Dunn v Aherrenge Association Inc

[1998] IRCA 30

INDUSTRIAL RELATIONS COURT OF AUSTRALIA

CATCHWORDS  -alleged UNLAWFUL TERMINATION - whether termination at the initiative of the employer.

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

Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200.
Carrigan v Darwin City Council (unreported, IRCA No. 101 of 1997, von Doussa J, 20 March 1997).
Woods v WM Car Services (Peterborough) Limited [1982] IRLR 347.
Slifka v JW Saunders Pty Ltd (1995) 67 IR 316.

STEVEN CEDRIC DUNN -v- AHERRENGE ASSOCIATION INC.

DI 1095 OF 1996

RD FARRELL JR

27 AUGUST 1998

PERTH (HEARD IN ALICE SPRINGS)

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	DI 1095  of 1996

BETWEEN:	STEVEN CEDRIC DUNN APPLICANT
AND:	AHERRENGE ASSOCIATION INC. RESPONDENT
COURT:		RD FARRELL JR
DATE OF ORDER:		27 AUGUST 1998
WHERE MADE:		PERTH (HEARD IN ALICE SPRINGS)

THE COURT ORDERS THAT:

1. The application under Section 170EA of the Workplace Relations Act 1996 is dismissed.

2. The respondent pay to the applicant the sum of $194.50 being unpaid wages.

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	DI 1095 of 1996

BETWEEN:	STEVEN CEDRIC DUNN APPLICANT
AND:	AHERRENGE ASSOCIATION INC. RESPONDENT

COURT:	RD FARRELL JR
DATE:	27 AUGUST 1998
PLACE:	PERTH (HEARD IN ALICE SPRINGS)

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 compensation arising from the alleged unlawful termination of the employment of the applicant, Mr Steven Dunn (“Mr Dunn”) by the respondent, Aherrenge Association Incorporated (“The Association.”).

Contentions

The Association’s case is that Mr Dunn abandoned his employment, and that his employment was not terminated at the initiative of the Association. There was, therefore, no termination of employment to which the Act can apply[1].

[1] Mohazab v Dick Smith Electronics Pty Ltd (No 2.) (1995) 62 IR 200 at 203.

Mr Dunn disputes this, claiming that he was dismissed. He further contends that his dismissal was in breach of Section 170DE of the Act, because it was not for a valid reason, and in breach of Section 170DF of the Act, because it was for reasons including Mr Dunn’s race and his temporary absence of work due to illness.

Mr Dunn also had other outstanding claims against the Association, relating to alleged underpayments of wages and payments allegedly due under a separate contract. There was no objection to those claims being dealt with under the Court’s accrued jurisdiction.

Factual Background

Aherrenge Association Incorporated is an incorporated association which performs a function equivalent to that of a local authority for the Ampilatwatja Community (“the Community”). The Community, whose members are people of the Arandic language group, is located 320 kilometres northeast of Alice Springs on the Amaroo Station in the Northern Territory.

Mr Dunn’s wife, Mrs Belinda Dunn, (“Mrs Dunn”) was invited by her nursing agency to apply for a position as registered nurse with the Ampilatwatja Health Centre Aboriginal Corporation (“the Health Centre”) within the Community, on the basis that her partner would be offered work within the Community as well. At the time of the offer she was working as a nurse at Roxby Downs in South Australia, where Mr Dunn was employed as a tradesman in the construction industry. They were employed at the Community from 7 May 1996.

Mr Dunn was employed by the Association as a general labourer, with a wide variety of duties including general maintenance and driving. While employed by the Association, he spent two days a week working under the control of the Health Centre.

They worked with other employees of the Association and the Health Centre, some of whom, like them, were employed from outside the Community. These employees included:

• Mr Tony Becze, the administrator or council clerk;

• Jane Becze, the part-time bookkeeper and women’s centre administrator;

• Mrs Kaylene Lindner, the health centre administrator;

• Dr John Gill, the health centre’s doctor; and

• Mr Michael Lindner, the emergency services operator.

Another person with whom Mr and Mrs Dunn associated was Ms Teresa Coe, who ran the Community store.

Both the Association and the Health Centre were ultimately governed by their respective committees. The committees were made up of elected members of the Community. Senior members of the Community included Mrs Wilma Ross, who was the Health Centre’s President, Mr Banjo Morton and Mr Peter Morton, who appeared to have significant influence within the Association.

Mr Becze resigned in late June, following his wife’s dismissal and he and his wife left the Community. In the circumstances of his departure, he negotiated a payment of four weeks salary.

It appears obliquely from the evidence that the decision making processes and finances of the Association at this time were in some disarray. I make no findings as to the causes of these difficulties. However, it appears that the Community was subject to the increased attention of the relevant supervisory Local Government and Aboriginal authorities.

Following the intervention of local government officers in July, the Association’s committee took various decisions including the retrenchment of Mr Dunn. Mr Dunn was within his probation period. There was no administrator to supervise his employment. Mr Dunn was successful in persuading the committee to reverse this decision.

The standard contract of employment for the Association’s employees included a term that:

“You must refrain from influencing or participating in the political or other affairs of the Aherrenge Community Council and Ampilatwatja Community, except where such activity is essential for the performance of your job. The Council shall have absolute discretion in determining whether any activity is essential for the purposes of this sub-clause.”

It appears that this term was more honoured in the breach than in the observance, and that the outside employees tended to be susceptible to “factional infighting” into which the Community members were drawn from time to time. The evidence on the matter was limited, given its marginal relevance, but it appears that Mr Becze’s departure took place in that context, and that the two factions revolved around Dr Gill and Ms Lindner, whose agenda was focused upon the ongoing viability of the health centre, and Ms Coe, who it seems was allied to Mr and Mrs Becze. Ms Coe did not give evidence. My findings on this question should be regarded as tentative and I do not purport to apportion blame for the situation.

It appears that Mr and Mrs Dunn came to be seen as allied with Mrs Coe. Certainly, there was evidence that they socialised with each other relatively frequently. This led to tensions between Mr and Mrs Dunn on the one hand and Dr Gill and Mrs Lindner on the other. This was probably particularly difficult for Mrs Dunn, who worked closely with them.

Friday 6 September 1996: Meeting at Health Centre

A controversy arose in the Community about Mr Dunn’s use of the Association’s earth-moving machinery on the driveway of their house in early September 1996. I accept that Mr Dunn’s use of the machinery was resented by some Community members, given that their own access to the machinery was restricted.

An informal meeting was held at the health centre on 6 September 1996 to discuss the matter. Why the issue was seen as primarily a matter of concern to the Health Centre rather than the Association is not clear. Some reference was made to the fact that the house belonged to the Health Centre and their approval to do the work had not been obtained. The meeting was attended by Dr Gill, Ms Lindner, Mr and Mrs Dunn, Ms Coe and three Community members, Mrs Wilma Ross (the President), Mr Banjo Morton, and Mr Frank Holmes.

The focus of the meeting was the accusation that Mr and Mrs Dunn had told Ms Coe about the Health Centre’s involvement with the controversy about the use of the earth moving equipment. Ms Lindner and Dr Gill believed that Mrs Coe had told an officer of ATSIC, who then rang the Health Centre President, Mrs Ross, to tell her that Ms Lindner was “causing trouble”.

I am satisfied that the meeting became heated, and that by the conclusion of the meeting, Dr Ross and Ms Lindner had resolved to try to bring about Mr and Mrs Dunn’s removal from the Community.

Monday 9 September 1996: Meeting at Association

A formal meeting of the Health Centre was held at the Association’s offices on 9 September 1996. It was attended by Dr Gill and Ms Lindner, together with Mrs Ross and seven other members of the Committee. Mr Dunn sought to attend that meeting, but was asked to leave.

Mr Dunn listened in on that meeting from outside the door, and reached the conclusion that Ms Lindner and Dr Gill were seeking to convince the Committee to bring about the dismissal of him and his wife. Mr Dunn did not realise that the meeting was a meeting of the Health Centre, rather than the Association, and thus that the meeting had no power to dismiss him.

I am satisfied that Ms Lindner complained to the Health Centre’s Committee that Mr and Mrs Dunn were involved in “manipulation and interference” and that it was up to the Committee to “sort it out”. Dr Gill added that he found it impossible to work with Mr and Mrs Dunn and threatened to resign. They elaborated on these themes at some length.

Committee members considered in principle the possibility of both Mr and Mrs Dunn being dismissed, or alternatively Mr Dunn’s work with the Health Centre being discontinued, and Mrs Dunn being retained. It seems the Committee was inclined to adopt the former course, but accepted that it was necessary that any dismissal be effected properly and lawfully. It was left on the basis that Ms Lindner was authorised by the Council to look into grounds for dismissal.

There was some evidence that a further meeting took place that evening involving an officer of the Central Land Council. It may have been a meeting of the Association. There was no evidence of the meeting’s content. It seems Mr and Mrs Dunn were not aware of that meeting at the time.

9 September – 25 September 1996: Mr Dunn’s First Period of Absence

Mr Dunn told Mrs Dunn what he had overheard. Mrs Dunn was distressed by this news, particularly against the background of the pre-existing tensions. She telephoned an official of the Australian Nurses Federation for advice. The official told Mrs Dunn that she was in no state to work and advised her to take stress leave. Mr and Mrs Dunn left the Community that day and travelled to Alice Springs. They left their belongings at the Community.

Mr and Mrs Dunn obtained medical certificates on 9 September 1996 from an Alice Springs doctor for the period from 9 to 23 September 1996. Mr Dunn was diagnosed as suffering from “acute stress reaction”. It would appear from her evidence that Mrs Dunn’s condition was more debilitating than Mr Dunn’s condition.

Mr Dunn made his certificate available to the Association on 12 September 1996 through its accountant, Mr Rohan Richards, having notified him on 10 September 1996 that they were absent on stress leave. Mr Dunn gave his solicitors’ address to Mr Richards as his contact address.

In accordance with the advice of Mrs Dunn’s psychologist, they travelled back to visit the Community briefly on about 16 September 1997. Mrs Dunn did not cope well and they returned immediately to Alice Springs. They did have any interaction with anyone during this visit other than Ms Coe; there was a sports carnival in progress.

While Mr Dunn was absent, the Community’s new administrator, Mr Ricky Hall, commenced work.

In a letter dated 23 September 1996, Mr Hall wrote to Mr Dunn, care of his solicitors, seeking clarification that Mr Dunn was taking leave without pay while recovering from a medical condition, and seeking the return of keys and various other items. Mr Dunn’s limited sick-leave entitlements had been exhausted during his absence.

During this period, Mr Banjo Morton, a senior member of the Community, signed a request to cancel Mr and Mrs Dunn’s land permits effective from 25 September 1996. The request was forwarded to the Central Lands Council. Mr Morton did not give evidence. It appears the permits were not cancelled until after 8 October 1996.

Mr and Mrs Dunn returned to the Community on 25 September 1996. Mrs Dunn found that she was unable to attend work the next day; she describes herself as having been mentally incapable of doing so.

Thursday 26 September 1996: Mr Dunn’s First Meeting with Mr Hall

Mr Dunn met Mr Hall at the Association’s office on 26 September 1996.

Mr Dunn’s continued employment was discussed. The content of the discussion is in dispute. Mr Dunn says that Mr Hall claimed Mr Dunn had abandoned his employment at this meeting, which Mr Hall denies. I accept that Mr Dunn is confused about this.

Certainly there were discussions of the possibility of Mr Dunn leaving amicably in return for a settlement figure. Mr Dunn made reference to the precedent set by Mr Becze’s departure, and Mr Dunn sought a payment of at least four weeks’ salary. No agreement was reached.

Mr Dunn advised Mr Hall that he had an injury to his knee, and that he was going to seek further medical advice for it. I accept that he told Mr Hall he was going to Mount Isa, and gave Mr Hall his mobile phone number.

Before leaving, Mr Dunn tendered an invoice to Mr Hall for cleaning of the men’s centre. His noted his address on the invoice as Murray Bridge in South Australia.

26 September – 8 October 1996: Mr Dunn’s Second Period of Absence

Mr and Mrs Dunn travelled to Mount Isa, where they had a house. It appears, though this is not absolutely clear, that they again left belongings behind at the Community.

Mr Dunn called Mr Hall from Mount Isa on 27 September in response to a message from Mr Hall. They again discussed the possibility of Mr Dunn leaving amicably in return for a payment from the Association. Mr Hall indicated that he expected to be able to gain authority to offer two weeks’ salary.

Mrs Dunn recalls hearing Mr Dunn tell Mr Hall that if the Association was offering less than four weeks then “he’d rather come back to work”.

The conversation was left on the basis that Mr Hall would seek the necessary authority to extend an offer in writing to Mr Dunn. It was envisaged that that offer would be forwarded to Mr Dunn via facsimile. Mr Dunn recalls that Mr Hall was to contact him if and when the offer was ready to obtain the facsimile number. Mr Hall’s recollection was that Mr Dunn undertook to get back to him to provide a facsimile number. It appears that each was of the belief that the other party would make the next contact, while each had the capacity to initiate contact if they wished to.

Mr Dunn suggests that Mr Hall dismissed him in the course of the telephone call. Mr Hall denies this. I accept Mr Hall’s denial.

Mr Dunn obtained a further medical certificate on 27 September 1996 from a Mount Isa doctor for the period from 24 September to 6 October 1996, having been diagnosed as suffering from a right knee injury. Mr and Mrs Dunn claim that Mr Dunn told Mr Hall during this call that he would be off work for another two weeks due to his knee injury.

During this period, Mr Hall made arrangements for the work usually performed by Mr Dunn to be done by two casual employees on a temporary arrangement. It is significant that no permanent replacement was engaged.

It was also during this period that Mr Hall learnt that Mr and Mrs Dunn’s land permits were under review.

Tuesday 8 October 1996: Mr Dunn’s Final Meetings with Mr Hall

Mr and Mrs Dunn returned to the Community by 8 October 1996.

Mr Dunn went to see Mr Hall. He provided Mr Hall with the medical certificate he had obtained in Mount Isa. Mr Hall agrees that at this meeting he raised the proposition that Mr Dunn had abandoned his employment, it having been raised with him recently by a lawyer at the Central Land Council. He told Mr Dunn that he was seeking legal advice. I accept that Mr hall may have referred, in this context, both to the second absence and to the two day gap between the expiry of Mr Dunn’s stress leave certificate and his return to the Community.

Mr Hall says he also advised Mr Dunn that his land permit was under review. He asked Mr Dunn to remain at home pending a resolution to the situation, as he considered it inadvisable for Mr Dunn to be moving around the Community when the status of his land permit was an issue with the Community members. Mr Dunn claims he was not aware his land permit was under review until after he had initiated these proceedings.

Mrs Dunn had again hoped to be able to return to work. However, she again found herself upset at the prospect of returning to her work. She spoke about the matter with Mrs Wilma Ross, the Health Clinic’s President, who came to visit her. Mrs Ross offered to call a meeting with Mrs Lindner and Dr Gill to try to resolve Mrs Dunn’s difficulties, but Mrs Dunn says she told Mrs Ross that she was going to resign, for the Community’s sake and for her own sake. She confirmed the resignation in writing.

Mr Dunn saw Mr Hall later that day. Mr Dunn asserted to Mr Hall that he had been sacked by the Association. Mr Hall says he specifically told Mr Dunn that he had not been sacked. He says he would not have taken that step without taking the necessary advice obtaining the authority of the Committee. The Association’s case was that the Committee had to decide whether permanent employees should be employed or dismissed; for example, Mr Dunn's employment and earlier dismissal had been pursuant to decisions of the Committee.

Mr and Mrs Dunn packed up and left the Community.

Whether Termination at the Initiative of the Employer

Mr Dunn bears the onus of proof on this issue; in other words, he must satisfy the Court that it is more likely than not that his employment was terminated at the Association’s initiative.

In Mohazab v Dick Smith Electronics Pty Ltd (No 2.)[2], the Full Court considered how the courts should determine whether there has been a “termination at the initiative of the employer” for the purposes of the Act. While disavowing an intention to formulate an “exhaustive description” of what is termination at the initiative of the employer, the Court held that:

[2] (1995) 62 IR 200 at 205-206,

“...an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”

In Carrigan v Darwin City Council[3], von Doussa J cited and expressly applied the following principles articulated by Brown-Wilson J in Woods v WM Car Services (Peterborough) Limited[4], which were upheld by the English Court of Appeal[5]:

[3] (unreported, IRCA No. 101 of 1997, von Doussa J, 20 March 1997)

[4] [1982] IRLR 347 at paragraph 17

[5] [1982] ICR 693

“In our view it is clearly established that there is implied in a contract of employment a term that the employers will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee... To constitute a breach of this implied term, it is not necessary to show that the employer intended any repudiation of the contract: the Tribunal’s function is to look at the employer’s conduct as a whole and determine whether it is such that it’s effect, judged reasonable and sensibly, is such that the employee cannot be expected to put up with it... The conduct of the parties has to be looked at as a whole and its cumulative impact assessed...”

Having cited Mohazab, von Doussa J went on to state that, in his view, it is in accordance with the approach of the Full Court to hold that the termination of an employee’s employment was at the initiative of the employer for the purposes of the Act if there has been a constructive dismissal arising from the breach of the implied term as to trust and confidence.

Turning then to the circumstances of Mr Dunn’s case, who really terminated the employment? To adopt the terminology of North J in Slifka v JW Saunders Pty Ltd[6], did Mr Dunn jump or was he pushed?

[6] (1995) 67 IR 316

In my view, the uncontested facts above point more readily to a conclusion that Mr Dunn decided to leave his employment as a result of his wife’s decision to resign.

In addition, where the evidence of Mr Dunn and Mr Hall conflicts, I have generally preferred the evidence of Mr Hall. I formed a positive impression of Mr Hall’s credibility, based upon his demeanour when giving evidence, whereas there were troubling aspects to Mr Dunn’s evidence. Most notably, there was one occasion when his evidence changed without explanation and numerous occasions when his evidence was inconsistent. Where Mr Hall was ready to admit to the limits of his powers of recollection, Mr Dunn almost invariably offered a complete account of any incident. It seems likely that he relied, at times, on a subsequent reconstruction of events, opting for the reconstruction that put his case in its best light.

In the course of the hearing, the Court was careful to focus on the evidence relating to Mr Dunn’s employment. Much of the potential evidence which related only to Mrs Dunn’s employment was excluded. It is not the Court’s task, in these proceedings, to reach any view as to Mrs Dunn’s treatment or as to whether Mrs Dunn may have had a claim under the Act. However, as I noted in the course of the hearing, it would be artificial to have no regard to Mrs Dunn’s circumstances when assessing Mr Dunn’s actions.

Mr Dunn saw an analogy between his situation and that of Mr Becze. In both cases, married couples had been employed by the Community’s employers. In Mr Becze’s case, his wife had been dismissed, and there was at least agitation in favour of his dismissal. In order to resolve the matter without ensuing litigation, the Association agreed to make a payment to him.

In Mr Dunn’s case, his wife appeared to be practically incapable of returning to work. It is reasonable to conclude that she wished to leave the Community, and that he wished to accompany her. However, Mr Dunn was aware that there was also a desire on the part of at least some of the Community that they leave. Mr Dunn also recognised that the Community would find it difficult to legally bring about their departure if Mr and Mrs Dunn were determined to remain in their employment. So long as Mr Dunn professed an intention to so remain, he had some leverage to negotiate a pay out. The various negotiations between Mr Dunn and Mr Hall can best be understood in this context.

Mr Dunn’s agenda throughout was to affirm his entitlement and his intention to remain in his employment, while Mr Hall may have averted to the possibility that the Association already had grounds to dismiss Mr Dunn if it wished. The impression left by Mr Hall’s evidence was that the Association was content to wait until Mr Dunn’s intentions became clear, rather than force the issue.

In the event, Mr Dunn was unable to maintain his bargaining position. His wife had had enough and decided to resign. Given that she was leaving the Community, it was no longer effectively an option that he stay. In the end he had to jump, while maintaining that he had been pushed.

Even assuming, for the purposes of argument, that Mrs Dunn’s employment was terminated at the initiative of her employer, in terms of the Carrigan decision referred to above, and leaving aside the fact that she was employed by a different employer, the Association did nothing to prevent Mr Dunn from retaining his employment. It is well established than employers, when contemplating the dismissal of husband and wife teams, are required to consider their performance separately. An employer with a valid reason to dismiss one such employee has no corresponding entitlement to automatically dismiss that employee’s spouse, notwithstanding any logistical difficulties which might flow from retaining the spouse in employment. Accordingly, the court cannot in fairness have undue regard to the practical difficulties facing Mr Dunn as a result of his wife leaving her employment.

I find therefore that Mr Dunn’s decision to leave was, in employment terms, essentially voluntary.

I accept that there was a desire on the part of at least some individuals that Mr and Mrs Dunn leave the Community, and had the Committee of the Association considered the issue, they may have resolved to take steps to bring about Mr Dunn’s dismissal. The request signed by Mr Morton that their land permit be withdrawn is indicative of that wish. It does appear that there were expressions of regret from members of the Community to Mr and Mrs Dunn as they were leaving, but those expressions were consistent with a view that their departure was necessary to resolve the tensions between the Communities’ outside employees.

The Association did not however act to pursue the option of dismissing Mr Dunn. There is significant doubt in my mind that any gaps in Mr Dunn’s medical certificates would have been justified such a dismissal. Nor would the withdrawal of the land permit necessarily have given rise to a valid reason for dismissal. In the end, there was no ultimatum. There was no course of conduct intended to coerce Mr Dunn into resigning. There was merely an inquiry as to Mr Dunn’s intentions, followed by negotiations which were initiated by Mr Dunn.

I find therefore that Mr Dunn’s employment was not terminated at the initiative of the Association. His claims under Section 170EA, based upon sections 170DE and 170DF of the Act must therefore be dismissed.

Claims for Outstanding Payments

Mr Dunn also bears the onus of proof in relation to these claims. Unfortunately, the evidence in support of these claims presented many difficulties, partly due to the logistical difficulties hampering pre-trial discovery. The quantum of the claim shifted throughout the course of the hearing as new information continued to come to light and as problems with the evidence became apparent.

Claim for Unpaid Overtime

Given the limitations of memory, the most cogent evidence of time worked is usually the contemporaneous record of working hours. In this case, that record was in the form of time cards, which were completed by employees for each week and then used as the basis for making up wages. A bundy clock was available at the Association’s offices to stamp the cards but it was often more convenient for Mr Dunn to complete his cards by hand, particularly on days when he worked at the Health Centre.

Unfortunately, the reliability of the timecards was called into question as it became evident in the course of the hearing that some of Mr Dunn’s time cards were incomplete and had been altered by Mr Dunn to his advantage.

It was alleged that the cards had been altered after these proceedings had been initiated. Mrs Robin Gill, who took on an administrative role with the Association at about the time Mr Dunn’s employment ended, recalls making photocopies of Mr Dunn’s timecards soon after he initiated these proceedings. By the time of the hearing, some of the original timecards contained additional information which Mr Dunn acknowledged was in his handwriting.

The puzzling question was how Mr Dunn could have accessed the cards, which were kept at the Association’s offices at the Community, when he was interstate. The most likely solution is suggested by exhibit A15, which shows Mr Richards’ calculations of wages, and includes the copies of time cards he was faxed from the Community as the basis of those calculations. As a single example, the faxed copy of the time card for Tuesday 16 July 1996 shows the word “Sick”. The original time card has standard hours completed for Tuesday 16 July 1996 from 8.00 am to 5.00 pm with a one hour lunch break. The copy tendered by Mrs Gill, which she recalls as having been made on or after 26 November 1996, shows the same handwritten word “sick” written in ink. The copy tendered by Mrs Gill must therefore have been made before it was faxed to Mr Richards, which presumably must have been at or about the time the wages were made up, in July 1996.

I am satisfied, therefore, that while Mr Dunn may have altered the original cards to his advantage before he left the Community, possibly as late as on 26 September 1996 when he accessed the cards to send copies of his final time cards to Mr Richards, he need not have altered them after proceedings were commenced.

Also of relevance to the reliability of the time cards is the fact that for much of his employment, after Mr Becze left, Mr Dunn was not subject to supervision. Questions arise therefore as to whether and how overtime could have been authorised, and the reliability of any claims of hours worked.

In the event, Mr Dunn appears in his final submissions to have abandoned most of his claims for payment of overtime. In a section of his submissions headed “breakdown of monies still owing”, he claims only underpayment for 4 September 1996 and for the fortnight ending 2 July 1996.

Mr Dunn was usually paid at the rate of $12.00 per hour for ordinary time. However, in the fortnight to 2 July 1996 he acted as Emergency Service Officer, and was paid for his ordinary hours at the rate of $16.18 per hour. Mr Richards conceded in the course of his evidence that he had inadvertently paid Mr Dunn’s overtime for that fortnight by reference to his usual rate of $12.00 per hour. By my calculations, Mr Dunn was underpaid $136.90.

With regard to 4 September 1996, Mr Richards acknowledged that soon after going on stress leave Mr Dunn had provided him with a written record of his start and finish time on that day; his time card had no times noted. The start time was 6.30 am and the finish time was 8.30 pm. Mr Richards did not give evidence as to the lunch break, so I will assume the usual break of one hour. The evidence is therefore that Mr Dunn worked 7.6 ordinary hours and  5.4 hours overtime. Given that the first three hours overtime is calculated at time and a half and thereafter at double time, Mr Dunn was due $202.80 but was only paid $145.20. It would appear that Mr Dunn is due an additional $57.60.

The total monies still owing for underpayment of overtime is therefore $194.50.

Claim for Time in Lieu of Overtime

Mr Richards denies that the Association had a practice of paying out time in lieu of overtime. It appears from the evidence of Mr Richards, who made up the wages during most of Mr Dunn’s period of employment, that it was assumed that Mr Dunn, as a permanent employee, was working at least ordinary hours. Thus, there are instances where Mr Dunn did not complete his time cards for days when he was scheduled to work, but was paid for those days anyway.

The basis for Mr Dunn’s claim for payment out of time off in lieu of overtime is not clear to me, given that he is also claiming for non-payment of overtime based on working days of 7.6 hours. Mr Dunn’s final submissions did not appear to pursue this claim.

Claim for Payment For Cleaning Men’s Centre

Mr Dunn claims that he entered into an arrangement with Mr Becze and Mr Oscar Peterson, the sports and recreation officer, whereby Mr Dunn agreed to clean the Community’s Men’s Centre in return for a payment of $500.00 to cover his labour and the purchase of the necessary cleaning products. Mr Dunn has characterised the arrangement he as a “gentleman’s agreement”.

It was not disputed that Mr Dunn performed the work and purchased the materials. However, I note that his duties with the Association are described as including general maintenance and cleaning.

Assuming that such an agreement existed, Mr Dunn would have been sufficiently aware of the formalities required of Aboriginal organisations in their dealings by the funding bodies to whom they are accountable to be aware that such an informal arrangement was likely to be beyond the authority of those with whom he was dealing and therefore ultimately unenforceable.

Mr Dunn produced a document purporting to be a minute of an Association Committee meeting held on 25 June 1996, which included the following item:

“Men’s Centre – Discussion about cleaning up the Men’s Centre and setting up some games machines, pool table and so on with Steve Dunn supervising after hours. The idea of women using the Centre one night and the men the next seemed like a good idea. It was agreed that we try the new idea and decide on some sort of payment for Steve to run it.”

The minute was not signed and did not form part of the official minute book. In any event, the role proposed for Mr Dunn for which he might be paid appears to be the running of the centre, not the cleaning of it.

The only evidence before me of the agreement that Mr Dunn be paid for the cleaning was that of Mr Dunn, with some support from Mrs Dunn; neither Mr Becze nor Mr Peterson gave evidence. Mr Richards was not aware of any such arrangement.

On the limited evidence before me, I am not satisfied that it is more likely than not that a legally enforceable agreement was entered into by the Association to pay Mr Dunn $500.00.

Costs

The respondent has applied for an order for costs. While such an order would be unusual in proceedings of this nature, the respondent’s application is worthy of serious consideration, given the nature of this claim, and the substantial inconvenience and cost which it has caused the Association.

While in my view Mr Dunn’s decision to leave his employment was finally voluntary, it was not beyond argument that the prelude to that decision was such that the events preceding his departure were such that the Association might be construed as having initiated it. The principles which I have considered must be applied to the particular facts of each case. Mr Dunn’s own version of the facts, if accepted may have led to a different result. My findings as to credibility are not such as would justify an order for costs against Mr Dunn. With regard to the claim for underpayment of wages, Mr Dunn met with some limited success, and many of the claims could have been resolved earlier had all the relevant documentation been available.

On balance, therefore, I will make no order for costs.

I certify that this and the preceding seventeen (17) pages are a true copy of the Reasons for Decision herein of Judicial Registrar R. D. FARRELL.

Associate:

Dated:            27 August 1998

Applicant appeared in Person
Counsel for the Respondent:	Mr M. Howden
Solicitor for the Respondent:	Central Australian Aboriginal Legal Aid Service Inc.
Date of Hearing:	19, 20 May, 11 & 12 August 1997
Date of Final Submissions	30 October 1997
Date of Decision:	27 August 1998