Lindner v Anyinginyi Congress Aboriginal Corporation

[1997] IRCA 298

DECISION NO:298/97

C A T C H W O R D S

INDUSTRIAL LAW -  TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - whether VALID REASON - whether CASUAL EMPLOYMENT - whether PROBATIONARY EMPLOYMENT.

Workplace Relations Act 1996 (formerly Industrial Relations Act 1988)
Ss 170DE, 170EA, reg 30B.

James Anthony Brett LINDNER -v- ANYINGINYI CONGRESS ABORIGINAL CORPORATION
VI 2123 of 1996

BEFORE:        R. D. FARRELL JR
PLACE:           PERTH (heard in Alice Springs)
DATE:              4 April 1997

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

No. VI 2123 of 1996

BETWEEN:  

James Anthony Brett LINDNER
  Applicant

AND:  

ANYINGINYI CONGRESS ABORIGINAL CORPORATION
  Respondent

MINUTE OF ORDERS

BEFORE:                 R. D. FARRELL JR

PLACE:  PERTH (heard in Alice Springs)

DATE:  4 April 1997

THE COURT ORDERS THAT:

1.          The application is dismissed.

Note:    Settlement and entry of Orders is dealt with by Order 36 of the  Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY

VI 2123 of 1996

BETWEEN:

James Anthony Brett LINDNER
Applicant

AND:

ANYINGINYI CONGRESS ABORIGINAL CORPORATION
Respondent

REASONS FOR DECISION
(Delivered ex tempore - revised from transcript)

4 April 1997  R. D. FARRELL JR

This is an application under Section 170EA of the then Industrial Relations Act 1988, now known as the Workplace Relations Act 1996 (“the Act”). The application is for compensation arising from the alleged unlawful termination of the employment of the applicant, James Lindner (“Mr Lindner”), by the respondent, the Anyinginyi Congress Aboriginal Corporation (“the Congress”). Reinstatement was not sought and it was not contended that it was practicable.

Mr Lindner contends that his employment was terminated in breach of Section 170DE of the Act; that is, without valid reason. The Congress has raised two preliminary issues, contending that under Regulation 30B Mr Lindner is excluded from the operation of the Act. Specifically, the Congress contends that Mr Lindner was employed in a casual capacity or, alternatively, contends that Mr Lindner was employed for a reasonable probationary period which was fixed at the commencement of the employment.

The onus of proof lies with Mr Lindner as to whether or not Regulation 30B applies. That means that it is up to Mr Lindner to satisfy me that it is more likely than not that the things he alleges occurred. In this context, for example, Mr Lindner must satisfy me that it is more likely than not that he was not told that he was to be a casual employee. My findings on these questions have to be made on the evidence before me, and one can make findings more confidently on some questions than on others.

Findings as to the Facts.

The Anyinginyi Congress Aboriginal Corporation is based at Tennant Creek in the Northern Territory. It appears from the evidence that it is a corporation incorporated under the Aboriginal Councils and Associations Act. It appears to run a reasonably significant enterprise, with about 100 employees. The Court heard evidence from the then general manager of the Congress, Dr Robert Laing, from the financial manager, Mr Richard Denaro and from another member of the finance section, variously described as a pay clerk and personnel officer, Ms Karen Bradshaw. It also heard briefly from the chairperson of the Congress, Ms Patricia Sutton.

Mr Lindner gave evidence on his own behalf. He resides in Broadford in Victoria and, prior to his employment with the Congress, he had seasonal employment with a company called Bonlac Foods at his place of residence. He expected that the seasonal employment would remain available to him through to January 1996.

In about September 1995, it became apparent to the Congress that a further employee would be required for its finance department. This was partly due to the growth in the Congress's responsibilities in that area, but also due to the apparent shortcomings in the performance of one of the existing employees in that department. That employee did not give evidence. To that end, an advertisement was placed in the Tennant and District Times on Friday, 22 September 1995, advertising for a part-time bookkeeper. The position was advertised to be of approximately three months’ duration, starting as soon as possible.

There were no satisfactory responses to that advertisement. I accept the evidence of Ms Bradshaw and Mr Denaro that it was then decided that, rather than seek specific bookkeeping skills, a candidate would instead be sought for the “administration officer” position within the organisation. The administration officer was also sometimes called the property officer.

I also accept that in about October 1995, the duties of the administration officer were not being performed by the person who had previously held the position. This employee, whose apparent shortcomings had contributed to the workload problem, was for that period working in another department, and I accept that it was Ms Bradshaw's understanding that the other employee had ceased to hold that position.

It came to Ms Bradshaw's attention that Mr Lindner, who was the brother of a friend of hers, might be interested in applying for the position. I accept her evidence that she was told this by Mr Lindner's sister (and her friend), Cher Evans.

Ms Evans did not give evidence, but I accept that she told Ms Bradshaw that Mr Lindner was interested in moving to Tennant Creek to assist Ms Evans in looking after their mother, who was ill. I make no finding as to the truth or otherwise of what Ms Bradshaw was told but I do accept that she was told those things and that her belief in its truth was part of her state of mind at the time she entered into negotiations with Mr Lindner.

In the event, Ms Bradshaw rang Mr Lindner from his sister's home and advised him that a position may be available for him at Tennant Creek. At the time she did not have full details of the position and there were at least two substantive conversations between them, and probably more, in which the various terms and conditions of the proposed position were discussed.

I will now briefly consider the context in which those discussions took place.

With regard to the issue of Ms Bradshaw’s authority to negotiate, I accept the evidence from the witnesses for the Congress that the constitution of the Congress empowers only the Board of the Congress to employ employees in a permanent capacity. I also accept their evidence to the effect that it is the practice for permanent employees of the Congress to be engaged for a probationary period of either three or six months, at the conclusion of which the Board decides whether or not to reaffirm their employment. I also accept that the Board has delegated to Dr Laing the authority to hire employees on a casual basis.

Given that it was Ms Bradshaw who engaged in the negotiations, it is worth considering an apparent confusion in her mind as to how these various legal restrictions manifested themselves.

It seems Ms Bradshaw essentially acted on the proposition that Mr Lindner's employment would proceed on the same basis as her own employment had. Her understanding of her own position was that she took up her employment with the Congress at Tennant Creek as a casual employee and that then, after three months, her employment was confirmed on a permanent basis by the Congress.

Mr Denaro, in his evidence, referred to overhearing Ms Bradshaw talking about the position being “casual, on a trial basis”. I accept that evidence, which would be consistent with the sort of evidence that Ms Bradshaw gave. I suspect that, in her mind, there was no great distinction between employment under a probation period and casual employment. I also suspect that it was her expectation and perhaps hope that, having come to Tennant Creek and shown for a three month period that he could perform satisfactorily in the role of property officer, Mr Lindner would, in due course, have his employment confirmed by the Board and his employment would become permanent.

With regard to Ms Bradshaw’s motives, she makes no bones about the fact that she felt overworked as a result of the extra workload upon her and Mr Denaro at that time. She was therefore keen to have somebody else employed to take on part of that workload. It was therefore in her interests to persuade Mr Lindner to come to Tennant Creek. It is also apparent that Ms Bradshaw was good friends with Cher Evans. She confirms that she understood it to also be Ms Evans' wish that Mr Lindner travel to Tennant Creek, for the reasons I have alluded to earlier.

With regard to Mr Lindner's motives, Mr Lindner's mother and at least one of his sisters were at Tennant Creek at the time. It was suggested in evidence that another of his sisters was also at Tennant Creek. I think one might reasonably infer that, at least from his personal point of view, there were some advantages to moving to Tennant Creek. There were clearly also some disadvantages, including having to move himself, his family, his furniture and so on up to Tennant Creek and having to give up employment which he expected to otherwise last until at least January 1996.

Despite Counsel for the Congress’ suggestions to the contrary, there is however no basis on the evidence for me to conclude that it was Mr Lindner's intention to move to Tennant Creek in any event, whatever the outcome of the negotiations with Ms Bradshaw.

However, I think I can fairly conclude that there was a general wish on the part of both Ms Bradshaw and Mr Lindner for the outcome of the negotiation process to be that Mr Lindner end up at Tennant Creek. I conclude that it is more likely than not that Ms Bradshaw, in the course of the negotiations, painted a very rosy scenario to Mr Lindner as to what was likely to happen in the event that he came up. Mr Lindner had certain concerns and these were discussed in the course of the negotiations.

I accept that the position that was negotiated for was the position of property officer, because Ms Bradshaw believed at that time that the position of property officer was vacant and because that position did not require as high a level of bookkeeping skills as the other positions. I also accept that the duties which were discussed were taken from the previous property officer's duty statement and that Mr Lindner was concerned that he feel confident that he could capably perform those duties. In those aspects of the position involving use of computers, where Mr Lindner was aware of limitations in his previous experience, Mr Lindner was concerned that he would be given the opportunity to receive training to make sure that he could, in time, adequately perform those duties.

I have heard the evidence of Ms Bradshaw and the evidence of Mr Lindner with regard to what was discussed in the course of the negotiations.

Mr Lindner's evidence betrayed a difficulty, at various times, in recollecting the detail of the discussions. Not surprisingly, given the amount of time that has abated in the time between, his specific recollection of the particular discussions has faded. Having heard his evidence, however, I accept that in a broad sense he felt genuinely aggrieved by the difference between what he had been led to expect and what transpired when he arrived at Tennant Creek.

Ms Bradshaw's evidence was, as one would expect, similarly less than word perfect. However, I would certainly prefer her evidence to that of the other witnesses from the Congress. I do so partly because she was closer to the events involved. Most of what the Congress’ other witnesses knew about the events was second-hand. Unlike Ms Bradshaw, the negotiations were not part of their primary activities; it was something that was going on which they were told about from time to time. It is also interesting to note that Ms Bradshaw’s account of events was, in some ways, closer to that of Mr Lindner than it was to that of the other witnesses from the Congress. That would also lead me, all things being equal, to be more likely to accept her account.

To the extent that the evidence of Ms Bradshaw and Mr Lindner differed - and I will put this as a broad proposition first and give examples as we go along - I would tend to accept the evidence of Ms Bradshaw over that of Mr Lindner because I accept, with very little doubt, that Ms Bradshaw was aware of the limitations in her authority to commit the Congress to various obligations in the course of the negotiations.

I have no doubt, as I have said, that Ms Bradshaw laid out a rosy scenario and predicted that things would work out in various respects. For example, on the issue of relocation expenses, she may well have told Mr Lindner that an application for relocation expenses could be made to the Board in due course and that it was likely to be paid when the Board considered it. However, I am satisfied that it is more likely than not that she would have stopped short of giving cast iron commitments in relation to any of these matters. While provision of air-fares may have been discussed, I am satisfied on balance that it was not something initiated by Ms Bradshaw and that it was not something that was seriously entertained. With regard to the $2000 Mr Lindner claims was promised him, I accept that Ms Bradshaw hoped that an exception could be made with regard to Mr Lindner and that some sort of up-front reimbursement of $2000 could be provided in some way. She therefore raised the matter with Dr Laing. However, I accept that she was aware she would have to get somebody else's authority before she could do that and, ultimately, the $2000 was not made available.

As for dealing with the of removalists, I accept that Ms Bradshaw's account of the circumstances in which she came to be involved in those negotiations is plausible. She ultimately wanted Mr Lindner to be reimbursed by the Board for his removalist fees. She had told him that his delayed application would be likely to succeed. By being involved in obtaining the removalists’ quotations, she did what she could to ensure that the actual costs incurred were kept to a level that was likely to be reimbursed. This was all part of a co-operative process to try to assist Mr Lindner in arriving to Tennant Creek and obtaining employment when he got there. I am not convinced that Ms Bradshaw exceeded her authority by purporting on behalf of the Congress to take on obligations vis a viz the furniture removalist company.

On the question of salary, I am satisfied that it is more likely than not that Ms Bradshaw would have told Mr Lindner that the salary was likely to be what the previous incumbent had got. A figure may have been mentioned. I am satisfied that she would have stopped short of specifying that that was what the salary would be.

Finally, in setting out a rosy scenario to Mr Lindner, Ms Bradshaw may well have mentioned that there was accommodation potentially available, given that the Congress had a vacant house, and that he could apply for that accommodation when he got to Tennant Creek. Given that it was her hope and Mr Lindner's hope that the employment would, in due course, turn out to be long term employment, it made sense to make arrangements for the furniture to move up to Tennant Creek. Ms Bradshaw believed that Mr Lindner hoped to live there on a permanent basis to attend to his family responsibilities.

Having looked at the negotiations from Ms Bradshaw's point of view, I will briefly consider how the position must have appeared from Mr Lindner's point of view.

A rosy scenario was being set out for Mr Lindner and he was being encouraged to seriously disrupt his life by relocating to Tennant Creek with his family. He had misgivings, and one would expect that his family in Victoria would also have had misgivings. He therefore sought, as far as he could, to obtain undertakings from his prospective employer and to reassure himself that he was doing the right thing.

Irrespective of my findings on the matters set out above which were in dispute, it was Mr Lindner’s contention on his own version of the events that he left Victoria and set off for Tennant Creek, despite, he says:

·   being promised air fares by Ms Bradshaw which did not eventuate;

·   being promised $2000 in advance for the cost of relocation by Ms Bradshaw, which also did not eventuate; and

·   having received and seen nothing in writing to support the things he says that he was being told by Ms Bradshaw.

It seems to me more likely than not, on the basis of his own account, that there was an independent desire on his part to go to Tennant Creek which contributed to his decision. This wish to go to Tennant Creek would not have been enough in itself to make him decide to go. In my view it was, however, enough to prompt him to make, if you like, the “leap of faith” required to set off for Tennant creek and hope that things would turn out as he had been led to believe they were likely to.

Given that Mr Lindner made these leaps of faith when faced with those objective shortcomings on his own version of events, I can more readily conclude on balance that the fact that his employment was initially to be casual and that his accommodation  and relocation expenses were not guaranteed, would not have stopped him either.

For all those reasons, I am inclined to accept that it is more likely than not that Mr Lindner was advised by Ms Bradshaw that the employment would, at least initially, be casual. That being the case, it follows that this Court has no jurisdiction to deal with the claim.

It was contended by the Congress that there was no concluded contract of employment until Mr Lindner arrived in Tenant Creek, because the date on which he was to begin work was uncertain. However, I accept that by the time Mr Lindner took the decision to leave for Tenant Creek and so arranged the removalist and loaded up the van, it had been agreed between he and Ms Bradshaw that he could commence work “as soon as possible”. In my view, that is sufficiently certain to constitute a concluded employment contract.

I accept that Mr Lindner feels genuinely aggrieved by the way things turned out. The additional fact that the position which he was led to believe he would have on a casual basis was, it turns out, not available to him at all when he arrived, would no doubt have added to that sense of grievance.

I accept that the previous incumbent of the position had, by early November, returned to the position so that it was no longer available for Mr Lindner. As a result, when he arrived in Tennant Creek, an initial attempt was made to place him in a bookkeeping role for which he was not suited and had never held himself out to be suited.

At some time in that process, a decision was made to change the duties of the position so that it was a position which Mr Lindner could more easily perform. Various paperwork was completed concerning the position. Amongst that paperwork was various statements to the effect that the employment was casual employment. Mr Lindner signed and, in one case, completed forms to indicate that his employment was on a casual basis. If I were wrong about the findings on the first matter, it seems to me that any doubt arising out of confusion in the negotiations as to his status at the time of his termination is resolved by his accepting and signing documentation in those terms.

With regard to the Congress’s alternative contention concerning the probation period, I am satisfied that in the course of negotiations, if there were some doubt as to whether or not casual status was conveyed to Mr Lindner, I have less doubt that it was conveyed to him that there would be some sort of trial period involved or trial process involved and that would have been fixed at three months. I accept, in the circumstances of this position, that a three-month probation period for this particular position would be reasonable, particularly given Mr Lindner's appreciation of his potential shortcomings in relation to aspects of the job which he sought training to address, and given the questions of acclimatisation to the remote location and to the various cultural challenges that the job might present.

Therefore, had I decided against the Congress on its contention that Mr Lindner was a casual employee, I would be even more inclined to accept the proposition that it was conveyed to him that there was a probationary period of employment.

The final point I wish to make, for Mr Lindner’s benefit, is that these decisions are about jurisdictional matters. I appreciate that, having accepted a casual or probationary position which had certain qualities, having travelled halfway across the country to take up that position and then, upon arriving, to find that the position was not there and instead that a different position was offered, one would feel aggrieved by that and, after having the weekend to think about it, become more aggrieved. However, the capacity of the Court to deal with the claim at all depends upon whether or not it was casual or probationary employment. Once that question is decided then, no matter how unjustly the employee might have been treated, the Court has no power to do anything about it because he was a casual employee or as a probationary employee.

This decision should not therefore be treated as any sort of vindication of the Congress's actions. I have not purported to consider whether or not the Congress behaved properly or justly. All that has been decided is that this employment is not something that the Court, under the Act, is empowered to do anything about, because Mr Lindner falls into the class of employees which the Court is not permitted to deal with.

On that basis, I will order that the application be dismissed.

In the circumstances of this case, I am not prepared to make the order for costs sought by the Congress. Put briefly, and perhaps too broadly, there are two circumstances in which the Court might be tempted to order the costs, and then a further discretion not to do so in any event.

The first circumstances in which costs might be ordered is, broadly, where, even on Mr Lindner's version of the evidence, it was clear that he would fail. In this case, on Mr Lindner's version of the evidence, it was not clear that he would fail. His evidence was that there was no mention of a casual period of employment and that he did not recall any reference to probation, though he did not rule out that possibility. He went on to say that if there had been a reference to probation then that would not necessarily have meant that he would not have made the trip to Tennant Creek.

The other circumstances in which costs might be ordered is, again broadly, if I was convinced that Mr Lindner knew, at the relevant time when he filed the application, that the version of events he would be putting forward was, in some sense, inaccurate, so that he could broadly be described as acting vexatiously. I am not satisfied that that is the case in these circumstances. Essentially, my finding is based on what I think is more likely than not to have happened in the course of the negotiations. It is quite possible that, while Ms Bradshaw was making qualified predictions, falling short of making rock-solid commitments, as to what would happen, Mr Lindner was hearing encouraging assurances that "everything will be all right'. If one were now to play back to Mr Lindner a tape-recording of his  conversations with Ms Bradshaw, he might well be surprised as to what was actually said as opposed to what he thought she was conveying.

I do not doubt that he felt a genuine sense of grievance when he got up to Tennant Creek and that things were not as he expected they would be. In those circumstances it is likely that one's memory would tend to work backward, so that one would ask oneself “why am I so shocked by this? What was I told?” One’s memory of the negotiations is likely to be affected by that sort of process. I am therefore far from a finding that Mr Lindner has in any way deliberately set out to mislead the Court.

In those circumstances, I do not consider an order for costs appropriate.

I certify that this and the preceding 12 pages
are a true copy of the reasons for decision of
Judicial Registrar R.D. Farrell.

Associate:

Dated:  20 May 1997

APPEARANCES

Counsel appearing for the applicant:     Mr D. Norman

Solicitors for the applicant:  Dennis Norman & Associates

Counsel appearing for the respondent:  Mr M. Prowse  

Solicitors for the respondent:  Dittons