Richard William Dalgleish v Hedland College
[1995] IRCA 282
•31 May 1995
C A T C H W O R D S
INDUSTRIAL LAW - Termination of employment - no valid reasons - procedural unfairness - reinstatement impracticable.
INDUSTRIAL RELATIONS ACT 1988, S 170DC, S 170DE
RICHARD WILLIAM DALGLEISH v HEDLAND COLLEGE - WI 94/386
Before: Judicial Registrar Farrell
Place: Perth
Hearing Date: 29 & 30 May 1995
Judgment Date: 31 May 1995
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 94/386
BETWEEN: RICHARD WILLIAM DALGLEISH
- Applicant
AND: HEDLAND COLLEGE
- Respondent
MINUTE OF ORDERS
Before: Judicial Registrar Farrell
Place: Perth
Hearing Date: 29 & 30 May 1995
Judgment Date: 31 May 1995
THE COURT ORDERS THAT:
The termination of the Applicant's employment contravened Part VIA Division 3 of the Industrial Relations Act.
The Respondent pay the Applicant $20,000 within 21 days of today's date.
NOTE:Settlement and entry of Orders dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 94/386
BETWEEN: RICHARD WILLIAM DALGLEISH
- Applicant
AND: HEDLAND COLLEGE
- Respondent
Before: Judicial Registrar Farrell
Place: Perth
Hearing Date: 29 & 30 May 1995
Judgment Date: 31 May 1995
REASONS FOR DECISION DELIVERED EX TEMPORE -
REVISED FROM TRANSCRIPT
This is an application pursuant to section 170EA of the Industrial Relations Act. The applicant seeks re-instatement. The applicant was employed as a finance manager by Hedland College from 26 October 1992 to 3 August 1994. His employment was terminated by a letter dated 3 August 1994 and signed by Mr Formby, the acting director of the respondent. The letter listed seven grounds for the termination of his employment. In his evidence, Mr Formby stated that there were two main reasons for the termination of the applicant's employment. That is, his failure to put monthly cash review forms into Treasury and unsubstantiated allegations contained in a memo prepared by the applicant entitled “Grievances”.
Mr Formby in his evidence stated that he did not know what the consequences to the respondent were of the failure to put the forms into Treasury, neither did he make any attempt to find out what the consequences of the failure were to put the forms into Treasury. The forms related to a period ending in June 1993, however he only became aware that the forms had not been submitted when he saw the document entitled “Grievances” on 2 August 1994. At that stage, there was no discussion between Mr Formby and the applicant about submitting the forms to Treasury and, in fact, the grievance document apparently described the forms incorrectly.
The applicant gave evidence that his failure to submit the forms actually improved the college's position and this evidence remained uncontradicted. The grievance document prepared by the applicant, dealt with a number of topics. The document was an attempt by the applicant to raise his concerns about the management of the respondent. Mr Formby's management was questioned by that document. That he dismissed the applicant before the document should have been placed before a council meeting is grossly unfair. This is especially so in light of the letter from the chairman of the council dated 1 August 1994 to the applicant from which I quote:
So as to allow you the opportunity to put your grievances and allegations through the appropriate channels and thereby have them fairly and properly dealt with.
The letter of termination also detailed other conduct including the refusal by the applicant to obey a lawful order. That matter had already been dealt with and resolved by the chairman of the council. Other matters raised in the letter were indicative of a deteriorating relationship between the applicant and Mr Formby but did not warrant termination of the applicant's employment. I am not satisfied that the reasons for the termination of employment of the applicant as expressed by Mr Formby at the hearing or in the letter dated 3 August 1994 are valid reasons for the termination of the applicant's employment.
In my view, the termination of the applicant's employment in the circumstances of this case was harsh, unjust and unreasonable. I also regard the failure of the respondent to engage in any discussions with the applicant as to the allegations that formed the reasons for the termination of his employment on 3 August 1994 to be in breach of Section 170DC of the Industrial Relations Act. For these reasons, I find that the termination of the applicant's employment was in contravention of the Industrial Relations Act.
Reinstatement is the primary remedy in this jurisdiction. In my view, it is impracticable in this case. An offer of permanent employment was made and accepted by the new finance manager on 27 September 1994. The applicant did not advise the respondent of his claim until 5 October 1994. There was no evidence of any other position that the applicant could be appointed to. In my view, it is appropriate to award compensation to the applicant. In doing so, I have made some allowance for the possibility that the applicant's employment would have come to an end in any event because of the deterioration in his relationship with Mr Formby as averred to in his draft grievances document. I award compensation to the applicant in the sum of $20,000. I make the following orders:
that the termination of the applicant's employment contravened Part VIA Division 3 of the Industrial Relations Act;
that the respondent pay to the applicant, $20,000 within 21 days of today's date.
I certify that this and the preceding two pages are a true copy of reasons for judgment of Judicial Registrar Farrell.
Associate:
Date:
Counsel for the Applicant: Mr A Niardone
Solicitor for the Applicant: Ilbery Barblett
Counsel for the Respondent: Ms J Pritchard
Solicitor for the Respondent: Crown Solicitor for the
State of Western Australia
Date of Hearing: 29 & 30 May 1995
Judgment Date: 31 May 1995
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