Watkinson v Commonwealth of Australia
[1997] IRCA 84
•21 March 1997
DECISION NO:84/97
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - whether employment under Member of Parliament (Staff) Act 1984 Part 111 or Part IV - oral variation of employment contract - whether applicant dismissed for pregnancy - identity of respondent - claim of unlawful termination - compensation - whether reinstatement impracticable
Workplace Relations Act 1996 (C’th)(formerly Industrial Relations Act 1988)
ss 170DC, 170 DE, 170DF, 170 EA, 170 EE
Member of Parliament (Staff) Act 1884
Chapman v Commissioner of Police (1983) 50 ACTR 23; (1983) 50 ALR 23
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371
Nettlefold v Kym Smoker Pty Ltd (unreported), IRCA, Lee J, 4 October 1996
Nicolson v Heaven & Earth Galleries (1994) 1 IRCR 199
James Patterson & Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Newcrest Mining Ltd, (unreported) IRCA, WI595R of 1994, Marshall J, 21 December 1995
Liddell v Lembke (t/as Cheryl’s Unisex Salon) (1994) 127 ALR 342
Colleen Mary Coll and Australian Services Union v Shire of Yarra Ranges, (Unreported) IRCA VI 4112R of 1995, Marshall J, 24 February 1997
WATKINSON -v- COMMONWEALTH OF AUSTRALIA
NI 1732 of 1996
Before: TOMLINSON JR
Place: SYDNEY
Date of Hearing: 18 & 19 NOVEMBER & 19 & 20 DECEMBER 1996
Date of Judgment: 21 MARCH 1997
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI 1732 of 1996
BETWEEN:
Cheryl Maree WATKINSON
Applicant
AND
COMMONWEALTH OF AUSTRALIA
Respondent
BEFORE: TOMLINSON JR
PLACE: SYDNEY
DATE: 21 MARCH 1997
MINUTES OF ORDERS
THE COURT ORDERS THAT:
Respondent to reinstate the applicant to the position of Electorate Officer Grade B. within one month.
Subject to the payment of income tax, the respondent is to pay to the applicant compensation equal to the amount she would have received had the termination not occurred.
Leave to restore the matter at short notice.
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
NEW SOUTH WALES DISTRICT REGISTRY
NI 1732 of 1996
BETWEEN:
Cheryl Maree WATKINSON
Applicant
AND
COMMONWEALTH OF AUSTRALIA
Respondent
BEFORE: TOMLINSON JR
PLACE: SYDNEY
DATE: 21 MARCH 1997
REASONS FOR DECISION
This is an application for reinstatement under the Industrial Relations Act 1988
now the Workplace Relations Act 1996 (“the Act”) arising allegedly out of an unlawful termination. Mr Tracey Q.C. on behalf of the respondent questioned the standing of Mr Paul Matters to represent the applicant, Mr Matters being excluded by s 469 (7) of the Act. Shortly after commencement of the hearing Mr Matters advised that in order to resolve the difficulty the applicant had become a member of the Australian Workers Union. No issue was taken with that action.
In her evidence in chief Ms Cheryl Watkinson stated that on 25 May 1987 she commenced employment in a secretarial capacity in the office of Mr Stephen Martin, her local member of parliament It was not disputed that the applicant was employed under the Member of Parliament (Staff) Act, 1984, Part IV (“the MOPS Act”). Her work included preparation and distribution of a monthly newsletter, looking after the diary of Mr Martin and general office duties. David Campbell was the office manager, and as the applicant became familiar with the routines she began to assist constituents with problems and attending to various general electorate matters. Subsequently Mr Martin acquired parliamentary secretarial status attached to the Department of Foreign Affairs and Trade. Additional staff was employed to work in the electorate office, one of whom was Ms Alison Byrnes. The applicant recalled Mr Martin saying words to the effect that if he lost his portfolio then Ms Byrnes, would lose her job, as he operated on the basis of “last in first out”.
In May of 1993 Mr Martin became Speaker of the House of Representatives and the applicant was transferred to Canberra as part of ministerial staff as an assistant adviser. That necessitated a change to employment under Part 111 of the MOPS Act. The applicant, being a single parent, sought reassurance as to job security. The applicant stated that Mr Martin said to her that she “would always have a job as long as he had a seat in parliament.” The applicant denied the suggestion that at the time she was appointed as an assistant adviser Mr Martin said "the salary was greater than she had been used to but so was the risk of losing employment, and that on that basis she accepted the position." Subsequently the applicant returned to work in the Corrimal Office, whilst being paid under Part 111 of the Mops Act, however at a reduced salary.
After the elections in March 1966 Mr Martin was no longer Speaker. Staff reductions were necessary as at that point Members of Parliament were allowed only 3 staff. David Campbell had become the Mayor of Wollongong; it was also definite according to the applicant that employees Ms Claire Cooney and David Brown would lose their jobs. Agreement was reached with the in-coming government that the last day of work for people employed in the Canberra office of the former Speaker was to be 14 May 1996.
On 21 February 1996 the applicant learned she was pregnant with her second child. On 25 March 1996 the applicant was absent from the Corrimal office arranging her forthcoming wedding. On 26 March 1996 she attended the office and had a meeting with Mr Martin when he stated that he had 4 staff members for only 3 positions at the Corrimal office, and the employees under consideration were Tony McLeod, David Brown, Alison Byrnes and the applicant. Mr Martin presented the applicant with various options for her future employment. The applicant said she told Mr Martin that she had become engaged, planning shortly to be married, and that she and her fiance had just entered into an arrangement to buy a house.
It was the evidence of the applicant that about the time of the meeting of 26 March, there was a second meeting in the office of Mr Martin one lunch time. At that meeting job descriptions and allocations of duties within the electorate office were discussed. Mr Martin asked David Brown if he had submitted his resume to the list of candidates seeking re-employment by labour politicians. In cross examination the applicant denied that all the staff of Mr Martin were advised to put their names on the list offering themselves for alternative employment. However in her evidence in chief the applicant stated that Deborah Biggs gained employment from being selected from that list, but that Mr Martin had not requested the applicant to put her name on the list. Shortly thereafter another meeting took place and at that time from the job descriptions provided, (those descriptions being admitted as exhibits), it was clear to the applicant that she was to be re-deployed. In his evidence Mr Martin confirmed those details. On one of the lists Mr Martin had written “Temporary Office Responsibilities” and stated that he did not know why he used the word “temporary”. The applicant was provided with a copy of an employment agreement which was never completed as the applicant was unaware of certain superannuation details. The applicant stated a conversation took place between herself and Mr Martin in April 1996 wherein he offered the position of Electoral Assistant grade B to her, and advised her that the salary would be at the high end of the scale. The applicant said she accepted with words to the effect that she wanted the position. It was the understanding of the applicant that David Brown was to be the electoral assistant Grade A., an appropriate position in light of the duties he performed. During the course of the proceedings the Court heard reference to 150 pre-selection votes involving Mr David Brown. Upon reflection I am unable to accord weight to any of that evidence.
On 1 May 1996 the applicant said she had a telephone conversation with Mr Martin during which he said words to the effect that he “now had to do one of the hardest things he ever had to do” and that “he was going to let her go with other members of the Speakers staff.” The applicant said that she asked why, and that Mr Martin said that other staff members had complained about her and said she was unbearable to work with. In re-examination the applicant stated that it was in court for the first time that she had ever heard criticisms or complaints about these matters and that previously they had not been brought to her attention. The applicant asked Mr Martin that consideration be given to her working until November, then taking maternity leave and that long service leave be taken into consideration. The request was denied and the applicant said Mr Martin asked her to leave the office that day. The applicant said she was devastated and that after 9 years of employment she simply packed her belongings and left the office.
The applicant stated that on may occasions Mr Martin had expressed the view that he adopted the “last on first off” approach to staff re-adjustments due to political fall out. The court heard evidence as to how the applicant performed her tasks involving the Price Watch program, postal votes and the Australia Remembers program. The evidence of all the witnesses on those matters per se was equivocal and I make no finding as to the correctness of the allegations, but I am of the view the existence of the allegations are relevant when consideration is given to the circumstances surrounding the termination.
In cross examination on the third day of the hearing of the matter the applicant was shown exhibit B being a letter she had written to Mr Peter Costello, the then Federal Treasurer. The applicant said as part of the political scenario letters under pseudonyms were often written, with the knowledge and approval of Mr Martin for political purposes. I am unable to place weight on the letter for the purposes of these proceedings.
It was put to the applicant that certain conversations had taken place between herself and Ms Byrnes concerning alleged harassment and unpleasantness. I am unable to accord that evidence much weight as there was no evidence that the matters were ever raised with the applicant during the course of her employment, but only after the decision to terminate her had been taken.
On behalf of the applicant the Court heard from Ms Claire Cooney who had been employed by Mr Martin from May 1993 until 1996. Ms Cooney began work in the Corrimal office and then transferred to Canberra to the Speakers Office. Ms Cooney stated that her employment interview was conducted in the presence of the applicant, Tony McLeod and Alison Byrnes. Ms Cooney stated that Mr Martin had imparted to her the understanding that if he lost his position as Speaker then he would keep all his old senior staff, one of whom was the applicant. I found Ms Cooney to be a credible and reliable witness.
On behalf of the applicant the Court heard from Mr Tony McLeod who stated that he had commenced employment with Mr Martin in 1990. Employed at that time were the applicant and David Campbell. Mr McLeod confirmed earlier evidence in relation to staff increases, and also confirmed that he had been present when Mr Martin had told more recent employees that the jobs of senior staff were the more secure.
Mr McLeod stated the applicant was “good to work with”, that she was professional, determined, efficient and a most experienced staff member. The witness could recall no complaints as to the standard of the applicant’s work. The Court heard some evidence of minor friction's with the more junior Alison Byrnes, that the witness attributed to differing methods of work. After the loss of government, all employees wondering about job security generally and Mr McLeod was of the view that the applicant would keep her job as she and Mr Martin were very close. Further, that as David Brown was the last to be taken on, in line with the policy of Mr Martin, then it was the opinion of Mr McLeod that Mr Brown would be the first to go.
On or about 20 March 1996 Mr McLeod had a discussion with Mr Martin in the Corrimal office wherein Mr Martin stated that he had 4 staff members and only 3 jobs to be filled. Apparently Mr Martin asked Mr McLeod if he was experiencing troubles with the applicant, and stated that he personally was finding things more difficult with the applicant. To this comment Mr McLeod stated he was reticent and apparently not forthcoming, but stated that Ms Watkinson was under pressure and that she had commenced to purchase a house. Mr Martin allegedly expressed the opinion his staff were like members of his family.
As a result of conversations with Mr Martin, Mr McLeod prepared options so that all 4 members of staff could be retained in employment for the 3 staff positions. Permutations and combinations were achieved and the options were given by Mr McLeod to Mr Martin, who allegedly was pleased with the results. It was understood by Mr McLeod that his suggestions would be implemented. Mr McLeod was firm that at that time in April 1996 it was his understanding that Mr Martin subsequently offered the applicant a on-going employment situation in his electorate office and that shortly after Mr Martin told him that the applicant had agreed to take the Electorate Officer Grade “B” position. Shortly after the applicant also confirmed to Mr Mcleod that she had accepted that position.
In early May Mr McLeod learned that Mr Martin came into his office in Canberra and said he had “just let Cheryl go.” Mr McLeod said he was shocked and it seemed that Mr Martin also had clear concerns that he had unfairly dismissed the applicant. In that regard the court heard some evidence of a meeting that took place about this time in the office of the Clerk of the House. Present were Mr Fitzgerald, Mr Barlin, Mr Martin and Mr McLeod. Admitted into evidence as exhibit A was a letter of advice to Mr Martin. For the purposes of these proceedings I am unable to place weight on that letter as the writer would not have been privy to all the circumstances surrounding the termination.
Very shortly after terminating the applicant Mr Martin was awarded a shadow portfolio position and he obtained one more staff member. Ms Tania Brown was appointed to fill the applicant’s position. Shortly after that Mr McLeod resigned and took up a position with the state government. In cross examination Mr McLeod stated he was re-engaged under Part IV of the Parliamentary Staff Act when Mr Martin ceased to be the Speaker of the House. Further, that he always had an understanding from Mr Martin that he would go back to that job. That evidence was supported by the evidence of Mr Martin later during proceedings. I place weight on the evidence of Mr McLeod.
On behalf of the applicant the Court heard from Mr Greg Harris, who said that he was a member of the Australian Labor Party. On 10 June 1996 Mr Harris attended a meeting of the Unanderra Branch of that party, and Mr Martin gave a report for some 10 or 15 minutes. According to Mr Harris Mr Martin told the meeting that he was being sued for unfair dismissal and that additionally a person he had put on his staff had resigned a week ago. It was the evidence of Mr Harris that Mr Martin then indicated that the position was still vacant and that expressions of interest were invited. Mr Martin denied that he made that suggestion at that time. I found Mr Harris to be a credible and reliable witness.
On behalf of the applicant the court heard from Ms Deborah Biggs, the former personal secretary of Mr Martin from January 1992 until 30 April 1996. It was the evidence of Ms Biggs that it was “common knowledge” that the applicant would always have a job and that if the government was lost, then Mr Martin would go back to his original staff. That information was conveyed to the Canberra staff on more than one occasion. I place weight on the evidence of Ms Biggs.
At the end of the evidence of the applicant the respondent submitted that the Court had no jurisdiction to hear the matter as immediately prior to her employment termination the applicant was employed pursuant to Part III of the Members of Parliament (Staff) Act 1984. The applicant was employed in the role of Assistant Adviser to the Speaker. It was submitted that the application to the Court the subject of these proceedings complains about the termination of that employment and seeks reinstatement to that position. It was submitted that the applicant understood that she could only remain employed under Part III of the MAPS Act whilst Mr Martin remained Speaker, and that to continue in employment under the Act, alternative employment would have to be found for her as an electorate officer under Part IV of the Act. At that time I agreed with that submission and formed the view that essentially that was the nub of these proceedings.
In dismissing the application it was stated that :
‘The Court has jurisdiction to entertain applications “ for a remedy in respect of termination of ..employment.” see Industrial Relations Act, ss 412 (1)(a) and 170 EA(1). The word “termination” is used the transitive rather than the intransitive sense: see Victoria v Australian Teachers’
Union (1993) 49 IR 149 at 156 and 162. Further, it was submitted, that termination requires an act as opposed to inaction by or on behalf of the employer: APESMA v Skilled Engineering Pty Ltd (1994) IRCR 106 at 116.
The respondent argued that in the present case the applicant’s contract of employment ceased upon the happening of an event, namely Mr Martin ceasing to be Speaker of the House of Representatives (albeit subject to two weeks’ “grace”); Mr Martin did not terminate the contract under Part III of the Act. A failure by Mr Martin to offer alternative employment does not and cannot constitute “termination” for the purposes of the Industrial Relations Act.
In disallowing the application the Court noted that with regard to the application being one for reinstatement to the position of assistant Adviser to the Speaker, it was noted that the Court had heard some evidence that there may have been an irregularity in the manner in which the applicant’s position as assistant adviser to the Speaker came to an end. I cannot agree with the submission that from the application for relief it is clear that the applicant seeks reinstatement to the position of assistant adviser, for at point 20 of that form, the word reinstatement is ticked. No further information at that point is offered. Earlier, under the box headed details of employment, the applicant has stated that the work she performed for the employer was “assistant adviser”. I do not find that that phrase governs the entire reinstatement position sought by this applicant. Also, it frequently is the case that the written application for relief is altered and information corrected. For the purposes of the present application concerning jurisdiction it is a finding of this court that those facts and the circumstances under which it might be alleged that the applicant was dismissed in contravention of a letter of advice from the office of the Departmental Secretary are not germane.
Mr Martin ceased to be speaker on 30 April 1996 and there is evidence before this Court that on 26 March 1996 as a result of conversations between the applicant and Mr Martin various future employment options were canvassed. It is more than likely that on and from that time the effective position of assistant adviser of the applicant ceased by agreement between the two parties. After that date there is evidence from the applicant that she continued in the employ of the respondent and that she performed the duties of an electorate officer.
It is correct to say that subsection 1 of section 20 of the MOPS Act 1984 provides that any agreement with regard to the re-engagement of the applicant under Part IV had to be in writing. It is my view that the evidence this Court has heard shows that requirement was not strictly enforced to the letter, and that it is likely time lapses may well have occurred in the committing of contracts of employment to writing.
On Thursday 19 December 1996 the Court heard form Mr Tony McLeod as to his understanding of the role of Mr Martin in employer/employee relations. I found Mr McLeod to be a credible and reliable witness and I find that the responsibility to ensure that compliance with that section of the Act referred to by the respondent is properly that of Mr Martin. The non-compliance with that Act cannot be used by the respondent as both a shield and a sword.
It is a finding of this Court that an oral agreement, more than likely, without having heard from Mr Martin, was probably entered into to re- engage the applicant as an electorate assistant. I do not agree on the evidence available, that the employment of the applicant ceased upon the happening of the event that the Speaker lost his position. I was unable to take the matter further at that stage and it was found that the tribunal had jurisdiction to further hear the substantive application.’
The Court heard from Mr Stephen Martin, who confirmed that he employed the applicant as a receptionist secretary in May of 1987 as he was the local Member of Federal Parliament under Part IV of the MOPS Act and that he then became the Speaker of the House of Representatives in 1993. Shortly thereafter Mr Martin agreed to transfer the applicant to his Canberra office as an adviser and that the salary of the applicant altered from $34,000 to some $51,000.00. A written contract concerning the elevated employment status of the applicant was referred to but not produced to the court. The applicant was then employed under Part III of the MOPS Act. That Act states;
“s 12. The Prime Minister may, by writing, determine that, having regard to the Parliamentary duties of a Senator or a Member of the House of Representatives the Senator or Member ought to be empowered to employ staff under this Part.
13. An office-holder may , on behalf of the Commonwealth, employ, under an agreement in writing, a person as a member of the office-holders staff.
(2) The power conferred on an office holder by subsection (1) is not serviceable otherwise than in accordance with arrangements approved by the Prime Minister, and the exercise of that power is subject to such conditions as are determined by the Prime Minister.”
Section 14 deals with terms and conditions of employment. Particularly relevant is subsection 3 which provides:
“The Prime Minister may by writing determine that the terms and conditions of employment of a person employed under this Part (other than prescribed terms and conditions) are varied (whether by the variation of particular terms and conditions or by the inclusion of new terms and conditions, not being prescribed terms and conditions) as specified in the determination.”
Mr Martin said that after some 4 months in Canberra the applicant sought a return to the Corrimal office. The re-transfer was agreed to, and shortened hours were negotiated so the applicant could collect her young daughter from school. A 20% reduction in pay was accordingly put in place. At the time of the re-transfer Mr Martin was apparently told the applicant was lazy. I am unable to place weight on that statement, as it had no bearing upon the respondent’s argument that the employment was a sunset situation due to end beyond the control of the respondent and secondly there was no evidence that the matter was ever raised with the applicant before the cessation of her employment. The evidence of Mr Martin in the main is supported by the evidence of previous witnesses and at this point I am able to say that on and from the time the applicant returned to the Corrimal office, after her short stint in Canberra, she performed the work of an electoral assistant, and not that of an assistant adviser attached to the office of the Speaker. I am therefore able to conclude that the only remnant of the former conditions of employment was her rate of pay, albeit with an agreed reduction. Mr Martin categorically denied that he ever applied a “last on first off” policy with regard to selection of staff in excess situations. Mr Martin said that he gave no assurance to the applicant at that time as to future job security. To that end Mr Martin stated on 3 occasions he had had to face pre-selection battles, and was of the view that general elections apart, job security was always a problem with parliamentary employees. Mr Martin said that he invariably warned employees that tenure was a problem, with the exception of Mr McLeod, who was advised that Mr Martin would always wish to employ him in some capacity or another. In the case of Ms Watkinson the issue is whether she was entitled to rely on her belief that she would always have a job with Mr Martin, whatever his status, and what circumstances occurred after the loss of Mr Martin there to support that belief.
The evidence from both sides shows that the parties had agreed that the contract negotiated under the MOPS act was bilaterally altered, thereby placing the operation of the MOPS Act in a relatively weak position. Clearly in its pure form the Act provided the applicant would lose her position as assistant adviser on 14 May. The Court heard evidence that the MOPS Act had been complied with and that approval from The Department of Administrative Services (“DAS”) sought for the variation of the contract. Mr Martin said that in May of 1995 the applicant appeared to undergo a change in attitude, in that there began to be problems with her work, and there were difficulties between her and other members of staff. These matters Mr Martin said he raised directly with the applicant during the course of her employment whilst she was performing the role of an electorate assistant. That evidence was not supported by the applicant. After the loss of the election Mr Martin travelled to the central coast of NSW with Ms Alison Byrnes to assist with scrutineering and it was during that trip that Mr Martin said Ms Byrnes allegedly said that “she was sick to death of being abused and harassed by the applicant.” In cross examination Mr Martin agreed that on 26 March 1996 he was discussing re-deployment options with his staff. It seems matters came to a head on 27 April 1996 at a labor party barbecue when Ms Byrnes said words to Mr Martin to the effect that “she could not stand it any longer, that she was on medication, and that if the applicant did not go, then she would go.” There was no evidence that those matters were communicated to the applicant prior to the termination nor her response sought to the allegations.
Mr Martin said that he indicated that he “would always offer Mr McLeod an opportunity for re-employment as he was capable and clever and that he wanted him to stay.” That intention was supported by additional evidence from Mr Martin in that he sought special clearance from the parliamentary secretary Mr Gary to employ Mr McLean as an extra staffer after the announcement of the shadow ministry, in light of the fact that Mr McLeod had not placed his name on the eligibility list as required by the leader Mr Beazley. The positions of other staff members in the electorate office were then discussed. It seems however that Mr McLeod very shortly thereafter accepted a position elsewhere and left the employ of Mr Martin.
Mr Martin said that on 26 April he attempted to have discussions concerning future roles of staff within his office and those discussions included Ms Watkinson. Mr Martin said he later had a conversation with the applicant concerning future employment options. Mr Martin agreed that he produced a list of job details to be performed by everyone in the office, including the applicant. Those jobs according to Mr Martin were the jobs she had been doing for years. That evidence gives weight to the proposition that the indicia of the adviser’s position, bar the rate of pay and the section of the MOPS Act under which the applicant at the time was employed, had all but disappeared. Also in support of that contention it is noted Mr Martin said that the 14 days grace period granted by the new government was to allow Part 111 encumbants to vacate the Canberra offices and also to look for further employment. At that time the applicant had been re-deployed at Corrimal for some time and so did not need a period of grace.
On 30 April 1996 Mr Martin determined that he no longer required the applicant and that he would let her go as part of the Speakers staff. Having considered the matter I do not find the advice offered by the Clerk of the House to be definitive, as there was no evidence as to whether the Clerk was in possession of all the facts, nor that he was in a position to give complete advice on the matter. Mr Martin confirmed that he telephoned the applicant on 1 May 1996 and said that he was concerned about his reputation and the treatment of his staff. The applicant at that point told Mr Martin she was pregnant. That did not change the situation. Having considered all the evidence on the matter it is a finding of this Court that the applicant was not terminated because of her pregnancy and that
s.170 DF does not apply, for the reasons outlined by Mr Tracey during his submissions on jurisdiction on the third day of the hearing.
Mr Martin told the court he was of the view that he was not dismissing the applicant, but that he was simply declining to offer her re-employment. I am unable to agree with that point of view and find that the parties had re-negotiated the contract of employment. Part III of the MOPS Act could not be considered to totally govern the relationship between the parties. It was convenient for Mr Martin to have the applicant in his office performing the duties of an electorate assistant while he was the Speaker of the House. The salary of an assistant adviser had been altered by agreement between the parties, and so very little of the contract of employment as an assistant adviser remained. The applicant worked for shortened pay and accordingly received 80% of $51, 100.00. It is not clear that the applicant would have lost her job in any event if the labor party had lost the election and that Mr Martin was only forced to consider the continued employment situation of the applicant due to circumstances beyond his control.
It was the evidence of Mr Martin that he employed on his electorate staff, his mother- in -law, Mrs O’Keefe, an older woman who had retired from a position with a library, and whose cataloguing skills and personal manner were much needed by Mr Martin. Mrs O’Keefe had worked for her son in law for some 2 years and on or around 25 March Mr Martin spoke with her to determine her work plans for the future. Apparently at that time Mrs O’Keefe indicated that she would remain in her position within the office. However on 15 May Mrs O’Keefe resigned and her position became vacant. Mrs O’Keefe said she wanted to retire and play more golf. Her letter of resignation was admitted into evidence and Mr Martin said he had no idea that Mrs O’Keefe was intending to resign within 2 weeks when he terminated the applicant.
On behalf of the applicant the Court heard from Ms Alison Byrnes, who stated she had been employed by Mr Martin in the Corrimal Office since 1992 as an electoral assistant. Ms Byrnes denied that she was advised of the "last on first off" principle by Mr Martin at her initial interview. From the tenor of her evidence it was clear that friction existed between the witness and the applicant. Ms Byrnes listed the grievances she had towards the applicant and demonstrated a highly critical attitude towards the applicant. Ms Byrnes confirmed the earlier evidence that she had complained about the applicant to Mr Martin at the barbecue on 27 April 1996, and that by that time Mr Martin had offered her a job as an electorate assistant. In the words of Ms Byrnes “I made comments at the barbecue because I was concerned about her getting a job.” Ms Byrnes stated that she did not complain about the applicant to Mr Martin en route to the Central Coast after the elections in March. In that regard I place weight on the evidence of Ms Byrnes.
The court heard from Mr David Fitzgerald, who had held a position with Human Resources with the Parliament since March 1993. Mr Fitzgerald gave some evidence that in February 1996 he received an inquiry from the applicant concerning superannuation payments. Further, that he had provided certain advice to Mr Martin concerning the provisions of the MOPS Act. I am unable to use the evidence of Mr Fitzgerald as it does not appear to be relevant to the actual termination circumstances of the applicant, in that the witness was not present.
CONCLUSION
Identity of the respondent
The respondent contended Mr Martin was not at any time the employer of the applicant and that she was employed by him on behalf of the Commonwealth. In evidence Mr Martin said he had "the power to hire and fire”. That statement was uncontroverted, and at all times Mr Martin was held out as being able to bind the Commonwealth in contracts of employment. The 1992 Electorate Officers Agreement between the Public Sector, Professional, Technical, Communications, Aviation and Broadcasting Union and The Minister of State for Administrative Services & Anor, Clause 13 which provides;
“Termination of an Electorate Officer’s employment by a Member
of Parliament or Senator shall not be harsh, unjust or unreasonable.
For the purposes of this clause, termination of employment shall
include termination with or without notice..”
It is clear that to be technically correct the applicant should have stated that she was dismissed by Mr Martin on behalf of her employer. It cannot be said that the terminology adopted by the applicant in submission is proof of the fact that the respondent was not her employer.
The MOPS Act
In determining if there has been an unfair dismissal in this case it is relevant to look at the terms and conditions governing the employment of the applicant at the time in question. That time is agreed upon as being 1 May 1996. At that time it is arguable by the respondent that the terms and conditions of employment were governed by exhibit A, the contract signed by both the applicant and Mr Martin and witnessed by Mr Bergin and dated 4 May 1993. The respondent in submission repeated its argument on jurisdiction and although it is clear that the applicant understood that she could only remain employed under Part III of the Act whilst Mr Martin remained Speaker, it is my view that that on and from 14 April the applicant did remain in employment and that the respondent has first failed to deal with that uncontroverted fact in submission or to categorise the terms and conditions under which the applicant was so employed . I do not agree with the submission of the respondent regarding jurisdiction that “in the present case the applicant’s contract of employment ceased upon the happening of an event, namely Mr Martin ceasing to be Speaker of the House of Representatives” and find that it is incumbent upon me to examine the facts as to whether Mr Martin offered continuing employment. I agree with the submission that a failure by Mr Martin to offer continuing employment does not and cannot constitute a “termination” for the purposes of the Workplace Relations Act. However for the reasons outlined previously when the issue of jurisdiction was first raised, it was a finding of this court that that contract had been varied by the parties, the exact detail of that variation was not known. After 14 April the applicant was no longer employed under Part III of the MOPS Act. It is common ground the applicant still remained in employment and as the formality of executing the workplace negotiated contract had not been attended to, common law principles would apply to the terms and conditions of the applicant’s contract of employment in the interim. All material terms of the contract were identifiable and it is my view a binding contract was in existence on and from 26 April 1996 when the applicant accepted Mr Martin’s offer to work as an Electorate Officer Grade B. I place weight on the evidence of the applicant and Mr McLeod that Mr Martin offered the applicant a job in his electorate office grade “B”, that fact being supported by the evidence of Mr McLeod. On and from that time the applicant was working in the new position, although in reality nothing had changed as she had been doing the same duties since she returned from Canberra in 1995. I do not agree with the submission on behalf of the respondent that “Mr Martin did not offer the applicant a position on his electorate staff commencing on 15 May or at all” and find to the contrary.
It seems that while the contract of employment under Part 111 was on foot, the applicant was under the impression that if Mr Martin lost his job as Speaker she would have continued employment. That impression is supported by the evidence of Ms Claire Cooney and Mr Tony McLeod and it is a finding of this Court the applicant was entitled to rely on that statement in the absence of indicators to the contrary.
The respondent submitted that even if it can be accepted that prior to 1 May 1996, Mr Martin had made an offer of employment as an electorate officer to the Applicant and all that remained was the completion of a contract in writing as required by the MOPS Act, that contract had not been entered into the prescribed manner. There was imprecise evidence that the exact practice of Mr Martin was to sign up his electoral assistants immediately with a contract. The fact that the applicant was not “signed up” with a contract on and from the end of March early April in my view does not prevent a finding as to her status. The respondent relied upon Chapman v Commissioner of Police (1983) 50 ACTR 23; (1983) 50 ALR 23. I distinguish that case as there the plaintiff had never been employed in the new position with the Australian Federal Police and secondly the person advising the plaintiff that he had been successful in his application lacked the power to effect the appointment.
The respondent argued even if a contract of employment had been entered into, “it would have been open to Mr Martin, prior to 14 May 1996, to rescind the contract without bringing about a termination of the applicant’s employment because, at that time, she had not entered on employment under it.” It is assumed the respondent means that whilst the MOPS Act employment was still on foot, Mr Martin was able to rescind his offer of subsequent employment. I agree with the respondent’s submission on that issue, however it is that rescission which must be looked at. It is a finding of this Court that the provisions of the MOPS Act caused the applicant’s employment as an assistant adviser to end. However, for the reasons previously outlined this Court has jurisdiction to hear the matter.
Valid reason
The applicant contended that she was “dismissed unfairly and capriciously on 1 May 1996 by her employer Mr Martin.” Section 170 DE (1) of the Act provides that an employee can only be dismissed for a valid reason. Examination of the evidence shows Ms Alison Byrnes was the only witness who found the applicant to be argumentative and although that suggestion was made by Mr Martin, there was no evidence he had experienced a complaint from a constituent in that regard or that he had observed that himself. Ms Byrnes said she complained to Mr Martin about the applicant on 27 April in words to the effect that she "would resign if the applicant remained employed". In Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 Northrop J says when dealing with "valid reason";
“Section 170DE(1) refers to a “valid reason, or valid reasons, but the Act does not give a meaning to those phrases or the adjective “valid”. A reference to dictionaries shows that the word “valid” has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: “2. Of an argument, assertion, objection, etc; well founded and applicable, sound defensible: Effective, having some force, pertinency, or value.” In the Macquarie Dictionary the relevant meaning is “sound, just, or well founded; a valid reason.”
In its context in s 170DE(1), the adjective “valid” should be given meaning or sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170 DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that” the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR, when considering the construction and application of s 170DC.”
In Nettlefold v Kym Smoker Pty Ltd (unreported, IRCA, Lee J, 4 October 1996)
Honour stated that pursuant to giving effect to the Termination of Employment Convention the tribunal;
“is empowered to examine the reasons given for the termination and the other circumstances relating to the case and to render a decision on whether the termination was justified.”
It is a finding of this court that the respondent did not have a valid reason for the termination of Ms Watkinson as nothing of substance was proven.
Procedural Fairness
It is clear section 170DE has been breached. S 170 DC of the Act deals with procedural fairness. Nicolson v Heaven & Earth Galleries (1994) 1 IRCR 199 is authority for the proposition that employees must be afforded natural justice: they must be afforded the opportunity to answer the allegations surrounding the reasons for dismissal. None of the matters involving Australia Remembers, Price Watch nor the issue of posting electoral vote were put to the applicant. Mr Martin said that he mentioned that he was not satisfied with her performance over the telephone on 1 May. There is no evidence the applicant had an understanding of the nature of any allegations concerning her performance until that date. In deciding not to continue the employment of the applicant Mr Martin did not accord the applicant procedural fairness. It cannot be argued that in accepting the position to go to Canberra to the Speakers office the applicant thereby knowingly threw away her rights to procedural fairness should the time come for her selection as an electorate assistant under Part IV of the Act.
The "last in first out" rule no longer applies universally, however in the present circumstances the applicant would be entitled to rely on the fact that Mr Martin would afford the principle some consideration when re-deploying staff in light of the unusual general circumstances of employment. Mr Martin indicated that he would always keep Tony McLeod; it is a finding that Mr Martin expressed similar sentiments concerning the applicant, and although no job is “for life”, the applicant was not alerted to the fact that circumstances surrounding her continued employment had changed and her job was at risk.
The applicant submitted that she was made redundant by her employer, Mr Martin on 14 May 1996 without a valid reason. In reply the respondent said the reason the applicant’s employment came to an end had nothing to do with the operational requirements of the Speaker’s office. The respondent at no stage indicated the termination was a redundancy situation and in that regard, on the basis of the evidence of Mr Harris and Mr McLeod, Mr Martin still required the work performed by the applicant to be performed by someone. It is a finding of this court that the applicant was denied procedural fairness and that section 170DC has been breached.
Remedy
It is considered appropriate in all the circumstances of the case to order Ms Watkinson be reinstated. A difficulty facing the applicant is that in her application for relief she sought reinstatement to the position of assistant adviser and due to the sunset provisions in the MOPS Act that position no longer exists. However, bearing in mind the provisions of s 170 EE (1) and the actions of the relative parties that is not an insurmountable hurdle. At the time of termination the applicant to all intents and purposes was employed as an Electorate Assistant Grade B. Section 170EE(2) of the Act provides that if the Court thinks that reinstatement is impracticable, then compensation may be ordered. In Nicolson v Heaven & Earth (supra) Wilcox CJ said at 210;
“..the word ‘impracticable’ requires and permits the Court to take into
account all the circumstances of the case, relating to both the employer
and the employee, and to evaluate the practicability of a reinstatement
order in a commonsense way. If a reinstatement order is likely to
impose unacceptable problems or embarrassments or seriously affect
productivity, or harmony within the employer’s business, it may be
‘impracticable’ to order reinstatement, notwithstanding that the job
remains available.”
In James Patteson & Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Newcrest Mining Ltd , IRCA, WI595R of 1994, Marshall J, 21 December 1995 (unreported) his Honour stated:
“... The Chief Justice intended that the words “unacceptable problems
or embarrassments” be read distributively such that unacceptable
embarrassments rather than mere embarrassments were being
referred to by his Honour.
It is also clear that from Liddell v Lembke (t/as Cheryl’s Unisex Salon)
(1994) 127 ALR 342, 360 that reinstatement will not be impracticable
where it is inconvenient or difficult without causing an unacceptable
problem or unacceptable embarrassment.”
I am satisfied that the reinstatement of the applicant is not impracticable. In the words of Marshall J in Colleen Mary Coll and Australian Services Union v Shire of Yarra Ranges, IRCA VI 4112R of 1995, Marshall J, 24 February 1997:
“The applicant was wrongly deprived of her right to continue her
employment.”
In that case his Honour found that the actual position occupied by Ms Coll no longer existed and so reappointment was ordered to another position on terms and conditions no less favourable than those on which she was employed immediately before the termination. That is not the case with Ms Watkinson. There is evidence the parties agreed as to the position the applicant would occupy, Electorate Assistant Grade B, at a salary of $26,000 per year. The respondent submitted regard should be paid to monies received by the applicant upon her ceasing to be employed under Part III of the MOPS Act as an assistant adviser. That is considered appropriate as those monies related to a position that had ended and the compensation payable in respect of these proceedings relates to income the applicant would have received had the employment not been terminated.
Accordingly I make the following Orders;
Respondent to reinstate the applicant to the position of Electorate Officer Grade B. within one month.
Subject to the payment of income tax, the respondent is to pay to the applicant compensation equal to the amount she would have received had the termination not occurred.
Leave to restore the matter at short notice.
I certify that the preceding 23 pages are a true copy of the reasons for decision of
Tomlinson JR.
Associate:
Dated: 21 March 1997
APPEARANCES
Industrial Advocate for the applicant: Mr P Matters Australian Workers Union Counsel appearing for the respondent:
Mr R Tracy QC
Mr R ReitanoInstructed by:
Australian Government Solicitor
Dates of hearing:
Date of Judgment:
18 & 19 November & 19 & 20 December 1996
21 March 1997
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