Seltitza v Amaru Incorporated

[1996] IRCA 234

DECISION NO:  234/96

CATCHWORDS

INDUSTRIAL LAW - decision for TERMINATION OF EMPLOYMENT not the initiative of the employer - SPECIFIC TASK CONTRACT - uncertainty as to duration of contract because of funding agreement.

Industrial Relations Regulations reg 30 (B) (1) (b).

KAY SELTITZAS,
PETER VENN,
WENDY KAY ROSENBAUM -v- AMARU INCORPORATED

No. NI 3583 of 1995
No. NI 3584 of 1995
No. NI 3585 of 1995

COURT:       WALKER JR
PLACE:       SYDNEY
DATE:          18TH & 19TH MARCH 1996

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
SYDNEY REGISTRY

No. NI 3583 of 1995
No. NI 3584 of 1995
No. NI 3585 of 1995

BETWEEN:

KAY SELTITZAS
PETER VENN
WENDY KAY ROSENBAUM
Applicants

AND:

AMARU INCORPORATED
Respondent

BEFORE:     WALKER JR
PLACE:       SYDNEY
DATE:          18TH & 19TH MARCH 1996

REASONS FOR JUDGMENT

According to their business plan, the Amaru Aboriginal Centre was established in early 1993 in response to the need for a cultural, educational and social facility for the Aboriginal community.  The centre is located on land owned by the Housing Commission at Claymore near Campbelltown, which has a high population of Aboriginal people and is operated by voluntary resident assistance.  On the 21 December 1994, the Department of Employment, Education and Training and Amaru Incorporated signed an agreement for the establishment of a Skillshare project.  This project was established in order to implement the aims of Amaru which were for the two years following 1994, to provide training for the long termed unemployed and other disadvantaged Aboriginal and Torres Strait Islanders, to develop enterprise activities for this target group, network and access available services, market and promote Skillshare in the area to secure job placement and community contributions and initiate and expand a high standard of training through upgrading facilities as their funding permitted.

In order to establish the Skillshare project it was decided that there should be appointed three employees a Project Manager, Project Assistant and  Training and Development Officer.  These positions were to be advertised and appointee’s were to be of Aboriginal descent, however if no suitable Aboriginal persons could be found, the most competent person for the position would be appointed.  The funding for the Skillshare was provided for the period as set out in the DEET agreement marked as exhibit C.  The relevant section is a follows,

FUNDING PERIOD
3.1.     The funding period commences on 1 January 1995, or on any date that      the contract is signed by both parties, and concludes on 30 June 1995.

3.2.     Skillshare program funds shall, together with the community            contributions, enable the organisation to carry out the activities of the    Skillshare project for the funding period.

Kay Seltitzas gave evidence that she had been running courses on a voluntary basis at Amaru for about eighteen months prior to the 1 January 1995, when she took up the position of Project Manager with the Amaru Skillshare project.  She said that although the position had not been advertised she had taken it up and had been appointed by the Board of Amaru as the interim Project Manager because courses were to commence the following month and someone had to be there to get things going.  When asked in examination in chief, “...was it first hoped that your position, along with the position of Training and Development Officer and your Assistant’s position, would be filled by Aboriginal people”, Ms Seltitzas replied,

“Well, that was the whole concept of setting up the Skillshare was so that - in line with reconciliation and the meetings that were happening at that stage - were actually happening at Amaru - my firm belief was that Aboriginal people should be autonomous; however, we have to take into consideration that they need to be trained into quite highly skilled positions, and that was the plan.  That’s why we wrote the contracts in that way.”

When later asked as to her understanding as to the duration of the positions, she replied,

“Well, my understanding of it - well, I was hoping to train someone into the position as quickly as possible. The reason we put a figure of 24 months on it was to be realistic. I actually suggested 12 months, but Marilyn felt that wasn’t long enough because of the complexity of the positions, so we - but there was an agreement that, you know, if the person coming into the positions was ready in a year then I personally would be willing to leave at that time, as long as everyone was happy; that they were confident in their position.”

It is clear from Ms Seltitzas’ evidence that the intention of the parties was that the persons selected for the three positions, if not of Aboriginal descent would train an Aboriginal person to take their position as soon as possible.  Ideally, the persons selected would be of Aboriginal descent at the outset.  However it would appear that there were no qualified persons available when the positions were advertised, although there was no evidence that they were advertised.  After Ms Seltitzas’ appointment on the 1 January 1995, as Project Manager,
Ms Wendy Rosenbaum gave evidence that she took up the position of Project Manager’s Assistant on the 1 January 1995, and Mr Peter Venn said he was appointed on the 6 February 1995, as Training and Development Officer.

At a Committee meeting of the Amaru Aboriginal Skillshare held on the
24 March 1995, contracts for Ms Kay Seltitzas and Ms Wendy Rosenbaum were presented for approval and were signed by the parties.  The contract of Peter Venn was approved by the Amaru Skillshare Steerage Committee at a meeting held on the 10 May 1995.  There was no evidence that these resolutions were ratified by the Board, however it is clear from the Minutes of the Steerage Committee of the 10 May 1995, that there was to be a new Board elected on the 23 May 1995, as Marilyn Fogarty, the Chairperson was to resign on that day.  It is also clear from these minutes that Ms Kay Seltitzas had resigned her position as Project Manager and that there was concern that DEET would need to be convinced that the Skillshare project would continue to be a viable concern.  Ms Seltitzas gave evidence that although there was talk about her resignation at the meeting of 10 May 1995, she in fact did not go ahead with it as it was not accepted.  In the meantime the position of Project Manager had been advertised and as there was no response to the advertisement Ms Seltitzas said the Chairperson, Ms Marilyn Fogarty had asked her put off her resignation until the next funding period commenced.  Ms Seltitzas evidence was as follows;

“......because I was desperate to save the project.  I thought that if I left - well, we could get an Aboriginal person in.  I was quite happy to put myself out of work as I had put the place together to start with.  I did not want to see it go down, and I wanted to see the community benefit.  So as a result of that I was willing to do that.  However, we didn’t get any responses, and Marylin spoke to me and she asked me to wait until the next refunding period so that we would not be bringing a person in from another position with the possibility of them not being able to keep their job.”

One thing that is clear from this evidence is that Ms Seltitzas is fully aware that the positions of people employed under the Skilllshare project are subject to the continued funding from DEET and that therefore such positions would only be available during the funded period, that is in this case from 1 January 1995 to 30 June 1995.

From the evidence of the applicants it is also clear that there was considerable friction between some members of the community and the applicants and also other members of the Amaru Board.  It seems that things became so bad that finally a decision was made to close the Skillshare down in order to protect the applicants from continued harassment and possible violence.  There was no Minutes of a meeting tendered as evidence of a resolution to disband the Skillshare except for mention of a decision in the Minutes of a meeting held on the 29 May 1995, (exhibit 3) whereunder the heading of general business it is recorded,

“1. On the 25 May 1995 there was a general consensus of the Board to close the Skillshare for the ultimate safety of the staff.  Marilyn and Leslie met with DEET representatives and informed them of the decision.  Most of the assets were handed back on the day”.

Prior to this meeting  there had been a take over of the Board by a no confidence motion on the 23 May 1995, and the old Board declared null and void and a new Board elected, (see exhibit H).  The effect of this coup was to divide Amaru Inc. into two groups.  At the meeting of the 29 May 1995, it appears that there were no members in attendance that were present at the Special General Meeting of the 23 May 1995, and at the meeting of the 29 May 1995 there was a resolution that the meeting held on the 23 May 1995 was illegal and that the new elected Board is not to be recognised.

There was not tendered into evidence any minutes of a general meeting of the Board held on the 25 May 1995, where there had been a, “general consensus of the Board to close the Skillshare for the ultimate safety of the staff”.   Of course if there had been a legal takeover of the Board by the so called Special General Meeting of the 23 May 1995, then such a decision taken by the old Board would have been ultra vires.  What is evident from the applicant’s testimony is that the decision to close down the Skillshare was made by Marilyn Fogarty on the 25 May 1995.

Mr Lindsay Phillips, the defacto husband of Ms Kay Seltitzas gave evidence that he worked for Amaru in a voluntary capacity and was a Board member for about six or seven months.  I must say that I find it difficult to clearly ascertain when Mr Phillips was a Board member as in his evidence in examination in chief he at first said he was a Board member mid-way through 1995 for about six months, and then he said it might have been earlier than 1995.  He agreed that he was a Board member during the period when the applicants were employed, however in cross examination he said,

“I was a member of the Aboriginal - Amaru Aboriginal Board of Directors approximately six, seven months, maybe even longer, prior to the commencement of the Aboriginal Skillshare.”

Later on he then said he was a member when the Skillshare started up and that he resigned at the Extraordinary Meeting when the Board had been dissolved.  Whaterever the truth is, he nevertheless attended the meeting of the Skillshare Steerage Committee on the 10 May 1995, and the special Board meeting on the 29 May 1995, as his name is recorded in those Minutes.  It is of interest to note that Mr Phillips was an employee of Amaru as was his partner and yet he also purports to be a Board member at the same time.  Mr Phillips’ evidence regarding the closing of the Skillshare was as follows,

“The Skillshare was closed, to the best of my knowledge, simply because it became impossible from the Board’s point of view to run it as a business, bearing in mind that there was a split on the Board.  There were attempts made by the Board to hold Extraordinary meetings to resolve the issues and elect a new Board of Directors.  There were, I think from memory, three attempts to do that. however, for one reason or another, they were unsuccessful in doing that and during that period of time where, I suppose, a caretaker board was looking after it because there were so many members - the original board that had gone their own way and were trying to form a new board - that the caretaker board, being Marilyn Forgarty, myself, a few other names there that I’ve forgotten, decided that the only way we could actually go into the safety of the staff in view of the fact that a man had been found on the premises with a screwdriver in his pocket and it was necessary for Mr Venn to be placed in an office at one occasion, all these events at the meeting gave sway to the board to make a decision to close..”         

Ms Selititzas produced a detailed record of the events which she had made from 3 March 1995.  This document was marked as exhibit E and set out under the date of the 25 May 1995, is the following record;

“Has been decided that Skillshare can no longer operate safely.  The continual threat of violence, racial discrimination, intimidation and defamation of our characters can no longer be ignored.  We are trying to find out the best course of action to take ........ ........ ..... Marilyn rang DEET and advised them of our decision.  Mandy Sulter and Wayne Joyce came out to discuss the situation with Kay and Marilyn and Leslie.  Once assured that it was a firm decision to close down Mandy and Wayne took as many assets as they could and took them back to DEET.  After letting various people know we all left.  (emphasis added).

As these notes were prepared by Ms Kay Seltitzas it would appear that the decision to close down the Skillshare was partly the decision of the applicants as the notes refer to, “our decision”.  There were no Minutes of the meeting held on the 25 May 1995, and I am in  considerable doubt as to whether this decision was a decision of the Board of Amaru Incorporated.  As at  23 May 1995 there was a no confidence motion passed and a new Board appointed and it is clear that no such resolution was passed by this Board on the 25 May 1995.  Ms Muriel Brandy, the current Chairperson of Amaru Inc. said in her evidence, in answer to the question as to why the Skillshare was closed down,

“Well, the chairperson just took it upon herself and closed it herself, right, and nothing was said to anybody or any of the other board members.”

I am satisfied in this case that the decision to make the applicants redundant was not a decision of their employer, Amaru Incorporated but was a decision probably that of Marilyn Fogarty in consultation with the applicants and Mr Phillips and based on their real fear that there may be violence arising out of the split between the community at the Centre and the threats that had been made to the applicants.
It was argued by the respondent that the applicants are excluded from bringing a claim pursuant to Regulation 30B (1) (b,) as they were employed for a specific task, i.e. to train an Aboriginal person so that person may take over the position within two years.  After hearing the evidence of Ms Kay Seltitzas it seems that this proposition has some merit.  When asked about the duration of her position she replied,

“Well, my understanding of it - well, I was hoping to train someone into the position as quickly as possible.  The reason we put a figure of 24 months on it was to be realistic.  I actually suggested 12 months ........ .. .if the person coming into the position was ready in a year then I personally would be willing to leave at that time...”.

If this was Ms Seltitzas understanding then she certainly would have been employed under a contract for a specific task.

It was the applicants’ argument that the contracts were for a minimum period of two years as per paragraph 4.1, in each of the contracts however against this is the fact that the funding agreement between DEET and Amaru Incorporated was only for a six month period, from 1 January 1995 to 30 June 1995.  If for any reason, DEET decided not to continue their funding beyond this period, the applicants would have been made redundant.  In fact this was a concern of the Skillshare Steerage Committee at its meeting on the 10 May 1995, when the following appears in the minutes;

“ After all the problems experienced to date, DEET needs to be convinced that this project will remain to be a viable proposition for future funding. Wants to be on the selection committee for the Project Manager’s job.” 

The applicants’ contracts, two of which were approved by the Skillshare Committee on the 24 March 1995, and Mr Venn’s at the Steerage Committee’s Meeting on the 10 May 1995 have, it appears never been approved by the Board of Amaru and there was no evidence to suggest that the positions were in fact advertised in the first place.  As to the argument that they were contracts for two years remains somewhat vague.  Ms Seltitzas and Ms Rosenbaum signed their contracts on the 24 March 1995, some three months after commencing duties and Mr Venn after serving a three month probationary period on the 10 May 1995.  The duration of each of the contracts is not specifically referred to in the contract with regard to the employee but under the heading concerning Aboriginal trainee.  Clause 4. The relevant paragraph are as follows;

4.0 ABORIGINAL TRAINEE

4.1 The Project Manager shall be employed for a minimum period of          two years from the commencement of employment of the trainees.

4.3 It is anticipated that within two years the Aboriginal trainees will         replace the existing staff and take over the fulltime duties of the      respective positions and so effectively manage Amaru Skillshare.

These paragraphs are common to the three contracts, however in the Amaru Inc. Business Plan for 1994 - 1996 (marked as exhibit G) under the heading (vi) STAFFING it refers to the period as being a maximum period of two years rather that a minimum period.  This interpretation would I think be in line with the understanding that Ms Seltitzas had.  She said in her evidence that as soon as the trainee was ready to take over she would move out, and she had suggested twelve months as an estimate rather than two years, but Marilyn had said that to be realistic the period should be two years.  The reality is however that the funding period was not for two years but for a six month period and was subject to certain criteria and there could be no guarantee of continuation after the 30 June 1995.

As a result of the closure of the Skillshare, on the 25 May 1995, the three applicants were each paid four weeks redundancy pay, four weeks in lieu of notice, their holiday pay and rostered days off.  Their applications for unlawful termination of employment were filed four month out of time and at the commencement of the hearing I indicated to the parties that I would consider this application on its merits.  On the basis that I am not satisfied that there has been a termination at the initiative of the employer, that the employment of the applicants was for a specific task and that if there had been a contract of employment between Amaru Incorporated and the applicants that it would have been subject to the funding arrangement and need to be renewed on the 30 June 1995.  For these reasons I must dismiss the application. 

I certify that this and the preceeding eleven (11) pages are a true copy of the reasons for judgment of Judicial Registrar Walker.

Associate:     Claire McAuley

Date:              4 June 1996

Appearances:

Solicitor for the applicant:  Mr Martin Carrick
Counsel for the applicant:  Mr Rohan De Meyrick
Representative for the respondent:  Mr Keith Godfrey