Municipal Officers Association of Australia v Shire of Yalgoo

[1977] FCA 14

Eetween

6 April 1976

The Municipal Officers Association of Australia,

here inaf te r ca l led "the Association", sues the Shire of

Yalgoo t o 'recover a pena l ty pursuant to S. 119 of the A c t . .

E

i 5 - 2 -

"21 - RESIGNATION AND DISMISSALS

(l) S u b j e c t t o the p rov i s ions of the Local

Government A c t , 1960-1973, a s amended; and

the Heal th A c t , 1913., as amended, t h e p e r i o d

of n o t i c e t o be given by a Local Authority

t o a n o f f i c e r o r by an off icer t o a Local

Author i ty	t o	t e rmina te the con- t r ac t	of	s e r v i c e
s h a l l be	:

(a)	in the case of Tokm or Shire Clerk,
Town or Shire Engineer (other than
E l e c t r i c a l ) o r Professiondl Engineer
covered by C l a u s e 1.0 of th i s award ,

four weeks :

(b) i n t h e case of a l l o t h e r o € f i . c e r s ,

one week: and

(c)	i n the case of t c r rpo ra ry o f f i ce r s ,
one day;

and no off icer s h a l l l e a v e his emp1.oymen.t;

u n t i l he h a s g i v e n n o t i c e i n w r i t i n g of

h i s i n t e n t i o n t o do	so	and	t h a t perioc? has
expi red .

( 2 ) I n the even t of t h e apprcpriate pcr i .od

of n o t i c e n o t b e i n g g i v e n , t h m t h e rate of

s a l a r y f o r the pe r iod of n o t i c e sha l l be

p a i d by the Local Authority or f o r f e i t e d by

the off icer .

( 3 ) P r o v i d e d t h a t t h i s c l a u s e sirall no t

apply t o ari o f f i c e r who has been j u s t i f i a b l y

dismissed for misconduct. I'

Ques t ions w e r e r a i s e d as t o the meaning of the

!

c lause and the effect of the words "subject t o t h e

provi .s ions of	t h e Local Government A c t , 1960-1973
as amended".

That Western Aus t ra l ian s ta tu te provides a method

I

whereby an o f f i ce r , inc luding Shi re C l e r k , may be removed

from an o f f i c e . I n our view it provides an exc lus ive

method of doing this and under the s t a t u t e an o f f i c e r

can only have h i s se rv ices te rmina ted in accordance wi th

t h e p r o v i s i o n s of S.158 and p a r t i c u l a r l y s u b - s e c t i o n s 5 ,

6 and 7 . The r e s u l t i s that i f i t is proposed t o te rmina te

.the s e r v i c e s of an of f icer for any r eason , the Council

must either order an inqu i ry or suapend h i m , stzting the

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reasons for his suspension. The officer may within a

period apply t'o t h e Council for an inquiry and if he does,

the Council must order the inquiry. The person holding

the inquiry makes a report in writing to the Council,

which, inter alia, is to be read as soon as practicable

in open council. Where an inquiry is ordered, the decisioar

of the Council is not to be given until after the reading

of the report.

In t h i s particular case, the Clerk was suspended.

He then sought an inquiry which was held. The report was

read in ope11 council and	a decision then reached to dismiss
him.

The Association argued that if an inquiry was carried

out pursuant to the provisions of S.158 an officer could not

be dismissed summarily for misconduct:

On the other hand, it was argued for the Council that

S.158 overrode and rendered nugatory the provision of clause

21 of the award because of the presence in the clause of the

words "Subject to the provisions of the Local Government A c t ,

1960-1973, as amended".

We think it clear that neither of these submissions

is well-founded.

In o u r view the effect of clause 21. and S.158 of

the Western Australian statcte is that an employer wishing

to discharge or terminate the services of an officer either

by dismissal for misconduct or by any other method of

termination of the contract, must carry out the provisions

of S.158 including those relating to suspension and inquiry.

It is not entitled to reach a decision until the report has beenmade and read in open council.

If after these procedures have been carried oEt

the services are terminated otherwise than justifiably f o r misconduct, one of t h e periods of notice specified

in sub-clause 1 must he given 'or one of the sums of

morjsy speci.E'ied in sub-clause 2 paid,

If ultimately an officer is justifiably dismissed.

for misconduct he obtains no rights at ll under clause 21

of the award and mut. look elsewhere for any rights.

We are not here concerned with his rights apart

f r o m those conferred by the Award.

This view of the section is consistent with the

judgment of the Comnlonwealth Industrial Court in

Re Municipal Officers (Victoria) Award 1959 4 F.L.R. 426.

The question for our determination then is whether

the Shire Clerk was justifiably dismissed for misconduct.

The reasons assigned at the time of the suspension

of the Shire Clerk were as follows :

"The Councii's reascns being, false and

misleading information in relation to

your letter dated 13/3/75 to I4r Paust

Secretary for Local Government.

1. Inaccuracies quoted in relation to

hours required to be worked on

Council business.

2. Mileage covered by you on Council supervision.

3 . Your failure to communicate with

the President or Councillors on

such matters which the Council

should be aware under the terms

of your employment with the Council."

i During the hearing Counsel for the Respondent

was asked to state t h e misconduct relied on at that

stage and 'he did so in the following terms:

"The basic head of misconduct is that

the shire clerk deliberately misled.

the coun.cil in firstly claiming that

he was f u l l y qualified or alternatively

t ha t his appointment was confirmed when

in fact it was not and that he knew it

was not : the second head is that he

deliberately misled t5e council by

failing to produce the correspondence

between himself and the Secretary for

Local Government d u r i n g th2 period

concerned. r e l a t i n g to his qualifications

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and that these were matters which should

have been put before the council, and

thirdiy that the information contained

in the correspondence to he Secretary

for Local G.overnment was false and that

that falsity of itself is misconduct

and creates a ground as well.

Those are the basic heads of complaint and in fact it has transpired subsequent to that that there are other matters in

which tfie former shire clerk has misled

the council. However, it is essentiaily

in that area. This question of his

qualifications and so on from examinations

would also, I would submit in due course,

be a sufficient ground but .it comes within the general heading of misleading

the council as to his qualifications."

It will be seen that there are some differences between the two statements.

It is argued for the Respondent th,at the Council

was entitled to rely on matters not known to it at the

time of the dismissal as constituting misconduct. In the

circumstances we have	not found it necessary to determine
this question.

The Shire of Yalgoo was described to us as a

shire with a small population covering a large area some

hundreds of miles to the north of Perth. The area was

said to be long and curved and fairly arid. It is

principally a pastoral area. The principal town is Yalgoo,

which has a population of 76 and the total population f

the shire is 320, scattered through 24,000 square kilometres.

Mr Lapham was appointed assistant Shire Clerk in

about February, 1972. On a vacancy occurring in the office

of Shire Clerk, he applied for t he position and was appointed

thereto on 2 4 Nay.,- 19.72. . . .., . " . -

It appears to have been the position that although

regulations under the Local Government A c provided for

academic qualifications for shire clerks, less than 5076

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of shire clerks were in fact qualified. Under the Act,

if a person not qualified was appointed to the office

in a shire where the hold.er of the office was required

by the regulations to be qualified, his appointment had

to be approved by the Minister.

A practice appears to have grown up for the

Minister to approve an appointment for a probationary

period. It seemed common ground between the parties that

there was no power to approve on a probationary basis for

a period only. However this practice was followed in this

particular case and Mr Lapham's appointment was approved

by the Minister in the following terms:

"This appointment is on a probationary period of 2 years and subject to Mr

Lapham continuing to make progress

towards qualification under the Local

Government (Qualification of Municipal

Officers) Regulations, 1961."

The regulations also prescribe various courses

of study and make provision for examination	in various
subjects.

From time to time after his appointment, Mr Lapham

made application to the Secretary for Local Government for answered these.

an extension of time to complete his examinations, assigning

various reasons in support of his application. On other

occasions he received inquiries from the Secretary for

Finally on 1 September, '1975 Mr Lapham wrote

to the Secretary for Local Government seeking exemption

, ... I r - ,

from the exaniiii&t~io~riii;'provisions and stating as a reason

for this that he desired to seek another position in

l oca l yovernrnent where the den1and.s of the office would

not Se so great and he could devote more time to examinations.

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On 11 September, 1975 he was advised by the Minister

that his probationary period had been extended to the end

of 1976.

During the early period f service, relations between

the Clerk and the Council appear to have been good and no

witness complained of his service in the first twelve months.

Mr Broad, President of the Shire at .the time of the dismissal,

said he thought Mr LaphaIn became somewhat lax after the first

twelve months. No other witness complained and indeed a.3

late as 20 March, 1974 the then President placed on record

his "appreciation of the Shire Clerk's efforts in getting

the Council out of the mire."

i

t

At the same meeting a question appears to have

been raised on the initiative o f Mr Lapham. The Minutes

show the then President told the meetillg that the Clerk

had complained regarding rumours circulating that his

appointment would be terminated. The President went on

to say "he understood that the terms of employment had indicated that the Clerk was on two years' probation and that the Clerk had understood the period to be three months".

The Clerk was then directed to withdraw from the meeting

to allow discussion to take place in camera as to matters

which Mr Boddington described in evidence as the Clerks'

"general service to the Council - whether they were happy

with it and so on . .:. . . . . . . . . . l t . During that time the .

President looked up the May 1972 Minutes.

After a lunch break the meeting resumed and the

President is then recorded as telling the Shire Clerk

that "Since there was no evidence in the May, 1972 Minutes

as to length of probation, it was assumed that the appointment

had been confirmed" .

l

Having regard to this evidence we reject the

allegation that the Shire Clerk deliberately misled

the Council t ha t his appointment was confirmed. when in

fact. it was no t and 'nu knew it was no t .

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W e a r e q u i t e s a t i s f i e d t h a t t h e C l e r k made no

such statement and that the members of the Council

themselves ekarrtined t h e Minutes of his appointment and

thmasswned tha t the appointment had been confirmed.

I n s h o r t , t h e C l e r k d i d not: mislead the Counci l

The a l t e r n a t i v e ground on this aspec t w a s t h a t

t he C le rk had d s l i b e r a t e l y misled the Council. i n c l a i m i n g

t h a t he w a s fu l ly qua l i f i ed ! . M r Lapham d e n i e d t h a t h e

had made any such claim and indeed such a c la im would

have been i n c o n s i s t e n t w i t h va r ious s t a t emen t s made

and recorded in the Minutes as to the C l e r k ' s a c t u a l

qua1i.fication.s. I t w a s not c la imed by M r Broad t h a t t h e

C l e r k had ever made such a clain; and other c o u n c i l l o r s

who gave evidence denied that they had been misled by

the Clerk i n t o b e l i e v i n g t h a t . h e was f u l l y q u a l i f i e d .

This ground also f a i l s .

In May of 1975 M r W,C. Eroad became Pres iden t

of the Shire Counci l and fr ic t ion between him and the

Clerk appears t o have developed shortly afterwa.rds. The

!

f i r s t i n c i d e n t c o n c e r n e d the employment of a Police officer

t o do c e r t a i n work on a c a s u a l b a s i s a t t h e power s t a t i o n .

Ul t imate ly a d i scuss ion took place towards the end of

J u l y , 1975 between the Shire Pres iden . t , t h e Deputy P r e s i d e n t ,

t he Cons tab le , the Shire Clerk and s e v e r a l o t h e r p e r s o n s . The

Counci l dec is ion had. been t h a t the @ons tab le shou-Ld no longer

be employed. M r Broad s a i d he intended t o re-employ the

Constable, whereupon Prlr Lapham r e p l i . e d t h a t it would be

i l l e g a l	for	the	Pres iden t	t o o v e r r i d e the	d e c i s i o n of
Counci l .

The Clerk s a i d "You l eave m e no a l t e r n a t i v e b u t to

repbrt t h i s ma t t e r t o t h e Mj.r?ister". The Constable appears

t o have made u p h i s mind n o t to bc i n v o l v e d i n l o c a l

p o l i t i c s and l e f t air. that s t a g e . During the subsequent conversa t ion the Shire President, Kr Broad, said to the

D

In September of the same year a question arose

whether a r e l i e v i n g Shire C l e r k sho:lld be employed dur ing

the C le rk ' s absence on annual leave and i n t h e course of

i n q u i r i e s about the need for t h i s f4r Broad, while i n Perth,

had a discu.ss ion w i t h the Sec re t a ry for Local Government.

He w a s shown scme letters which had passed between

t h e Clerk and the Department, Inclvtckd i n them were a

le t te r of 13 March, 1975 frail the Clerk t o the Department

and one of l September, 1975 f r c r n the Clerk t o t h e M i n i s t e r .

Cornplaints are made by the Responcknt about c e r t a i n statcntents

i n t h e le t ter da ted 13 March, 1975. In that l e t te r the

Clerk was exp la in ing h i s f a i l u r e t o a d v a n c e f u r t h e r i n

h i s academic qua l i f ica t ions , H e said:

"Unfor tuna te ly , geographic , climatic and ' w c r k

cgnmittal' c i rcmwtances prec- lude the p o s s i b i l i t y

of any 6egree of i n t e n s i v e study. A typ ica l day

u s u a l l y starts a t 6.45 a.m, s u p e r v i s i n g m t s i d c

s taff and f in i shes when t h e telephone exchange

closes at 10.00 p.m (ks you a re p robably aware,

the f inances of t h e Council do not: a l low f o r the

ex t r a a&min i s t r a t ive	staff	t h a t	the	volume	of
work requires 1 e

As a p o i n t of i n t e r e s t . , the writer has, i n

a d d i t i o n t o normal office and town d x t i e s ,

d r iven 106,000 k i lomet res in t h e p a s t 2 0

months - an average of about 64. 000 per annum.

You w i l l d o u b t l e s s r e a l i s e t h e r e f o r e , t ha t

evenings are n o t t h e Liveliest time of t h e

day, p a r t i c u l a r l y c o n s i d e r i n g t h a t an average

of f o u r o r f ive te lephone calls are rece ived

n i g h t l y . l!

~

Mr Lapham' S evidence w a s that he d i d work the

hours claimed. to be	a	t y p i c a l da.y and he did d r i v e
the distances shown.	The only evidence p u t i n reply

on t h e ques t ion of hours w a s evidence by M r Broad t h a t

a t tirnes while i n the town on p r i v a t e business he had

. . . . . , - . . . . ~ . -

seen the Clerk leaving the office appa ren t ly fo r h i s home

a t 4 ~ . m . o r 5.p.m. There was no evidence how f r e q u e n t l y

this occurred.

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On t h i s evidence it is q u i t e i m p o s s i b l e t o f i n d

t h a t the Cle rk ' s s t a t emen t was i n c o r r e c t .

I n t h e case of the mi l eage d r iven , the C l e r k ' s

evidence was t h a t the d i s t a n c e s t a t e d w a s an approx.imation

and was approximate ly cor rec t . Part of the d r i v i n g w a s on

d u t i e s of road supe rv i s ion , pa r t on v i s i t s to var ious parts

of the shire, i n c l u d i n g v i s i t s t o the home. of .the Shire

Pres ident on C o u n c i l business and t o a mining warden.

The C l e r k ' s evidence was t h a t some p a r t of t h e

d r i v i n g was done i n a Council motor vehicle while o t h e r

was done	i n h i s own	v e h i c l e or	i n u t i - l i t i e s owned	by	t h e
Council .

I t was put. t o u s tha t because the mileage shown

for the f i rs t Coanci l vehicle was only about 28,000 miles,

t h a t i t was incons is ten t wi th the ev idence g iven and showed

l

the statement w a s false and misleading. We do n c t agree.

W~cn the C l e r k ' s evidence i s looked a t , it i s c l e a r t ha t

he di.6 not say that. half the mi leage w a s cove red in the

C o u n c i l ' s car b u t t h a t on about half the occas ions when

he d id some d r i v i n g he used the Counc i l ' s car. These would

f r e q u e n t l y be fox very short trips.

on the evidence, w e are q u i t e unable t o f i n d that,

t h i s ground of misconduct i s made o u t .

A fur ther ground of a l leged misconduct arises

o u t of the manner i n w h i c h correspondeqcc w a s d e a l t w i t h

by the C o u n c i l . From time t o t i m e w h i l e he held o f f i ce ,

t h e C l e r k wrote t o the Local Government L:epartment either

seeking an extension of t i m e to do examinations or i n

answer t o queries from t he Depax-tment a s ts h i s progress.

The practice w h i l e Mr Baddington was Pres iden t ( u n t i l

late i n May; 1.975) was fo r both inwards ~ n d outwards

correspondence t o bz placed i n a "la, examined by him

befo re the meeting a11d those which he thought necessary

t o pat before the C o u n c i l then ex.trarrted. H e sa id he

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had n3 r e c o l l e c t i o n of any of tile le t ters dea l ing with

these sub jec t 'ma t t e r s being placed. i n t h e file. However

i t i s q u i t e clear . t ha t t he ques t ion of academic qua l i f ica t ions

was not one regarded by M r Boddington as important . To use

h i s own words, he w a s "much more i n t e r e s t e d i n the a c t u a l

c a p a c i t y of the C le rk t o pe r fo rm h i s work".

The Sh i r e had never dur ing the years of i t s ex i s t ence

had a q u a l i f i e d o f f i c e r and there seems no reason t o think

t h a t t h e q u e s t i o n of q u a l i f i c a t i o n s w a s regarded by

M r Boddington as of such importance as t o r e q u i r e t h e

le t ters tc; be placed before the Counci l . We accept h i s

ev idence tha t he had no r e c o l l e c t i o n 9f s e e i n g t h e le t ters ,

b u t i n view of t h e f a c t s s t a t e d . and t h a t h e d i d no m o r e than

quick ly scan through the le t ters p r i o r t o t h e C o u n c i l

meetings , we f ind . ourse lves unable t o reach a conclus ion

t h a t t h e C l e r k d i d n o t place t h e s e le t ters i n t h e c o r r e s p o n d w e e

f i l e for Mr Boddington t o peruse .

On 1 September, 1975 t h e S h i r e C l e r k wrote t o t h e

Min i s t e r i n thq fol lowing terms:

"1 r e spec t fu l ly app ly for an ex tens ion of t h e

p rov i s ions of Sectior, l c i O ( 2 ) ( b ) : I am

curwent1.y t h e s u b j e c t of' a Min i s t e r i a l app rova l

in r e s p e c t of my app0intmen.t as S h i r e C l e r k ,

S h i r e of Yalgoo, b u t wish t o app ly fo r ano the r appoint.ment t o enable m e time t o complete my s t u d i e s .

The reason for t h i s somewhat unusua l app l i ca t ion

i s t h a t t h e n a t u r e of m y duties does not allow

me t i m e t o s tudy , i n t h a t the demands upon ~ n y

t i m e occupy the greater ,part of twelve t o four-

tee11 hours per week day and most weekends.

A typ ica l day cornmcnces a t G - 4 5 a.m. when t h e

outs ide workers s b r t w o r k and f i .nishes anywhere

up t o 10	.OO p.m, when the telephone exchange
c l o s e s .	~t is not. UnESuai for Counci l - lors to

wish t o d i scuss roads etc. for up t o an hour

a t a time i n the evenings: I would say that. i t

is the r u l e r a t h e r t h a n t.hc except ion . (Of ie

Councillor complained v e ~ ; bitterly t h a t 5: was

absent f r o m Yalgoo w h e n he b m n t & t o license

a v e h i c l e on a Sunday a f t e r n o o n ) .

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Since the enactment of t h e Local. Government.

A c t i n 1961, this Counci l has had ten Shi re

C le rks who have a l l had t h e same problem - my

s t a y of three-and-a-half years	is something
of a record!

To compound the problem, my road superv is ion

d u t i e s h a v e e n t a i l e d 137 ,000 k i l o m e t r e s t r a v e l

i n t h a t p e r i o d : the o f f i c e s t a f f was reduced

to two on my appointment, and w h i l s t i t h a s

succeeded in reducing the Counci1. ' $5 indebtedness

f ron thirty-odd thousand dc11lar.s to t h r e e

thousand do l l a r s ,	it has	taken i t s toll of
my s tudy time.

For t hese r easons , S i r , X seek your indulgence:

it i s my i n t e n t i o n t o I m k e application for

another appointment. The only way I can c m ~ l e t e

my s t u d i e s i s t o first f i n d a s i t E a t i o n wl- l ich

w i l l allow m e t h e time t o do so. ''

A r e p l y was sent. by t h e M i n i s t e r on 11 September,

1975 .

Nei ther of t h e s e le t ters w e r e tablecQF,placed before

._

the Council. N r Lapham's view w a s t h a t t h e s d p u r e l y personal

le t ters and so t h e r e was EO obligatioil on him t o table them.

M r Broad's evidence is t h a t he first. s a w t h e s e

letters and the le.tter of 13 March, 1975 when s h o w them

by t h e S e c r e t a r y f o r Local Goverrment e a r l y i n September,

Ee asked Ilr Laphcm f o r a copy of h i s l e t t e r t o the Department

on h i s r e t u r n from Per th . Mr Laphm. took t h i s t o be a

dema.nd f o r t h e l e t t e r of 1 September, 1975 of which, being

a pe r sona l l e t te r , he had not kept a copy.

A t some time before the meeting of t h e Council on

1 5 October, 1975 M r Broad obtained copies of t h e le t ters

of 1 3 March 1975 and 1 September :L975 from the Department.

As stated, P/r Broad became Pres iden t towards the

end of May, 1975, having previously been a Councillor for

S erne t i r n e .

- 13 -

It i s qui te cLear that Nr amad desired to get

r i d of t h e Clerk. I n addit;ion to the incident i n July, 1975

a t the meeting of October, 1975 when the Clerk was u1 t ima t . e ly

suspended, the P res iden t a f t e r producing photocopies of the

two l e t t e r s d a t e d 1 3 March and I Septenlber, 1975 sa id ''I

am not prepared to carry on as President with t h i s Shire

Clerk. Either he resigns or I do. "

WC have reached the clear view based OTL o u r

observation of the witnesses t h a t on i s s u e s such as t h i s

w e prefer t h e evidence of the Clerk and we f ind tha t the

ground of misconduct a l leg ing fa i lure to d isc lose the

correspondence has not been made out . We are s a t i s f i e d

the ea r l i e r Le t t e r s were avai lable to- the Shire President

and that the f a i lu re to t ab le the pe r sona l l e t t e r of

l September 1975, did not const i tute misconduct of such

a nature a s t o j u s t i f y s m a r y d i s m i s s a l .

In those circumstances it i s clear that the Shire

Clerk w a s n o t " just i f iably dismissed for- misconduct".

W e therefore find the breach alleged proved. W e

t h i n k thz Clerk was t o an extent the vict im of i l l - f e e l i n g

between the President and himself and tha t he received

somewhat shabby treatment from the President.

I n a11 the ci rcumtances of this case we think it

appropriate t o impose a penalty. We have had regard t o

the f a c t t h a t t h i s i s a very small local. government body.

The penalty w e - impose i s $300.

In considering what order should be made under

S.120 as to payment of the penalty w e have had regard to

the f a c t that, M r Laphan has n o t had. the use of the monies.

we propose t o order.. to. be paid to h i m f o r sorrte 18 months ._ . I I -

and we have no power t o order i n t e r e s t t o be paid.

The Association h.as i n c u r r e d considerable expense

i n the matter.

- 14 -

W e therefore order t h a t the amount of t h . e penalty

be paid as t o one half to Mr Lapham and as to one half

to t h e Association.

In addition, an order was sought for payment of

t h e amount due i n lieu of notice. ‘The parties agreed

t h a t if t h e dismissal was not justified, tQhe s m involved

was $1,202.55 and we .therefore make an order t h a t the

Shire of Yalgoo pay to M r W.J. Lapham t h a t sum.