Keith Charles Truscott v Noongar Alcohol and Substance Abuse Services (Inc) (NASAS)
[1995] IRCA 159
•13 April 1995
IN THE INDUSTRIAL RELATIONS ) No. WI 413 of 1994
COURT OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
BETWEEN:Keith Charles Truscott
Applicant
AND:Noongar Alcohol and Substance Abuse Services (Inc) ("NASAS")
Respondent
BEFORE: Boon JR
PLACE: Perth
DATE: 13 April 1995
REASONS FOR JUDGMENT
The applicant has applied under Section 170EA of the Industrial Relations Act 1988 for an order declaring the termination of his employment to have contravened Division 3 of part VI A of the Act. He is seeking reinstatement and payment of compensation.
The applicant started work as a full-time Director of the Noongar Alcohol and Substance Abuse Services (Inc) (NASAS) on 18 March 1991. His employment was terminated without notice on 23 September 1994. The applicant contends that the termination of the employment infringed the provisions of the Industrial Relations Act in a number of ways.
Firstly, it is said that the required period of notice was not given to the applicant. The respondent concedes that this was so.
Secondly, the applicant alleges that he was given no opportunity to respond to the allegations made against him as required by Section 170DC and that he was given no warnings that his employment was in jeopardy prior to his dismissal. The respondent concedes that the applicant was given no opportunity to respond to the allegations but relies on Sub-paragraph (b) of Section 170DC of the Act and says that the employer could not reasonably be expected to have given the applicant that opportunity
Thirdly, even if the respondent had not breached the procedural fairness provisions of the Act, the applicant says that there was no valid reason for the termination connected with the employee's capacity or conduct or based on the operational requirements of the respondent's service. The respondent, on the other hand, alleges that there was a valid reason for the termination based on the applicants capacity and conduct over a substantial period of his employment.
Fourthly, the applicant alleges that one of the reasons for the termination of his employment was the fact that he was a Christian and that his religious philosophies were not approved of by some members of NASAS. It is therefore alleged that the termination of his employment contravened Section 170DF (1)(f).
I shall state at the outset that I was unable to find on the evidence that the reasons for the termination of the applicant's employment included the fact that his religious beliefs were not approved of.
The Respondent's Service
NASAS is an incorporated association with objects including the promotion of self-sufficiency among Aboriginal people and the establishment of a range of facilities and services for dealing with alcohol and other substance misuse among aboriginal people.
NASAS is managed by an elected Board of Management which includes a Chairperson, a Secretary, a Treasurer and ordinary members. NASAS is funded through grants from various agencies. Many of those grants are made for specific purposes.
The applicant was the first Director of NASAS when it was set up in 1991. He saw his role of Director as being required to follow Management Committee directions and oversee the day-to-day operations of staff, financing and counselling. He was to make sure it was running efficiently and properly.
The applicant stated that when NASAS was first set up there was just one receptionist, one social worker and himself on the staff. By the time of his termination there were four other people on the staff, plus a half-time bookkeeper. Since his termination a full-time administrator and a full-time, qualified bookkeeper have been added to the staff.
The applicant stated that quite a few people were seen at NASAS each week. About 8 to 12 people came in off the street each day. There were rush periods when people contacted NASAS for emergency relief. NASAS also conducted home visits, talks to schools and workshops. The staff supported each other. The applicant himself sometimes did counselling.
The Operations Of NASAS Prior To 22 September 1994
One of the reasons given by the respondent for the termination of the applicant's employment was a general lack of leadership and accountability. Much of the time at the hearing was taken up with evidence concerning the role of the applicant in the financial affairs of NASAS. It is impossible to set out here everything that was raised at the trial, but some of the main issues raised were as follows:
Financial Reports
As part of his duties as Director, the applicant was required to submit financial reports to the Management Committee. The most recent Chairperson of NASAS, Dawn Wallam, said that from the time the present Management Committee was elected to office in February 1994 it asked the applicant to provide clear and comprehensive reports with respect to the financial status of the organisation so that clear plans could be made for future budgets. It was said that there were always problems with the financial reports in that they didn't fully present the financial situation of NASAS to the Committee.
In his affidavit dated 20 March 1995 the applicant states that financial reports were always presented to the Management Committee even though, at times, they were late. Reasons for this included that he had to deal with a trainee bookkeeper, who was only part-time. He had no other financial or administrative assistance. He states that he suspected that the Management Committee members lacked competence to read financial reports satisfactorily, and even the Treasurer would ask him to explain some basic aspects of the financial statements he would present. He also alleged that the Treasurer never gave him the support that was expected of her. The Committee members, on the other hand, state that the applicant never asked for any other assistance.
The applicant's position was that NASAS was under-funded, that this was a constant problem and that this was always made out on the financial reports. He was limited in what he could put into the reports by the capacity of the NASAS computer. The computer sometimes broke down and the trainee bookkeeper was sometimes away. The applicant would write an explanation on the bottom of each computer print out. He felt that even if the financial reports he prepared were the best he could provide given the difficult circumstances, he would be criticised by the Committee. Sometimes he was criticised because the reports were too short, but at other times because they were too long.
The issue of financial management came to a head in July 1994 when the landlords of the NASAS premises advised of rent arrears of $14,000 dating back to June 1993. As a result of this, the Committee requested that a mini-audit of NASAS take place. With respect to the provision of financial reports, the auditors stated in their July 1994 report that "a running check each month of actual expenditure compared to funded expenditure should be prepared for review by the Management Committee at its meetings". Following this report, the Management Committee directed the applicant, at its August meeting, that future financial reports contain this information. Although problems with financial reports had been raised with the applicant before this time, on balance I find that this was the first time the applicant had been given such a specific direction by the Committee with respect to financial reports. He only had one opportunity before his termination to comply with this direction and that was at a Committee meeting on the first Friday in September of 1994. The applicant nearly had the financial statements prepared when the computer broke down.
Financial Accountability
The respondent contends that the applicant's lack of accountability manifested itself in several ways. One complaint was that he used incoming funds for purposes which were not those stipulated by the specific grant, and another was that he spent more on the purchase of computer equipment and carpets than he was authorised by the Committee to spend.
It is clear from the evidence that from its inception NASAS experienced problems with funding its operations. The applicant states in his affidavit of 6 February 1995 that there were frequently problems with money supply in the organisation. He states in paragraph 10 that "being a community based organisation reliant on funds from various bodies means that the financial predicament will never be certain. Sometimes we would overspend our allocated amounts but our funding bodies would help us out". He gave evidence that sometimes he would get verbal approval from a funding body to go ahead with some activity or purchase, and if the matter was urgent he would use existing funds (which had been earmarked for another purpose) and the new funds would eventually be paid to NASAS. This was necessary because NASAS was growing very quickly. Reg Yates, the former Chairperson of NASAS, states in his affidavit dated 8 February 1995 that this was a common method of operation in Aboriginal organisations which often work from a depleted funding base. Mr Yates said that in the applicant's time as Director, he raised over one million dollars in funding for NASAS. Mr Yates saw the applicant put in long hours, and said his commitment was outstanding. Mr Yates did, however, say that one could not use monies allocated for taxation for other purposes. He said that the question of whether money which is allocated for a specific purpose can be spent on another purpose depends on the funding agents. Usually funding agencies are sympathetic to overall objectives.
It is significant that when Mary Drandich, a member of the Committee of NASAS, was Acting Director while the applicant was on leave, she spent a significant sum of money purchasing an air conditioner for NASAS before funding had come through. Ms Drandich gave evidence that she telephoned the funding body and arranged for funding to be agreed to in principle. She stated that it may not have been the right thing to do, but at the time she felt it was okay.
The respondent has further criticised the applicant in relation to funds spent on the purchase of computers and carpets. In her affidavit dated 28 February 1995 Dawn Wallam states that budgets for computers and the fit-out of renovations to the office premises were ignored. At Management Committee meetings on 8 April 1994 and 6 May 1994 budgets for computers ($16,000) and carpets ($12,885) respectively were allowed. It was said that without the approval of the Management Committee the applicant authorised $26,636 for computers and $13,585 for carpets. In his affidavit in reply the applicant states that he had obtained extra funding from the Aboriginal and Torres Strait Islander Commission (ATSIC) for establishment costs and that some of this money was, with the approval of Ms Wallam, spent on computers and carpets. The lowest quote he had obtained for computers was $26,000.
Rent Arrears
As I have already stated, in July 1994 the respondent's landlords advised of rent arrears of $14,000 dating back to June 1993. The auditors stated in their letter of 11 August 1994 that the non-payment of rent was a symptom of a deeper financial problem affecting the agency. Several Committee members said that they were shocked to learn of the rent arrears.
The applicant states that NASAS occupied premises at 66 Brewer Street, East Perth between January 1990 and January 1993. The rental was $14,000 per annum. NASAS then occupied 207 Beaufort Street, owned by the Aboriginal Advancement Council (AAC) between January 1993 and September 1994. The applicant had been advised by Ms Wallam, who is the Treasurer of the AAC, that the rent at Beaufort Street would be $19,000 per annum. The applicant went on leave in late 1992 and early 1993. When he returned from leave he was told that the rent from Beaufort Street was now $29,000 per annum. Originally NASAS was paid a rental allowance by the WA Alcohol and Drug Authority (WAADA) of $14,000. This was increased to $19,000 at the applicant's request when he thought the new rent was to be $19,000. When he returned from leave he was surprised to learn that the rent for Beaufort Street was in fact $29,000 and that this had been accepted by the Committee. The applicant questioned Ms Wallam and another representative of the AAC and was told words to the effect "We have to be professional. Your rental is now $29,000 per annum". The applicant felt NASAS had no alternative but to pay the rent increase. The applicant stated in his verbal evidence that he approached many funding bodies to try to obtain funding to cover the rent increase, but they all advised him that any application would be refused. The applicant then met representatives of the AAC Committee and formulated a plan to pay the outstanding rent. He says NASAS stuck to this plan and they were up-to-date in December 1993.
NASAS was to move to premises in Wittenoom Street in December 1993 but there were many delays because of various reasons. The purchase of the Wittenoom Street property by NASAS was fully funded. NASAS fell into arrears in rent between January and September 1994. NASAS did not know when they were going to move. According to the applicant, the AAC knew that the rent would be paid once NASAS moved to Wittenoom Street as the WAADA was going to continue to fund NASAS at a rate of $19,000 per annum for rent even though they would not actually be paying rent at Wittenoom Street. According to the applicant, he did not tell the full Committee that NASAS had fallen behind in its payment of rent until he received a letter of demand in July 1994. However, he knew that Ms Wallam and Wayne Daley, another Committee member, knew about it. He states that he told Ms Wallam in May 1994 that NASAS would pay the rent arrears in monthly instalments once NASAS moved into Wittenoom Street, and that she agreed with this arrangement. Ms Wallam in her evidence stated that she kept AAC and NASAS affairs separate from each other. She felt that the applicant should have made written applications for funding to cover the increase in rent, notwithstanding that the funding bodies had told him that no funding would be granted, as in her experience sometimes funding bodies will unexpectedly have funds left over which they need to use.
Pencil Submission
The respondent criticised the applicant for once having sent an acquittal to ATSIC, a major funding body, written in pencil. The applicant admits that this is so and that a deadline had to be met. He always prepared the acquittals in pencil and they were then typed. On this occasion he was unable to get the document typed in time and he telephoned someone at ATSIC to explain this.
Faxes Not Acted Upon
The NASAS Committee decided in 1994 to purchase a property at North Dandalup. The applicant made it clear before the decision was made that he would prefer NASAS to purchase a different property. In September 1994 NASAS was involved in negotiations for the purchase of the North Dandalup property. In the week prior to 22 September 1994 Ms Wallam went to Queensland and left instructions with the applicant to do anything necessary to facilitate the purchase of the property. The applicant's evidence was that while Ms Wallam was away on leave he was advised by the real estate agent handling the matter that he (the real estate agent) had been told by the Committee not to deal with the applicant and that the applicant was off the case. Ms Wallam gave evidence that she did not say anything of that nature to the real estate agent and was not aware of any Committee members making such a statement.
Two faxes relating to the purchase of the property were received by NASAS. The first facsimile dated 12 September 1994 was addressed to Dawn Wallam and required certain things to be done by NASAS before funds would be released by ATSIC. The second fax was dated 20 September 1994 and was addressed to Dawn Wallam/Keith Truscott. Mrs Wallam stated in her evidence that when she came back on 22 September 1994 she saw the fax dated 12 September 1994 and realised nothing had been done. She was annoyed about this. She assumed the applicant had not acted on the fax because he was not in favour of purchasing the North Dandalup Property. However, there was no evidence that applicant actually saw the fax dated 12 September 1994 addressed solely to Dawn Wallam.
The Incident On 22 September 1994
In his affidavit of 6 February 1995 the applicant states that after NASAS moved to its Wittenoom Street premises, the staff of NASAS started complaining about Ms Wallam and her defacto husband, who is also on the Committee. It was alleged that they would come in and use the phones and computers in working hours without notice to anyone else. On one occasion on 22 September 1994, Ms Wallam used one of the NASAS computers while some people were programming them and it appears that the whole system crashed as a result. The staff had a meeting and asked the applicant to speak to Ms Wallam about it and to request that she show some courtesy in using the computers and telephones by asking the staff first. The applicant states that he asked Ms Wallam very politely if she could ask him in future before she used any of the office equipment. She then allegedly said to him "How dare you! I am the Chairperson of the Committee", to which he replied "But I am the Director of NASAS". Mrs Wallam then said to the applicant "you are on notice".
Ms Wallam states in her affidavit that she was unaware of complaints by staff in relation to her use of the NASAS computers or telephones until the applicant complained to her on 22 September 1994. On that day she had been into the NASAS office on a number of occasions to report on the meetings she had had and to check the progress of the negotiations on the purchase of the North Dandalup property. She had used the office spare computer to record the developments. On that day she found the two faxes from ATSIC referred to above, and she used the spare computer to prepare a memorandum to the applicant. She assumed the applicant was not there as it was his rostered day off. The applicant arrived and they discussed some NASAS business when the applicant said that Ms Wallam should not be using NASAS equipment without the authority of himself as Director. When Ms Wallam questioned that statement the applicant allegedly told her she should go and type somewhere else and that she should not enter the NASAS building without his authority. Ms Wallam told the applicant that he was employed by the Management Committee and that his outburst was out of order. The applicant allegedly continued to tell Ms Wallam that she was out of order and that she should apologise for her ill mannered behaviour. Ms Wallam then told the applicant he could consider himself to be "on notice".
In his verbal evidence the applicant denied that he was rude to Ms Wallam or that he said she should not enter the NASAS premises without his permission. He said that would be ridiculous. He said that Ms Wallam was heated during the incident. According to the applicant Ms Wallam said "so you are saying I need permission to use the building?" and he replied "that is not what I am saying, just please give us courtesy, ask permission to use computer". He had asked Ms Wallam to type somewhere else because the computers were not properly installed yet and even the NASAS typist couldn't use them yet.
The Termination
Ms Wallam left the office and wrote out a report of this incident. She then telephoned members of the Management Committee to convene a meeting. Seven members of the Committee attended the meeting at Ms Wallam's house on the evening of 22 September 1994. The applicant was not told of the meeting and did not attend. Ms Wallam's affidavit states that at the meeting the Committee discussed not only her report of the incident which had occurred on that day but also "their frustration's that Mr Truscott was not improving but was refusing to be accountable for his actions or to perform tasks that had been allocated to him. The decision to dismiss Mr Truscott was on the basis of his lack of leadership and accountability, especially financial accountability". The Committee discussed using the Grievance Procedures set down in the NASAS Staff Administration Manual but it was decided not to adopt that procedure as NASAS could not afford to go through the system of warnings. It was felt by the Committee that the applicant would not make the necessary changes. Ms Wallam said in her verbal evidence that this decision was made "given his past record of lack of accountability and the altercation was like a slap in the face of the Management Committee". Ms Wallam admitted that the Management Committee had heard only from her about the incident and not from the applicant. She also admitted that none of the complaints brought up at the meeting had been put to the applicant. The Committee decided to terminate the applicant's employment without notice and the minutes of that meeting show that the decision was made on three grounds: insubordination; no follow-up action on vital correspondence tht is, the faxes from ATSIC; and lack of leadership and accountability. A letter of termination was typed up that evening. The following morning the Committee met the applicant, who thought that everyone was there to attend a pre-arranged workshop. The applicant was told about the meeting held on the previous evening, that the Committee had decided to terminate his employment and was handed the letter of termination. He was then asked if he had anything to say and he declined. Several witnesses (including Dawn Wallam and Laurel Sellers) called on behalf of the respondent stated in their verbal evidence that although a decision to terminate the applicant's employment had already been made on the previous evening, the applicant may well have been able to convince the Committee to keep him on as Director if he had chosen to speak on his own behalf on the morning of 23 September 1994. The applicant had, however, not been given any notice or warning of what was about to happen. Ms Wallam admitted that the Committee had pre-judged the issue but said that there was still room for negotiation depending on the ability of the applicant to convince the Committee not to terminate his employment after all.
Findings On The Evidence
Before stating my findings on the evidence I want to make it clear that there was nothing in the demeanour of any of the witnesses which would cause me to reject their evidence. On the contrary, I was left with the impression that each person called had a genuine commitment to the needs of NASAS but each had a different view about the most appropriate way in which those needs might best be met. My findings on the evidence are as follows:
The applicant was employed by NASAS as its full-time Director for a period of over 3 years. Immediately prior to the termination of his employment he was earning a salary of $40,000 per annum.
NASAS is a community based organisation specifically catering for the needs of Aboriginal people. Since its inception there have been problems with its financial position in that the limited funds available were insufficient to meet all of the needs of the organisation.
NASAS has grown substantially since it was first set up. The applicant, as its Director, had a very heavy workload. The various Management Committee members of NASAS delegated a substantial part of their duties to the applicant as their employed Director.
The applicant on the one hand, and some of the members of the 1994 Management Committee on the other hand, had different views about what was an appropriate way of carrying out the functions of a community based Aboriginal organisation. The way in which the applicant managed the organisation was the way in which some other Aboriginal organisations in Western Australia are managed. This is borne out by the evidence of Reg Yates, the former Chairperson of NASAS. Dawn Wallam, on the other hand, has extensive experience with Aboriginal organisations and has been trained through a number of State Government Departments, including the Department for Community Development and the Education Ministry. She favours a more conventional approach to financial management which may well be more appropriate than a style which incorporates "robbing Peter to pay Paul".
The applicant, in carrying out his function as Director, made decisions and administered the finances of NASAS in a way which, in retrospect, was not always the most desirable. However, the applicant had insufficient assistance and resources available to him in carrying out his tasks. The financial problems experienced by NASAS were not caused by anything which could be said to amount to gross misconduct on the part of the applicant. Further, although I find on the evidence that the members of the Management Committee had, over the years, expressed concern to the applicant about the financial position of NASAS, the applicant was never given any specific warning that his job was in jeopardy as a result of the financial problems.
Further, I find that although some of the Management Committee members were at times unhappy about the applicant's performance, other members of the Committee and staff members of NASAS were satisfied with his performance and approved of his management style.
The incident on 22 September 1994 between Dawn Wallam and the applicant occurred at a time when there was considerable tension between the parties. I find on balance that Ms Wallam misunderstood what the applicant was trying to say to her and that it is unlikely that the applicant told her not to enter NASAS premises without his permission. Ms Wallam admitted in evidence that the applicants request that she show some courtesy in using NASAS equipment would not be unreasonable if his manner had been different. What occurred on 22 September 1994 was not an incident of insubordination which would warrant termination without notice.
The meeting on 22 September 1994 was called in the heat of the moment. The decision to terminate the applicant's employment on that day would not have been made at that time if the earlier incident had not occurred. Although the Committee had in mind a number of issues relating to the applicant's performance when they made the decision to terminate his employment, the applicant was not given the opportunity to defend himself against any of the allegations made within the meaning of Sub-paragraph (a) of Section 170DC of the Act.
I find on balance that the respondent's defence that it could not reasonably be expected to give the applicant that opportunity within the meaning of Sub-paragraph (b) of Section 170DC is not supported by the evidence. Comments made by Wilcox CJ in Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233 imply that Sub-paragraph (b) of Section 170DC may apply if there is some urgency about the termination or some problem about first putting the allegations to an employee. I accept that NASAS Committee members were anxious to proceed with the purchase of the North Dandalup property as there was some concern that NASAS may lose that funding if the purchase did not proceed. Some Committee members felt that it was likely that the applicant would never change. I do not, however, consider that this was sufficient to bring the respondent within Sub-paragraph (b) of Section 170DC. The Grievance Procedure set out in the respondent's Staff Administration Manual could, and should, have been followed. I find, therefore, that the respondent has not complied with the requirements of Section 170DC of the Act.
In view of my finding that the respondent has breached the provisions of Section 170DC, it is not necessary for me to consider whether the respondent had a valid reason for termination of the applicant's employment. However, because the respondent spent considerable time and energy in dealing with questions of the applicant's performance prior to 22 September 1994 it is appropriate for me to respond briefly to the matters raised. I have already found that the applicant was not guilty of any gross misconduct. The matters raised by the respondent amounted to a catalogue of complaints about the applicants past performance which were never raised as constituting a threat to his employment until the hearing of the matter. In Bostik (Australia) Pty Ltd v Gorgevski (1992) 36 FCR 20 Gray J, when discussing the procedural fairness provisions of an award said at page 35 "it is not intended that an employer be able to substitute a court proceeding for its own investigation ie, to overcome procedural deficiencies by establishing to the satisfaction of the Court that the dismissal concerned would not be harsh, unjust or unreasonable on substantive grounds". To do otherwise would, in my view, go against the spirit of the legislation and would be unfair to the employee. I will, however, say that the applicant was expected to carry out a difficult job with very little assistance. The evidence is that the financial affairs of NASAS are now running smoothly as the present Director has the assistance of a full-time administrator and a full-time, qualified bookkeeper. It is my view that if the applicant had received the benefit of such a high level in assistance during his employment the matters now complained of would, in all likelihood, not have arisen.
The Appropriate Remedy
The applicant seeks reinstatement and compensation. The respondent states that reinstatement is impracticable as:
(a)Another person has been appointed to the position of Director on a permanent basis.
(b)The applicant has made a very personal attack on his employers and this would raise tensions between the parties.
The applicant says that he believes in reconciliation, is keen to forget past grievances and start afresh. He says that any perceived difficulties are surmountable with goodwill on both sides. It is clear both from the wording of Section 170EE of the Act and the decision of Liddell v Lembke (1994) 127 ALR 342 of 1994 that reinstatement is intended to be the primary remedy for a breach of Section 170DC. The Court, in that case, stated that it would not be right to withhold a remedy for a breach of Section 170DC because of considerations listed in Section 170DE (1). The Court also said at page 360 that "still less would it be correct for the Court to exercise its discretion adversely to an applicant because of factors extraneous to the Industrial Relations Act, such as a respondent's financial position or personal likes or dislikes". The respondent bears a heavy onus to show that reinstatement is impracticable. There is authority in this Court (Mrs Eme Paule and HSUA v McKinnon House IRCA VI1495 of 1994 Murphy JR) to the effect that the employment of another person to the applicant's position is insufficient to show that reinstatement is impracticable because if it was sufficient it would allow employers to frustrate the clear intention of the legislature by replacing employees who have proceedings pending in the Court.
I have also taken into account the fact that several members of the respondent's Committee of Management stated in their verbal evidence that the applicant may well have persuaded the Committee not to terminate his employment if he had fully presented his case against termination.
After considering all of the matters set out above, I am on balance not satisfied that reinstatement is impracticable.
Further Section 170EE requires this Court, upon making an order for reinstatement to make any order that it thinks necessary to maintain the continuity of the employee's employment and an order requiring the employer to pay to the employee the remuneration lost by the employee because of the termination.
In this case, it follows that the following orders are appropriate:
The respondent reinstate the applicant to the position in which the applicant was employed immediately prior to his termination;
The respondent pay to the applicant the sum of $20,000 being six months remuneration lost because of the termination;
The period from the date of termination until the date of reinstatement be treated as one of continuous employment for all purposes.
I certify that this, and the preceding thirteen (13) pages are a true copy of the reasons for judgement of Judicial Registrar Boon.
Associate:
Date:
Council for the Applicant: Mr J Kennedy
Solicitors for the Applicant: Minter Ellison Northmore Hale
Council for the Respondent: Ms A Sheehan
Solicitors for the Respondent: Aboriginal Legal Service
Date of Hearing: 21, 22, 23 March 1995
Date of Judgement: 13 April 1995
IN THE INDUSTRIAL RELATIONS ) No. WI 244 of 1995
COURT OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
BETWEEN:Keith Charles Truscott
Applicant
AND:Noongar Alcohol and Substance Abuse Services (Inc) ("NASAS")
Respondent
BEFORE: Boon JR
PLACE: Perth
DATE: 13 April 1995
MINUTE OF ORDERS
THE COURT ORDERS THAT:
The respondent reinstate the applicant to the position in which the applicant was employed immediately prior to his termination;
The respondent pay to the applicant the sum of $20,000 being six months remuneration lost because of the termination;
The period from the date of termination until the date of reinstatement be treated as one of continuous employment for all purposes.
Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
CATCHWORDS
INDUSTRIAL LAW - Termination of employment - whether employee had opportunity to respond to allegations - whether warnings given - whether employer could not reasonably be expected to give the employee an opportunity to defend himself - religious discrimination - requirements for compliance with Section 170DC - remedy - whether reinstatement impracticable.
INDUSTRIAL RELATIONS ACT 1988, Ss 170DC, 170DE. 170EE
Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233
Bostik (Australia) Pty Ltd v Gorgevski (1992) 36FCR20
Liddell v Lembke (1994) 127 ALR 342 of 1994
Paule and HSUA v McKinnon House IRCA VI1495 of 1994 Murphy JR
Keith Charles Truscott v Noongar Alcohol and Substance Abuse Services (Inc) (NASAS) WI413 of 1994.
BEFORE: Boon JR
PLACE: Perth
DATE: 13 April 1995
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