Ward v Commissioner of Police

[1998] FCA 872

JOHN WARD v. COMMISSIONER OF POLICE
No. WI 1137 of 1996
FED No. 872/98
Number of pages -
Industrial Law

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

MOORE J

Industrial Law - termination of employment - application under s 170EA Industrial Relations Act 1988 (Cth) - applicant employed as an aboriginal police aide under s 38A(1)(b) Police Act 1892 (WA) - termination due to alleged unacceptable attitude towards domestic violence displayed during video-taped record of interview - whether valid reason for termination - whether employer had demonstrated valid reason relating to employee's conduct or capacity having regard to alleged attitude - obligation of employer to raise conduct or performance issues that might lead to termination - whether reinstatement appropriate remedy.

Industrial Relations Act 1988 (Cth) ss 170DC, 170EA, 170ED, 170DE, 170EDA(1), Regulation 30BB

Police Act 1892 (WA) s 38A(1)(b)

Australian Police Act 1979 (Cth) s 26B

Puccio v Catholic Education Office (1996) 68 IR 407, considered

Murdoch University v Bruce Mainsbridge (unreported, Industrial Relations Court of Australia, Full Court, 12 June 1998), cited

Perrin v Des Taylor Pty Ltd (1995) 58 IR 254, cited

Perkins v Grace World Wide (Australia) Pty Ltd (1997) 72 IR 186, cited

Konrad v Victorian Police (1998) 152 ALR 132, considered

PERTH, 18 and 20 February 1998 (hearing), 28 July 1998 (decision)

#DATE 28:7:1998

Counsel for the Applicant: Mr T H Offer

Solicitor for the Applicant: Crown Solicitor for the State of Western Australia

Counsel for the Respondent: Mr R L Hooker

Solicitor for the Respondent: Aboriginal Legal Service of Western Australia Inc

THE COURT ORDERS THAT:

1. The parties file in the Perth Registry before 4.00pm, Friday 31 July 1998 short minutes of order to give effect to these reasons for judgment.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court of Australia Rules.

MOORE J

Introduction

On 25 March 1996 an application was made by Mr John Ward under s 170EA of what was then the Industrial Relations Act 1988 (Cth) ("the Act"). In terms, the application was a claim of unlawful termination of employment and an application for a remedy. Mr Ward identified his occupation as police aide and his former employer as the Commissioner of Police ("the Commissioner"). Mr Ward is an aboriginal who was employed as an aboriginal aide appointed under s 38A(1)(b) of the Police Act 1892 (WA). On 29 April 1996 the Australian Industrial Relations Commission issued a certificate under s 170 ED of the Act certifying that it had been unable to settle the matter by conciliation and that the parties had not elected to have the matter dealt with by consent arbitration. It was thus a matter for the Industrial Relations Court of Australia to hear and determine: see s 170ED(2). For reasons it is unnecessary to detail, the application did not come on for trial until November 1997. At that time the relevant jurisdiction of the Industrial Relations Court of Australia had vested in the Federal Court of Australia ("the Court") by operation of the Workplace Relations and Other Legislation Amendment Act 1996. On 14 January 1998 I gave judgment in this matter answering two preliminary questions concerning the jurisdiction of the Court. The earlier reasons for judgment should be read with these.

The Background

The termination of Mr Ward's employment arose, indirectly, from an incident on Saturday 3 February 1996. At approximately 9.30pm Mr Ward drove another aborigine, Mr Darryl Williams, to a house where Mr Williams' wife, Mrs Marielle Williams, was living. While Mr Ward remained in his car, Mr Williams went to the house. There was a dispute between Mr Williams and his wife and, at one point, Mr Ward heard a scream. He got out of the car and saw Mr Williams dragging his wife along the ground. Mr Ward helped Mrs Williams up and both Mr Williams and Mrs Williams got into the car. They all then drove to another location and both Mr and Mrs Williams got out of the car and left Mr Ward. It is possible Mr Williams (or his son) had placed in the car an aluminium baseball bat before he went to where his wife was living. It appears that Mr Williams may have hit his wife with the bat that evening though Mr Ward has denied at all times that he ever saw that happen. What is not in doubt is that as a result of events on the evening of 3 February 1996, Mrs Williams sustained a fracture to her skull and a broken arm.

At approximately 6.30pm on Sunday 4 February 1996 a record of interview was conducted with Mr Ward by Detective Sergeant Vokes and Detective O'Rourke. At the beginning of the record of interview Mr Ward was cautioned. It was clear from comments then made that Mr Ward knew he might be charged. The record of interview was recorded on video-tape. Mr Ward gave evidence in these proceedings, which I accept, that he had been detained for several hours before the interview was conducted and in that time had spoken to other officers of the Western Australian Police Force about the matter. I will consider the record of interview in more detail shortly. On 5 February 1996 Mr Ward was served with a "notice of suspension" signed by Inspector D McLeod who was then Acting Commander (Discipline). Mr Ward was later sent a notice of intention to revoke appointment ("the notice of intention") dated 29 February 1996 signed by the Commissioner. The notice of intention read:

TO: ABORIGINAL AIDE JOHN FREDERICK WARD, (PA 154)

TAKE NOTICE that, exercising the powers vested in me under the provisions of Section 38A of the Police Act 1892-1982 as Commissioner of Police unless you show cause to the contrary within seven days from the receipt of this Notice, I intend to revoke your appointment as an Aboriginal Aide under Section 38A of the Police Act on the ground that:-

during the course of a video taped interview with Criminal Investigation staff on February 4, 1996, you displayed the attitude that the assault by Darryl Burgess Williams on Marielle Ann Williams should be treated as an Aboriginal dispute between husband and wife and, at the same time, express the opinion that Williams was within his rights to force his wife to go with him and whether he assaulted her or not was their concern.

The notice of intention resulted in a letter dated 11 March 1996 from Quigley Coulson, Barristers and Solicitors, to the Commissioner. It is desirable to set out the letter in its entirety:

Our Ref: JRQ:90560296

11 March 1996 CONFIRMATION

OF FACSIMILE

The Commissioner of Police

Western Australia Police Service

2 Adelaide Terrace FACSIMILE TRANSMISSION

PERTH WA 6000 268 7616

Attention: Acting Assistant Commissioner J Mackay

Dear Sir

ABORIGINAL AIDE - JOHN FREDERICK WARD (PA 154)

NOTICE OF INTENTION TO REVOKE APPOINTMENT

We refer to our recent telephone conversations and confirm that we act for Police Aide Ward.

At this point of time our instructions are limited to responding to the Notice served on our client to show cause why his appointment as an Aboriginal Aide should not be revoked. The grounds contained in the Notice are that during the video taped interview on 4 February 1996 he displayed the attitude that the alleged assault upon Marielle Williams by her husband Darryl Williams, should be treated as an Aboriginal dispute between husband and wife and, at the same time, he expressed the opinion that Mr Williams was in his rights to force his wife to go with him and whether he was assaulted or not, was the concern of only Mr and Mrs Williams.

The writer has viewed and considered the video tape carefully. In our opinion, the way the interview was conducted is open to some criticism. It appears that the interview got out of hand at times to the extent that at one point the senior interviewer apologised to PA Ward for letting it get out of hand.

Throughout the interview the Criminal Investigation staff expressed frustration with the way in which PA Ward was answering the questions and from time to time sought to put words into his mouth. A good example of this appears on the video tape at the time displayed as 19.34, where one of the interviewers states:

"I can understand that as a member of the Aboriginal community that was more important to you than being a Police Aide, but to watch someone getting shit belted out of them ..."

If you view the video, you will see that PA Ward never said those words or anything like them. The statement was purely an expression by the interviewer of his opinion about what he thought Ward was saying. The interviewer's opinion was inaccurate and did not reflect Mr Ward's views or attitude to the matter. It is a statement of opinion by the interviewer and nothing else.

Further, at 19.39 the interviewer says:

"The child of the Williams' who was present saw his mother being beaten senseless."

PA Ward never said or admitted that. He has always denied ever seeing an assault upon Mrs Williams. Then at 19.46 the interviewer put to PA Ward that he had no right to take her. There was no clear response made to this question by PA Ward.

Again, at 19.47 one of the interviewers put to PA Ward:

"Why is it his business if he beats his wife."

PA Ward never made such a statement. Again, it is a statement attributable solely to the interviewer and does not in any way display an attitude on the part of PA Ward.

In all, the interview is most confusing and we cannot identify anything in it where PA Ward directly displays an attitude or expresses an opinion as mentioned in the Notice.

In this regard, we consider that the Notice seeks to cast a totally inaccurate interpretation of PA Ward's statements at the interview.

In the circumstances, we respectfully request you to direct us to the statements made by PA Ward, as opposed to the leading assertions advanced by the interviewers, upon which you rely to support the interpretation of the interview as contained in the Notice so that we can properly address them in a response for PA Ward.

Whilst we accept that our request might be considered to be burdensome, we believe that it is in the interests of fairness for you to direct us to the passages of the interview where the Department would assert that Ward's answers evidence the attitude and opinion as alleged in the Notice.

We agree that this matter should be resolved as soon as possible, but are concerned that an expedited resolution of the matter could deprive our client of his right to natural justice. It is to be remembered that the Service is not seeking to dismiss Ward because he is guilty of the offences charged in the complaint but because he displayed an unacceptable attitude and expressed an unacceptable opinion during the interview. That being the case, and given that this interview was, to put it at its best, awkwardly conducted, presents us with a problem with addressing grounds of the Notice.

Please be assured that this reply is not merely prevarication and obstification [sic] in order to confuse and cloud the issue, but a genuine request to properly reply to the Notice on behalf of PA Ward.

We would appreciate receiving your response to our request as a matter of urgency. We trust that in the meantime you will not proceed to a final decision in the matter without giving our client a reasonable time to submit a further and more detailed response.

Yours faithfully

QUIGLEY COULSON

Per. John Quigley

There was no response as requested. On 15 March 1996 the Commissioner signed an instrument under s 38A of the Police Act(WA) 1892 revoking the appointment of Mr Ward as a member of the Police Force of Western Australia effective 22 March 1996.

The record of interview

It can be seen from the notice of intention that the ground upon which Mr Ward's employment as an aboriginal aide was being terminated related to the attitude he displayed in the video-taped record of interview undertaken on 4 February 1996. In these proceedings the Commissioner has identified, by way of providing particulars, parts of the record of interview that were said to found the conclusion that Mr Ward's attitude warranted his dismissal. However counsel for the Commissioner stressed, and I accept, that the video taped record of interview must be viewed as a whole.

What I now propose to do, as a convenient way of dealing with the evidence, is to set out each of the passages identified by the Commissioner. I was provided with a transcription of the video and extracts of it which generally I have relied on. I have, however, made changes to the passages where there is an obvious divergence between what I was provided in writing and the tape itself. I also propose to set out the evidence given by Mr Ward in these proceedings which, effectively, constituted an explanation of each of the statements. I will also set out the evidence of Inspector McLeod in these proceedings in which he expressed a view about a number, though not all, of the passages.

Passage 1:

Ward: Because if they want to get together and talk they don't need the family around them.

Vokes: Yeah

Ward: It's a thing that they have to sort out themselves nobody else

Vokes: Right

Ward: Even if they have a big wing-ding fight and smash each other up it is their life, they put themselves in it you know ...

This passage related to couples involved in domestic disputes.Mr Ward explained that what he was saying was that in aboriginal communities, families will often get involved in arguments which are essentially between two people, and by doing so, escalate the scale of the fight. He thought that it was useful to remove the arguing parties from the influence of family, allowing them to sort things out between themselves. Mr Ward suggested that it was only if any violence arose that another party (like an aboriginal aide) might decide to intervene. The statement that "it was their life, they put themselves in it" was not intended to mean that police should stand by if physical violence occurs.

When told of Mr Ward's explanation of this passage, Inspector McLeod said he accepted the principle of getting people away from their families in order to sort their problems out. He said, however, that he viewed the statement "smash each other up" in context as meaning physical violence. While he did not say so expressly, he may have viewed Mr Ward's statement as one condoning physical violence. He agreed that leaving people alone might be appropriate, but only in the absence of violence. He believed that if violence occurred, an officer must stay to address it and not leave it alone.

Passage 2:

Vokes: Well hang on why did you think she was on the ground? Ward: She was dragged.

Vokes: Why did she go from a standing position to being on the ground? Do you know the answer to that?

Ward: No because I know Greg ...

Vokes: Well let's forget about what Greg is doing and lets think about what you are doing.

Ward: Right

Vokes: You have got a man and woman husband and wife.

Ward: Nothing to do with me.

This passage related to Mr Williams dragging his wife away from the house. "Greg" is a reference to one of their sons. Mr Ward explained that an argument between a man and wife had "nothing to do with him" until they physically turned on each other. Until he had heard Mrs Williams scream, he had believed that there was nothing for him to take notice of. He had got out of the car to respond to any violence that might have been occurring, because he believed that he had a duty to prevent violence. Inspector McLeod appeared to be not unduly concerned about this statement.

Passage 3:

Ward: ...she was on the road and I thought something like that might of happened because she's only a bony woman anyway (laughter), so I don't think Darryl would be hitten her so hard

This passage also relates to the events flowing from Mr Williams dragging his wife away from the house. Mr Ward said that he had laughedwhen describing Mrs Williams as a "bony woman" because he had wanted to break a communication barrier that had formed during the interview. He thought that some humour might bring the interviewing officers down to his level, as they were alienating him and not treating him like a colleague. He believed that by describing Mrs Williams as a "bony woman", he was talking in the way that police talk amongst themselves, in the hope of changing the hostile tone of the interview. He did not intend to suggest that he thought assault was a laughing matter. He also did not appreciate the extent of Mrs Williams injuries at the time. In saying that "I don't think Darryl would be hitten her so hard", Mr Ward did not mean to imply that he expected Mr Williams to hit her in the first place. In any event, he did not think that Mr Williams would have hit Mrs Williams while in his presence.

Inspector McLeod did not see any particular significance in Mr Ward's laughing about Mrs Williams being a "bony woman". He did think initially, however, that the second half of the statement might have indicated some kind of foreknowledge by Mr Ward that Mr Williams was going to hit his wife, despite the evidence of Mr Ward to the contrary. However Inspector McLeod later indicated that his impression of this passage was that because Mrs Williams was a bony woman, Mr Ward thought that Mr Williams would not hit her as hard as he might someone else.

Passage 4:

Ward: Because you look at it now now we're criticising a Nyoongah family here this is two Nyoongahs right. Now everybody talks about culture interaction and ethnic programmes and that, Christmas Islanders down in Katanning right, that is a different culture again, they're belting their wives in the community, nobody does nothing about it because wife doesn't make a complaint. Then when someone does make a complaint they've got their own little group to deal with it in their family, in their structure. But when something like this here happens, and a Nyoongah bloke like Darryl's standing in the community, like if he was able to talk to her ages ago it wouldn't probably have come to so much of a heavy hand. You know if he was able to take her aside or the justice system was going to take Greg away and try and deal with the family and say Marielle you have got a drug problem and now she has started to push needles and then Darryl's kids and she has got two street kids or two kids ...

Mr Ward said that his general discussion of dispute resolution in Nyoongah families (aboriginal families in the area) had been an attempt to explain the self-reliant nature of many aboriginal communities, where problems are often dealt with by family and within community structures. Mr Ward said that what he was trying to explain in the interview was that domestic violence might not be preventable, but there are ways of trying to resolve the problems. In this case, people in the community should have spoken to Mrs and Mr Williams as responsible people and given them help to sort things out, as they might have done for other people. But Mr Williams was a person of authority within the community, and therefore people left Mr Williams to deal with things in his own way. Mr Ward claimed, for his own part, that in the police force there was not the time to perform the counselling role that is normally expected of a community member, although he did try to do so.

Passage 5:

Ward: I have lived 10 years belting my own missus. I've been up on assault for her. I've knocked her teeth out and I've been to courts over that but we've got no kids of our own and we've been living together and we're bringing up three kids and we've settled down

Mr Ward said that he had been attempting to explain to the interviewing officers that domestic violence was an experience which he personally had lived through. From it he had learned that "violence doesn't solve everything" and that "you've got to sit down and talk about your problems". He had not intended to suggest that because he had lived with violence, it was good way for Mrs and Mr Williams to live as well. On the contrary, he had meant to imply that "everybody has got to find their own way of living without violence".

Inspector McLeod did not accept this explanation, stating that it did not change his view that Mr Ward thought it was acceptable that he had perpetrated a serious assault against his own wife. He believed that Mr Ward's tone in the interview had suggested that "I did it to my missus and that was OK. We're still together and everything's OK". Inspector McLeod did not understand Mr Ward's statement as saying "I've learned from my own situation" or that "violence doesn't help".

Passage 6:

Ward: ... now that she's felt the pain of what he can give her, and they stay together you know just on their own, she'll compromise and realise she's got to go home and look after her kids and settle down properly. Now if she goes off the speed now that might teach her something but while she is at this house here they are all feeding her ..

This passage related to Mrs Williams' future after the incident. In speaking about "the pain of what he can give her" Mr Ward said that he had been referring to the pain that would be experienced if Mr Williams were taken away from Mrs Williams. From his experience observing other people, Mr Ward believed that the pain of separation often resulted in couples getting back together and the woman taking on the normal family responsibilities. He did not mean to suggest that Mr Williams was within his rights to hit his wife.

Inspector McLeod, on the other hand, believed that, at least on the face of it, the statement appeared to condone violence as a way of taming women.

Passage 7:

Vokes: ... don't you think it would have been wise for you to have paid a lot more attention to what was going on and got out of the car just so that you were there as the most level-headed of the two of them to supervise this interaction, don't you think that would have been the proper thing to do?

Ward: Yeah probably but then again I just sort of ..

Vokes: Well why didn't you do that?

Ward: Because you know over the years it is their row and let them go with it. Everybody else steps in their rows.

Mr Ward explained that "letting them go with it" meant that he was not interested in getting involved in any verbal argument between Mrs and Mr Williams, but if violence followed he would respond to it. On the night in question he had responded, he said, on hearing Mrs Williams scream, though it was then too late to prevent any act of violence. It had all happened very quickly and he believed that he could not have prevented it as he was not aware that the argument had turned from "their business" to violence. In saying that "everybody else steps in their rows", Mr Ward had merely meant to tell a story, and was not talking about the particular incident. He had meant to suggest that if they were rowing, and it became physical, he would have done something. In his opinion however, they were not rowing.

Passage 8:

O'Rourke: John this woman has just been knocked to the ground in you own admissions she was on the ground. She has just been dragged to the car by her husband who she has left and you yourself said you had knowledge that she would not have wanted to go with Darryl. Now you have seen Darryl drag her to the car and you ...

Ward: ... if you want to charge me with it because all this bull shit about Aboriginal affairs and stuff like that there my I tried my best to put these two in a place for a couple of days to sort it out.

Mr Ward explained in evidence that by "trying to put these two in a place ... to sort it out" he had been speaking of his attempts to arrange for a place where Mrs and Mr Williams could talk. He believed that "sorting it out" would not involve violence, because the violence was already over. He had not intended to force them to any place that they did not want to go. Mr Ward also claimed that he was not aware at the time, of the extent of Mrs Williams' injuries.

Inspector McLeod gave evidence, in relation to passage 7, that by saying "their row, let them go with it", Mr Ward had been referring not only to verbal argument but to violence as well. He conceded, however, that if Mr Ward had only meant to refer to verbal argument, and "putting people in a place" (in passage 8) in order to sort it out alone, then there was nothing objectionable about the statement.

Passage 9:

Vokes: So she didn't say anything which made you think that she ...

Ward: That she didn't want to be there.

Vokes: Didn't say anything.

Ward: No.

O'Rourke: In your opinion John, do you think that Darryl was within his rights as a husband to force Marielle (yep) into the car and for you to both drive her away?

Ward: .. I believe it was for him, being married to her, to set their life up properly ...

Mr Ward insisted that by nodding and saying "yep" in the course of the question, he had only been acknowledging the question, and had not intended to suggest that it was within Mr Williams' rights to force Mrs Williams into the car. He believed that Mrs Williams had not indicated that she did not want to go with them, and that if she had, he would not have made her go anywhere. In saying that he believed "it was for him married to her to set their life up properly", Mr Ward had meant that Mr Williams should aim to be more stable than "the rest of the Nyoongah boys" and settle down with his family.

Inspector McLeod rejected this explanation. He maintained that Mr Ward's nodding and saying "yep" as the question unfolded meant that he was agreeing with substance of what was being put to him. He did not think that any other interpretation was likely.

Passage 9A:

Ward: ... whether he belted her after and that there, that was their business ...

O'Rourke: Why is it their business if he beats his wife?

Ward: Well it happens with a lot of Nyoongahs down that way ...

Mr Ward explained that domestic violence being "their business" meant that if a woman wanted to make a complaint, and there was physical evidence, then the police could lay charges. Otherwise, he believed that he should not get involved in other people's rows unless they become physically violent. His comment was not meant to mean that he believed that anyone had the right to beat a woman so long as they were out of the view of police.

Passage 10:

Ward: Everybody else belts their woman and that.

Mr Ward explained that by saying "Everybody else belts their womans and that", he had not intended to imply that he believed such a practice was acceptable. He had only meant to explain that domestic violence was something that happened all the time, with police powerless to do anything about it unless the woman makes a complaint and there is physical evidence.

Inspector McLeod again rejected Mr Ward's explanation of what he had said. Inspector McLeod believed the statements implied that Ward thought that "it's not my business if they beat each other up", and that "as long as I'm not standing there, there is nothing I can do about it". McLeod saw this as totally contrary to what Ward was there to do, and indicative of a reluctance to take positive action.

A consideration of the record of interview

The video tape is in evidence and I have viewed it several times. Before dealing in detail with the various passages set out earlier, I should make some observations about my impressions of Mr Ward. He is obviously a proud man and has held a position of some standing in the local community. Prior to his appointment as an aboriginal aide, Mr Ward was chairman of the local Aboriginal Corporation and his appointment was the result of an invitation for him to apply made by the local police sergeant. His evidence, which I accept, was that he was approached to become an aboriginal aide because of his standing in the local community.

I should also say something about the way Mr Ward spoke in the record of interview and when giving evidence. Mr Ward's explanation of matters in evidence was essentially coherent though at times he was not entirely comprehensible. Both the sentence structure and the words he uses are not complex. He had a tendency to run discrete concepts together in a lengthy sentence that might ordinarily be broken into several sentences. Sometimes there was no direct logical connection between the discrete concepts that are run together in this way. Particularly in the record of interview, but also when giving evidence, he sometimes spoke quickly and softly with the result that what he said was hard to follow. Again, particularly in the record of interview, his speech was peppered with colloquialisms and slang. Both the officers conducting the record of interview were comparatively precise in their language. There was not complete accord between their speech and their ordered approach to ideas and that of Mr Ward. They may have been, to an extent, attributing a literal meaning to what Mr Ward said which may not have been intended by Mr Ward. To that extent Mr Ward may not have entirely understood the import of what he was being asked nor the entire consequences of what it was he was saying.

In relation to the first passage, his reference to "smash each other up" appears to be a reference to past events. That is, he was describing a situation where a couple have had a significant fight and one or both have hit or otherwise assaulted the other and what should be done as a consequence. He was saying, essentially, that in those circumstances it is desirable for a couple to resolve their own differences. I do not take it as a condonation by him of physical assault in terms of his responsibility as an aboriginal aide. Rather he was describing a circumstance in which families should not intervene and that when they do the couple's problems may be exacerbated.

As to the second passage, which is ambiguous, Mr Ward's explanation is one I accept though with some reservations.

The third passage is a little more problematic. Inspector McLeod appeared not to be concerned about the laughter. For my part, I doubt that the laughter was for the reasons explained by Mr Ward. However the critical passage, from the point of view of Inspector McLeod, was the section following the laughter. He appeared ultimately to accept that all Mr Ward was saying was that because Mrs Williams was a slight woman, it would be unlikely that Mr Williams would ever hit her hard. I also think it is likely that this was what was intended, though it is not free from doubt, and it was a description of what is likely to have been the fact. It probably does not involve condonation of a husband hitting his wife.

I accept Mr Ward's explanation of the fourth passage. As to the fifth passage, I do not view the way in which Mr Ward made the statement about his own conduct as an indication, on his part, that his own conduct was acceptable. The statement about his own past conduct was made in a context where he was explaining that different people with different cultures have a way of dealing with things irrespective of whether "white people" think it is right or wrong. His own history was raised as a means of exemplifying that and, in my view, for no other purpose.

As to the sixth passage I am not entirely sure that the explanation given by Mr Ward should be accepted. I rather think that the reference to "pain of what he can give her" was a reference to physical pain. However even viewed this way, it may have been a reference to past events. That is, what had happened, namely that he had assaulted her. I should add that it is not entirely clear at this point of the record of interview whether Mr Ward knew of the extent of Mrs Williams injuries. However I am not affirmatively satisfied, on the material before the Court, that he was aware though it is obvious from the video tape that he was made aware shortly after this passage. Nonetheless, the sixth passage contains a statement which might be viewed as linking, in either a condoning way or at least not critically, the compliant or even subservient behaviour of a woman after a physical assault.

I accept, with some reservations, Mr Ward's explanation of the seventh passage. As to the eighth passage, I accept generally Mr Ward's explanation. His view that they should be put together for a couple of days to sort matters out is consistent with the view he had expressed in the first passage that ultimately it is a matter for the couple concerned to resolve their difficulties.

As to the ninth passage I find it difficult to determine what Mr Ward meant when he said "yep". It may be that he was doing no more than he said in evidence he was doing. That is, acknowledging the question being put to him. It is also possible that he was signifying agreement with the proposition that had been put to him at that point in the question. I view Mr Ward's explanation in relation to the other passage (passage 9A) with some scepticism and it may well manifest an element of unacceptable disinterest in whether women are subject to domestic violence. As to the tenth passage I accept that the reference to what everybody did was intended to be descriptive only and to compare the circumstances of those that do to those of Mr Williams. That is, it was a description of what in fact happens and was not intended to imply an acceptance of such practices.

The parties' submissions

It is to be recalled that the notice of intention identified the conduct of Mr Ward which led to his dismissal in the following way. He had displayed an attitude that the assault by Mr Williams on Mrs Williams should be treated as an aboriginal dispute between husband and wife. At the same time, he had expressed the opinion that Mr Williams was within his rights to force his wife to go with him and that whether he assaulted her or not was their concern. It is clear that the complaint made about Mr Ward concerned his attitude as manifest in the record of interview. No attempt was made to prove, other than perhaps by way of admission, what happened on the evening of 3 February 1996 and whether, in fact, the conduct of Mr Ward on that evening was inappropriate, reprehensible or even criminal. However, I do not underestimate the difficulties the Commissioner would have had in attempting to prove what actually happened.

Section 170DE(1) of the Act provides that an employer shall not terminate an employee's employment unless there is a valid reason connected with the employee's capacity or conduct. While the subsection goes on to refer to the operational requirements of the employer, the Commissioner relied only on Mr Ward's capacity or conduct. The difficulty with the way the case has been framed by the Commissioner is that it must be demonstrated that Mr Ward manifested an attitude of the type referred to in the notice of intention and that the attitude constituted conduct or bore upon Mr Ward's capacity in a way that gave rise to a valid reason for termination. I should immediately say that I do not view what occurred during the conduct of the record of interview as raising any real question about the conduct of Mr Ward. He did nothing other than answer questions put to him by investigating police officers who had put him on notice that they were investigating possible criminal conduct and that he was at risk of being charged.

Counsel for the Commissioner referred to Puccio v Catholic Education Office (1996) 68 IR 407 in which von Doussa J discussed, at 417, the need to consider the position of the employer and the employer's legal and, possibly, social responsibilities. That case involved the dismissal of a teacher and his Honour made reference to the obligations a school has to preserve the safety and welfare of students at it. For reasons which I shortly explain I accept that analogous obligations of the Commissioner in the present case are a relevant consideration. Though to the extent that von Doussa J was, in Puccio, calling in aid his earlier judgment in Sangwin v Imogen (unreported, Industrial Relations Court of Australia, 8 March 1996) then his observations must be treated with some caution given that a Full Court of the Industrial Relations Court of Australia has recently doubted at least some of what his Honour said in Sangwin: see Murdoch University v Bruce Mainsbridge (unreported, Industrial Relations Court of Australia, Full Court, 12 June 1998).

Indeed it is helpful to refer to a passage from the reasons for judgment of the Full Court in Murdoch University. In the context of discussing the meaning of "valid reason" in s 170DE(1) the Court said (at 5), albeit in relation to the notion of valid reason as it relates to the conduct of an employee:

In our view, the section is concerned with validity by reference to a balance between the interests of both employer and employee in all the circumstances of the termination. Put another way, a valid reason is a reason which is fair and reasonable in the judgment of the Court to both employer and employee considering the totality of the facts. The task of the Court is to examine all of the circumstances of the termination and make a broad judgment concerning the soundness of the termination against the background of the particular relationship of the particular employer and employee.

In my opinion, these observations are an apt description of the task involved when considering the question of the capacity of the employee as well.

It is to be remembered that s 170EDA(1)(a) requires an employer to establish that there was a valid reason for a termination of the kind referred to in s 170DE(1). Thus the Commissioner must, in this case, demonstrate that he had a valid reason having regard to the capacity of Mr Ward. A person holding an office of police constable or its equivalent, may manifest an attitude toward criminal conduct that indicates he or she might not or would not carry out his or her responsibilities as a constable. I accept that the manifestation of such an attitude could put in real doubt the constable's capacity to perform the role required by that office. I do not accept the approach suggested by counsel for Mr Ward, namely that as long as there was no evidence that an inappropriate attitude had actually influenced conduct, then no question could arise about the capacity of the officer involved. I accept without reservation that were it demonstrated that a police officer, or an aboriginal aide, condoned domestic violence involving criminal assault then a real question would arise about the capacity of that police officer or aboriginal aide to undertake the onerous task of maintaining the peace and ensuring the maintenance of the rule of law. The difficulty in the present case is that while some of the passages relied upon provide some support for the view that Mr Ward may have such an attitude, and his responses in evidence did not provide an entirely satisfactory explanation of them, I am nonetheless left with real doubts about whether Mr Ward held views of the type founding his dismissal. The existence of the relevant attitude has not, in my opinion, been proved. Accordingly I am not satisfied that the Commissioner has demonstrated the existence of a valid reason.

Counsel for Mr Ward submitted that not only had there been a contravention of s 170DE but also contravention of s 170DC. That section provides:

An employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless:

(a) the employee has been given the opportunity to defend himself or herself against the allegations made; or

(b) the employer could not reasonably be expected to give the employee that opportunity.

It is to be noted that s 170DC refers to "conduct or performance" and does not replicate the language of s 170DE(1) which refers to "capacity or conduct". As far as I am aware there has been no decision of this Court or the Industrial Relations Court of Australia dealing with the operation of s 170DC in circumstances where there is only an issue about the capacity of an employee. However the reference in s 170DC to "conduct or performance" could reasonably be viewed as a reference to conduct or performance which manifests either conduct giving rise to a valid reason or manifests an incapacity providing a valid reason. Given that this part of the Act is beneficial legislation, it should be construed liberally. Accordingly s 170DC should be approached on the footing that it imposes an obligation on an employer to raise with an employee conduct or performance that may evidence incapacity that might lead to termination. There have been many statements as to the purpose of this section. One is found in Perrin v Des Taylor Pty Ltd (1995) 58 IR 254 at 256:

(Section 170DC) is not, as counsel for the respondent suggested, a technical requirement. Its purpose is at least twofold. It is to give the employee the opportunity to demonstrate that the allegations have no foundation in fact or they should not be viewed as reflecting on the employee's capacity. ...

A second purpose of s 170DC is that an employee with whom an allegation has been raised may be able to persuade the employer that, while the allegation is of substance, there are factors that should persuade the employer not to terminate the employment. They may be extenuating personal circumstances or they may involve undertakings about future conduct. The rights of an employee to be consulted before dismissal now embodied in s 170DC are not novel: see Gregory v Philip Morris Limited (1988) 24 IR 397 at 415; Wheeler v Philip Morris Limited (1988) 32 IR 323 at 346; Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20 at 35; Byrne v Australian Airlines (1994) 47 FCR 300 and in the United Kingdom: see Spencer v Paragon Wallpapers [1976] IRLR 373; Williamson v Alcan (UK) Ltd [1978] ICR 104; W Weddel & Company Ltd v Tepper [1980] ICR 286.

It may be accepted that s 170DC does not require that an employer undertake some formal process involving, for example, the provision of particulars on demand. Indeed, counsel for the Commissioner referred to O'Rourke v Miller (1985) 156 CLR 342 at 353 concerning the extent to which a Police Commissioner would be required to provide procedural fairness to a probationary police constable before the termination of his appointment. In the present case, however, I am not satisfied that s 170DC was complied with. A request was made in the letter of 11 March 1996 by solicitors acting for Mr Ward for the Commissioner to identify which parts of the tape were relied upon. No particulars were provided. There is an inherent difficulty for an employee, or anyone advising that employee, to deal with an allegation that the employee's attitude was one that rendered them incapable of doing the job they were employed to do given that attitude can be a nebulous and somewhat subjective notion. All the more so, in my opinion, when that attitude was said to arise in a record of interview being conducted for another purpose and which took place over a lengthy period. In my opinion, there was a minimum requirement that the Commissioner identify passages, as was ultimately done for the purposes of this hearing, that were said to manifest the attitude complained of. It may well be that the Commissioner could not have been bound by the passages that were identified had he responded to the letter from Mr Ward's solicitors. However none were identified and in my view s 170DC was not complied with.

The termination of Mr Ward's employment was in contravention of both s 170DE and s 170DC. This leads to the question of remedy. It cannot be doubted that reinstatement is the principal remedy: see for example Perkins v Grace World Wide (Australia) Pty Ltd (1997) 72 IR 186. In Perkins the Full Court dealt with the issue of the extent to which an allegation that there had been a breakdown in the relationship between employer and employee and a loss of confidence on an employer's part might result in an order for reinstatement not being made. The Court said (at 191):

Trust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties, without reasonable cause: see Burazin v Blacktown City Guardian Pty Ltd (unreported, Industrial Relations Court of Australia, Full Court, No 606/96, 13 December 1996). The implication is not confined to employers, it extends to employees: see for example Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 at 81-82 and North v Television Corporation Ltd (1976) 11 ALR 599 at 609. So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Div 3 of Pt VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.

Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.

In the present case there is a serious issue, in my opinion, about the extent to which there would be sufficient trust or confidence in Mr Ward's capacity to warrant an order for reinstatement. Inspector McLeod gave evidence that he did not believe Mr Ward would be able to discharge the duties of an aboriginal aide. Inspector McLeod was a most impressive witness and I accept without reservation that he bona fide held that view and that the view was a reasonable one. Police officers, and by analogy aboriginal aides, perform an unusual if not unique role of great social importance. Junior members of a police force should ordinarily have the confidence of their superiors. Notwithstanding the conclusion I reached that the Commissioner had not demonstrated a valid reason having regard to Mr Ward's capacity, I nonetheless consider that the evidence does raise a question about Mr Ward's attitudes and their possible impact on his capacity which militates against reinstatement.

Another consideration that militates against reinstatement is Mr Ward's attitude towards being reinstated. He has in the past indicated he did not wish to be reinstated and prevaricated on that issue when giving evidence. As I mentioned earlier in this judgment he struck me as a proud man and I have little doubt that he has found this whole experience humiliating and distressing. Indeed the extent of his distress was made clear when he gave evidence.

I have considerable reservations about whether Mr Ward wishes to return to his former employment. I rather apprehend that he wishes, by these proceedings, to have his position vindicated in the sense that he wishes to demonstrate that his termination was unlawful. For reasons earlier given, he has done so. Section 170EE confers on the Court a discretion in relation to the power to order the remedy of reinstatement by qualifying the power with the expression "if the Court considers it appropriate in all the circumstances of the case". In this case I do not consider it appropriate and I do not propose to order his reinstatement. Rather, I propose to order compensation be paid to Mr Ward equivalent to four months of his salary immediately preceding his termination. It was agreed between counsel that the necessary calculations could be done to determine the relevant amount and the order I will make will accommodate that agreement by allowing the parties to bring in short minutes to reflect these reasons for judgment.

Before concluding these reasons, I shall deal with one other matter. On 14 January 1998 I gave judgment in these proceedings on two legal issues. The first was raised in a question whether Mr Ward, being an aboriginal aide appointed under s 38A(1)(b) of the Police Act 1892 (WA), was a person whose employment had been terminated by the respondent within the meaning of s 170EA(1) of the Act. I answered that question in the affirmative and in the course of doing so considered the status of Mr Ward as an aboriginal aide. I do not repeat what I said in my reasons for judgment.

On 22 January 1988 Marshall J gave judgment in Konrad v Victorian Police (1998) 152 ALR 132 in which his Honour reached a fundamentally different conclusion on the operation of Division 3 of Part VIA of the Act as it might apply to members of police forces. It appears his Honour was, when giving judgment, not aware of the judgment I had given eight days earlier on generally the same subject matter. However his Honour had occasion to consider my judgment of 14 January 1998 in Orchard & Ors v Victoria Police, Federal Court of Australia, 6 February 1998, unreported. His Honour took issue with my reasoning. I make the following observations about his Honour's reasons in his judgment of 6 February 1998.

I accept what his Honour said about Regulation 30BB in that the word "employee" may restrict the class of person to whom the regulation applies. It may only apply to staff members who are appointed under s 26B of the Australian Police Act 1979. However the meaning of the word "employee" in Regulation 30BB would plainly be influenced by the scope of Division VIA itself.

In my earlier judgment I referred to the preparatory works leading to the making of the Convention. The approach of Marshall J to the scope of the Convention was to refer to the expressions "employed persons", "conditions of employment" and "employs them" in Art 2(5) of the Convention. His Honour said that (at 4):

The very terms of that paragraph, in particular the highlighted portions, support the view that the paragraph addresses categories of persons in employment, i.e. persons who are engaged in work by an employer who 'employs them'.

With respect to his Honour, this is a somewhat self serving approach to the issue. It is the meaning of those words that I sought to ascertain by reference to the preparatory works.

Resort to preparatory works can often illuminate the meaning of expressions in international instruments: see Christie v Qantas Airways Ltd (1996) 138 ALR 19 at 36-37 per Marshall J cited with approval in Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 142 ALR 99 at 103 per Wilcox CJ and von Doussa and Marshall JJ.

Marshall J earlier stated in his judgment of 6 February 1998 that the pre Convention deliberations did not support the view that police were intended to be covered by the Convention if police were not employees. His Honour said (at 4):

Whilst the pre-Convention deliberations of the International Labour Organisation ('ILO') reveal that a specific exclusion for 'the police' from the Convention was considered, I do not believe that that supports the view that police were intended to be covered by the Convention, if police were not employees. Plainly in some countries, police are considered to be employees. However, as I discussed in Konrad, in Australia there is High Court authority that police are not employees. See Attorney-General for

New South Wales v Perpetual Trustee Company (Limited) (1952) 85 CLR 237.

There is nothing, in my opinion, on a fair reading of the material to which I referred in my judgment of 14 January 1998, to support this conclusion assuming that his Honour had recourse to that material. None is referred to by his Honour. Indeed in the body of report VIII(2), in the section preceding the passage I quoted from p 27, there is a reference to the position adopted by the United Kingdom which was arguing, unsuccessfully as it transpired, that the armed forces should be excluded from the purview of the proposed Convention. One can scarcely doubt that the reference in the passage from p 27 to "other categories of workers, such as the armed forces, the police, defined categories of workers in essential services ..." was intended to be a reference to police and members of armed forces even though they might, in common law countries, not be treated as employees. The reference to workers in the proposed Convention was intended to be synonymous with employed persons. This congruence of meaning was perpetuated throughout the processes of deliberation resulting in the terms of the Convention itself. Any reference to workers or employees in both the pre-Convention deliberations and in the Convention itself involves the use of those words in their wider meaning unconstrained, in my opinion, by any unduly narrow domestic legal notions of what is an employee or a worker.

I propose to order that the parties file in the Perth Registry before 4pm on Friday, 31 July 1998 short minutes to reflect these reasons for judgment.