Phillip Martin Anderson and Umbakumba Community Council

[1994] IRCA 181

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NORTHERN TERRITORY

NO. DI 130/94

BETWEEN:
  PHILLIP MARTIN ANDERSEN

Applicant

AND:
  UMBAKUMBA COMMUNITY COUNCIL

Respondent

REASONS FOR JUDGMENT

BOULTON J.R

Mr. Andersen (“the applicant”) has brought proceedings seeking an order declaring the termination by the respondent of its employment of him to have contravened Division 3 of Part VIA of the Industrial Relations Act 1988 (“the Act”), and consequential orders.

During the course of the trial I granted leave to the applicant to amend the name of the respondent to Umbakumba Community Council Incorporated, its incorporation being proved by ex. R1.

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At all material times the applicant was employed by the respondent as its essential services officer at Umbakumba, an Aboriginal community of about 300 people on Groote Eylandt in the western Gulf of Carpentaria.

The applicant, an electrical fitter mechanic, is a married man, now 40 years old.

The applicant’s employment with the respondent commenced on 5 April 1993 and was due to run until 4 April 1995.  The applicant’s duties included operating and maintaining a power station and fuel management, electrical aerial reticulation, water supply pumping and distribution system and sewerage pumping and distribution system.  He would also fix items privately owned by members of the community, and equipment owned by the respondent.

The respondent employed a bookkeeper Carol Fien at the time the applicant took up his employment.  However, within several months, she was replaced by a Martine Ludicke.  Ms.Ludicke was the principal
witness for the respondent.

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For various reasons, relations between the applicant and Ms. Ludicke cooled over the course of his employment.  I do not consider it necessary to deal at any length with the reasons for this. 

On about 25 April 1994 the applicant and his family went on holidays, to Brisbane.  In about early June 1994 they were driving back to Darwin and had stopped at Roma, in Queensland.  There he learned of a message to contact a member of the respondent urgently.  He in fact spoke to the de-facto husband of Ms. Ludicke who told him that he did not have a job any more.  “The Council has decided to amalgamate the mechanic’s position and the ESO position, and you haven’t got a job.  Don’t bother coming back, we’ll pack for you and send your stuff back”.

After travelling on to Darwin, the applicant went to Umbakumba a few days later to pack his gear.  He was there handed a letter dated 14 June 1994 (ex. A5) from the respondent.  This letter stated, inter alia, that the Council had made its decision (to terminate the applicant’s employment) to save money.

The stance taken by the respondent at trial was that because of its parlous financial position, it was necessary for the respondent to terminate the applicant’s employment in an endeavour to save money.  -4-

Quite a deal of evidence was devoted to an examination of the sources of funding of the respondent, including evidence from a Mr. Pridham, a partner with Coopers & Lybrand which firm was appointed to audit the accounting records of the respondent for the 1993/94 financial year.  While it cannot be gainsaid that the financial position of the respondent was not a healthy one, I am unable to conclude on the evidence that the termination of the applicant’s employment was in truth based on the operational requirements of the respondent.  I do not accept the evidence of Ms. Ludicke to this effect.  I did not find her to be a satisfactory witness.  For much of her evidence she had a pained air as if giving evidence was something she found quite distasteful.  She became increasingly argumentative and garrulous the longer her evidence went.  She also became less convincing in her explanation of the applicant’s termination.

Ms. Ludicke’s de-facto husband took over the applicant’s position after his termination.  She herself gained a promotion, with an increase in pay, to Deputy Town Clerk in August 1994.    This position did not exist before August 1994.  I do not accept that Ms. Ludicke played a selfless, passive role in the applicant’s termination.  I have the impression that she is likely to have been largely instrumental in the decision of the respondent to terminate his employment.

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Minutes of a meeting of the respondent held on 30 May 1994 were tendered (ex. R15).  In reference to the applicant, they record “electrician is causing too many problems in the community by not minding his own business.  Council wish to see him out of the community; however this is not a problem because council were forced to make his position redundant to help council’s financial position next year”.  No member of the Council was called to give evidence.

Despite the valiant efforts of the respondent’s Counsel to persuade me otherwise, I conclude that the termination of the applicant’s employment was harsh, unjust or unreasonable, for both procedural and substantive reasons.

At trial, the applicant did not seek reinstatement. Apart from compensation claimed under the Act, a claim was made for damages for an alleged breach of the Trade Practices Act 1974. It was said that the respondent had engaged in misleading or deceptive conduct. It appears that this court has no jurisdiction to entertain this claim, in light of the provisions of ss.86(4) of the Trade Practices Act .  Even if I had jurisdiction, I would not have found for the applicant in this respect, there being in my view no proper factual basis laid for the claim as pleaded.

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The applicant’s pleading also raised a breach of statutory duty allegedly giving rise to an action in tort, and a breach of an implied term that the respondent would not terminate the applicant’s employment in a way that was harsh, unjust or unreasonable.  I consider both of these claims to be misconceived.  The latter was abandoned in submissions.

The applicant’s employment was terminated with effect from 1 July 1994.  Since termination, the applicant has worked part time as an electrician for Adbell Friglec on an as needs basis.  At trial he had earned $3,405.00 from this work.  While he had applied for other jobs, I had the impression that the vigour with which he was pursuing other work was not as great as it might be.  He seemed to be waiting for the outcome of this application.  I conclude that he is likely to more vigorously pursue work, and his earnings increase, once the result of these proceedings is known.

The applicant claimed for the loss of the chance that his employment may have been renewed at the end of the initial term.  By letter dated 4 January 1994 (ex. R2) he had written to Gemco at Alyangula (another township on Groote Eylandt) registering his interest in becoming an employee of Gemco.  While I accept his assertion that he would have seen out his contract with the respondent, I do not rate the

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prospects of his renewing that contract beyond 4 April 1995 as being more than slim. 

The applicant was not employed under an award.  Apart from his base salary and overtime, the applicant was entitled to other benefits.  Electricity was free, and house rental was at a subsidised rate.  The applicant was provided with a vehicle to perform his employment duties.   The respondent paid for the fuel he used in that vehicle.  Ex.A3 shows that the applicant’s taxable income for the year ending 30 June 1994 was $43,300.00.  I assess the total value of his remuneration to be of the order of $50,000.00 per annum.

While I consider that the applicant’s efforts in seeking employment should only marginally reduce the compensation which might otherwise be allowed him, to date, I have made allowance for expected increased earnings over the balance of his contract term, and adjusted compensation accordingly.  Doing the best I can, and mindful that precision can rarely be attained in such an exercise, I assess compensation in the sum of $20,000.00.

Delivery of this judgment has been delayed at the request of the --8-

parties’ legal representatives who, because of other commitments, requested extended periods within which to provide me with their written submissions.

I order that:

1. The application be allowed.

1. The respondent pay to the applicant the sum of $20,000.00 compensation, such payment to be made within 21 days of the date of this order.

I certify that this and the SEVEN (7) preceding pages are a true copy of the reasons for judgment of Judicial Registrar Boulton.

........ ........ ........ ........ ........ ........ ....
Judicial Registrar

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DATED:  28 November, 1994

Solicitor appearing for the applicant:             Mr. Priestley
  of Waters James
  McCormack

Counsel for the respondent:  Mr. Kilvington

Solicitors for the respondent:  David Francis and
  Associates

Dates of hearing:  19, 20 and 21 October 1994

Date of judgment:                  28 November 1994