Jacqueline Woodland v Textile Clothing and Footware Union of Western Australia
[1995] IRCA 654
•15 Dec 1995
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - whether EMPLOYMENT CONTRACT for limited period - whether applicant agreed to termination of employment contract.
INDUSTRIAL RELATIONS ACT 1988 Ss 170EA
JACQUELINE WOODLAND -v- TEXTILE CLOTHING AND FOOTWARE UNION OF WESTERN AUSTRALIA - WI 1771 of 1995
BEFORE: BOON JR
PLACE: PERTH
DATE: 15 DECEMBER 1995
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 1771 of 1995
BETWEEN: JACQUELINE WOODLAND
- Applicant
AND: TEXTILE CLOTHING AND FOOTWARE UNION OF
WESTERN AUSTRALIA
- Respondent
MINUTE OF ORDERS
BEFORE: BOON JR
PLACE: PERTH
DATE: 15 DECEMBER 1995
THE COURT ORDERS THAT:
The application is dismissed.
NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 1771 of 1995
BETWEEN: JACQUELINE WOODLAND
- Applicant
AND: TEXTILE CLOTHING AND FOOTWARE UNION OF
WESTERN AUSTRALIA
- Respondent
BEFORE: BOON JR
PLACE: PERTH
DATE: 15 DECEMBER 1995
REASONS FOR JUDGMENT
This is an application under Section 170EA of the Industrial Relations Act 1988 relating to the alleged unlawful termination of the applicant by the respondent. The applicant seeks reinstatement and compensation. It is alleged by the applicant that her employment was terminated without a valid reason and that she was not given any opportunity to defend herself against any allegations that may have been relied on by the respondent in terminating her employment.
The respondent denies that it contravened the provisions of the Industrial Relations Act. It is the respondent's position that the applicant's employment was not terminated at the initiative of the employer within the meaning of the Industrial Relations Act. The respondent says that the applicant was employed as an enterprise bargain officer under the terms of a specific grant from the Western Australian State Government for that purpose. The grant was due to expire in about September or October of 1995. It is the respondent's contention that when it became apparent that there was a significant degree of conflict between the applicant and the secretary of the respondent, the applicant agreed to leave her employment with the respondent and be paid a sum representing the balance of the monies available under the enterprise bargain grant.
The applicant denies that she was employed as an enterprise bargain officer and says that although enterprise bargaining did form part of her duties she was primarily employed as a union organiser. She says that at all times it was the intention of the respondent that she remain fully employed until such time as the secretary of the union retired in early 1996, whereupon the applicant would take over as secretary of the union.
BACKGROUND
The respondent, the Textile, Clothing and Footwear Union of Western Australia is the state branch of a larger national organisation. The state branch is a separate legal entity from the national organisation. There is also a state union which in turn is separate from the state branch of the federal union. For the past twenty five years the respondent union has been run by its secretary, Ruth Geneff.
The applicant, Jacqueline Woodland, is a 55 year old woman who has worked mostly in the clothing industry since she left school at the age of 15. She suffered a neck injury some time ago and was unable to return to her former position as a machinist. On 1 July 1994 she obtained permanent part time employment as a cleaner. Ms Woodland has been associated with the respondent union for about eight years. She has been a shop steward and an occupational health and safety officer. She became a member of the executive of the union eight years ago. She has occupied the positions of trustee, vice president and became president about two years ago.
Ms Woodland gave evidence that Ms Geneff rang her at home in early February of 1995. According to Ms Woodland, Ms Geneff said that she wanted to retire in early 1996 and wanted to train Ms Woodland to be her replacement. Ms Geneff said that the union would pay her a weekly wage and 45 cents per kilometre as travel allowance whenever she needed to use her car. Ms Woodland needed time to talk to her family and later told Ms Geneff that she would accept the position and would give a week's notice to her current employer. It is common ground that there was never any contract of employment in writing and Ms Woodland was never provided with any conditions of employment in writing. Ms Woodland gave evidence that she thought she was being employed in a position like an organiser. Once she started her employment, her duties were general and not just related to enterprise bargaining. In support of her contention that she was not employed as an enterprise bargain officer, Ms Woodland points to the fact that she was sent by her employer to several training courses, including one held by the Australian Trades Union Training Authority in relation to prosecution procedures in the Industrial Magistrates' Court and one in relation to organising works and recruitment.
Ms Geneff gave evidence that the union had received a grant from the State Minister of Industrial Relations to employ someone to get enterprise bargains in place in workplaces. Prior to February 1995 she had employed two people in the position of enterprise bargain officer and she had some money left over and was looking to employ somebody else to use up that money. Ms Geneff said that she had trained two people already in that position and she didn't want to train somebody all over again. She said she rang Jacquie Woodland, who had extensive experience with the union and told her that there was some grant money left over and asked if she would be interested in enterprise bargaining. Ms Woodland asked how long the money would last for and Ms Geneff said until September. Ms Woodland said that she couldn't work until September as she was going to England in August. Ms Geneff then said that with the superannuation and holiday pay the money would just about run out in August. A few days later Ms Woodland returned her call and said that she would take the position. Ms Geneff said that she did say to Ms Woodland that she anticipated retirement in early 1996 and that Ms Woodland might like to see what the union was about. It was put to Ms Woodland that if she liked working for the union and if she performed well she could consider applying for nomination when Ms Geneff retired in around February of 1996. Ms Geneff is emphatic that the position was offered to Ms Woodland on the basis that it was as an enterprise bargain officer and that it was specifically to last until the money ran out. She said that the union was in a poor financial state and could not afford to employ anyone on any other basis.
In relation to the training courses, Ms Geneff said that to do enterprise bargaining properly you have to have a complete industrial knowledge. She wanted to give Ms Woodland some training as to what the inside of a union is all about. She also thought that the extra training would give Ms Woodland more confidence. When Ms Woodland went out to the workplace she expected her to talk to management and to set up consultative committees to conduct enterprise bargaining. Under the union award, enterprise bargaining is to be conducted through consultative committees. Ms Geneff said that most of the training courses Ms Woodland attended were free of charge. She was also interested in getting Ms Woodland out of the office because she found that she talked too much and interrupted Ms Geneff's work.
THE WRITTEN CONDITIONS OF EMPLOYMENT
Ms Woodland seeks to imply into the contract of employment several terms from a document headed "Wages and Conditions of Employment for Elected Officials and Employees February 1995". Ms Woodland said that although nothing was ever given to her in writing and although she did not see these written conditions until after she left her employment with the union, she had all along assumed that she was covered by some kind of conditions and that these conditions, which became an exhibit at the trial, were the only ones which could apply. Ms Geneff said that there was never any question of those conditions applying to Ms Woodland because Ms Woodland was employed solely on the basis of the enterprise bargain grant money and in any event the written conditions applied only to elected officials and employees of the national body. There is simply no evidence that the parties ever intended that the written conditions would form part of the contract of employment and I reject any notion that they did so.
THE MEETING OF THE EXECUTIVE IN MARCH 1995
A meeting of the union executive was held on 13 March 1995. Ms Woodland said that at that meeting Ms Geneff told the executive that she had employed Ms Woodland because Anna Booth, the federal secretary of the union, had stepped down and Ms Geneff wanted to retire in February of 1996. According to Ms Woodland, Ms Geneff said that Ms Woodland would take over from Ms Geneff when Ms Geneff stepped down. According to Ms Woodland, nothing was said at that meeting about her employment being as an enterprise bargaining officer. Ms Woodland's evidence was that she heard nothing about her position being that of an enterprise bargaining officer until the next executive meeting which was on Monday, 12 June 1995. She said that Ms Geneff was responsible for taking the minutes of each meeting. Ms Geneff had prepared some minutes purporting to be those of the 13 March meeting. Those minutes read in part as follows:
"ENTERPRISE BARGAINING
The first employee Mr Tony Lovett was terminated by myself after warning him that I required full and proper reports to me each Friday afternoon of work undertaken during the week and future work to be undertaken the following week. He refused to undertake this, so I terminated his employment.
The second employee was Mr Ngoc Thang Ho, a Vietnamese speaking young man who helped in interpretations with Vietnamese speaking workers. However, as soon as the University reopened he resigned from his job to pursue further studies.
Therefore I contacted our president and put the proposition to her that she might wish to take over the enterprise bargaining job and she has accepted.
MOVED R GENEFF SECONDED R FREEMAN
'That we employ Jacquie Woodland as enterprise bargain officer for $480 per week plus .45 cents per mile for car mileage.'
CARRIED"
Ms Woodlands said that the paragraph relating to her own employment was not accurate as it was untrue. According to Ms Woodland, the minutes of the March meeting were tabled and were incorrect. Ms Geneff had said that the union couldn't afford to pay Ms Woodland and that she was paying Ms Woodland out of the enterprise bargaining money. According to Ms Woodland, Ms Geneff told the executive that it was nothing to do with them. She said the executive told Ms Geneff that that was not why Ms Woodland was employed and that she had been employed there to train to take over from Ms Geneff. When Ms Woodland was asked whether the minutes of the meeting of 13 March were dealt with, she answered that nobody signed them on 12 June.
Josephine McDonald, a member of the executive committee, gave evidence that she recalled the meeting of 13 March. She said that just before the meeting opened, they were having sandwiches and Ms Geneff turned around and said that she was going to train Jacquie Woodland to take over when she retired in February 1996. According to Ms McDonald, this was put to the meeting and the members of the executive agreed to this. According to Ms McDonald, the question of Ms Woodlands' employment came up at the meeting on 12 June when they were reading the minutes of 13 March. When she read the minutes, Ms McDonald said they shouldn't sign them as they referred to Jacquie Woodland as an enterprise bargaining officer instead of being a trainee for Ms Geneff's job. That was the reason why the minutes were not signed. According to Ms McDonald, the whole executive agreed that they were wrong and Ms Geneff then said she had had to put Ms Woodland down as an enterprise bargaining officer because of the grant from the government. The union could not afford to pay the wages otherwise. According to Ms McDonald there had been no mention of an enterprise bargaining job at the March meeting. She said that the minutes of the 13 March meeting were not signed as they were not accepted by the committee. Several witnesses gave evidence on behalf of the respondent in relation to this issue. The first witness was Rhonda Freeman who had been a member of the executive of the union for at least twelve months. She said that she was there at the meeting of 13 March 1995. Her evidence was that at the beginning of the meeting Ms Geneff said that she had had to terminate Tony Lovett's employment and had spoken to Jacquie Woodland about replacing him and Jacquie Woodland had agreed. Ms Geneff asked the committee if they agreed to this and the committee did so agree. The terms were $480 a week and 45 cents per kilometre. She said that nothing was said at the meeting itself about the prospect of Ms Woodland taking over from Ms Geneff. She recalls it being said that Ms Woodland was to be paid from the balance of the enterprise bargaining grant given by the Minister for Industrial Relations, after paying for Tony Lovett. She said at the June meeting there might have been some discussion about enterprise bargaining but it was not in relation to whether or not Jacquie Woodland was employed as an enterprise bargaining officer. According to Ms Freeman, Jacquie Woodland did not say anything about the minutes of the March meeting being incorrect. There was nobody unhappy with the minutes of the March meeting. Ms Freeman agreed that the common practice was for the minutes of the previous meeting to be signed if they are accepted by the committee. Ms Freeman doesn't know why Ms Woodland didn't sign the minutes of the March meeting as she didn't object to them at the time. She did say, however, that Ms Woodland was not a very disciplined chairperson. Ms Freeman was adamant that nobody on the executive committee voted Ms Woodland to be anything other than an enterprise bargaining officer for the remainder of the grant.
Donald Buckingham gave evidence that he had been a member of the executive for over twelve months. According to Mr Buckingham, at the meeting of 13 March 1995 it was said that Ms Woodland's period of employment was until such time as the grant for enterprise bargaining ran out, and that Jacquie Woodland said nothing about this and accepted it. He said that Jacquie Woodland and Ruth Geneff visited his factory in early April and he introduced Ms Woodland as the enterprise bargainer to the workers. Ms Woodland did not say anything about that introduction at the time.
Mr Buckingham said that he attended the meeting of the executive in June. He said that the March minutes were accepted as correct by all members. In relation to Jacquie Woodland, it was said that the grant was due to run for another ten weeks. His understanding was that when Ms Woodland was employed as an enterprise bargaining officer it was in the general context that if the enterprise bargaining worked out well and Jacquie Woodland was capable in the job, Jacquie Woodland could apply for Ms Geneff's position when she retired. He remembered that this conversation took place in the March meeting. In relation to the June meeting, Mr Buckingham said that nobody challenged the minutes of the previous meeting. According to Mr Buckingham, Ms Woodland did not sign quite a few of the minutes of other previous meetings.
Rosalie Leavey gave evidence that she has been a member of the executive of the union since the beginning of this year. She remembered the meeting of 13 March. Her evidence was that Ms Woodland's employment was to do with enterprise bargaining as there was money there for so many weeks for that position. Jacquie Woodland was present and everybody agreed to her employment on those terms. Ms Leavey said that nothing was said about Ms Woodland taking over from Ms Geneff when she retired. The money for Ms Woodland's job was allocated for enterprise bargaining and it was only on a short term basis. She said that the minutes of the March meeting were approved in June. Ms Leavey said that when the minutes of the March meeting were put forward to the committee, nobody raised any problems and there was no discussion about Ms Woodland's job.
Ms Geneff said that at the executive meeting in March she reported on Tony Lovett and his termination, and the fact that the young Vietnamese man had taken over the position and stayed for only a few weeks. She told the meeting that Jacquie Woodland had agreed to take the enterprise bargaining position and to use the grant money up. This appointment was passed by the committee. Later there were discussions to the effect that if she performed well, Ms Woodland could think about taking up Ms Geneff's position by nominating for that position when Ms Geneff retired. This was set out in the March minutes which were tabled at the June meeting and carried. According to Ms Geneff, there was no discussion about the March minutes at all during the June meeting. According to Ms Geneff, there were many different minutes of meetings which have not been signed by Ms Woodland as president, as she goes off on a tangent sometimes.
THE PERIOD OF EMPLOYMENT BETWEEN FEBRUARY 1995 AND 16 JUNE 1995
It would be fair to say that it is common ground that the work Ms Woodland did from the time she started with the union was not confined solely to attempting to arrange enterprise bargaining agreements. She attended various shops and made reports about the conditions the workers were employed under. In doing so, she would complete a form headed "Organiser's Report Sheet". She would try to isolate problems and come back to the office and speak to Ms Geneff about them. Ms Geneff's position was that this was an integral part of the job as one can't bargain on behalf of employees unless one is well informed about the terms and conditions those employees work under.
Ms Woodland said that she found Ms Geneff a very rude and difficult person to work with. Her language was bad and she upset other staff members. There was an incident relating to another employee, Natalie Wise, who was eventually terminated. According to Ms Woodland, Ms Geneff's conduct came up on several occasions at different workplaces. Ms Woodland said that she could not speak to Ms Geneff and she therefore turned to the national body for some assistance. Ms Woodland wrote a letter to Tony Woolgar, the federal secretary who had taken over from Anna Booth. The letter was dated 12 May 1995. In that letter Ms Woodland congratulated Tony Woolgar on his new position and said that she was in "desperate need of help from the federal office". In that letter she states: "I am the president of the WA branch, I'm also the organiser and enterprise bargan (sic) officer." The letter goes on to refer to various problems Ms Woodland was having with Ms Geneff.
It was also around this time or shortly afterwards that Ms Woodland contacted Kathleen Mallott, who had previously worked with the union with Ms Geneff between 1991 and 1994. Ms Mallott said that Ms Woodland rang her one morning and asked if they could meet for lunch. As Ms Mallott was too busy they arranged to meet for coffee. This was at around the end of May or early June. They had some general conversation about enterprise bargaining and union member numbers. Ms Woodland then said she wanted Ms Mallott's advice about Ruth Geneff. She said that she had had disagreements with Ms Geneff and that Ms Geneff had promised her the secretary's job when Ms Geneff retired. She said words to the effect that Ruth Geneff should retire now. Ms Mallott then said that she wanted her to stop and didn't want to be involved. Ms Mallott said that she felt that Ms Woodland wanted to recruit her to assist in getting rid of Ruth Geneff "now rather than later".
Ms Mallott was also able to give some evidence in relation to the status of Ms Woodland's employment. She said that she now works out of the Trades and Labour Council building. In February 1995, Ms Woodland came over to those premises and ran into Ms Mallott and Tony Cooke of the Trades and Labour Council. According to Ms Mallott, Ms Woodland told Tony Cooke and Ms Mallott that she had been employed as the new enterprise bargaining officer for the union. They congratulated Ms Woodland and Tony Cooke made the comment that she may also have his commiserations as the position seemed to be a revolving chair. This was because the two previous occupants had lasted only a short time each in that position. During cross examination, Ms Mallott said she had known that there had been funds made available to the union for enterprise bargaining. Ms Woodland had also said that she was in the Trades and Labour Council building to get some enterprise bargaining information from one of the workers there. It was suggested to Ms Mallott that her conclusion on Ms Woodland's employment status was based on Ms Woodland saying that she was there to get information regarding enterprise bargaining and her knowledge of the union's affairs. Ms Mallott was emphatic that Ms Woodland had said that she was taking over the enterprise bargaining or words to that effect.
THE INCIDENT ON 16 JUNE 1995
It is common ground that upon receipt of Ms Woodland's letter dated 12 May 1995, Mr Woolgar telephoned the union's offices on 16 May 1995 and asked to speak to Ms Geneff. When Ms Geneff became aware of the subject of the conversation she asked Ms Woodland, who was standing on the other side of the counter from her, to leave the room so that she could have a private conversation. Ms Woodland knew that Mr Woolgar must be telephoning about the letter and refused to leave the office. According to Ms Woodland, when Ms Geneff finished her telephone conversation she said to Ms Woodland "You're nothing but a troublemaker. You should have got rid of Natalie Wise. I am going to give you four weeks' notice. And I'm going to give you a hard time". Ms Woodland said that she then went outside. She came back in and tried to ring Tony Woolgar but was unable to reach him. She then went home.
Ms Woodland said that on the following Monday she was still upset and went to three factories. When she came back into work she felt unwell and Ms Geneff told her to go home. She went to the doctor the next day and he gave her two days off work. A medical certificate was produced. She returned to work on the Thursday. She said that when Ms Geneff came in Ms Woodland asked her what she would be paid at the end. Ms Geneff then said to her "We're not going to get on. You should have got rid of Natalie Wise. You disobeyed my order and gave out the rule changes." Then Ms Geneff said "You're not entitled to anything. You're employed as an enterprise bargaining officer." Ms Woodland then said "If I am an enterprise bargaining officer I'd be paid the same as Tony Lovett". Ms Geneff then said she should go. Ms Woodland went outside and came back in. Ms Geneff made up a cheque and asked Ms Woodland to sign the auditor's report and the minutes and Ms Woodland refused. Ms Geneff handed her the cheque and the amount didn't look right. However, Ms Woodland cashed the cheque and then returned to the office to sign for the cheque in the wages book. Ms Woodland maintained that she could not understand what the cheque was for.
Ms Geneff's version of the events is that after she finished speaking to Tony Woolgar she put down the phone and said to Jacquie Woodland "You are a disloyal, malicious, manipulative woman. How do you expect me to continue to be pleasant to you. It is going to be hard working together." Ms Woodland then left the office as she doesn't like confrontations. Ms Woodland was sick for some days and when she returned to the office on Thursday she yelled at Ms Geneff saying "I want $800 a week". Ms Geneff replied "What are you talking about. There is no award for enterprise bargaining. You know the union has no money. Let's talk about this". Ms Geneff said that she then told Ms Woodland that they were not getting on and that it would be difficult to work together. She said that there were ten weeks of the grant money left to run. She suggested that they could have ten weeks of hell working together or Ms Woodland could take the ten weeks' pay as a settlement amount. Ms Woodland then told Ms Geneff "I'd like to recoup my holiday in England". Ms Geneff said "That's a bit rough." Ms Geneff told Ms Woodland that ten weeks amounted to $4,800 minus the deductions for tax and so forth. Ms Woodland agreed to take the money. Ms Geneff then made the cheque out. Ms Woodland had to countersign the cheque. Ms Geneff hadn't had a chance to stamp the cheque "Not Negotiable" when Ms Woodland grabbed the cheque and left the office quickly. As she was leaving the office Ms Geneff said "Hey, I want you to sign a statement". Ms Woodland said that she would be back in half an hour but she didn't return. Ms Geneff said that her understanding was that Ms Woodland agreed to take the money as a settlement and that that would be the end of the matter. She maintains that she did not terminate Ms Woodland's employment but that Ms Woodland agreed to take the ten weeks' pay instead of working for the balance of the grant.
THE CREDIBILITY OF THE WITNESSES
This matter involves a direct conflict of evidence between the applicant, Ms Woodland, and the respondent's main witness, Ms Geneff, as to the basis upon which Ms Woodland was employed in February 1995 and also the circumstances surrounding the conclusion of her employment with the respondent union.
In support of her claim, the applicant relies on a number of things to establish her credibility including the following:
The applicant's verbal evidence
Ms McDonald's evidence
The fact that the applicant carried out work for the union which was not confined solely to enterprise bargaining
The fact that the applicant was sent on training courses which were not directly related to enterprise bargaining
Some handwritten notes made by Ms Woodland which refer apparently to the meeting of the executive on 13 March 1995 which read in part as follows:
"Ruth Geneff
Said she would be retiring in Feb 1996, and that Ana (sic) Booth was spepping (sic) down and Ms Geneff said she would to (sic),
She told the exec that she had employed me to train in her possision (sic) and that I had a great (sic) to do it. Ms Geneff asked X if this was OK and thay (sic) all voted ananamuily (sic)"
Ms Woodland said that she put these notes down and she thought this was a couple of days later but she could not be precise.
The fact that the minutes of 13 March had never been signed.
The evidence of Helen Ivory who was employed by the respondent union between 14 July and 24 October 1995. Ms Ivory gave evidence that she heard Ms Geneff discuss the status of Jacquie Woodland's employment on 6 October with another person. Ms Geneff said that she had told Ms Woodland "I am going to retire next year so see how you go".
The fact that in the applicant's submission Ms Geneff's evidence could not be trusted. A lot of the cross examination by counsel for the applicant and the witnesses for the applicant was directed at trying to establish that Ms Geneff had total control of the union and that other executive members would do what Ms Geneff told them to do. It was suggested that Ms Geneff was basically untruthful and the Court was referred to the case of Geneff v Peterson & Ors (1986) 19 IR 40 which involved an action by Ms Geneff against various members of the federal council of the union. They were civil proceedings and Justice Gray found in that case that Ms Geneff had falsified some minutes of meetings. It was suggested on behalf of the applicant that Ms Geneff is an intelligent woman who is sophisticated enough to know what her interests are, including the fabrication of evidence. The applicant also pointed to the respondent's wages book in which Ms Geneff wrote some time after 24 October 1995 on the left hand side of Ms Woodland's record "EB Cheque" with a number of dates following. Ms Geneff admitted that she wrote these words after 24 October and said that she did so for the benefit of the auditor. I note that similar notations have been made by Ms Geneff throughout the book in relation to other employees as well and I reject any suggestion that Ms Geneff falsified evidence in this regard.
On behalf of the respondent it was said that the applicant's credibility is affected in a number of ways, including the following:
In the letter to Tony Woolgar, Ms Woodland described herself as an enterprise bargaining officer notwithstanding the fact that she says that she didn't know until June that it was being alleged that her employment was on this basis.
The evidence was that Ms Woodland's wages were paid from the union's enterprise bargaining account. Ms Woodland acknowledged that she countersigned her own wages' cheques and that she had been doing this since the start of her employment. Ms Woodland's evidence was that she didn't think anything of this and she knew that Ms Geneff transferred monies from one account to another. She knew that both the previous enterprise bargaining officers had been paid from this account as she had countersigned their cheques but she said it did not lead her to believe that she was employed from the enterprise bargaining money.
When Ms Woodland went to Mr Buckingham's workplace he introduced her as an enterprise bargaining officer and this passed without comment.
Ms Mallott's evidence that Ms Woodland went to the Trades and Labour Council premises and told Ms Mallott and Tony Cook that she was the new enterprise bargaining officer.
The evidence of the various other members of the executive who all agreed that Ms Woodland had been employed as an enterprise bargaining officer, that this was said without comment at the March meeting and that the March minutes were passed without comment at the June meeting.
It defies credibility that the executive of the union would have agreed to employ Ms Woodland on the basis she is suggesting. Ms Woodland said on a number of occasions in her evidence that the committee unanimously agreed that she was going to take over from Ms Geneff when Ms Geneff retired. It was clear from the evidence that if Ms Geneff does retire, any replacement will have to be nominated and voted in at the relevant time.
It is said on behalf of the respondent that Ms Ivory's evidence is entirely consistent with the respondent's case. Ms Geneff agreed that she suggested to Ms Woodland at the time of her employment that she may like to consider nominating for the position of secretary when Ms Geneff herself retired if she enjoyed working for the union.
Ms Geneff suggested that Ms Woodland's present application was motivated by political considerations and that this was borne out by Ms Mallott's evidence that in May or early June Ms Woodland had tried to get Ms Mallott's support in removing Ms Geneff from her position earlier than February 1996.
I have had regard to the points raised by both parties. I have also carefully considered all of the evidence and the demeanour of the witnesses involved in the hearing. I have decided that on the basis of all of this, on balance I prefer the evidence of Ms Geneff over that of Ms Woodland. Despite the many attempts made on behalf of the applicant to show that Ms Geneff had fabricated evidence and was manifestly untruthful, there was nothing about her evidence which caused me any concern. Ms Woodland's evidence and demeanour, however, did leave some doubts in my mind. Although she has been president of the union for some time and was suggesting that she was an understudy for Ms Geneff, she claimed to have no knowledge of the union's financial affairs or anything to do with the union's accounts. If this is so (which, however, appears to me to be unlikely) it is also possible that she misunderstood the basis upon which she was being employed. The more likely position, in my view, is that Ms Woodland knew that she was being employed as an enterprise bargaining officer from the enterprise bargaining grant monies and that she was to be employed only for such time as the grant monies were available. In Ms Woodlands favour, it should be noted that the duties she was carrying out were somewhat wider than those strictly related to enterprise bargaining. I accept Ms Geneff's explanation in this regard, however, that in order to effectively carry out enterprise bargaining one must have a wider knowledge of the union and, in particular, the workplaces involved. Further, despite Ms Woodland's protestations that she did not know what her termination cheque represented, I consider it extremely unlikely that she did not realise that the $4,800 gross paid to her represented the balance of ten weeks of the grant money. I further consider it extremely unlikely that Ms Geneff would have paid to Ms Woodland ten weeks' pay unless there had been some agreement that this was a settlement which was agreed to by both parties. On balance, I find:
that Ms Woodland was employed by the respondent as an enterprise bargaining officer for such time as the grant monies were available, and
that Ms Woodland agreed to take a payment of $4,800 gross as termination pay in lieu of working out the balance of her employment period.
In these circumstances, the application must fail. The order made is that the application is dismissed.
I certify that this and the preceding 16 pages are a true copy of the Reasons for Judgment of Judicial Registrar Boon.
Associate
Date:
Counsel for the applicant: Mr G Gishubl
Solicitors for the applicant: Jackson McDonald
Counsel for the respondent: Mr D Schapper
Solicitors for the respondent: D H Schapper
Hearing date: 13 November 1995 & 1 December 1995
Judgment date: .. December 1995
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