Rozman v Urapuntja Council Aboriginal Corporation

[1997] IRCA 12

DECISION NO:12/97

C A T C H W O R D S

INDUSTRIAL LAW -  TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - ABORIGINAL COMMUNITY - whether applicant was in fact employed by respondent - authority to employ.

Workplace Relations Act 1996 (Cth) (formerly Industrial Relations Act 1988 (Cth)) Ss 170DE(1), 170EA.

The State of Victoria v The Commonwealth (1996) 138 ALR 129.

Vesna ROZMAN -v- URAPUNTJA COUNCIL ABORIGINAL CORPORATION 
DI 1209 of 1995

BEFORE:        R. D. FARRELL JR
PLACE:           PERTH (Heard in Alice Springs)
DATE:              29 January 1997

IN THE INDUSTRIAL RELATIONS     )
COURT OF AUSTRALIA  )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )          

No. DI 1209 of 1995

BETWEEN:  

Vesna ROZMAN
  Applicant

AND:  

URAPUNTJA COUNCIL ABORIGINAL CORPORATION
  Respondent

MINUTE OF ORDERS

BEFORE:                 R. D. FARRELL JR

PLACE:  PERTH (Heard in Alice Springs)

DATE:  29 January 1997

THE COURT ORDERS THAT:

1.          The application is dismissed.

Note:    Settlement and entry of Orders is dealt with by Order 36 of the  Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY

DI 1209 of 1995

BETWEEN:

Vesna ROZMAN
Applicant

AND:

URAPUNTJA COUNCIL ABORIGINAL CORPORATION
Respondent

REASONS FOR DECISION

29 January 1997  R. D. FARRELL JR

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, Vesna Rozman, by the respondent, the Urapuntja Council Aboriginal Corporation (“the Council”). It is agreed that reinstatement is impracticable.

The respondent contends that there was no employment relationship in existence between Ms Rozman and the Council at the relevant time or, alternatively, that even had there been an employment relationship in existence, then the events relied upon by the applicant did not constitute a termination at the initiative of the employer. The applicant bears the onus of establishing that there was such an employment relationship, and that it was terminated at the initiative of the employer.

The applicant contends that, if that onus is met and the Court finds that she was employed and that her employment was terminated by the respondent, then that termination was in breach of Section 170DE of the Act. Counsel for the applicant framed this submission by reference to Section 170DE(2), which is unfortunate given the High Court’s subsequent finding in Victoria v Commonwealth (1996) 138 ALR 129 that Section 170DE(2) was unconstitutional and thus invalid. I did not understand the applicant to be conceding, however, that the termination was for a valid reason, as is still required by Section 170DE(1). The respondent made no submissions on this issue and did not contend that any termination would not have been in breach of Section 170DE.

Findings of Fact

The following account of the events the subject of these proceedings represents my findings of fact, having considered all the evidence, both oral and documentary, and having resolved, where necessary, the conflicts in that evidence.

The Council is an incorporated entity with a common seal. It is concerned with furthering the welfare of an aboriginal community (“the Community”) spread over a number of out-stations but centred on a locality known as “Utopia”, located about 175 kilometres north of Alice Springs. The Council is significantly reliant on funding from the Aboriginal and Torres Strait Islanders Commission (“ATSIC”). Over the last twenty years, the women of the Community have gained some renown in the art market for using Indonesian batik dying techniques to create fabrics with traditional aboriginal designs.

Vesna Rozman had been employed by the Council before. She was Coordinator of its Women’s Centre in the period from 3 March 1994 to 7 December 1994. During that time, in addition to helping to teach the women English and various western skills, Ms Rozman helped them with their artwork by providing child-care, ordering necessary supplies and helping with the complicated process of mixing dyes. In about October 1994, she accompanied some of the women to Indonesia to further their knowledge of batik techniques.

She had moved from Adelaide with her husband, David Taylor, and their then two year old son, Daniel, to live at Utopia when she took the job.

During this period of employment she came into conflict with Allan Glaetzer, a development relevant to later events. Allan Glaetzer had been marketing the batik made by the women of the community to gallery owners in Alice Springs. While he had no formal role in the Community he was on good terms with many of the women. Vesna Rozman came to believe that the women were not getting a sufficient return for the batik marketed by Allan Glaetzer. She says some of the women had complained to her to that effect. She therefore took a greater role in marketing the batik produced as a result of the Women’s Centre activities, on the basis that the women would receive all of the profit from the sales of batik to the galleries, after the cost of the fabric and the dyes had been deducted. Ms Rozman’s activities led Allan Glaetzer to complain to the then Administrator of the Council. There is no evidence of any response to these complaints.

Allan Glaetzer did not give evidence in these proceedings. It is not necessary for me to make findings as to the truth of Ms Rozman’s claims about his activities. It is sufficient for the purposes of these proceedings to find that there was conflict between them, whatever its cause or justification.

Vesna Rozman resigned in December 1994, chiefly because David Taylor was unhappy with his inability to obtain work within the Community. Before they left the Community, they had applied to take over the management of the community store at Utopia; the previous manager had decided to leave. Their application was supported by the out-going President of the Council, Cowboy Apwerl. The application was considered, among other matters, at an Ordinary Meeting of the Council held on 8 December 1994.

It was accepted at the meeting that Yanaga Stores, a company the Council had contracted with to manage the store for the Community, had the right under the relevant contractual arrangements to recruit the Store Managers. Yanaga Stores had selected another couple, whom they considered to be better qualified to run the store.

Vesna Rozman and David Taylor were advised of the outcome at the meeting, and they left the Community a week later on good terms. The meeting had carried a resolution that:

“The Council thanked David and Vesna for the contribution that they had made to the community over the past twelve months, wished them every success for the future and assured them that they were always welcome to visit and return to Utopia in the future if the opportunity arises for them to return.”

There is no record in the Council Minutes about the recruitment of a replacement for Vesna Rozman until the meeting of 1 March 1995, some three months later. At that meeting, the Council was advised that the Family Resource Centre was able to assist in the recruitment, and it was resolved that they do so.

There are indications, however, that that option had been raised and explored earlier by Ross Westcott, an adviser to the Council. In a facsimile to ATSIC dated 21 February 1995 he claimed that the Family Resource Centre’s recruitment role had been endorsed by the Council. Elizabeth Logan, an officer of ATSIC, notes in a memorandum that when she was first advised that Vesna Rozman had left, in 1994, she was told that the Family Resource Centre would be involved in recruiting Ms Rozman’s replacement. Gloria Pitjara, one of the senior women of the Community, spoke in her evidence, of having already “written a letter” to get a replacement for Vesna Rozman before Ms Rozman returned to Utopia.

After leaving Utopia, Vesna Rozman and her family travelled down to Adelaide for Christmas. They took three young girls from the Community with them for a holiday; the girls later returned to the Community by bus. The family then travelled to Cairns for a while; David Taylor expected that it would be a “working holiday”, but the expected employment was not available and the climate was unfavourable. They returned to Alice Springs, arriving in early February.

They applied for a position in another aboriginal community but, because of a lack of air-conditioning, decided not to take it, their son being susceptible to heat rash.

They then happened to meet some women from the Utopia community in Alice Springs. Vesna Rozman was invited by those women to return and work for the Community. They said they would try to get David Taylor a job too. She agreed to think about it, and said she would visit Utopia to discuss the possibility of returning to work.

She consulted with Ross Westcott, whom she understood to be the Administrator employed by the Council, though he was based in Alice Springs. In fact, Mr Westcott’s status is a matter of dispute, which I consider in more detail below. Mr Westcott was apparently not available to give evidence. It is sufficient to note at this point that I find that he was not the Administrator of the Council at this time, though members of the Community referred to him as the Administrator, and treated him as if he held that position.

Ross Westcott was supportive, and advised her to have a formal meeting when she visited the Community. If the meeting agreed to employ her, then she should come back to Alice Springs and he would “get the ball rolling”.

A few days later, on about Sunday 5 February 1995, Vesna Rozman and her family travelled by car to visit Utopia. Some of the women took the opportunity to get a ride back with them. One of the women asked them to stop off at Allan Glaetzer’s house along the way. Allan Glaetzer learned at that time of Vesna Rozman’s proposed re-employment.

On arriving at Utopia, Vesna Rozman met up with many members of the Community at Cowboy Apwerl’s house. She told the women that she wanted to have a meeting the next day to discuss her coming back to work at the Women’s Centre. There is a dispute as to whether Gloria Pitjara, the Women’s President, was present at Cowboy Apwerl’s house at the time. Vesna Rozman recalls she was present but said she was going to Alice Springs the next day to shop, so couldn’t attend the meeting. Gloria Pitjara denies she was there, saying that she was at the Mosquito Bore out-station at the time. On balance I accept that Gloria Pitjara was there, and registered no objection to Vesna Rozman’s return. I do so primarily because, soon after, Vesna Rozman included Gloria Pitjara’ name among those she nominated in a letter to ATSIC as having approved her return to the Women’s Centre. I doubt she would have risked doing so at that time, had there been no positive contact with Gloria Pitjara since her return.

A meeting took place at about 10:00 am the next day, Monday 6 February 1995. It was reasonably well attended with most of the women in the Community there. The women were positive about her return, with none expressing any disagreement. Vesna Rozman then told the women there was a lot of “whitefella paperwork” to be done in relation to her return and that she would deal with it. By that, she meant that she had to inform Ross Westcott and ATSIC.

On her return to Alice Springs she reported to Ross Westcott about the visit. He was again supportive of her return, and seemed anxious for her to start. He told her to write a letter to Elizabeth Logan, the relevant officer at ATSIC, advising her of her re-employment. They then discussed the need for funding to be released from ATSIC. David Taylor hoped he might also get a grant to work at the Community as a result of a Community Development Plan Ross Westcott was preparing for the Community.

Ross Westcott wrote a covering letter for Vesna Rozman’s letter to Elizabeth Logan. The covering letter is on the Council’s letterhead and Ross Westcott purports to sign it “For the Council”. In that letter, he describes the purpose of the correspondence as the submission of Vesna Rozman’s reappointment for ATSIC endorsement in line with grant guidelines.

Vesna Rozman’s letter, dated Tuesday 7 February 1995, tells of her former employment, her return to Alice Springs after her holiday and the ladies’ invitation to return the position, prompting her visit to the Community. She claims that eleven ladies “who have the highest status”, named in the letter, all approved her returning to the Women’s Centre. She requested that ATSIC reinstate her, and approve her return.

Elizabeth Logan, on reading the letter, noted at the bottom of it on 13 February 1995:

“Not for us to do - no letter or signature from women on or attached to letter.”

Vesna Rozman telephoned Elizabeth Logan concerning the letter. Elizabeth Logan made it clear that it was not for her to approve or disapprove Ms Rozman’s employment. They also discussed the available ATSIC funding for the Women’s Centre. Elizabeth Logan advised Ms Rozman to see the Council’s accountant Rohan Richards.

Vesna Rozman and her family then moved from Alice Springs to Utopia to live on Monday 13 February 1995, moving back into the house they had lived in before. The women arranged for the mechanic, who had moved into the house in their absence, to vacate the house to allow her to move back. She was provided with the keys to the Women’s Centre by the women and began working there, cleaning and cooking.

She did a stock-take of the art supplies, which had been depleted in her absence, and made arrangements to replenish them. In the meantime she was unable to organise any art activities.

On 13 February, $20,000 was released by ATSIC from the 1994/95 grants for the Council’s Women’s Centre Operations. This meant outstanding accounts and her wages could be paid. Both Rohan Richards and Elizabeth Logan say that the $20,000 payment was part of the routine funds for operation of the Women’s Centre program, released as a matter of course. While I accept that Vesna Rozman’s return was not the reason for the release, it seems likely that it may have affected the timing of the release.

Rohan Richards, the Council’s accountant, recalls being called by ATSIC, presumably by Elizabeth Logan, and told that Vesna Rozman had been appointed. His reaction was one of surprise.

On 16 February 1995, Ross Westcott wrote to Rohan Richards, claiming that:

“Vesna resumed on Monday 13 February 1995, in line with ATSIC’s approval and should be paid accordingly...”

Between 16 and 17 February 1995, Elizabeth Logan received a visit from Allan Glaetzer complaining about Vesna Rozman’s return to the Community. She disregarded that complaint. However, soon after, Gloria Pitjara, one of the women nominated by Vesna Rozman as supporting her return, also visited her office at ATSIC to complain about Vesna Rozman’s taking on of the position. Elizabeth Logan regarded Gloria Pitjara’s complaint as raising a potential problem and decided to go out to Utopia, arranging to attend a meeting there at 10:00 am on Thursday 23 February 1995.

On about Monday, 20 February, 1995 Vesna Rozman went into Alice Springs to see the accountant, Rohan Richards, about ordering art materials for the Women’s Centre. He asked her what she was doing in the Community. When told she was employed, he enquired whether she had proof of that. She told him that she understood that a cheque was coming from Elizabeth Logan at ATSIC to cover her employment. This was a reference to the grant release, which had already proceeded.

On Tuesday, 21 February 1995, Vesna Rozman received a message to call Elizabeth Logan. When she did so, Elizabeth Logan told her that there was a problem, because doubts had been raised as to whether Vesna Rozman had been properly employed. Elizabeth Logan advised that she was coming out to Utopia on Thursday 23 February 1995 to “sort it out”, by clarifying the situation and hearing from the Council members as to what they wanted.

When Vesna Rozman spoke to some of the women soon after, they suggested that Gloria Pitjara might be the source of the problem. Ms Rozman resolved to talk that day directly with Gloria Pitjara, who lived on an out-station half an hour’s drive from Utopia.

As Vesna Rozman and David Taylor were leaving Utopia to see Gloria Pitjara, they saw Allan Glaetzer in the Council Room with the door locked, apparently going through a filing cabinet.

Vesna Rozman and David Taylor became involved in a physical altercation with Allan Glaetzer. They say the altercation was initiated by Allan Glaetzer. They say that, in the course of the altercation, Vesna Rozman was struck twice in the presence of her child and that David Taylor was quite badly injured by Allan Glaetzer. Again, I am mindful that Mr Glaetzer did not give evidence and that there were no independent witnesses to the altercation. For the purposes of this hearing, I have accepted, in the absence of evidence to the contrary, that the altercation occurred in the manner described by Vesna Rozman and David Taylor. There is no doubt that David Taylor sustained bruises and abrasions.

They returned to their house. After tending to David Taylor’s injuries, Vesna Rozman drove to the Utopia store to obtain a cold drink for him. There, she was confronted by Gloria Pitjara, who told her to leave the Community. Ms Rozman returned to her house.

She rang Ross Westcott and told him what had happened. While he was supportive of her, he advised her that, in the circumstances, it was in their best interests to leave the Community if she did not have the support of all the women.

David Taylor also rang Elizabeth Logan that day. He told her they were leaving; they were fed up and had had enough - he didn’t go into the reasons. Elizabeth Logan says he sounded very upset.

As a result of this telephone call, Elizabeth Logan concluded that there was no point in travelling to Utopia for the Thursday meeting.

Vesna Rozman and her family left the Community almost immediately, within a day or two. Vesna Rozman was paid $761.52 for 45.6 hours’ work in the fortnight ending 1 March 1995, with $50.00 deducted for rent. There is no evidence of any further direct contact between the family and any of the Community members. When asked in evidence why she did not wait until the meeting proposed by Elizabeth Logan on Thursday 23 March 1995 before deciding to leave, Vesna Rozman replied that she was “too upset to care”.

By then, it had become clear that their son was not merely upset, but had become ill. They returned to Alice Springs, where he was hospitalised. They stayed in a motel. When he was well enough to leave hospital, they returned to Adelaide.

There is no doubt that Vesna Rozman found the events surrounding their departure from the Community and ultimate return to Adelaide stressful and distressing. She describes it as a ”nightmare”.

General Observations

The issues to be resolved in this matter turn upon the level of formality required of and by the Urapuntja Council Aboriginal Corporation in order bind the Council. What acts, performed by whom, have the effect of imposing legal obligations, or indeed conferring legal rights, upon the Council?

Specifically, the respondent argued that the formal steps required for the Council to enter into an employment relationship had not been taken when Vesna Rozman returned to the Community, and that she was therefore never re-employed.

Ms Rozman, in making this application, claims entitlements which she says arise under the law as a result of these events. The “law” she relies upon is the statute law of Australia, in particular the Workplace Relations Act 1996, and the common law of employment. The Council relies upon that same law in defending the claim.

I make this perhaps obvious point because the Community is clearly a traditional aboriginal community. Aboriginal languages within the Arandic language groups are usually spoken within the community, and the evidence of several of the witnesses from the Community was taken with the assistance of an interpreter.

While there was no direct evidence on the matter, it is likely that the legal structure and formalities of the Council have been laid over pre-existing traditional relationships and customs, which have a significance within the Community independent of the law. Counsel for Ms Rozman has not sought to argue that any such traditional relationships or customs have any special relevance to her claim. I am therefore concerned here with the “law”, as it applies to the Council.

Finally, with regard to issues of credibility, I have had to resolve some conflicts in the oral evidence. This has required me to consider the credibility of the witnesses, many of whom are members of the Community, in deciding which evidence to prefer on particular matters.

Such conclusions as I have reached on the credibility of the witnesses from the Community have been reached cautiously. Where I have discounted the evidence of such witnesses, I have done so after making allowances for the Court’s limited awareness of their culture, and for the effect their cultural background may have had both on their demeanour and on the content of their evidence.

Whether Ms Rozman Was Re-employed by the Council

Vesna Rozman bears the onus of establishing that the Council entered into a binding employment relationship with her in February 1995.

I accept that most of the women of the Community wanted Ms Rozman to return to work at the Women’s Centre. I accept that she returned to live at Utopia as a result of the invitation of some of those women. The women played a role in arranging for her old house to be vacated so she could move in, in giving her access to the Women’s Centre and in giving her the keys to the Centre’s motor vehicle.

It was apparent that the elder men of the Community believe that the women should have waited for their approval before doing all this. An Ordinary Meeting of the Council would have been the obvious occasion for this to happen.

Johnny Skinner, the then President and an elder of the Community, agreed in the course of his evidence that he went crook on all the women for not listening to him, adding:

“They should listen to us mob, they should come and ask to talk to the leader... We told them later they done the wrong thing.”

It appears that the women accept that view. They seemed embarrassed to have acted in a way that has provoked the men’s disapproval. I formed the view that their embarrassment led some of them to be reticent in their evidence, in that there was a reluctance to admit the extent of their welcome and invitations to Vesna Rozman. It has also led me to discount the claims of some of the women that they told Ms Rozman she would have to wait until a Council Meeting, after some of the community had returned from another meeting at Adelaide Bore, before a decision could be made on her employment. I accept that, at the time, they wanted her to start working as soon as possible, though now they accept that they should have waited for a Council meeting.

As is clear from the account set out above, Ross Westcott also demonstrably supported Vesna Rozman’s return to the position.

If I were satisfied that the communication of an informal consensus of the women were enough to establish an employment relationship binding on the Council, then Vesna Rozman might be held to have been employed in February 1995.

If I were satisfied that a resolution of a formal meeting of only the women members of the Council were required, then the meeting organised by Vesna Rozman which took place on Monday 6 February 1995 might have sufficed (though on balance I think it would not, given that it was called by Ms Rozman herself with minimal notice).

If I were satisfied that Ross Westcott was empowered by the Council to employ people, then Vesna Rozman might be held to have been employed.

I reiterate that the onus is on the applicant to satisfy me that it is more probable than not that one or other or all of these events were sufficient to meet such formal requirements as were necessary to bind the Council.

It is surprising, in the circumstances, that no document in the nature of a constitution or an articles of association was tendered to establish the provisions governing the running of the Council.

I have therefore had to rely upon the oral evidence and upon inferences drawn from minutes of meetings and other documents to make findings concerning management of the Council.

Three sets of minutes were tendered to the Court for meetings described as “Ordinary Meeting[s] of the Urapuntja Council Aboriginal Corporation”. These meetings appear to have usually been held monthly, and appear to have been in the nature of general meetings, attended by between 40 and 43 “council members”, the full “Council Executive Management Committee” and also 17 to 33 observers.

The minutes are detailed and indicate that these Ordinary Meetings of the Council consistently complied with a formal meeting procedure. For example, minutes of past meetings were adopted. Matters arising from the minutes were dealt with, followed by new matters. In relation to each matter there is usually a report from the person dealing with the matter, sometimes followed by general discussion. A resolution which has been moved, seconded and then carried by the meeting is recorded for almost all matters.

The minutes give some clues as to the structure of the Council.

While there was a Council Executive Management Committee (“the Committee”), most recently elected in November 1994, there is nothing to indicate that it met regularly. The only reference in the evidence to a meeting of the Committee concerned a Committee Meeting held on 25 January 1995. An Ordinary Meeting scheduled for that day was rescheduled as a mark of respect, because “sorry business” was still in progress for one of the Community’s families and at two of the Community’s out-stations. Given that particular grant applications had to be lodged with ATSIC by 31 January 1995, the Committee met instead to consider and approve those applications.

Given the lack of any other reference to the Committee meeting, I infer that the Committee meets only on an ad hoc basis when matters of great importance to the Community must be decided as a matter of urgency. There is no evidence that the Committee runs the day to day affairs of the Council as a matter of course. Where there is oral evidence, therefore, of matters requiring the approval of Council, I have interpreted that to be a reference to the monthly Ordinary Meeting of the Council, rather than the Executive Committee.

The Court heard evidence from Johnny Skinner, who said he was President of the Council at the relevant time. It also heard evidence from Gloria Pitjara, who was described as “Women’s President”. There is a reference in the February minutes to the fact that:

“The Council Presidents Gloria Pitjara and Johnny Skinner welcomed Bill Peachey...”

It is unclear whether Gloria Pitjara’s status was a formal status within the structure of the Council. In any event, there is no evidence that either Gloria Pitjara or Johnny Skinner had the power as individuals to bind the Council.

It was usual for the Council to employ an Administrator. The accountant, Rohan Richards, described the Administrator as having responsibility for the day to day management of the Community. Among the duties of the Administrator, according to Johnny Skinner, was the taking of the minutes of the Ordinary Meetings.

The Administrator of the Council when Vesna Rozman was first employed was Andrew Jandke. When he left, Ross Westgarth took on the role, though Elizabeth Logan observed in her evidence that she was never satisfied that he had been appointed to that role.

There are references in the December minutes to the “Administrator”, which must be understood as references to Ross Westgarth. The minutes also make reference to the fact that “Westcott and Associates” was conducting the Council’s Community Development Plan.

When Vesna Rozman received a reference from Ross Westcott when she left her employment in December 1994, he signed it on Council letterhead as “Administrator”.

However, an ATSIC file note was tendered of a meeting held on 30 January 1995 which was attended by Ross Westcott (initially described in the note as “Urapuntja Council Administrator”), representatives of ATSIC including Elizabeth Logan, and representatives of the Department of Lands Housing and Local Government.

In the course of that meeting, Westcott and Associates’ position as consultants for the Community Development Plan was discussed. Ross Westcott advised that he “advocated (sic) his position as Administrator - he is only providing the Council with assistance.” The notes later record that:

“It was further established that the Council will be considering notification from Mr Westcott his standing aside as Administrator. Mr Westcott can now concentrate more on the Community Development Plan... ”

The minutes of the Ordinary Meeting of the Council held on 1 February 1995, include the following report:

“Community Development Plan. Noted that work on this project is proceeding well with the technical conflict of interest between working as Administrator and the Community Development Plan removed when the plan is finished. At this time Ross Westcott can return to the full-time work as Administrator if the Council wants this to happen.”

The minutes of the Ordinary Meeting of the Council held on 1 March 1995, after Vesna Rozman had again left the Community, record the following discussion of Ross Westcott’s role:

“Retainer for Council’s Administrative Adviser - Alwyn Ross Westcott. NOTED that since the technical conflict of interest between working as Council’s Administrator and having a link to the firm preparing Council’s Community Development Plan was identified by Westcott & Associates/ ATSIC in January 1995, Ross Westcott has been providing Administrative/ management advice and assistance to the Council on a voluntary basis. Since the resignation of the part-time secretary in December 1994, this support role has expanded to include all administrative/ management tasks needed to place grant applications before funding agencies (thirteen (13) thirteen (13) page submissions prepared for ATSIC consideration in January 1995) and all other essential matters like grants commission presentations that are vital to the future funding available to the Council.

As there are no Council vehicles available (the Nissan “blew up” in February and is now out of order/commission indefinitely) all support work has to be carried out in the consultant’s own vehicle.

Resolved: moved Johnny Skinner seconded Gloria Pitjara

(a)that Alwyn Ross Westcott be retained on a consultancy basis to provide essential administrative/ management assistance to the Council.

(b)that the consultancy fee payable be the same as the wage paid to Mr Westcott when he worked as the Council’s Administrator.

(c)that mileage allowance be paid at the rate of fifty six (56) cents per kilometre travelled while assisting the Community in this way.

(d)that this agreement be kept in place until the position of Administrator is filled or the agreement is terminated by either party on the provision of one month’s notice to the effect that the services are no longer needed or cannot be provided.

CARRIED.”

Having considered this evidence, I am satisfied that, whatever the position before 30 January 1995, by the time Vesna Rozman was dealing with Ross Westcott in relation to her return to the Community, he was not the Administrator. I accept that there was no reason for Ms Rozman to realise that he wasn’t. I consider below whether Ross Westcott was empowered to employ Vesna Rozman.

It is clear that a decision of an Ordinary Meeting that Vesna Rozman be employed would have bound the Council. Was it, however, necessary?

The matters dealt with by the Ordinary Meetings range from the obviously significant to the relatively trivial. The range of matters considered lead me to infer that any matter of importance to the Council, and particularly anything involving the expenditure of Council funds, was considered by the Ordinary Meetings. It may be that this formality has arisen because of the administrative requirements imposed by ATSIC to ensure accountability for grant funds; Elizabeth Logan gave evidence that ATSIC merely required that corporations such as the Council adhered to their own constitution.

I am satisfied on the evidence that staffing matters were considered sufficiently significant to require consideration by the Ordinary Meetings.

For example, Vesna Rozman’s resignation in December 1994 is noted by an Ordinary Meeting of the Council, and is the subject of a resolution.

There are discussions at the Ordinary Meetings of December and February of the limitations on staff levels imposed by the funding restraints confronting the Council. At the December meeting, the Accountant’s Financial Report included the following:

“He stressed that the Council had no reserve funds, had many creditors who had to be paid under law and that there was only enough money available in the funds that were release through the Division of Local Government to meet diesel costs for the Arparra generators, other essential services purchases and a very limited Council workforce.”

so that it was resolved, among other things, that:

”All existing financial management arrangements that the Council has the power to rescind be rescinded so that the most appropriate distribution system can be put in place to meet the impoverished situation that the Council is now facing.”

Presumably this would extend to any arrangements for the hiring of the workforce.

At the February meeting, the Accountant reported that:

“The Council can only afford to pay for one person on the Council workforce for the rest of this financial year, which is totally inadequate to service the critical environmental health needs on the Council...”

It was resolved that:

“the Accountant’s report, including all available financial statements and reports, be received, endorsed and the contents carefully noted and fully understood as far as the seriousness of the financial situation is concerned.”

Leaving aside the particular financial difficulties confronted by the Council, there is evidence of a more general concern expressed by the Ordinary Meeting that the Council retain direct control over Council affairs. In the context of a discussion at the February meeting of a proposal to install a grant controller, it was resolved, among other things, that:

“Although all expenses associated with the role of Grant Controller will be met by DLG/ATSIC from outside the Council’s existing budget, the decision making role and function of the Council will not be reduced... “

Given the nature of matters dealt with by Ordinary Meetings, I am not satisfied that it is more probable than not that staff could be employed without the consent of an Ordinary Meeting.

However, the Ordinary Meetings of Council sometimes authorised actions retrospectively, or even prospectively.

For example, on 8 December 1994, after a report from Ross Westcott concerning the rationalisation of the Council’s motor vehicles, it was resolved:

“That all action and planned action that is undertaken and has been undertaken by the Administrator on Council’s behalf regarding facilities, in the context of this report, is fully endorsed and authorised by the Council...”(my emphasis)

At the February Meeting, which was delayed, it was resolved:

“that the thirteen grant applications prepared by the Executive Management Committee have the full endorsement of the Urapuntja Council Aboriginal Corporation.”

More relevantly, in the December 1994 meeting, it was resolved:

“That the Staffing Report presented by the Administrator be received and the contents noted with all action taken and proposed fully endorsed/authorised by the Council.”

It should be noted that the Staffing Report in question merely reported that Vesna Rozman had resigned. There is no reference to any proposals for replacing her.

As an example of prospective authorisation, at the February meeting it was resolved:

“That the Council authorises the Executive Committee members to sign the in principle agreement for a grant controller under the terms and conditions outlined...”

It is notable that it is a specific delegation, and that the Ordinary Meeting required that the final draft agreement be provided for Council’s further consideration.

On the evidence, no Ordinary Meeting of the Council ever authorised the employment of Vesna Rozman in 1995. Nor was any plan to employ her authorised in advance. Nor was any purported employment ratified retrospectively.

Another indicator of the formal requirements surrounding employment is the manner in which Vesna Rozman was employed in March 1994.

Vesna Rozman says she attended Utopia for an interview. There was also another candidate for the position. The then administrator, Andrew Jandke, introduced her to the women. David Taylor recalls there were over twenty women present. They interviewed her for about an hour. They chose her, and she was asked whether she could start straight away.

This might indicate that a meeting of the women members of Council was all that was required to employ her. However, it was Johnny Skinner’s evidence that, when Vesna Rozman and David Taylor first started:

“We had a meeting and we gave them job. Gave this girl job at the women’s centre and gave David a job with cleaning around the out-stations”.

And later, he added:

“She went and discussed it with the women and they must have given her the job and then she went to the men... ”.

There are no minutes in evidence of the Ordinary Meetings held at that time. It is likely, given that interviews with two candidates had been arranged, that the “Women’s Meeting” was prospectively authorised by an Ordinary Meeting to select and employ one of the two candidates as Women’s Centre Coordinator. Johnny Skinner’s evidence suggests that the choice of the Women’s meeting was later ratified by a Ordinary Meeting.

I am not satisfied that it is more probable than not that a meeting of the women members of Council could, without the authorisation of an Ordinary Meeting, employ new employees of the Council.

Finally, the evidence of Johnny Skinner supported the proposition that an Ordinary Meeting of Council was required to effect Vesna Rozman’s employment.

While his evidence on the matter was somewhat confusing - he usually insisted on speaking English rather than using the interpreter - Johnny Skinner speculated as to who might have given her the job and volunteered that:

“...we should have - meeting people given job anybody”

Later he repeated that he thought “we” should have had a meeting after Vesna came back from Queensland, adding that “they should have made arrangement with us mob, with the leaders, they did it in a back way.”

In summary, therefore, I find that nothing done before Vesna Rozman’s decision to leave the Community had the effect of creating an employment relationship between Ms Rozman and the Council.

The behaviour of the women and Ross Westcott was such that Vesna Rozman would understandably have expected that the prospects were good of the next Ordinary meeting of Council authorising her employment, when it met on 1 March 1995. Given that Vesna had moved out to Utopia and had begun performing work in connection with the Women’s Centre since 13 February 1995, she might also have expected that such authorisation would be retrospective, so that she would then be regarded as having been employed since 13 February 1995.

In the event, no such retrospective authorisation was ever obtained from the Ordinary Meeting.

However, the president of the Council, Johnny Skinner, signed a note to Rohan Richards dated 24 February 1995 and headed “Work done by Vesna Rozman”. I accept Johnny Skinner’s evidence that the note was prepared by Ross Westcott. It reads as follows:

“On behalf of the Council, I confirm that Ms Vesna Rozman worked as the Women’s Centre Coordinator for six days from Monday 13 February 1995 to Monday 20 February 1995 and that she should be paid accordingly.”

The payment made to Vesna Rozman by Rohan Richards, the Accountant, was based upon this note.

Johnny Skinner cannot read English. In cross-examination by Mr Munro, counsel for Vesna Rozman, the following exchange took place:

“MR MUNRO:             Now, when you were the chairman of the council - - -

J. SKINNER:              Yes.

“MR MUNRO:             - - - you wrote your name on pages?

J. SKINNER:              Yes.

MR MUNRO:              And why would you do that?

INTERPRETER:       That person in Melbourne [Ross Westcott] told me.

J. SKINNER:              Want to give a job - give this lady [Vesna Rozman] a job and David.

MR MUNRO:              And you signed your name - you wrote your name on other papers, do not you?

INTERPRETER:       Yes.

MR MUNRO:              On the paperwork from meetings?

J. SKINNER:              Yes, somebody in the office... Yes I have got to sign...

MR MUNRO:              And do they tell you what it is?

J. SKINNER:              Yes, he tell them what to do.

MR MUNRO:              And if you did not like what they said was in the paper, would you still write your name on it?

J. SKINNER:              No. ... I knock it back. ...

MR MUNRO:              And what happens then?

J. SKINNER:              All of the community have meeting then. All the family at Utopia.

MR MUNRO:              Yes. And do you ever write your name on something that you do not know what it is?

J. SKINNER:              No.

MR MUNRO:              Never?

J. SKINNER:              Never.”

Notwithstanding this evidence I would have been ready, had it been necessary to do so, to uphold a plea of “non est factum” in relation to this document. However, there is no evidence that Johnny Skinner was empowered to make binding decisions “on behalf of the Council”. To the extent that the note is relied upon as evidence of a Council decision, I prefer Johnny Skinner’s oral evidence that he didn’t give Vesna Rozman the job, and that there was no Council meeting when Vesna Rozman and David Taylor came back in relation to her re-employment.

Finally, the terms of the document can be interpreted as referring to an ex gratia payment in recognition of the work done by Vesna Rozman in the expectation that she would be employed. I prefer this interpretation given that the payment was made in the context of Ross Westcott’s advocacy on Vesna Rozman’s behalf, which included the threat of litigation.

I find therefore that the note does not constitute an acknowledgment of Vesna Rozman’s employment.

Whether the Events of 21 February 1995 Would Have Constituted a Termination of Ms Rozman’s Employment at the Initiative of the Council?

If I am wrong as to whether the relevant events had the effect of creating an employment relationship between Vesna Rozman and the Council, were the actions of Gloria Pitjara sufficient to amount to a termination of that employment at the initiative of the Council? In my view, the answer, is they were not.

There is no evidence that Gloria Pitjara had the authority to bind the Council by her actions, notwithstanding that she was Women’s President.

Nor was Ross Westcott’s position such that he spoke on behalf of the Council.

In practical terms, Vesna Rozman had the opportunity to wait until the Thursday meeting to speak with the women and see if she retained support within the Community. For reasons unrelated to the Council, including the altercation and resulting injuries to David Taylor, together with the sickness of their son, she decided to leave.

Because there was no act of the Council (as distinct from one of its members) which brought about any termination, and because Vesna Rozman left at least partly for reasons unrelated to Gloria Pitjara’s actions, I find that, if Vesna Rozman was employed by the Council as at 21 February 1995, there was no termination of her employment at the initiative of the Council.

Conclusion

Accordingly, I will order that the application be dismissed.

I certify that this and the preceding 24 pages
are a true copy of the reasons for decision of
Judicial Registrar R.D. Farrell.

Associate:
Dated:  29 January 1997

APPEARANCES

Counsel appearing for the applicant:                 Mr William Munro

Solicitors for the applicant:  Turner & Deane

Counsel appearing for the respondent:             Ms Kerrie Judd

Solicitors for the respondent:  Central Australian Aboriginal Civil   Legal Service

Dates of Hearing:  12, 13, 14 & 15 August 1996

Written submissions complete:  17 September 1996

Date of Judgment:  29 January 1997