Selwyn Noel Leslie Johnston and Papua New Guinea Consulate, Cairns

[1995] IRCA 273

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

NO. QI 210/94

BETWEEN:

SELWYN NOEL LESLIE JOHNSTON

Applicant

AND:
  PAPUA NEW GUINEA CONSULATE - CAIRNS

Respondent

REASONS FOR JUDGMENT

BOULTON J.R.

The applicant applies for relief in respect of the summary termination of his employment which occurred on 12 October 1994.

During the course of the trial I allowed the name of the respondent to be amended to read The Government of Papua New Guinea.

At all material times the applicant was employed by the respondent as a chauffeur at its consulate in Cairns.  He is now 50 years old, having been born on 5 September 1994.

It was common ground that the applicant commenced his employment
with the respondent on 6 June 1994, his employment being subject of a 3 month probationary period.

The only witnesses who gave evidence before me were the applicant and a Mr. Lemeki, the respondent’s then consul in Cairns.  Generally, I prefer the evidence of the applicant where it conflicted with that of Mr. Lemeki.

The respondent submitted that the applicant’s employment was not permanent, it not having been confirmed after the expiration of the initial 3 month probationary period.  I accept that the applicant took up this aspect with Mr. Lemeki on several occasions after the expiration of the probationary period.  Mr. Lemeki assured him each time that it would be attended to, but that he (Mr. Lemeki) was busy with more pressing commitments.  While the applicant did not ever receive written confirmation of his appointment, nothing turns on this in my view in the light of Mr. Lemeki’s assurances.

Differences had arisen between the applicant and Mr. Lemeki during the probationary period about the way in which the applicant was carrying out his work; these included telephone answering, the picking up of a senior government official in Cairns and the use of official vehicles and a mobile phone.  These were referred to in a letter dated 11 August 1994 (ex. R1) from Mr. Lemeki to the applicant, and the latter’s response of the same date (ex. R2).  On that date and after the exchange of these letters, Mr. Lemeki and the applicant discussed their differences.  I accept the applicant that to all intents and purposes Mr. Lemeki and he resolved these differences, and decided to get back to a good working relationship as if nothing untoward had occurred.

After their 11 August 1994 meeting, Mr. Lemeki issued several minutes (exs. A7 and A8) to consular staff dealing with the vehicular problems the subject of his discussions that day with the applicant.  These were designed to clarify the problems in this regard dealt with in exs. R1 and R2.

Mr. Lemeki admitted in evidence that between 11 August 1994 and 12 October 1994, the date of the applicant’s termination, there was no discussion of any substance by him with the applicant about the way the latter carried out his work.

The letter of termination (ex. A3) summarily determining the applicant’s employment contained no reasons for that termination. 

On 22 December 1994 I ordered the respondent to provide particulars of the reason or reasons relied on by it for the termination of the applicant’s employment, such particulars to be filed and served no later than 1pm on 28 February 1995.  This order was not complied with, and had not been complied with at trial on 7 March 1995.  At trial the respondent was obliged to provide such particulars.  These were the matters referred to in ex. R1 and additionally, the following matters:  the printing of business cards, the applicant’s abusive conduct towards Mr. Lemeki’s son and family, his persistent answering of the telephone in the office and the reading and noting of incoming mail, his disruptive and “destructive” manner in dealing with Mr. Lemeki and other senior officers of the consulate, and his inappropriate behaviour in exceeding the nature of his position, an example being his taking a position in the VIP lounge at the Cairns International Airport in a manner inappropriate for a consul’s chauffeur.

In light of the admission of Mr. Lemeki already referred to, it is of little moment whether or not the respondent has managed to sustain any of these particulars, in reference to whether the respondent accorded the applicant procedural fairness prior to his termination. It is clear in my view that the applicant was not accorded the procedural fairness required by s.170DC of the Industrial Relations Act 1988.

Further, I am satisfied the respondent has not proved that there was a valid reason of a kind referred to in ss.170DE(1) for the applicant’s termination.  I reject the evidence it called in support of the allegations against the applicant.  It is in breach of that subsection.

Serious misconduct of the sort referred to in para.170DB(1)(b)  has not been made out.  In consequence, the respondent is in breach also of para. 170DB(1)(a), it not having given the applicant either the period of notice required by ss. 170DB(2), or compensation instead of notice. 

There was no evidence that the applicant was employed under award conditions.  The respondent, for the first time in its written submissions after the trial, suggested that the court ought to decline jurisdiction on the basis that the applicant had an adequate alternative remedy elsewhere.  The authorities relied on by the respondent for this proposition all pre-dated the Full Court’s decision in Liddell v Lembke  N1200/94, judgment on 15 December 1994.  I consider that in the present circumstances this court has jurisdiction, and I so rule.

The applicant did not seek reinstatement.  His counsel submitted that reinstatement would be “inappropriate in the circumstances”.  While the court is not necessarily bound to accede to the expressed preference of an applicant in this respect, I consider such preference should be given
weight in the absence here of any strong factor in favour of reinstatement.  I decline to order reinstatement.

Since his termination the applicant has been unable to obtain other employment, despite attempts to do so.  He has been in receipt of a Job Search Allowance of $230 per fortnight since late October/early November 1994.  The applicant’s salary at termination was $1183.47 gross per fortnight.

For the contravention of para. 170DB(1)(a), I assess damages in the sum of $591.73.

For the contraventions of para 170DC(a) and ss. 170DE(1), I consider that the sum of $10,000 is appropriate compensation.  While I have preferred the applicant’s evidence to that of the respondent, there was a feature of his conduct as an employee the explanation for which I did not unreservedly accept, namely the printing of a business card (ex. R3) bearing the logo and title Consulate of Papua New Guinea and the applicant’s name.  I have applied a modest discount to compensation to reflect the prospect, albeit small, that the applicant’s employment with the respondent might not in any event have run for a full 6 months after mid-October 1994.

The orders I make are:

1.      The application be allowed.

1. The respondent pay to the applicant the sum of $10,591.73 within 21 days of the date of these orders.

I certify that this and the preceding FIVE (5) pages are a true copy of the reasons for judgment of Judicial Registrar Boulton.

........ ........ ........ ........ ........ .......
Judicial Registrar

DATED:  20 March 1995

Counsel for the applicant:                    Mr. Priestly
Solicitors for the applicant:                  Gayler Cleland Towne

Appearance for the respondent:   Mr Burns
Solicitors for the respondent:              Phillips Fox

Date of hearing:                        7 March 1995
Date of judgment:   20 March 1995