Shelton v Jigalong Community (Inc)

[1996] IRCA 94

DECISION NO:   94/96

C A T C H W O R D S

INDUSTRIAL LAW -  TERMINATION OF EMPLOYMENT - alleged UNLAWFUL TERMINATION - applicant accepted offer of employment but never commenced work - offer included PROBATIONARY PERIOD - whether JURISDICTION - whether CONSTRUCTIVE DISMISSAL

INDUSTRIAL RELATIONS ACT 1988 S 170EA
INDUSTRIAL RELATIONS REGULATIONS, Reg. 30B

WILLIAM JOHN SHELTON & ABDUL HAQ SAMNAKAY  -v-  JIGALONG COMMUNITY (INC)  -  WI 95/2067 &  WI 95/2068

BEFORE:         BOON JR
PLACE:            PERTH
DATE:              21 MARCH 1996

IN THE INDUSTRIAL RELATIONS    )
COURT OF AUSTRALIA  )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )          No. WI 95/2067 & WI 95/2068

BETWEEN:  WILLIAM JOHN SHELTON &
  ABDUL HAQ SAMNAKAY
  -          Applicants

AND:  JIGALONG COMMUNITY (INC)
  -          Respondent

MINUTE OF ORDERS

BEFORE:                 BOON JR

PLACE:  PERTH

DATE:  21 MARCH 1996

THE COURT ORDERS THAT:

1. The applications be 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  )          No. WI 95/2067 & WI 95/2068

BETWEEN:  WILLIAM JOHN SHELTON &
  ABDUL HAQ SAMNAKAY
  -          Applicants

AND:  JIGALONG COMMUNITY (INC)
  -          Respondent

BEFORE:                 BOON JR

PLACE:  PERTH

DATE:  21 MARCH 1996

REASONS FOR JUDGMENT

This is an application under Section 170EA of the Industrial Relations Act 1988. The applicants seek reinstatement and compensation arising out of the alleged unlawful termination of their employment by the respondent.

The respondent is an Aboriginal corporation operating in the northwest of Western Australia.  Advertisements appeared in the West Australian Newspaper on 17 December 1994 advertising the positions of project officer and community co-ordinator with the respondent. 

Mr Shelton applied for the position of project officer and Mr Samnakay applied for the position of community co-ordinator.  Both applicants received written communication from the Western Desert Puntukurnuparna Aboriginal Corporation (WDPAC) acknowledging receipt of the applications.  On 7 March 1995 both Mr Shelton and Mr Samnakay were flown to Port Hedland for interviews with representatives of WDPAC which were carried out on that same day.  On or about 15 March 1995, both Mr Shelton and Mr Samnakay were contacted by representatives of both the Aboriginal and Torres Strait Island Commission (ATSIC) and by WDPAC and offered employment.  The applicants accepted the offer of  employment verbally. 

The offer of employment was subsequently confirmed by Mr J T Siedlovskas, acting manager of WDPAC, who wrote a letter dated 15 March 1995 to Mr Shelton in the following terms:

"Dear Mr Shelton

On behalf of the Jigalong Community Incorporated I have much pleasure in offering you the position of Project Officer.  Your appointment will be subject to an initial three month probationary period.  The position is classified level 4.1 with a salary of $34,669 plus married district allowance of $5,368 per annum.

I would ask that you respond to this letter of offer as soon as possible and suggest you contact me with any queries regarding the terms and conditions of your employment."

Mr Samnakay also received a letter from Mr Siedlovskas dated 15 March 1995 in identical terms to the letter sent to Mr Shelton, with the exception that he was offered the position of community co-ordinator which was classified level 5.1 with a salary of $38, 660.

On 20 March 1995 Mr Shelton advised WDPAC that he was available to start work on 27 March 1995.  On 24 March 1995 Mr Shelton rang WDPAC in order to confirm the starting date and was asked by WDPAC to put the commencement date on hold for a week.  On 31 March 1995 Mr Shelton rang both WDPAC and ATSIC and was again asked to put the start date on hold.  Mr Shelton asked ATSIC to put the arrangement in writing but did not receive any reply.  By letter dated 10 May 1995, Mr Shelton wrote to the manager of WDPAC asking him to confirm the starting date within seven days.  Mr Shelton received a reply from WDPAC dated 16 May 1995 as follows:

"Dear Mr Shelton

Re:  Project Officer Position - Jigalong

We refer to your letter of 10/5/95 regarding the above matter and acknowledge your request to be briefed on the current situation.

We advise that the issues raised in your letter should really be referred to Jigalong Community.  By letter dated l5/3/95, Jigalong Community instructed WDPAC to advise you that your application for the position of Co-ordinator had been successful.  It is our understanding that this was the decision of the Community Executive Council.

It is now our understanding that Jigalong Community has appointed another individual to the position of Project Officer.

Jigalong Community to date has not advised WDPAC regarding this situation.  We therefore suggest that you continue in your endeavours to elicit further advice from the Community."

Mr Shelton made some attempts at around this time to obtain further advice about the position in which he had been appointed but he was unsuccessful in obtaining any further information.

Mr Samnakay, upon receipt of the letter from WDPAC dated 15 March 1995, wrote a confirmation letter dated 20 March 1995 in the following terms:

"I am in receipt of your letter of offer for the position of Community Co-ordinator and have pleasure in accepting the position.  I will be arriving at Port Hedland on Monday the 27th and look forward to meeting you."

Mr Samnakay gave evidence that he had been informed that he was booked to fly to Port Hedland on 27 March 1995 by Mr Siedlovskas.  On 24 March 1995 he received a phone call from Mr Siedlovskas telling him that the position was on hold.   He received word from representatives of both ATSIC and WDPAC that he was not to start on 27 March 1995.  He tried a number of times to contact ATSIC and WDPAC.  He wrote a letter dated 24 April 1995 to ATSIC confirming that he was ready to commence duties immediately and asking them to "expedite details" for his travel date.  He also wrote to the chairperson of Jigalong Community Incorporated asking for further instructions.  Dave de Wilberforce, chairperson of Jigalong Community Incorporated, wrote to Mr Samnakay by letter dated 11 May 1995 in the following terms:

"The Council of the Jigalong Community Incorporated acknowledges receipt of your letter dated 8 May 1995.

At a meeting of the council on Tuesday 9th May 1995 your correspondence was tabled for discussion.

It was resolved at council that you be advised that any communication regarding the subject you have referred to must be addressed to the WDPAC office in Port Hedland and/or the ATSIC office in South Hedland."

Mr Samnakay's evidence was that nobody subsequently confirmed or denied that he was to commence the employment.  He received no further correspondence after this time despite a number of attempts by him to inquire about what was happening about the job.

It appears that both Mr Shelton and Mr Samnakay made many attempts to contact WDPAC, ATSIC and Jigalong but that further attempts at contact finished by early to mid June at the latest.

The positions were re-advertised in the West Australian newspaper in November 1995.  Both Mr Shelton and Mr Samnakay once again applied for the positions, which appeared to be the same as the positions which they had formerly been advised they were successful in obtaining.  The selection criteria were slightly different.  Both applicants were subsequently advised that they were unsuccessful in their applications.

Both Mr Samnakay and Mr Shelton filed applications pursuant to Section 170EA of the Industrial Relations Act in this Court in September of 1995.

This is a most unusual case, as not only did the applicants never start work for the respondent, but they were never formally advised by the respondent or its representatives that their employment was not to proceed or that their employment was terminated.

It is clear from the documentary evidence in this matter that there was a formal offer of employment made to both Mr Shelton and Mr Samnakay by WDPAC, acting as agent for Jigalong Community Incorporated.  The formal offers of employment were expressed to be subject to a three month probationary period.  The applicants both formally accepted the offers of employment.  Mr Samnakay was given a starting date of 27 March 1995.  Although Mr Shelton was never given a firm starting date, I am prepared to infer that it was originally intended that he commence his employment on 27 March 1995 or very soon thereafter.  This is because the letter of offer of employment expressed some urgency in the request for a response by Mr Shelton.

The difficulty this Court is faced with is whether it has jurisdiction to hear and determine the matters.  I put to counsel for the applicant that I had concerns whether it could be said that there was "a termination at the initiative of the employer" necessary to attract jurisdiction, and, if there was, whether that termination occurred within the period of probation. When I raised with counsel for the applicant the question of whether there was a "termination" within the meaning of the provisions of the Industrial Relations Act, he submitted that this was a case of constructive dismissal. He said that the concept of "constructive dismissal" is accepted as a situation where an employee is put in a position where the employment relationship is at an end.  It was submitted that the conduct of the respondent in this matter fell within the concept of "constructive dismissal". 

As an alternative, it was put that the date of termination could be inferred and the re-advertisement of the same positions in November was pointed to.

It is my view that on any reasonable view of the facts, the termination of employment, if it did occur either in fact or by way of constructive dismissal, must have occurred at some point within the three month probationary period. This is because it was originally clearly intended that the applicants start their employment on 27 March 1995 or a date close to that date. The respondent did not appear at the hearing. All one can assume is that at some point around that time, the employer for some reason decided that the employment was no longer acceptable to it. There appears to have been a breach of contract on the part of the employer but it is my view that the applicants are jurisdictionally barred because of the operation of Regulation 30B of the Industrial Relations Regulations. Although there was a contract of employment, that contract clearly stipulated in advance a period of probation of three months. The question of whether or not that period was reasonable was not argued before me. However, in view of the fact that the applicants were both unemployed at the time of accepting the offer of employment by the respondent and because it appears that neither had any prior experience working with aboriginal people, I consider that a three month probationary period is in all the circumstances reasonable.

In view of the foregoing, I find that if a termination did occur, it occurred within the three month probationary period and that the applicants are therefore excluded from the unlawful termination of employment provisions of the Industrial Relations Act. I do so reluctantly, because as I stated at the hearing of this matter I have considerable sympathy for the applicants and understand the disappointment and frustration they must feel as a result of the actions or inaction of the respondent. They have never been given any reason why the respondent did not want them to start work. The whole situation is most unfortunate and does not reflect well upon the respondent.

The applications are dismissed.

I certify that this and the preceding six pages are a true copy of the Reasons for Judgment of Judicial Registrar Boon.

Associate

Date:

Counsel for the applicants:                Mr M J Hardy
Solicitors for the applicants:              Clayton Utz

No appearance by the respondent                  

Hearing date:         13 March 1996
Judgment date:      21 March 1996