd v Slattery (Industrial Relations Court of Australia, Wilcox CJ, Moore and Marshall JJ, 11 December 1996, unreported)
Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 142 ALR 99
Byrne and Frew v Australian Airlines Ltd (1995) 185 CLR 410
Strachan v Liquorland (Australia) Pty Ltd (unreported, IRCA, Moore J, 6 February 1996

RODNEY JOHN CULLEN v GREATER SHEPPARTON CITY COUNCIL
VI 4083 of 1995

BEFORE:        RYAN JR
PLACE:          MELBOURNE
DATE:            10 DECEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI 4083  of   1995

BETWEEN:	RODNEY JOHN CULLEN APPLICANT
AND:	GREATER SHEPPARTON CITY COUNCIL RESPONDENT
JUDICIAL REGISTRAR:		RYAN
DATE OF ORDER:		10 DECEMBER 1998
WHERE MADE:		MELBOURNE

THE COURT ORDERS THAT:

1. The application of 2 August 1995 for relief in respect of termination of employment be dismissed.

2. The application and claim of 13 August 1998 for damages for breach of an implied term of reasonable notice be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI 4083 of 1995

BETWEEN:	RODNEY JOHN CULLEN APPLICANT
AND:	GREATER SHEPPARTON CITY COUNCIL RESPONDENT

JUDICIAL REGISTRAR:	RYAN
DATE:	10 DECEMBER 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE APPLICATIONS AND THE RESPONSE
The applicant seeks compensation under s 170EE(2) of the Workplace Relations Act 1996 claiming unlawful termination of employment and also seeks damages at common law asserting that the respondent failed to give reasonable notice of termination of employment and breached an implied term of the employment contract.

The respondent denies the existence of any contract of employment and contends that the applicant was never ever employed by it in any capacity.  The respondent made the following statement in a Notice of Appearance filed 8 August 1995:

“At no time did Council employ Mr Cullen”.

Both claims, the claim under statute and the claim at common law, proceed on the basis that there was a relationship of employer and employee between the respondent and the applicant and on the basis that the employment of the applicant by the respondent was terminated by and at the initiative of the respondent.

The respondent’s position is that both claims must be dismissed because there was no employment relationship between the parties and therefore there could not be any termination of a non-existent employment relationship.  In the event that the Court was to find that there was a contract of employment with the respondent as employer and the applicant as employee, a situation never conceded and always vigorously disputed by the respondent, the respondent would, in the alternative, assert that the relationship was brought to an end at the initiative of the applicant rather than at the initiative of the respondent.

LOCAL GOVERNMENT REFORM, MUNICIPAL AMALGAMATIONS AND TWO SEPARATE CLAIMS OF UNLAWFUL TERMINATION OF EMPLOYMENT
The applicant has qualifications in town planning. He has worked in town planning in local government, in state government and privately as a consultant. The two applications allege a contract of employment and termination of employment which arose out of a large scale review of local government in Victoria and the substantial amalgamations of municipalities which resulted from the review.

The application of unlawful termination of employment was filed on 2 August 1995 in the Industrial Relations Court of Australia.  A little earlier, the applicant filed a similar application for relief in respect of termination of employment arising out of his employment with the Shire of Baw Baw.  As a result of the local government reorganisation, the applicant, then a town planner with the Shire of Narracan, found himself without a formal position after that Shire was amalgamated with other municipalities to form the Shire of Baw Baw. The amalgamation led to a spill of positions and the applicant was unsuccessful in obtaining an appointment with the new, amalgamated Shire.

In December 1995 the applicant’s claims against the Shire of Baw Baw and the present respondent, the Greater Shepparton City Council, came on for Directions in the Industrial Relations Court of Australia.  The parties in both matters appear to have agreed that the hearing and determination of this matter, the Greater Shepparton City Council matter, should be adjourned until the determination of the Shire of Baw Baw matter. Both matters were transferred to the Federal Court in May 1997 as a result of amendments to the Workplace Relations Act 1996 and the Baw Baw matter was settled in mid-1998. Progress in that matter appears to have been delayed to some degree by the ill health of the applicant. Delay in resolution of the Baw Baw matter inevitably led to delay in the Shepparton matter proceeding to trial.

On 26 June 1998 directions were given in this, the Shepparton matter, and, in due course, the matter went to trial and was heard over 11 days between 14 and 28 August.  By consent leave was granted for final written submissions which were filed on 25 and 30 September and on 1 October.

AGREED MATTERS
There is no dispute that the applicant:

• responded to an advertisement calling for applications for appointment as Manager, Development Services Business Unit, Greater Shepparton City Council

• was interviewed for the position by Ian Martin, then Director of Infrastructure at the City and by a consultant, John Kleem

• was offered a three year appointment by Mr Martin in a telephone call on 25 May 1995

• in the telephone call on 25 May 1995, indicated his willingness to accept the position, suggested a five year appointment and was offered a four year appointment

• received on 26 May 1995 facsimile advice from Mr Martin confirming he had been “successful” in the “application for the position”, would be “classified as a Senior Officer on a four year performance based contract with a commencing package of $70,000 (with) appointment applicable from Monday 19 June 1995” with “appointment in accordance with the Position Description, a copy of which is attached”.

• was also advised as follows in the facsimile of 26 May 1995:

  “The package will include superannuation components, both employer and employee, and may include a motor vehicle if you wish. Please confirm your acceptance in writing as soon as possible. I take this opportunity of congratulating you on your appointment, and trust that you find the position both challenging and rewarding.”

• began to work in the planning and building area of the offices at the Greater City of Shepparton on 1 June 1995 developing position statements and generally preparing for the appointment of staff to the Development Services Business Unit

• continued to undertake this work and attended at the offices in the building and planning area on most working days from 1 June to 20 July and was recorded as attending seven of the ten working days in the fortnight ending 2 July 1995, eight of the ten working days in the fortnight ending 16 July and on the 4 working days of Monday 17 July, Tuesday 18 July, Wednesday 19 July and Thursday 20 July

• requested no payment and received no payment for the work undertaken from 1 June to 20 July

• attended a meeting on 17 July 1995 with Messrs Jaboor and Martin in which options for the future delivery of planning and building services were discussed and Jaboor indicated a further meeting would take place within a few days

• had an informal discussion about the same matters with Jaboor in the foyer of the respondent’s offices in Shepparton on 18 July 1995

• attended a meeting on the morning of 19 July with Messrs Jaboor and Martin in which a disagreement about whether a review should be undertaken of options for the future conduct of planning and building functions led to a suggestion that the applicant and the respondent “part company” or “part ways”

• attended a second meeting on 19 July at approximately 3.30 p.m. with Messrs Jaboor and Martin in which the relationship between the respondent and the applicant was terminated

• at the second meeting on 19 July the applicant and Mr Jaboor exchanged heated words and Mr Jaboor told the applicant to “piss off”

• the applicant refused to accept that the relationship had ended and maintained that he had a valid contract of employment

• in the evening of 19 July Mr Jaboor repeated his assertion that the relationship between the applicant and the respondent had ended

• the applicant attended the offices of the respondent on the morning of 20 July

• at a meeting on the morning of 20 July with Messrs Jaboor and Martin the applicant was advised that he was required to leave the Shepparton offices and then and later in the day was advised that if he did not leave police would be called

• initially refused to leave the offices when requested to do so on 20 July but did leave the offices when police attended and requested that he leave.

KEY AREA OF DISAGREEMENT
There is vigorous dispute as to whether:

• the applicant or Mr Jaboor used the term “part company” or “part ways” at the first meeting on 19 July

• at the second meeting on 19 July the respondent, through Mr Jaboor, accepted what was claimed to be the applicant’s offer “to part company” or whether the respondent, through Mr Jaboor, terminated what the applicant claims was a valid and existing contract.

There are many other aspects of the applicant’s activities and work over the period 1 June to 20 July 1995 which are not in dispute and some of these activities and work will be identified in the course of these reasons for judgment. However, there are also many instances in which the applicant and numerous witnesses called by the respondent disagree as to what did or did not occur in the period 26 May to 20 July 1995.  The key area of disagreement is whether the applicant ever put himself in a position in which he was, or could have become, an employee of the respondent. In this and other areas there is much conflict between the evidence of the applicant and the evidence of all or most of the witnesses called by the respondent.

STATUTORY REQUIREMENTS
The applicant applied for, and he asserts was appointed to, a “Senior Officer” position with the Greater Shepparton City Council.  The Local Government Act 1989 (Vic) imposes a number of obligations and restrictions in relation to the employment of municipal council staff and s 95A provides that the employment of senior officers be regulated by contract. Clearly it was intended that the applicant be appointed as a Senior Officer, a senior officer being defined in s 3(1) as meaning a member of Council staff who is entitled to total remuneration in any twelve month period of at least $60,000.

Section 94 reads as follows:

“94.Council staff

(1)      A Council must establish an appropriate organisational structure.

(2)A Council must appoint as many members of Council staff as it thinks necessary for the performance of its functions and the exercise of its powers under this Act and any other Act.

(3)A Council must appoint as a member of Council staff a person to be its Chief Executive Officer.

(4)A Council may only appoint a person to fill a senior officer’s position after it has invited applications for the position in a notice in a newspaper circulating generally throughout Victoria and has considered all applications received by it that comply with the conditions specified in the notice.

(5)A Council may only appoint a natural person to be a member of Council staff.

(6)Sub-section (4) does not apply if a Council appoints a person to fill a senior officer’s position on an acting basis for a period of not more than 12 months.

(7)A Council must not remunerate in any way a person who has filled a senior officer’s position on an acting basis for 12 months for anything the person does in respect of that position after that 12 month period (unless the person is appointed after the Council has complied with sub-section (4)).”

Section 95 provides a series of principles to be observed with respect to Council staff including recruitment on the basis of relative ability, promotion on the basis of open competition and relative efficiency, fair and equitable personnel management, equal pay, effective education and training, protection against arbitrary action, personal favouritism and coercion and maintenance of staff standards of integrity, conduct and concern for the public interest.

Section 95A reads as follows:

“95A.  Employment of senior officers to be regulated by contract

(1)A senior officer may only be employed by a Council under a contract.

(2)The contract must -

(a)specify performance criteria for the purpose of reviews of the senior officer’s performance; and

(b)specify the date on which it expires, which must be a date that is not more than 5 years after the date it is signed; and

(c)include any other matter that is required by the regulations.

(3)On the expiry of a senior officer’s contract, the Council may enter into a new contract with the senior officer.

(3A)Despite sub-section (3), on the expiry of a Chief Executive Officer’s contract, the Council may only enter into a new contract with the person who held that position after it has complied with section 94(4) again.

(4)Any contract of employment between a Council and a senior officer that does not comply with sub-section (2) is void.

(5)This section does not apply to work performed by a person filling a position on an acting basis for a period of not more than 12 months.

(6)For the purposes of this section, if a contract contains an option for renewal, the expiry date of the contract is the date on which the last option period ends.”

DISPUTE AS TO CONTRACT OF EMPLOYMENT
On the first day of the hearing, 10 August 1998, the applicant failed to obtain leave to pursue a number of claims in the associated jurisdiction but did obtain leave to pursue a claim in the associated jurisdiction based on breach of a contractual term or an award obligation requiring reasonable notice of termination of employment.  On the fourth day of the hearing the applicant filed and served a Statement of Claim which ran to 35 paragraphs and 13 pages and included a variety of claims in the associated jurisdiction in addition to the reasonable notice claim for which leave had been granted on 10 August.  To avoid the possibility of considerable Court time being expended in substantial amendment to and deletions from the Statement of Claim as filed, I indicated that I proposed to treat the Statement of Claim as a claim only for the reasonable notice breach alleged in paragraph 29(f) and damages sought in paragraphs 30 and 31 in respect of that breach and that the remainder of the Statement of Claim was to be treated as particulars in support of that claim to the extent that that was possible.  Paragraph 29(f) of the Statement of Claim is a claim that the respondent breached implied terms of the employment contract that the respondent would give to the applicant reasonable notice of termination. Paragraphs 30 and 31 are claims for an award of damages in respect of an implied term of reasonable notice.

Paragraphs 2 and 3 of the Statement of Claim set out what the applicant alleges to be the contract of employment.  The contract is said to have been made “on or about 25 May 1995” and to consist of an agreement by which the respondent appointed the applicant to the position of “Manager, Development Services Business Unit” and the applicant agreed to perform the duties relating to that position.  The contract is said to be “constituted and/or evidenced by”

• a telephone conversation on 25 May 1995 in which the respondent offered employment and the applicant accepted the offer

• written confirmation of offer by letter dated 26 May 1995

• written confirmation of acceptance by letter (incorrectly) dated 26 May 1996 (allegedly written 26 May 1995 and delivered 1 June 1995)

• written confirmation of acceptance by letter dated 2 June 1995

• position description (exhibit 9)

• draft agreement (exhibit O)

• the applicant’s attendance from 1 June 1995 to 20 July 1995. 

In terms of the alleged contract as set out in paragraph 3 of the Statement of Claim the applicant claims that:

• the contract commenced on 1 June 1995

• the contract expired on 31 May 1999

• the total package payable to the applicant by the respondent was $70,000 per annum (including a sum per annum for full use of a vehicle)

• the appointment was as a Senior Officer in accordance with and pursuant to the requirements of the Local Government Act 1989 (Vic).

Counsel for the respondent has submitted that s 95A may envisage a single document setting out the agreement between the Municipal Council and the senior officer and signed by both parties. No such contract was ever produced by the Council. Council’s solicitors were drafting a contract for signature by the parties. No draft was ever executed by either party and the applicant did not sign any contract in a single document known as a contract of employment.

While not conceding that something less than a comprehensive, single contract of employment could satisfy the requirements of s 95A, counsel for the respondent argued that even if that be so the applicant has failed to establish a valid contract of employment as a senior officer of the Council and failed to establish the contract as pleaded in the Statement of Claim.

DISPUTE AS TO TWO “LETTERS OF ACCEPTANCE” OF EMPLOYMENT
A key area of contention between the parties turns on two letters which the applicant claims he wrote to Mr Ian Martin.  One is dated 26 May 1996 but the applicant asserts that it was written on 26 May 1995 and the reference to “1996” is a mistake.  The other letter is dated 2 June 1995.

The applicant claims that he personally delivered the letter dated 26 May 1996 to Martin on 1 June 1995 and posted to him the letter dated 2 June 1995.  The respondent denies that the two letters were delivered in the manner described by the applicant or at the time when the applicant states the letters were delivered.

Mr Martin states that he never saw the original letters and that in September or October 1995, during a conciliation conference in the Australian Industrial Relations Commission, the solicitors, then acting for the applicant, provided copies of the letters to the respondent’s solicitors and at that time the two letters were said to have been written by the applicant and provided to the respondent.  Martin states that he had never seen either letter until he saw the copies provided by the solicitors.

In final written submissions counsel for the respondent found it convenient to first deal with and reject the assertions in the statement of claim that the two letters:

• constituted “written confirmation of the acceptance” of the oral offer of employment made by Martin by telephone on 25 May 1995 and the written offer in Martin’s letter of offer dated 26 May 1995

• established the contract of employment as pleaded

• were part of a contract which was valid within the terms of s 95A.

Thereafter, counsel for the respondent turned to the evidence concerning the two letters and submitted that the weight of that evidence suggested that neither letter was delivered at the time or in the manner described by the applicant.

I have taken the reverse approach and intend to turn first to the evidence about the preparation, delivery and receipt of the two letters.  Because there is direct conflict between the applicant and respondent witnesses I have also found it necessary to assess the credibility of the witnesses and the conduct of the parties and the reflections on credibility arising from conduct.

In the telephone conversation on 25 May Mr Martin told the applicant that the sooner the latter could start at Shepparton the better as it was important to have the position filled and functioning as soon as possible. Mr Martin and the applicant agree that the reasons given for a quick start included the need to develop the Development Services Business Unit and advertise and fill positions (T165 and T238).  Both men agreed that the applicant would make himself available in Shepparton to discuss these matters and to commence work on them on 1 June 1995 (T238 and T572).

In the telephone conversation on 25 May they discussed the salary level of $70,000 and the package including a car and fuel and running costs and superannuation (T166).  Martin also told the applicant that formal contracts were not yet available as they were still being drafted (T238).

At 5.07 p.m. on Friday 26 May 1995 a letter signed by Martin was faxed to the applicant at a typing service in Northcote. The terms of that letter (Exhibit H) are set out on page 3 of these Reasons for Judgment and contained the statement “Please confirm your acceptance in writing as soon as possible”.  The letter stated “appointment will be in accordance with the Position Description, a copy of which is attached”.  No Position Description was attached to the facsimile letter but the applicant had been provided earlier with a similar Position Description - and later received a copy of the position description which, it was asserted, should have been attached to the facsimile letter.

The applicant gave the following evidence in respect of the letter (T572-3):

“I took it home and showed my wife and I in fact wrote a reply that night. … I was responding with an acceptance of this job offer and I responded in the terms of this document. It’s something that I had learnt from a previous experience in management, that you actually repeat back what they’re offering. … By the time I had written it, it was 7.00 on the Friday night. It wouldn’t have got to Shepparton until Monday and probably not through the system until Tuesday, and I’d already arranged to be there on the Thursday. So I’d accepted the job. The offer was there and I took it with me basically. There was just no reason to post it, you know.”

The applicant tendered as exhibit 36 a signed copy of the letter which he claimed he prepared on the evening of 26 May 1995. Exhibit 36 reads as follows:

“Rod Cullen
  69 Newry Street
  NORTH FITZROY  VIC  3068

26^th May 1996

Mr Ian Martin
Director
Infrastructure Control and Development
City of Greater Shepparton
Municipal Offices
Welsford Street
SHEPPARTON  VIC  3630

Dear Mr Martin

Re:  Facsimile Communication - Offer of Appointment

It is with great pleasure that I accept the position of Manager - Development Services Business Unit with the City of Greater Shepparton as detailed in your faxed letter of 26 may 1995.

I accept the 4 year performance based contract with a commencing salary of $70,000 per annum and I acknowledge that the package includes superannuation components and may include a motor vehicle for full private use if I so desire. I understand from your verbal confirmation that other ‘on-costs’ are in addition to the $70,000 p.a. package and that petrol is supplied free also.

In respect of the starting date which is noted as 19 June 1995 I will begin work as agreed on the urgent staff matters and restructuring prior to that date (19 June).

I look forward to our meeting next week on the 1 June to discuss and expand the above matters.

Your sincerely,
Rod Cullen”

The respondent tendered an unsigned copy of the letter dated 26 May 1996 as exhibit P.

The applicant gave evidence that he drove up to Shepparton on the evening of Wednesday 31 May, telephoned Mr Martin about 8.30 a.m. on Thursday 1 June, agreed to tour the Shepparton, Maroopna and Tatura areas that morning and to meet Martin at 1.00 p.m. He states that at about 1.00 p.m. he had an “extensive” discussion with Martin about restructuring the Planning and Building Department into the Development Services Business Unit, redesigning job descriptions, amalgamating budgets and the extent of his authority.  The applicant claims in the course of this discussion salary and contract were mentioned. His evidence was as follows (T575):

“I did ask him about salaries and how my contract would be set. He did say to me that the contract would be finalised later. It wasn’t ready, it hadn’t even been drafted. … Ian Martin’s primary concern was to get me on board and money and conditions - it was kind of like he’s accepted me into the family of Greater Shepparton so to speak - you know, “you’re here, let’s get on with it.” However, he did say to me when I asked about the money, after we’d had this two hour conversation, he basically said, “don’t worry about the money”. His comment explicitly was, “don’t worry about the money, we’ll look after you.” The tone I guess is, “we’ll look after you”.”

In respect of a starting date the applicant said (T575):

“We talked about the 19^th, which we’d set on the 25^th when I was offered the job. It was a nominal starting date in as much as after 1 June which had covered so much ground that he said to me “you’ve virtually started this job, the starting date is academic”.”

The applicant claims that at some time during the discussion he went out with Mr Martin and met the staff. He said (T576):

“He gathered them into a group and I shook hands with everyone individually. … He introduced me as the new Manager of the Unit. He didn’t use the full title (i.e. Manager Development Services Business Unit).

I stayed there for half and hour and I actually said who I was. I actually spoke to them and said, “My name is Rod Cullen, as Ian said, and I want to talk to you about structure because one of the primary functions that we’re going to be doing in the next few weeks is restructuring. I want people not to worry about your jobs. It appears to me from what I have seen today that there is in fact plenty of work for everybody. I don’t think anyone will be being made redundant.” In fact that was quite obvious, there were more jobs than people at that stage. The other thing was, “I want people to start thinking about business units and it’s not as scary as it sounds.” I said to them, “I don’t want to go into details of this but what I want you to do is just start thinking to yourselves as a group, “If I owned this business, what would I do to change it to make it better?”  and that was the simple concept I left them with because I wasn’t there to pound it into them, it was just people were scared of CCT(i.e. compulsory competitive tendering). People were scared of losing their jobs, and the biggest thing  you could say to a group was, “Well, just think about this: if we owned Planning - if we owned it - as a business, what would we do to make it better?” and I said, “I’ll leave you with that and I’ll be back next week and we’ll go on from there, and thank you very much for the welcome.”

The applicant states that he then returned to Martin’s office and that they had further discussions about his contract. His evidence included the following (T577):

“I asked Ian about it and he repeated a comment from earlier in the day, that they were still being drafted. He gave me an assurance that I would be looked after. I asked him about starting dates. I said to him at that stage, “I have a letter here of my acceptance. I’ve already accepted on the phone, but here’s the formal letter and it says the 19^th,” and he said to me these explicit words, “Don’t worry about the starting date, it’s academic. You’ve virtually started today and we’ll reimburse you,” or, “we’ll fix you up”. That last comment, I’m not exactly sure, but there was an indication that I would be reimbursed. … Ian and I were sitting around a coffee table. He had a desk but he’d left that and we were operating on a one to one level across a coffee table. I handed him the letter, he looked at it. We talked about the nominal starting date and he agreed it was nominal, or he said it was nominal, and he put it on the coffee table in front of him, and that is the last I have seen of that acceptance letter.”

Mr Martin’s evidence is very different. I have referred to some aspects of that evidence already and to Martin’s claim that he never saw the copy of the letter which the applicant claims to have handed to him on 1 June until an unsigned copy was provided by the respondent’s solicitors in September or October 1995.

Mr Martin states that he never received such a letter and that the applicant certainly did not hand a copy to him on 1 June or leave a copy on the coffee table in his office on that day. He also states that he never received a letter dated 2 June 1995 which the applicant claims he addressed and posted to Mr Martin.

Mr Martin gave evidence of instituting a search for both letters once copies were referred to him by the respondent’s solicitors. He states that he made enquiries of the Chief Executive Officer, Mr Jaboor, the Chief Executive Officer’s secretary, Vicky Glazner, the Human Resources Manager, Leanne Sammon, the former Manager of the Building and Planning Department, David King, the receptionist in the Building and Planning Department, Sheridan Myers, and two Records’ Officers, Barbara Twite and  Anne Ford. Mr Martin’s enquiries suggested that none of these people had ever seen either letter prior to the provision of copies in September or October 1995. All of them, except Twite and Ford, gave evidence. None of that evidence gave support to the position taken by the applicant.

It was suggested to Mr Martin in cross-examination that the letters may have been lost. The foundation for this suggestion was undoubted evidence that the personnel file relating to the applicant was misplaced for some time. In cross-examination, counsel for the applicant returned again and again to the misplacement of the file (T251-2, 323-5, 334-6, 347-8, 365 and 368-70).

Mr Martin’s evidence in this matter can be summarised as follows:

• the personnel file for the applicant was created in the Human Resources Section soon after the letter of offer was made on 26 May

• Vicky Glazner originally held the papers which went into the applicant’s personnel file and at some stage those papers, including the application for the position, were forwarded to the Human Resources Section for filing

• the other original documents relating to the applicant were sent to the Human Resources Section for filing

• Mr Martin had custody of the file a number of times

• in about August or September 1995 the documents on the file were copied and the copies were provided to the respondent’s solicitors

• some time in late 1995 the file went missing

• Mr Martin got copies of the documents back from the respondent’s solicitors and made a temporary file

• on 6 August 1998 the original file was relocated during a search for information relating to David King

• Leanne Sammon was in charge of the search for the file but Mr Martin did not know who actually found the file

• there was nothing missing from the file as far as Mr Martin was aware

• Mr Martin never saw on the file either of the letters the applicant claimed to have sent and there was no record of them having been received.

Counsel for the respondent asserts that this evidence provides no foundation for the suggestion that the letters had been lost but rather reinforces the evidence that neither letter was ever received.

There is absolute conflict between the applicant and Mr Martin in respect of both letters and especially the letter dated 26 May 1996 allegedly handed to the latter by the former on 1 June 1995.

In evidence-in-chief, the applicant swore that on 1 June 1995 he handed Mr Martin a letter dated 26 May 1996, that he then told Mr Martin what it was, that Mr Martin then looked at it and that they then discussed the applicant’s starting date, an issue apparently arising from the letter. Mr Martin, on the other hand, denied that he had ever seen either letter before September or October 1995.  Mr Martin’s evidence of his subsequent conduct in asking the applicant on two or three occasions for a letter of acceptance is not consistent with him receiving the letter dated 26 May 1996 on 1 June 1995 when it was allegedly handed to him.  Mr Martin’s evidence of searches and enquiries about the letter in September or October 1995, about the negative results of those enquiries, and about the absence of any record of either letter in the Council’s file or elsewhere is not evidence which is supportive of the contention that Council received but lost the letters.

The question whether the applicant personally gave Mr Martin a letter dated 26 May 1996 or posted him the letter dated 2 June 1995 cannot be resolved without weighing the credit of the applicant against the credit of Mr Martin. Only one of them can be telling the truth.

If the applicant had prepared and typed the letter of acceptance on 26 May 1995 (albeit incorrectly dated 26 May 1996), he gave no convincing reason as to why he did not post the letter on the evening of Friday 26 May or on Saturday 27 May. The reason he did give (at T573) was:

“By the time I had written it, it was 7.00 on the Friday night. It wouldn’t have got to Shepparton until Monday and probably not through the system until Tuesday, and I’d already arranged to be there on the Thursday. So I’d accepted the job. The offer was there and I took it with me basically. There was just no reason to post it, you know.”

This is not a convincing reason for keeping the letter and taking it with him and then only presenting it to Mr Martin, on his own evidence, late in the afternoon of Thursday 1 June. In cross-examination (T778-779), the applicant said that he “typed (the letter) on 26 May 1995 … some time after I received the job offer … on late Friday evening. My intention was to get it into the mail at 6.00, and I believe that I was probably not able to do that … it was typed some time on Friday evening after 5.10 or 5.17 … it could have been within an hour. I missed the mail so I could have finished after 6.00 pm. I don’t have any great recollection of that.”

The following exchange took place between counsel for the respondent and the applicant (T779-780):

“Counsel:Why did you want to mail it?

Applicant:Because I wanted it in the system asap. I wanted it in the system as quick as I could.

Counsel:Wasn’t there a better way of doing that?

Applicant:Friday night - late Friday night - anything that went to Shepparton wouldn’t have been opened until Monday and I suspect Ian Martin wouldn’t have got it till Tuesday and I was going up on the Thursday. There’s absolutely no irregularity about that at all.

Counsel:Why didn’t you fax it to the council?

Applicant:What, on a Saturday?

Counsel:Well, you told us that you got it copied at one of several places in Clifton Hill or North Fitzroy over the weekend?

Applicant:That’s right.

Counsel:And one of the possible places where you could have got it copied was Shelly’s?

Applicant:That’s right.

Counsel:And Shelly, as you said, was commonly open over the weekend?

Applicant:That’s right.

Counsel:You could have faxed it from there, couldn’t you?

Applicant:Possibly I suppose. It didn’t occur to me to fax it back because I don’t …

Counsel:It didn’t occur to you?

Applicant:Well, let me put it to you this way, sir:  why fax something on a Saturday to an office that’s not going to be open till Monday?

Counsel:Had you faxed it there would have been a record of it arriving, there would have been a record of you having sent it?

Applicant:Is that a question or a statement from you?

Counsel:Well, it’s a question, isn’t it?  Isn’t it correct that had you faxed it you would have had a record of having sent it?

Applicant:I have a record of a job offer. I have a record of accepting it. The City of Shepparton has a record of me accepting it apart from the fact that it lost my file for three years.

Counsel:You get a fax from - you asked for this fax to come to you, didn’t you? You asked for the letter to be faxed to you?

Applicant:That’s right.

Counsel:The letter said, “Please confirm your acceptance in writing as soon as possible”?

Applicant:Which I did as soon as possible.

Counsel:You wrote it as soon as possible.

Applicant:That’s right.

Counsel:Why didn’t you fax it back to them straightaway?

Applicant:Because I do not have a fax machine, sir

Counsel:But you had access to plenty of fax machines in the area, didn’t you?

Applicant:No, I didn’t. I said I had access to photocopiers, not fax machines.

Counsel:So all these places that had photocopiers didn’t have fax machines as well?

Applicant:Well, there is a fax machine in the newsagents in Clifton Hill. There’s one in the licensed grocers. There’s one in the post office. There’s one in the Tattslotto agency.

Counsel:And all those places are open over the weekend?

Applicant:But they don’t have fax machines. They’re just making their money on a photocopier.

Counsel:I thought you said they all had fax machines?

Applicant:No, I said they had photocopiers and if you listened to what I said, I said photocopiers.”

The responses in cross-examination and the claim (at T573) “There was just no reason to post it, you know” are not consistent and convincing and cannot be easily reconciled with the statement (at T779) that he (the applicant) wanted the letter “in the system a.s.a.p. … in the system as quick as I could”.

The applicant’s explanation as to why he delayed providing the letter to Mr Martin until late in the afternoon of 1 June 1995 is also unconvincing and inconsistent with his claims that he had wanted to respond as soon as possible on Friday 26 May.  His explanation (at T781) is as follows:

“Counsel:Why didn’t you give him the letter when you met him first at 1 o’clock?

Applicant:Because we were both enthusiastic to get on with the task. The fact that he’d offered me the job - Mr Martin wasn’t particularly even interested in getting an acceptance off me. He knew I was there. We were talking about the job. We talked about budgets and 20 other things and, you know, by that stage I’d basically started the job and they were his comments.”

The applicant said that after typing the letter he printed out two copies. Later he signed one copy and later again he made a photocopy of the signed copy.  He cannot identify either the time when he signed the letter or when he photocopied it except that he gave evidence that he probably copied the letter over the weekend.

He indicated that he had access to a photocopier at Shelly’s Typing Service.  He agreed that this service may have been open over the weekend and that he had at times sent faxes from that location. He then listed a number of other places where he “may have copied” the letter, including a newsagency, a licensed grocery, a post office and a Tattslotto agency. He identified these as places with fax machines and then, almost immediately, (T780) denied that there were fax machines at these locations.

Mr Cullen said that he gave the solicitors (at that time acting for him) a signed copy and an unsigned copy of the letter.  He said that the solicitors “got every piece of documentation that I had” (T778).  Counsel for the respondent has suggested, in my view reasonably, that it is surprising that, if the applicant gave his solicitors a signed copy and an unsigned copy, that the copy provided by the solicitors to the respondent was an unsigned copy rather than a signed copy.  The applicant was unable to say when he gave the solicitors (then acting for him) a signed copy and an unsigned copy.

The applicant’s evidence that his computer, “an old 486-33”, had no hard disk is curious. Perhaps the applicant intended to suggest that he did not or could not access the hard disk. In any event, he said (T780 and 781) he stored all his documents on floppy disks, doubted that he still had the disk containing the letter of 26 May 1995 (dated 26 May 1996), had “no idea” what had happened to the disk “over that length of time” and that “floppies have deteriorated”.

The Court is not prepared to draw the inference suggested by counsel for the respondent in final submission that “it may be inferred that the applicant’s tenderness about the disk is that it would show the date on which the document was created, which is likely to be substantially later than 26 May 1995”.  On the other hand, the applicant’s overall evidence as to his motivation in preparing the letter as soon as possible on Friday 26 May 1995, his mistaken provision of the date 26 May 1996, his delay in providing the letter to Mr Martin and the unconvincing and sometimes conflicting evidence about where and when he might have copied the letter and where fax machines were located, does not assist the applicant when determining which evidence to prefer in areas of conflict.

The applicant, in evidence-in-chief and initially in cross-examination, made no reference to any discussion of  “on-costs” in the telephone conversation with Mr Martin on 25 May. He indicated that he raised “on-costs” with Mr Martin in their second conversation in Shepparton on the afternoon of 1 June after they had returned to Mr Martin’s office after meeting the Planning and Building staff and after (the applicant asserts) he had handed to Mr Martin, and Mr Martin had read, the letter dated 26 May 1996 (T783-784).  Indeed, when counsel for the respondent reminded the applicant that he had given evidence that he had raised the question of on-costs with Mr Martin on 1 June the applicant responded (T784) “That’s right. That’s exactly right”.

Immediately thereafter, counsel for the respondent drew to the applicant’s attention the fact that the letter (dated 26 May 1996 and allegedly written on 26 May 1995) contained a reference to (Martin’s) “verbal affirmation that other on-costs are in addition to the $70,000 pa”.

At that stage, the applicant replied “Look, I’m totally confused with what you are saying” (T785).

Soon thereafter, he said “When he offered me the job, in my first conversation with him, he said it’s $70,000 plus on-costs”. 

Counsel then said “This is the first time you’ve mentioned that. It’s the first time I suggest to you …”.

The applicant replied “it’s bloody irrelevant … I think you are being just obsessive frankly and I’m finding this conversation most distressing - absolutely most distressing … look, I want a break. As far as I’m concerned you are distressing me and I’m losing my concentration to the point where I’m actually just …”.

In fairness to the applicant, I record that at this stage in the proceedings he and his counsel made their second and third requests for a short break in proceedings. The three requests came within a few minutes of each other. Breaks were sought on the basis that the applicant was under medical care and was finding the continuation of cross-examination distressing and because he was having difficulty with concentration.  In my judgment a break in proceedings was not warranted but I do record that the applicant protested against immediate continuation and repeated that he was under medication, was finding proceedings “extremely stressful” and could not “concentrate on giving answers”.

The applicant then indicated that he could not recall “what conversation (he had) with Mr Martin on 25 May about on-costs” and that he could not at that moment recall whether he had a conversation with Mr Martin on 25 May and that “my mind at the moment is a complete blank. I do not recall”.

Again, in fairness to the applicant, I accept without question that he had a telephone conversation with Mr Martin on 25 May, that in his earlier and later evidence he recalled that conversation, and Mr Martin clearly confirmed such a conversation also. However, there is conflict between the applicant and Mr Martin as to any discussions of “on-costs”.  Mr Martin states that there was no discussion of on-costs either on 25 May or 1 June. The applicant gives conflicting and unclear evidence but suggests there must have been such a conversation on 25 May because he wrote the letter dated 26 May 1996 on 26 May 1995 and the letter refers to (Martin’s) “confirmation that other on-costs are in addition to the $70,000 p.a. package”.

The applicant’s evidence about such conversations of on-costs on both 26 May and 1 June does not assist him in terms of credibility. He did not mention any such discussions in two previous accounts in evidence of the 25 May conversation. The alleged “on-costs” discussions were not put to Mr Martin and such discussions were not pleaded in the applicant’s statement of claim.

The evidence of the applicant in respect of the letter of 2 June 1995 (exhibit R) is also inconsistent and unimpressive. There is no reference in the letter to “on-costs”. The evidence (T580-581 - evidence-in-chief) (T790-793 - cross-examination) includes:

• a suggestion that the difference in font and format to the letter of 26 May 1996 (exhibit 36) could be explained by the possibility that it (the letter of 2 June) was typed on behalf of the applicant from a written draft on a different machine to the applicant’s “486-33”, but, if that be so, the applicant was unable to say who typed the letter for him (T791)

• a later suggestion that the letter was typed on the applicant’s computer, the 486-33, and that the machine had 350 fonts (T791)

• admissions that while he (the applicant) could not remember who typed the letter, he most definitely drafted it, “could have typed it” and the letter “is exactly the way I write letters, the paragraphing is mine, the words are exactly mine” (T791)

• a statement by the applicant in evidence-in-chief that he posted the letter at a specified post box in North Fitzroy on Friday 2 June 1995 (T581)

• a statement by the applicant in cross-examination that “this letter was posted to the City of Shepparton … I don’t know when I posted it … I have no recollection when I posted it” (T791)

• a reference in the letter to an intention to “discuss with David King on Monday (i.e. 5 June 1995) the sourcing of documents and information in preparation for attendance on Thursday 8 and Friday 9 July” but a statement in evidence from the applicant that he did not expect the letter to arrive on Mr Martin’s desk until “probably a week later I suppose” (presumably about 9 June)

• the admission by the applicant that the reference in the letter to “Thursday 8 and Friday 9 July” was erroneous and that he was referring to 8 and 9 June (T791)

• the reaction of the applicant in cross-examination to the suggestion that the letter was created after he left Shepparton (i.e. after 20 July) which reaction was “How dare you put that accusation to me?  You sit there and smirk all you like. You have been told when the document was created and if you want to continue to throw that sort of line at me I think you should just get your act together” (T792)

• the first reference at any time in evidence to “on-costs”, the reference being by the applicant in cross-examination to asking Mr Martin on 1 June about on-costs and that he was “very careful about that” (T693-696).

CREDIBILITY - WITNESSES FOR THE RESPONDENT
In terms of credibility, the applicant faces the problem of the number of witnesses who gave evidence in conflict with his evidence.  There are aspects of that evidence which conflict with evidence given by Messrs Martin, King, Bruhn and Frame, Ms Bacher, Ms Myers and Ms Sammon and Dr Middleton.  For the Court to accept the evidence of the applicant in preference to the evidence of these respondent witnesses and Dr Middleton would entail a conclusion of an organised conspiracy against the applicant or, absent conscious conspiracy, the adoption by respondent witnesses of what counsel for the applicant categorised as a “corporate position”.

MR MARTIN
Mr Martin stated that:

• on several occasions he asked the applicant about providing the written acceptance of appointment, a commencement date and action necessary to get on the payroll

• some time between 1 and 19 June he asked the applicant to clarify a starting date “so that we could get him on payroll” but the applicant replied that he had some matters to resolve with Baw Baw (T177)

• in early July, while on leave, he asked the applicant again about a starting date and said “I still haven’t got you on the payroll …I still want to resolve a date so that we can get things properly organised” and that the applicant replied that he was still resolving Baw Baw issues and was unable to confirm a date (T179-180)

• on two occasions he asked the applicant for a “written reply” and the applicant first replied that he had some matters to finalise with the Shire of Baw Baw and was trying to get those resolved and on the second occasion that he was not able to clarify a formal commencement date until a dispute with Baw Baw had been resolved (T202-203)

• he made his inquiries of the applicant in order that he might get the applicant on the payroll as it was not possible to do that without a formal date or a letter of acceptance

• had he obtained a letter of acceptance and a commencement date he would have been able to register the applicant and ensure that he completed the appropriate taxation, superannuation and banking details which would have allowed administration and payment of the applicant in the respondent’s employment system with any adjustment made with the finalisation of exact salary packaging and a written contract (T363-366)

• he told Mr Jaboor that Mr Cullen had not provided a written acceptance and that Mr Jaboor asked him on a number of occasions to follow up with the applicant

• he reported back to Mr Jaboor that he had asked the applicant but that no written acceptance had been received (Mr Jaboor confirmed this in his own evidence - T60)

The applicant denied that Mr Martin had at any time asked him about a written acceptance and formal commencement date (T793). The Court notes that at no stage in his evidence did the applicant suggest that he responded to Mr Martin’s inquiries by pointing out that he had previously handed Mr Martin a letter of acceptance in his office on 1 June. If Mr Martin kept asking him for a written acceptance and starting date, this is the kind of response one would expect from the applicant if in fact he had completed a formal letter of acceptance, albeit incorrectly dated 26 May 1996, and if he had, as he asserts, handed it to Mr Martin in his office on 1 June.  Of course, I apprehend the applicant’s position as one of complete denial that there were ever any conversations with Mr Martin about a commencement date or a written acceptance. 

In fairness to the applicant, if he did prepare a letter of acceptance on 26 May 1995 and if he did give the letter to Mr Martin on 1 June and if there were accordingly no further inquiries from Mr Martin then naturally the applicant would not have needed to respond with any reference back to the letter of acceptance.

The Court also notes that there is no evidence that the applicant did anything or took any action to get on the payroll and to claim salary payments during his period at Shepparton between 1 June and 20 July 1995.

Counsel for the applicant submits that the issue of the receipt or non-receipt on 1 June 1995 of the letter dated 26 May 1996 is a contest as to the applicant’s credibility, Mr Martin’s memory and credibility and Mr Jaboor’s credibility.  The Court would not take issue with a proposition that a ruling as to the likelihood of receipt by Mr Martin on 1 June 1995 of the letter dated 26 May 1996 turns primarily on the credibility of the applicant and the credibility of Mr Martin but repeats that an assessment of their respective credibility requires an assessment of the credibility of the evidence in general and any reflection on credibility that arises from the conduct of the parties.

Mr Martin’s credibility is attacked on the basis of his defective memory and inadequate recall of various matters. It is suggested that “at times he was or at least appeared to be evasive, particularly in his use of ‘not recalling’ or avoidance of questions, for example questions about the whereabouts of the applicant’s personnel file in the context of the letter dated 26 May 1996 (1995) - (exhibit 36/P)”.  Likewise it is asserted on behalf of the applicant that “Mr Martin’s use of the words ‘not specifically’ or that he does not ‘specifically’ recall something put to him is notable, and gives a flavour to his evidence”.

Mr Martin was an imprecise and diffuse witness. He was indirect. Nevertheless I have assessed him as genuine and truthful albeit with limited recall of details and a persistent habit of reporting conversations in an indirect and imprecise fashion.

MS BACHER
Ms Bacher was responsible for public relations with the respondent council in 1995. Her evidence included the following:

• as editor of the council newsletter, Greater Link, she had intended to place an article in the 7 July 1995 edition of the newsletter. The article would have welcomed the applicant and another staff member

• a day or so before publication, probably on 5 or 6 July, the applicant asked to speak to her privately, there being another person present at the time

• the applicant then asked Ms Bacher not to put the article in the newsletter because he was involved in a legal dispute and he did not want a record which indicated he was working with the council. Ms Bacher gained the impression from the applicant that Mr Martin knew about and approved of the position being taken by the applicant

• the applicant also indicated that he was not happy about an earlier media release in the Shepparton News on 2 June 1995 (exhibit 3) (T500)

• Ms Bacher arranged to have the article scheduled for 7 July withdrawn

• Mr Jaboor later asked her (Bacher) why the article was not in the newsletter of 7 July and she told him of her conversation with the applicant.

The Court notes that Mr Jaboor’s evidence includes the following (T65):

“I approached her (Bacher) and asked her what happened to the article on Mr Cullen. She explained to me that she had prepared it but he had asked her to withdraw it because he hadn’t officially started with the council. I can’t remember the date. I think it might have been just before the meeting with Mr Cullen on 17 (July).  I raised it with him in one of our meetings. I’m not sure whether it was the first one or not. I did make a reference to the fact that Caroline (Bacher) had told me that he had asked for the article to be withdrawn and I was concerned about that and the fact that he hadn’t provided a written acceptance. He didn’t give me a reason why. He didn’t answer the question. I can’t precisely answer whether he sat in silence or looked away or changed the subject. I can’t be sure.”

The applicant denied any conversation with Ms Bacher along the lines deposed by her. He claimed that during his time at Shepparton he had two conversations with her, one by telephone and one face-to-face. He said that both conversations related to the publication of advertisements in the The Age and that the face-to-face meeting occurred about the Wednesday or Thursday of the week prior to the first publication of the advertisements. The advertisements to which he referred were first published on Saturday 8 July 1995 (exhibit 19).

The applicant acknowledges that he met Ms Bacher on Wednesday 5 July or Thursday 6 July.  This is consistent with Ms Bacher’s evidence of the date of their conversation in which she asserts he asked her not to publish the Greater Link article scheduled for 7 July.  It is also consistent with the note Ms Bacher made of their conversation (exhibit 51). Mr Jaboor’s evidence supports the evidence of Ms Bacher. There is no obvious motivation as to why Ms Bacher would fabricate evidence.

In final submissions no specific or individual attack was made on the credibility of Ms Bacher. There is nevertheless a strong attack on her credibility under the umbrella of what is asserted to be “a corporate position developed as to Mr Cullen’s time with the Council, what he was doing there, what he had or hadn’t done”. 

Later in these Reasons the Court refers to and finds no evidence in support of such a corporate concept, picture or position. In terms of the evidence of Ms Bacher, her evidence is preferred to that of the applicant. Ms Bacher presented as a direct, forthright and truthful witness.

MS MYERS
Ms Myers, a receptionist in the Building and Planning Section, stated in evidence that during the fortnight ending 16 July 1995 she had a conversation with the applicant at a time when she was “crossing off attendance sheets” and he said to her “Don’t mark that I’m here or I’m not here because I haven’t officially started yet” (T452).

“Within a month or two” of the applicant’s departure on 20 July Mr Martin asked her for a copy of her attendance records and also asked her why she had not recorded the applicant’s attendance for the fortnight ending 30 July. She explained the direction given by the applicant and Mr Martin asked her to write a note to that effect. She then wrote a note on the staff attendance record for the fortnight ending 30 July 1995 which read:

“Re R Cullen - requested by R Cullen to not record his attendance/non attendance due to the fact that he had not officially commenced duties with the City of Greater Shepparton.”

The applicant agreed that he had had a conversation with Ms Myers about recording the attendance of staff but denied her account. Indeed, he denied telling anyone at the council between 1 June and 20 July that he had not officially started. His version of the conversation was that he told Ms Myers that professional and administrative staff come and go at odd hours, can control their own hours and should be responsible for them.  He claims that he told the applicant that she was to stop taking attendance records on any of the staff and that he had expected that she would stop recording not only his attendance but the attendance of all of the Building and Planning staff.

It is to be noted that Ms Myers did not stop recording the attendance of other staff. It is also to be noted that Ms Myers has sworn that the only record she kept was a formal record in the form of exhibit M but that the applicant claims that the record he saw Ms Myers filling out was “a simple sheet of paper with names and ticks on them” (T760); it did not have a title at the top and it did not have a box referring to annual leave and sick leave (T638).

No specific and individual attack is made on the credibility of Ms Myers. Nevertheless, her credibility is impugned on the basis that like Ms Bacher and others Ms Myers has accepted or developed or been deluded by a “corporate concept, picture or position”. The Court has not found credible evidence of such a concept or position and refers to such finding later in these Reasons. The evidence of Ms Myers is preferred to that of the applicant.

MR KING
Mr King and the applicant both agree that they had  conversations about the merits of various motor vehicles and the particular merits of the Subaru Liberty 4WD.  The applicant stated that at the time he was using two different Subarus to drive between Melbourne and Shepparton and there is undisputed evidence that he was interested in the provision of a Subaru as the vehicle to be allocated to him as part of his salary package with the respondent. The applicant agrees that one of the Subarus in his possession at the time was a vehicle allocated to him by the Shire of Narracan and used by him while at the Shire of Baw Baw and used by him to drive to and from Shepparton and Melbourne during the period 1 June to 20 July (T798).  Mr King stated that (T477):

• the applicant “was driving up and back (to and from Melbourne) in a Liberty”

• the applicant had told him “that that’s what he had been doing and that’s what he wanted to negotiate and that’s what he had at his council at Baw Baw … it was still Baw Baw’s vehicle”

• he (King) suggested to the applicant that he purchase the Subaru from his “old employer” and the applicant replied “Well, we are still negotiating on that”.

The applicant in evidence-in-chief (T594) and in cross-examination (T799) denied that he told Mr King about the ownership of the Narracan/Baw Baw Subaru.  He conceded in evidence-in-chief that:

• “it was part of (his) dispute with the Shire of Baw Baw”

• had he told King about the ownership “it would have opened up the whole thing of well, what’s the dispute about”

• he “didn’t want people to know my business which was not the business of the City of Greater Shepparton at that stage. My primary aim was to settle in, get the work done, on with life”.

In cross-examination, when reminded of this evidence, the applicant responded “that’s right, and that answers your question.  I certainly didn’t tell David King who owned the car”. Both Mr King and the applicant agree that they discussed petrol. King’s evidence (at T478-479) included the following:

“I can remember at different times Rod was mentioning that driving up and down to Melbourne was killing him in petrol … I can remember saying to Rod - are you a Council employee and if you are I’ve got no worries in fuelling any car as much as you like.  If you can drive a tank a day I’ll fuel it. I wasn’t going to use the fuel card which I had control of unless I was certain that he was an employee or actually working there. As time went on I found it a little bit disconcerting in that I wasn’t sure what Rod was actually doing … we had a sort of quick discussion several times and it was just brushed off. One time he said to me that he’s still negotiating with Baw Baw and that’s where the vehicle tied in and so on and that’s where that was left. I can remember thinking, this is strange. Here’s this person still employed coming up to have a bit of a look around but he’s been up here three out of five days for several weeks. I couldn’t work out why he was still driving a vehicle from another Council but still sort of attending here. …  At one stage … Rod was making comments about the cost of travelling … I can remember saying to him, why don’t you sign on and then I can fuel you and you can get paid for the work you’re doing? (He said) ‘I’m still negotiating with Baw Baw.’ I just left it at that. I recall it as being Rod making a comment that he’d been doing a lot of miles, a lot of work, a lot of petrol, and it was costing him dollars and the intimation to me was that could we fuel the car … that’s when I was sort of saying, have you signed on?  What’s the go?  Are you an employee yet? Can we do it?  He said, ‘No, I’m still negotiating with Baw Baw.’”

While the applicant agreed (T590) that he discussed with Mr King “where we source petrol”, he denied (at least by implication) any detailed discussion such as deposed by Mr King. The applicant said “petrol wasn’t an issue for me at that stage”.

Where the evidence of the applicant and Mr King is in conflict the evidence of the latter is preferred.

MR BRUHN
Mr Bruhn is Director of Infrastructure, Strategy and Contracts for the respondent.  He stated (T424-425) that he had a discussion with the applicant at the offices of the respondent and that at that time the applicant “was (generally speaking) doing what I’d been doing, getting himself ready to start … he was moving out of some contractual obligations he had with his former employer before he started with the City of Greater Shepparton …he had some contractual dispute or discussion or whatever with his former employer, Baw Baw Shire Council”.

The applicant (T761-762) denied that he had ever told Mr Bruhn or anyone else that he “had not started” his employment with the respondent.

He said “I said to no person at the City of Greater Shepparton that I hadn’t started.  I had in fact started as per my agreement with Ian Martin on 1 June 1995”.

The applicant also denied telling Mr Bruhn or anyone else that he was or had been employed somewhere else. He was asked about this in cross-examination (T762) specifically in respect to Mr Bruhn, Ms Samman and Mr Frame and he replied “I make no comment other than that … I in fact had no conversations of that nature with them.  It was none of their business in fact”.

MR FRAME
Mr Frame a municipal building surveyor with the respondent, stated (T408) that “very early in the piece - maybe the second week” he had a conversation with the applicant. Mr Frame described the substance of the conversation as “he was still employed somewhere else … he had some business to take care of before he was going to fully commence with us”.

The following exchange took place in cross-examination:

“Counsel:Did it at any time come to your attention, Mr Frame, that Mr Cullen was working at the Greater Shepparton City Council but was not being paid?

Witness:I believe Mr Cullen may have said that to me.

Counsel:It was said in the context of, ‘Here I was doing all that work.’ That was a part of a statement, wasn’t it?

Witness:You’ve lost me there, sorry.

Counsel:You said he may have said that to you at one time?

Witness:Yes.

Counsel:I’m suggesting that it was said in the context of, ‘Here I am doing this work but I’m not getting paid.’ What do you say he said to you?

Witness:My understanding was that he couldn’t be paid because he was still employed somewhere else.

Counsel:Where did you get that idea from?

Witness:From Mr Cullen.

Counsel:He actually wasn’t employed anywhere else at that time, so are you sure it was from him that you got it?

Witness:I believe so.

Counsel:Did he say to you where he was employed?

Witness:He could have but I don’t recollect where it was.

Counsel:You see, his evidence is that it may have arisen in discussion with you that he was busy working there but was not yet being paid or not yet on the payroll but in the sense of it’s being in one way a joke that you’ve got somebody there working away but they’re not yet being paid. Would you disagree with that, that it was said in a jovial manner, I guess?

Witness:I just took it as in the context that it was that he had other employment, that he couldn’t be employed there until he finalised where he was.”

The applicant gave no evidence-in-chief about this conversation with Mr Frame. In cross-examination, as already noted, (T762) he stated that while at Shepparton “from 8 June to 20 July 1995 (he) did not tell anybody (he was) employed somewhere else’ and he had no conversation “of that nature … with Mr Frame, Mr Bruhn and Ms Samman”.

MS SAMMAN
Ms Samman is Human Resources Co-ordinator with the respondent. She gave evidence that she spoke to the applicant on three occasions. The second of those occasions was about the beginning of the second week after she began work with the respondent on 10 July 1995. She believed that the conversation was in the morning and in her office. She gave the following evidence (at T310):

“Mr Cullen said that he was doing some preliminary work. He wasn’t yet on the payroll. He had come up to have a look at his office and set up the things but wasn’t yet on the payroll.  He seemed a little agitated but I didn’t really discuss that with him.”

The applicant denied this conversation. He said (at T672):

“There is no way that I would discuss with Leanne Samman that sort of business.”

CREDIBILITY - ALLEGATION OF “CORPORATE CONCEPT” AND “CORPORATE MEMORY”
I have already rejected the attack on Mr Martin’s credibility grounded in his defective memory, inadequate recall and imprecise evidence.

There is no specific, individual attack on the credit of Ms Bacher, Ms Myers, Mr Bruhn or Mr Frame.

There may be some indirect attack on the credibility of Mr King grounded in a suggestion of his possible antipathy to the applicant who was selected for appointment over him.

There may be some indirect attack on the credibility of Ms Samman grounded in some possible responsibility for the safekeeping and therefore the misplacement of the applicant’s personnel file. (In these Reasons the file is referred to as the “personnel” file. The file could probably be described with equal accuracy as the applicant’s “personal” file.)

There is a strong, general attack on the credibility of all respondent witnesses under the umbrella of what is asserted to be a “corporate position developed as to Mr Cullen’s time with the Council, what he was doing there, what he had or hadn’t done”. The notion of “a corporate position” was set out in paragraph 10.1 of the applicant’s reply to the respondent’s submissions and included the following assertion:

“Notably, in the midst of evidence of witnesses who were vague, unable to recall, couldn’t remember a variety of matters relating to Mr Cullen and his work at the Council, the one salient ‘fact’ all of them could remember without any doubt or equivocation (except Mr King - see below) was precisely what he was alleged to have said to them about his ‘dispute’, etc with Baw Baw.”

The proposition of a “corporate concept” was addressed further in paragraph 10.6 of the applicant’s reply to the respondent’s submissions as follows:

“The only fair conclusion to reach on the ‘Mr Cullen’ or ‘Rod told me …’ evidence is that a corporate concept was developed by the Respondent as to Mr Cullen’s departure and this corporate concept became the accepted picture as to Mr Cullen and his work and position during his time at the Council. It became the practical reality so far as the Respondent and its employees were concerned, the corporate memory.”

The Court does not accept the proposition of a “corporate concept” or “picture” or “position” or “memory” developed by the respondent and somehow said to explain the conflicts between the evidence of the applicant and most of the respondent witnesses. The Court has found no evidence to support such a corporate concept, picture, or position.  Wherever there is conflict between the evidence of the applicant and a respondent witness the evidence of the latter is preferred.

It is not necessary to refer to all instances of evidence reflecting adversely on the credibility of the applicant but the claim that the applicant was employed under a contract of employment in compliance with s 95A is not assisted by the pattern of work revealed by the evidence or by notes of hours and expenses prepared by the applicant and the applicant’s evidence about the notes.

PATTERN OF WORK
It is not possible to determine whether or not the applicant had entered a contract of employment with the respondent simply by assessing his pattern of work at Shepparton. However, that pattern, taken with the totality of the evidence, does not assist the applicant. The applicant did not attend every working day from 1 June to 20 July although the general tenor of the evidence suggests he worked adequate hours on the days he attended. The applicant did not apply for leave and was permitted to come and go without taking leave.

NOTES OF HOURS AND EXPENSES
The applicant gave evidence (T619-621; T673-674; T696-701 and T713-724) about notes he compiled of his hours of work and expenses in the period 31 May 1995 to 21 July 1995 (exhibit 11).

The evidence given in chief and in cross examination and the appearance of the notes suggest that the notes were not made at the end of each working week in the manner suggested by the applicant who said (at T619-620) “Page 1 is some total hours which I totalled up but certainly the rest of the document is basically a diary of my time at City of Greater Shepparton. It details the days I was there and the hours I was there and what I had spent. In an earlier discussion with Ian Martin on 1 June he had said to me ‘just keep a track of what you are doing and we will reimburse you later’ and this is what this is … it was not written all at the same time … they came to existence generally in the week that I worked … it was done at the end of the week or when I came to Melbourne”.

The notes do not bear the appearance of notes made in the manner claimed by the applicant. Significantly, the entries for the weeks ending 16, 23 and 30 June in the first column (the date column), with four exceptions, give the dates of work as July rather than June. The mistake is made in every entry in the week ending 16 June, in 9 of the 11 entries in the week ending 23 June and in every entry in the week ending 30 June except for the last two entries which, although listed on a page entitled “ending 30 June”, refer correctly to Saturday 1 July and Sunday 2 July.  Two entries at the end of the week ending 23 June do not refer to any month and read “Sat 24 Sun 25”.  It is easy to envisage the applicant confusing June and July and putting “7” instead of “6” on one of these three pages if the pages were filled out at the end of the week. It is possible to envisage the applicant repeating the mistake for a second week especially if, while filling the pages out at the end of each week, the applicant referred back to the previous page allegedly completed a week earlier. It is less likely that the applicant would have repeated the mistake on three separate occasions in three ensuing weeks if he was filling out the record on a weekly basis. It is possible, but less likely, if he referred on each occasion to the previous week and repeated the mistake. It is more likely that such a mistake would occur and be repeated if the record was filled out at the one time and after the period had elapsed.

On a balance of probability, and given the attitude and demeanour of the applicant in his evidence on this issue and the appearance of the document itself, I have concluded that the applicant did not fill out the record as he said but completed the record after the event. This conclusion is a finding adverse to the applicant in terms of credibility.

DR MIDDLETON
Dr Middleton gave evidence for the applicant and appears to have been called primarily to give evidence as to the possible adverse effect on the health of the applicant of the alleged termination of his employment by the respondent.  She gave evidence as to the applicant’s state of health before and after the termination of his employment by the Shire of Baw Baw and before and after his period at Shepparton.

In the course of her evidence she stated that she saw the applicant on 15 July 1995 and that her notes indicated (T706):

“Ongoing problems with previous employer but now has a job at Shepparton … still quite depressed … some sleeping problems … still having headaches and anxiety.”

In cross-examination she quoted her notes of 15 July 1995 as follows (T711):

“Ongoing problems with his previous employer. Hadn’t been paid since May. Now has a job in Shepparton but still quite depressed and had some sleeping problems and his confidence was still down. Had some headaches and some anxiety.”

Dr Middleton said that she saw the applicant again on 21 July 1995 and stated (at T706):

“He was very agitated. At that stage he had been escorted from the premises at Shepparton, the job had been terminated and he was quite distressed about that.”

In cross-examination Dr Middleton was asked to tell (the Court) about her notes of the consultation of 21 July. Her evidence in response (T711) was as follows:

“Said he was given a job at Shepparton Council but hadn’t actually signed on. Now the offer was withdrawn. … He believed that the CEO from his previous employer had intervened and was removed from the premises by the police. He was obsessing about the entire situation.”

I agree with counsel for the applicant (reply page 24) that such notes:

• “are necessarily truncated and short”

• do “not affirm … that Mr Cullen had not accepted the position of Manager, Development Services Business Unit and was not working in that position from 1 June 1995 to 20 July 1995”.

However, the notes do not assist the applicant. Counsel concedes that the applicant had not “actually signed on” in the sense of being on the payroll and in receipt of salary. Dr Middleton’s summary of the conversation with the application in the context of having been “given a job … but hadn’t actually signed on … (and) now the offer was withdrawn” is suggestive of a situation in which the applicant was not employed. This is as far as that evidence goes.  It is not definitive evidence against an employment relationship but it does not assist the applicant.

CREDIBILITY OF APPLICANT - ONUS TO DEMONSTRATE EMPLOYMENT BY THE RESPONDENT
The onus is on the applicant to establish that he was employed by the respondent and that his employment was terminated at the initiative of the respondent. Should he establish employment by the respondent and termination at the initiative of the respondent the onus would then shift to the respondent. The respondent would then be required to establish that any termination of employment was for valid reason and with appropriate notice of termination: Siagian v Sanel Pty Ltd (1994) 1 IRCR 106; Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 142 ALR 99; Byrne and Frew v Australian Airlines Ltd (1995) 185 CLR 410.

The applicant has failed to discharge the onus of establishing employment by the respondent. I am not satisfied that the letter dated 26 May 1996 and allegedly written on 26 May 1995 and addressed to Mr Martin was handed to Mr Martin or placed on the coffee table before him in his office on the afternoon of 1 June 1995.  I am not satisfied that the letter was provided to Mr Martin by the applicant or discussed with Mr Martin by the applicant on the afternoon of 1 June 1995. I accept the evidence of Mr Martin that he first saw a copy of this letter after a copy was produced by solicitors then acting for the applicant.

I am not satisfied that the applicant posted to the respondent the letter dated 2 June 1995.

In reaching these conclusions I have preferred the evidence of each and every respondent witness to the evidence of the applicant.

I have also noted and accepted the evidence of Dr Middleton that on 21 July 1995, the day after the ending of the relationship between the applicant and the respondent, the applicant told her that “He was given a job at Shepparton Council but hadn’t actually signed on (and) now the offer was withdrawn.”

Having concluded that the applicant did not on 1 June 1995 deliver a purported written acceptance of employment with the respondent by way of a letter incorrectly dated 26 July 1996, or by posting a letter to Mr Martin dated 2 June 1995, it is not necessary to determine whether either or both such letters, if delivered and received in early June 1995, would have constituted sufficient compliance with s 95A of the Local Government Act (Vic) as to create a contract of employment between the applicant and the respondent.

The result of my conclusions is that the two applications must be dismissed.

POSSIBLE EMPLOYMENT ON AN ACTING BASIS OR ON A DAY-TO-DAY BASIS
During trial I raised the possibility that the evidence might establish that the applicant was employed on a day-to-day basis.  In Capay Holdings Pty Ltd v Slattery (Industrial Relations Court of Australia, Wilcox CJ, Moore and Marshall JJ, 11 December 1996, unreported) the Court stated:

“It must be borne in mind that Division 3 of Part VIA of the Act is designed in part to give effect to the Termination of Employment Convention (“the Convention”). (See s170CA of the Act.) The Convention is concerned with employment relationships and not the existence or otherwise of a contract of employment. It is more precisely concerned with termination of the employment relationship. See para 9 of Report of the Committee of Experts, Report III (Part 4B) International Labour Conference, 2^nd Session 1995, General Survey on the Termination of Employment Convention (No. 158) and Recommendation (No. 166), 1982. It is that topic that the Convention addresses and not whether or not a contract of employment has been terminated. For example, a contract of employment may be terminated by the demotion of an employee without the employment relationship terminating. See Strachan v Liquorland (Australia) Pty Ltd (unreported, IRCA, Moore J, 6 February 1996).”

Capay Holdings was a case in which a Full Court held that:

• an employment relationship existed between a new child care centre and a nominated authorised supervisor

• intermittent preparatory work, most of it unpaid, was an inextricable part of the position of authorised supervisor

• an employment relationship was established on 21 January 1995 when a representative of the employer by telephone offered the respondent (Ms Slattery) the position at the child care centre and the respondent accepted the offer stating that she was looking forward to working at the centre and was informed that the centre was expected to open between late February 1995 and March 1995

• the appellant terminated the employment relationship when it insisted that no such relationship existed and demanded that such a relationship could only exist if it included a fixed term contract and a probationary period.

It is necessary in this case to determine whether an employment relationship somewhat similar to that outlined in Capay Holdings had been created.

Counsel for the respondent, in written response (paragraph 121), states that:

• the applicant was not employed by the respondent at all

• the applicant was not employed by the respondent on any basis

• “employment from day to day would not be valid unless it met the applicable requirements of s 95A and in particular unless there was a signed contract”.

I do not find it necessary to determine whether the applicant could have been employed on a day-to-day basis without meeting the requirements of s 95A because I have concluded that the applicant was not employed on a day-to-day basis or on an acting basis. Section 94(6) can cover the position of an applicant for a senior officer position who is in the process of being appointed in compliance with s 94(4) but has not yet been appointed because a contract has not been drawn, completed and executed under s 95A. Such an applicant could be appointed on an acting basis for a period of not more than twelve months. If such an appointee had his/her employment terminated at the initiative of the employer without valid reason the appointee could succeed in a claim of unlawful termination of employment.

It is clear that from 25 May to at least 17 July (and possibly to 19 July), the respondent wanted the applicant to enter an employment contract. However, I have concluded that the applicant, for his own reasons, did not, at that stage, want to be in the position of an employee with the respondent and did not want to give the appearance of being in an employment relationship with the respondent.  I have concluded that the applicant did not take any positive steps to get himself on the payroll of the respondent.

Having reached the conclusion that the applicant was not employed by the respondent on any basis at any time,  it is not necessary to speculate as to why the applicant did not want to be, or give the appearance of being, in any employment relationship with the respondent between 26 May and 20 July 1995.

However, the applicant was employed by the Shire of Narracan prior to the amalgamation with the Shire of Baw Baw in December 1994 and by the Shire of Baw Baw from December 1994 to his retrenchment on 15 May 1995.  Through his Baw Baw redundancy payment he was paid to 30 September 1995 and his final salary was by a package of approximately $81,000 p.a. (exhibit S, annexure A).

On 30 May 1995 the applicant lodged a claim of unlawful termination of employment against Baw Baw Shire Council seeking a variety of remedies including:

• reinstatement

• compensation

• declaration that the written contract of employment made 29 June 1993 was valid and enforceable

• specific performance.

The applicant and Phillip Drummond, a Baw Baw Shire employee, gave evidence of May and June 1995 negotiations about the Baw Baw claim.  The applicant gave conflicting and changing evidence as to what, in July 1995, he told Ms Dalton, a solicitor then acting for him.  His evidence related to enquiries made of his solicitor by a solicitor acting for the Shire of Baw Baw. The enquiries were as to whether the applicant was employed by or was “working for” the respondent.  The applicant said (at T740-741) that:

• he never told Ms Dalton he “was employed or whatever”

• he did not recall a conversation with Ms Dalton other than to confirm “that I was in fact at Shepparton”

• any suggestion that Ms Dalton had told the Shire of Baw Baw solicitors that she had been instructed the applicant was not employed at Shepparton was “hearsay”

• Ms Dalton had not given evidence in these proceedings (the Shepparton matter)

• “Cathy Dalton knew I was at Shepparton and she communicated that to Dunhill Madden Butler” (Baw Baw solicitors)

• he (the applicant) had not contacted anyone at Baw Baw or asked his solicitors to write to the solicitors for Baw Baw to say that he had a job at Shepparton.

Counsel for the respondent suggested (at paragraph 56 of his written submission) that the applicant’s conduct “may properly be characterised as attempt to defraud Baw Baw by attempting to conceal what he now says was his employment by the respondent”.  It is not necessary for the Court to consider the nature and propriety of the applicant’s conduct in this respect.  It is not necessary for the Court to consider any motivation the applicant may have had for failing to take steps to ensure a contract of employment with the respondent or for taking positive steps to conceal any actual or potential employment relationship with the respondent.  The Court simply notes that there is ample evidence that the applicant did not take steps to get himself on the payroll and took positive steps to restrict information of his potential or actual employment relationship with the respondent. This evidence adds weight to the conclusion that the applicant was not employed on any basis with the respondent.

FINDINGS OF FACT
Resolution of these matters turned on findings of fact. Had I found a contract of employment between the applicant and the respondent there were a number of findings of fact and law potentially open. Had the applicant provided a letter of acceptance with a specific starting date there is little doubt Mr Martin would have pressed him to provide the information which would have led to his employment prior to the final completion of a contract in compliance with s 95A.

Having found no contract of employment or employment relationship the orders of the Court are straightforward. It is not necessary or appropriate to consider further the assertions that the respondent terminated the employment of the applicant without notice and without valid reason. The statutory application and claim will be dismissed. The common law application and claim will be dismissed.

ORDERS

1. The application of 2 August 1995 for relief in respect of termination of employment is dismissed.

2. The application and claim of 13 August 1998 for damages for breach of an implied term of reasonable notice is dismissed.

I certify that this and the preceding thirty-eight (38) pages are a true copy of the Reasons for Judgment herein of Judicial Registrar Ryan

Associate:

Dated:             10 DECEMBER 1998

Counsel for the Applicant:	Dr J. Scutt
Solicitor for the Applicant:	Maureen Daly
Counsel for the Respondent:	Mr D. Lane
Solicitor for the Respondent:	Maddock Lonie & Chisholm
Dates of Hearing:	10,11,12,13,14,17,18,19,24,25 and 28 August 1998
Final Submissions	25, 30 September and 1 October 1998
Date of Judgment:	10 December 1998