Leicester v Western Desert Puntukurnuparna Aboriginal Corporation - [1997] IRCA 16

DECISION NO:16/97

CATCHWORDS

INDUSTRIAL LAW - TERMINATION of EMPLOYMENT - claim of UNLAWFUL TERMINATION - whether VALID REASON for termination - whether PROCEDURAL FAIRNESS - whether termination for a prohibited reason - scope of section 170DF(1)(e).

Workplace Relations Act (formerly Industrial Relations Act 1988) (C'th) SS 170EA, 170EE(2), 170DE(1), 170DC, 170DF(1)(e), 170EDA(2)

Nettlefold v Kym Smoker Pty Ltd, unreported, IRCA 469/96, 4 October 1996, Lee J

Kerr v Jaroma Pty Ltd, unreported, IRCA 470/96, 7 October 1996 Marshall J

Thomas v Lynch, unreported, IRCA 627/96, 20 December 1996, Wilcox CJ

Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 1 IRCR 199

Gibson v Bosmac Pty Ltd (1995) 60 IR 1

Kenefick & Ors v The Australian Submarine Corporation Pty Ltd (1996) 65 IR 366

Wyndham Lodge Nursing Home Inc. v Reader (1996) 65 IR 253

AWU - FIME Amalgamated Union & Farrell v Conagra Wool Pty Ltd (1995) AILR3-015, page 1054

Fernandes v Comgroup Supplies Pty Ltd, unreported, IRCA 656/95, Ritter JR, 11 December 1995

Johns v Gunns Limited (1995) 60 IR 258

Lott v Opal Decorating Centres Pty Ltd, unreported, IRCA 481/96, 9 October 1996

Tegov v Naval Base Garden Supplies, unreported, IRCA 505/96, 23 October 1996

Stephens v Malmo Pty Ltd, unreported, IRCA 429/96, 29 August 1996

Dalton v Ultinel Pty Ltd, unreported, IRCA 242/95, 6 June 1995

Woolhouse v Selfe, unreported, IRCA 511/95, 11 August 1995

Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371

Kenefick v ASC Corporation Ltd, unreported, IRCA 331/96, Wilcox CJ, 26 July 1996

Wadey v YMCA (Canberra), unreported, IRCA 542/96, Moore J, 12 November 1996

Fargie v Freedom Foods (Aust) Pty Ltd, unreported, IRCA 498/96, 14 October 1996

Lupoi v Phillips Fox, unreported, IRCA 485/96, 3 October 1996

STEPHEN CHARLES LEICESTER v WESTERN DESERT PUNTUKURNUPARNA ABORIGINAL CORPORATION

WI 1236 of 1996

Before : RITTER JR

Place : PERTH

Date of Judgment : 10 FEBRUARY 1997

IN THE INDUSTRIAL RELATIONS COURT            )
OF AUSTRALIA  )
WESTERN AUSTRALIA DISTRICT REGISTRY     )

WI 1236 of 1996

B E T W E E N:

STEPHEN CHARLES LEICESTER

Applicant

A N D:

WESTERN DESERT PUNTUKURNUPARNA ABORIGINAL
CORPORATION

Respondent

MINUTE OF ORDERS

10 FEBRUARY 1997 PERTH RITTER JR

THE COURT ORDERS THAT:

The application be dismissed.

The applicant's claim for breach of contract be 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 )

WI 1236 of 1996

B E T W E E N:

STEPHEN CHARLES LEICESTER

Applicant

A N D:

WESTERN DESERT PUNTUKURNUPARNA ABORIGINAL
CORPORATION

Respondent

REASONS FOR DECISION

10 FEBRUARY 1997 RITTER JR

INTRODUCTION

Mr Leicester was employed as a solicitor by the respondent from 21 August 1995 until 4 April 1996. On that date his employment was terminated by a letter signed by Mr Teddy Biljabu, the executive director of the respondent, and Mr Ian Piendju, the chairperson of the respondent.

Pursuant to section 170EA of the Workplace Relations Act 1996, Mr Leicester has made an application for a remedy in relation to the termination of his employment. He alleged the termination of his employment was unlawful and sought compensation. He did not seek reinstatement. The respondent agreed that if there was an unlawful termination of employment, the appropriate remedy to consider was compensation and not reinstatement: see section 170EE(2) of the Act.

Mr Leicester alleged that in terminating his employment, the respondent had contravened sections 170DE(1), 170DC and 170DF(1)(e) of the Act.

In addition, Mr Leicester alleged that the respondent had breached the contract of employment with him by the failure to pay the appropriate salary and a relocation allowance.

Mr Leicester also made an application for costs.

The respondent denied each of the alleged breaches of the Act and the alleged breaches of contract and opposed the application for costs.

The trial of the application was heard in Port Hedland on 8 and 9 October 1996. Mr Leicester's specific reliance on section 170DF(1)(e) of the Act was first raised during the course of the trial. Mr Schapper, who appeared as Counsel for the respondent, said that this took him by surprise. Accordingly, at the end of the closing submissions I allowed Mr Schapper a further period of time to consider whether he wished to make further written submissions about the alleged contravention of section 170DF(1)(e). I also permitted Mr Leicester to make further submissions about the alleged contravention of this section.

By letter dated 12 October 1996 Mr Schapper advised the Court he did not intend to make any further submissions in relation to section to 170DF(1)(e) of the Act. The applicant, in a document filed on 25 October 1996, made further written submissions on the relevant sub-section.

I had formally reserved my decision on 9 October 1996.

By agreement between Mr Schapper and Mr Leicester, who represented himself at trial, the respondent presented it's case first. The respondent called as witnesses Mr Teddy Biljabu, Ms Fiona Emmett, Ms Ari Schipf, Mr Peter Back and Mr Michael Rae.

The applicant gave evidence in support of his application but did not call any other witnesses.

BACKGROUND

The respondent is an incorporated Aboriginal Association under the Aboriginal Councils and Associations Act 1976. The object of the respondent is to, broadly speaking, provide support and assistance to the Martu people of the Western Desert. In particular, the respondent has as one of its main objects to provide assistance to the Martu people in gaining secure title to land within the Western Desert region.

The respondent is largely funded by the Aboriginal and Torres Strait Islanders Commission ("ATSIC"). Within the respondent there are two working units. The first is the Native Title unit which was established within the respondent for the purpose of preparing and proceeding with legal action on behalf of the Martu people in relation to native title. The second is a resource agency which provides a number of services to various small desert communities. The services include the building and maintenance of houses, language programs, accounting and bookkeeping services and landcare and seed programs. The resource agency is separate to the Native Title unit although the two units occupy the same building. Both units are under the control of the executive committee of the respondent.

I have stated earlier that at the relevant time Mr Biljabu was the executive director of the respondent. Ms Emmett was at the relevant time a solicitor and the coordinator of the Native Title unit of the respondent, having first commenced working for the respondent in October 1994. Ms Emmett's role was to oversee the smooth running of the Native Title unit. Ms Emmett said in her evidence that the main purpose of the Native Title unit was to prepare a claim for the Martu group of the Western Desert under the Native Title Act and to represent them in other native title matters as they arose.

I have mentioned earlier that Mr Leicester was employed as a solicitor by the respondent in its Native Title unit.

Ms Schipf was at the relevant time an administrative assistant working for the Native Title unit of the respondent. Mr Back is an accountant who is employed by the respondent in the resource agency unit and commenced work on 5 February 1996.

Mr Rae is the coordinator of the resource agency unit of the respondent and had been employed in that position for 10 months prior to trial.

At the relevant times there were about 10 employees of the respondent, who worked from the one office of the respondent which was situated approximately half way between the towns of Port Hedland and South Hedland at a place known as Redbank. Ms Emmett described the office as a converted restaurant that at the time housed approximately four or five offices and a big function room.

I have mentioned that Mr Leicester's employment commenced on 21 August 1995. There was a written contract of employment which was not signed until 29 August 1995 but which stated that the term of the employment contract was from 21 August 1995 to 30 June 1997 subject to ongoing funding approval for the 1996/1997 financial year. Clause 1 of the agreement provided that all terms of the agreement with the exception of those dealing with annual leave, sick leave and long service leave entitlements and worker's compensation were subject to the availability of funding for the position.

Clause 3.5 of the agreement said that the contract may be terminated by the employer by giving to the employee not less than 14 days notice in writing that the employment will cease on the expiry of the current term of employment. Clause 3.6 said that if employment is not terminated on the date of expiry of the current term the terms and conditions of the agreement shall be assumed to extend for another period. Clause 4 of the agreement referred to duties. Clause 4.1 said that the employee shall carry out the duties as outlined in his duty statement.

Mr Leicester's duty statement was tendered as an exhibit. It stated that the purpose of the position of the native title solicitor was to work pursuant to the direction of the land claim coordinator and to be ultimately responsible to the executive committee. The duty statement said that the solicitor would work on the preparation of native title applications with the aim of successfully gaining the recognition and protection of native titles. Under the heading "duties", the statement said that the native title solicitor will be required to perform a range of legal and administrative tasks. The duties were listed as including:

- taking instructions from traditional aboriginal people;

- organising and undertaking field trips;

- collection and legal analysis of documentary evidence;

- collation of evidence;

- liaison with consultants where required;

- legal research as directed;

-non legal work as directed including press liaison, political lobbying, budget administration and report writing;
-legal work related to land issues as directed including negotiation of site clearance agreements;
-negotiation of agreements with interested parties including mining companies;
-assistance in the establishment of a land heritage database for the respondent; and
-reporting on progress of claims to the executive committee and land negotiation committee.

The contract of employment said that Mr Leicester's salary would be initially a gross amount of $38,660 with an annual district allowance of $4,812. The contract said that the salary would be tied to the Public Service Award Level 5.1. In addition, it was agreed that Mr Leicester receive $100 per week rental allowance.

Clause 20 of the agreement contained a performance dispute procedure. This was said to apply in the case of a complaint or performance grievance against an employee not warranting immediate dismissal. It said that the employer would implement steps including a verbal warning, a first written warning, and a final written warning prior to any termination of employment. In relation to termination of employment it was said that:

"If the problem still persists after the final written warning the employer may terminate the employment of the employee. Any dismissal must be by majority vote of the executive committee".

Clause 21.1 referred to the giving of notice or payment in lieu of notice to employees whose employment was terminated other than in circumstances of misconduct warranting immediate dismissal. Clause 21.2 said that in cases of misconduct the executive committee may dismiss the employee without notice and with no salary payable for any period following the time of dismissal. This clause said that the employee may appeal to an executive committee meeting under clause 21.4. Clause 21.3 said that the following may represent misconduct warranting immediate dismissal. Thereafter were set out a number of matters including:

-the disclosure of confidential information in respect of the organisation or any other party without prior permission;
-the disclosure of information concerning the consumers of the organisation other than the information that is necessary to assist consumers and to ensure their safety;
-carrying on private business from project premises or using project resources for private business;
-failing to abide by the ATSIC terms and conditions relating to grants, October 1990; and
-failing to obey and abide by a lawful order or direction of the employer.

The rules of the respondent were tendered as an exhibit. Clause 8 of the rules says that membership of the respondent should be open to all adult aboriginal people who consider themselves to be Martu and are recognised by other Martu as such, and who are normally resident within the Western Desert region.

The governing committee of the respondent is a committee of not less than eight members of the association. Members of the committee are appointed on an annual basis. The rules state that there shall be a chairperson of the committee who shall be elected by the members of the committee at the first meeting of the committee after the first general meeting of the association and thereafter at the first meeting of the committee after each annual general meeting of the association. A quorum shall comprise five members of the committee who shall each be a member of a separate community, outstation or encampment within the Western Desert region. Reasonable notice of each meeting of the committee is to be given to each member of the committee. The committee is to keep proper minutes of the proceedings of all meetings of the association. The rules state that no business shall be transacted at any meeting of the association unless a quorum is present. Questions arising at any general meeting of the association or any meeting of the committee shall be decided by consensus of opinion or, in failing to obtain a consensus, in such manner as accords with aboriginal tradition.

THE TERMINATION OF EMPLOYMENT

As stated earlier Mr Leicester's employment spanned 21 August 1995 to 4 April 1996. He was on leave from 15 December 1995 to 15 January 1996. The letter of termination, omitting formal parts, was in the following terms:

"As agreed at the staff meeting held on Monday April 1st 1996 the problems within the Native Title unit were discussed by us with senior members of the Executive Committee at Warralong on Tuesday April 2nd 1996.
In our opinion because you have

(a)Made complaints about the WDPAC behind our backs;

(b)Caused trouble amongst the staff;

(c)Acted in an untrustworthy manner;

(d)Given the WDPAC a bad name;

we no longer wish to use your services within our organisation.

We therefore ask that you submit a letter of resignation by 12:00 noon today.

If your resignation is not received by this time then your dismissal takes immediate effect.

A cheque for two weeks wages will be posted to you along with any other outstanding entitlements".

Mr Leicester did not submit a letter of resignation so the dismissal referred to in the letter took effect.

In his opening, Mr Schapper gave particulars of what it was Mr Leicester had done which validly caused the respondent to terminate his employment. Mr Schapper referred to:

The poor state of Mr Leicester's relationship with others working for the respondent including loud disagreements, the use of obscene language and accusing Ms Emmett and others of corruption. He said relationships within the office deteriorated to the point where the office had become almost dysfunctional.

Without permission or even informing the respondent, Mr Leicester went to ATSIC and made complaints about matters such as the organisation not functioning properly, the state of preparation of the Martu land claim being unsatisfactory, financial irregularities and corruption within the organisation and other accusations.

Mr Leicester took instructions on behalf of private persons in the community unconnected with the corporation to act as their solicitor without the respondent's knowledge or consent.

Mr Schapper submitted that by going to ATSIC, Mr Leicester breached his duty of good faith and fidelity to his employer and in particular by saying to ATSIC that the state of preparation of the Martu land claim was inadequate and deficient, breached his duty of confidence in relation to the instructions that he was receiving in his professional capacity. Mr Schapper submitted that in doing this Mr Leicester breached the Professional Conduct Rules of the Law Society.

Mr Schapper also submitted that as the Native Title unit of the respondent had ceased to function effectively because of the breakdown of relations between Mr Leicester and other employees, there was a frustration of the contract of employment between Mr Leicester and the respondent.

I mention at this stage that I do not find particular three above proved. Although there was some evidence that Mr Leicester had private clients, this happened on only a few occasions and was generally with the knowledge of Ms Emmett. In the circumstances it was not conduct which could support the termination of employment.

SECTION 170DC

Section 170DC of the Act provides:

"An employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless:
(a)the employee has been given the opportunity to defend himself or herself against the allegations made; or
(b)the employer could not reasonably be expected to give the employee that opportunity".

There is no doubt that section 170DC of the Act potentially applied to the termination of Mr Leicester's employment, because the termination of his employment was, at least in part, for reasons related to his conduct or performance.

In opening, Mr Schapper said that a meeting that occurred on 1 April 1996 satisfied the requirements of section 170DC of the Act. In closing, Mr Schapper said that there "were extensive meetings on 1 April between all of the parties where a significant number of the executive members were present" and that therefore, "there has not in substance been a breach of section 170DC".

There were meetings which took place on 1 April 1996 which involved Mr Leicester and members of the respondent. There were in all three meetings conducted on that day. The first involved Mr Leicester, the second Ms Emmett and the third both Mr Leicester, Ms Emmett and members of the respondent.

Minutes were only taken of the third of these meetings. These minutes were taken by Mr Rae.

The background to the meetings was that there was a deterioration in the relationship between Mr Leicester and Ms Emmett and Ms Emmett was finding it increasingly difficult to cope with her position. Indeed, Ms Emmett had tendered her resignation prior to the meetings. The issue of the relationship between Ms Emmett and Mr Leicester will later be explored in greater detail.

Mr Biljabu's evidence was that the first meeting that day was with Mr Leicester when he gave his view of the problems within the Native Title unit. Mr Biljabu said that Mr Leicester related the lack of structure of the Native Title unit, that some of the work was not getting done and other allegations such as corruption. Mr Biljabu said that after that they met with Ms Emmett. Mr Biljabu said he heard her story and she gave "some of her problems and worries that Mr Leicester was putting upon her". Mr Biljabu said that there was then a meeting with the whole of the executive and with the staff to sort out the difficulties between Mr Leicester and Ms Emmett. Mr Biljabu said that the issue had to be "put back for a day because some of the executive was flying in the following day". Mr Biljabu said that the executive then met in Warralong and it was determined that the letter dated 4 April 1996 should be issued to Mr Leicester.

When cross-examined, Mr Biljabu said that the committee meeting was organised as an urgent meeting because the dispute between Mr Leicester and Ms Emmett was getting out of hand.

The minutes taken by Mr Rae on 1 April 1996 record that Mr Biljabu opened the meeting at approximately 3:30 pm. Mr Biljabu was recorded as saying that there was a need to sort out staff problems which had given the respondent a bad name. The minutes recorded Mr Biljabu as saying that the staff are professionals - they should be capable of working together and supporting the Martu people. They should not be fighting each other. Ms Emmett was recorded as confirming that she had tendered her resignation and that she was sticking by this. She suggested alternative staff arrangements. Mr Leicester said he was concerned with his legal responsibility and believed that he should not be forced to act contrary to this. Mr Biljabu summarised the existing structure of the respondent and Ms Emmett confirmed that she could no longer work in the present environment. Mr Biljabu informed the meeting that there was another meeting a Warralong tomorrow and that he would need to check things with the executives. A final decision would be made on Wednesday/Thursday when he returned to the office. Mr Piendju was recorded as expressing frustration at what had been happening and criticised Mr Leicester for acting unilaterally without talking to the Martu people first and in particular with Mr Piendju as liaison officer/chairman. This appears to be a reference to Mr Leicester's actions in complaining about various matters to ATSIC. Mr Biljabu was recorded as informing the meeting that he was upset at staff walking out because of disagreements and believed that they were acting selfishly and letting the Martu people down. Mr Biljabu said that staff should realise the trust that the Martu people have given them. The minutes conclude with Mr Biljabu thanking everybody for attending and confirming that a final decision in writing will be given in a few days time. The meeting was recorded as closing at approximately 4:15 pm.

When cross-examined, Mr Biljabu denied a suggestion that he had said at this meeting that Mr Leicester was not to be "fired".

In her evidence, Ms Emmett said that she was requested by Mr Piendju and Mr Biljabu to attend the meeting on 1 April 1996. She said that there were a number of senior law men and law women representing a range of Martu Desert communities at the meeting. She said that she was asked to address them alone and that she did that. She said that she confirmed that she was resigning from the respondent because of the breakdown in the relationship between herself and Mr Leicester. Ms Emmett said she told the people she thought Mr Leicester would be taking the native title claim down the wrong road if he were to have the carriage of it and she also spoke about allegations Mr Leicester had made to ATSIC. Ms Emmett said there was then another meeting where Mr Leicester and herself were both present which was minuted. Ms Emmett said at that meeting she again confirmed her resignation and Mr Biljabu indicated matters would be discussed further among members of the corporation and a decision would be made. Ms Emmett said at the first meeting she attended that day Mr Piendju produced her written resignation and that a Ms Fry, the vice-chairperson of the respondent, tore it up.

Of the third meeting, Ms Emmett said she remembered Mr Piendju and Mr Biljabu expressed a warning to Mr Leicester about taking allegations outside the organisation. Ms Emmett said they were very unhappy with that and Mr Biljabu also made some comments about staff needing to get along. Ms Emmett said that Mr Biljabu was disappointed the situation had evolved and escalated.

In his evidence, Mr Rae said he believed the meetings were called on 1 April 1996 because of the issue of the relationship between Ms Emmett and Mr Leicester and the effect this was having on the Native Title unit. Mr Rae said there were probably about ten Martu people present, some of whom would have been executive members. Mr Rae said that in relation to the first meeting, Mr Biljabu asked Mr Leicester to explain his version of what was going on and why there were difficulties between himself and Ms Emmett. Mr Rae said that Mr Leicester spoke for about ten minutes. It was a fairly concise description of what had been going on from his side. Mr Rae said that Mr Leicester had said he felt his efforts to do the work as he saw fit and to do his work as a solicitor were being thwarted by Ms Emmett and that he felt that this was quite improper. Mr Rae said that he thought Mr Leicester gave examples of this but he did not recall the examples in detail. Mr Rae said that there was a short break and then there was another meeting with Ms Emmett. Mr Rae said that this was a similar meeting where Ms Emmett explained her version of events. He said that Ms Emmett said she was resigning and that she felt things had become totally unworkable. He said that Ms Emmett said that the difficulties with Mr Leicester were such that she could not work with the respondent anymore. Mr Rae recalled some of the people saying that Ms Emmett should not resign. Mr Rae said it was then agreed that there would be a third meeting in the afternoon at which both Mr Leicester and Ms Emmett would meet. Mr Rae confirmed he took the minutes of this meeting. Mr Rae said that Mr Biljabu expressed his concern at the non-aboriginal staff "squabbling between themselves and getting no work done and that this was an embarrassment to the organisation and that it had to stop and that the Martu were calling these meetings to try and resolve this matter once and for all".

Mr Rae was asked in examination in chief whether there was a reference to ATSIC in the final meeting. Mr Rae said that he thought his minutes were "rather cryptic and don't make that clear, but certainly I can recall Mr Piendju, and that is about two thirds the way down denying vehemently that he had given Mr Leicester any authority to go to ATSIC".

Mr Rae said Mr Biljabu, at the conclusion of the meeting, said he would be talking with some of the members of the executive the next day at Warralong and there might be some further action, but that was left unclear. Mr Rae said both Ms Emmett and Mr Leicester should have been in no doubt that the people were disappointed in the dispute and were concerned that it had been allowed to go unchecked for a long time. In answer to a question that I asked of him, Mr Rae said that there was no suggestion as to what further action may be taken.

When cross-examined, Mr Rae said that he did not recall Mr Biljabu saying at the third meeting that they had decided that Mr Leicester was not to be fired. Mr Rae was also asked whether he would agree that at no stage did Mr Biljabu or anybody else state any problems in relation to Mr Leicester's work or conduct at the meeting. Mr Rae said that he would not agree with that statement. Mr Rae said they were very concerned about what was going on within the Native Title unit and particularly the difficulties Mr Leicester was having working with Ms Emmett.

Of the first meeting on 1 April 1996, Mr Leicester said in his evidence in chief that he was asked of his concerns. He said that nothing was put to him in relation to any complaint against him. He said that he believed that there were difficulties in relation to him being able to perform his work as a solicitor in terms of his duty statement and that he had been effectively prevented from performing useful work for the client. He said that he also mentioned the fact that Ms Emmett was not an admitted solicitor in Western Australia was a concern. Mr Leicester said Mr Biljabu then said Ms Emmett should come and attend the office. The meeting was then adjourned and Mr Leicester returned to his office.

At the third meeting Mr Leicester said Mr Biljabu said he and Ms Emmett had to work together and that Mr Leicester was not to be fired. Ms Emmett then produced a piece of paper. She said that this was not satisfactory and handed it to Mr Biljabu. Ms Emmett said that she was giving two week's notice but with leave intended to finish up on the Thursday of that week. She asked to be excused from the meeting, but remained. Mr Biljabu continued to talk about staff working together. Mr Leicester acknowledged that Mr Piendju said to him that he did not want him to go "behind their backs". Mr Leicester said that Mr Piendju said that he could walk away with a good reputation, but it would be the Martu that would get a bad name. Mr Leicester said he did not respond to this but said he would not go behind their backs. He said that he did not respond because he did not believe his job was in jeopardy. He said that the first notice he had that his job may be in jeopardy was when he was told that the respondent had decided not to "sack him". He said that this was said at that meeting (this evidence is somewhat tempered however by other evidence of Mr Leicester, to be mentioned later, that he believed Ms Emmett was trying to get his employment terminated). Mr Leicester said that he left the meeting briefly and returned later on when other matters were discussed. Mr Biljabu said that the meeting to discuss other matters in relation to the Native Title unit would meet again at the office of the respondent after the Warralong meeting. Mr Leicester said that although he went to Warralong the next day, he was not involved in any meetings in relation to his employment, nor was he then advised of any decision made about it.

On Thursday, 4 April 1996, Mr Leicester said that he was anxious to know what was happening in light of the fact that Ms Emmett was leaving and what was to happen about the running of the Native Title unit. He said he first saw Mr Biljabu about that on the Wednesday afternoon and then went to his office again on Thursday morning. Mr Leicester then found the letter requesting his resignation which has been set out above.

The question is whether the content of the meetings on 1 April 1996 satisfies the requirements under section 170DC of the Act.

Of this section, Wilcox CJ in Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 1 IRCR 199 said:

"The paragraph does not require any particular formality. But this does not mean that it is unimportant or capable of perfunctory satisfaction. Section 170DC carries into Australian labour law the fundamental component known to lawyers as natural justice or, more recently, procedural fairness. The relevant principle is that a person should not exercise legal power over another, to that persons disadvantage and for a reason personal to him or her, without first affording the effected person an opportunity to present a case ... the principle is, I believe, well understood in the community. It represents part of what Australians call "a fair go". In the context of section 170DC, it is not to be treated lightly. The employee is to be given the opportunity to defend himself or herself against the allegations made; that is, the particular allegations of misconduct or poor performance that are putting the employee's job at risk".

In Gibson v Bosmac Pty Ltd (1995) 60 IR 1, Wilcox CJ at page 7 said that section 170DC does not require any particular formality and is intended to be applied in a practical, common sense way so as to ensure that the effected employee is treated fairly. Where the employee is aware of the precise nature of the employer's concern about their conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.

In Kenefick & Ors v The Australian Submarine Corporation Pty Ltd (1996) 65 IR 366, the Full Court at page 12, although in a different context, indicated that section 170DC satisfies a "need for the employee to have an opportunity to respond because ... a convincing defence to the allegations may persuade the employer not to terminate the employment of that employee". Their Honours, at pages 12 and 13 said that section 170DC contained what the legislature obviously regarded as a fundamental right to an opportunity to respond to allegations of misconduct or poor performance.

In Wyndham Lodge Nursing Home Inc. v Reader (1996) 65 IR 253, the Court at page 41, in relation to section 170DC, said that in a case where an employee knows the allegation being made, it is not necessary for it to be specifically stated. For example, an employee may be caught in an act of apparent wrong doing. In those circumstances it may be sufficient simply to ask for an explanation of what the employee was doing without expressly stating the allegation. The allegation will be implicit in the circumstances in which the employee was required to give an explanation. Similarly an employee may be aware that someone else has already told the employee the nature of the allegations. In such a case repetition is unnecessary. The nature of the problem may already be apparent to the employee from previous conversations.

In my opinion this case has some of these features. I think it is apparent that Mr Leicester was aware that the respondent had great concern about the breakdown in the relationship between himself and Ms Emmett and the lack of productiveness of the Native Title unit as a consequence. Secondly, Mr Leicester was aware of the concern about him making a complaint to ATSIC and had an opportunity to respond to this. These opportunities came about in the first and third meetings on 1 April 1995. It was not however made clear to Mr Leicester that the respondent was considering the termination of his employment. It was clear that the respondent was to further consider the matter in the meeting at Warralong, but it was not made clear that one possible outcome was the termination of Mr Leicester's employment. However, I do not think that this necessarily means that section 170DC of the Act has been contravened. As the authorities referred to above indicate, no particular formality is required by this section. Further, the section is directed to the employee being given the opportunity to defend themselves against the allegations made rather than against the possible sanction for the allegations, being termination of employment. Also by Mr Leicester's own evidence, he had a concern that his employment was at risk. This was something I think he would have had in mind when discussing the issues raised at the meetings.

Although the matter is reasonably finely balanced, I am not satisfied that the respondent contravened section 170DC of the Act.

SECTION 170DE(1) - INTRODUCTION

Mr Leicester contended that there had been a contravention of section 170DE(1) of the Act.

This section provides that:

"An employer must not terminate an employee's employment unless there is a valid reason, or valid reasons, connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service".

Pursuant to section 170EDA(1), the respondent has the onus of proving that there was a valid reason or valid reasons of a kind referred to in section 170DE(1) of the Act.

I have previously set out the letter of termination and Mr Schapper's opening.

In closing, Mr Schapper referred to two circumstances which constituted a valid reason for termination. The first was that there was a wholly unacceptable situation whereby the work of the Native Title unit was "in effect paralysed" by the conflict between Ms Emmett and Mr Leicester that had "racked the organisation for a period of at least two months". Mr Schapper submitted that this had to be resolved and it required the employer to take definite action to "get the show on the road again". Mr Schapper submitted that there was a irreconcilable conflict between Ms Emmett and Mr Leicester in that the nature of the work required a proper and satisfactory relationship between them. Mr Schapper submitted that the employer responded to the situation by terminating the employment of Mr Leicester and that this was an entirely valid thing for the organisation to do. Secondly, Mr Schapper submitted that Mr Leicester had betrayed the professional confidence that was reposed in him by the respondent in that he made complaints about matters to ATSIC. Mr Schapper also submitted that this was a valid reason for the termination of Mr Leicester's employment.

It is necessary to review the evidence in relation to both of these matters.

THE CONFLICT BETWEEN MS EMMETT & MR LEICESTER

Mr Biljabu had little first hand evidence of the difficulties in the relationship between Mr Leicester and Ms Emmett, although he had heard of it in general terms and thought it was sufficiently serious to warrant calling the meetings on 1 April 1996. He then heard Mr Leicester and Ms Emmett's explanation of the situation as detailed above.

Ms Emmett said that the first difficulty with Mr Leicester arose after he returned from leave in mid January 1996. The difficulty that arose was in relation to Mr Leicester's salary.

Ms Emmett said that after Mr Leicester returned from leave he was unhappy with the amount of his remuneration, although he was being paid in accordance with his contract of employment. Ms Emmett said that Mr Leicester approached her to request the use of some of the surplus funds out of the native title budget to upgrade his salary. Ms Emmett said she informed Mr Leicester that surplus funds could not be used in that way but she had applied for an upgrade of everybodies salaries in the Native Title unit, endeavouring to align them with the Commonwealth Public Service Award, which had been the recommendation of a federal ATSIC report. Ms Emmett said that she did not think it was fair to upgrade Mr Leicester's salary and not the other people in the Native Title unit. Ms Emmett said that Mr Leicester was very angry in response. She said Mr Leicester talked about the lack of parity in the organisation. She said that she thought that he meant that the staff were not on one single award and that he was very aggressive about it. She said that a memorandum from him said the organisation was in breach of industrial democracy principles and that he criticised Ms Emmett for that personally in their interactions.

Ms Emmett said Mr Leicester later came to see her with a proposition that he set up in private practice in Port Hedland and be engaged to run native title matters for the respondent. Ms Emmett said Mr Leicester suggested funds be put into a trust account to pay for his fees and client disbursements. Ms Emmett said she indicated she did not think that would be a good idea.

Ms Emmett said differences also began to emerge, perhaps a little later, about the preparation of the Martu people native title claim. She said there was an argument in relation to her relationship with the Martu people. She said she argued with Mr Leicester that it was important for a solicitor working in the native title field to establish personal relationships with the Martu people and it was different therefore from working as a solicitor in other areas and circumstances. Ms Emmett explained that this was because the lawyers concerned were dealing with extremely personal instructions about country, dreamings and secret and sacred material. Ms Emmett said the Martu people needed to be confident in their employees before they would begin to disclose such information, which is crucial to preparing a native title claim. She said Mr Leicester disagreed about this and "tended to shut himself away from the mob". There were also arguments about the state of the preparation of the native title claim. Ms Emmett said Mr Leicester argued that what had been prepared was inadequate and that evidence collected was inadmissible. She said the disagreements involved Mr Leicester raising his voice and yelling at her. Ms Emmett said that when she would try and defend her position in relation to the native title claim, this would enrage Mr Leicester.

Ms Emmett said in about mid February Mr Leicester declared he wanted nothing to do with the Martu native title claim and he would concentrate on negotiations with mining companies in relation to proposed and existing mining tenements within the Martu lands.

Ms Emmett said as at mid to late February the relationship between her and Mr Leicester was one of extreme animosity. She said that philosophically they were opposed. As an illustration of this she gave evidence of a disagreement about the content of proposed education style workshops for the Martu people. She said that they disagreed about even small things.

Ms Emmett also mentioned that Mr Leicester issued a memorandum about principles of industrial democracy which was distributed. Ms Emmett said this was done as "though she was working to undermine principles of industrial democracy". She said this was ridiculous because the Native Title unit was an embryonic team which was just establishing itself and that guidelines for things such as industrial democracy would be established.

In the last couple of weeks of March, Ms Emmett said that things had got so bad between them that she had decided to resign from her position. However, she decided to take a week off work to think about it. She said she hadn't handed her resignation to the chairperson at that stage. She said that she had also been working at home for a number of days prior to that, perhaps five to seven days, but had been in and out of the office during that time. She said she had taken that week off because she felt extremely stressed about the whole situation.

During that time she had some discussions with Mr Kim Audas of ATSIC, which will be set out later.

Ms Emmett said that after she took the week off she gave her resignation to Mr Piendju. She said that she would work out a period of notice of two weeks.

Ms Emmett reiterated that she had not worked during the past week because she could no longer handle the personal attacks upon her by Mr Leicester. She said that he asserted that she was not a solicitor, accused her of mismanagement of the organisation, was critical of the state of preparation of the claim and accused her of corruption - with respect to the finances of the respondent. Ms Emmett said that Mr Leicester accused her of making payments to clients and to officers of the respondent for her own gain. Ms Emmett said that it was implied that this was done to maintain her own position with the respondent.

Ms Emmett said she gave the letter of resignation to Mr Piendju on a Sunday night and on the following Monday morning, Mr Piendju and Mr Biljabu requested she attend at a meeting. This was the second of the meetings on 1 April 1996, to which reference has been earlier made.

In cross-examination it was put to Ms Emmett that Mr Leicester did not use the word "corrupt" in discussions with her about budget administration. Ms Emmett said the term was used at various times. Ms Emmett detailed an example of her alleged expenditure of too much money on a video camera without ATSIC's consent. Ms Emmett said Mr Leicester told her this was corrupt and incompatible with ATSIC guidelines.

During cross-examination Ms Emmett agreed there were discussions with Mr Leicester about her admission status. This issue related to whether Ms Emmett could properly practice and represent the Martu people in Western Australia when she had not been formally admitted as a solicitor in Western Australia, but was admitted in Victoria and was on the federal roll of legal practitioners.

Ms Emmett was asked in cross-examination why the contract of employment grievance procedures were not used in relation to Mr Leicester. Ms Emmett replied that their relationship had broken down so fundamentally that she found it very difficult to speak with Mr Leicester at all. She said that the differences between them were irreconcilable.

In her evidence in chief, Ms Schipf said that from January to April 1996 there were arguments between Mr Leicester and Ms Emmett. She was asked how frequently the arguments occurred. She answered that there was a lot of discussion and it was pretty heated a lot of the time. She said that Mr Leicester would "always leave pretty much in a huff after speaking with [Ms Emmett] in her office". Ms Schipf said that in the end this was "pretty much daily". She said Mr Leicester would get angry and raise his voice and walk out of offices slamming doors and storming up the corridor mumbling. Ms Schipf said Ms Emmett did not raise her voice. She said the atmosphere in the office was very divided and very tense to the point where she felt she wanted to resign and look for another job. Ms Schipf said she did indeed resign and find another job, before later returning to work for the respondent.

Ms Schipf said that prior to her resignation, Mr Leicester had given her some work to do on some education programs. She said that this was for the preparation of material for a workshop about native title to present to the Martu people. Ms Schipf said she had problems in writing the material because she did not understand native title law. She said she went to see Mr Leicester for direction but she found it difficult to obtain assistance from him. Therefore she went to see the vice chairperson of the respondent, Ms Patricia Fry, and asked her about it.

Ms Schipf said she then explained to Mr Leicester that she had gone to see Ms Fry and there might be a change in plan as to how they would go about the workshop. Ms Schipf said that Mr Leicester became angry and said "nothing ever goes to plan here", and "how dare you go behind my back", and that he called her a "fucking bitch". She said that Mr Leicester was yelling at her when he said this. Ms Schipf said that she was in tears as a result of this and from then on thought that she could not work with Mr Leicester. She said that she then abandoned that project and discussed the matter with Ms Emmett. She said that it was about a week or two after this that she resigned. She said that she resigned because she was sick of the place and was not enjoying her work anymore.

When cross-examined Ms Schipf confirmed that near the end of Mr Leicester's employment the arguments between him and Ms Emmett were almost on a daily basis. She said that his was the predominant voice that could be heard although she did not really think that he was yelling. She clarified that this was in the period prior to Ms Emmett taking a break from work. It was put to Ms Schipf that there were no "loud rows" between Mr Leicester and Ms Emmett. Ms Schipf replied that there were heated arguments. She recalled one argument in particular between Mr Leicester and Ms Emmett when Mr Rae also became involved. Ms Schipf said that this went on for hours. She said that she thought that this was at the end of January or the beginning of February. Ms Schipf said that there was yelling involved in this argument and that it was so noisy that she went home.

Mr Back also gave evidence about arguments and the atmosphere of the office. Mr Back's office was between the office of Ms Emmett and Mr Leicester. He said that the walls of the offices were thin and you could hear most conversations. After he commenced work on 5 February 1996 he said that he became aware the relationship between Mr Leicester and Ms Emmett was not very harmonious. He said this was "very clear" and "very obvious" from early on. He said you rarely heard conversations that lasted more than five minutes or so before an argument erupted. He said the discussions between them became loud, argumentative and aggressive. He said Mr Leicester was mainly loud but occasionally both of them were. He said at most times they were reasonably loud but occasionally extremely loud. He said the language was aggressive. He said the arguments were "about almost anything you liked to mention; about the databases, about the state of the claim, about how the office was run". Mr Back said occasionally the arguments were about the use of the respondent's money and also very much about Mr Leicester's wages. Mr Back said Mr Leicester constantly maintained that he was not receiving what he thought was his award wage.

As to the frequency of the arguments, Mr Back said they were possibly on a daily basis and probably every day or so. He said although he did hear Ms Emmett and Mr Leicester having civilised, non-argumentative conversations, they far more frequently had loud and aggressive conversations.

He said Mr Leicester was frequently criticising Ms Emmett for her use of money and accused her of buying the Martu support.

Mr Back said the atmosphere in the office was very awkward and that the office became very factionalised. He said that he thought there were two factions. There was Mr Leicester, Ms Sandilands and Ms Reiss (the latter were also employees of the respondent) on the one side and Ms Emmett, Ms Schipf and Mr Chambers (another employee) on the other side. Mr Back said of himself that he was "hopefully in the middle".

When cross-examined, it was put to Mr Back that Mr Leicester did not raise his voice in arguments with Ms Emmett. Mr Back confirmed that Mr Leicester did so. Mr Back gave his evidence in a clear, straightforward and unexaggerated way and I have no reason to doubt it.

Mr Rae also gave evidence about this issue. Mr Rae said he became aware of disputes between Ms Emmett and Mr Leicester and approached Mr Leicester about it. Mr Rae said he was concerned that arguments would disrupt work within the organisation including that it may spill over and effect the resource agency. He said he approached Mr Leicester he believed in late January, in his office. He said that he would like to talk to Mr Leicester about arguments Mr Leicester was having with Ms Emmett. Mr Rae said if there was any role he could play to resolve the matter he would be happy to do so. Mr Rae said Mr Leicester queried why Mr Rae was interested and asked what business was it of his to get involved. He said there was then a broader discussion about philosophical differences in terms of approach to legal work. Mr Rae said Mr Leicester felt Ms Emmett was too involved with the Martu people and her work was being compromised because of the closeness of the relationship. Mr Leicester said he believed that the solicitor/client relationship required a certain distance to ensure neutrality. Mr Rae said he suggested:

"Having had a number of years working with other Aboriginal organisations that the nature of work relationships in this kind of situation is rather different from what it might be in mainstream non-Aboriginal society. But of course I am not a legal practitioner, I had worked as a coordinator of a health service and I saw the same there in the roles of doctors and nurses that it is not, as it would be for example in a hospital, and I thought that if one were to work in an Aboriginal organisation like WDPAC it was vital that you form a relationship with the people. That my understanding of traditional Aboriginal culture for a number of years and also from studies is that it is very much that it is based on personal relationships. It doesn't have the kind of formal roles that a non-Aboriginal culture can just accept and that therefore I saw it important for a staff members in WDPAC to have a successful career, it was very important that that person have a good and friendly relationship with the Martu people. He rather disputed that".

Mr Rae said the discussion with Mr Leicester became quite heated and he was surprised that it became so. However, in subsequent discussions with Mr Leicester he found that this was not uncommon. Mr Rae said that in the course of this discussion Mr Leicester accused him of being a racist. Mr Rae said that he was not offended by this but was surprised that an "epithet like that should be hurled at me during the course of a discussion on these matters". He said he personally thought it was ridiculous that they should be arguing at that level.

Mr Rae said that this meeting ended with them agreeing to disagree.

Mr Rae also recalled he suggested that if Ms Emmett and Mr Leicester were unable to resolve things between themselves it may need to go to the Martu people to resolve. Mr Rae also suggested that an outside agency such as ATSIC could assist. Mr Rae said that as he recalled Mr Leicester was not interested in either of those options. Mr Rae said he got the impression that things were "very cut and dried" in the mind of Mr Leicester as to the rights and wrongs of the disagreements.

Mr Rae said that he had about three or four more discussions with Mr Leicester during the time that Mr Leicester worked for the respondent and that his demeanour during those discussions was unfriendly and hostile.

He said that on one occasion he found Mr Leicester's manner very offensive. Mr Rae said that Mr Leicester came into his office and asked him whether he recalled in early February putting an envelope with cash in a money box in Mr Leicester's office. Mr Rae said he replied that he couldn't remember. He said Mr Leicester then prodded his memory. Mr Rae then told him that he was probably right, he did do that. He said that he probably took the money from the bookkeepers office and put it in Mr Leicester's office for safekeeping. Mr Rae said he took offence because Mr Leicester considered it his business to come to his office and in a very aggressive manner ask him to explain himself about something that occurred about six weeks or so previously. Mr Rae said that Mr Leicester's manner was very abrupt.

Mr Rae said that he thought this money was used as a salary advance to Mr Bobby Roberts. Mr Roberts was a liaison officer within the Native Title unit.

Mr Rae said that as time went by the difficulties between Mr Leicester and Ms Emmett became more of a problem. Mr Rae said that he was concerned because the staff seemed to be polarised. There seemed to be two staff members who were aligned with Mr Leicester, others remained neutral and there was another camp that were seen as being aligned with Ms Emmett. He said that he thought that he was probably seen as being in Ms Emmett's camp. He said that there was a general sense of suspicion in the office and that he felt an air of paranoia with people feeling they were being watched and commented upon and could be challenged at any stage.

Mr Rae said that as far as the Native Title unit was concerned, his impression was that it was very difficult for it to get much of it's work done.

Mr Rae said that since Mr Leicester's departure the atmosphere in the office has been one of contrast by and large. Mr Rae said that it was friendly and relaxed and that there is a much freer interchange between the resource agency and the Native Title unit.

When cross-examined, Mr Rae agreed that he was aware of a disagreement between Ms Emmett and Mr Leicester about Mr Leicester's salary and the use of surplus funds.

I was impressed with the way in which Mr Rae gave his evidence. He presented as calm, knowledgeable, unbiased and straightforward.

Mr Leicester gave evidence about his relationship with Ms Emmett and divisions within the office. Mr Leicester agreed that there were discussions about his salary which commenced during the week around 24 January 1996.

Mr Leicester said that on 30 January 1996 there was a discussion which lasted almost the whole day. This involved Ms Emmett and Mr Rae. Mr Leicester said that he raised the issue of breaches of ATSIC guidelines and said that he thought it was difficult for him to witness breaches of ATSIC guidelines and not raise them. Mr Leicester said that despite being told by the others that they didn't want the matter discussed with the Martu people, he convened a meeting and produced to the people present there including Ms Emmett, Mr Biljabu and Mr Piendju a document entitled "Industrial Democracy". Mr Leicester said at this meeting Mr Piendju said he wanted to get a car and wanted a loan for that purpose and Mr Leicester advised him that if he was getting the salary he was entitled to he could get a loan from elsewhere. He said Mr Piendju expressed enthusiasm for this and also in relation to other matters of "industrial democracy".

I will later detail the issues which Mr Leicester was concerned about, which led to these meetings.

Mr Leicester said there was a further meeting on 5 February 1996 with Ms Emmett and Mr Chambers. He said at that meeting Ms Emmett said she wanted to lodge the Martu native title claim before the Federal election. Mr Leicester advised her that he didn't regard himself as adequately instructed and that he believed a meeting of the executive would be required. Ms Emmett advised that she regarded herself as sufficiently instructed and Mr Leicester asked her to confirm her status in relation to her ability to do so in terms of a practicing certificate. Ms Emmett agreed to make enquiries. Mr Leicester said that at no time during his employment did Ms Emmett advise him of any discussions or details in relation to her practicing certificate and that in late March he was told, upon requesting information, that Ms Emmett was not entitled to be admitted in Western Australia unless she had six months supervision. Mr Leicester said that he rang the Legal Practice Board and enquired whether this was the case. Mr Leicester said that he was advised that Ms Emmett was entitled to be admitted with an interim practicing certificate arising out of what was described as the mutual admission rules. He said the Legal Practice Board said it would forward the relevant documents and he told Ms Emmett of this.

Mr Leicester said he was frustrated during his employment as at no stage did he get an opportunity to address either the land negotiation committee or any executive committee of the respondent. He said that this concerned him as his duty statement made him responsible to the executive committee. He said he was also concerned about other aspects of his duty statement that he thought he was prevented from carrying out.

Mr Leicester said the first he heard about Ms Emmett's resignation was when she informed him of this in mid March. Mr Leicester said that Ms Emmett said that she could not "define herself within the organisation". Mr Leicester said that at the time he was concerned about ATSIC breaches including those of his own budget allocation which was supposed to be paying his wages and covering disbursements.

A few days later Mr Leicester said Ms Emmett said she was rethinking her resignation and she then went on "stress leave".

Mr Leicester said during this period he spoke to Mr John Lynes of the ATSIC office in Perth and said that he thought that Ms Emmett was "trying to get me fired". Mr Leicester said Mr Lynes indicated he would intervene if this were to occur. Mr Leicester had a conversation with Mr Lynes because of his concerns about ATSIC breaches, which are detailed later.

Mr Leicester denied ever raising his voice in Ms Emmett's office. In relation to the incident involving Ms Schipf, he denied abusing her but agreed he said the situation was "fucked". He agreed this conduct was not professional but said that he was under a lot of stress at the time. Mr Leicester said he was extremely disappointed that Ms Schipf had withdrawn from the program that he was trying to assist her with and that she had got Ms Fry to effectively cancel the program.

In cross-examination Mr Leicester agreed that the office was fairly divided at least from January 1996 onwards. Mr Leicester said he, Ms Reiss and Ms Sandilands were in one camp and in the other were Ms Emmett, Mr Chambers and probably Mr Back. He said that Ms Schipf was neutral until very late in the piece. Mr Rae was in Ms Emmett's camp as well. The environmental health officer, Mr Dave Ross, was not involved. Mr Leicester agreed the Aboriginal people in the office were pretty much uninvolved.

During February and March 1996, Mr Leicester agreed that he had several arguments with Ms Emmett; although he preferred to call them discussions. He also accepted they had disagreements about the evidence for the native title claim, the ability to travel to communities, his rental subsidy, their respective functions, and ATSIC funding. Mr Leicester said that these topics covered a significant part of the working arrangements and relationship between himself and Ms Emmett. However, he denied the disagreements were frequent. Mr Leicester also said that at staff meetings the question of ATSIC guideline breaches, access to files and the workshop program were discussed.

Mr Leicester agreed that in the first two weeks of March 1996 the office was a place of high tension, there was a lot of unhappiness, there was a feeling of division and that it was a terrible place to work. However, he disagreed that the Native Title unit had ceased to function effectively. Mr Leicester thought that his working relationship with Ms Emmett was still satisfactory in the first part of March.

Mr Leicester said that the evidence of other witnesses about the frequency and nature of arguments involving himself were substantially untrue. He denied frequently shouting. He said he would try to be careful to express his concerns in a neutral and professional manner. He said that he believed that other witnesses were embellishing.

Mr Leicester agreed that by the time Ms Emmett went on leave things were fairly divided and that even if Ms Emmett returned to work things could not have gone on indefinitely the way they were. However, Mr Leicester thought the situation in the office could have been redressed by more frequent staff meetings, coordination, a consultant lawyer being employed and a review by ATSIC of the functioning of the office. Mr Leicester was asked whether "the breakdown in the relationship, the division in the office, the unfriendly working atmosphere required anything more than those measures". Mr Leicester answered that this was speculative and that he could not say.

COMPLAINTS BY MR LEICESTER TO ATSIC

Mr Leicester said that on 24 January 1996 he went to a staff meeting. He was there when Mr Rae, Mr Biljabu and a person unknown to him were discussing a loan to that person. Mr Leicester said that whether or not this was a breach of ATSIC guidelines was discussed and that Mr Rae advised they would proceed with the loan. Mr Leicester said during the same week he was in Mr Biljabu's office when Mr Mark Chambers walked into the room and gave what appeared to be a wad of notes to Mr Rae and said something about Bobby Roberts. Later that day Mr Rae came into his office and placed that money in a filing cabinet. Later again he saw him remove the money. Further on the same day Mr Roberts came into his office and told him he had been paid out his salary until 30 June 1996. Mr Leicester understood that Mr Roberts was a field officer employed by the Native Title unit and that he was working from an Aboriginal community called Jigalong.

On 29 January 1996 Mr Leicester saw Mr Kim Audas, a project officer at ATSIC, at South Hedland. Based on what he was told by Mr Audas, Mr Leicester returned to the office and wanted to have a meeting the following day. Mr Leicester said that he said this to Ms Emmett and possibly Mr Rae.

On 30 January 1996 Mr Leicester had discussions with Mr Rae and Ms Emmett as are detailed in the analysis of his evidence above. Mr Leicester said that he raised the issue of ATSIC breaches during this meeting. Mr Leicester said that he told both Ms Emmett and Mr Rae that it was difficult for him to witness things that could be construed as breaches of ATSIC guidelines. The following day he convened the meeting with some of the Martu people in relation to industrial democracy which has been detailed above.

Mr Leicester said to the meeting that Mr Audas had informed him someone from ATSIC could attend to deal with the dispute in relation to his salary and other issues. Mr Leicester said he thought Mr Audas attended the office the following day and that he advised him that Mr Piendju was happy to have the ATSIC State office attend. Mr Leicester said he made numerous calls after that to Mr Audas but was later advised that a Mr Steve Cannon from the ATSIC State office would be attending at the office of the respondent. However, this did not eventuate.

I have detailed earlier that Mr Leicester said at the time he was told of Ms Emmett's resignation he was concerned about ATSIC breaches including that of his own budget allocation. He said that he became aware that disbursements that he had signed for as purporting to come out of the budget he was responsible for involved money that had never been received by the respondent. He said that he was told this by Mr Back. Mr Leicester said that he was also concerned about the status of Ms Emmett's practicing certificate. He said that he spoke to Mr John Lynes at the State office of ATSIC. Mr Leicester said he told Mr Lynes that Ms Emmett had tendered her resignation and he was concerned he might be responsible for the budget and also for the legal acts of Ms Emmett. He asked whether there were any consultants available on a short-term basis as it appeared that Ms Emmett had resigned. Mr Lynes later advised Mr Leicester of a "couple of forms that ATSIC regularly used to assist".

Mr Leicester later spoke to Mr Lynes again after he was informed that Ms Emmett was rethinking her resignation.

Later again, Mr Leicester received a telephone call from Mr Audas who apologised for not getting back to him earlier. Mr Audas said the consultancy idea seemed like a good one. Mr Audas attended at the office of the respondent and discussed the matter further with Mr Leicester and Mr Piendju. Mr Piendju agreed with Mr Audas that someone from the ATSIC State office should come to the respondent's office. About a week after that, however, Mr Piendju came to see Mr Leicester and said that he had seen Ms Emmett and that ATSIC coming out to the respondent's office would delay his pay increase and that he didn't want Mr Leicester to go behind his back to ATSIC. Mr Leicester said he told Mr Piendju that he would tell ATSIC he did not want them to attend. Mr Leicester then rang Mr Lynes to say that Mr Piendju did not want ATSIC to attend. It was in this conversation that Mr Leicester said that he believed that Ms Emmett was trying to get him fired.

When cross-examined, Mr Leicester said he was concerned about potential breaches of ATSIC guidelines and his knowledge of them, and said they were raised at staff meetings. Mr Leicester said he was concerned he may be "fixed with liability" if he had knowledge of breaches of ATSIC guidelines and he was concerned decisions made in relation to funds were not known by the executive committee. He agreed he became concerned about the advance of money to Bobby Roberts even though this was not coming out of his budget. He agreed that he was concerned about ATSIC guideline breaches within the Native Title unit.

Later during his cross-examination, Mr Leicester said that when he telephoned Mr Lynes in mid March he asked for advice on somebody who may be able to assist the organisation in the short-term. The following week Mr Leicester rang Mr Lynes and told him about the matters that he had raised with Mr Audas, which Mr Audas had undertaken that someone would come to the office to conduct a review about, but that this had not occurred for some six weeks. Mr Leicester agreed he told ATSIC that the Native Title unit did not have a strategic plan. He also agreed that he said he was not able to do any productive work and the anthropologist was not able to do any productive work. Mr Leicester said he may have told ATSIC that funds and other resources were being utilised for the benefit of the resource centre. Mr Leicester said he could not recall whether or not he said that the work on the Martu native title claim was deficient. However, he agreed this was his view of the matter. It was then put to him that it would not come as any surprise if that was what was said to ATSIC by him; although he said that he was not sure as he was very careful about what he said to ATSIC. He agreed that he may have told ATSIC the accounts of the "land council" were in a mess and they were not being used for the purposes provided. Mr Leicester said he told Mr Lynes about ATSIC breaches and the inability of professional staff to perform their functions.

However, Mr Leicester disagreed that in saying these things to ATSIC he had breached his employer's confidence or his professional obligations as a lawyer employed by the respondent. Mr Leicester said he regarded these matters as relating to management and administration and not legal matters. Mr Leicester said his duty of confidentiality did not attach to anything that he said to the ATSIC State office. He said that was because the information he provided was not related to any instructions or advice or confidential information that he had received.

Mr Biljabu said in his evidence that he found out about Mr Leicester going to ATSIC from one of the communities he lived in. He was told that Mr Leicester had "gone out of the organisation" and made allegations about the Native Title unit. Mr Biljabu said that he spoke to Mr Audas. He said that this occurred about a week or two before the meetings in early April. Mr Biljabu said Mr Audas said something should be sorted out within the organisation and that therefore Mr Biljabu had to have a meeting with the staff to try and sort something out. Mr Biljabu said Mr Leicester did not tell him that he was going to ATSIC with these problems. Mr Biljabu was asked how he felt about Mr Leicester going to ATSIC. Mr Biljabu replied that as an employee of the organisation, Mr Leicester should have warned the executive of the organisation before "being authorised" to go outside of it to make allegations.

When cross-examined, Mr Biljabu said that Mr Leicester had no authority in making a complaint to ATSIC without informing the executive that he was going to do so.

It was put to Mr Biljabu that Mr Leicester had no opportunity to speak to the executive committee. However, he disagreed with that.

Mr Biljabu said that he did not ask Mr Leicester to explain why he had gone to ATSIC because "you had no authority to go outside of me. I, we hadn't given you authority to go outside of the organisation to put in such allegations. You had no rights at the beginning". Mr Biljabu was then asked "but what if the allegation was not true or was not made". Mr Biljabu replied "it was made at the time". This is a somewhat ambiguous answer. This ambiguity was not cleared up in later cross-examination. However, Mr Biljabu did not agree with the suggestion that Mr Leicester was dismissed so that he would not have the opportunity of talking to ATSIC if they later came to the respondent's office to query matters.

Ms Emmett said she became aware Mr Leicester had spoken to ATSIC when she travelled to the Perth State office of ATSIC. Ms Emmett, Ms Fry and Mr Mark Chambers, the research officer of the Native Title unit, met with Mr Lynes and a financial offsider of his, Mr Hugh Jones. Ms Emmett said ATSIC advised then of Mr Leicester's allegations. She said she had received no previous indication from Mr Leicester that allegations had been made by him to ATSIC. Ms Emmett said that she was shocked and unhappy that Mr Leicester could have jeopardised the funding for the land claim. She said that she felt very angry.

When cross-examined, Ms Emmett conceded that Mr Leicester did raise concerns with her over various aspects of the administration of budgets and that Mr Leicester accused her of corruption in terms of managing her budget. Ms Emmett agreed that in this context Mr Leicester did raise with her the question of ATSIC guidelines.

Mr Rae, in his cross-examination, agreed that in the meeting on 30 January 1996, when Ms Emmett was present, the payment to Mr Roberts was discussed. Mr Rae agreed that Mr Leicester said words to the effect that "it was difficult being a lawyer and being exposed to breaches of ATSIC guidelines". However he did not agree that the payment made to Mr Roberts was a breach of ATSIC guidelines. He said this was because it was clear in the ATSIC guidelines that, within a salary line item, there is flexibility to spend that money as is seen fit, as long as the line item is not exceeded. Mr Rae was asked whether he was aware that the payment of money made to Mr Roberts constituted his full pay until 30 June 1996. Mr Rae said that he was aware that some arrangement like that was being discussed with the aim of making a payment along those lines. He said that he became aware of that either through Mr Chambers and/or Ms Emmett. He said that he was also aware of a similar "loan" being made to Mr Piendju. Mr Rae said that Mr Chambers and Ms Emmett described to him the difficulties they were having with staff arrangements. This was with the two liaison officers (Mr Piendju and Mr Roberts) sharing one position, one salary and one vehicle which was difficult to resolve. A way to resolve the problem was the arrangement that was made with Mr Roberts. Mr Rae said that although it was unusual he thought it was a reasonable way of resolution of the problem. Mr Rae said that it was not the case that Mr Piendju came to see him in relation to the payment that had been made to Mr Roberts and asked for the same arrangement. Mr Rae agreed that at the meeting on 30 January 1996 he said there may be a matter for ATSIC to get involved in. However, he said that he was referring to the dispute between Mr Leicester and Ms Emmett. He said that he would not have suggested that the issue regarding Mr Roberts was a matter for ATSIC involvement. Mr Rae accepted that Mr Leicester may well have said that he wished to discuss the matter with Mr Piendju and Mr Biljabu.

Before considering my conclusions on whether there was a valid reason for termination, I will turn to the question of the section 170DF(1)(e) issue, having just reviewed the evidence of the complaints made to ATSIC.

SECTION 170DF(1)(e)

As stated earlier, Mr Leicester alleged that the termination of his employment was for or included the prohibited reasons set out in section 170DF(1)(e).

This sub-section provides that:

"170DF(1)[Employer not to terminate on certain grounds] 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:
(e)the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities".

Mr Leicester contended that the respondent in terminating his employment for a reason including Mr Leicester making allegations to ATSIC, contravened this sub-section. Mr Leicester also submitted his complaint to the Legal Practice Board about Ms Emmett's status was a prohibited reason for his termination. I reject this. There is no evidence this formed a reason for termination.

Although the structure and wording of sub-section 170DF(1)(e) is not perhaps as straightforward as it could be, it describes three alternative actions of an employee. These are the filing of a complaint, participation in proceedings or recourse to competent administrative authorities. Further, the action of the employee, to come within the subject matter of the sub-section, must be "against an employer involving alleged violation of laws or regulations".

In this case, there was no evidence that Mr Leicester either filed a complaint or participated in proceedings against his employer. Therefore, it is only the third action which one needs to consider, being recourse to competent administrative authorities.

The expression "competent administrative authority" is not defined in the Act. However, it seems reasonably clear, given the rest of the sub-section, that the administrative authority must be competent in the sense of being an administrative authority which is able to pursue or deal with an allegation of the relevant type against an employer. This is consistent with the application of the sub-section to date.

The sub-section has been applied to a complaint to the Health and Safety Organisation of Victoria about factory worksite conditions (Lott v Opal Decorating Centres Pty Ltd, unreported, IRCA 481/96, 9 October 1996), participation in proceedings against the employer involving violation of laws involving payment of wages and other working conditions (Tegov v Naval Base Garden Supplies, unreported, IRCA 505/96, 23 October 1996), and the making of a complaint about the underpayment of wages to a relevant statutory authority (Stephens v Malmo Pty Ltd, unreported, IRCA 429/96, 29 August 1996; Dalton v Ultinel Pty Ltd, unreported, IRCA 242/95, 6 June 1995 and Woolhouse v Selfe, unreported, IRCA 511/95, 11 August 1995).

Section 170EDA(2) of the Act provides that where an allegation is made that the termination of employment of an employee contravened sub-section 170DF(1), the termination is taken to have contravened that sub-section unless the employer proves that the employment was not terminated for the particular reason or for reasons that included that reason or the exceptions set out in section 170DF(2) or (3) applied. These exceptions do not apply to section 170DF(1)(e). Therefore, to escape an allegation that an employer contravened section 170DF(1)(e), it must prove that the termination of employment was not for a reason which included that alleged.

The determination of whether a termination of employment includes one of the prohibited reasons set out in section 170DF involves an analysis of the particular reasons why the employer terminated the employment of the employee in the circumstances. The test is therefore a subjective one: AWU - FIME Amalgamated Union & Farrell v Conagra Wool Pty Ltd (1995) AILR3-015, page 1054; Fernandes v Comgroup Supplies Pty Ltd, unreported, IRCA 656/95, Ritter JR, 11 December 1995.

In this case, however, on the evidence, it is a little difficult to determine with precision the subjective reason why the employment of Mr Leicester was terminated with respect to making allegations to ATSIC. The only relevant witness in this regard was Mr Biljabu. In his evidence in chief Mr Biljabu said that he was told by one of the communities that Mr Leicester had gone out of the organisation and made allegations about the Native Title unit to ATSIC. However, no further detail was given about the allegations. The respondent relied on the letter of termination to set out the reasons for the termination of employment. This simply referred to, relevant to this matter, making complaints about "WDPAC behind our backs", having "acted in an untrustworthy manner", and "given the WDPAC a bad name". The letter did not specifically mention ATSIC. Further, the minutes of the staff meeting on 1 April 1996 did not specifically mention Mr Leicester going to ATSIC although there is a reference to Mr Piendju expressing frustration and criticising Mr Leicester for acting unilaterally without talking to the Martu first. Mr Rae in his evidence explained that this was a reference, he thought, to Mr Leicester making complaints to ATSIC.

When cross-examined, Mr Biljabu referred to Mr Leicester having put in an allegation to ATSIC and said that "the ATSIC office rang me and told me that do you know Leicester put in a complaint about this organisation, about your Native Title unit". Mr Biljabu also confirmed that it was what Mr Leicester allegedly said to ATSIC that concerned him rather than simply the fact that he had talked to ATSIC. However, there was no greater clarification of what he understood Mr Leicester had said to ATSIC. Mr Biljabu did not accept that Mr Leicester was "fired" so that he would not have the opportunity of explaining things to ATSIC if and when an ATSIC officer came to see the respondent.

The evidence presented on behalf of the respondent does not specifically refute the allegation that the termination of Mr Leicester's employment was for a breach of section 170DF(1)(e). However, to be fair to the respondent and Mr Biljabu, Mr Leicester's express reliance on section 170DF(1)(e) did not emerge until after Mr Biljabu gave evidence. However, Mr Schapper did not seek to recall Mr Biljabu or present any further evidence to counter the reliance by Mr Leicester on this sub-section, despite an invitation from me to do so.

In his closing, Mr Schapper submitted that there was no evidence before the Court that Mr Leicester had made an allegation to ATSIC, as a competent administrative authority, about a violation of laws or regulations. He also submitted that Mr Leicester was not dismissed for simply going to ATSIC and making an allegation but for doing so without the permission or authority of the respondent. In making this submission he drew support from the terms of the letter of termination, quoted above.

Section 170DF(1) was considered by Northrop J in Johns v Gunns Limited (1995) 60 IR 258. At page 268 his Honour confirmed that by reason of section 170DF and section 170EDA, when there is an alleged contravention of section 170DF, "the respondent has to establish a negative namely that the reasons for dismissal do not include the reason that (in that case) Mr Johns was temporarily absent from work because of injury. A mere denial may not be sufficient. All the facts and circumstances of the case have to be considered".

At page 269 his Honour said that normally it would be expected that an employer would give a direct denial to a question of whether a reason for termination was for a prohibited reason. That was not done in the case before his Honour but his Honour did not rely on the absence of an express denial of the reason, in support of making a finding against the respondent. I think the same applies in this case.

As stated a little earlier, Mr Schapper submitted that Mr Leicester making allegations to ATSIC were not actions of a character which could potentially fall within the relevant sub-section. Mr Schapper said that there was no evidence that what Mr Leicester alleged to ATSIC was a violation of laws or regulations.

In considering this submission, one must be careful not to reverse the onus of proof. It was not for Mr Leicester to prove the termination of his employment was for a reason including that prohibited by the relevant sub-section, but for the employer to prove on balance that this did not occur. However, for the onus of proof under section 170EDA(2) to apply, the application of the employee to the Court must have the character of being an allegation that the termination of employment was for or included the prohibited ground. Therefore, in my opinion, the employee must particularise or characterise the alleged reason(s) for termination of employment in such a way so that it meets the description of one of the sub-sections of section 170DF(1). Unless it does so, the onus described in section 170EDA(2) does not come into play.

That this is so is confirmed in my opinion by the use of the word "if" at the commencement of section 170EDA(2). It is only "if" the application bears the character of making an allegation that the termination of employment was for a prohibited section 170DF reason that the onus referred to applies.

Therefore, one must consider whether Mr Leicester's application to the Court did truly and in fact allege the contravention of section 170DF(1)(e). This depends upon whether what was alleged by Mr Leicester to the Court was that the termination of his employment was for a reason or included the reason that he had recourse to a competent administrative authority about an alleged violation of laws or regulations by his employer.

In his closing written submissions, Mr Leicester alleged that there was an allegation to ATSIC of a violation of laws or regulations in that Mr Leicester had alleged a misuse of funds and that this was "prima facie evidence of fraud under the criminal code". However, it was not submitted that the respondent knew that this had been complained of by Mr Leicester nor that it formed the reason for termination of employment. However, it can be inferred, given the context, that this was Mr Leicester's submission.

Curiously, however, when he gave evidence, Mr Leicester was careful to stress that he had not made any such complaint to ATSIC. I have set out earlier the evidence of Mr Leicester when cross-examined about the matters that he complained about to ATSIC. Mr Leicester agreed that he told ATSIC that he thought the Native Title unit had no strategic plan and he and the anthropologist were not able to do any productive work. He said he may have said funds and other resources were being utilised for the benefit of the resource centre. However, he denied saying that money had changed hands to buy favours with the Martu. He said that he could not recall saying whether the work on the native title claim was deficient and that he may have said that the accounts of the land council were in a mess. When initially asked, he agreed saying that the funds were not being used for the purposes provided, but when asked again about this he said that he "possibly" said this. In relation to the land council accounts, after initially giving the answer referred to immediately above, a little later he said that he "thought" he told ATSIC that the accounts of the land council were in a mess. Mr Leicester agreed that the matters about which he spoke to ATSIC involved a range of organisational and administrative matters.

In Mr Leicester's evidence about his actions involving ATSIC he did not say that he went to see ATSIC about alleged violations of laws or regulations with any precision or clarity. Mr Leicester did say that he was concerned about ATSIC breaches including that of his own budget allocation when Ms Emmett told him that she was resigning. However, when he gave evidence about his subsequent conversation to Mr Lynes, he merely said that he told Mr Lynes that he was concerned that he might be responsible for the budget and for the legal acts of Ms Emmett. Subsequent conversations with Mr Audas and Mr Lynes concerned Mr Leicester's idea that an ATSIC consultant could attend the office of the respondent "to assist the unit and to resolve problems".

This evidence does not clearly suggest that Mr Leicester made a complaint to ATSIC, as a competent administrative authority (assuming for the purposes of argument that it was) about an alleged violation of laws or regulations. The expression "breach of ATSIC guidelines" was used liberally in the evidence but was never precisely defined. The guidelines were not put before the Court and it was not clearly specified or established that breach of such guidelines would involve a breach of a regulation or law. Indeed, as Mr Schapper submitted in closing, the use of the word "guideline" is usually in contradistinction to the positive obligations that are imposed by laws or regulations. In the end, although the matter is not entirely clear or easy to determine, I am not satisfied that Mr Leicester's application to the Court involves an allegation that the respondent terminated his employment for a reason including one which could bear the character set out in section 170DF(1)(e). Therefore the onus of proof set out in section 170EDA does not apply. There is no contravention of section 170DF(1)(e) of the Act.

Further, I think there may be merit in Mr Schapper's submission that even if one needed to consider whether the respondent had discharged its onus under section 170EDA(2), it would have been able to do so, for the reason that it was not the making of the allegation to ATSIC which caused the termination of employment, but the making of the allegation without authority, permission or properly informing the respondent of Mr Leicester's intention to do so. However, I need not finally determine this issue, or whether the employer would have, for other reasons, been able to satisfy the onus that would have been cast upon it, had I been satisfied that the issue of section 170DF(1)(e) was actually before the Court.

THE STATUS OF THE MEETING ON 2 APRIL 1996

Mr Leicester submitted, in part, there was no valid reason for the termination of his employment because the respondent had not proved the meeting on 2 April 1996 was a validly constituted meeting, in accordance with the rules of the respondent. In making this submission Mr Leicester relied on Blanch v Tjuwanpa Resource Centre (Aboriginal Corporation), unreported, IRCA 118/96, Von Doussa J, 3 April 1996.

It is not clear, on the evidence, that the meeting of the executive committee on 2 April 1996 complied in all respects with the rules of the respondent. This is particularly so in relation to questions of a quorum of the committee having met, reasonable notice of the meeting having been given to each member of the committee, proper minutes being kept of the committee meeting and the decision of the committee being made by consensus of opinion. This is not to say the evidence discloses the respondent did not comply with these requirements - it was more a case that the evidence led by the respondent did not seek to address the issues. This was in part because Mr Schapper submitted that such matters were irrelevant to a determination as to whether there was a valid reason for the termination of Mr Leicester's employment, in accordance with section 170DE(1) of the Act.

In my opinion, properly understood, Blanch does not support Mr Leicester's submission. In Blanch, Von Doussa J considered whether there was a valid meeting of the respondent, in that case, to terminate the employment of Mr and Mrs Blanch. In particular, his Honour considered the question of whether proper notice of a motion being put to the meeting had been given (pages 8 and 9). His Honour said that "if proper notice of the topic is not given to members in advance, any decision made on the topic will be open to challenge and may be invalid". It is important to note his Honour said the decision may be invalid as opposed to there being not a valid reason for a decision to terminate employment. Furthermore, in the next paragraph, his Honour said:

"In the present case the applicants do not seek to take any point that the decision to dismiss them was invalid because it was not properly before the meeting. Nevertheless there appears to have been a serious failure to follow the requirements for a valid resolution of an incorporated body".

His Honour did not consider the matter further. Therefore the decision does not support the proposition for which it was cited by Mr Leicester and, I think there is force in Mr Schapper's submission that the issue as to whether there was a valid decision made to terminate someone's employment is a different question from whether there is a valid reason for their termination, which is what section 170DE(1) of the Act requires. Further, although I do not have to consider the issue, there may be force in a further submission by Mr Schapper that even if there was some deficiency in the way in which the respondent went about making the decision to terminate the employment of the applicant, this has been subsequently ratified by the respondent, and that this cured any deficiency as alleged.

In short, however, I do not accept that the respondent has failed to discharge it's onus under section 170DE(1) of the Act, by failing to prove that the decision to terminate Mr Leicester's employment was not a decision made at a validly constituted meeting of the respondent.

VALID REASON FOR TERMINATION - CONCLUSION

I have reviewed the evidence about both issues which the respondent submitted were central to forming a valid reason for the termination of Mr Leicester's employment; being the conflict between Ms Emmett and Mr Leicester and the complaints that Mr Leicester made to ATSIC. In my opinion, the respondent has satisfied it's onus and proved that these reasons were valid reasons to terminate the employment of Mr Leicester connected with his conduct and performance and/or the operational requirements of the respondent.

It is my opinion the evidence clearly indicates the conflict between Ms Emmett and Mr Leicester was seriously stifling the work of the Native Title unit. The unit was not operating smoothly, effectively or harmoniously. It was clearly not, in any substantial sense, doing that which it was supposed to do for the Martu people.

The respondent was entitled to take measures to address this problem. In my opinion, the measures that it took, in terminating Mr Leicester's employment, persuading Ms Emmett to remain as a legal officer and appointing another coordinator of the Native Title unit, were not inappropriate ones. It could have taken other measures. Whether those other measures would have been effective is open to speculation. However, I doubt whether the measures that Mr Leicester suggested, in his evidence, as detailed earlier in the judgment, would have been effective to address the problem. Fundamental to the problem was the division between Mr Leicester and Ms Emmett. It was unlikely that the problem would have been resolved whilst Ms Emmett and Mr Leicester remained the two legal officers employed by the respondent, unless one of them substantially changed their attitude and beliefs. This was not likely, particularly with Mr Leicester, who presented as inflexible on the things with which he disagreed with Ms Emmett. The respondent was entitled to try to retain the services of Ms Emmett, whom had worked for the respondent for a longer period of time than Mr Leicester and with whom, I infer, the respondent was satisfied, absent her difference of opinion with Mr Leicester and the sequelae of that. It seems, from the evidence, that the respondent's chosen method of dealing with the problem of the conflict between Ms Emmett and Mr Leicester has worked out - in that the Native Title unit appears to be now working far more effectively. I refer here to the evidence of Mr Rae.

I am also of the view that the respondent had a valid reason, in connection with Mr Leicester's conduct or performance, for terminating his employment because of the complaints that he had made to ATSIC. Mr Leicester complained about a vast number of matters to ATSIC, as detailed earlier. It was, in my opinion, inappropriate for him to do so without first discussing these matters with the respondent. It was, in my opinion, a betrayal of confidence of the respondent, in the sense that Mr Leicester was complaining to an outside body about the conduct of the respondent, without first discussing these issues with his employers.

Trust between employees of Mr Leicester's type and employers of the type of the respondent is fundamental. Mr Leicester's actions, in complaining to ATSIC, in my opinion, fundamentally breached that trust. Therefore, I am satisfied that, in particular given the state of Mr Leicester's relationship with Ms Emmett, the respondent had a valid reason to terminate his employment.

I make no comment on the submission by Mr Schapper that Mr Leicester's actions contravened the Law Society Professional Conduct Rules.

In considering these issues I have borne in mind the judgment of Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373 where his Honour said that the adjective "valid" should be given the meaning of "sound, defensible or well founded". As his Honour said "a reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of section 170DE(1)". However, as his Honour indicated in considering whether a reason is valid it should be remembered that the requirement applies in the practical sphere of the employment relationship where both employer and employee have rights and privileges, duties and obligations conferred and imposed upon them.

I have also taken into account that the Court is not to consider whether the way of an employer dealing with a problem, by the termination of employment of an individual, was the only logical way of dealing with a problem. It is sufficient if the termination of employment was a logical way of dealing with the problem that faced the employer: Kenefick v ASC Corporation Ltd, unreported, IRCA 331/96, Wilcox CJ, 26 July 1996; and Wadey v YMCA (Canberra), unreported, IRCA 542/96, Moore J, 12 November 1996.

In the context of the misconduct of Mr Leicester I have taken into account that the Court should consider whether the sanction of termination of employment was an excessive sanction for the particular misconduct concerned: Fargie v Freedom Foods (Aust) Pty Ltd, unreported, IRCA 498/96, 14 October 1996; Lupoi v Phillips Fox, unreported, IRCA 485/96, 3 October 1996.

In my opinion the respondent has proved, objectively, that the termination was necessary for the advancement of the Native Title unit of the respondent, and defensible and justifiable, to borrow phrases from Lee J in Nettlefold v Kym Smoker Pty Ltd, unreported, IRCA 469/96, 4 October 1996 and Marshall J in Kerr v Jaroma Pty Ltd, unreported, IRCA 470/96, 7 October 1996. See also Thomas v Lynch, unreported, IRCA 627/96, 20 December 1996, Wilcox CJ.

For all of these reasons I consider the respondent has satisfied it's onus and proved that there was a valid reason or reasons connected with the respondent's conduct and performance and/or the operational requirements of the respondent, which constituted a valid reason for the termination of employment of Mr Leicester.

The application will be dismissed.

It seems clear that Mr Leicester and Ms Emmett both have a commitment to work for Aboriginal people. It is a pity that their personality clashes and differences of opinion lead to the situation and result they did.

Due to my finding that there was a valid reason for termination, I do not need to consider the submission made by Mr Schapper, in opening, about the frustration of the contract of employment.

BREACHES OF ATSIC GUIDELINES

I have set out earlier the evidence of Mr Leicester in relation to his perception that there were breaches of ATSIC guidelines committed by Ms Emmett and/or the respondent. It is appropriate to record that the ATSIC guidelines in question were not produced to the Court. Also, there was no substantive evidence, which could be accepted, which supported any opinion held by Mr Leicester that the ATSIC guidelines were contravened. This is not to say that any views on this matter held by Mr Leicester were or were not correct. It is simply to record that there was no evidence before the Court on the issue, one way or the other.

BREACH OF CONTRACT CLAIM

In the applicant's Summary of Claim dated 28 August 1996, the applicant alleged he was not paid the salary he was entitled to and he was not paid for a return flight to Perth and a relocation allowance he was entitled to under his contract of employment.

The applicant confirmed in his opening that he maintained his claim for these alleged breaches of contract. However, the applicant gave no oral evidence in support of the claim nor made any closing submission about the matter.

There was some cross-examination of Ms Emmett on the issue but there was nothing which threw any doubt upon her evidence that Mr Leicester was remunerated at the level provided by the contract of employment.

I accept the submission of Mr Schapper that the evidence was Mr Leicester was paid a salary in accordance with clause 5 of the contract of employment, which stated he would be paid at the initial gross annual salary of $38,660. The contract also referred to a district allowance and there was no evidence that Mr Leicester was not paid it. The contract provided the initial salary would be tied to the Public Service Award, Level 5.1. The evidence was Mr Leicester was paid in accordance with the award. In early 1996, Mr Leicester's salary level was upgraded from the State award to the relevant Federal award which produced a pay increase. However, there was no entitlement under the contract for Mr Leicester to be paid any increased amount from the commencement of his employment until the end of December 1995.

I also accept Mr Schapper's submission that there is no evidence upon which the claim for a breach of contract by non payment of a relocation allowance or return airfare to Perth could be based.

Accordingly, Mr Leicester's claim for damage for breach of contract is dismissed.

I certify that this and the preceding fifty-seven (57) pages
are a true copy of the reasons for decision of

Judicial Registrar Ritter.

Associate:

Date:

APPEARANCES

Applicant in person: Mr S.C. Leicester

Counsel for the Respondent: Mr D Schapper
Solicitors for the Respondent: Derek Schapper, Solicitor

Date of hearing: 8 & 9 October 1996

Date of judgment: 10 February 1997