O’Keefe v Carpentaria Land Council
[1996] IRCA 203
•24 Apr 1996
DECISION NO: 203/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - PERIOD OF PROBATION - VALID REASON - PROCEDURAL FAIRNESS
INDUSTRIAL RELATIONS ACT 1988 , ss170EA, 170DC, 170DE
Industrial Relations Regulations, reg. 30B(1)(c)
Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199
PETER O’KEEFE -v- CARPENTARIA LAND COUNCIL
QI 95/1233
BEFORE: BOULTON JR
PLACE: BRISBANE (HEARD IN MOUNT ISA)
DATE: 24 APRIL 1996
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. QI 95/1233
QUEENSLAND DISTRICT REGISTRY
BETWEEN: PETER O’KEEFE
Applicant
AND: CARPENTARIA LAND COUNCIL
Respondent
MINUTE OF ORDERS
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 24 APRIL 1996
THE COURT ORDERS THAT:
1.The application be allowed.
2.The respondent pay to the applicant the sum of $3,173 within 14 days of this order.
NOTE: Settlement and entry of orders are dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. QI 95/1233
QUEENSLAND DISTRICT REGISTRY
BETWEEN: PETER O’KEEFE
Applicant
AND: CARPENTARIA LAND COUNCIL
Respondent
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 24 APRIL 1996
REASONS FOR JUDGMENT
BACKGROUND
The applicant, now aged 40, answered an advertisement for a position as a resource officer with the respondent, to be based at either Doomadgee or Gununa in the Gulf Country of north west Queensland. Important among the duties of the position was to provide information to Aboriginal communities on land and development issues affecting those communities, and to act as the respondent's representative at meetings with both governmental and industry bodies involved in Native Title issues.
The applicant was contacted by a Mr Yanner, who held (and holds) the position of co-ordinator of the respondent, on 10 April 1995 and informed his application for the advertised position had been successful.
It was common ground between the parties that the respondent specified a six month probationary period as attaching to the advertised position.
By letter dated 6 July 1995, the respondent terminated the applicant's employment with it, with effect from 7 July 1995. The applicant received one week's pay in lieu of notice.
reg 30B(1)(c)
The respondent relied on the provisions of reg 30B(1)(c) of the Industrial Relations Regulations which provides as follows:
Subject to sub-regulation (2), for the purposes of section 170CC of the Act, the following employees are excluded from the operation of Subdivisions B, C, D and E of Division 3 of Part VIA of the Act:
(c) an employee serving a period of probation or a qualifying period of employment, if the duration of the period or the maximum duration of the period, as the case requires:
(i)is determined in advance; and
(ii) is reasonable, having regard to the nature and circumstances of the employment.
Its submission was that the duration of the period of probation was determined in advance, and was reasonable, having regard to the nature and circumstances of the employment. In circumstances where the applicant agreed that he was aware at all times prior to accepting the position of the stipulated period of probation, I find that that period was determined in advance.
I have difficulty, however, in concluding that the period of probation was reasonable having regard to the nature and circumstances of the case . In Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199 Wilcox CJ had this to say at 208-9:
Probably the most important consideration, in determining what is a reasonable period, will be the nature of the job. In the case of a person employed to carry out repetitive duties under close supervision, a reasonable period may not extend beyond a week or two. In the case of a person employed in a marketing or managerial position, working with little or no direct supervision and whose quality of performance cannot be immediately apparent, it may be reasonable for an employer to specify a probationary period measured in months. Circumstances will vary from case to case; the size, location and mode of operation of the employer being relevant factors, along with the personal characteristics and circumstances of the employee ...... But I suspect that an employer will rarely be able to justify a period exceeding two or three months, in the case of an employee to whom Part VIA now applies .....
There is no doubt that the applicant was not employed to carry out repetitive tasks under close supervision. His duties were likely to involve significant travel, over great distances, to serve the aspirations of the relevant Aboriginal communities. His suitability for the position, and the level of his performance in that position, would not be immediately apparent. On the other hand, he was under the general supervision of Mr Yanner, in his role as co-ordinator of the respondent. The applicant was obliged to provide the co-ordinator with reports of Resource Centre activities and on the results of community consultations about the interests and views of Aboriginal people in the community, to act as the co-ordinator's representative at meetings, functions and conventions as required and to perform other duties as directed by the co-ordinator.
In the circumstances of this case, I consider that the stipulated period of probation of six months was unreasonable, in the sense that a shorter period would have been sufficient to allow the respondent to properly measure the applicant's suitability for the position and performance in it. In my view, a period of three months would have been reasonable.
I reject the respondent's contention that the applicant is an employee excluded from the operation of those subdivisions of the Industrial Relations Act 1988 which provide restrictions on termination of employment, and remedies.
Valid Reason
In the alternative to its reliance on reg 30B(1)(c), the respondent submitted that it had a valid reason for the termination of the applicant's employment connected with his capacity or conduct or (what it called) the inherent requirements of the position.
The letter of termination stated:
As you are aware, you were employed as a Resource Officer by the Carpentaria Land Council on a probationary basis, to assess your suitability for permanent appointment to the position.
However, you have been constantly unwilling to work in with the members and Committee of the tribal Corporations and other staff members of the Land Council during this time. You have organised meetings with Century Zinc Ltd and the Department of Environment and Heritage without any consultation with the Land Council committee, your tribal Corporation committee members or staff of this office. This has been contrary to the agreed strategy of the Land Council, and at the expense of your normal work. On at least two occasions, you have travelled outside our region to these meetings without permission from me or the Chairman.
Accordingly, it has been decided that your probationary employment as a Resource Officer should be terminated as from Friday, 7th July 1995. Your pay will also be deducted for your unauthorised absence on 5th to 7th July. Could you please deliver your vehicle keys to Clarence Walden immediately on your return to Doomadgee.
The catalyst for Mr Yanner's writing of the letter of termination was his learning that the applicant had attended two workshops in Brisbane organised by Century Zinc Limited in, it seems, June and early July 1995. Century Zinc wishes to develop a large mine in the vicinity of the Gulf of Carpentaria. There are ongoing negotiations between Century Zinc and the local Aboriginal communities about whether or not such a mine should proceed, and on what terms.
The applicant agreed that he did not have the permission of his employer to attend such workshops. He agreed he needed such permission. He claimed to have tried to contact relevant persons in authority in the respondent to obtain such permission, but without success. I do not accept his evidence in this regard.
Mr Yanner in evidence said that the applicant's dealing with Century Zinc in the circumstances of his attending the workshops was dealing with "the enemy". It was not in keeping with the objects of the respondent which were to always present a united front to Century Zinc, to avoid being "divided and conquered". Mr Yanner was concerned that people like the applicant would be "brain-washed" by the company (personally into accepting the company's terms for the opening and operation of the mine).
The applicant stressed that before taking up his position with the respondent, he had represented his people's interests, and would continue to do so in the future. He thought he was doing just that by attending the Century Zinc organised workshops in Brisbane. In this, I think he was mistaken. I do not consider that the applicant fully appreciated that by taking on the position with the respondent, he was obliged to adjust to its requirements of him as his employer. While Mr Yanner was adamant that the applicant was fully aware of what was expected of him, particularly in his dealings with Century Zinc, I am not as confident of this as he.
I conclude that the respondent had a valid reason to terminate the applicant's employment connected with his conduct, specifically his attendance at the workshops in Brisbane without permission. I make no specific findings about the other complaints addressed in the letter of termination.
I am not satisfied that the termination was harsh, unjust or unreasonable.
I mention that the applicant raised, but obliquely only, the question of Mr Yanner's authority to terminate his employment. As the evidence stands, I am satisfied of Mr Yanner's authority in this respect.
Procedural Fairness
The applicant denied ever having had any shortcomings in his work performance brought to his attention. Mr Yanner said he had spoken to him on several occasions during the three months of his employment about arguments he (the applicant) had had with other staff members of the Resource Centre. While I accept that there were some occasions on which Mr Yanner spoke to the applicant on this issue, I do not accept that it was ever brought home clearly to the applicant that he must act in tandem with the wishes of the respondent in its desire to maintain a united front when dealing with Century Zinc.
I am satisfied that the applicant was not given the opportunity to defend himself against what emerged as the principal allegation leading to his termination, namely his unauthorised travel to and attendance at the Brisbane workshops. The letter of termination and other evidence make it clear that Mr Yanner moved to terminate the applicant's employment promptly on learning of his workshops’ attendance. Indeed, he "jumped the gun", as when he wrote the letter of termination the applicant was still away in attendance at the later workshop.
I find a breach of para 170DC(a) of the Act.
Remedy
The applicant did not seek reinstatement if he were successful in his application. I would have found reinstatement to be impracticable in any event. I consider it to be inappropriate in all the circumstances of this case where there was a marked difference between the parties as to what was required of the occupant of the position held by the applicant. The applicant was, consciously or unconsciously, pursuing his own agenda, in conflict with that of his employer. It is not my part to pass judgment on the merits of those agendas.
This view of the evidence impacts on what compensation I consider it appropriate to order. Had the respondent accorded the applicant procedural fairness in the manner of his termination, I do not think it would have been long in any event before the occasion would have arisen for a lawful termination. My assessment of the applicant is that he would have continued to pursue what he saw as his role in representing the interests of his people, regardless of whether or not this coincided with what his employer reasonably required of him.
The applicant's salary was $25,000 gross per annum, plus benefits. No evidence was given of the nature or value of the latter. I assess appropriate compensation to be the sum of $3173 (rounded off), being seven weeks salary (including the deduction of three days’ pay, and allowance for notice worked, or compensation in lieu of notice) less one week's pay in lieu of notice.
Generally
I add for completeness that there was some hearsay evidence, principally in the respondent's case. I have ignored that evidence.
Orders
I order that:
1.The application be allowed.
2.The respondent pay to the applicant the sum of $3173 within 14 days of this order.
I certify that this and the preceding FIVE (5) pages are a true copy of my Reasons for Judgment.
Judicial Registrar:
Date: 24 April 1996
Appearing for the Applicant: In person
Appearing for the Respondent: Ms Kelly
Solicitors for the Respondent: Conroy & Conroy
Date of hearing: 1 April 1996
Date of judgment: 24 April 1996
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