Douglas Maynard v Tasmanian Aboriginal Centre Inc

[1995] IRCA 589

C A T C H W O R D S

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - PROBATION - NON-COMPLIANCE WITH WRITTEN DIRECTION - FAILURE TO ATTEND A SEMINAR - PUBLIC CRITICISM OF EMPLOYER - REINSTATEMENT - COMPENSATION - LIKELY DURATION OF EMPLOYMENT.

Industrial Relations Act 1988, S170CC, S170DC, S170DE, S170EA, S170EE

CASES:

R V Gorman and Others; ex parte Australian Broadcasting Commission (1979) 24 ALR 609
Gibson v Bosmac (1995) 130 ALR 245 at 254
Johns and Gunns Limited (unreported) IRCA TI148R of 1994
Nicolson and Heaven and Earth Gallery, (1994) 1 IRCR 199)

DOUGLAS MAYNARD V TASMANIAN ABORIGINAL CENTRE INC

No. TI-95/1154

Before:          Ryan JR
Place:            Hobart
Date:              6 November 1995

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY  Matter No TI-95/1154

B E T W E E N:                  DOUGLAS MAYNARD
  Applicant

AND:TASMANIAN ABORIGINAL CENTRE INC

Respondent

RYAN JR

MINUTES OF ORDER

6 NOVEMBER 1995

THE COURT ORDERS THAT:

The respondent pay the applicant compensation in the sum of $5,600 within 21 days.  

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

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY  Matter No TI-95/1154

B E T W E E N:                   DOUGLAS MAYNARD
  Applicant

AND:               TASMANIAN ABORIGINAL CENTRE INC
  Respondent

COURT:       RYAN JR

PLACE:        HOBART

DATE:           6 NOVEMBER 1995

REASONS FOR JUDGMENT

CLAIM OF UNLAWFUL TERMINATION OF EMPLOYMENT
PRE EMPLOYMENT NEGOTIATIONS

The Maynards and the Mansells are well known and respected families in the Tasmanian Aboriginal community.

Douglas Maynard has been twice elected as a member of the State Committee of Management of the Tasmanian Aboriginal Centre. He has been a member of the Rocky Cape Committee and Chairperson of a southern sports committee in Tasmania. He has been involved in Aboriginal affairs as a Welfare Officer with the State Department of Community Welfare for four years, as an employee in the Commonwealth Department of Veteran Affairs for six years (three as a supervisor) and for eight months as an employment officer with the Tasmanian Trades and Labour Council.

Michael Mansell is the Legal Manager of the Tasmanian Aboriginal Centre and solicitor in charge of the Aboriginal Legal Service. He was the State Secretary of the Centre between 1976 and 1978, the President between 1972 and 1976 and he is still a member of the State Committee.

In or about January 1995 Mr Mansell seems to have become aware that Mr Maynard was unemployed and to use Mr Mansell’s words “scratching for a few dollars to set up his mutton bird operation”. Mr Mansell states that soon thereafter Mr Maynard asked him about the possibility of work as a Legal Aid Field Officer with the Tasmanian Aboriginal Centre. A few days later again, after a discussion with Heather Sculthorpe, the Administrator of the TAC, Mr Mansell offered Mr Maynard a position as a Legal Aid Field Officer.

Mr Mansell conceded that he has no formal authority to appoint staff. In fact, he admitted, with engaging frankness, that this was just as well “because some of my choices have been absolute disasters”. Nevertheless, it is quite clear that Mr Mansell’s standing in the Centre is such that he is able and does from time to time arrange the employment of people by the Centre and the formalities are picked up and addressed a little later.

This is what happened with Mr Maynard. Mr Mansell discussed the appointment with Ms Sculthorpe. Ms Sculthorpe gave evidence that she had some reservations because Mr Maynard “did not have a reputation of being a supporter of the Tasmanian Aboriginal Centre”. She states that Mr Mansell said:

“We should give it a go...he knows the community...if it does not work out he has other work options”.

Ms Sculthorpe also gave evidence as follows:

“I agreed that it seemed worthwhile to put him on the payroll to see whether it would work out”.

THE EMPLOYMENT

Mr Maynard began work as a Legal Field Officer in Hobart on 1 February.

A few days later, Mr Christopher Mansell, the Finance Manager with the Centre, went through basic employment details with Mr Maynard and ensured that superannuation, taxation and personal details forms were completed.

Mr Christopher Mansell also claims that Mr Maynard asked for a copy of staff conditions and that this document was given to him. The document (Exhibit A4) deals with working hours, leave, travel expenses, use of cars, probationary period, termination of employment and grievance procedures. The document is endorsed as follows:

“Revised August 1993 - ratified by State Committee 21 August 1993”

The second paragraph of the document reads as follows:

“Probationary Period

Workers will undergo a probationary period for the first three months of employment. Permanent employment will be made subject to a satisfactory probationary report by the supervisor after three months. Staff appraisals will then be conducted annually and increments may be made subject to satisfactory performance.”

Mr Maynard denies that he asked for or received a copy of this document during his interview with Mr Christopher Mansell. He states that he did not see the document until after the termination of his employment.

Mr Christopher Mansell stated that Ms Sculthorpe directed him to place Mr Maynard on the normal probationary period. He did not provide the applicant with the usual letter of employment because Ms Sculthorpe asked him to wait as she was expecting the applicant to provide her with a curriculum vitae so that she could finalise the appropriate pay rate. In the meantime Mr Maynard was paid at the base rate applicable for a Legal Aid Field Officer. The personnel record (Exhibit R10) states that Mr Maynard was employed as a full time Field officer - Legal with a 3 month probationary period ending 1 May 1995.

MUTTON BIRDING

On 28 February 1995 Mr Michael Mansell approved of Mr Maynard having five days paid cultural leave and 36 days leave without pay in order that he might go mutton birding on Big Dog Island during the mutton bird season. It appears that four or five employees of the Centre, including Michael Mansell and Mr Maynard, were given leave of one kind or another to participate in the mutton bird season. While there is some minor discrepancy in the applicant’s personnel record produced from the computer on 20 July 1995 (Exhibit R10) it is clear that the applicant was absent from duty on leave between 24 March and 5 May 1995 and resumed duty in Hobart on 8 May. The application for leave form made and approved on 28 February confirms this (Exhibit A6).

TRANSFER TO BURNIE

Soon after returning to work on 8 May the applicant sought and was granted approval to act as a Legal Aid Field Officer in Burnie from 29 May to 19 June while the incumbent was on leave. The applicant wanted to work in Burnie because his parents were both in ill-health and he wanted the opportunity to be with and near them.  Several respondent witnesses conceded that Mr and Mrs Maynard senior were respected elders in the aboriginal community and that both were in very poor health and that Mr Maynard senior was seriously ill.

RUTHERGLEN REVISITED

On 23 May Ms Sculthorpe issued a memo encouraging attendance by staff at a seminar scheduled for Sunday 18 June to Tuesday 20 June.

The memo (Exhibit R1) reads as follows:

“RUTHERGLEN REVISITED
Seminar & workshops for staff & committee
Sun 18 - Tues 20 June 1995

Arrive in time for Sunday lunch, leave after Tuesday lunch.

As many staff as possible should attend.

Please make work & family arrangements now to make the most of the ‘long notice’.

Full agenda available later - so let me know if you want to add something.

Heather Sculthorpe
23/5/95”

The memo was widely circulated and the applicant admits he saw a copy on a notice board in the TAC office in Burnie.

The Court notes that while the memo contains the statement “as many staff as possible should attend”, there is no indication that attendance was considered compulsory. However, Ms Sculthorpe seems to have taken the view that about 70 of a staff of about 100 permanent, temporary and casual employees should attend and that, for these staff, attendance was indeed compulsory unless non-attendance was approved for some acceptable reason.

SELECTION FOR THE SEMINAR

The Court is not suggesting that Ms Sculthorpe was the sole arbiter of who should attend and be required to attend the seminar. The seminar was clearly supported by the TAC State Committee and by Michael Mansell and other senior staff. However, Ms Sculthorpe clearly took the lead role. She personally wrote out a list of 75 names (Exhibit R5) and directed her personal assistant, Ms Carla Jennings, to follow up these staff. Ms Jennings typed up the handwritten list (Exhibit R6).

The Court notes the evidence of Ms Sculthorpe that in late August the TAC had 102 permanent, temporary and casual employees and assumes the number was similar in June 1995. Ms Sculthorpe indicated that certain professional staff (e.g. doctors and nurses) were not required to attend nor were non-field staff such as cleaners but all staff with any field or general administrative role were expected to attend unless excused from this requirement.

Exhibit R6 contains handwritten endorsements which suggest that when Ms Jennings had completed her initial inquiries, 13 persons on the list of 75 were not going to attend the seminar, and the applicant’s name was among them, and that 56 were attending and 6 staff on the list needed to be followed up further because neither attendance nor non-attendance had been confirmed.

Some on the list of 6 “doubtful starters” attended. Others were excused. Some on the list of 13 who had indicated non-attendance were excused. A few on that list later decided they would attend and did. Five persons on the list of 13, and the applicant was one, received memos from Ms Sculthorpe dated 15 June. At least four of the five memos, including the memo to the applicant, were personally signed by Ms Sculthorpe. (See Exhibit R8).

THE WRITTEN DIRECTION

Each memo read as follows:

“To:  Addressee (Maynard, Burns, Burgess, Smith and Mansell)

From:        Administrator

Date:         15th June 1995

Subject:    Your work commitments

You are one of 5 staff statewide who have expressed their intention not to attend the Rutherglen session from 18th to 20th June without a reasonable explanation.

I now formally advise you that your attendance is required at the seminar from Sunday until Tuesday as previously advised. We consider it part of your work commitment to this organisation.

Please give careful consideration to your future with this organisation when deciding whether or not you will now attend as we have required you to do.

We anticipate seeing you at Rutherglen for lunch on Sunday.”

One of the five, Mrs Burns, responded in writing and was excused because of a need to care for a pregnant daughter-in-law and a distressed and misbehaving grandson. Two, Ms Smith and Mrs Margaret Mansell, attended although Mrs Mansell had been excused. Two, the applicant and Mr Brett Burgess, did not attend. They were not excused. Soon after the seminar the employment of both was terminated.

DISCUSSION OF THE SEMINAR

Mr Maynard gave evidence that on 14 June Theresa Sainty, the receptionist at the legal service office in Burnie (the top office) told him that he was down on a list to attend the seminar. He states that he informed Ms Sainty that this would be almost impossible because of the condition of his parents. He states that at about 1:00 pm on Thursday 15 June Ms Jennings telephoned him to ascertain why he was not going to attend the seminar and he says he told her the same thing. He claims that he advised Ms Sainty that as the seminar was not compulsory Michael Mansell would understand his reasons. He also denied that he was told that he was required to attend the seminar by Mr Michael Mansell and this is consistent with the evidence of Mr Mansell although the latter claims he told someone else to tell Mr Maynard he was required to attend the seminar. Mr Maynard did concede that Ms Jennings indicated that all staff were encouraged to attend and that he was told it was necessary for him to be there. He concedes that he received the memo (Exhibit R8) also (Exhibit A3) on 16 June but that he did not think it was necessary to do anything about it because of the explanation he had already given to Ms Sainty and Ms Jennings.

He states that on 21 June he met Michael Mansell in his office and the gist of the conversation was that Mansell was going to recommend the termination of his employment because he had failed to follow the directive to attend the seminar. Mr Maynard’s evidence included the following:

“We had some words behind closed doors...I just kept being told that I had failed to follow a directive...I went about my work...I was not really happy...I went out and saw the union and returned to the office on several occasions...I met Heather (Skulthorpe) about 2:30 pm...I was not real happy...I said ‘Are you saying my services are no longer required?’ and she answered ‘yes’.

THE TERMINATION

Mr Maynard conceded that Ms Sculthorpe asked him whether he wished to talk about why he should not be terminated. His evidence is unclear as to his exact response but he seemed to imply that he saw no purpose in discussing the matter in any detail with Ms Sculthorpe because he had concluded that the decision to end his employment had already been taken. He also claims that Ms Sculthorpe did not give any other reasons for the termination other than the failure to comply with the directive to attend the Rutherglen seminar.

Michael Mansell gave evidence that it was his understanding that all staff were required to attend the Rutherglen seminar unless excused by the administrator or a program manager. He claimed that he made it clear to all legal services staff that they were required to attend but he admitted that he did not speak to the applicant at all about the Rutherglen seminar. He stated that a few days before the seminar he was told that the applicant did not intend to attend the seminar and he gave a direction that the applicant was to be told that he had to attend. Mr Mansell is vague about this. He does not recall the person to whom he gave the direction. He thinks it was someone involved in administration and someone involved in sending out the material for the conference.

Mr Mansell agrees that he asked the applicant to come up to his office on 21 June and when he asked Mr Maynard why he had not attended the seminar Mr Maynard became “a bit agitated”. Mr Mansell claims the conversation was no more than five minutes in duration and that he had a copy of the memo from Ms Sculthorpe (Exhibits A3, R8) on his desk and that he was trying to extract a reason from the applicant as to why he had not attended the seminar. He claims that Mr Maynard’s mind seemed focussed on the memo from Ms Sculthorpe and that he expressed the view that it constituted a threat. Mr Mansell responded to the effect that that was right. He indicated in his evidence that he told Mr Maynard that this “was pretty much what I directed - attend or else.”

Mr Mansell also stated that he said that if Mr Maynard did not have a valid reason he (Mansell) would speak to the Administrator (Sculthorpe). He concedes that Mr Maynard referred to his father being very sick and that he was unable to give his parents adequate support and at the same time attend the seminar.

Mr Mansell then seems to have said words to the following effect:

“If it is that important what are you doing here now” (i.e. at work in Hobart)

He stated that the applicant replied that he had to come back to Hobart to attend at work. Mr Mansell seems to have at least implied that it was hypocritical of the applicant to claim that the ill-health of both of his parents justified non-attendance at the Rutherglen seminar when he was able to return to work in Hobart. He also indicated that he advised the applicant that he was going to recommend that he be dismissed and he asked the applicant whether he had any reason why such a recommendation should not be made. He claims that the applicant swore at him and indicated that he did not care what he did. Mr Mansell also claims that he pointed out to Mr Maynard that he had no authority to dismiss him but that he would recommend his dismissal and would speak to Ms Sculthorpe about it. He claims that the applicant expressed the view that he was not the least bit interested and walked out of the room.

Ms Sculthorpe gave a more detailed but somewhat discursive and imprecise version of her termination meeting with Mr Maynard on 21 June. She states that Michael Mansell spoke to her about his meeting with the applicant earlier that day and that he advised her that the applicant had been abusive and had declined to give a reason as to why he had failed to comply with the directive to attend the seminar. The Court notes at this stage that there is evidence from the applicant that he did tell Mr Michael Mansell his reasons for not going to the seminar in the conversation “behind closed doors” and that during that conversation the applicant complained about the failure “to show respect to my parents”.

Ms Sculthorpe states that after Mr Mansell made the oral recommendation to her to terminate the employment of the applicant she saw the applicant in his office.

The following is a summary of part of her evidence:

“I think I sought Dougie (Mr Maynard) out. Michael Mansell, as I recall, suggested I should talk to Dougie to see whether he had any reason why he should not be put off.

I told him (the applicant) of the recommendation that Michael Mansell had made. I said that this is an opportunity again to put reasons.

I said ‘do you want to put reasons why you did not go to Rutherglen and why you should not be put off?’

Initially he did not want to talk. He wanted to put something in writing. He said ‘I want to write it down.’

I said ‘there is no point in writing it down I want to talk now. You are on the verge of being sacked. If you do not talk now it is too late.’

He eventually agreed to talk to me. It was a general discussion. I asked him ‘what are your concerns?’ He said ‘the place is fucked’. This was the only issue he raised that the organisation was stuffed and that it was not popular with the community.

Ms Sculthorpe also gave evidence that the applicant was complaining about the way in which TAC staff were required to assess aboriginality to establish entitlements to various services.

In reply to a question from the Court as to her response to Mr Maynard’s claim that the approach being taken to his failure to attend the seminar was wrong and unfair because he wanted to look after his sick father, Ms Sculthorpe indicated that she explained her point of view to the applicant. The Court was unable to ascertain precisely what was her point of view. The general tenor of her evidence seemed to suggest that she took the view that, while Mr Maynard senior had been very sick for a long time and was in a wheelchair, his elderly wife (the applicant’s mother) had been carrying the bulk of the responsibility for caring for her sick husband.

The Court has concluded that both Ms Sculthorpe and Mr Michael Mansell simply did not accept that the generally expressed desire to be with and care for his aged and frail parents was an adequate justification for Mr Maynard declining to comply with the somewhat late directive of 15 June to attend the seminar. Both readily conceded that Mr and Mrs Maynard senior were in very poor health but, to the extent that the Court can discern the attitude of Ms Sculthorpe and Mr Michael Mansell, it seems to have been that the ongoing and long standing frailty and ill-health of the applicant’s parents, and his attitude towards it, as expressed by telephone to Ms Sainty and Ms Jennings, was an inadequate ground for refusal to comply with the written direction of 15 June.

Ms Sculthorpe was also asked by the Court why she did not allow Mr Maynard the opportunity he requested to make a response in writing. Again, the answer given was unclear. She implied that she knew about his father and that the issue had been discussed and that she expected an immediate explanation and that she did not “have all the time in the world”.

THE LETTER OF TERMINATION AND REASONS FOR TERMINATION

Ms Sculthorpe estimates the termination meeting as taking something in the order of 30 minutes. At the end of the meeting she indicated to Mr Maynard that he was dismissed and that he should wait for a formal letter. Her evidence was that she typed the letter herself. The letter is Exhibit R4 and reads as follows:

“21st June 1995
Mr Douglas Maynard
c/- TAC
HOBART  7000

Dear Douglas

I refer to my memo to you of last Thursday 15th June about the need for your attendance at Rutherglen and to your discussions with the Legal Program Manager today in which, as I understand it, you declined the invitation to put forward any reason why you should not have your services terminated.

I now formally advise you that your services are no longer required as from today. This action is made necessary by your refusal to comply with directions and your continuing inability to work as part of the TAC team as discussed with you today.

You will be paid 2 weeks pay in lieu of notice as well as your other entitlements which will be advised to you by the finance section.

We regret the arrangement did not work out.

Yours sincerely

Heather Sculthorpe
Administrator”

In his final submission, Counsel for the respondent conceded that there was only one direction with which the applicant had not complied and that was the direction to attend the seminar in Rutherglen.

Counsel for the respondent also acknowledged that the reference to “continuing inability to work as part of the TAC team” was a reference to certain incidents in which the applicant was alleged to have criticised the TAC in front of members of staff and members of the aboriginal community and in front of people who were not members of the aboriginal community.

Much time at the hearing was devoted to evidence about such incidents although Mr Michael Mansell was quite adamant that his recommendation for termination of employment was based solely and completely on the applicant’s failure to comply with the written direction to attend the seminar.

However, Ms Sculthorpe stated that her decision to implement the termination was based both on the refusal to attend the seminar and these particular incidents which she categorised as evidence of Mr Maynard’s “continuing inability to work as part of the TAC team”.

Theresa Sainty the receptionist at Burnie, Annette Peardon the office manager in Burnie and Trudy Maluga, a marketing trainee now in Hobart but earlier in Burnie gave evidence of the alleged incidents in which Mr Maynard was stated to have criticised the TAC.

It is clear that the reported incidents were not of great concern to Mr Michael Mansell although it is fair to say that Mr Mansell might have been disturbed by what Counsel for the respondent has described as “the relentlessly negative tone of the applicant’s phone calls from Burnie”. This is a reference to telephone calls between the applicant and Mr Michael Mansell which, according to Mansell, took place on a reasonably frequent basis while the applicant was working in Burnie and which were inevitably critical of the TAC. It should be noted that the applicant denies that most of these telephone calls took place or that he was critical of the TAC in the telephone calls which he made. In any event, it is quite clear that Mr Michael Mansell was prepared to view the reports of criticism of the TAC as “mere rumour until someone was prepared to come forward”.

On the other hand, Counsel for the respondent submits that Ms Sculthorpe was entitled to take into account what he described as “credible reports of actions on the part of the applicant which were disruptive to the operations of the TAC and its links with the community”.

Having observed the demeanour and attitude of the applicant and having considered his evidence and the evidence of Ms Sainty, Ms Peardon and Ms Maluga I am satisfied that the applicant was openly critical of TAC on a number of occasions including the incident of public criticism in the court yard at the Adult Education Centre in Burnie. This incident and other incidents of public criticism, particularly criticism in the presence of members of the aboriginal community and non-aboriginal members of the broader community, would have been inevitably disruptive of harmonious and co-operative teamwork in an organisation like TAC.

If, after appropriate inquiry, the Administrator or a Program Manager had been satisfied that the applicant was making such criticisms and, if the applicant had been counselled or warned, and if he had then persisted with such criticisms, that would without doubt constitute a valid reason for termination. However, as Mr Michael Mansell pointed out, quite reasonably, allegations of this type need to be specified and indeed put to the subject of the complaints.

As far as Mr Mansell was concerned no specific complaints were put to him. It would appear that more detail was put to Ms Sculthorpe although sometimes it was put second or third hand rather than from the complainant. However, there is no evidence that these complaints were ever put directly to the applicant by the Administrator until the termination meeting. Furthermore, I am unsatisfied that the complaints were put in a direct fashion even then and I am quite certain that the applicant was never given a reasonable opportunity to respond to these complaints even if one or more of them was put to him with any specificity at the termination meeting. Indeed, I doubt that the complaints were affectively investigated until the respondent began to prepare for this hearing.

INABILITY TO WORK AS PART OF A TEAM

As the act of termination by the Administrator was based at least in part on the complaints, and on the subsequent conclusion that the applicant was unable “to work as part of the TAC team”, the termination, without counselling or warning or adequate opportunity for response, was harsh, unjust and unreasonable on that ground alone without consideration of the primary ground for termination which was the failure to comply with the written directive of 15 June.

The applicant admitted that, at some stage during his employment with the respondent, Ms Sculthorpe raised with him his influence on an employee, Elliott Maynard. There is also the possibility, denied by the applicant, that Ms Sculthorpe had on a previous occasion raised with the applicant his criticism of another employee, Cheryl Mundy. The discussion about Elliott Maynard and the discussion about Cheryl Mundy, if it occurred, do not constitute an opportunity provided to the applicant to respond to allegations of an inability or unwillingness to work in a team.

Procedural fairness and natural justice demanded that any incidents which influenced the conclusion that the applicant be dismissed should have been put clearly to him before termination and he should have been given a reasonable opportunity to respond.

JURISDICTION - PROBATION

There is a preliminary question on jurisdiction although the Court is in some doubt that this remained on foot after the receipt of the respondent’s final written submissions.

In opening, Counsel for the respondent submitted that the applicant was serving a period of probation, determined in advance and of reasonable duration, and was thus excluded from the provisions of Part VIA Division 3 of the Industrial Relations Act 1988 pursuant to S170CC, Regulation 30B(1)(c) and Article 2 of the Termination of Employment Convention. However, in his final submission Counsel conceded that “there is no safe inference that can be drawn from the evidence that at the time of his employment, the applicant was on probation or qualifying period, as required by the act and regulations when he was dismissed. There was not a definite period of duration determined in advance.”

This statement seems to constitute an abandonment of a claim of exclusion from jurisdiction pursuant to S170CC. However, in a supplementary submission which dealt primarily with the State Community Services Award Counsel, concluded as follows:

“Probation is not inconsistent with provisions as to permanent employment in Clause 24(a)(ii). The parties were free to contract as to this so long as the provisions of a contract were not inconsistent with the award.”

The Court is of the view that the initial concession was appropriate. There is some doubt as to whether the applicant was put on probation but the better view seems to be that he was placed on probation for three months from 1 February 1995 to 1 May 1995. However, there is no evidence that the period of probation was determined in advance or that the applicant was advised of the probation until after he began his employment. The applicant himself denies that he was ever advised of the period of probation but the Court is prepared to assume that he was given some advice of the period of probation by Mr Christopher Mansell in early February.

The Court finds a period of three months reasonable in the circumstances but the probation had expired on 1 May. Initially, the respondent sought to argue that the period of probation had been extended by an “agreement” that an assessment of his suitability for the position of Legal Aid Field Officer would be made when he returned from Bird Dog Island. No assessment was made of the applicant’s suitability after he returned to work on 8 May. Furthermore, other than vague expressions of intention to assess the suitability of the applicant at some time in the future, there is no evidence of an agreement between the applicant and the respondent for an assessment of suitability some time after 8 May.

Counsel for the respondent sought to rely on R V Gorman and Others; ex parte Australian Broadcasting Commission (1979) 24 ALR 609 and argued that the period of probation had been extended because of the 41 days leave while the applicant was mutton birding. No decision was ever made to extend the probation and Mr Maynard was never told of any proposal to extend it. In Gorman at 612 it is clear that the General Manager directed that the probationary period be extended. What is more, in Gorman the respondent was informed orally and in writing of the extension. In the case of Mr Maynard the period of probation was not determined in advance and in any event the period had expired prior to termination. The Court has jurisdiction. Employment was not excluded from the provisions of Part VI Division 3 of the Industrial Relations Act 1988.

NON COMPLIANCE WITH WRITTEN DIRECTION

While it is unnecessary to deal with the primary ground for termination, the failure to comply with the written directive of 15 June, the Court finds that while non-compliance with a clear written direction of the employer will very often constitute a valid reason for termination, there is real doubt as to whether it was a valid reason in the circumstances of this case. In any event, a termination based on non-compliance with the written direction of 15 June was, in the circumstances, harsh, unjust and unreasonable.

Counsel for the respondent submitted that failure to obey a direction, even on one occasion, may be a valid reason for dismissal under S170DE(1). I agree.

Counsel sought to rely on Gibson v Bosmac (1995) 130 ALR 245 at 254. Counsel categorised this as a case where the Chief Justice held that:

“a dismissal for (refusing on) a single instance to work overtime was a valid reason for dismissal on operational grounds”.

First of all, I am not sure that the circumstances in Gibson amounted to a dismissal in the terms categorised but that does not matter. The Court can readily envisage that there would be circumstances in which a refusal on a single occasion to comply with a direction to work overtime would be a valid reason for dismissal on operational grounds.

Secondly, and more importantly, the circumstances in Gibson are vastly different to those in this case. In Gibson the requirement to work overtime was taken up with the employee on a number of occasions and was clearly spelt out to the employee. In this case, the requirement to attend the seminar was given to the applicant, a few short days before the seminar. The earlier notification of 23 May (Exhibits A5 and R1) was not a direction to attend. Indeed, it was not a direction at all. It was not specifically addressed to anyone. It was a notification of a seminar - no more and no less.

Neither Ms Sculthorpe nor Mr Michael Mansell discussed the written direction of 15 June with the applicant and, prior to the direction being made, the applicant had provided to Ms Sainty and Ms Jennings at least one ground for non-attendance. This ground, on its face, seemed reasonable and warranted careful consideration from the employer. Admittedly, the applicant, on his own evidence chose in effect to ignore the written direction. He made no attempt to contact either his Program Manager or the Administrator after he received the written direction. Be that as it may, the Court is not satisfied that the applicant’s plea of unavailability, because of his sick parents, was given adequate and fair consideration.

However, it is not for the Court to determine what is or is not a reasonable ground for failing to comply with a written direction of the employer. That is a task for the employer. Despite considerable doubts, the Court is prepared to accept that Mr Maynard’s non-compliance with the direction to attend the seminar of itself could constitute a valid reason for termination but, if this be so, a termination based wholly or partly on this ground was harsh, unjust and unreasonable.

The applicant was given little opportunity to argue that he had a reasonable ground for failing to comply with the written direction. The applicant was given little opportunity to present an acceptable reason for not attending the seminar. The applicant had consulted his union but his plea for an opportunity “to put something in writing” was refused. It is not clear why the Administrator would not grant the applicant more time. In the circumstance, the refusal to give the applicant more time to justify his position was unreasonable.

REMEDY - REINSTATEMENT

The applicant’s union representative, Mr Paterson seeks reinstatement.

He states:

“It is acknowledged that such a remedy (reinstatement) presents some difficulties for both parties, but...these are not insurmountable and do not make reinstatement impracticable.”

In a special plea for reinstatement Mr Paterson put forward the following as grounds for reinstatement and presumably in support of an argument of the practicality of reinstatement.

1. concerns about the applicant’s attitude to the TAC were known prior to his employment

1. there were no issues or concerns about the applicant’s initial performance in Hobart before he went on leave

1. the incidents involving Pearson, Sainty and Maluga occurred while the applicant was residing with his parents and experiencing considerable stress because of his father’s deteriorating health

1. the applicant’s criticism of certain issues like determination of aboriginality were legitimate matters of concern in the aboriginal community and other employees in TAC can take responsibility for these matters.

The Court does not accept that the applicant’s reasonable work performance in Hobart or the above defences of his criticism of TAC lead to the conclusion that reinstatement is practicable.

The fact that there is no specific vacancy for a Legal Aid Field Officer, or that the applicant was employed in addition to the normal establishment of field officers, does not constitute a ground for concluding that reinstatement is impracticable (see Johns and Gunns Limited (unreported) IRCA, Northrop J (18 May 1995) TI148R of 1994 and Nicolson and Heaven and Earth Gallery, (1994) 1 IRCR 199).

However, the applicant’s general attitude to the TAC, as exhibited in the witness box, and his criticism of the TAC in the presence of staff, the aboriginal community and the general community, most definitely suggest reinstatement is impracticable and I am satisfied this is so. I rely on the test expounded by the Chief Justice in Nicolson at 210 and I am convinced that reinstatement would impose unacceptable problems and would seriously affect harmony within the employer’s business.

COMPENSATION

Mr Paterson suggests that if reinstatement is found impracticable the applicant should receive the maximum compensation being $12,159, the equivalent of 26 weeks. Again the Court does not agree.

While the applicant was employed full-time and while there was no specific duration determined by contract, there is considerable evidence that the employment was on a trial basis. The Court has concluded that the applicant’s attitude to the Tasmanian Aboriginal Centre and his criticism of TAC operations would have led to a reasonably quick parting of the ways. Given his commitment to a mutton bird business and his general desire to be close to his mother in Burnie, the applicant may have left the respondent’s employment of his own volition. More importantly, if he had remained, the Court is of the view that the respondent would have terminated his employment in any event because of his attitude and the effect that would have had on co-operative working relationships among TAC staff.

The applicant was well treated during his short employment and readily given 41 days leave, including five days paid leave.

In my view, the applicant’s maximum likely period of continued employment from the date of his termination would have been in the order of three months. I have noted that the applicant was unemployed before joining the respondent and has remained unemployed since termination. I am not satisfied that he has sought to mitigate his loss but I have not taken that into account.

ORDER

Compensation in the order of 12 weeks wages is appropriate. Accordingly I order that the respondent pay compensation in the sum of $5,600 within 21 days.  

I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.

Associate  :          
Date  :          6 November 1995
Appearances:
Mr Ian Paterson of AMACSU for the applicant
Mr H Derkley instructed by the Aboriginal Legal Service for the respondent
Date of Hearing  :          4, 5 and 6 October 1995     

Judgment  :          6 November 1995