Downe v Barminco Pty Ltd

[1998] IRCA 27

INDUSTRIAL RELATIONS COURT OF AUSTRALIA

CATCHWORDS - UNLAWFUL DISMISSAL - whether VALID REASON connected with employee’s capacity or conduct - whether employee given opportunity to defend herself - remedy - whether reinstatement practicable - assessment of compensation.

Industrial Relations Act 1988 (now Workplace Relations Act 1996) ss 170DC, 170DE, 170EA, 170EE.

Wadey v Y.M.C.A. Canberra (unreported, IRCA No. 542 of 1996, Moore J, 12 November 1996).
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.
Cosco Holdings Pty Ltd v Thu Thi Van Do (1997) 150 ALR 127; 77 IR 94.
Qantas Airways Limited v Cornwall (unreported, Federal Court No. 865 of 1998, Full Court, 24 July 1998)

YVONNE DOROTHY DOWNE -v- BARMINCO PTY LTD

WI 1022 OF 1997

R.D. FARRELL JR

3 AUGUST 1998

PERTH

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WI 1022 of 1997

BETWEEN:	YVONNE DOROTHY DOWNE APPLICANT
AND:	BARMINCO PTY LTD RESPONDENT
JUDGE(S):		R.D. FARRELL JR
DATE OF ORDER:		3 AUGUST 1998
WHERE MADE:		PERTH

THE COURT ORDERS THAT:

1. The termination of the applicant’s employment by the respondent contravened Section 170DC of the Workplace Relations Act 1996.

1. Within 21 days of the date of making these orders, the respondent pay to the applicant compensation in the sum of $5,950.00 less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid.

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
WESTERN AUSTRALIA DISTRICT REGISTRY	WI 1022 of 1997

BETWEEN:	YVONNE DOROTHY DOWNE APPLICANT
AND:	BARMINCO PTY LTD RESPONDENT

JUDGE(S):	R.D. FARRELL JR
DATE:	3 AUGUST 1998
PLACE:	PERTH

REASONS FOR DECISION

This is an application under Section 170EA of the then Industrial Relations Act 1988, now known as the Workplace Relations Act 1996 (“the Act”). The application is for reinstatement or, in the alternative, compensation, arising from the alleged unlawful termination of the employment of the applicant, Mrs Yvonne Downe (“Mrs Downe”) by the respondent, Barminco Pty Ltd (“Barminco”).

Barminco Pty Ltd is a company which supplies contract drilling and mining services to the Western Australian mining industry, particularly to the Eastern Goldfields region.

Mrs Downe was employed by Barminco in March 1995 as an Occupational Health and Safety Officer, and was dismissed in November 1996.

Barminco contends that it terminated Mrs Downe’s employment for a valid reason connected with her conduct. While Barminco relies primarily on a final incident of alleged misconduct related to an unauthorised stay at a mining camp (“the final incident”), it contends that Mrs Downe’s conduct and performance had been unsatisfactory for some time. Barminco contends that this final incident was a valid reason for Mrs Downe’s dismissal, when viewed in the context of Mrs Downe’s past performance.

Mrs Downe disputes Barminco’s contentions as to her past performance, and disputes that the final incident relied upon by Barminco was conduct capable of giving rise to a valid reason for dismissal. She contends, therefore, that the termination of her employment was in breach of Section 170DE(1) of the Act.

Mrs Downe further contends that she was not given the opportunity to defend herself against the allegations made about her conduct or performance, and that Barminco therefore also failed to comply with Section 170DC of the Act.

While Mrs Downe’s particulars of claim included a contention that the termination amounted to discrimination on the basis of her gender, that contention wasn’t pursued at the hearing.

Barminco contends that reinstatement, the primary remedy sought by Mrs Downe, is impracticable.

Employment History

Mrs Downe was employed by Barminco on 22 March 1995 as an Occupational Health and Safety Officer, having previously worked in that capacity on a consultancy basis for Barminco, and for several other mining companies in the goldfields. The employment was made permanent in May 1996.

The position of full-time Occupational Health and Safety Officer was newly created. Barminco had experienced significant growth in its operations in recent times. The growth in its workforce, and the increasing emphasis placed on occupational health and safety by the clients to whom it provided drilling and mining services, made the employment of a full-time Occupational Health and Safety Officer necessary. The workforce continued to grow during Ms Downe’s period with the company, nearly doubling from about 95 employees in March-April 1995 to over 180 in September 1996.

Barminco’s employees were located at a number of different mines with whom Barminco had contracts. During Mrs Downe’s employment, Barminco had contracts with mines situated at Plutonic (near Meekatharra), Wiluna and Davyhurst. Barminco had a site manager at each of these mines.

Barminco’s Managing Director, Mr Peter Bartlett, was based in Barminco’s Kalgoorlie office. The company divided the mines with which it had contracts or with which it was seeking contracts into two areas, North and South, each of which had an Area Manager. The Northern Area Manager was Mr Ron (“Rock”) Manning and the Southern Area Manager was Mr Gary Mayes. Site Managers reported to their Area Manager. Mr Bartlett and the Area Managers were often out of the office, moving from site to site. However the Kalgoorlie office had an Office Manager, Mr Des Wearing, who remained full-time in the office. Barminco also had a Perth office, but it was at that time chiefly a service centre, handling shared administrative functions such as the payroll. Mr Brian Glasson, the Paymaster, was in the Perth office.

Mrs Downe was based at the Barminco office in Kalgoorlie, and was required to service Barminco’s three contracted mine sites. Site visits were necessary from time to time. Davyhurst, which is 140 kilometres north-west of Kalgoorlie, could be readily reached by car. Wiluna and Plutonic, being 560 and 900 kilometres from Kalgoorlie respectively, could be reached by car or by charter-aircraft.

Mrs Downe was considered well-qualified for the position. Among other things, she was a registered nurse, and had training and experience as a occupational health and safety consultant.

Mrs Downe’s role, based on her job description and other evidence included:

• Policy Development

  à   Assisting with the formulation and ongoing maintenance of all policies regarding the occupational health and safety of the workforce - this was expected to take the form of a safety manual

  à   Formulating pre-employment medical procedures

  à   Advising on personal protective equipment

• Policy Implementation

  à   Instigation of pre-employment medical procedures

  à   Maintaining first aid facilities on site

  à   Following up accident reports

  à   conducting safety audits

• Client Liaison

  à   Liaising with clients to ensure their safety requirements are met by Barminco’s employees

  à   Assisting in the preparation of tenders

• Employee Liaison and Training

  à   Conducting inductions of employees

  à   Endorsing Barminco’s safety policy with all employees of the Company

  à   Preparing and conducting site safety meetings as required

  à   Preparing and conducting training in occupational health and safety as required

• Emergency Response Capability - Mrs Downe was, at least after 11 October 1996, “on call” in case of a medical emergency at the Davyhurst mine site, to provide first aid in her capacity as a registered nurse.

Mrs Downe regarded as her over-riding objective the enhancement of employees’ safety and the prevention of injury at Barminco’s sites. The duties listed above were, in her view, merely means to that end.

Importantly, Mrs Downe’s contract of employment stated that, as Occupational Health and Safety Officer, she was “responsible to” the Office Manager, Mr Des Wearing. Mr Bartlett adds that, when she was on site, she was responsible to the relevant Site Manager.

Mrs Downe says that it was decided during a meeting about the restructuring of the company in November 1995 that she would report to the Managing Director, Mr Bartlett, about matters of policy and to the Office Manager, Mr Wearing, about budgetary issues. She says an organisational structure in those terms was written up onto a white board. Mr Bartlett denies this was ever the formal position, but I accept that as a matter of practice Mrs Downe tended to raise issues where possible directly with Mr Bartlett, whatever the formal structure.

Past Issues Relating to Conduct

From at least July 1996, concerns were being expressed to Mrs Downe by other managers within Barminco about her conduct and performance as an employee.

Mr Wearing, the office manager to whom she reported, issued a memorandum to Mrs Downe dated 22 July 1996. The memorandum complained about her personal and professional conduct, reminded her of the original terms of her employment, and insisted that she adhere to them. It went on to say that if she was unable to carry out her duties as required, then she might wish to seek alternative employment.

Then, in August 1996, it was proposed at a meeting between Mr Bartlett, Mr Wearing, Mr Glasson, Mr Manning and Mrs Downe that Mrs Downe revert to being engaged as a consultant rather than a full-time employee. Under this proposal she would work as required and only be paid for the hours she worked. Mrs Downe had no difficulties with the proposition in principle, and some steps were taken to implement it. Mrs Downe was paid out her accrued leave and other entitlements as at the end of August 1996. Mr Bartlett wrote to Mrs Downe on 12 September 1996 to advise her that her employment had ceased on 31 August 1996 and to provide details of the new “as required” consultancy arrangement. The letter nominated an hourly fee of $45.00. However, no rate had been agreed and soon after, Mrs Downe rendered an invoice to Barminco for time worked by her during September 1996 at her previous consultancy rate of $75.00 per hour worked. Mr Bartlett did not accept this and the invoices were never paid. Eventually Mr Richard Webb, Barminco’s newly appointed Finance Director who was based in the Perth office, resolved the impasse by paying Mrs Downe for that period on the basis that she had remained employed. Thus, the consultancy proposal lapsed following the failure to agree on an appropriate hourly rate of pay. It was not contended at the hearing that there had been any break in Mrs Downe’s employment.

After a further discussion, another consultancy proposal was put to Mrs Downe by Mr Webb in a letter dated 11 October 1996. Under this proposal, Mrs Downe would, for a weekly retainer, assume the role of First Aid Officer for the Davyhurst operations, providing a 24 hour call-out service. Any other consulting work would be done on request for $40 per hour, subject to Mr Wearing’s authorisation. Mrs Downe never formally responded to this proposal, and voiced some misgivings about it to Mr Webb. 

Mr Wearing then wrote to Mrs Downe again on 23 October 1996:

• referring to her conditions of employment setting out her hours of duty and the requirement that she report to him;

• requiring that requests for site visits be directed through him;

• requiring that she attend the Kalgoorlie office for a minimum 40 hours per week and regularly complete a fortnightly timesheet;

• observing that her attitude to direction by him had not changed since his earlier warning in July; and

• recommending that she consider her position and advise whether she wished to continue her employment.

In late October 1996, Mrs Downe had a further meeting in Kalgoorlie with Mr Richard Webb, Mr Manning and Mr Mayes. Mrs Downe’s apparent inability to work with Mr Wearing was discussed, among other things. She was told that, if she chose to remain as an employee rather than resign and accept work as a consultant, then she had the option of either resolving her difficulties and functioning effectively within the Kalgoorlie office’s management structures or of facing the termination of her employment.

Mrs Downe has led evidence about these developments from her perspective, but on any view they indicate that there was dissatisfaction on the part of Mr Wearing and the other senior management of Barminco about the manner in which Mrs Bartlett was functioning as an employed Occupational Health and Safety Officer. Mrs Downe’s evidence indicates that she too was dissatisfied with the situation, for reasons she attributes to Barminco.

There was a great deal of evidence about these events prior to the “final incident”. I do not propose to detail that evidence, nor to recount the many specific incidents about which evidence was given. However, a number of themes arose from the evidence and I propose to identify those issues, and my findings on them.

Mrs Downe was critical of deficiencies in Barminco’s management systems. Barminco’s operations had grown rapidly, and I accept that the informal arrangements which had been adequate to manage a smaller company remained in place for some time after they had ceased to be adequate.

Thus, Mrs Downe found that the organisational structure and lines of authority within the company were, in practice, fluid and unclear. For example, I note in passing that Mr Bartlett and Mr Mayes’ evidence was in dispute as to whether Mr Mayes held the title of Southern Area Manager. Mrs Downe also found that many managers preferred oral dealings to the use of paper. She was discouraged by some managers from providing reports in a written form, and had difficulties obtaining the resources to prepare such reports. She referred to the difficulty in getting things typed.

However, while acknowledging Mrs Downe’s criticisms and difficulties, I have come to the conclusion that in fact Mrs Downe preferred to work informally. Faced with a lack of systems throughout the company, she took few steps to put systems in place in her own area of responsibility. Faced with a formal chain of responsibility to Mr Wearing, which she considered unsatisfactory, she took advantage of the readiness of other senior managers, such as Mr Bartlett, to deal with her if she went to them directly.

It is interesting, for example, that Mrs Downe’s response to Mr Wearing’s first warning letter of 22 July 1996 was to state to Mr Bartlett that informal or verbal communications with Mr Wearing would stop, so that all communications and authorisations would be in written form. There was no evidence, however, that this threat was ever implemented, though it does seem that for a time before the late October meeting with Mr Webb, Mr Manning and Mr Mayes, there was no communication at all between Mr Wearing and Mrs Downe.

Ironically, it appears to have been Mr Wearing who was more concerned to put appropriate systems in place. This was perhaps to be expected, given his long work history with the Commonwealth Bank and then with Western Mining, both of whom were large organisations.

I accept that from time to time Mr Wearing requested regular written reports from Mrs Downe. He also, for example, sought a structured programme for the safety induction of new employees, which others could follow if Mrs Downe was not available to perform the induction. Mrs Downe resisted these requests. She raised some impediments in her evidence to compiling some of these reports, but does not seem to have persisted in any attempts to overcome them. Ultimately, a consultant, Mr Craig Power, was engaged to put in place those systems with regard to occupational health and safety. His engagement reinforces my acceptance of Mr Wearing’s evidence that such systems were first sought from Mrs Downe but not provided.

Mrs Downe’s failure to prioritise those requests should be seen in the context of her other responsibilities. In the reorganisation that has occurred since her dismissal, there are now many more personnel attending to the responsibilities which had been borne for some time by Mrs Downe as the sole Occupational Health and Safety Officer. It seems likely that there was more to be done than one person could deal with; Mrs Downe had at one point complained to Mr Bartlett that the numerous responsibilities ascribed to her in the tender documents were akin to a fairy tale.

In those circumstances, it is understandable that Mrs Downe would do first the things which seemed to her to be most important, and it would be the tasks she found less congenial which would tend to remain undone.

Mrs Downe’s preference appears to have been to get out and attend to what was happening at the sites from day to day on an ad hoc basis rather than to focus on methodically putting in place systems which might have made her work more effective in the longer term. I note while there may have been other factors involved, it was not until Mr Power had analysed Barminco’s safety needs and developed the appropriate systems that Barminco’s management took the decision to hire more safety personnel.

Mrs Downe seemed to feel a very personal responsibility for the health and safety of Barminco’s employees. She placed great weight on the level of training and experience she brought to her position, and regarded herself as almost uniquely qualified to make assessments on health and safety issues for the company. Thus, for example, she gave herself considerable latitude in the manner in which she conducted inductions, so that an experienced worker might be given a relatively short induction and an unexperienced worker a relatively long one. She resisted the idea that the induction should have a standard content and be in a standard format so that someone without her level of training could perform it.

Mrs Downe’s preferred method of recording her activities was to note them in her diary. It is apparent that an important part of the diary’s function was to provide her with the means of “covering her self” if something went wrong. This diary was thus used by her as a personal resource, rather than as a communication of her activities to other people within the company. Mrs Downe explained that she was always able to copy relevant pages of the diary if a record was needed of a particular visit or incident. However, this was rarely done, and certainly did not happen as a matter of course. The diary was not available at the hearing. It is not necessary for me to decide what became of it because I am prepared to accept that it was kept in the manner Mrs Downe contends.

Mrs Downe’s approach to the job might fairly be summarised as individualistic. From her evidence, I was left with the impression that she tended to see herself as a lone campaigner for health and safety within the company, rather than a team builder. Her response when confronted by inadequacies or by resistance was to criticise and demand, rather than to encourage and persuade.  

I accept that, given Mrs Downe’s strength of feeling about safety issues, her interactions with employees when she found their safety arrangements to be inadequate sometimes led to agitation within the workforce. It seems that these incidents tended to occur in Wiluna and Plutonic, where Mrs Downe had less ready access to the mine sites and felt as if she did not have a “grip” on the health and safety situation. Given her frustration’s, she would sometimes react to situations she perceived to be dangerous by criticising the employee’s involved and by purporting to unilaterally change systems of work, without reference to the site management. The reaction of site managers was thus to insist that they have greater control over Mrs Downe’s activities on site. I accept that Mrs Downe was in a difficult position, and that it was probably impossible for her to adequately fulfil her responsibilities with regard to the Plutonic and Wiluna mine sites. She would probably have been better served, however, by seeking to establish a co-operative relationship with the site managers, and to address the problems with them more systematically, rather than run the risk of them regarding her as a “loose cannon”, and seeking to restrict her activities.

In addition to these general difficulties with Mrs Downe’s employment, there was a particular problem in her relationship with Mr Wearing.

It seems clear  that Mr Wearing’s and Mrs Downe’s temperaments were not compatible. Mrs Downe resented being required to report to him and having to rely on his authorisation for access to the resources she considered necessary to do her job. The most common issue was access to the company cars or, on occasion, to charter flights, so that she could visit the mine sites.

Mrs Downe believed that Mr Wearing did not display appropriate respect for her qualifications or expertise. For example, I accept that it was his practice not to accept her assessments on health and safety matters unless they were confirmed by the relevant Site Manager. Mrs Downe found this both frustrating and demeaning. 

Given that Mrs Downe was over-stretched in her position, it is also understandable that she tended to focus her frustration’s concerning her lack of resources on Mr Wearing.

Additional irritants arose from some of Mr  Wearing’s “old fashioned” attitudes. He was disturbed, for example, when Mrs Downe used bad language in the office, while accepting that he would not have been so disturbed if the same language had been used by a man.

From Mr Wearing’s point of view, however, his wish to check on Mrs Downe’s demands and to make her more accountable for her time was justified.

As I have already noted, given Mrs Downe’s tendency to act unilaterally, it may sometimes have been prudent for Mr  Wearing to check that she had consulted with those managers who would be affected by her proposals. Certainly, the result of this practice was that Mrs Downe tended to go to the relevant managers and ask them to make any requests concerning safety matters directly to Mr Wearing, because he would make them confirm any request from her anyway.

More fundamentally, I formed the clear impression that Mr Wearing did not trust Mrs Downe, and suspected that she was using Barminco’s time to further her personal interests. This distrust was shared by Mr Bartlett. Mrs Downe held some mining tenements near the Davyhurst mine site. It was a condition of those tenements that a prescribed amount of work be done developing them each year. Mr Bartlett indicated in his evidence that he believed Mrs Downe was devoting some of her time to those tenements when she should have been pursuing Barminco’s interests. Mr Wearing was therefore constantly seeking to make Mrs Downe more accountable for her time. The proposed consultancy arrangements were also proposed for that purpose. Assuming for present purposes that Mrs Downe was not working her tenements on Barminco time, Barminco were nonetheless entitled to require her to be accountable for her time.

For her part, Mrs Downe’s reaction, given Mr Wearing’s apparent failure to grasp and accept what she needed to do to meet her responsibilities, was to seek more autonomy, so that she was less accountable to Mr Wearing. I am satisfied that she would, disregard from time to time, his directions and requests.

Mrs Downe disputes the relevance of the allegations raised by Barminco concerning her conduct and her performance.

Mrs Downe takes pride in the objective occupational health and safety outcomes achieved while she was with Barminco. For example, on 4 December 1996, shortly after her dismissal, Mr Bartlett had cause to congratulate the workforce on the attainment of 12 months without a lost time injury. While there was some of the evidence Ms Downe wished to lead concerning Barminco’s safety record was disputed, there was no dispute between the parties that Barminco’s safety record during Ms Downe’s employment was excellent. Ms Downe takes credit for those outcomes and argues that her performance cannot properly be criticised by Barminco when she was “getting results”.

Barminco submits, with some justification, that any number of factors contributed to its excellent occupational health and safety record at the relevant time. It submits that compliance by Mrs Downe with the requirements imposed by Barminco would have tended to enhance Barminco’s occupational health and safety outcomes, or at least would not have harmed it.

As Mrs Downe’s employer, Barminco was entitled to control the manner in which she did her job. She was required to comply with Barminco’s directions, provided they are lawful and reasonable. It is possible to imagine a scenario where a direction to an Occupational Health and Safety Officer would have such adverse consequences to the safety of employees that it would properly be considered unreasonable. I am satisfied, however, that Barminco’s directions and policies as they related to Mrs Downe’s employment were not unreasonable.

I am satisfied that the requirement that she answer to Mr Wearing with regard to her day to day activities was again confirmed to her at the final meeting in late October with Mr Webb, Mr Manning and Mr Mayes. While she was clearly unhappy with that requirement, I accept that it was in place at the time of the final incident.

The Final Incident

Mrs Downe had plans to go to Davyhurst mine site on the weekend commencing Saturday 23 November 1996 to access the private mining tenements nearby in which she had an interest. She had, since September, been in a relationship with Mr Ed Smylie who worked for Barminco as a shift boss at the Davyhurst mine site; Mrs Downe describes him as having been her defacto husband. Mr Smylie was living in the mining camp, which was controlled and supervised by Barminco’s client. Barminco’s client was variously referred to in the evidence as “Aberfoyle (Pty Ltd)”, “Bardock” or “Consolidated Gold NL”, so I will simply refer to it as “the Client”. Mrs Downe intended to stay with Mr Smylie over the weekend at the camp, so that she had convenient access to her tenements.

Mrs Downe and her business partner in the tenements, Mr Peter Milne, had been given permission about six weeks earlier by Mr Andrew Shaw, Aberfoyle’s mine superintendent at Davyhurst, to use the mining camp for accommodation when they checked their tenements. It seems that the client was a potential purchaser of the tenements. Mr Milne never availed himself of this permission. Mrs Downe had stayed at the camp twice before for this purpose. The first time, she had arranged a separate room for herself, though in fact she stayed with Mr Smylie. The second time she did not bother to arrange a separate room.

Mr Shaw later expressed the view to Mr Mayes that the permission given to Mrs Downe did not extend to Mrs Downe sharing Mr Smylie’s room overnight. Mr Shaw did not give evidence.

Mr Mayes, Barminco’s Southern Area Manager with responsibility for Davyhurst, says that while visits to the camp during the day were permitted, overnight stays with employees were discouraged. It seems that Mr Shaw had objected to employees’ partners staying overnight in the past. It was, Mr Mayes says, an unwritten rule. It seems, however, that it was not a very precise rule - Mr Mayes himself says merely that “conjugal visits weren't really encouraged on the site”.

Mrs Downe’s past stays had led to friction between Mr Shaw and Mr Smylie; Mr Shaw believed that the other employees resented the fact that Mr Smylie was enjoying “conjugal visits” when they were not able to. However, rather than raise the matter with Mr Smylie directly, Mr Shaw arranged to have Mr Smylie’s double bed removed from his room. Mr Smylie chose to ignore this hint.

Mr Shaw discussed his concerns with Mr Mayes, and Mr Mayes says he had mentioned “in passing” to Mrs Downe and Mr Smylie that Mr Shaw was upset by Mrs Downe staying with Mr Smylie at the camp. Mr Mayes says he considered the issue sensitive and did not feel comfortable interfering with Mr Smylie’s personal life. Mrs Downe and Mr Smylie deny that Mr Mayes raised the matter at all. I accept that, given his embarrassment, Mr Mayes did not directly raise the matter.

Mr Mayes says that Mr Shaw contacted him at Davyhurst on the afternoon of Thursday 21 November 1996 to request that Mrs Downe not come to the Davyhurst mine site that weekend, because the camp wasn't set up for conjugal visits. Mr Shaw also suggested that Mrs Downe was attending the site too frequently, and more frequently than she used to. Mr Shaw linked this to her relationship with Mr Smylie. He went on to tell Mr Mayes that he did not want Mrs Downe turning up on site unexpectedly, and indeed did not want her to go on site unless her presence was requested by the Client.

Mr Mayes did not convey this request directly to Mrs Downe, though he was in the Kalgoorlie office with her on the morning of Friday 22 November 1996. He says, however, that he advised Mr Wearing of Mr Shaw’s request.

Mrs Downe approached Mr Wearing that morning and told him she had to go to Davyhurst that day. Mr Wearing cannot now recall the reason. Mrs Downe says that Mr Power had asked that she collect information about certain safety procedures on the site. Mr Wearing believes that if Mr Power had been mentioned, then he would have spoken to him. Mr Wearing told her there was no need for her to go to Davyhurst for that purpose at that stage, and told her not to go.

The respondent’s particulars suggest that Mrs Downe requested the use of a Barminco vehicle to go to Davyhurst. There was no evidence to that effect.

Mr Wearing later confirmed with Mr Mayes that he had told Mrs Downe not to go to Davyhurst. When Mr Shaw rang the Kalgoorlie office later on Friday morning to remind Mr Mayes of his request, Mr Mayes reassured him that Mr Wearing had instructed Mrs Downe not to go to the site.

While Mr Mayes denies speaking directly to Mrs Downe at all that morning, she claims they had three conversations about her going to Davyhurst that day.

She says she told Mr Mayes that Mr Power had asked her to review the safety inspections which were occurring at the Davyhurst site, but which had not been documented, and showed him a facsimile from Mr Power. She says she also told Mr Mayes that she would be going to Davyhurst to complete the documentation and would be staying there for the rest of the weekend. Mr Mayes says that if that had been the case, he would have asked her not to go.

Mr Wearing left the office at about 10.30 am to go to Perth. Soon after, Mrs Downe left the Kalgoorlie office for the Davyhurst mine site, using her own vehicle. She says she arrived at Davyhurst by about 1.30pm.

At Davyhurst, Mrs Downe spoke to the mine foreman. Mr Darren Russell, for about an hour about the matters which had been raised with her by Mr Power.

Mr Mayes had to go out to Davyhurst that afternoon. When he arrived, he confirmed that Mrs Downe had been out to the mine site, but did not locate her on site. When he had completed his business there, he returned to Kalgoorlie. He presumed Mrs Downe had left the site and was at her tenements, so he decided to take it up with Mr Smylie and Mrs Downe the next morning. He says he did not know, at that stage, whether Mrs Downe intended to stay the night; he tried to contact Mrs Downe at her home in Kalgoorlie the next morning. He did not attempt to warn Mr Smylie that Mrs Downe should not stay overnight; Mr Smylie was working underground at the time.

Mrs Downe shared Mr Smylie’s accommodation on Friday night. On Saturday morning, she went out to her tenements, visiting the town of Menzies en route and bringing back some supplies to the camp. She had told some of the employees of her intended movements should she be required in an emergency; her mobile telephone did not have coverage in that area. She had returned to the mining camp by 10:00 am.

Mr Mayes called the camp at about 10:00 am and spoke with Mr Smylie. He told Mr Smylie “you had better just cool it down”. Mr Mayes explained that Mr Shaw had advised that there were no conjugal visitation rights on site, and that Mr Shaw had asked him to remove Mr Smylie from site if Mrs Downe’s visits did not stop.

Mr Smylie, though a little taken aback at first, agreed to refrain from sharing his accommodation with Mrs Downe. Mrs Downe, who was with Mr Smylie when he took the call, says she was surprised to learn that Mr Shaw had a difficulty with her staying at the camp with Mr Smylie, but on learning of his concerns, Mrs Downe immediately left the mining camp and returned to Kalgoorlie.

A number of issues are raised by this incident. The aspects of Mrs Downe’s conduct which are expressly or implicitly the subject of complaint are:

• The fact that she went to Davyhurst at all on Friday, given that:

  ·   Mr Wearing had instructed her not to;

  ·   The Client did not want her on site other than at its request;

  ·   The Barminco business she conducted on site on Friday was possibly not sufficient to justify a separate trip, and was not urgent;

  ·   The trip was in part motivated by her private business interests in the tenement and personal interest in spending time with Mr Smylie, and

• The fact that she stayed overnight with Mr Smylie, given Mr Shaw’s objection to “conjugal visits”.

Mr Shaw’s position that he did not want Mrs Downe coming up “unannounced” or other than at the Client’s request was extraordinary, and was surely not to be taken at face value by Barminco. It is difficult in principle to see how Mrs Downe could do her job and how Barminco could meet its occupational health and safety obligations to its employees at Davyhurst with Barminco’s Occupational Health and Safety Officer subjected to such a restriction.

Mr Shaw’s statement appears to have been motivated by his concerns about the motives for Ms Downe’s frequent visits and possibly, though this was not expressed, by any unsettling effects on employees of Mrs Downe’s interventions concerning safety, of the sort referred to generally above. While one can appreciate Barminco’s concern not to alienate their client, I would have thought that Barminco it could not, consistent with its statutory obligations, accept a position where its employees’ access to its Occupational Health and Safety Officer was dependent on the whim of its client. Certainly, Barminco’s response to Mr Shaw’s position was a matter to be determined by its management, and not a decision to be taken by Mrs Downe alone. There is no evidence, however, that Mr Shaw’s position was ever drawn to her attention. She was simply told not to go to the site on Friday.

I have no doubt that Mr Wearing shared Mr Shaw’s suspicion that Mrs Downe had ulterior motives to visit Davyhurst. However, joint motives are not always blameworthy. In principle, Mrs Downe could quite properly organise her work-related travel schedule in such a way that it coincided with her business and personal interests, provided that it did not negatively impact on the performance of her responsibilities to her employer. If it were genuinely necessary, therefore, for her to make a site visit at Davyhurst on one day that week, there is no reason in principle that she should not go on Friday rather than Wednesday, all things being equal.

There is, however, no right for employees to be able to so arrange their affairs where their employer decides otherwise. Barminco would, for example, have been entitled to insist that Mrs Downe be present at the Barminco office at the end of the working day every Friday and at the beginning of the working day every Monday.

I am also not satisfied that this was a case of “all things being equal”. I accept that Mr Power requested that certain information be gathered from Davyhurst. It would appear from some of the facsimiles exchanged between Mrs Downe and Mr Power that, on Wednesday 10 November, he had fixed a “target completion” date for this task of Monday, 25 November 1996. There was, however, nothing inherent in the nature of the work to be done which made it urgent.

Further, it seems to have been considerably less than a full day’s work. One would have thought that, given the travel time between Kalgoorlie and Davyhurst, it would be most efficient to accumulate a full day’s worth of work for each visit, where possible.

Mrs Downe may well have decided that she should go to Davyhurst before Monday, rather than keep Mr Power waiting. When Mr Wearing instructed her not to, however, she could and should have advised Mr Power that she was unable to meet his target date, and why. It was then a matter that Mr Power could take up with Mr Wearing, if he wished to. Mrs Downe suggested in her evidence that Mr Power had claimed the right to direct her. Mr Power did not give evidence. If Mr Power made such a claim, it seems unlikely that such a right was intended to prevail over that of Mr Wearing, and one would have expected some formal confirmation of any change from Barminco, given the extent to which Mr Wearing’s authority had become an issue.

The communication between Mr Wearing, Mrs Downe and Mr Mayes left much to be desired. The difficulties flowed from the history between those involved. Mr Mayes was a friend of Mr Smylie and was friendly with Mrs Downe. He was embarrassed to be seen to be interfering with their relationship. Being aware of Mr Shaw’s complaints, he responded indirectly, leaving it to Mr Wearing to speak with Mrs Downe.

Mrs Downe’s dealings with Mr Wearing were coloured by their history. She advised she intended to go to Davyhurst, but did not detail the reasons, or the reason why it needed to be done urgently. He told her not to go, on the basis that it was unnecessary, and without reference to the particular issues Mr Shaw had raised. Mrs Downe did not try and persuade him otherwise. She did not refer to Mr Power, nor to the fact that he had fixed a “target date”. She treated it as a typical exchange where Mr Wearing was frustrating her work because he did not accept its importance.

On balance, I accept that Mrs Downe then went to Mr Mayes, explained why she believed she had to go and declared her intention to go. I accept that Mr Mayes did not intervene, and that Mrs Downe’s interpreted his acquiescence as support. She may have reasoned that by raising it with the Southern Area Manager with responsibility for Davyhurst, she had covered herself against any future complaint form Mr Wearing.

It is understandable that Mr Mayes might not have intervened to stop Mrs Downe. He may not have seen it as his job, and wanted to stay out of it. Mr Shaw’s strength of feeling on the matter may not have been apparent to him at that stage. After Mrs Downe had left, when Mr Shaw rang again and Mr Mayes realised that it might become a bigger issue, Mr Mayes simply reiterated that Mr Wearing had told her not to go, and made no mention of his involvement. He purported not to know where Mrs Downe had gone.

Later that day, at the mine site, Mr Shaw was very annoyed. He upbraided Mr Mayes and accused Barminco of having no control over Mrs Downe, given that she hadn’t followed Mr Wearing’s direction. It would have been apparent to Mr Mayes by then that the issue was causing a serious problem between Barminco and the client. Even so, he did not do anything to warn Mr Smylie and Mrs Downe that she should not stay with Mr Smylie at the mining camp that night.

On the evidence before me, I am satisfied that Mrs Downe’s conduct in going to Davyhurst that day during working hours could properly have been a disciplinary matter. While I accept that there was the potential for confusion between instructions from Mr Wearing and Mr Power and the apparent acquiescence of Mr Mayes, I accept that, in the face of Mr Wearing’s instruction not to go, the onus was on Mrs Downe to ensure that any conflict in direction between Mr Wearing and the others was resolved between them. In that situation, particularly where there was no inherent urgency in the task, it was not up to Mrs Downe to choose who to listen to, or to approach other managers in search of contrary indications. Mr Wearing’s direction could not be said to be unreasonable, in all the circumstances and given the limited information with which he was provided by Mrs Downe.

However, I do not find that Mrs Downe’s conduct in staying overnight in Mr Smylie’s room at the Davyhurst mining camp was blameworthy.

Given that she had permission to stay at the mining camp to access her tenements, it was not self-evident that she should not stay with Mr Smylie. Even assuming she were aware of an unwritten policy discouraging employees from having overnight visitors, it was not clear that such a policy would apply to sharing the room with a fellow employee who was independently entitled to be at the camp.

Mr Shaw, as manager of the client with supervision of the camp, would have been entitled to notify Mrs Downe that she would not be permitted to share Mr Smylie’s room. The fact remains that he did not do so. Nor did Barminco. Once Mrs Downe was so advised, she left the camp immediately.

Had Mrs Downe set out for Davyhurst after working hours, Barminco would, in my view, have had no ground for complaint.

On returning to Kalgoorlie on Saturday, Mrs Downe attempted to discuss the matter with Mr Mayes, without success.

She went to the Kalgoorlie office on the morning of Monday 25 November, having drafted in handwriting a response to Mr Shaw’s complaint, as she understood it. Mr Mayes was late into the office that day, having other business to attend to first. Mrs Downe therefore faxed her hand-written draft to Mr Manning, the Northern Area Manager, with a Barminco cover sheet identifying it as a “reply to A. Shaw as drafted by me”. Mr Manning was in the Perth office that day. The draft read as follows:

“A. Shaw
U/Ground Manager
Davyhurst

Dear Sir,
  As to Your “Request” of Friday 22nd November
  RE: Yvonne Downe Barminco Safety Officer

The terms you wish to apply to her presence at Barminco Davyhurst do not seem to be appropriate.

The following information may assist you in reviewing your request and give you some insight into how we see our position.

1.The company is aware of the relationship between Mr Smylie and Mrs Downe - they in fact attended a function at which our management were also present.

2.The company do not nor could not impose any restrictions or terms to their private time or activities.

3.Further the company is satisfied as to their professional conduct and performance.

4.Our company is now aware of another major factor in this situation and I refer to Tenement E16/94. The following information has reluctantly been made available to us in the last few hours:

(a)You gave permission in October for Mrs Downe and Mr Milne permission to use camp accommodation (sic).

(b)Mrs Downe (but to date not Mr Milne) has used your permission to use this facility.

(c)The Tenement is prospective enough that the consulting geologist Mr Peter Schwan is evaluating it with view to the terms of its potential and an appropriate offer.

Summary.

1.Mrs Downe has used your approval of accommodation and requires all accommodation charges as they are part of and proof of Form 5 expenditure requirements. Please forward these accounts to her as they are important. (October has not been received)

2.Clearly your claims the camp accommodation does not provide for females cannot be sustained.

3.To publicly declare a single sex accommodation facility would leave our company vulnerable to a claim of sexual discrimination.

4.To comply with the terms of your “Request” would leave our company and you open to a claim of harassment from both Mrs Downe and Mr Smylie .

Conclusion.

We do not understand nor can comply with your request.

We do understand the strain and frustration you are under at this time.

We have persuaded Mrs Downe from contacting Mr Barry Sullivan and informing him of the turn of events and withdrawing her offer of E16/94 in favour of another buyer.

Please feel free to contact us and discuss any other problems as we understand this is a difficult time for you.

Yours faithfully

GM?

Addendum.
Copy of today’s 25th Nov 1996 newspaper article.

Re. “Cons Gold Exploration Intentions”.

Mr Manning appears to have faxed a copy of the draft to Mr Bartlett, who was at the Plutonic mine site, and to Mr Mayes, who arrived at the Kalgoorlie office at about 8:00 am. They discussed the letter. Mr Bartlett was very concerned that the letter had been sent to the client, and instructed Mr Mayes to dismiss Mrs Downe if that were the case. Mr Mayes eventually checked, choosing to call Mr Shaw rather than ask Mrs Downe. When Mr Shaw advised that he had received no such letter, Mr Mayes, somewhat unhelpfully, read it out to Mr Shaw.

Barminco submits that this draft letter was inappropriate and improper, as it amounted to blackmail and did not accept the Client’s right to control the mining camp. It was also more appropriately the subject of a personal letter from Mrs Downe than a letter from Barminco. However, while it would have been a disciplinary matter to have sent such a facsimile to the client without authorisation, Mrs Downe’s conduct in drafting it and presenting it to Mr Manning for his consideration was not a matter for which she could reasonably be criticised. The draft could have functioned as a basis for the discussion of the incident within Barminco, and was only intended as a possible response to the client. If the letter was intemperate or misconceived then it could have been discarded. Any damage done by the letter to Barminco’s relationship with the client was caused by Mr Mayes disclosing it, not by Mrs Downe.

In summary then, I accept that Mrs Downe’s decision to go to Davyhurst during working hours on Friday on Barminco business was a disciplinary matter, given Mr Wearing’s instruction to the contrary.

I do not accept, however, that Mrs Downe’s decision to stay at the camp with Mr Smylie overnight was conduct for which she might be penalised, given that she had never been advised by the Client nor by Barminco that she should not do so. Nor were her actions in merely drafting a response to the Client a basis for complaint.

The Dismissal

Mrs Downe’s employment was terminated at a meeting held at about 9:00 am on the morning of Monday, 25 November 1996 with Mrs Carol Bartlett, who was Mr Bartlett’s wife and personal secretary, and with Mr Mayes. Only Mrs Downe and Mr Mayes gave evidence of what took place.

Mrs Downe says the meeting was conducted in an unstructured and very emotional manner by Mrs Bartlett. Mrs Downe says that when she attempted to offer an explanation of her conduct, she was shouted down. Mr Mayes agrees that the meeting was very heated, describing it at one point as a “shouting match”, but says that Mrs Downe was given leeway to explain herself.

Mrs Bartlett had spoken to her husband, Peter Bartlett, prior to the meeting. It is unclear whether she had taken the opportunity to read the draft letter herself, or whether she was relying on what she had been told about it by Mr Bartlett and others. While the evidence on this point was confused, it appears that Mrs Bartlett initially believed that the draft had been sent by Mrs Downe to the client. Mr Mayes’ recollection is that she continued to hold this belief during the meeting. However, notes made by Mrs Downe soon after the meeting have Mrs Bartlett complaining that “If  this got into ‘wrong hands’ it would jeopardise the Davyhurst contract - it was sent on Barminco letter head (my emphasis)”. She is also noted to have complained that Mrs Downe put Mr Mayes’ name at the bottom of the letter, when she had no right to do so. While Mrs Downe protested that it was merely a draft, Mrs Bartlett does not appear to have been mollified.

It would appear that Mrs Bartlett had become angry with Mrs Downe in the mistaken belief that the draft had been sent to the Client. Moreover, Mrs Bartlett’s anger persisted even when the fear which was its immediate cause was allayed. Mr Mayes recalls that, before the meeting, Mrs Bartlett had told him, “Right, I am going to get Yvonne, we'll meet in the board room, I want you to be present, I've had enough of this.”

During the meeting, a number of issues were raised but, as Mr Mayes put it, the other matters “seemed to pale into insignificance compared to the letter.”

As well as the draft letter, Mrs Bartlett complained that:

• Mrs Downe did not have permission to use the Davyhurst accommodation;

• Mrs Downe’s professional conduct was compromised by her “animal instincts”; and

• Mrs Downe was not contactable on her mobile telephone for emergency response.

Mrs Downe responded to each of these points. She asserted, for example, that Mr Shaw had earlier given her permission to stay at the camp, which had not been retracted, and that Mr Shaw and Mr Smylie knew where they could find her if she were needed for emergency response (in which case she would be closer to the mine than if she were in Kalgoorlie). No attempt was made by Mrs Bartlett to verify these assertions. In Mrs Downe’s opinion, she “didn’t want to hear”.

Mr Mayes’ recollection is that Mrs Bartlett also raised the fact that Mrs Downe went to Davyhurst after Mr Wearing had told her not to. Mrs Downe’s evidence and notes make no reference to this issue having been raised at the meeting. I accept that it may have been raised, probably in the context of the accommodation issue, but it seems clear that it was not given any emphasis as a separate issue.

At the end of the meeting, Mrs Bartlett purported to terminate Mrs Downe’s employment, telling her her services were no longer required. Mrs Downe challenged Mrs Bartlett’s authority to dismiss her. Mrs Bartlett left the room and spoke with her husband, the Managing Director. She returned to tell Mrs Downe “I’ve spoken to Peter and you’re finished”. I accept that Mr Bartlett delegated to Mrs Bartlett the authority to dismiss Mrs Downe.

Whether Valid Reason

Section 170DE(1) provides that an employer must not terminate an employee’s employment unless there is a valid reason, or valid reasons, connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service.

Barminco contends that it had a valid reason connected with Mrs Downe’s conduct in the period from Friday 22 November 1996 to Monday 25 November 1996, and that the Court, in assessing this conduct, should take into account Mrs Downe’s past conduct.

Submissions of this sort are common where employees are dismissed for reasons connected with their conduct. Typically, there is a history of unsatisfactory conduct. Warnings may have been given, but in any event the employer has chosen to retain the employee in employment, notwithstanding its dissatisfaction with their performance or conduct. Then there is a final incident of poor conduct or performance which is the catalyst for the employer to reach the decision to dismiss the employee, having taken into account their overall performance and conduct. This final incident is said to be “the straw that broke the camel’s back”, a tired but reliable metaphor often pressed into service.

There will be occasions where the final incident is of sufficient significance to constitute a valid reason for termination in its own right, without reference to the background against which it occurred. No difficulties arise in those circumstances. However, in its closing submissions Barminco conceded that the final incident in this case would not have provided a valid reason for dismissal if it had occurred in isolation.

At the other extreme, it can sometimes be shown that the employer is wrong about the final incident, because it never happened, or the relevant employee was not involved, or the employee’s conduct in the incident was not improper (because, for example, the employee was entitled to act in that way). In those circumstances, where there is no longer any real catalyst for dismissal, but only the employee’s past conduct or performance, it is generally held that there was no valid reason for the termination. However heavy the camel’s load, without that final straw, its back is not broken. This is an application, in the context of Section 170DE(1), of the common law principle that the right to dismiss for misconduct is waived where an employer retains an employee with full knowledge of his or her misconduct[1].

[1] See “Macken, McCarry and Sappideen’s The Law of Employment” LBC 4ed 1997 at pp213-214

The more problematic scenario is that where the final incident was relatively trivial and would not constitute a valid reason for termination in its own right, but was to some extent blameworthy. Will any straw do, however light? Does it depend on the camel’s existing load? Is it up to the camel to decide when it has reached breaking point?

I have found that Mrs Downe’s conduct in going to Davyhurst on Friday 22 November 1996 during working hours in disregard of Mr Wearing’s instruction to the contrary could properly have been a disciplinary matter. It cannot, therefore, be said that Mrs Downe’s conduct on the Friday was entirely beyond reproach.

However, a significant part of the catalyst for Barminco’s decision to dismiss Mrs Downe was Mrs Bartlett’s initial misconception that Mrs Downe had sent the facsimile to the client, and the assumption that Mrs Downe had no grounds for believing that she had permission to stay at the camp with Mr Smylie. Barminco decided it had reached breaking point in the mistaken belief that the weight of Mrs Downe’s misconduct was greater than in fact it was.

It is a matter for speculation whether the mere fact that Mrs Downe decided to go to Davyhurst, notwithstanding Mr Wearing’s instruction, would have been sufficient to bring about the dismissal, particularly given the involvement, as I have found it, of Mr Power and Mr Mayes in Mrs Downe’s decision. It was a matter of which Barminco was aware when it decided to dismiss Mrs Downe, but at the time it was overshadowed by the other issues.

In Wadey v Y.W.C.A. Canberra[2] , Justice Moore held that:

[2] Wadey v Y.W.C.A. Canberra (unreported IRCA No. 542 of 1996, Moore J, 12 November 1996)

“It is not for this Court to approach the matter as if it is to make a decision whether termination should occur or not. A range of rational and reasonable views may exist as to whether particular conduct warrants termination. If the view adopted by or on behalf of the employer is rational and reasonable then, in my opinion, the employer has established a valid reason for the purposes of section 170DE(1). In putting it this way, I am not attempting to depart from the views expressed by Northrop J in Selvachandran v Peteron Plastics Pty Ltd... which have been referred to with approval on a number of occasions since...”

In Selvachandran v Peteron Plastics Pty Ltd[3],  Justice Northrop had held that:

[3] (1995) 62 IR 371; since approved by the Full Court of the Federal Court in Cosco Holdings Pty Ltd v Thu Thi Van Do (1997) 150 ALR 127; 77 IR 94 and Qantas Airways Limited v Cornwall (unreported, Fed. Ct No 865 of 1998, Burchett, Cooper and Finn JJ, 24 July 1998).

“In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful or prejudiced could never be a valid reason for the purposes of s 170DE(1)... The provisions must be applied in a ‘practical commonsense way’ to ensure that the employer and employee are each treated fairly...”

This is not a case where an employer can assert that the Court is second-guessing management’s assessment of whether the conduct in question justified Mrs Downe’s dismissal, because management in this case mistakenly attributed his conduct to Mrs Downe which did not take place.

However, if management could reasonably have relied upon Mrs Downe’s disregard of Mr Wearing’s instruction, together with her past conduct, to dismiss Mrs Downe, then Barminco could be found to have had a valid reason for the termination of Mrs Downe’s employment connected with her conduct.

Did Mrs Downe’s disregard of Mr Wearing’s instruction in those circumstances amount to a defensible reason for dismissal, when viewed in the context of her past conduct? On balance, I accept that it did. Given my findings as to the history of Mrs Downe’s employment, the load on the camel was so great that a relatively minor weight was sufficient to cause the break.

I find, therefore, that Mrs Downe’s employment was terminated for reasons which included a valid reason connected with her conduct, and that Barminco was not in breach of Section 170DE(1).

Whether Mrs Downe Was Given an Opportunity to Defend Herself

Section 170DC of the Act provides that an employer must not terminate an employee’s employment for reasons related to the employee’s conduct or performance unless the employee has been given the opportunity to defend himself or herself against the allegations made. I am satisfied that Barminco could reasonably have been expected to give Mrs Downe that opportunity.

The meeting on the morning of Monday 25 November 1998 was not, in my view, an adequate opportunity for the purposes of the Act.

The evidence indicates that Mrs Bartlett, while appearing to give Mrs Downe an opportunity to respond to some of the matters of concern, did not approach the meeting with an open mind. She appears to have given no attention to the matters raised by Mrs Downe in her defence.

Mr Bartlett conceded in his evidence that he probably should have asked Mrs Downe to stand down until he could return to the Kalgoorlie office. While Section 170DC requires no particular formality, it does require that all of the relevant allegations be put clearly to Mrs Downe, and that her responses receive serious consideration. Whether this opportunity was provided by Mr Bartlett, Mrs Bartlett, or some other authorised person, it should have been done at a time when any high feelings had subsided sufficiently to permit such a process to be conducted properly and dispassionately.

One of the consequences of the manner in which the meeting was conducted was that there was insufficient focus on the issue which I have found constituted a valid reason for dismissal. As a result, it seems likely, on the evidence, that the involvement of Mr Power and Mr Mayes in Mrs Downe’s decision to go to Davyhurst did not arise during the meeting.

I find, in the circumstances, that Mrs Downe was not given a real opportunity to defend herself against the allegations against her, and that Barminco has therefore not complied with Section 170DC of the Act.

Whether Reinstatement Practicable

Mrs Downe seeks the primary remedy available under the legislation, which is reinstatement to her former position.

Barminco led evidence about the restructuring of the safety positions since Mrs Downe’s dismissal in an attempt to show that she could no longer be accommodated within the company.

More important, however, was the breakdown in relations between Mrs Downe and those with whom she would have to deal if reinstated, which was evident throughout the proceedings. While the litigation may have aggravated the position, it seems likely, on the evidence, that much of the damage to Mrs Downe’s relationships with others at Barminco took place before her dismissal. While Mr Wearing appeared somewhat fatalistic about the prospect of Mrs Downe being reinstated, and I do not doubt that he would attempt, in good faith, to work with her as best he could, I do not expect that a successful working relationship would result.

When Mrs Downe was asked why she sought reinstatement, notwithstanding her admitted difficulties working with Barminco, she responded that she believes that reinstatement by Barminco is the only way her reputation can effectively be restored within the goldfields community in which she lives and hopes to work.

I accept that Mrs Downe feels very strongly on that point, but it was more than usually clear to me in this case that the parties would not be able to re-establish an effective working relationship should Mrs Downe be reinstated. I therefore find that reinstatement is impracticable, and turn to the assessment of compensation, which is the alternative remedy under Section 170EE of the Act.

Assessment of Compensation

In assessing the compensation that is appropriate, the Court will have regard to what is reasonable in the circumstances and will look at what would have been likely to occur had the Act not been contravened.

It cannot be assumed that, had Barminco given Mrs Downe a proper opportunity to defend herself, Mrs Downe would have been dismissed anyway. As I have found, most of the matters which formed the catalyst for the decision were without foundation. While I have found that Barminco could reasonably and defensibly have dismissed Mrs Downe for disregarding Mr Wearing’s instruction, given her past history, it does not follow that Barminco would have necessarily chosen to do so.

However, this is a case where, had Barminco not acted in breach of the Act, it was quite likely that Ms Downe’s employment with Barminco would have ended anyway in the short to medium-term future, either by way of a lawful dismissal or by way of her resignation. Alternatively, some amicable agreement may have been reached whereby the employment ended and was replaced by a consultancy arrangement. Mrs Downe conceded in her evidence that she expected that she would have become a consultant for Barminco, had she not been dismissed.

In assessing Ms Downe’s loss as a result of her dismissal, I cannot therefore proceed on the basis that she had secure employment and would have continued indefinitely to receive her Barminco income, had she not been dismissed on 25 November 1998.

My best estimate in all the circumstances of the likely longevity of her employment would be about three months. I have assumed that Mrs Downe would have been paid notice at the end of her employment in any event. I have assumed that it was as likely as not that, had Barminco complied with Section 170DC, then Mrs Downe would have been dismissed. I will therefore award compensation of about half of the loss I estimate has resulted from her dismissal, ie about 6 weeks’ salary. On the basis that her fortnightly salary was $1980.70, I will award compensation of $5,950.00.

I certify that this and the preceding thirty (30) pages are a true copy of the Reasons for Judgment herein of Judicial Registrar R.D. FARRELL JR

Associate:

Dated:            3 August 1998

The Applicant represented herself
Counsel for the Respondent:	Mr Retallack
Solicitor for the Respondent:	Wilson & Atkinson
Dates of Hearing:	21 March, 12-13 June, 4-5 August and 6-7 October 1997
Date of Judgment:	3 August 1998