Sabina Spaan v Association of Ethnic Organisations for Aged

[1995] IRCA 690

C A T C H W O R D S

INDUSTRIAL LAW - Termination of Employment - poor performance - misconduct - compensation

INDUSTRIAL RELATIONS ACT 1988, ss.170DE, 170EE, 170DC

SABINA SPAAN -V- ASSOCIATION OF ETHNIC ORGANISATIONS FOR AGED

No. SI 95/1217

JUDICIAL REGISTRAR:                   L FARRELL
PLACE:  ADELAIDE
DATE:  21 DECEMBER 1995
INDUSTRIAL RELATIONS COURT             )
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT REGISTRY           )

No SI 95/1217

B E T W E E N:

SABINA SPAAN

Applicant

- and -

ASSOCIATION OF ETHNIC   ORGANISATIONS FOR AGED CARE

Respondent

MINUTES OF ORDER

BEFORE:JUDICIAL REGISTRAR  FARRELL

PLACE  :           ADELAIDE

DATE             :           21 DECEMBER 1995

THE COURT ORDERS THAT:

1. The Respondent pay to the Applicant the sum of $7570  within 21 days.

NOTE:   Settlement and entry of Orders is dealt with by Order 36 of the   Industrial Relations Court Rules

INDUSTRIAL RELATIONS COURT             )
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT  REGISTRY          )

No. SI 95/1217

B E T W E E N:

SABINA SPAAN

Applicant

- and -

ASSOCIATION OF ETHNIC   ORGANISATIONS FOR AGED CARE

Respondent

BEFORE         :          JUDICIAL REGISTRAR FARRELL

PLACE                      :ADELAIDE

DATE             :21 DECEMBER 1995

REASONS FOR JUDGMENT

This is an Application pursuant to S.170EA of the Industrial Relations Act (1988). The Applicant claims that her employment was terminated unlawfully. The Applicant sought reinstatement or compensation if reinstatement was impracticable.

The Respondent is a community organisation established in early 1994 for the purpose of providing support to the providers of aged care in ethnic communities.  A Board of Management controls the Respondent.

The Applicant was employed as Executive Officer of the Association from 7 March 1994 and she was its only employee up until March 1995.  She was responsible to the Board of Management.  The composition of the Board changed in early 1995.

In February 1995 interviews for additional employees were held.  There was a great deal of evidence about the professionalism of both the Applicant and others involved in the interview process.

Ms Paul was appointed as Project Officer.  Three weeks later she resigned amid allegations regarding the performance and conduct of both Ms Paul and the Applicant.  The Applicant collapsed during a meeting following Ms Paul’s resignation.

The Applicant gave her evidence in an hysterical fashion often failing to address the factual matters in issue but attempting to use the opportunity to express her views about the Association.I find as a fact that the Applicant was not an effective Manager nor did she deal with staff appropriately.  Her emotional state appears to have interfered with her ability to perform her duties.

A few days after the resignation of Ms Paul the Applicant went on leave until 5 May  and then to a conference interstate until 10 May.  During that time a Board meeting was held.  There was a great deal of disquiet amongst board members about the Applicant’s conduct and performance.  A sub committee was formed to give directions to Ms Spaan in her role of Executive Officer.  On her return a meeting was held between her and that sub committee on 11 May 1995.  The sub committee consisted of Mr Kadis, Ms Oran and Mr Carpinski.  At that meeting the Applicant made allegation against a Board Member regarding the interview process of M Paul.

On 23 May 1995 a further Board meeting was held.  The Applicant attended during part of that meeting and was given directions by Mr Kardis to achieve certain things within two weeks.  The Applicant sought clarification of what she should do by letter dated May 1995.  She received no response to the letter. On 6 June 1995 the Applicant met with Ms Klecko, Chairperson of the Board and Ms Ovan.  The purpose of the meeting was to see what the Applicant had done to meet the directions of Mr Kadis.  During that meeting she was asked to resign.  When she refused to resign her employment was terminated.

In my view the Applicant should have been given directions as to what she should do in writing following the Board meeting of 23 May 1995.  Further her request for clarification should not have been ignored.During the interview on 6 June 1995 Ms Klecko should not have proceeded to terminate the Applicant’s employment until she had been given an opportunity to respond to the allegations against her, preferably with a Union representative present.

I therefore find that termination of the Applicant’s employment was unlawful and in breach of S.170DE(2) and S.170DC of the Act.

Remedy

The Applicant sought reinstatement.  However it was clear from her evidence that re-establishing the employment relationship was impossible.

In considering the amount of compensation to be awarded to the Applicant the Respondent submitted that it was clear that the Applicant’s employment would not have continued for very much longer.  I accept that submission.  The relationship between the Respondent and the Applicant had broken down and it seems to me highly unlikely that the Applicant’s employment would have continued beyond a few months.  I therefore award compensation to the Applicant equivalent to ten weeks pay.

I certify that this and the preceding page is a true copy of the reasons for my judgment.

DATE OF HEARING             :28 August, 21 September, 18 October, 27 November 1995

FOR THE APPLICANT          :Mr Heard       

FOR THE RESPONDENT      :Mr Kane