Thompson and Lakes Entrance Gunai Women's Aboriginal Corporation

[1995] IRCA 53

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1942 of 1994

B E T W E E N :

LIONEL LLOYD THOMPSON
Applicant

AND

LAKES ENTRANCE GUNAI WOMEN’S ABORIGINAL CORPORATION
Respondent

Before:       Judicial Registrar Chancellor
Place:         Melbourne
Date:          13 February 1995

REASONS FOR DECISION
(EX TEMPORE REVISED FROM TRANSCRIPT)

This is an application pursuant to section 170EA of the Industrial Relations Act in respect to the termination of the employment of Lionel Lloyd Thompson by The Lakes Entrance Gunai Women's Aboriginal Corporation on 5 October 1994. Pursuant to Section 430 of the Act, there is also an associated claim for arrears of wages and superannuation payments, and I believe it is appropriate that I deal with that claim as it is clear that matters of earnings and payments are relevant in determining any compensation pursuant to this Act.
Mr Thompson commenced employment with the Respondent in November 1993 pursuant to a contract offer dated 15 November 1993.  He initially commenced on a part‑time basis.  A further contract offer of 8 March 1994 increased his salary but he continued on a part‑time basis as the administrator of the Respondent.  A further contract offer dated 30 June 1994 was accepted and Mr Thompson became a full‑time administrator from that date, earning $38,604.00 gross per annum.  I note that in each of the contract offers, under the heading "Type of Appointment",  the following words appear:-

“The abovementioned position will be ongoing depending on          funding.”

It is clear that when Mr Thompson entered into the contract of 30 June 1994 that he expected to be employed for a period of 12 months.  However, it appears that due to some irregularities, which it appears have nothing to do with Mr Thompson, an investigation was carried out into the Respondent by the Aboriginal and Torres Strait Island Commission, known as ATSIC.  The Respondent was aware, as a result of a meeting on 28 July 1994, that an investigation was to take place.  The investigation took place in September of 1994 and it appears that a recommendation was made that no further funding be provided by ATSIC to the Respondent.

During the period from July 1994 to September 1994, Mr Thompson continued working at the request of the committee of the Respondent.  He also had some discussions with regional superiors of ATSIC, Ms Scholten and Ms Hansen, and on the basis of their responses he felt that he would continue to be paid a wage and that it was likely that his employment would continue.  It appears that ATSIC wrote to the committee of the Respondent on 27 September 1994 advising them that no further funds would be released.  By letter dated 5 October 1994 the committee on behalf of the Respondent wrote to Mr Thompson advising him that, as a result of the ATSIC review and withdrawal of funding, Mr Thompson's position would be terminated as at 5 October 1994.  This was the first formal advice that he received that his employment would be terminated.

Due to the problem with funding, Mr Thompson had not been paid since the week ending 9 August 1994.  He claims loss of wages for the eight week period from 9 August to 5 October at the rate of $742.40 gross per week, a total sum of $5,939.20.  In addition he claims superannuation entitlements at the rate of 4 per cent for that same eight week period, at the rate of $29.69 per week, a total of $237.56.  It seems to me that he is clearly entitled to those sums.  In addition, Mr Thompson claims, pursuant to section 170DB, at least one week's pay in lieu of notice.  Again I believe that he is clearly entitled to this amount, which totals $772.09 inclusive of superannuation.

Further, Mr Thompson is entitled to one week's pro rata holiday pay which accrued during the course of his employment, and I calculate that in the sum of $742.40.

In addition to his statutory entitlement and entitlement pursuant to his contract, Mr Thompson seeks compensation on the basis that the termination of his employment was harsh, unjust or unreasonable.  It seems to me that there is clearly a valid reason for termination in that, in the absence of funding which has continued since October of 1994, the Respondent is simply unable to pay.  For the same reason reinstatement is clearly impracticable because although the Respondent is still a registered corporation and has a committee it has no funding and currently carries out no activities.

In my opinion by giving Mr Thompson a 12 month contract and by indicating to him, at least up until September of 1994, that his position was still a viable one, there has been insufficient notice and consultation with Mr Thompson.  Indeed he was led to believe that his position was likely to continue.  In the circumstances, given the lack of notice, lack of consultation and lack of warning, it seems to me to be appropriate to award compensation.  I fix compensation in the sum of $3,000.00 which represents somewhere in the vicinity of four weeks payments.

It was argued that Mr Thompson should be paid with respect to the remaining period of his contract of employment, but given that that contract contains the phrase that:-

“The position will be ongoing depending on funding -”

I do not think that is appropriate in the circumstances.

THE COURT ORDERS THAT:

1.      Pursuant to the contract of employment, Mr Thompson be paid the        sum of $6,919.16.

2.      Pursuant to section 170DB, Mr Thompson be paid the sum of       $772.09.

3.      Pursuant to section 170EE, Mr Thompson be paid the sum of       $3,000.00 by way of compensation.

4.      There be a stay of seven days with respect to the total sum payable        by the Respondent to the Applicant of $10,691.25.

NB  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

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

Associate:            
Dated:  13 February 1995

Solicitors for the Applicant:    Messrs Simon Parsons & Co
Counsel for the Applicant:     Mr G Burns

Solicitors for the Respondent: Lakes Entrance Guinai Womens   Aboriginal Corporation
No appearance for Respondent

Date of hearing:  12 December 1994, 13 February 1995
Date of judgment:                   13 February 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1942 of 1994

B E T W E E N :

LIONEL LLOYD THOMPSON
         Applicant

AND

LAKES ENTRANCE GUNAI WOMEN’S ABORIGINAL CORPORATION
Respondent

MINUTES OF ORDERS

Judicial Registrar Chancellor  13 February 1995

THE COURT ORDERS:

1.      Pursuant to the contract of employment, Mr Thompson be paid the        sum of $6,919.16.

2.      Pursuant to section 170DB, Mr Thompson be paid the sum of       $772.09.

3.      Pursuant to section 170EE, Mr Thompson be paid the sum of       $3,000.00 by way of compensation.

4.      There be a stay of seven days with respect to the total sum payable        by the Respondent to the Applicant of $10,691.25.

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