Riley v Kuljak Aboriginal Employment Training and Cultural Centre
[1997] IRCA 297
•24 November 1997
DECISION NO:297/97
INDUSTRIAL RELATIONS COURT OF AUSTRALIA
INDUSTRIAL LAW - Alleged UNLAWFUL TERMINATION - VALID REASON - alleged VERBAL HARASSMENT of other employees - failure to warn - alleged SEXUAL HARASSMENT of fellow employee - prior relationship - whether applicant given the opportunity to defend himself - OPPORTUNITY TO RESPOND - assessment of COMPENSATION.
Industrial Relations Act 1988 (now Workplace Relations Act 1996) - ss 170DC, 170DE, 170EA, 170EDA 170EE(2).
Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370.
Wadey v YMCA Canberra (unreported, IRCA No. 542 of 1996, Moore J, 12 November 1996).
Westen v Union des Assurances de Paris (unreported, IRCA No. 660 or 1996, Madgwick J, 17 December 1996).KENNETH JAMES RILEY -v- KULJAK ABORIGINAL EMPLOYMENT TRAINING AND CULTURAL CENTRE
WI 2545 OF 1995JUDICIAL REGISTRAR: R.D. FARRELL JR
PLACE: PERTH
DATE: 24 NOVEMBER 1997
IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 2545 of 1995
BETWEEN:
KENNETH JAMES RILEY
APPLICANTAND:
KULJAK ABORIGINAL EMPLOYMENT TRAINING AND CULTURAL CENTRE
RESPONDENTCOURT:
R.D. FARRELL JR
DATE OF ORDER:
24 NOVEMBER 1997
WHERE MADE:
PERTH
THE COURT DECLARES AND ORDERS THAT:
1.The termination of the applicant’s employment by the respondent contravened Section 170DC of the Workplace Relations Act 1996.
2.Within 28 days of the date of making these orders, the respondent pay to the applicant the sum of $2,100.00 compensation pursuant to section 170EE(2) of the Workplace Relations Act 1996, less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936, and actually paid.
Note: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 2545 of 1995
BETWEEN:
KENNETH JAMES RILEY
APPLICANTAND:
KULJAK ABORIGINAL EMPLOYMENT TRAINING AND CULTURAL CENTRE
RESPONDENT
COURT:
R.D. FARRELL JR
DATE:
24 NOVEMBER 1997
PLACE:
PERTH
REASONS FOR DECISION
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, Mr Kenneth James (Jackson) Riley (“Mr Riley”), by the respondent, Kuljak Aboriginal Employment, Training and Cultural Centre (“Kuljak”). Reinstatement was not sought, it having been agreed between the parties that it was not practicable.
Findings as to the Facts.
Kuljak is an incorporated community-based organisation, the objective of which is to assist Aboriginal people with gaining employment and training opportunities in the Midland region of Perth.
Kuljak administers a number of programs funded by the State and Commonwealth governments. In June 1995, Kuljak successfully tendered for a land care environmental action program (“LEAP”). It was a training program for young unemployed people aged 15 to 20 years of age funded through the Youth Conservation Corp (which is connected with the W.A. Department of Training). The program provided ‘on-site’ training in land care, environment and culture heritage and was complemented with accredited off the job training. This particular LEAP project targeted Aboriginal participants.
From 12 June 1995, Mr Riley was employed by Kuljak as the Coordinator of the LEAP project. His employment in that capacity was for a fixed term which is specified in his written employment agreement to be from 12 June 1995 to 22 December 1995.
As this fixed term exceeded 6 months, there was no question of Mr Riley being an “excluded employee” for the purposes of Section 170CC of the Act, because the category of employees excluded under Regulation 30B of the Industrial Relations Regulations applies only to fixed-term contracts where the specified period is less than 6 months.
Mr Riley, who was 36 years of age at the time he was employed, had received training in group training techniques in 1993 following a serious car accident which had left him incapacitated for his previous work as a labourer and in the metal spinning trade. He had references attesting to his successful work in the group training field with other organisations.
On 19 June 1995, a week after Mr Riley’s appointment to the position of LEAP Coordinator, the other position with the LEAP project, that of “support worker”, was filled by Ms Michelle Vanderklift.
Ms Vanderklift was in a personal relationship with Mr Riley at the time of her appointment. They had been together for about a year. This was known to the committee of Kuljak when they decided to appoint Ms Vanderklift. However, it was considered at that time that the potential advantages in hiring Ms Vanderklift outweighed the potential disadvantages arising out of her relationship with Mr Riley.
Over the course of Mr Riley’s employment, his relationship with Ms Vanderklift began to deteriorate. This affected their working relationship as tension and arguments arising out of their personal difficulties manifested themselves at work.
Kuljak is ultimately governed by its committee which is made up of volunteers, many of whom work for the Department of Training. The Chairperson of the committee at the relevant time was Mr Robert McPhee, who was an Aboriginal Employment Development Officer with the Department of Training. The most senior employee of Kuljak at the relevant time was its manager, Mr Greg Patterson. According to Mr McPhee, Mr Patterson’s role was to oversee Kuljak’s various programs and to manage the staff’s day to day activities. Mr Patterson reported to the committee. Indeed, Mr Riley says Kuljak’s other employees were not permitted to approach the committee directly, but only through Mr Patterson as manager. I note however that Mr Riley gave evidence of in fact approaching the committee’s chairperson directly on at least two occasions.
In addition to Mr Riley and Ms Vanderklift, Kuljak’s other employees were Mrs Kim Carpenter (Aboriginal Development Officer), Ms Jennifer Sketchley, Mr Hayden Kenney and Mr Timothy Dan (In-Work Traineeship Program), Ms Sandra Meier (part-time bookkeeper) and a part-time cleaner.
Mr Riley began to have difficulties in his dealings with Mr Patterson so that over time their working relationship also deteriorated. While Kuljak subpoenaed Mr Patterson to give evidence, Mr Patterson sought to be released from his subpoena and put before the Court medical evidence certifying that he was unfit to give evidence. In the face of that medical evidence, Kuljak did not oppose the setting aside of the subpoena, and it was set aside. I have had to rely, therefore, on the evidence of the other witnesses in assessing Mr Patterson’s role in the events leading to Mr Riley’s dismissal.
Mr Riley gave evidence on his own behalf, and called Ms Vanderklift as a witness. Kuljak called Mr McPhee, Mrs Carpenter and Ms Sketchley to give evidence.
Ms Vanderklift described the relationship between Mr Riley and Mr Patterson as a “power struggle”. Mr Riley believed that Mr Patterson was undermining his authority and credibility with the participants of the LEAP program of which he was Coordinator, by overruling his decisions without consultation on numerous occasions, particularly in connection with disciplining the program’s participants. Mr Riley did not accept Mr Patterson’s right to make decisions concerning the implementation of the LEAP program when, as Coordinator of the project, Mr Riley believed himself to be directly answerable to the Department of Training which was funding it. Ms Vanderklift agrees that the lines governing who did what were “very fuzzy”. She says that sometimes Mr Riley was told that he was in charge and was to run it all, and at other times when he did take leadership and did something, he was pulled up by Mr Patterson and told he couldn’t. As Mr Riley put it, Mr Patterson claimed to be in charge when it suited him and when he wanted to overrule Mr Riley, but when Mr Riley wanted Mr Patterson to resolve a problem of importance to Mr Riley, Mr Patterson would claim that he had no authority to do so.
This issue became more than merely academic, because Mr Riley strongly disagreed with a number of Mr Patterson’s decisions. He had concerns about the manner in which the LEAP project was being implemented, and formed what I am satisfied was a genuine belief that the LEAP funding was being misapplied.
The Court heard some evidence, and a great deal more from the bar table, concerning the issues on which Mr Riley and Mr Patterson differed, including the requirements of the LEAP funding and the manner in which the funding was in fact being applied. However, it is not finally necessary for me to determine whether Mr Riley’s concerns where well founded. I am satisfied that he genuinely held those concerns, and that he voiced those concerns to Mr Patterson, to other staff and to others outside the organisation. I am also satisfied that Mr McPhee, the then chairman of the committee, did not share those concerns and that Mr Patterson was so agitated by Mr Riley voicing his concerns outside the organisation that, immediately prior to Mr Riley’s suspension and subsequent dismissal, Mr Patterson told other staff he was commencing defamation proceedings against Mr Riley.
When the deterioration of Mr Riley and Ms Vanderklift’s personal relationship began to flow over into their working relationship, Ms Vanderklift discussed Mr Riley’s behaviour toward her with Mr Patterson from time to time. Sometimes these were informal discussions in which Ms Vanderklift was seeking advice. Sometimes they amounted to verbal complaints, directed at securing Mr Patterson’s intervention.
On 2 August 1995, Ms Vanderklift wrote a formal letter of complaint detailing an incident which occurred that day involving Mr Riley, and saying that she was finding it difficult to work under those circumstances.
There was evidence that Mr Patterson called Ms Vanderklift and Mr Riley together on two occasions in response to complaints from Ms Vanderklift.
On the first occasion, in early August, he called them into the conference room and told them that the arguments between them at work about personal issues had to stop, that they had to get along and learn to work together. There was no evidence to suggest that Mr Patterson issued warnings either to Mr Riley or to Ms Vanderklift during this meeting, in the sense of making it clear to them that their conduct was placing their continued employment in jeopardy. The meeting did not resolve the problems between them and, in Ms Vanderklift’s view, nothing was achieved.
On 4 August 1995, Mr Riley attended a LEAP Coordinators’ Review meeting at the Department of Training. In that forum he raised his concerns about what he considered to be Kuljak’s misapplication of LEAP funds. An officer from the Department of Training, Mr Shonn Fry, reported back to Kuljak’s chairman, Mr McPhee (who also worked at the Department) about Mr Riley’s actions at the meeting, and raised concerns about the forum Mr Riley used to bring up the issues and the manner in which Mr Riley conducted himself.
Mr Patterson approached Mr McPhee expressing his distress at Mr Riley raising allegations of misapplication of LEAP funds outside the organisation. He also told Mr McPhee that the staff were raising concerns about Mr Riley’s behaviour. Mr McPhee asked Mr Patterson to organise for the staff to put their concerns in writing.
Mr Patterson called Ms Sketchley to a meeting at Kuljak’s offices early on Sunday 6 August 1995. Mr Patterson’s wife, Amanda, was also present. Mr Patterson discussed his intention to sue Mr Riley for defamation. They discussed Mr Riley’s recent behaviour. Ms Sketchley began to feel uncomfortable, and at that stage did not intend to tender a written complaint about Mr Riley to the committee, as Mr Patterson was requesting.
Mr Patterson also contacted Ms Vanderklift that day and asked her to provide written accounts of all her complaints.
Eventually, on Monday 7 August 1995, Mr McPhee decided to call an informal meeting between the staff and the committee of Kuljak to deal with complaints he had received both from Mr Riley on the one hand and from Mr Patterson and Ms Vanderklift on the other. The meeting was scheduled for Wednesday 9 August 1995.
Mr Riley had spoken to Mr McPhee on that Monday, complaining about Ms Vanderklift’s behaviour and Mr Patterson’s response to it. Amongst other things, Mr Riley had been upset by Ms Vanderklift’s refusal to collect him for work in the Kuljak van in accordance with the usual arrangements. There is evidence that Mr Riley’s behaviour that day was short-tempered and unpredictable.
Mr Riley recalls that at around this time, Mr Patterson again called him and Ms Vanderklift into the conference room together very briefly to tell him that the committee was concerned about the two of them and that the tensions between them had to stop. Mr Riley responded that Mr Patterson should tell Ms Vanderklift to stop, and not him.
Mr Riley was absent from the office on stress leave on Tuesday 8 August and Wednesday 9 August 1995, and did not attend the meeting on Wednesday 9 August 1995. His evidence that he obtained a doctor’s certificate to verify his condition was not challenged, although the certificate was not produced.
In the meantime, preparations were being made for the meeting.
Mr Patterson prepared a one page written statement dated 9 August 1995.
Ms Vanderklift had begun taking notes of incidents between herself and Mr Riley in the period from 4 August 1995 to 8 August 1995. She prepared an additional signed statement on Tuesday 8 August 1995, to be put to the meeting.
On Tuesday 8 August 1995, Ms Sketchley made notes of Mr Riley’s behaviour the day before. She says she decided to put her concerns in writing after all because Mr Riley had verbally abused her on the Monday, and she had become worried about his behaviour. The incidents detailed in these notes were supplemented with comments about earlier incidents in a typed statement signed by Ms Sketchley on Wednesday 9 August 1995.
Ms Carpenter also signed an undated typed statement in an identical format to Ms Sketchley’s about an incident on Monday, 7 August.
Mr Patterson telephoned Mr Riley on the Wednesday morning, not long before the meeting, to ask where he was. Mr Riley replied that he was on stress leave. Though there is some discrepancy in the evidence, I find on balance that Mr McPhee had advised Mr Riley earlier in the week that he intended to call or was considering calling such a meeting, but I am not sufficiently satisfied that Mr Riley was told then of the proposed time and date of the meeting. I am prepared to accept that Mr Riley only learned that the meeting was to be held on Wednesday 9 August 1995 when he spoke to Mr Patterson by telephone that morning.
In any event, I accept that Mr Riley had been certified unfit to attend work on that day, and in the circumstances it would have been reasonable for him to decline to attend the meeting, even if he had had notice of it.
The meeting was attended by Mr McPhee and two other committee members. Staff members present were Mr Patterson, Ms Carpenter, Ms Sketchley and Ms Vanderklift. It was decided by those present to proceed with the meeting in Mr Riley’s absence.
Mr Riley had written a draft letter on the previous Monday dealing with the difficulties he perceived to exist in the work place. During his telephone conversation with Mr Patterson on the Wednesday morning, Mr Riley asked him to present that letter to the meeting. The letter was presented to the meeting and read out by Mr McPhee. In that document, Mr Riley raised the following issues concerning Ms Vanderklift:
· he acknowledged that Ms Vanderklift and he had a problem;
·he claimed that Ms Vanderklift would question him at work, “hounding and harping” about allegations relating to their private life;
·he claimed that Ms Vanderklift was uncooperative at work as a result of the difficulties between them;
·he cited, as a recent example, Ms Vanderklift’s behaviour on Monday 7 August 1995. Mr Patterson had arranged for Ms Vanderklift to drive the Kuljak van to work, but Ms Vanderklift had refused to pick up Mr Riley to take him to work even though he contributed the agreed rate of $10.00 per week to be picked by the van. As a result, he had to catch a train to work.
·he also claimed that Ms Vanderklift was hostile and negative for the rest of that Monday, refusing to supervise participants while he made necessary telephone calls.
·he also claimed generally that if he was ever provoked into saying something “in retaliation” to Ms Vanderklift’s “hounding and harping”, then she would complain to Mr Patterson.
Mr Riley also raised issues concerning Mr Patterson:
·he complained that Mr Patterson did not acknowledge his status as “Coordinator” of the LEAP project but instead, for example, told a staff meeting that “Jackson and Michelle are both project workers”.
·he complained that Mr Patterson detracted from his position as Coordinator by overriding “every decision” he made.
·he complained that Mr Patterson was biased against him in relation to his problems with Ms Vanderklift. He said that Mr Patterson would listen to Ms Vanderklift and then, without hearing Mr Riley’s side of the story, tell him that “it has to stop”.
·he noted that when advised of Ms Vanderklift’s refusal to pick him up for work, Mr Patterson refused to intervene to require Ms Vanderklift to do so.
Ms Vanderklift and Mr Patterson responded with their view of some of these issues but, in Mr Riley’s absence, they were not taken any further.
The committee members also considered several allegations against Mr Riley from members of the staff, many of whom were present. These were allegations of verbal harassment by Mr Riley of staff and of LEAP program participants, and of sexual harassment by Mr Riley toward Ms Vanderklift. Ms Vanderklift recalls telling the committee members that she was scared of being at work with Mr Riley because they were arguing a lot, she felt intimidated by him and found it difficult to work given the pressure she was under. She says she wanted the committee to resolve the problem, but did not have any specific solution in mind.
The committee members took the view that the allegations against Mr Riley were serious, and that no decision should be taken about them unless Mr Riley was present. Ms Vanderklift then broke down crying and said she didn’t want to come to work if Mr Riley was there. She and Mrs Carpenter indicated that they felt threatened by Mr Riley’s presence at work. In view of this reaction, the committee members decided to suspend Mr Riley on full pay from Thursday 10 August 1995.
When Mr Riley came to work on Thursday, 10 August 1995, he was given a letter bearing that date, advising him of:
·his suspension, pending further investigation of serious allegations against him; and
·the committee’s intention to meet with him and other staff to investigate these allegations and the allegations he had made.
Mr McPhee spoke to Mr Riley on the telephone later that week, and was informed by Mr Riley that Ms Marlene Jackamarra of the Municipal Employees Union would be acting on his behalf. Following this conversation, Mr McPhee’s assumption was that he should relay any future oral communication to Mr Riley through Ms Jackamarra.
Mr McPhee met with Mr Riley and Ms Jackamarra on Thursday 17 August 1995. Mr McPhee says he read through a letter setting out the allegations against Mr Riley. Certainly, they were both provided with copies and given the chance to read through them before the meeting ended. This letter dated 17 August 1995 from Mr McPhee to Mr Riley, which Mr McPhee says was prepared in haste, was in the following terms:
“Dear Jackson
The following allegations have been made against you which resulted in your suspension from duty with full pay pending further investigation. As stated in a letter to you dated 10 August 1995 the Committee of Kuljak wikk (sic) arrange a time to meet with you to discuss your response to these allegations once a suitable time has been negotiated which will allow you to prepare your response.
It is alleged by Michelle V that on the 1st of August 1995 you approached Michelle in the LEAP office to where she was changing into work overalls behind a screen and asked ‘show me your knickers’ to which she allegedly said ‘no’. It is alleged by Michelle that you then approached her, attempting to lift up her jumper to whiched (sic) she was pushed against a wall. It is alleged that she then stated ‘don’t, this is sexual harrasment’ (sic) at which you responded ‘no it’s not babe’.
It is alleged by Kim Carpenter that on the 2nd of August 1995 that while Kim was present with Michelle you said to Michele (sic) ‘what are you going to do, fuck him? what are you going to do, fuck all the intructors? (sic) you won’t get your licence by fucking them all, they don’t give out the licences anyway, you will have to go to the police station and fuck all of them to get your licence’.
It is alleged by Michelle V that on the 2nd of August 1995 that while you were in the Kuljak vehicle you allegedly stated to Michelle that she was a ‘slut, whore and harlot’ and it is also alleged that you attempted to change the gears of the vehicle whilst Michelle was driving.
It is alleged by Kim Carpenter that on the 3 of August 1995 you stated to Kim that ‘Greg Patterson was making under the table cash deals with Albert Dillalo to supplement money that Albert had allocated to the LEAP project’.
It is alleged by Michelle V that on the 4 August 1995 you said to Michelle that ‘Kuljak is going down and Greg, Denise and the committee would be going down the hardest’. It is also alleged that by Michelle that during this conversation you accused Greg Patterson of ‘doing dodgy deals with Albert Dillalo concerning LEAP doing a cash under the table deal with Albert and that Greg and Michelle are having an affair and that Michelle is probably receiving cash deals’. It is also alleged by Michelle that that (sic) you said ‘you will pull Michelle down with everyone else if she did not back you up all the way’.
It is alleged by the Western Australian Department of Training that on the 4 August 1995 you made derogatory comments towards the management of Kuljak by the manager and the committee. It is also alleged that on this day you propositioned a staff member of the WA Department of Training which was rejected by her and you then accused her of avoiding you.
It is alleged by Jennifer Sketchley that on the 7 August 1995 you stated to Jennifer in the administration office ‘who fucking opened my mail’ and on the same day it is alleged by Jennifer that you stated ‘Greg is making a cash under the table deal with Albert Dillalo’.
It is important that you respond to these allegations so that the committee can meet with you and take appropriate action to resolve these issues.”
Attached to the letter was the following note, detailing some additional allegations:
“The following documented events occurred and were witnessed on the following dates.
10/7/1995 Jackson Riley accused course participant Adam McGillivray of sleeping with Michelle after they came back from getting fish and chips for lunch. Witness comments on file include, ‘are you sleeping with Michelle’ witnesseed (sic) by Travis Hauser - course participant and ‘did you have a good screw?’ witnessed by Adam McGillivray course participant.
2/8/1995 At morning tea whilst Michele was talking to Kim how she wanted to get her motorbike licence and how she had just spoken to an instructor, Jackson was heard to say to Michelle ‘what are you going to do, fuck him? what are you going to do, fuck all the instructors? you won’t get your licence by fucking them all, they don’t give out licences anyway, you will have to go to the police station and fuck all of them to get your licence’ Witnessed by Kim and Michelle.
7/8/1995 Jackson told Michelle to ‘fuck off’ and said ‘I have just rung Shon Fry and told him how you cunts are scheming behind my back’ witnessed by Kim Carpenter. Sandra Meier our bookkeeper also overheard Jackson call Michelle a ‘Fucking cunt and fucking bitch’
1st
8/8/1995) Jackson asked Michelle to show him her knickers and when she said no he pushed her into the wall. This noise was heard by both Kim and Jennifer.”
Mr Riley disputes that this note was attached to the letter dated 17 August 1995. He says it was attached to his letter of termination. I have accepted Mr McPhee’s evidence on this point, because it seemed to me a more logical and plausible explanation for the existence of the attachment.
The details of the allegations were not discussed at that meeting. It was agreed that a further meeting be scheduled for 12.00pm on Tuesday, 22 August 1995, at which Mr Riley could meet with the committee and respond to the allegations against him.
Mr McPhee arranged for copies of various signed statements setting out the allegations against Mr Riley, which were gathered by Mr Patterson at Mr McPhee’s request, to be circulated to the committee members. As I have noted, some of these had been prepared before the meeting on Wednesday 9 August 1995. Other statements were prepared later:
·Ms Vanderklift approached the participants in the LEAP program and asked whether any of them wished to provide written statements about Mr Riley’s conduct to be brought to the attention of the Kuljak committee. She transcribed statements for three of the participants on Thursday 17 August 1995.
·Ms Carpenter made a note on 17 August 1995 of an incident on 2 August 1995.
·Ms Sandra Meier, the bookkeeper, prepared two written statements dated 10 and 17 August 1995.
·Mr Fry from the Department of Training wrote a letter to Mr McPhee dated 17 August 1995, giving an account of Mr Riley’s attendance at the LEAP Coordinators’ Review meeting on 4 August 1995 and of a telephone conversation he had had with Mr Riley, probably on Monday 7 August 1995.
Soon after Thursday, 17 August 1995, Mr McPhee learnt that Ms Vanderklift had obtained a restraining order against Mr Riley. The restraining order was obtained on 11 August 1995 and served on 18 August 1995. He asked Mr Patterson to arrange that Ms Vanderklift not be in the office during the meeting proposed for Tuesday 22 August 1995. Mr Riley was not advised of these arrangements.
Mr McPhee received a telephone call on the morning of Tuesday 22 August 1995 from a woman who identified herself as Ms Jackamarra. She said that she and Mr Riley were not able to attend the meeting they had scheduled for that day because she was “double-booked” with a prior commitment. She proposed meeting a week later. Mr McPhee expressed concern about the delay and said he would have to discuss it with the committee.
He telephoned each of members of the committee and advised them of Ms Jackamarra’s and Mr Riley’s inability to attend.
The committee members were not happy with the proposition that the meeting be delayed. Ms Vanderklift had not been able to cope with running the LEAP program on her own. The need for her to attend to administrative duties had led to inadequate supervision of the participants, resulting in disruption to the office and to complaints from participants and the relevant authorities.
The committee members, in their conversations with Mr McPhee, expressed or agreed with the view that Kuljak should proceed to terminate Mr Riley’s employment.
Mr Riley says that Ms Jackamarra told him that she contacted Mr McPhee, told him about the restraining order and requested a new date and venue for the meeting so that Ms Vanderklift would not be present, and that a new date was agreed upon. Ms Jackamarra did not give evidence. As I warned Mr Riley early in the two-day hearing, in the absence of any direct evidence of such an agreement to fix a new date, I must accept Mr McPhee’s account of his telephone conversation with Ms Jackamarra.
On Wednesday 23 August 1995, Mr McPhee wrote to Mr Riley advising him that the Committee had decided to terminate his employment as LEAP Coordinator from that date. The letter was couriered to his home. The letter refers to the meeting scheduled for the previous day for Mr Riley “to respond to some very serious allegations made against you from other Kuljak staff and LEAP participants”. Mr Riley’s failure to attend that meeting is noted. According to the letter, the decision to terminate Mr Riley’s services was made “due to the seriousness of these allegations”.
Mr Riley was given two weeks’ pay in lieu of notice and accrued leave entitlements.
Whether There was a Valid Reason for Termination
Section 170EDA(1)(a) confers the onus on the employer to prove, for the purposes of Section 170DE(1) of the Act, that there was a valid reason for the termination of the employee’s employment connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service.
Kuljak contends that Mr Riley’s conduct, as evidenced by the allegations and complaints made against him, was a valid reason for the termination of his employment.
It is appropriate at this point to have regard to Mr Riley’s contract of employment, which has the following provisions dealing with termination of employment:
“16.TERMINATION
a)Termination of the Employee’s employment can be affected by the Employee within 10 working days notice in writing.
b)Except in the case of ‘gross industrial misconduct’ where employment may be terminated immediately the organisations disciplinary procedures for unsatisfactory work and conduct are set out below.
Verbal Warning: The Management Committee / Employer explains to the Employee the reasons for instituting disciplinary procedures and discusses plans for overcoming the problem. The discussions and plans are recorded in writing and a copy given to the Employee clearly stating that lack of improvement by a given time will result in a written warning.
First Written Warning: If performance is still unsatisfactory at the time of the review there will be a further discussion with the Employee. The discussion and the plans for improvement that will be recorded in writing and a copy given to the Employee clearly stating that lack of improvement by a given time will result in a final written warning.
Final Written Warning: Should progress not be made by that given time, the Employee will be given a final written warning.
Dismissal: If satisfactory progress is not made within a reasonable time of the final warning dismissal of the Employee can be effected by the Employer with 10 working days notice in writing.
Gross Industrial Misconduct:
In the case of gross industrial misconduct, the Employee may be suspended with pay, pending enquiry and possible dismissal.
The following may represent gross industrial misconduct:
a) Theft of any Project property or funds.
b) Wilful damage of any Project property.
c)Intoxication through alcohol or other substances during working hours.
d)Physical violence on Project premises or business during working hours.
e)Any instance of verbal or physical harassment of any other Employee or client, particularly in respect of race, sex or religion.
f)Any disclosure of confidential information to any other party without prior permission.
g)Carrying on business in an activity similar to that undertaken by the organisation without prior written permission.
h)Falsification of any organisation’s records for personal gain or on behalf of any other Employee.
17.APPEALS:
If an Employee wishes to appeal against any disciplinary action, the following stages shall be followed:
a)An Employee raises the matter with the Management Committee. If it is not resolved, it should then be referred to Stage 2.
b)The Employee raises the matter at the next available meeting of the Management Committee. If the next meeting is not due to be held within ten working days, a special meeting should be requested. The Employee shall not be terminated during this waiting period, however the Employee can be suspended on full pay pending the meeting.”
Kuljak contends that Mr Riley’s conduct was “verbal harassment of other employees and clients” as specified in clause 16(e), and thus represents “gross industrial misconduct” for the purposes of the contract, so that there was no contractual obligation on Kuljak to follow the prescribed disciplinary procedure of issuing warnings.
Evidence was led at the hearing about some of the specific allegations against Mr Riley.
Problems Between Mr Riley and Ms Vanderklift
Ms Vanderklift says she had been together with Mr Riley for about a year before they were employed at Kuljak.
Ms Sketchley’s statement recounts her perception of the deterioration in Mr Riley and Ms Vanderklift’s working relationship. In her view, Mr Riley was ordering Ms Vanderklift around and requiring her to do work he was supposed to be doing. She says this led to constant arguing, which grew worse after their personal relationship ended. She says the relationship ended about two weeks after the LEAP project began, which I take to be in early July 1995.
Ms Vanderklift indicates that their relationship finally ended about a week before Mr Riley’s suspension, which would be early August 1995, though she says that it was “winding up”, with a series of break-ups and unsuccessful reconciliations, in the preceding period.
Mr Riley says that Ms Vanderklift’s male flatmate, who had previously shared accommodation with Mr Riley, would tell her stories about his and Mr Riley’s past exploits with women, so that Ms Vanderklift would “stew” on them, and bring them up at work the next day. He says that Ms Vanderklift would concede that she was bringing trouble to work, but claimed that she couldn’t help it.
Ms Vanderklift conceded in her evidence that the problems between them at work arose because both she and Mr Riley were bringing problems from home to work. She did not go into detail. She did not accept that it was only she who raised these personal issues at work.
Alleged Verbal Harassment of Program Participants
The attachment to the letter dated 17 August 1995 alleges that Mr Riley accused one of the young male participants in the LEAP program of having sexual intercourse with Ms Vanderklift after they had been away for some time getting fish and chips for lunch. This allegation reflects the terms of the written statements submitted by the named participant and another of the participants.
Ms Vanderklift says that she transcribed those statements from the participants without seeking to amend them. However, it is her recollection of the incident that Mr Riley’s comments were directed at her. Though they were speaking to each other at some distance from the participants, Mr Riley was speaking loudly so that they were able to hear him. Ms Vanderklift says she felt humiliated, and later raised it with Mr Patterson.
I note at this point that Mrs Carpenter specifically recalls a related incident where she overheard Mr Riley on the Kuljak van on the way home from work accusing Ms Vanderklift of “fucking” one of the LEAP project participants. Mrs Carpenter alleged more generally that Mr Riley accused Ms Vanderklift of this in relation to any man she had been in contact with.
Ms Vanderklift says she knew Mr Riley was not seriously suggesting that she had had sexual intercourse with the participant; he had preceded the comment by asking her whether they had gone to Fremantle (a very distant locality from Midland) to get the fish and chips, and asked afterward whether she was sleeping with all of the participants. She said he was a very jealous person and would take it to an extreme, to get a response from her.
Mr Riley recalls the incident occurring on another date. He was annoyed that Ms Vanderklift and the participant took three quarters of an hour to get the lunch, because he had convinced the rest of the participants to keep working while they were away, until the lunch arrived. He recalls asking them something like whether they had gone via Melbourne. He says the other participants were too far away to have heard anything. He denied accusing the participant of sleeping with Ms Vanderklift. He was not asked whether he accused Ms Vanderklift.
None of the participants gave evidence. Considering all the evidence, I accept Ms Vanderklift’s account of the incident. It is understandable that the young participants overhearing such an accusation levelled at Ms Vanderklift might take it literally, and would also regard it as an accusation levelled against the participant concerned.
Ms Vanderklift raised some more general concerns about the effect that the frequent arguments between them was having on the participants. The participants were young adolescents aged between fifteen and twenty years of age. All but one were male. Ms Vanderklift says that many of them came from difficult backgrounds, with parents who were estranged or from homes where there were often arguments or domestic violence. She didn’t want them to feel the same way at work as they did at home. She wanted them to feel safe. She believes that the effect of the arguments between herself and Mr Riley was to make work the same as home for many of the participants. She says that some of them said as much to her.
With regard to this particular incident between Mr Riley and Ms Vanderklift, the Court is not concerned in the context of this case with whether or not such exchanges between partners would be appropriate in a domestic context. The reason that such exchanges are subject to the Court’s scrutiny is because they took place between employees in an employment context and, more relevantly, within the hearing of the participants who are, in a sense, Kuljak’s clients. If Mr Riley was not aware or not concerned that the participants could overhear him, then he reasonably should have been.
Viewed in that context, Mr Riley’s conduct was highly inappropriate. I accept that Ms Vanderklift felt humiliated by the fact that Mr Riley’s comments to her were overheard, and I accept that some of the participants were likely to be angered and distressed by them.
Alleged Sexual Harassment of Fellow Employee
The letter dated 17 August 1995 alleges that on Tuesday 1 August 1995 Mr Riley approached Ms Vanderklift in the LEAP office when she was changing into work overalls behind a screen, asked her to show him her “knickers”, approached her when she refused, attempted to lift up her jumper and pushed her against a wall. He was told “Don’t, this is sexual harassment”, and responded “No it’s not babe”.
Ms Vanderklift confirmed in evidence that this account was accurate. Mr Riley denies pushing her up against the wall. I accept that Ms Vanderklift overbalanced against the wall in the course of their tussle. Moreover, Mr Riley adds that immediately before the incident, he had asked Ms Vanderklift to leave the room while he was changing, and that she had responded “no, the view is better in here”. He says that after he had changed, he was, as it were, requesting a reciprocal “view”. He says he had purchased the underwear for her the night before, as part of a selection of gifts. They had, he says, just reconciled. He adds that the incident happened when they were changing out of their work clothes having finished work, and not in working hours.
Unfortunately, none of this was not put to Ms Vanderklift by either party when she was called; Mr Riley had already given evidence.
However, Ms Vanderklift says that she was unhappy about including any reference to “sexual harassment” when she was asked by Mr Patterson to provide written statements about Mr Riley’s conduct. She was conscious of the fact that she and Mr Riley had been in a relationship, and that the line was “sort of fuzzy” about when it ended. She says that when they first started at Kuljak, the issue was raised as a joke, because behaviour which was acceptable between them given that they were in a relationship might otherwise be regarded as sexual harassment. She says that when she said “Don’t, this is sexual harassment”, she had no intention of filing a complaint of sexual harassment. She was annoyed with Mr Riley, and said it as a warning that she was getting angry.
However, it seems she did tell Mr Patterson about this incident at the time, though it was later that he asked her to write it down.
The written allegation, though brief, is in terms which would have been of concern to the committee. Whether or not it could properly have been characterised as sexual harassment, it may still have provoked concern for the apparent violence involved, among other things.
This is, in my view, one of the allegations in connection with which Mr Riley could be said to have been clearly prejudiced by the fact that the committee did not hear his defence.
I will also deal at this point with the allegation contained in the letter to Mr Riley dated 17 August 1995 that, on the day of the LEAP Coordinators’ Review meeting, Mr Riley propositioned a staff member of the W.A. Department of Training, was rejected and then accused her of avoiding him. This allegation is taken from the letter to Kuljak from Mr Fry of the Department of Training.
Mr Riley gave a plausible account of apparently innocuous events of which he says the allegations referred to in the letter are a distortion. No direct evidence was led by Kuljak in support of the allegation and I have therefore had no regard to it.
Alleged Verbal Harassment of Fellow Employees
Many of the allegations concern Mr Riley using abusive language toward Ms Vanderklift.
Ms Vanderklift says that Mr Riley was very jealous by nature. Many of the allegations appear to deal with expressions of this jealousy. The comments following Ms Vanderklift’s absence with the LEAP participant to get the fish and chips is one example.
Another is Mrs Carpenter’s allegation that, at morning tea on Wednesday 2 August 1995, she and Ms Vanderklift were discussing Ms Vanderklift’s wish to get a motorcycle licence. Ms Vanderklift talked about an instructor she had spoken to on the telephone, saying that she hoped he was as nice as he sounded. Mrs Carpenter says that Mr Riley interrupted Ms Vanderklift, saying:
“Why - what are you going to do, fuck him? What are you going to do, fuck all the instructors? You won’t get your licence by fucking them all. They don’t give you your licence anyway. You will have to go to the police station and fuck all of them to get your licence”.
Mr Riley denies that this conversation occurred. He also sought to prove that it didn’t occur on that date. However, Ms Vanderklift confirms that this incident happened, but believes it was Mrs Carpenter that raised it before the committee, and that Mrs Carpenter’s chief concern was Mr Riley’s use of bad language. Ms Vanderklift did not regard it as significant. I am satisfied, on the evidence before me, that the incident happened. It may be that Mr Riley does not recall it because he too did not think it significant at the time.
Mrs Carpenter gave general evidence that on several occasions she had heard Mr Riley abusing Ms Vanderklift in the office or on the Kuljak van to and from work, using words like “fucking bitch”, “fucking cunt”, “fucking rag”, or “I am going to fucking get you, bitch”.
Mr Riley does not deny that he swore at work, but says that the allegations against him take what he said out of context, and do not reflect his phrasing or his manner of speaking, or any provocation for what was said. He does not believe he said some of the things attributed to him, and says he might remember more if he had been given the context in which he is alleged to have said them.
Leaving aside for the moment the personally abusive nature of such comments, it seems clear that swearing in the Kuljak office was not uncommon. Indeed, Ms Vanderklift recalls that at about the time of Mr Riley’s suspension, it was accepted that perhaps things had “got out of hand”, and the staff made a conscious effort to refrain from swearing in the office. Mrs Carpenter, however, indicated that she found the use of bad language offensive in itself. The other witnesses, with the exception of Mr Riley, agree that they had never heard Mrs Carpenter swear and, taking into account her demeanour when she gave her evidence, I accept that Mrs Carpenter finds swearing offensive. There was no evidence, however, that she ever complained in general terms about the extent of swearing in the office. I will not, therefore, place any weight in the mere fact that Mr Riley swore when assessing whether there was a valid reason for his dismissal.
The fact that the swearing took the form of personal and apparently persistent abuse usually directed at Ms Vanderklift is however relevant.
The letter to Mr Riley dated 17 August 1995 alleges that on Wednesday 2 August 1995 while Ms Vanderklift was driving the Kuljak van Mr Riley called her a “slut, whore and harlot”. It is also alleges that Mr Riley attempted to change the gears of the van while Ms Vanderklift was driving. Ms Vanderklift verified this allegation. They were alone in the van at the time, having dropped the participants off at TAFE. They were arguing; she doesn’t recall what about.
Ms Vanderklift said in evidence that Mr Riley’s abusive language did not in itself bother her much. She says she was used to it, and that it was not a matter she complained to Mr Patterson about. It was usually other employees who complained about Mr Riley’s language.
The written statements prepared by Ms Vanderklift at the time, however, make repeated references to his verbal abuse toward her, including selected quotations. Certainly, this is often in the context of what might be characterised as complaints about his “management style”, demonstrating that he was difficult to work for and that his way of speaking was demanding and rude; she alleged for example that he once told her “If you just do as you are told, we won’t have a problem”.
Mr Riley’s personal abuse toward Ms Vanderklift is relevant in the context of their employment at Kuljak. Again, the Court offers no view as to what was appropriate within their domestic relationship. At work, however, I accept that it was placing Ms Vanderklift under pressure such that it affected her capacity to do her job. It also impacted badly upon program participants who overheard the abuse, and on other clients of Kuljak, as is apparent from allegations considered below.
Ms Vanderklift says that after she first advised Mr Riley that the relationship was over, he became extremely verbally abusive and was sometimes violent. She concludes one of her statements by saying she had been threatened physically by Mr Riley, and that she had been “hit etc” by him in the past. These allegations of violence and threatened violence are not specific and were not raised in the evidence. It is also not clear whether they were work-related. I have therefore had no regard to them.
There was evidence, however, about the allegation that Mr Riley attempted to change the gears of the Kuljak van while Ms Vanderklift was driving. She says this incident scared her. She elaborated in cross-examination:
“It scared you?‑‑‑But I had been in a relationship with Jackson for a long, long time and I know - I know what he's like. So although it scared me at the time, it scared me more because I was worried about the impact it would have at work rather than my own safety because I know that when it comes down to it Jackson won't actually have me killed or what have you, it was just that - just an intimidation thing to me which did make me angry, yes.
Were you afraid that what was happening in your personal life would actually get to a point where that violence would be - would occur in the workplace. Was that your fear?‑‑‑Yes”
Mr Riley denied attempting to change the gears. He alleged that the passenger’s seat belt was too tight to have permitted him to reach the gears, even if he had tried to. However, I accept Ms Vanderklift’s evidence that the incident occurred because, among other things:
· she was Mr Riley’s witness;
· Mr Riley gave evidence that there had been some rapprochement between them in recent times
· I formed the impression in the course of her evidence that she was making an effort to be fair to Mr Riley in her account of events; and
· her version of other incidents, where their evidence has differed, has been supported by other witnesses.
It might be argued that this incident should not be taken into account, because Mr Riley and Ms Vanderklift were alone. It is still of some relevance, however. At one level, it was the Kuljak van that might have been damaged had Mr Riley succeeded in his attempt. More profoundly, I accept the force of Ms Vanderklift’s response to the admittedly leading question quoted above. Mr Riley’s behaviour in the work context, even when they were alone, added to the stress she felt.
As I have noted before, it appears that Mr Riley’s behaviour on Monday 7 August 1995, which was the day Ms Vanderklift refused to pick him up for work, was lacking in self-control.
Mrs Carpenter alleged that she overheard Mr Riley abuse Ms Vanderklift that morning, telling her “I have just rung up to Shonn Fry and told him how you cunts are scheming behind my back”. Ms Vanderklift became upset and responded that she would not put up with the way he was treating her any more. An unsuccessful attempt was made to locate Mr Patterson, because Ms Vanderklift wished to go home.
Ms Vanderklift doesn’t dispute Mrs Carpenter’s account, but does not now recall the events of that morning. A note of events that morning signed by Ms Vanderklift at the time recounts a similar exchange, but does not include any reference to swearing. The note indicates that the reason Ms Vanderklift did not pick up Mr Riley that morning was because she felt it would be placing her in danger. Ms Vanderklift was asked to review the notes and when asked if they were “okay”, responded that they were.
In addition to finding Mr Riley’s language offensive, Mrs Carpenter was particularly upset that Mr Riley was conducting himself in this way when he knew that a client of Kuljak was present in the office. Mrs Carpenter was forced to apologise to the client for Mr Riley’s behaviour.
Mr Riley recalls making the call to Mr Fry. He says that that morning was when he first realised that “something was going on”. He saw the refusal to pick him up for work as part of a broader conspiracy against him by Mr Patterson and the other staff.
Ms Sketchley’s evidence was that on that day Mr Riley, on finding that an envelope addressed to him had been opened, walked from his office into the administration area and asked “Who fucking opened my mail?”. Ms Sketchley, who performed a clerical function, replied “Not me, Jackson.” She says Mr Riley knew that Mr Patterson had relieved her of the task of opening the mail. Ms Sketchley says she found Mr Riley’s behaviour abusive because of his attitude.
Mr Riley recalled the issue, but appeared to have difficulties recalling the particular incident. He says he was complaining about all his mail being opened and scrutinised, even when it was marked “Personal and Confidential”. He says that he was receiving correspondence in relation to the participants from, for example, the Department of Juvenile Justice which was intended for his eyes only. He did not believe Mr Patterson should be reading that correspondence. He concedes the incident may have occurred as described by Ms Sketchley.
The overall impression gained from the evidence was that Mr Riley was, in the fortnight before his suspension, increasingly emotionally disturbed and undisciplined in his behaviour. I conclude that he was in this state due to his distress at the breakdown of his relationship with Ms Vanderklift, and his frustration at the confusion surrounding his authority as LEAP Coordinator vis á vis Mr Patterson.
I accept that his unpredictable behaviour was causing Ms Vanderklift distress as she tried to go about her work, and was generating genuine concern for Ms Vanderklift on the part of their fellow employees.
In an effort to end this distress and concern, the employees responded to Mr Patterson’s request that they provide written statements and complaints.
Ms Vanderklift concluded her statement dated 8 August 1995 stating:
“I am in fear for not only my safety but also for those close to me, my family, animals and co-workers...”.
In her written statement, Ms Sketchley concluded:
“I am now in fear that Jackson will not only be verbally abusive but become physically abusive toward myself and the other staff at Kuljak.”
Mrs Carpenter also wrote in her statement that she was in fear for her safety at work because she felt that Mr Riley may retaliate against the staff at Kuljak.
Faced with these statements, the committee clearly felt obliged to respond.
Mr Patterson’s Motives
Ms Vanderklift made it clear in the course of her evidence that she was not happy with Mr Patterson’s handling of Mr Riley’s conduct. She says that for some time she discussed and complained about her problems with Mr Riley, but his behaviour was never “pulled up”. She felt Mr Patterson would just “write off” her complaints.
However, when Mr Patterson became upset with Mr Riley about the allegations of misapplication of funds, Mr Patterson then asked Ms Vanderklift to put all her complaints in writing. As Ms Vanderklift put it, “...it was not [a] concern to him until it concerned him”.
Mr Riley nominated Mr Patterson’s vendetta against him as the “real” reason for his dismissal, after Mr Riley “wouldn’t let him misappropriate the funds”. He added that he believed the other problem Mr Patterson had with him was that he was the only other male in the office. This does not seem to take into account Hayden Kenny and Timothy Dan’s employment; they may have been more junior employees.
Voicing Concerns About Misapplication of Funds
Mr Riley and Mr Patterson had had disputes for some time about the manner in which LEAP funding was being applied. However, in the week before his suspension, Mr Riley began to make broad claims about the propriety of Mr Patterson’s decisions.
Mrs Carpenter recalled in evidence that one lunch time, when she and Mr Riley were walking together to the supermarket to buy their lunch, Mr Riley said that he thought that Mr Patterson was taking money under the table. She responded that he should watch what he said. Her written statements did not raise this issue. While she was not asked to nominate a date for this event in her evidence, Mr McPhee’s letter dated 17 August 1995 suggests that it may have been on Thursday 3 August 1995.
Mr Riley says that he may have raised the question with Mrs Carpenter whether Mr Patterson was “getting his palms greased”. He denies talking about money “under the table”, saying that nobody used that terminology.
The letter to Mr Riley dated 17 August 1995 alleges that on Friday 4 August 1995 he made derogatory comments about the management of Kuljak by the manager and the committee at the LEAP Coordinators’ Review meeting. This allegation is based upon Mr Fry’s letter dated 17 August 1995.
Mr Riley says it was a meeting at which he was supposed to report on his program. He does not see how he can be said to be making derogatory comments by, for example, simply reporting that the participants were working on Mr Dillalo’s private property rather than the site they were supposed to be working on.
He says Mr Fry and the other Department of Training officer responded by telling him they would come out to Kuljak to see him and investigate. He says that all they were trying to do throughout the meeting was to shut him up, saying “We’ll deal with that later” so that none of the other Coordinators heard what he was saying. Mr Riley was keen to get his concerns on the record.
Mr Fry and the other officer were going through the agenda, step by step, asking each of the Coordinators to comment. Mr Riley would make his comment. They would respond that they would talk to him later. He says they then stopped asking him to comment, but he kept giving comments anyway. When it was suggested to him in cross-examination that his behaviour was causing disruption, Mr Riley responded that most of the other Coordinators came up to him during the breaks and told him to speak up, expressing interest in what he had to say and asking him why he was being silenced.
There was no evidence from the other attendees of the meeting.
On Friday 4 August 1995, after the LEAP Coordinators’ Review meeting, Mr Riley called Ms Vanderklift to report on it. She believes he was intoxicated at the time. Ms Vanderklift made notes of her telephone conversations with Mr Riley about these matters on Sunday 6 August 1995 after Mr Patterson requested that she do so. She verified the accuracy of the notes in her evidence.
In the course of her telephone conversation with Mr Riley on Friday 4 August 1995 and another, more coherent, conversation the next day, Mr Riley told her that:
· Mr Patterson had been doing dodgy deals with Mr Dillalo to use the participants as “niggers” [meaning “slaves”];
· “Kuljak is going down” and Mr Patterson and the committee were “going down the hardest”;
· the Department of Training had confirmed that Mr Riley was to be in charge of the LEAP project and that Mr Patterson was not to interfere;
· Mr Riley would “pull [Ms Vanderklift] down” with everyone else if she did not back him up;
· Mr Riley had told the Department of Training “everything”, including:
¨concerns about the use of LEAP funds to:
à pay a book-keeper for Kuljak who was allegedly not doing LEAP work; and
à purchase an allegedly unsuitable and unroadworthy van;
¨Mr Patterson requiring that the participants work off site [at Mr Dillalo’s premises];
¨Mr Dillalo not “following through with [his side of] the agreement”;
¨Mr Patterson’s “taking over” the program, including interfering with the hiring and firing of participants, so that Mr Riley was left with no power to do anything himself; and that
¨the [Kuljak] committee did not meet regularly.
Ms Vanderklift now says that the context in which the statements were made was that Mr Riley wouldn’t be surprised to find out that Mr Patterson was doing dodgy deals with Mr Dillalo, and that she would go down with Kuljak if she wasn’t careful. She believes Mr Riley was effectively asking whether she was going to stand behind him as Coordinator of the project or behind Mr Patterson.
Mr Riley was not taken through Ms Vanderklift’s notes in detail, but did not dispute their accuracy in the course of her re-examination.
Ms Sketchley alleges that on the afternoon of Monday 7 August 1995, Mr Riley stated to her “Greg [Patterson] is making cash deals with Albert Dillalo”. Being aware from the meeting the day before of Mr Patterson’s distress at such statements, she told Mr Riley he had better be careful about what he said. Mr Riley then stated that he “thought” Greg is taking cash deals off Albert Dillalo.
Mr Riley was suspended before Mr Fry or the Department of Training commenced any investigation into the matters raised by Mr Riley at the LEAP Coordinators’ Review meeting.
Kuljak led some evidence from Mr McPhee dealing with most of the matters which Mr Riley believed to be misapplications of LEAP funds. While I do not propose to detail this evidence, I do not wish to leave the impression that I have concluded that Mr Riley’s claims had substance. As I have indicated earlier, it has not been necessary for me to determine whether Mr Riley’s concerns where well founded. Given that the evidence before me on the issue is less than comprehensive it is, in my view, undesirable that I express a view on the matter.
Valid Reason: Conclusion
I accept that Mr Patterson’s agitation at this aspect of Mr Riley’s behaviour at least partly motivated him to raise the staff’s concerns about Mr Riley’s other behaviour with Mr McPhee and, later, with the committee members.
However, the decision to terminate Mr Riley’s employment was not taken by Mr Patterson. The decision was taken by the committee or, perhaps more accurately, by Mr McPhee in consultation with the committee. I note at this point that there was no contention that Kuljak had breached its rules in dismissing Mr Riley. Kuljak’s constitution was not in evidence, and in the absence of evidence to the contrary, I have accepted that Mr McPhee acted within his authority.
In my view, Mr Patterson’s motives in bringing the material before the committee are not relevant. Mr McPhee and the committee either had a valid reason to dismiss Mr Riley or they did not. The reasons why those matters came to their attention is beside the point. The committee’s obligation to give Mr Riley an opportunity to defend himself would usually give him an opportunity to address such matters.
The issues placed before the committee, in the form of the written statements circulated by Mr McPhee and the oral statements made by some of the staff to some of the committee on Wednesday 9 August 1995, chiefly related to those aspects of Mr Riley’s recent behaviour which Kuljak characterises as “verbal harassment of other employees and clients”.
I am satisfied on the evidence before me, which I have detailed above, that Mr Riley’s conduct to Ms Vanderklift and other staff at Kuljak in the fortnight before his suspension was a valid reason for the termination of his employment.
While Mr Riley’s state of mind at the time can be explained by the circumstances in which he found himself, he was obliged under the terms of his employment not to verbally harass his fellow employees, particularly in the presence of clients. It was a reasonable obligation for Kuljak to have imposed on Mr Riley, and he fell far short of it, particularly in his dealings with Ms Vanderklift. His distress at the breakdown of their relationship, and his frustration at his dealings with Mr Patterson, while explaining his conduct, does not excuse it.
The term “valid reason” is increasingly regarded as embracing concepts of justice: Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370 per Lee J and reasonableness: Wadey v YMCA Canberra (unreported, IRCA No. 542 of 1996, Moore J, 12 November 1996); see also generally Westen v Union des Assurances de Paris (unreported, IRCA No. 660 of 1996, Madgwick J, 17 December 1996).
I have considered whether, notwithstanding the terms of the contract, Kuljak’s failure to formally warn Mr Riley about his behaviour might have rendered invalid what would otherwise have been a valid reason for termination. On balance I have decided that it did not.
Mr Riley had been advised by Mr Patterson, at a meeting with Ms Vanderklift and him called specifically for that purpose, that problems arising between him and Ms Vanderklift at work were unacceptable. Most of the examples of verbal harassment raised before the committee post-dated that meeting. Mr Riley sought to characterise his conduct as reactions to harassment from Ms Vanderklift. I do not accept this proposition, which was not supported by any of the other witnesses. If Ms Vanderklift was not completely blameless, I do not accept that her conduct justified Mr Riley’s conduct toward her and others within Kuljak.
I have also taken into account the nature of Mr Riley’s conduct and the fact that verbal harassment of fellow employees was clearly prohibited in Mr Riley’s contract of employment. The issuing of a warning has the effect of “drawing a line” and making clear the standards of performance required of an employee. I find it difficult to accept that Mr Riley would have been in any doubt that his conduct toward Ms Vanderklift at work was such that Kuljak would regard itself entitled to dismiss him. The standard expected of him was already sufficiently clear in that respect.
I have also considered the possibility that Mr Riley’s lack of self-discipline in his dealings toward Ms Vanderklift and others was potentially a temporary problem, and that the committee should have considered other solutions, for example by tackling the issues underlying his behaviour.
The committee could, for example, have sought to finally resolve the issue of the relative authority of Mr Riley and Mr Patterson in connection with the LEAP project in a manner that was clear, acceptable to them both and capable of practical application.
It could also have sought to assist Mr Riley and Ms Vanderklift, through counselling or training, to devise ways of working together so that, for example, Ms Vanderklift felt she could rely on enforceable limits upon Mr Riley’s conduct. I am mindful that, to the extent that Mr Riley’s behaviour was explained by the breakdown of his relationship with Ms Vanderklift, Kuljak should have been aware that such a problem might potentially arise at the time it employed Ms Vanderklift.
Mr McPhee and the committee could have adopted these strategies, which may or may not have been successful, instead of dismissing Mr Riley. They chose not to do so. Was that failure so unreasonable or so unjust as to render the reason for the termination of Mr Riley’s employment invalid?
In the circumstances, I have concluded that it was not. Those circumstances include the fact that Mr Riley was not a long-standing employee, that he was employed for the life of a particular program which was just more than six months and that the funding for that program was limited. Solutions which might be appropriate in the context long-standing, open-ended employment relationship were less appropriate in these circumstances.
While I have stated that Mr Patterson’s motives for bringing the staff’s complaints of verbal harassment before the committee were irrelevant, it is the case that Mr Patterson and some of the other staff also drew the committee’s attention to Mr Riley’s suggestions to staff and possibly to the Department of Training that Mr Patterson was misapplying LEAP funds and might be entering into improper deals with Mr Dillalo for personal gain.
Section 170DF (1) (e) of the Act provides that an employer must not terminate an employee’s employment for reasons including the filing of a complaint against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities.
Mr Riley did not contend that Section 170DF had been breached and it may not apply to these facts. However, it is arguable that if Mr McPhee and the committee decided to dismiss Mr Riley in part because he was alleging that LEAP funds had been misapplied, then that would render the reason for terminating him invalid.
On the other hand, to the extent that Mr Riley’s suggestions that Mr Patterson might be entering into improper deals with Mr Dillalo for personal gain were speculative and defamatory, they may well form part of a valid reason for Mr Riley’s dismissal.
It is impossible to tell on the evidence before me what emphasis if any was placed by Mr McPhee and the committee on Mr Riley’s making of allegations against Mr Patterson when it was decided that he should be dismissed. The letter of termination is unhelpful in this regard.
Having reviewed all the evidence as to the matters considered by the committee, I am satisfied, on balance, that Mr McPhee and the committee would have proceeded to dismiss Mr Riley on the basis of the other complaints if the complaints about Mr Riley’s allegations about Mr Patterson had not been brought to their attention.
In conclusion, I am satisfied that Kuljak has met the onus upon it to prove that there was a valid reason for the termination of Mr Riley’s employment connected with his conduct.
Whether the Applicant was Given the Opportunity to Defend Himself against the Allegation
Section 170DC of the Act provides that:
“An employer must not terminate an employee’s employment for reasons related to the employee’s conduct or performance unless:
(a)the employee has been given the opportunity to defend himself or herself against the allegations made; or
(b)the employer could not reasonably be expected to give the employee that opportunity.”
The appropriateness of Mr McPhee’s handling of the allegations against Mr Riley was, in my view, beyond criticism up until the events of Tuesday 22 August 1995. While it was unfortunate that Mr Riley was not present at the meeting on Wednesday 9 August 1995, his apparent failure to advise them earlier of his intention to remain absent from work that day at least partially contributed to his missing the scheduled meeting. In any event, the committee members decided that he should be given the opportunity to respond before any final decision was made. In my view the decision to suspend him on full pay in the interim cannot, in those circumstances, be a cause for complaint.
However, the fact that Mr McPhee and the committee did not hear from Mr Riley at the scheduled meeting on 22 August 1995 before the decision was taken to dismiss him is a matter of greater concern.
Kuljak contend that Mr Riley had the opportunity to defend himself at the meeting scheduled for 22 August 1995, but that he chose not to avail himself of it. I do not accept that this proposition is correct in any real sense.
Given the discrepancies in the evidence, it is unhelpful to have regard to what Mr Riley says was his actual belief at the time.
Turning instead to Mr McPhee’s understanding of the position, he was advised by Ms Jackamarra that Mr Riley could not attend because Ms Jackamarra had to be somewhere else. That conversation was left on the basis that Mr McPhee would check with the committee whether the meeting could be delayed for a week.
By the time Mr McPhee next spoke with Ms Jackamarra, he had taken the decision to dismiss Mr Riley. In my view this was premature.
Mr McPhee should have advised Mr Riley, through Ms Jackamarra if appropriate, that Kuljak was not prepared to delay the meeting and then given him the opportunity to attend alone if he wished. Given:
· the difficulty in scheduling such a meeting with a voluntary committee;
· the real practical pressure to resolve the issue quickly for the sake of the LEAP program; and
· the fact that Ms Jackamarra’s inability to attend was no fault of Kuljak’s,
I would have held that giving Mr Riley the opportunity to attend the meeting without his representative would have satisfied the requirements imposed on Kuljak by Section 170DC, given that the provision should be applied in a practical, commonsense way.
Similarly, it would not have been impractical nor contrary to commonsense for Mr McPhee to give Mr Riley the option of attending the scheduled meeting alone when it became clear that the committee was not prepared to accept a further delay. I therefore find that Mr McPhee’s failure to do so denied Mr Riley the opportunity to defend himself against the allegations made against him, and that Kuljak has therefore breached Section 170DC of the Act.
Compensation
Mr Riley does not seek reinstatement. In assessing the compensation that is appropriate, the Court will have regard to what is reasonable in the circumstances and will look at what would have been likely to occur had the Act not been contravened.
In my view there is more than a notional prospect that, had Mr Riley had the opportunity to address the committee, it might have chosen options other than dismissal to resolve the problems.
The written statements that were circulated to the committee, while generally not inaccurate, often do not convey the full flavour of the incidents nor the context in which they took place. Mr Riley did not have the opportunity to explain to the committee the background to his recent undisciplined behaviour, to raise with them the issues which were distressing him nor to apologise, give undertakings or suggest alternatives to dismissal.
While I have held that Mr Riley’s conduct amounted to a valid reason for his dismissal, it is often the case that an employer with a valid reason to dismiss an employee chooses not to dismiss but instead imposes a lesser sanction.
Mr Riley’s contract was due to expire on 22 December 1995. On his dismissal, he was paid up to 6 September, having received two weeks pay in lieu of notice. While it was possible that Kuljak might have secured another program and Mr Riley’s employment might therefore have continued, such a proposition was purely speculative. I have therefore assessed Mr Riley’s loss as a result of his termination, on the evidence before me, at fifteen weeks’ wages. As his fortnightly gross wage was $1120.00, this amounts to $8,400.
While, as I have indicated, Kuljak may have reached a different decision had Mr Riley been given the opportunity to defend himself, it is also possible that they would have proceeded to dismiss him in any event. I have estimated that there was a 50% probability that Mr Riley would not have been dismissed if Mr McPhee had given him the opportunity to attend the meeting on 22 August 1995 without Ms Jackamarra. While I recognise that such an estimate is somewhat arbitrary, the calculation of compensation is an inexact science.
To allow for that contingency, I would award compensation of $4,200.00, which is half of the amount Mr Riley would have earned had he served out his contract with Kuljak.
There is however another contingency which must be allowed for. There was evidence that soon after Mr Riley’s dismissal, the Department of Training withdrew Kuljak’s funding for the LEAP project, and transferred the participants to complete the program with another organisation. Ms Vanderklift moved with the program, and began working for the other organisation. Mr Riley alleges this was done by allies of Mr Patterson at the Department of Training so that he could not be reinstated. There was no evidence of this. Given the dysfunctional nature of Mr Riley and Ms Vanderklift’s working relationship and the subsequent problems faced by Ms Vanderklift doing Mr Riley’s job as well while he was on suspension, it is not in my view necessary to resort to conspiracy theories to explain the Department’s decision. It would no doubt have been very possible that the program would have been de-funded in any event had Mr Riley not been dismissed. Alternatively, it might not have been.
In my view it is appropriate, given that possibility, to discount the amounted awarded to Mr Riley in compensation by a further 50%, to $2,100.00.
Conclusion
Accordingly, the Court declares that the termination of Mr Riley’s employment by Kuljak contravened section 170DC of the Act, and will order that Kuljak pay to Mr Riley within 28 days the sum of $2,100.00 as compensation pursuant to section 170EE(2) of the Act, subject to the usual terms as to taxation.
I certify that this and the preceding twenty five (25) pages
are a true copy of the reasons for decision of
Judicial Registrar R.D. Farrell.Associate:
Dated: 21 November 1997
APPEARANCES
The applicant represented himself.
Representative for the respondent: Ms D. Hoschke
Kuljak Aboriginal Employment, Training and Cultural Centre
Dates of Hearing: 15 & 16 May 1996
Date of Decision: 24 November 1997
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