Furey, Frank George v Civil Service Association of Western Australia
[1998] FCA 733
•19 JUNE 1998
FRANK GEORGE FUREY v. CIVIL SERVICE ASSOCIATION OF W.A. (INCORPORATED)
No. WAG 82 of 1997
FED No. 733/98
Number of pages - 32
Industrial Law
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
R.D. FARRELL JR
Industrial Law - Alleged Unlawful Termination - whether termination at the initiative of the employer - alleged abandonment - whether entitlement to notice - damages in lieu of notice - effect of exgratia payment - whether termination for reasons including a proscribed reason - whether temporary absence from work because of illness - failure to provide medical certificates - whether seeking office as a representative of employees - seeking office within employer where employer is an employee organisation - whether substantial an operative factor in decision.
Workplace Relations Act 1996 ss 170CP, 170CE, 170CK, 170CM, 170CQ, 170CR.
Workplace Relations Regulationsr 30C, 30CA.
Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200.
Stojanovic v The Commonwealth Club (unreported, IRCA No. 652 of 1995, Moore J, 8 December 1995).
Chomiczewski v Cadbury Schweppes Pty Ltd (unreported, IRCA. No. 459 of 1996, Parkinson JR, 5 September 1996)
Black v Brimback City Council (unreported, FCA No. 74 of 1998, Moore J, 12 February 1998).
Pacific Publications Pty Ltd v Cantlon (1983) 4 IR 415.
Bill v Welding Technology Institute of Australia (unreported, IRCA No. 22 of 1998, McIlwaine JR, 16 June 1997).
PERTH, 3-4 June 1998 (hearing), 19 June 1998 (decision)
#DATE 19:6:1998
The Applicant represented himself.
Counsel for the Respondent: Mr A. Niardone
Solicitors for the Respondent Ilbery Barblett
THE COURT ORDERS THAT:
The respondent pay the applicant within 14 days damages of $2,292.00 pursuant to Subsection 170CR(4) of the Workplace Relations Act 1996.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
R.D. FARRELL JR
INTRODUCTION
This is an application under Section 170CP of the Workplace Relations Act 1996 ("the Act"). The application is for reinstatement and compensation arising from the alleged unlawful termination of the employment of the applicant, Mr Frank Furey ("Mr Furey") by the respondent, the Civil Service Association of WA Inc. ("the C.S.A.").
In the course of his closing submissions, Mr Furey sought leave to amend his application to include a request for the imposition upon the C.S.A. of a penalty under Section 170CR of the Act. There was no notice of this proposed amendment until after the parties had led their evidence. Mr Furey submitted that the appropriate penalty should be "on the low side." In my view, if a respondent is to face a penalty which is at least quasi-criminal in nature, it is desirable that they be aware of it from the outset. In the circumstances of this case, therefore, I will not grant Mr Furey leave to amend his application in order to pursue a penalty.
BRIEF FACTUAL OVERVIEW
The C.S.A. is a union registered under the Industrial Relations Act 1979 (W.A.) which covers professional, administrative, clerical and technical employees in the Western Australian public sector. Mr Furey had been employed with the C.S.A. since September 1989, and was one of its five Senior Industrial Officers at the time of the termination, heading the policy and research team.
The C.S.A. is run from day to day by Mr David Robinson ("Mr Robinson"), its elected General Secretary. Mr Furey was one of six candidates who stood for election in June 1996 to that position[1]. Mr Furey's bid for election was unsuccessful; he says he abandoned active campaigning at an early stage and concedes that, had it been a parliamentary election, he would have "lost his deposit". The incumbent General Secretary, Mr Robinson, was re-elected. Mr Furey continued to work with and, on some matters, report to Mr Robinson over the ensuing months, with no significant change in his duties.
[1] The election was technically for the corresponding position in the C.S.A.'s federal counterpart, the Community and Public Sector Union, State Public Services Federation Group, Western Australian Branch ("C.P.S.U."); under an order of the W.A. Industrial Relations Commission, officers elected to the C.P.S.U. hold the corresponding offices in the C.S.A..
From December 1996 to February 1997, Mr Robinson and Ms Tony Walkington, the Assistant Secretary, formed the view that Mr Furey's performance of his duties had deteriorated in some respects.
Mr Furey now concedes that at that time his performance was not up to its usual standard, due to personal difficulties which included clinical depression.
Mr Robinson and Ms Walkington arranged meetings with Mr Furey to discuss his recent work performance.
The first of these meetings was on Tuesday, 18 March 1997. Mr Furey had returned to work that day, having been absent since Monday, 10 March 1997.
Mr Furey walked out of the first meeting before its conclusion, and immediately attended his doctor. The doctor then telephoned Mr Robinson to advise him that Mr Furey would be unfit to work until at least 24 March 1997.
A second meeting took place on 24 March 1997. While Mr Robinson's concerns about Mr Furey's standard of performance were not finally resolved, it was agreed at the conclusion of that meeting that Mr Furey would provide a report to Mr Robinson and Mr Walkington relating to the performance issues they had discussed, and that Mr Furey would take further leave before those issues and any additional performance issues were canvassed further.
When Mr Furey failed to attend to the formalities of applying for that leave, Ms Walkington wrote to him on 4 April 1997 advising him of the details relating to his leave entitlements and notifying him that his anticipated date of return to work was 8 May 1997.
Mr Furey's evidence is that on or about 17 April 1997, he posted a handwritten letter addressed to Ms Walkington at the C.S.A.'s offices explaining that he wished to exhaust his sick leave before using his annual leave and long service leave, so that he would not be required to return to work until 10 June 1997. He says the letter also enclosed three medical certificates, two relating to earlier sick-leave claims and the third certifying him unfit for work for the five weeks from Monday, 24 March to Monday, 28 April 1997.
Ms Walkington and the C.S.A. deny receiving any such letter. Mr Furey received no response or acknowledgment of his request.
Mr Furey did not return to work on 8 May 1997.
After seeking legal advice, Mr Robinson wrote to Mr Furey on 19 May 1997 to advise him that his employment was terminated on the grounds that his conduct constituted an abandonment and/or repudiation of his employment contract, which repudiation was accepted. The letter enclosed an ex gratia payment equivalent to four weeks' pay.
Mr Furey filed an application in the Australian Industrial Relations Commission relating to the termination on 10 June 1997.
CONTENTIONS
When he made his initial application to the Australian Industrial Relations Commission under Section 170CE of the Act, Mr Furey contended that the C.S.A.'s termination of his employment was:
* harsh, unjust or unreasonable;
* in breach of Section 170CK of the Act (prohibited grounds of discrimination); and/or
* in breach of Section 170CM of the Act (failure to give statutory notice).
The Australian Industrial Relations Commission ("the Commission") was unable to settle the matter by conciliation. Under the scheme of the Act, Mr Furey was required to elect whether to pursue his claim that the termination was harsh, unjust or unreasonable or to pursue his claims that Section 170CK of the Act was breached. He elected to pursue his claim in this Court for reinstatement and compensation in respect of the alleged contravention by the C.S.A. of Sections 170CM and 170CK of the Act.
Specifically, Mr Furey contends in these proceedings that the C.S.A.'s termination of his employment was:
* For reasons which included his temporary absence from work because of illness, in breach of paragraph 170CK(2)(a) of the Act; and/or
* For reasons which included his seeking office as a representative of employees, in breach of paragraph 170CK(2)(d) of the Act; and
* without payment of the required amount of compensation instead of notice (ie four weeks' pay) in breach of paragraph 170CM(1)(b) of the Act.
The C.S.A. contends that, because Mr Furey abandoned his employment, and there was no termination for the purposes of the Act.
Alternatively, the C.S.A. contends that the reason Mr Furey's employment was terminated was Mr Robinson's belief, held in good faith, that Mr Furey's conduct amounted to an abandonment of his employment, and that the matters claimed by Mr Furey were not reasons for the termination of his employment.
The C.S.A. also contends that Mr Furey's conduct in abandoning his employment was "serious misconduct" for the purposes of paragraph 170CM(1)(c) of the Act, so that he was not entitled to notice of termination under Section 170CM.
WHETHER THERE WAS A TERMINATION AT THE INITIATIVE OF THE EMPLOYER
The Full Court of the Industrial Relations Court of Australia held in Mohazab v Dick Smith Electronics Pty Ltd[2] that "termination" for the purposes of the Act means "termination at the initiative of the employer". The reasoning behind that decision is equally applicable to the provisions in the amended Act which are the subject of this application.
The onus of proving that there was a termination at the initiative of the employer rests upon Mr Furey. If it is found there was no such termination, then the Act does not apply and the Court has no jurisdiction.
Just as a dismissal which takes the form of a resignation may nevertheless sometimes be found in all the circumstances to be a termination at the initiative of the employer, so a termination resulting from the absence of an employee without leave might also be found to be a termination at the initiative of the employer in some circumstances.
While disavowing an intention to formulate an "exhaustive description" of what is termination at the initiative of the employer, the Court in Mohazab v Dick Smith Electronics Pty Ltd[3]held that:
"...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."
Thus, the first issue for this Court to decide is whether Mr Furey voluntarily left the employment relationship.
Mr Furey contends that at the time of the termination he believed, on reasonable grounds, that he was on approved leave. If that is accepted, then clearly he did not voluntarily leave his employment. There may also be other factors which point to the conclusion that Mr Furey left his employment voluntarily or involuntarily.
It is necessary, therefore, to examine in more detail the circumstances surrounding his absence.
FINDINGS OF FACT
Mr Furey had been dealing with personal difficulties for some time. While these difficulties were sometimes only referred to obliquely in the evidence, it is appropriate that I record my findings concerning his personal circumstances, based upon the evidence.
In April 1994, Mr Furey's young son was diagnosed with a serious and usually terminal form of cancer. The treatment for the illness was described by Dr Geoffrey Kirkman, their family doctor, as "extensive, traumatic and, at times, life-threatening". It included surgery, chemotherapy, radiotherapy and a bone marrow transplant. The child eventually succumbed to the illness on 20 February 1996.
Mr Furey was also experiencing marital difficulties[4]. At some time in 1996, he was sharing accommodation with another union official in Victoria Park, having separated from his wife.
[4] It is not clear to me on the evidence whether Mr Furey was formally married, but the relationship appears to have been at least a defacto relationship.
Dr Kirkman had been involved in the care of Mr Furey's son. In March 1996, he diagnosed that Mr Furey was suffering from severe depression and began treatment, prescribing anti-depressant medication.
In recognition of Mr Furey's difficulties, Mr Robinson, the C.S.A.'s Secretary, permitted him considerable flexibility in his attendance at work during the period leading up to and surrounding his son's death.
It seems that matters then improved for Mr Furey for a time. He moved back to live with his wife and their daughter.
There was no evidence of any difficulties concerning Mr Furey's attendance at work in the period from March 1996 to December 1996, save for a half day's sick leave on 26 November 1996.
By December, however, Mr Robinson and Ms Walkington began to have some concerns about Mr Furey's work performance. Mr Furey says that he had begun to become depressed in December, as he faced the prospect of the first Christmas season without his son.
On Tuesday, 7 January 1997, Mr Robinson sent an e-mail to Mr Furey concerning an unauthorised absence from work by Mr Furey that day. The e-mail was sent in the context of earlier concerns about Mr Furey's performance, and in particular his failure to meet certain deadlines. Relevant parts of the e-mail follow:
"Dave Robinson To: Frank Furey Cc: Toni Walkington Subject: attendance at work - 7/1/97 This morning I went in search of yourself in order to follow up on a selection report that Toni and I have been awaiting for some considerable time now... I was advised by Eddy Rea that you had phoned him and told him that you were not coming into work and that you were taking an "owed" RDO. I must indicate to you that I am extremely concerned at your failure to discuss with me, and to seek my permission, for you to take an "owed" RDO. Eddy Rea is not your Supervisor and is in no position to authorise your taking of the RDO - only Toni or I are in a position to do that, as you well know. Furthermore, you are required at work and are required to carry out important tasks... I would not have authorised (and indeed do not authorise) you taking an additional RDO in circumstances where you have failed to seek prior approval and have also failed to provide an important, long overdue Selection report to both Toni and I. Additionally, you have created for us, a situation that is both highly embarrassing and highly unprofessional. It is my view that we will need to review work patterns and working hours with you when I return to work in the week of 20/1/97... A hard copy of this E-mail will be placed on your personal file. I would suggest that you might like to respond to me in order that your response may also be placed on file."
The next day, Wednesday, 8 January 1997, Mr Furey took a half day's sick leave.
There was no evidence of any response from Mr Furey, nor of any later meeting to review work patterns and working hours as foreshadowed in the e-mail. The account of events set out in the e-mail was not challenged.
As Senior Industrial Officer heading the policy and research team, Mr Furey notionally reported to a Chief Industrial Officer. However, that position had been vacant since about July 1996. Mr Furey therefore reported to Ms Walkington, the Assistant Secretary, in relation to most matters and to Mr Robinson in relation to particular matters, including matters involving the C.S.A.'s rules and constitution. Mr Rea was one of two industrial advocates, and reported to Mr Furey. He and Mr Furey were friends as well as colleagues.
On Thursday, 9 January 1997, Mr Robinson followed up his specific e-mail to Mr Furey with a general memorandum to all staff concerning "Absence from Work". The memorandum was in the following terms:
"As we have had quite an influx of new staff in the last 12 months, it is timely to inform or remind all staff of the procedures attached to approval of leave. As a general rule, all leave must have the prior approval of the appropriate senior/manager. This will obviously not be possible in every situation but in the majority of cases involving annual leave, long service leave, accrued RDO's etc, it is expected that prior approval will be obtained. In cases of genuine emergency leave, where the absence cannot be foreseen (short leave and short term sick leave are two examples) it is acknowledged that prior approval cannot usually be obtained. In instances of this type, advice must be communicated to the relevant senior/manager as soon as practicable, or failing this, to the next senior management level. RDO's are a special case in that regular RDO's have the prior approval on an on-going basis. However, changes to RDO's must have the prior approval of the relevant senior/manager. This is especially so in the case of staff wishing to avail themselves of accrued RDO's. These procedures are designed to ensure that we have sufficient resources to service our members and to fully achieve the work of the Union while also ensuring that leave taken is within the individual's entitlements and is appropriately accounted for. (signed) Dave Robinson Branch Secretary"
On Tuesday, 21 January 1997, Ms Walkington sent a memorandum to Mr Furey requiring him to complete, sign and return sick leave forms for the half days on 26 November 1996 and 8 January 1997, and a full day's sick leave on Thursday, 16 January 1997. In the absence of contrary evidence, I have assumed that he complied with this request.
I interpret these actions by Mr Robinson and Ms Walkington as an attempt on their part to clarify and emphasise the standard of conduct they expected from Mr Furey with regard to his attendance at work. Mr Robinson had, out of sympathy for Mr Furey's personal circumstances, been prepared in the past to extend to him a degree of flexibility and relaxation of the usual standards during a difficult time. That flexibility was not intended to be available to Mr Furey permanently. In December 1996, Mr Furey appeared to be beginning to avail himself again of the flexibilities he had been granted in the past concerning his attendance. Mr Robinson and Ms Walkington were signalling to him that he would now have to meet the usual standards of attendance. Mr Furey had not raised with them any reason why those standards should not apply.
Mr Furey's state of depression seems to have continued to deteriorate. It was evident to his colleague, Mr Rea. Mr Furey did not raise it at work, but took other steps to deal with it. He saw Dr Kirkman on Monday, 10 February 1997 and the next day began counselling with a clinical psychologist. He attended another counselling session on 18 February 1997.
Mr Furey attended Dr Kirkman again on Monday, 24 February 1997, which was four days after the anniversary of his son's death. The appointment was at Dr Kirkman's request; Mr Furey's wife had called him to express concern about Mr Furey's state of depression.
Dr Kirkman noted that Mr Furey advised him that his relationship with his wife had irretrievably broken down, and that his wife was proposing to move out. He also told the doctor that he had recently been feeling very depressed. The doctor prescribed further anti-depressant medication. Mr Furey continued to attend counselling.
Mr Furey took two days sick leave on Thursday, 27 February and Friday, 28 February 1997.
On Sunday, 9 March 1997, Mr Furey had an accident in the union car, damaging the front headlight, bonnet and bumper.
On Monday, 10 March 1997, Mr Furey moved out of the family home in Kalamunda, and went to stay with his sister in Subiaco. He says that "bitter" property settlement negotiations ensued.
Mr Furey visited the doctor that day, reporting that he felt "lousy". Dr Kirkman was seriously concerned about Mr Furey's state of depression during that visit, and considered him a suicide risk. Dr Kirkman noted that Mr Furey was suffering from an itchy rash to his neck and shoulders, which the doctor explained in evidence was often stress related. He increased the dosage of Mr Furey's anti-depressant medication.
Mr Furey was aware that where more than two consecutive days of sick leave were taken, a medical certificate was required under his conditions of employment. However, Dr Kirkman says in his affidavit that Mr Furey did not obtain a medical certificate on this visit.
Mr Furey did not attend work on Monday, 10 March 1997, nor the days immediately following. He went to a counselling session on Tuesday, 11 March 1997. Mr Furey did not advise Ms Walkington of his absence, nor of the reasons for it. He says that the members of his team were well aware that he was sick. Mr Rea agrees that Mr Furey had been manifesting signs of stress and depression in his appearance and demeanour at work; for example, he often looked distressed and had difficulty focussing his attention, and he sometimes looked and sounded "teary".
At some stage that week, Mr Furey's car was taken into the office for repairs. There was a difference in the evidence on this point which is of relevance later. Mr Furey says that he drove it in, and was dropped back to his sister's home in Subiaco by Mr Gordon Fitzsimmons, the C.S.A.'s building administrator. Mr Fitzsimmons recalls seeing the car damaged after the accident, but doesn't believe he was present when the car was brought in after the accident. He thought it possible that Mr Harris, the administrative manager, had gone out to collect the car. Mr Harris, who had already given evidence, was not asked about this. While Mr Fitzsimmons recalls an occasion when he dropped Mr Furey off to Subiaco, he believes it was a later occasion, in late April, when Mr Furey returned his car.
Mr Furey went into work on the morning of Thursday, 13 March 1997 to attend to a tribunal hearing. He met Ms Walkington after lunch, at her request, and told her that he was on sick leave until the end of the week, and would return to work on Tuesday, 18 March 1997. Again, there was no evidence of any discussion between them as to the nature of his condition and the reasons for it.
While Mr Furey's condition was originally exacerbated by his circumstances outside the workplace, I am satisfied that his absences and lower level of performance since December had by then created problems for him at work, the most obvious of which were a backlog of tasks and missed deadlines. Thus, work was also becoming a factor aggravating his condition. Mr Robinson and Ms Walkington were aware of the missed deadlines and the absences, but not of the reasons for it.
On Friday, 14 March 1997, Ms Walkington arranged by telephone for Mr Furey to attend a meeting with Mr Robinson and herself at 8:30 am on Tuesday, 18 March 1997.
Mr Furey returned to work on Tuesday, 18 March 1997 and attended the meeting.
Mr Robinson began by stating that the purpose of the meeting was to discuss his concerns about Mr Furey's performance.
In his affidavit evidence, Mr Furey claims that:
* he had only two to three hours' notice of the meeting from Ms Walkington;
* Ms Walkington gave him no warning of the purpose of the meeting; and
* he objected to the meeting proceeding without a colleague present.
However, during cross-examination, Mr Furey conceded that he did not ask for a colleague to be present and that had he done so his request would have been granted. He also conceded that Ms Walkington had arranged the meeting with him the previous Friday,. Ms Walkington says that she also told him that Friday, in general terms, that the meeting was to discuss his absences and work issues.
The meeting proceeded with Mr Robinson beginning to detail a series of tasks which in his view Mr Furey had failed to perform satisfactorily or at all.
Mr Furey initially responded defensively to some of these matters, disputing some of Mr Robinson's assertions and citing competing priorities. He made no reference to his depression nor to his personal difficulties. Mr Furey then became agitated and went to walk out of the meeting. When Mr Robinson objected and asked him to sit down, Mr Furey abused him, telling him loudly to "get fucked", and adding that he was "sick" and was going to see his doctor. Ms Walkington recalls Mr Furey also adding, after announcing his intention to see a doctor, that "then there would be problems". This was not challenged in cross-examination. Mr Furey then left the meeting, slamming the door. He went to his office to collect his things before leaving.
Mr Robinson called Mr Fitzsimmons and Mr Derek Harris, the Administrative manager, and told them to recover Mr Furey's keys and security passes. They went to Mr Furey's office. Mr Fitzsimmons asked for and obtained the relevant keys from him. Mr Furey says he was escorted from the office. Mr Harris denies doing so, and Mr Fitzsimmons does not recall it. Mr Harris recalls that Mr Furey looked pale and shaken. Mr Fitzsimmons adds he was trembling.
In explanation of his decision to recover the keys, Mr Robinson cites his concern that security records had shown that Mr Furey was entering the office late at nights while he was purporting to be on sick leave. In any event, Mr Furey was leaving the office after a heated confrontation. There was at least some prospect that he might choose not to return. I am satisfied that it was not inappropriate for Mr Robinson to take steps to recover the keys.
It seems Mr Robinson did nothing further, notwithstanding the extraordinary confrontation which had occurred between them. Given Mr Furey's statement about seeing his doctor, it would appear they were content to wait for Mr Furey to take the next step, whatever that might be. Certainly, the confrontation was the catalyst for Mr Furey's having to review his situation. He could not longer attempt to conduct "business as usual".
Mr Furey visited Dr Kirkman later that day. Dr Kirkman says Mr Furey was in a distressed state. He told Dr Kirkman that he was under stress from his employers, and had just walked out of a meeting where his work performance had been questioned. He said he had felt "very shaky" before he had left. Mr Furey told the doctor he had been feeling reasonably well until the meeting. He had, of course, been away from work the previous week.
Dr Kirkman then issued a sick leave certificate for the week to Monday, 24 March 1997. Though he does not recall it, Dr Kirkman believes that he probably also issued a certificate that day to retrospectively cover the period from 10 to 17 March 1997, as Mr Furey contends.
Dr Kirkman agreed to contact Mr Robinson to confirm that Mr Furey was unfit for work and to discuss his condition.
Ms Walkington was with Mr Robinson when they received Dr Kirkman's telephone call. Dr Kirkman advised Mr Robinson that Mr Furey was suffering from severe depression and an anxiety-related condition. He said he expected Mr Furey to be away from work from the rest of the week. He queried whether Mr Furey's dismissal was imminent. Mr Robinson told Dr Kirkman that while there were performance issues to be addressed by Mr Furey and his position in the organisation was tenuous, there was no intention to dismiss him. Mr Robinson noted that the C.S.A. had given Mr Furey a great deal of consideration in the past, but that it had now come to an end.
Mr Robinson then wrote to Mr Furey that day in the following terms:
"Thank you for your attendance at the meeting today with Ms Toni Walkington and myself. As the meeting was prematurely concluded as a result of your walking out I write to advise you that there are still performance related matters that need to be canvassed with you. I would anticipate dealing with these upon your return to work. I should note, for the record, that these issues are now at a most serious and critical stage. I also wish to advise that I have been contacted by your Doctor who advises that you are unfit to resume work until Monday, 24 March, 1997 due to anxiety related occurrences. I would appreciate you keeping either myself or Ms Walkington advised as to the progress of your health. Should you not be fit to return to work on Monday, please advise Ms Walkington at the earliest opportunity."
While the tone of this letter might be characterised as lacking in sympathy, it must be remembered that it was written on the same day as the confrontation, and in the context of concerns about Mr Furey's performance and the adverse impact it was having on the C.S.A.'s performance. At this time, Mr Robinson was also still unaware of the particular marital difficulties Mr Furey was experiencing at the time, such as the property settlement negotiations. The legitimacy of Mr Furey's absence due to illness is not challenged, and there is an early indication of the Union's concern that it know when he will be returning.
Mr Furey attended a further counselling session on Thursday, 20 March 1997.
On Friday, 21 March 1997, a deed was executed to formalise a property settlement that had been reached between Mr Furey and his wife. As part of that arrangement, Mr Furey agreed to purchase his wife's share of their home. The need to make arrangements to meet these new obligations was to create financial difficulties for Mr Furey in the months to come.
On Monday, 24 March 1997, Mr Furey returned to work. At 4:00pm that afternoon, he attended a further meeting with Mr Robinson and Ms Walkington.
Mr Furey apologised for his manner at the previous meeting, explaining that he was under considerable stress and explaining, for the first time, his personal circumstances. He referred to the problems with his property settlement and to the fact that he was engaged in counselling sessions.
With the benefit of this background information, they then went on to canvas the performance-related issues raised by Mr Robinson. Mr Furey describes the tone of the meeting as "amicable". He conceded that his performance had not been up to his usual standard. He raised matters by way of explanation and mitigation, and disputed some matters. Mr Robinson made it clear that there were further issues of concern which needed to be discussed, either then or when Mr Furey felt able to respond.
However, Mr Robinson told Mr Furey that he needed to know whether Mr Furey currently felt capable of fulfilling his duties before taking the performance issues further. He referred to Mr Furey's behaviour at the last meeting, and to Dr Kirkman's telephone conversation about Mr Furey's "personal psychological issues". Ms Walkington explained that they needed him to be able to perform his duties effectively because the C.S.A. had begun a wages campaign and a campaign against the government's legislative and administrative actions.
Mr Furey replied that, while he felt much better, he was not sure he could immediately perform his role as effectively as they would wish. He raised the possibility of recreational leave, saying it would give him the opportunity to think about his future and to explore the options open to him. At that time he was questioning whether he had "had enough".
It was agreed that Mr Furey would take leave for at least a further two weeks, and possibly for as long as six weeks. Mr Robinson says he may have discussed the possibility of Mr Furey taking further sick leave in the short-term until he got his other leave arrangements in place. Ms Walkington told Mr Furey that they could also discuss leave without pay if he wished.
It is clear, however, that Mr Robinson and Ms Walkington told Mr Furey that they required certainty with regard to the length of his absence under any leave arrangements, so they could take the necessary steps to allocate staff so that his role and workload could be performed effectively in his absence.
Ms Walkington says Mr Furey told them he would let them know before the end of the week (ie Friday, 28 March 1997) if he wanted more leave than his accrued annual leave and long service leave entitlements.
Mr Furey also volunteered during the meeting that he wasn't sure if he wanted to continue to work in the Union movement any longer. He had given thought to his future and wanted a change. He suggested that they could abolish his position, and that he could then be made redundant. This proposition was rejected by Mr Robinson and Ms Walkington at the time. I note that, about a year later, financial restrictions flowing from, among other things, the abolition by the W.A. government of payroll deduction of union dues had forced them to implement the proposal as part of a restructuring of the C.S.A.'s operations.
Mr Robinson said he would leave further discussion of the performance issues until Mr Furey had returned to work. Mr Furey volunteered to provide a written explanation within a week for those matters Mr Robinson had already raised at the meeting.
The outcome of the meeting appeared to meet the needs of both the C.S.A. and Mr Furey. The C.S.A.'s immediate problem was that they needed a Senior Industrial Officer heading up the policy and research team who was able to reliably perform at full-capacity during these important campaigns. Mr Furey was clearly not currently able to be that person. With Mr Furey taking leave, they could fill his position on a temporary basis with an appropriate replacement. The alternative course would have been to immediately pursue the allegations of poor performance. To do so would have been unpleasant and, given the medical issues involved, problematic. It may have been felt necessary to formally warn Mr Furey about his performance and place him on a work trial for a defined period, which would have been undesirable at that crucial time if they believed he would not be able to cope with his work responsibilities. By deferring consideration of the performance issues until his return, then those issues could be dealt with at a more convenient time, and there was a substantial prospect that Mr Furey might resign in the interim, so that the problems would never need to be addressed.
From Mr Furey's point of view, he clearly wasn't able to cope with the stresses of his workplace at that time. He was unlikely at that time to be able to maintain the levels of performance that would be required of him. Thus, if he were required to continued to work, it was likely that he would ultimately be dismissed. Alternatively he could have chosen to resign, so that he didn't have to cope with the pressures of work at that time. By taking leave, he could avoid exposure to the stresses of work for the time being, while keeping the option open of returning to work when he was well.
Mr Furey did not complete the usual leave application forms. Ms Brewer recalls Mr Furey calling her to tell her that he would be in to sign the necessary leave forms and bring in his medical certificates. He made an appointment, but cancelled.
When nothing had been done to formalise the position by Wednesday, 26 March 1997, Ms Walkington instructed Ms Brewer to calculate Mr Furey's leave entitlements and to prepare a draft letter advising him of those entitlements, and confirming specific leave arrangements and his return date. Ms Brewer says she then managed to contact Mr Furey on the evening of Friday, 28 March 1997 to discuss his leave entitlements and arrangements. She had been unable to contact him during office hours and was not going to be at work the following Monday,. I note that Friday, 28 March 1997 and Monday, 31 March 1997 were part of the Easter Holidays.
Security records indicate that Mr Furey's security key was used to access the C.S.A.'s building on the afternoon of Sunday, 30 March 1997 and again on the afternoon of Monday, 31 March 1997. It would seem his keys had been returned to him, perhaps on 24 March 1997 when he returned to work.
Pursuant to the property settlement arrangements, Mr Furey moved back into sole possession of the Kalamunda home on about Tuesday, 1 April 1997. He changed the telephone number on that day to an unlisted number, for reasons relating to his marital difficulties.
Mr Furey had further telephone discussions about his leave arrangements with Ms Walkington. Most of the evidence concerning these discussions was deposed to by Ms Walkington in her affidavit. Her version of events was not challenged in cross-examination, but her recollection of the timing of her calls appears to sometimes be inconsistent with the union's telephone records which were tendered into evidence.
Mr Furey acknowledges a telephone discussion with Ms Walkington on Wednesday, 2 April 1997. Ms Walkington called him on his mobile telephone to arrange the return of one of the C.S.A.'s lap-top computers, apparently to the C.S.A.'s office.
Mr Furey recalls Ms Walkington asking him at some stage not to visit the office without prior arrangement while on leave, as there had been a number of security breaches. Mr Furey assumed that Ms Walkington felt he could not be trusted in the office without supervision.
When Ms Walkington asked whether he knew what he was doing about his leave application, Mr Furey told her he had arranged a meeting with Ms Brewer and would apply following that meeting. He also undertook, at Ms Walkington's request, to provide a medical certificate for the absence from 10 March to 14 March 1997 to Ms Brewer at that meeting.
Ms Brewer, Mr Harris and Ms Walkington further reviewed Mr Furey's leave entitlements, and resolved in Mr Furey's favour various uncertainties so as to maximise those entitlements. When she and Ms Brewer had not heard back from Mr Furey by the end of the week, Ms Walkington wrote to him on Friday, 4 April 1997 formalising the leave arrangements as follows:
"I write to confirm the matters raised with you by Dave Robinson and myself at meetings on Tuesday, 18 March, 1997 and Monday,. 24 March, 1997 were as follows:...
[Four issues relating to Mr Furey's failure to perform of specific tasks were then detailed]
Dave Robinson indicated that there were other matters which would need to be addressed in the future. However following consideration of your current circumstances and your wish to proceed on further leave it was agreed that these would not be canvassed until you returned to work.
At our meeting on Monday, 24 March, 1997 you indicated that you would provide a report to Dave and myself relating to those matters canvassed. As yet this report has not been received, however I would appreciate your providing a report.
In addition as discussed with you on Wednesday, 2 April, 1997 your leave arrangements will be recorded as follows:
RDO 20/02/97
RDO 21/02/97
Sick Leave 27/02/97 to 28/02/97 (2 days)
Sick Leave* 10/03/97 to 14/03/97 (5 days)
RDO 17/03/97 to 17/03/97 (1 day)
Sick Leave* 18/03/97 to 21/03/97 (4 days)
PS Day in Lieu of 2/1/97 25/03/97 to 25/03/97 (1 day)
Annual Leave 26/03/97 to 27/03/97 (2 days)
PS Day in Lieu 01/04/97 to 01/04/97 (1 day)
RDO in Lieu of 31/3/97 02/04/97 to 02/04/97 (1 day)
Annual Leave 03/04/97 to 08/04/97 (4 days)
Accrued RDO 09/04/97 to 09/04/97 (1 day)
Long Service Leave 10/04/97 to 07/05/97 (20 days)
You will need to provide medical certificates for the dates indicated with an (*) to retain these days as sick leave debits. Please forward the medical certificates to Pat Brewer as soon as possible.
Therefore, your anticipated date of return to work will be Wednesday, 8 May, 1997.
I would request you advise either Dave Robinson or myself before 10 April 1997 should you wish to make application for a further period of absence from work following consultation with your medical practitioner.
Your balance of full pay sick leave is eight (8) days and seventy four half days. You may convert your half days to full days which results in an entitlement to forty-five (45) days.
You will need to arrange for the vehicle you are currently allocated to be returned to the CSA Centre by 5:00pm on Tuesday, 29 April 1997."
The letter was sent to an address similar to Mr Furey's Kalamunda address. The street number was incorrect, but it reached Mr Furey without difficulty, because he shared a mailbox with the person at the incorrect address.
The C.S.A. sought applicants for the position of Acting Senior Industrial Officer for the period of Mr Furey's anticipated absence. Ms Dean Whitaker was appointed.
On either Friday, 4 April or Saturday, 5 April 1997, Mr Furey telephoned Ms Walkington to make alternative arrangements to return the lap-top computer.
When Ms Walkington asked again about his leave application, Mr Furey said he would arrange another meeting with Ms Brewer on Monday, 7 April 1997.
Mr Furey offered to return the computer to Ms Walkington's home the next day. Ms Walkington offered to collect it from him but he declined, saying he had no fixed address at the time; in evidence he said he had returned to Kalamunda by then.
Ms Walkington had planned to go out that day, and told Mr Furey the times when she would be home to accept collection. Mr Furey could not confirm a specific time. In the event, he dropped the computer off when Ms Walkington was not home. Mr Furey says Ms Walkington had contemplated this possibility and told him of an appropriate place to leave it; Ms Walkington does not recall this. In my view, Ms Walkington was entitled to conclude by then that Mr Furey was avoiding her, and Mr Furey concedes that such a conclusion would have been correct.
Mr Furey did not contact Ms Brewer on Monday, 7 April 1997.
Ms Walkington says in her affidavit that she telephoned Mr Furey again that day or the next, Tuesday, 8 April 1997, to ask again about the leave application.
Ms Walkington says that during that conversation, Mr Furey advised her that he was not sure when he would be ready to return, that he may need more leave but would let her know soon. She reiterated that the situation was unsatisfactory and that they needed to be clear about his leave. In similar terms to the letter, she requested the outstanding medical certificates and leave forms and explained that his annual leave and long service leave entitlements took him to Wednesday, 7 May, and that if he wanted further leave he was required to apply by the end of 9 April 1997, when his annual leave was exhausted. Mr Furey agreed to do so. He also told Ms Walkington that he would provide the written report on performance issues "soon".
The union's telephone records do not show any calls to Mr Furey's mobile telephone on 7 or 8 April 1997. The next calls from the office to Mr Furey were two five minute calls at around 11:00 am on Wednesday, 9 April 1997. Ms Walkington's account of this conversation has her going through the matters set out in the letter dated 4 April 1997, and telling Mr Furey that she would confirm their discussion by letter. Her account also suggests that some time remained before the expiry of the 10 April 1997 deadline. Given that Mr Furey would probably have already received the letter by 9 April 1997, it may be that this conversation took place the previous week. There was a call from the office to Mr Furey around lunch time on Thursday, 3 April 1997, the day before the date of the letter. It may have been discussed when Mr Furey rang in to make alternative arrangements about the computer.
I find that the last time Mr Furey and Ms Walkington spoke to each other was before the delivery of the computer.
Mr Furey saw Dr Kirkman again on 9 April 1997. Dr Kirkman's notes begin:
"Feeling much better: Has been unfit".
Dr Kirkman says Mr Furey's condition had improved. The notes go on to refer to the resolution of Mr Furey's worries relating to his wife. Dr Kirkman wrote a prescription maintaining Mr Furey on the increased dose of anti-depressants for three months.
Dr Kirkman recalls that he knew Mr Furey had been off work, and that he was able to take further time off to get better and work out what he wanted to do. Mr Furey discussed alternative career paths with Dr Kirkman, who expressed a concern that it was not the best time, given his condition, for him to be making such major decisions. Dr Kirkman says he recalls Mr Furey telling him that he had ample sick leave remaining and did not need to make hasty decisions. Dr Kirkman recalls that Mr Furey asked for a further certificate, because he was required to inform his office of further sick leave.
Mr Furey says that Dr Kirkman gave him a medical certificate that day to cover the period from 24 March to 28 April 1997. Dr Kirkman relies in part on the fact that he noted the word "unfit" in his notes as an indication that he certified Mr Furey unfit for work during that visit. He does not recall the duration of the certificate, but says at one point in his affidavit that he would have been prepared to certify Mr Furey unfit to the end of April 1997. His evidence in cross-examination on this point was more equivocal. I note that the reference to Mr Furey being unfit in the medical notes is in the past tense, which is a little surprising if Dr Kirkman was certifying him unfit for a further three weeks.
I am, however, satisfied that Dr Kirkman wrote a certificate for Mr Furey that day, because there is evidence of Mr Furey later telling C.S.A. personnel that he was entitled to additional sick leave. On balance. I also accept that the certificate was prospective to 24 April 1997. Given that additional sickleave up to 9 April would have sufficed to justify Mr Furey remaining on leave past 19 May 1998, when his employment terminated, there would be no reason for Mr Furey to invent a certification of a longer duration.
Mr Furey says he then rang the union office on Wednesday, 9 April 1997 to discuss his leave arrangements with Ms Walkington, but was told by the receptionist or a secretary that she was not available. He did not leave a message. He admits he was relieved he didn't have to speak with Ms Walkington.
Mr Furey had thus again missed deadlines. The response concerning performance issues had been due on Monday, 31 March 1997, and he was required to advise of any additional need for leave by the end of 9 April 1997. He had also not complied with the standard procedures for the taking of leave, by not completing the necessary forms, and not providing the outstanding sick leave certificates, at least one of which he had clearly obtained.
From Ms Walkington's point of view, this was a matter of tying up loose ends, though she seems to have been frustrated by Mr Furey's continued failure to comply with the minimal formalities still required of him, given that the C.S.A. had relieved him of his usual work responsibilities. Even so, she took it upon herself to tie-up the loose ends herself by writing the letter of 4 April 1997. It was left to Mr Furey to advise her by the end of 9 April 1997 of any change to the leave arrangements she had proposed. When he had not done so, she was entitled to assume the arrangements were settled.
As for the written response on the performance issues, Mr Furey had volunteered to provide it. I have no doubt that Ms Walkington would have agreed to him providing it on his return to work. It was merely annoying that he had nominated a time frame to provide it and then, without explanation or discussion, failed to meet it.
Mr Furey readily concedes that he was not keen to engage in discussions with Ms Walkington and Mr Robinson after their meeting on 24 March 1997. He says that the less contact he had with them, the better he felt. It may be that contact with them reminded him of the unresolved work performance issues which he could otherwise ignore. Dr Kirkman points out that Mr Furey would, as one of the symptoms of depression, found even simple tasks and talking to family, friends and colleagues daunting. Mr Furey's behaviour, when he needed to go into the office, of going there outside office hours is consistent with a wish to avoid contact with his workmates.
Mr Furey claims that on Friday, 11 April 1997 he called Mr Harris on the telephone. He says he was told that Mr Robinson and Ms Walkington were interstate. Ms Walkington did not recall whether she was away at that time. Mr Robinson thought it was possible. I accept in the absence of evidence to the contrary that they were away from the office.
Mr Furey says that he asked Mr Harris to advise Ms Walkington that the doctor had extended his sick leave, and that he would not therefore return to work until at least the end of May 1997.
Mr Harris says he has no record of this conversation. There would be no record of an incoming call to the Union from Mr Furey's home telephone. I note that there was a seven minute telephone call from the office to Mr Furey's mobile telephone at about 11:00 am that day.
At 2:30pm on the afternoon of Monday, 14 April 1997, Mr Furey spoke again to Mr Harris. Mr Harris is almost sure that he had left a message for Mr Furey, who called him back. However, there is no record of any calls to Mr Furey's mobile telephone at that time nor in the preceding three days, which suggests that it was Mr Furey who initiated the contact.
Mr Furey says that Mr Harris advised him that, while Mr Harris had told Ms Walkington about his request for additional sick leave, she still required Mr Furey to advise her directly. Mr Harris says he offered to transfer the call through to Mr Robinson or Ms Walkington, but Mr Furey declined, saying that he had an appointment and would call them back.
Mr Harris immediately e-mailed Ms Walkington with a copy to Mr Robinson in the following terms:
"I spoke to Frank on a number of issues today (2.30p.m.) including the issue of additional sick leave. I advised Frank that he needs to speak with you or DAR [ie Mr Robinson] on this matter - I guess you can expect a call soon."
Whether or not there was an earlier conversation on 11 April 1997, and on balance I accept that there was, it is not in dispute that by 14 April 1997 Mr Furey had raised with the C.S.A. his wish to take additional sick leave and the C.S.A. had communicated to him the need to approach Ms Walkington about it (or, presumably, Mr Robinson).
Mr Harris and Mr Furey also discussed other matters that day, including:
* the C.S.A.'s wish that Mr Furey collect his motorbike from a downstairs storage room;
* the C.S.A.'s need for the return of insurance documents for the claim arising from the car accident; and
* Mr Furey's request to Mr Harris that he be paid leave in advance.
Later that afternoon, Mr Harris e-mailed Mr Fitzsimmons to tell him that Mr Furey would be picking up his motorbike the next morning, Tuesday, 15 April 1997.
Mr Fitzsimmons also recalls contacting Mr Furey at about that time about removing the motorcycle. He recalls having difficulty reaching Mr Furey on his mobile telephone, and recalls an occasion when he received a recorded message advising that the mobile phone was switched off or not in a mobile phone area. Eventually, he was successful and Mr Furey answered.
Mr Fitzsimmons believes that Mr Furey came to collect his motorbike on or shortly after 15 April 1997. He recalls that he asked Mr Furey to contact Ms Walkington or Mr Robinson, but that Mr Furey had another appointment to go to. He recalls that it was inclement weather. Mr Furey says that the occasion when he had to ride to another appointment on a bicycle in inclement weather was on 30 April 1997, when he dropped off the car. Implicit in Mr Furey's version of events is the conclusion that the motorcycle was not collected until then; there was no suggestion that he had brought the motorcycle back in with the car.
Mr Furey banked a cheque on Tuesday, 15 April 1997 for leave paid in advance. Mr Furey had requested payment in advance the day before because he was required under the terms of his property settlement to pay the purchase price for his wife's share of their property on Friday, 18 April 1997, together with the necessary stamp duty. As a result he was going to be short of cash. Ms Walkington had had no objections to the proposal and the cheque issued on 14 April 1997. The fact that it was obtained and banked by Mr Furey so quickly would be explained if he had come into the office that day to collect the motorcycle, rather than waiting for the cheque to arrive by post.
Mr Furey's most important claim is that on or about Thursday, 17 April 1997 he posted a handwritten letter to Ms Walkington marked "Private and Confidential" enclosing the three medical certificates certifying him unfit for work up to 28 April 1997. He says his letter explained that he wished to exhaust his sick leave before using annual and long service leave "in accordance with normal WA Public Sector practice and procedure". Mr Furey says the request to first take additional sick-leave, if granted, would have meant that he would not be required to return to work until 10 June 1997.
Mr Furey concedes that private use of a union car was not usually allowed during periods of extended sick leave. He says his letter therefore requested the continued use of the car until 29 April 1997 in lieu of its use during his proposed later annual leave.
The letter also proposed that his response to the performance issues would be provided on his return to work; he says his condition was such that he would not properly deal with work related conflict at the time.
Ms Walkington says she never received the letter. Had it reached the union, it would have been forwarded to her unopened as "private and confidential" correspondence, in accordance with normal office procedure.
Mr Robinson agrees that, had Mr Furey applied before 10 April 1997 as requested, it would have been highly likely that his leave would have been extended on account of his sick leave. I am satisfied that had such a letter been received by say Friday, 18 April 1997, almost three weeks before Mr Furey's expected return, it is more likely than not that his leave would have been extended.
In reaching my finding of fact on this issue, I have considered three possibilities. They are that:
1. Mr Furey never posted such a letter;
2. Ms Walkington did in fact receive the letter; or
3. The letter went astray.
As for the first possibility, Mr Furey did not make a copy of the letter. This is not surprising given that he did not have ready access to office facilities. Nor, is it implausible that he would have chosen to communicate with Ms Walkington by letter given his wish to avoid personal contact with her.
I am satisfied, on balance, that he obtained the three medical certificates from Dr Kirkman, as he claims. He recalls making a copy of the first two sick leave certificates, but has since been unable to find those copies. He had taken steps prior to the deadline to be certified unfit for work in order to claim additional sickleave. Why then would he not communicate that claim to Ms Walkington?
Assuming for the moment that he had written the letter, might Ms Walkington have denied receiving it? I need to consider Ms Walkington's credibility on this point, and there is an aspect of her evidence which is troubling. It relates to the extent to which contact was made with Mr Furey after 14 April 1997; it is convenient to deal with that issue now.
Mr Furey says his impression was that after he had written to Ms Walkington, her attempts to make contact with him ceased. He says that it why he assumed that his proposal for further leave to 10 June 1997 had been accepted and that the situation was in hand.
Ms Walkington says that in fact she had tried to contact Mr Furey on his mobile telephone from time to time in April and early May, making repeated attempts at different times of the day. She says that she twice received a busy signal, but on all other occasions the mobile telephone was not answered or was switched off. In other words, she asserts that Mr Furey had deliberately made himself uncontactable.
Mr Furey disputes this claim, saying that his mobile phone was usually programmed to divert unanswered calls to his message service. Ms Walkington was adamant that she was never diverted to the message service when she called during this period. Mr Fitzsimmons also gave evidence of the call he made when he was not diverted.
Ms Walkington says that she didn't ask anyone else, other than Ms Brewer, to attempt to contact Mr Furey. Mr Robinson says that he asked a number of staff members if they had heard from Mr Furey, and they hadn't. He recalls only one attempt to contact Mr Furey himself, on the disconnected home telephone.
Mr Rea was in semi-regular contact with Mr Furey. While it was necessary early in Mr Furey's absence to speak with him about work-related matters, he tried to avoid talking about work as much as possible, knowing that Mr Furey found exposure to work issues stressful at the time. More often, especially in the later weeks, Mr Rea called Mr Furey as a friend, being generally concerned about his well-being.
For the weeks after Mr Furey got an unlisted number, Mr Rea contacted him on his mobile telephone. In Mr Rea's experience, he was always diverted to the message service if the call was not answered. Mr Rea sometimes left messages.
Mr Rea says that he was asked from time to time by other staff members whether he had heard from Mr Furey lately. He believes these would have included Ms Brewer and also Mr Robinson. He was never specifically asked to contact Mr Furey. An enquiry from a staff member would, however, sometimes remind Mr Rea that he had not spoken with Mr Furey for a while, and would prompt him to call him again.
The telephone accounts tendered into evidence for Mr Furey's mobile telephone and the C.S.A.'s telephones show that there were no calls from the C.S.A.'s office to Mr Furey's mobile telephone in the fortnight from Monday, 14 to Monday, 28 April 1997. While there would be no record of calls which were not connected or diverted, Mr Furey's accounts show that calls from other sources were diverted to Mr Furey's message service during office hours on most days throughout that period, which is consistent with his evidence that he had his message service activated on all but rare occasions.
It is therefore difficult to understand how Mr Furey could have successfully avoided all Ms Walkington's "repeated attempts" to contact him at different times of day on his mobile telephone, while being readily available for contact by Mr Rea and when numerous calls during the period, at all times of day, were successfully diverted to his message service.
I must conclude, therefore, that it is more likely than not that Ms Walkington's attempts to telephone Mr Furey during this period were nowhere near as numerous as her evidence suggested.
I am not satisfied, however, that it is more likely than not that she received the letter Mr Furey claims he wrote on 17 April 1997. There was nothing in her demeanour which lent support to such a conclusion. More importantly, I can see no motive for her to have taken the risk of falsely denying the receipt of the letter. For all she knew, he may have been able to prove that he had written and posted the letter, for example he may have had an independent witness. If, for some reason, she did not want him to get access to his additional sick leave entitlements, there was no need to deny receiving his application. The C.S.A. could have simply refused his request, given that he had not applied within the deadline. Nor is it plausible that she could have deliberately intended that Mr Furey be lulled into staying away from work after his approved leave had expired; she would reasonably have expected that Mr Furey would have followed up on his letter before his original return date if there were no response.
While it is notionally possible that the letter was written but went astray, the possibility is relatively slight.
On balance, I find the possibility that Mr Furey never posted any such letter more likely than the combined likelihood of the other two possibilities. It may be that he intended to send such a letter. He may have even started to write it. However, having taken the step of telling Mr Harris on or before 14 April 1997 that his doctor had extended his sick leave so that he would be away until at least the end of May, he may have procrastinated about doing anything further to formalise his position, notwithstanding Mr Harris' advice that he would have to talk to Ms Walkington about it. He may have assumed that the C.S.A. would get back to him if there was a problem with what he had proposed to Mr Harris. Until he heard from them, he subconsciously assumed there was no problem.
While such a pattern of thought was not necessarily rational and certainly not sensible, it seems to me to be reasonably consistent with Mr Furey's behaviour over the preceding months.
It seems, however, that there was a further attempt from the C.S.A. to "get back to" Mr Furey.
Ms Walkington's letter of 4 April 1997 had required that Mr Furey's union car be returned by 5:00pm on Tuesday, 29 April 1997. The office was shut on that day, due to the staff's participation in a major march and rally by the Western Australian union movement against industrial relations legislation proposed by the State government.
Mr Harris recalls talking to Mr Furey about the return of the motor vehicle at some stage. A call from the office was diverted to Mr Furey's message service at about noon on Monday, 28 April 1997 and two calls from the office were similarly diverted after 5:00pm on Tuesday, 29 April 1997.
Mr Furey says Mr Harris rang him on the Tuesday, evening and they made arrangements for Mr Furey to instead return the car to Mr Fitzsimmons the next day, Wednesday, 30 April 1997.
Mr Robinson says he asked Mr Fitzsimmons to ask Mr Furey to see him or Ms Walkington when he returned the union motor vehicle.
According to Mr Furey's original affidavit, when he saw Mr Fitzsimmons in the C.S.A.'s parking area that day, Mr Fitzsimmons told Mr Furey that Ms Walkington wished to see him in person, but Mr Furey declined to do so. As Mr Furey recalls it, he needed to go on to a previously arranged engagement that day on his motorcycle, and there was heavy rain threatening.
In the course of cross-examination, however, Mr Furey asserted that he was never asked to contact Mr Robinson or Ms Walkington after he had sent off the letter on 17 April 1997. He claimed to be unsure what had occurred on Wednesday, 30 April 1997, other than recalling riding home on his motorcycle after having delivered the car.
Mr Fitzsimmons recalls this scenario as having occurred in mid-April, when he says Mr Furey collected his motorbike. Mr Fitzsimmons says that on 30 April 1997 he drove Mr Furey back to Subiaco after taking delivery of the car. He says he asked Mr Furey to call Mr Robinson and Ms Walkington as they wanted to speak with him.
According to Mr Robinson, Mr Fitzsimmons reported back to him that Mr Furey had had another appointment to go on to, but had said he would telephone them. He didn't.
I accept on balance that Mr Fitzsimmons is confused about the order of events, and did not drop Mr Furey back to Subiaco on 30 April 1998, as he recalls. The fact that Mr Furey no longer lived in Subiaco at that time, while not conclusive, tends to support that conclusion.
On the evidence before me, I conclude that Mr Furey delivered the car and left on his motorcycle, which he had probably failed to collect earlier, in inclement weather. This would be more consistent with the message received back by Mr Robinson from Mr Fitzsimmons.
I have resolved these questions of fact because Mr Furey considered them important. The important fact, however, is that whatever Mr Furey's mode of transport away from the office on 30 April 1997, Mr Fitzsimmons told him that Mr Robinson and Ms Walkington wanted to speak with him, as Mr Furey acknowledged in his own affidavit.
On Sunday, 4 May 1997, Mr Furey telephoned Mr Fitzsimmons at home in the morning and asked to be able to come in and pick up some personal items from his office. He did so that afternoon, in Mr Fitzsimmon's presence. Mr Fitzsimmons says he again asked him to contact Ms Walkington and Mr Robinson as they wished to speak with him. Mr Furey says that at this time, he did not know whether or not he was coming back to the C.S.A. The items he collected were either of sentimental or real value, or might get in the way of the office's current occupant. He says he left some of his personal items at the office, such as a coffee mug. Mr Fitzsimmons e-mailed Mr Robinson, Ms Walkington and Mr Harris to report this event.
Mr Furey says he noted at that time that documents he had left in a locked cabinet which he believes were sensitive or potentially embarrassing to Mr Robinson and Ms Walkington had been removed while he was away. Mr Furey does not know who had keys to the cabinet other than himself.
A call from the office was diverted to Mr Furey's message service at 11.30 am on Tuesday, 6 May 1997 and again at 10:00am on Wednesday, 7 May 1997 and at 12:30pm on Thursday, 8 May 1997. It is not clear who made the calls or whether they were returned; there would be no record if they were. They may have been from Mr Rea.
Mr Furey did not return for work on Thursday, 8 May 1997. He says that he would have been fit to attend work from 8 May 1997, had he known he was required to. His certification for sick leave expired on 24 April 1997. Dr Kirkman did not see Mr Furey again for some months after 9 April 1997, and so cannot give an informed opinion about his state of health on 8 May 1997.
Mr Robinson gave instructions that Mr Furey's pay was to cease effective from the close of business on Wednesday, 7 May 1997 after which time Mr Furey was to be noted as "absent without leave". He gave instructions that Mr Furey's keys be cancelled. Because the relevant pay period did not conclude until Thursday, 15 May 1997, Mr Furey was not aware that his pay had been stopped until about Monday, 19 May 1997, when he realised that his full fortnight's salary had not been deposited into his account.
There was no suggestion on the evidence that Mr Robinson or Ms Walkington made any effort to locate or contact Mr Furey in the days following his failure to return to work. No enquiries were made of the C.S.A.'s other staff as to his whereabouts. While Mr Rea's impression had been that Mr Furey was intending to return to work at some stage, he does not recall expecting Mr Furey's return on any particular date nor being aware, prior to learning of the termination, that Mr Furey had failed to return when expected. He does recall, however, that Ms Whitaker had been appointed to stand in for Mr Furey for a defined period of time.
Ms Brewer concedes that as Human Resources Officer she usually contacts absent staff when they have failed to advise of their absence. There is no evidence that she sought to contact Mr Furey after 8 May 1997. She notes that staff also had an obligation to call the office if they were unable to attend work.
There was also evidence, which I will consider in more detail below, that it is common policy within the public sector to make every attempt to contact an employee who is absent from their employment without authority, that Mr Furey was aware of this policy and assumed it would apply to his employment.
I note that the C.S.A.'s telephone records show that a telephone call of more than ten minutes' duration was made from the office to Mr Furey's mobile telephone at 4:30pm on Friday, 9 May 1997.
Mr Robinson says that his impression was that Mr Furey wanted nothing more to do with them, given that he had been in on the weekend to collect his belongings. Mr Robinson also refers to the fact that Mr Furey had previously made numerous commitments to contact him and Ms Walkington but had failed to do so, including twice in the past week. Mr Robinson felt that they had done more than enough.
On 13 May 1997, Mr Robinson formally sought legal advice from the union's solicitors as to whether Mr Furey had abandoned his employment, repudiated his employment contract or both. It was put to Mr Robinson during his evidence that he could have sought advice from the union's own advocates, such as Mr Rea, as to procedures applicable in the public sector where an employee was absent without leave. Mr Robinson took the view that to do so would have been inappropriate, because even a general query would have been recognised by them as relating to Mr Furey, to whom they usually reported.
The solicitors' response, dated 14 May 1997, included the following:
"In our opinion: 1. The issue of abandonment of employment is a question of fact to be determined in each case. In previous cases, failure to attend to work for 2 weeks without communication has been found to constitute abandonment... In light of his other behaviour, Mr Furey's actions could be considered sufficient to ground a claim for abandonment. However, the longer the failure to attend work continues the stronger this finding will be... 3. From our discussions it appears that the CSA wishes Mr Furey's employment to be terminated even if he has not abandoned his employment. Your facsimile raises issues of poor work performance. If poor work performance is a relevant issue, it should also be referred to in any notice of termination... 6. To terminate Mr Furey's employment without previous warning and without a notice period (ie payment of 4 weeks wages in lieu of notice) may constitute unfair dismissal. To ensure this is avoided you may wish to: (a) adhere to the 4 week notice period; and (b) advise Mr Furey in writing that he may wish to discuss the matter with you and explain himself. 7. Although arguable, it is difficult to recommend dismissal without notice, based on repudiation of the employment contract, at this stage. 8. It may be that there are facts known only to Mr Furey which may affect our opinion. However, he should put these forward to you within the notice period if he wishes to rely upon them. Once you have digested the above perhaps you should contact the writer to discuss the matter further."
Mr Robinson says that there were further discussions with the solicitors and that, having further researched the matter, the solicitors gave supplementary oral advice. Mr Robinson says that his letter of termination to Mr Furey dated 19 May 1997 was settled by the solicitors and was consistent with their legal advice.
The letter was addressed to the incorrect Kalamunda address but was despatched by courier, and delivered to Mr Furey's correct address late that day. It read as follows:
"I write to advise you that I hereby terminate your employment with the Civil Service Association of WA Inc effective as of close of business 19 May 1997. I am obliged to take this action for the following reasons: i) You were to return to work on 8 May 1997, but have not done so, nor, have you provided any explanation for your failure to do so; ii) Despite repeated requests, both verbally and in writing, to contact either myself or Ms Walkington to discuss employment and/or leave arrangements, you have failed to do so, despite your promises on a number of occasions, to a number of employees, including myself, to do so; iii) You have failed to respond to Ms Walkington's correspondence of 4 April 1997 outlining your response to the performance related matters detailed in the correspondence and previously canvassed at our meeting of 24 March 1997 (at which you also committed yourself to providing a response within a few days); iv) On 24 March 1997, you were granted sick leave in advance, on the basis of your promise that sick leave certificates would be provided in support of this leave. In breach of your promise, these have not been provided to date; v) You are a senior officer of the Union with high level responsibilities. You would be well aware as a result of your experience and employment with the Union that your absence would cause serious disruption to the Union in that (and without being limited to): a) the filling of vacancies and the subsequent performance of vital work duties has been made extremely difficult; b) you were requested to advise me of your intention regarding further leave so that arrangements could be put in place to ensure the work would not be unduly disrupted. Your failure to do so has resulted in a situation where work has not been able to be progressed and staff have been required to take on additional workloads; c) staff have had to work additional hours to complete the considerable amount of work left by yourself which was long overdue and is now urgent; d) this situation has been further exacerbated due to your failure to comply with your commitment to conduct a hand over of your work and to provide material and advice on key matters. I note, for the record, that you did make contact with Mr Fitzsimmons on 4 May 1997 in order to attend the union office that Sunday, to collect some personal belongings. I note also that you have not provided us with an address for any future correspondence whilst absent from the workplace. I have received legal advice that your conduct outlined in i) to v) above, constitutes an abandonment and/or repudiation of your employment contract, which repudiation is accepted. As stated above, your employment with CSA of WA Inc is terminated. However, consistent with the practice of being a model employer, I am prepared to make an ex-gratia payment to you, equivalent to four weeks pay. Please find enclosed a cheque for that amount. You should also note that despite not providing sick leave certificates, I will not seek to recover payments for this leave from you. Yours sincerely (signed) DAVE ROBINSON BRANCH SECRETARY"
Mr Robinson completed a Department of Social Security Employment Separation Certificate the same day, noting that the employment was terminated due to "misconduct" and citing as the reason:
"Failure to complete tasks. Failure to return to work or advise of reasons as to absence. Contract repudiated and accepted by myself. Abandonment of employment."
Mr Robinson cites Mr Furey's abandonment of employment, or absence from employment without leave or explanation, as the sole reason for the termination. He says that he was no longer giving Mr Furey special consideration, and he needed to ensure some certainty for the organisation in what he describes as a "time of crisis".
Mr Furey admitted in his oral evidence that his initial reaction on receiving the letter was one of "relief". He made no attempt for three weeks to contact Mr Robinson or Ms Walkington to protest the decision or explain his misapprehension. He banked the ex gratia payment cheque on Thursday, 22 May 1997.
On 10 June 1997, he filed the application in the Commission, and wrote to the C.S.A. the same day, advising of the application, denying that he had abandoned his employment and asserting that he continued to hold office as a Branch Councillor of the C.S.A.
Mr Robinson's decision to terminate Mr Furey's employment was ratified by the C.S.A.'s Executive on 18 June 1997 and by the Council on 25 June 1997. Notwithstanding his assertion that he remained a member of the Council, Mr Furey chose not to attend the Council meeting. Mr Furey explained that it would have been pointless, because Mr Robinson "had the numbers" on the Council, and it would have been a potential embarrassment to Mr Furey.
WHETHER MR FUREY VOLUNTARILY LEFT THE EMPLOYMENT RELATIONSHIP
I accept that Mr Furey had not decided whether or not he wanted to eventually return to work for the C.S.A.
His failure to return to work on 8 May 1998 is not indicative of a decision on his part to end the employment relationship. His certification of unfitness for work had been extended. He had told Mr Harris he wanted extended sick leave. He was, rightly or wrongly, assuming that unless he heard from them to the contrary he could take it.
He was leaving his options open. He did not want to confront the decision sooner than he had to. While he was possibly not happy at the prospect of returning to work, no doubt the alternative had its own difficulties. His reluctance to talk to Mr Robinson and Ms Walkington may have been motivated in part by his reluctance to consider his future.
That may be why his initial reaction on learning of his termination was relief; the decision had been made for him.
I accept that Mr Furey was absent without leave. It may be that the circumstances which led to his absence amounted to grounds for his dismissal. I am not satisfied, however, that he voluntarily left the employment relationship.
While it might be said that it was Mr Furey's act in being absent after 8 May 1997 which caused the C.S.A. to terminate his employment, so it could be said in the case of any dismissal for conduct that the act of the employee caused the termination. It is usually held in those cases that there was a termination at the initiative of the employer, even where there was misconduct such as would in contractual terms amount to a repudiatory breach. Similarly, I am satisfied that this was a termination at the initiative of the employer in this case.
SECTION 170CM: WHETHER MR FUREY WAS ENTITLED TO NOTICE OF TERMINATION
Subsection 170CM (1) of the Act provides that an employer must not terminate an employee's employment unless the employee has been given notice (or pay in lieu of notice) or unless:
"(c) the employee is guilty of serious misconduct, that is, misconduct of such a nature that it would be unreasonable to require the employer to continue the employment of the employee concerned during the required period of notice".
Regulation 30CA of the Workplace Relations Regulations relevantly provides that:
"(1) For paragraph 170CM(1)(c) of the Act, serious misconduct includes: (a) wilful, or deliberate, behaviour by an employee that is inconsistent with the continuation of the contract of employment... (2) For subregulation (1), conduct that is serious misconduct includes:... (c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment. (3) Subregulation (2) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made the employment in the period of notice unreasonable."
The definition is inclusive rather than exhaustive.
It was submitted that Mr Furey's absence from work amounted to a refusal to carry out a lawful and reasonable instruction, given that he had been told that his anticipated date of return was 8 May 1998.
Certainly, Mr Furey failed to carry out that instruction, but I find on balance that it was not the result of a conscious decision on Mr Furey's part. He raised a counter-proposal with Mr Harris and was never advised that the counter-proposal had been rejected. There was not, in my view, the necessary intent on Mr Furey's part to amount to a "refusal".
It might be said that he refused, on numerous occasions, the instructions which were relayed to him to contact Mr Robinson or Ms Walkington. It may be questionable whether an employee can be required to contact his employer while he is on leave. Assuming he can, I find that the instructions were not sufficiently precise or emphatic to support a finding of serious misconduct. I am also of the view, given Mr Furey's condition and the fact that he was on leave, that Mr Furey's refusal to "comply" could not give rise to such a finding in those circumstances. Mr Furey would not have expected that his failure to respond would result in his summary dismissal.
The letter of termination also cites Mr Furey's failure to provide the sick leave certificates. Ms Walkington's letter of 4 July required that they be sent "as soon as possible" but the only consequence of not doing so contemplated by the letter is the "non-retention" of sick leave benefits for the days claimed. There was no suggestion it would be grounds for summary dismissal.
While it may be that the matters outlined in the letter of termination gave the C.S.A. grounds for Mr Furey's dismissal, they arose out of misjudgment or procrastination rather than a deliberate decision on Mr Furey's part. I find therefore that they did not amount to serious misconduct which would relieve the C.S.A. of the obligation under Section 170CM to give Mr Furey four weeks' notice of termination.
I find therefore that the C.S.A. has breached Section 170CM of the Act.
PARAGRAPH 170CK(2)(A): TEMPORARY ABSENCE FROM WORK BECAUSE OF ILLNESS
Subsection 170CK(2) provides that:
(2) ...an employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons: (a) temporary absence from work because of illness or injury within the meaning of the regulations;... (d) seeking office as... a representative of employees..."
Subregulation 30C of the Workplace Relations Regulations relevantly provides that:
"(1) For paragraph 170CK(2)(a) of the Act, an employee's absence from work because of illness or injury is a temporary absence if: (a) the employee provides a medical certificate for the illness or injury within: (i) 24 hours after the commencement of the absence; or (ii) such longer period as is reasonable in the circumstances..."
Section 170CQ places the onus with regard to Section 170CK upon the employer. It provides that, in proceedings relating to alleged terminations for a proscribed reason or reasons in breach of Section 170CK:
"(a) it is not necessary for an employee to prove that the termination was for a proscribed reason; but (b) it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason..."
Subregulation 30C provides an exhaustive definition of the phrase "temporary absence from work because of illness or injury".
It does not appear to apply to the circumstances of this case. Mr Furey was not, on any view, certified ill at the time of his dismissal. Importantly, on my findings, he did not ever provide medical certificates to the C.S.A. for his absences from work because of illness after 10 March 1997.
I note in passing that it might have been argued that the importance of Mr Furey's having provided such certification gave Ms Walkington a motive to falsely deny receiving the letter dated 17 April 1997 which Mr Furey claims to have posted to her. I think it unlikely, however, that she would have been aware of the significance of Subregulation 30C at the time. It is a relatively new regulation, commencing on 31 December 1996, and it is also unlikely that she would have anticipated Mr Furey commencing proceedings under Section 170CK, given the other alternatives available to him. In any event, the subregulation provides an equally strong motive for Mr Furey to claim to have provided the certificates to the C.S.A. by way of the letter.
If the Court cannot find that Mr Furey was absent from work because of illness for the purposes of the Act, it follows that it cannot find such an absence to have been among the reasons for the C.S.A.'s decision to terminate his employment.
I find therefore that there has been no breach by the C.S.A. of paragraph 170CK(2)(a) of the Act.
PARAGRAPH 170CK(2)(D): SEEKING OFFICE AS A REPRESENTATIVE OF EMPLOYEES
I have quoted above the terms of paragraph 170CK(2)(d) of the Act.
Mr Furey contends that the reasons for the termination of his employment include the fact that he sought office as a representative of employees when he stood in June 1996 for election as Secretary of the Union.
While the application of the provision to these circumstances is somewhat unusual, I accept that paragraph 170CK(2)(d) could apply where the employer is a union. The provision does not specify that the employees need all be the employees of the particular employer, and in this case the C.S.A.'s employees were eligible for membership of the organisation.
In considering whether the C.S.A. have satisfied the onus of proving that Mr Furey was dismissed for reasons which did not include his seeking office as Secretary, I must have regard both to the evidence supporting reasons they have given for the dismissal and to the evidence supporting the alternative contention that Mr Furey's seeking office was among those reasons.
It has been held that the consideration of whether a particular matter was a "substantial and operative factor" in the decision to dismiss is a useful guide when deciding whether the termination was for reasons including that matter: Stojanovic v The Commonwealth Club[5].
[5] (unreported, IRCA No. 652 of 1995, Moore J, 8 December 1995).
While the C.S.A. bears the onus of proof on this issue, I will consider first the matters raised by Mr Furey which he submits support his contention.
It is not in issue that Mr Furey opposed Mr Robinson in the June 1996 election for Secretary. He was, however, one of several candidates and Mr Robinson's margin of victory over Mr Furey was substantial. He did not, at least on that occasion, represent a potent threat to Mr Robinson's position.
Mr Furey suggests that Mr Robinson was concerned that Mr Furey might run against him again at a future election, and dismissed Mr Furey so that he would no longer be eligible for membership and would therefore be unable to stand for election again. There was, however, no evidence that Mr Furey was in fact proposing to run against Mr Robinson again.
It is not in issue that, during the 1996 campaign, Mr Furey and Mr Robinson had at least one argument about issues Mr Furey had raised in support of his candidacy. Mr Robinson also concedes that he was disappointed that Mr Furey had decided to stand for the position.
However, Mr Furey ceased campaigning at an early stage, well before the campaign ended. After the election, he sought readmission to Mr Robinson's "caucus".
In the remaining months of 1996, there is no indication that Mr Furey's participation in the election had any relevant effect on his employment relationship with Mr Robinson and Ms Walkington. He remained in the same position and performed the same functions even when, during some Western Australian Industrial Relations Commission hearings concerning the management of the C.S.A., he was required to have access to matters of great political sensitivity to Mr Robinson.
Evidence was led by Mr Furey about various allegations relating to the administration of the union and the use of its resources during the election. His contention was that his awareness of these matters made him a potential source of embarrassment and a potential threat to Mr Robinson.
Even if this were true, however, and Mr Furey was dismissed by Mr Robinson because, among other things, he was concerned Mr Furey might become a "whistle blower", it is not clear to me that it would be relevant to the immediate issue. While such a dismissal may well be unfair, I am not satisfied that paragraph 170CK(2)(d) is sufficiently broad in its terms to cover such conduct. I also note in passing that, assuming Mr Furey's allegations were true, it is not clear to me as a tactical matter why Mr Robinson would consider it in his interests to alienate an employee who was in a position to do him harm.
Had Mr Furey never sought office as Secretary, the C.S.A.'s actions in dismissing him could, in my view, be satisfactorily explained by reference solely to his conduct from December 1996 to 19 May 1997.
Having said that, it must be acknowledged that Mr Robinson's actions in the period after 8 May 1997 when Mr Furey had not returned to work were somewhat perplexing.
Despite their claimed difficulties in contacting Mr Furey, I cannot accept that Mr Robinson and Ms Walkington genuinely felt they would not be able to effectively communicate with him if they wished to do so.
Ms Walkington had felt confident writing to him at the Kalamunda address on 4 April 1997. While, admittedly, that address had an incorrect street number, it was clear after his message via Mr Harris that he had received the letter. Mr Harris had been able to contact Mr Furey by mobile telephone on 29 April 1997, to arrange the drop-off of the motor vehicle. Mr Robinson was aware that Mr Rea was in continuing contact with Mr Furey, having asked Mr Rea about his well-being.
It must be concluded that Mr Robinson and Ms Walkington deliberately decided after 8 May 1997 that they would make no attempt to contact Mr Furey to warn him that he was absent without leave or to give him an opportunity to explain his absence before summarily terminating his employment. They did so in the face of initial legal advice to the contrary.
Notwithstanding Mr Robinson's assumptions as to Mr Furey's intentions, it can also reasonably be concluded that the reason they did not attempt to contact Mr Furey is that they did not want to take the risk that he might seek to return to work; I note that the solicitors stated in their letter that it appeared to them that the C.S.A. wished Mr Furey's employment to be terminated, even if he had not abandoned his employment.
Mr Furey contends that he was entitled to be contacted by the C.S.A. and advised that they considered him to be absent without leave before any decision was made to dismiss him. He submits that public sector policies to that effect were applicable to him as an employee of the C.S.A.
Rule 12(l)(vi) of the C.S.A.'s rules provide for the appointment of people where necessary for the carrying out of its purposes, and goes on to provide that:
"Such persons shall be appointed subject to the same conditions and restrictions as an Officer appointed under the Public Service Act".
That legislation has been replaced by the Public Sector Management Act 1994 (W.A.).
Mr Furey's original letter of appointment provided that his employment conditions were "similar to conditions in the W.A. public service". Mr Robinson agrees that the conditions of Mr Furey's employment relating to sick leave would be those applicable in the public sector.
While the relevant Public Service Award did not specifically deal with abandonment of employment, a publication issued by the Public Sector Management Office entitled "A Practical Guide to Discipline" was tendered into evidence. It sets out detailed "guidelines" for the public sector employer in the event of a possible abandonment of employment. The guidelines advise that:
"The employing authority must be fully satisfied that every attempt has been made to contact the employee to facilitate his/her return and to advise him/her of the implications of continued unauthorised absence."
The guidelines then set out a series of steps to be taken by the employing authority in order to so satisfy itself.
It would seem that the C.S.A.'s solicitors were aware of this document at the time their advice was sought, having previously held a seminar based on the document for the C.S.A.'s industrial staff.
Mr Robinson says he was not aware of the existence of these public sector guidelines. While this might have seemed implausible given the evidence of Mr Robinson's extensive industrial experience with the C.S.A., Mr Rea gave evidence that, while he was personally aware of the guidelines, he had only ever had to deal with one case of alleged abandonment of employment, and it may well be that Mr Robinson had never had to deal with one.
The C.S.A. cited a statement of Judicial Registrar Parkinson in Chomiczewski v Cadbury Schweppes Pty Ltd[6] in support of the proposition that the obligation rested on Mr Furey to notify the C.S.A. of any explanation for his absence. In that case, however, there was an applicable award which provided that absence for a defined period of time without notification by the employee to the employer was deemed to constitute abandonment. There was no such provision in the present case.
[6] (unreported, IRCA No. 459 of 1996, Parkinson JR, 5 September 1996)
While it is not clear on the materials before me that the "guidelines" set out in the document impose binding obligations on public sector employers nor, therefore, the C.S.A., it would have been appropriate in my view for the Court to have regard to the document were I required to make an assessment of whether Mr Robinson and Ms Walkington had acted fairly and reasonably in the circumstances.
That is not, however, the issue I have to decide. My enquiry is into whether their reasons for dismissing Mr Furey included reasons proscribed by Section 170CK. The enquiry is not into whether the reasons not proscribed by the Act were sufficient to justify the dismissal.
I have found that by 8 May 1997 Mr Robinson and Ms Walkington wished to terminate Mr Furey's employment. They did not want him to return to work. Nor did they wish to defer the decision any longer.
They had had difficulties with Mr Furey's performance before he went on leave. After that date, he had left his leave arrangements in disarray, so that Ms Brewer and Ms Walkington had to take it on themselves to formalise them. He failed to provide a promised response on the performance issues. He then continued to fail to provide sick leave certificates, and avoided further contact with Mr Robinson and Ms Walkington, even to the point of refusing to respond to numerous requests that he contact them. While he raised the prospect of additional sick leave with Mr Harris, he did so after the requested deadline. He then failed to return to work on their originally nominated date, without further explanation.
It is understandable in those circumstances that their patience with Mr Furey may have been exhausted. and that, as a result, they decided to dismiss him without further delay. It may not have been prudent, and may not have been fair, but one can see how they might have reacted that way in the circumstances.
Given, however, that Mr Furey had stood against Mr Robinson in the election, has the C.S.A. proved that his having done so was not a "substantial and operative factor" in the decision to dismiss him?
On balance, I am satisfied that it has. The evidence demonstrates that there was no relevant difference in Mr Robinson's dealings with Mr Furey as an employee following the election. While there was some attempt to take steps to improve Mr Furey's performance and attendance from December 1996, it is clear on the evidence that this was justified and was only to be expected in the circumstances. As late as 4 April 1997, Ms Walkington was still making allowances for Mr Furey's failure to sort out his leave arrangements. It was not until 8 May 1997 that they finally refused him any further indulgence
If they had been motivated by Mr Furey's having stood for election, there were numerous earlier opportunities for them to have exacted revenge. That they did not do so lends support to the conclusion that it is more likely than not that they did not terminate Mr Furey's employment for reasons including his seeking office as a representative of employees.
I find therefore that there has been no breach by the C.S.A. of paragraph 170CK(2)(d) of the Act.
SECTION 170CR: REMEDY
Having found that the C.S.A. were obliged under Section 170CM of the Act to give Mr Furey four weeks notice of his dismissal, it would usually follow that Mr Furey would be awarded damages in lieu of notice under Subsection 170CR(4), with the damages in this case being an amount equal to four weeks' wages.
The C.S.A. submit, however, that I should take into account the fact that the C.S.A. made an ex gratia payment to Mr Furey at the time of his dismissal equal to four weeks' wages.
The C.S.A. cited Black v Brimback City Council[7] as authority for the proposition that, because damages are merely intended to restore the applicant to the position he would have been in if the employer had complied with his obligations, the fact that the ex gratia payment already placed him in that position means that no damages should be awarded.
[7] (unreported, F.C.A. No. 74 of 1998, Moore J, 12 February 1998)
In that case, however, the payments received by Mr Black as a result of the wrongful termination of his employment were severance payments, to which he was entitled under his contract of employment. In the present case, however, the payment was an ex gratia payment and thus of a different character, given that by definition an ex gratia payment is made as a "favour" and not because of a legal obligation.
The ex gratia payment in this case is more like the "special gratuity" discussed in Pacific Publications Pty Ltd v Cantlon[8], which was not treated as part satisfaction of the employee's entitlement under an award to pay in lieu of notice. The Pacific Publications case was one of the cases considered by Justice Moore in Black v Brimback City Council[9].
I note that in Bill v Welding Technology Institute of Australia[10], a Judicial Registrar of the Industrial Relations Court of Australia deducted a substantial ex gratia payment when assessing compensation for a breach of the then Section 170DE of the Act by reference to the loss suffered by the applicant.
[10] (unreported, IRCA No. 22 of 1998, McIlwaine JR, 16 June 1997)
However, it does not appear that the issue was the subject of submissions in that case. Further, while the damages contemplated under Section 170CR(4) are discretionary, the assessment of statutory compensation of the kind awarded in Bill v Welding Technology Institute of Australia involves the exercise of a much broader discretion. The statutory entitlement to damages for the breach of Section 170CM is, in my view, more like the entitlement to damages for breach of an award provision.
Accordingly, I find that the ex gratia payment did not satisfy Mr Furey's entitlement to pay in lieu of notice.
CONCLUSION
I will therefore order that the C.S.A. pay Mr Furey damages of $2,929.00 in lieu of notice pursuant to Subsection 170CR(4) of the Act, which amount I understand to be equal to four weeks' wages.
FOOTNOTES
[2] (1995) 62 IR 200 at 203.
[3] (1995) 62 IR 200 at 205-206.
[8] (1983) 4 IR 415
[9] See also Poletti v Ecob (No. 2) (1989) 31 IR 321, citing Pacific Publications Pty Ltd v Cantlon. with approval.
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