Yarran v Wheatbelt Aboriginal Corporation
[1996] IRCA 427
•29 August 1996
DECISION NO: 427/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - complaint of UNLAWFUL TERMINATION - incorporated Aboriginal association - whether VALID REASON for termination - PROCEDURAL FAIRNESS - nominal COMPENSATION.
Industrial Relations Act 1988 (Cth) Ss 170DB, 170DC, 170DE, 170EA, 170EDA, 170EE.
Selvachandran v Peteron Plastics Pty Ltd IRCA No. 329 of 1995, Northrop J, 7 July 1995, unreported.
Aitken v CMETSWUA - WA Branch (1995) 63 IR 1.
Nicholson v Heaven & Earth Gallery Pty Ltd (1994) 57 IR 50.Glenys YARRAN -v- WHEATBELT ABORIGINAL CORPORATION
WI 1235 of 1995BEFORE: R. D. FARRELL JR
PLACE: PERTH
DATE: 29 August 1996IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY )No. WI 1235 of 1995
BETWEEN:
Glenys YARRAN
ApplicantAND:
WHEATBELT ABORIGINAL CORPORATION
RespondentMINUTE OF ORDERS
BEFORE: R. D. FARRELL JR
PLACE: PERTH
DATE: 29 August 1996
THE COURT ORDERS THAT:
1. The respondent pay to the applicant the sum of $907.20 in compensation, pursuant to Section 170EE(2) of the Industrial Relations Act 1988, within 14 days of the date of this order.
NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRYWI 1235 of 1995
BETWEEN:
Glenys YARRAN
ApplicantAND:
WHEATBELT ABORIGINAL CORPORATION
RespondentREASONS FOR DECISION
29 August 1996 R. D. FARRELL JR
This is an application under Section 170EA of the Industrial Relations Act 1988 for compensation arising from the alleged unlawful termination of the employment of the applicant, Glenys Yarran (“Mrs Yarran”), by the respondent, the Wheatbelt Aboriginal Corporation (“WAC”). Reinstatement is not sought.
The WAC is an incorporated Aboriginal Association under the Aboriginal Councils and Associations Act 1976. Its objectives include the promotion, support and monitoring of the development of Aboriginal people within the wheatbelt in Western Australia, the representation of those people on issues relevant to them and the support of Aboriginal members in the relief of poverty, sickness and other misfortune. The WAC is primarily, but not solely, funded by the Aboriginal and Torres Strait Islanders Commission (“ATSIC”), with funding decisions affecting the WAC taken by the Kaata-Wangkinyiny Regional Council of ATSIC. The WAC’s central office is in Northam, and it’s activities cover the wheatbelt region of Western Australia, including the towns of Quairading, Narembeen, Bruce Rock, Merredin, Mukinbudin, Kellerberrin, York, Beverley, Moora, Dalwallinu, Wongan Hills and Tammin.
The WAC has several full-time employees, including:
·an Executive Officer, Mr Trevor Ryder (“Mr Ryder”), who is overall Manager of the WAC’s community service activities and of a number of business enterprises engaged in by the WAC;
·an Administration Officer, a position held until recently by Mr Frank Kohlmann (“Mr Kohlmann”);
·an accountant, Mr Bruce Parsons (“Mr Parsons”);
·several Field Officers; and
·two Environmental Health Officers.
The affairs of the WAC are ultimately managed by an elected “governing committee”, which cannot include employees. The Chairperson of that committee at the time of Mrs Yarran’s dismissal was Mr Bill Warmdean.
Clause 25 of the rules of the WAC provides;
“Appointment and Removal of Employees
Without prejudice to the general powers conferred on the committee by the Act or these rules, the committee shall have power to appoint and at their discretion, remove or suspend employees and agents and to fix the powers, duties and remuneration of same”.
Clause 21 permits the committee to delegate any of its powers to a sub-committee consisting of such members of their body as they see fit. It is apparent from the evidence that the committee has put in place an executive committee which on this occasion purported to exercise the committee’s power to appoint and remove employees.
Mrs Yarran was employed by the WAC as an Environmental Health Officer from 27 July 1993. At the time of the hearing she was 49 years old. Her position with the WAC was her first employed position. She had in recent years engaged in studies at the Quairading TAFE and then spent a further 12 months living apart from her family at Clontarf College in Perth to obtain her Advanced Health Certificate, in 1992. She applied for the position at the WAC when it was advertised.
There was evidence that it is likely Mrs Yarran received an induction into her position, which would have been conducted by Mr Kohlmann’s predecessor. I accept Mrs Yarran’s evidence that she did not receive a duty statement for her position as Environmental Health Resource Officer until some 12 months after she had begun in the position, having relied previously on a more informal introduction to her duties. I will quote the description of the duties and skills of the position set out in the duty statement, as there was substantial evidence concerning Mrs Yarran’s performance of her duties:
“DUTIES
(1) ASSESSMENTS D70%
Undertakes environmental assessment in households of the region; develops action plans, assists clients obtain repairs
(2)REFERRAL & LIAISON D10%
Refers to & Liaise with HDWA regarding non-environmental health issues.
(3)Liaises with relevant agencies including Homeswest, DCS, Local health surveyors, and relevant tradesperson in the region
(4)Meets with the regional Community Health monthly to review assessments & outstanding problems.
(5)PUBLIC EDUCATION
Organises & contributes to relevant public health related seminars.
(6)Liaises with pre-primary & primary schools in the region & conducts basic hygiene programs as appropriate.
(7)ADMINISTRATION
Maintains assessment/action records; completes time sheets, daily journals, attends staff meetings/conferences as required.
SKILLS
(a)Ability to administer the Environmental Health Housing Survey assessment tool.
(b)Knowledge of basic environmental health issues.
(c)Oral and written communication.
(d)Liaison & advocacy
(e)Presentation & public speaking.
(f)Organisation”
There is also evidence of the development of a standard Employment Agreement by the WAC in consultation with their staff. A draft copy of this agreement was tendered in evidence. However, it was conceded that Mrs Yarran never signed the agreement, and I am not satisfied on the evidence that the terms of the written employment agreement were incorporated into the parties’ employment relationship. It would appear, however, that the WAC had regard to the terms of the contract in the manner in which they dealt with Mrs Yarran’s dismissal. Therefore, I will reproduce here Clause 20 of the Employment Agreement:
“20.TERMINATIONS:
a)Terminations of the employee’s employment can be effected by the Employer within 10 working days notice in writing.
b)Except in the case of “gross industrial misconduct”, where employment may be terminated immediately, the organisations disciplinary procedures for unsatisfactory work and conduct are set our below. (sic)
1)Verbal/Written Warning: The Management Committee/Employer explains to the Employee the reasons for instituting disciplinary procedures and discusses plans for overcoming the problem. The discussion and plans are recorded in writing and a two week period for review is agreed.
2)Final Written Warning: Should progress not be made by that given time, the Employee will be given a final written warning.
3)Dismissal: If satisfactory progress is not made within one week of the final warning, dismissal of the Employee can be effected by the Employer giving to the Employee not less than 10 working days notice in writing.
Gross Industrial Misconduct:
In the case of gross industrial misconduct, the Employee may be (a) summarily dismissed or (b) suspended, pending inquiry and possible misconduct.
The following may represent gross industrial misconduct:
a)Theft of any project property or funds.
b)Wilful damage of any project property.
c)Intoxication through alcohol or other substances during working hours.
d)Physical violence on Project premises or business working hours.
e)Any instance of verbal or physical harassment of any other Employee or customer particularly in respect of race, sex or religion.
f)Any disclosure of confidential information to any other party without prior permission.
g)Carrying on business in an activity similar to that undertaken by the organisation without prior written permission.
h)Falsification of any organisation’s records for personal gain or on behalf of any other Employee.
I)If section 20(B) has been worked though and the employee again produces unsatisfactory work.
Appeals
If an Employee wishes to appeal against any disciplinary action, the following stages shall be followed.
1)The Employee raises the matter with the Management Committee. If it is not resolved, is not should be referred to Stage 2. (sic)
2)The employee raises the matter at the next available meeting of the Full Committee. If the next meeting is not due to be held within 10 working days, a special meeting should be requested. The Employee shall not be terminated during this waiting period, however the Employee can be suspended pending the meeting”.
The decision to dismiss Mrs Yarran was taken on 20 February 1995, and was communicated to her the following day. It arose following an incident at the WAC office on Friday 17 February 1995, and the reasons given in the letter of termination for the dismissal were:
· Verbal abuse of a senior staff member;
· Assault on a senior staff member
The letter, signed by Mr Warmdean, the committee’s Chairperson, went on to say;
“You are reminded that your previous letter of warning stated any further breach of company policy would result in instant dismissal.
You are entitled to receive one week’s pay of lieu including your normal entitlements.
If you wish to appeal this decision please contact the Executive officer who will arrange for you to meet with the Executive Committee to discuss the matter”.
Considerable evidence was led as to the background to the incident on 17 February 1995, and it is appropriate to briefly address the previous events which put the incident in its proper context.
Problems Concerning use of the WAC’s Vehicles and Reporting Requirements
The incident arose out of difficulties between Mrs Yarran and Mr Kohlmann, chiefly concerning the use by Mrs Yarran of WAC vehicles.
Mrs Yarran and Lorna Yarran lived in Quairading, which is at least an hour’s drive from the office in Northam. Often other towns which they had to service were closer to Quairading than to Northam. They would therefore sometimes seek to take a WAC vehicle home overnight, so that they could drive directly to the other town the next day, rather than wasting time driving back into Northam to collect the WAC vehicle.
The policy governing use of WAC vehicles was reaffirmed by Mr Kohlmann in a memorandum to all staff dated 4 January 1995, which provided:
“Personnel are to use the above vehicles in the carrying out of their duties for WAC.
Other vehicles are not to be used without the permission of the Administration Officer. ...
Vehicle logs are to be kept and handed to the Administration Officer every Friday.
IT IS ONCE AGAIN STATED THAT VEHICLES ARE NOT TO BE KEPT OVERNIGHT AWAY FROM WAC FOR ANY PURPOSE WHATSOEVER UNLESS PRIOR APPROVAL HAS BEEN GIVEN BY THE ADMINISTRATION OFFICER.”
Mrs Yarran had previously been given a verbal warning on Thursday 11 November 1993 by Trevor Ryder concerning the unauthorised private use of a WAC vehicle on Wednesday, 27 October 1993.
Mrs Yarran had also been given a written warning on 12 November 1993 for breaching the motor vehicle policy. The warning states that on the evening 10 November 1993 Mrs Yarran travelled to her home in Quairading as a passenger in a WAC vehicle driven by Lorna Yarran, and then travelled back to the WAC office the following morning.
On a more general matter, on 23 November 1994, Mr Kohlmann issued a memo to all field staff, including Mrs Yarran, in the following terms.
“You are required to submit a comprehensive report on your activities of the last month to the Administration Officer no later than 7 Dec 1994.
Please note that this form of reporting will be a feature of your activities from now on, and monthly reports will be required from you on the first Monday of each month now on.
Your report should have the following format:
·Introduction
·Background
·Present Situation
·Conclusion
·Recommendation
Please note, the above format is suggested for your guidance, if you do not wish to use that format, that is your decision.”
Mr Kohlmann had arranged for the memorandum to be signed by members of the Executive Committee, to bolster his authority in imposing this requirement.
Mr Kohlmann issued a further query to Mrs Yarran on 28 November 1994. He noted that on 23 November 1994 she had been permitted to take a WAC vehicle home, as she had to service the town of Merredin next day. It had since come to Mr Kohlmann’s notice that Mrs Yarran did not go to Merredin the next day. He sought a written explanation for this apparent misuse of a WAC vehicle.
When Mrs Yarran had not responded by 5 January 1995, Mr Ryder wrote to Mrs Yarran referring to the request for a written explanation, past warnings and a further allegation that on 7 December, Mrs Yarran and Lorna Yarran took a WAC vehicle home overnight when approval for the use of the vehicle was not sought and was not given.
Mr Ryder’s letter noted that Mrs Yarran had failed to act on the memorandum of 23 November 1994, requiring her to comprehensively report on her activities by 7 December 1994. The letter continues:
You are advised that this letter is your third warning in relation to breaches of Corporation policy, discipline and work performance. Further warnings will not be issued.
Any further breach of Corporation policy, discipline and work practices will result in your dismissal.
If you wish to respond to this letter, please feel free to speak to either myself or in my absence to the Administration Officer. You should also be aware that you have access to our grievance officer at any time.”
Mr Ryder explained that the warning was chiefly motivated by what he perceived to be an ongoing problem of vehicle misuse, of which the specified incidents were only a few. The policy was, he says, being breached weekly. Employees other than Mrs Yarran were also breaching the policy, and also receiving warnings. Mr Kohlmann said in evidence that it was usually difficult to prove the breaches.
On 22 January 1995, Mrs Yarran provided the written explanation sought on 23 November 1994. She had been on leave for part of that two months. She explained that the trip to Merredin had been to inspect a house, but that when she learnt that the tenant was attending a Land Council meeting in Narrogin that day, she cancelled the trip and came back to work the next morning. She claimed to have explained the situation the following morning to Mr Kohlmann.
In her evidence before the Court, Mrs Yarran said she had serviced Quairading the next day instead, and had taken the vehicle back to the office at Northam the day after that.
Mr Kohlmann told the Court he didn’t believe the explanation. He believes Mrs Yarran would have known the tenant, George Hayden, would be attending the Land Council meeting, and that it was a “mere scam”.
In cross-examination, Mrs Yarran denied ever using the WAC vehicles without permission from either Mr Ryder or Mr Kohlmann. Lorna Yarran says there was always a negative reaction when they asked for a vehicle, and that other staff did not face this negative reaction.
On 16 February, 1995, Mr Kohlmann’s written report to the executive committee included the following assessment of Mrs Yarran’s performance:
“Glenys appears totally confused as to what her role is, she has submitted a number of reports, all in the style of a field officer, and none that detail exactly what she does for environmental health. Glenys appears unable to accept any change even after detailed discussion, eg
I discussed with Glenys her methodology in doing her job, and asked her which schools she has been to recently and which programs she is conducting in relation to Environmental health.
She seemed unable to extract herself from the role as assistant to Lorna as a field officer.
It is strongly recommended that Glenys be redirected in her task and even given a different geographical area.”
Among the report’s final recommendations was a recommendation to “follow up on Glenys and Lorna Yarran.”
Mrs Yarran Approaches the Regional Council
By letter dated 2 February 1995, Mrs Yarran and Lorna Yarran wrote to Mr John Hayden, the Chairperson of the ATSIC Regional Council, complaining of harassment and pressure from Mr Kohlmann. In particular, they complained of inconsistent application by Mr Kohlmann of restrictions in the use of WAC vehicles. They complained that they were not permitted to use a car to conduct a field trip to Quairading, Narembeen and Bruce Rock over three days, on the grounds that no car was to be taken out for more than one night at a time, while another Field Officer was permitted to take a car later that week on a three day field trip to four other towns.
Mr Hayden visited the WAC around that time on a public relations visit.
The letter was tabled at a Regional Council meeting, but the Council resolved not to get involved in WAC’s internal management.
Mr Kohlmann wrote to Mr Hayden on 9 February 1995, saying that the WAC Chairperson, Mr Bill Warmdean, was most concerned about allegations “going around town” that Mr Hayden met with members of the WAC staff in order to hear complaints. Mr Kohlmann sought clarification.
Mr Hayden wrote in response on 13 February 1995, describing the allegations as “totally unfounded”, assuring Mr Warmdean that there was no discussion about staff at WAC and reaffirming that all staffing issues of organisations would be treated in house.
The Regional Council of ATSIC is an elected body and Mrs Yarran was a constituent of that body. While it would have been more appropriate for her to have first raised her complaint with WAC’s governing committee, it is not apparent to me that Mrs Yarran acted improperly in approaching Mr Hayden about her perceived problems.
The Confrontation on the Morning of Friday, 17 February 1995
Mrs Yarran and some supporters attended the WAC office on the morning of Friday, 17 February 1995 at about 8.30am. Present were Mrs Yarran, her husband Reg Yarran, Lorna Yarran and Pastor Alan Jones (“Pastor Jones”).
Pastor Jones was a Pastor of the Northam Potters’ House Christian Centre. He was a WAC employee, as a security officer under a Community Development Programme. He was a member of the full Governing Committee of the WAC for about three years. He says Mrs Yarran asked him to attend because of the difficulties she was having with Mr Kohlmann, and that she asked him to speak on her behalf. It was clear from his evidence that Pastor Jones was very sympathetic to Mrs Yarran’s cause.
The group approached Mr Kohlmann in the reception area and asked him for a meeting with Trevor Ryder about Mrs Yarran’s transport problems. It appears no prior notice was given that they would be seeking such a meeting.
Trevor Ryder arrived at the WAC office before 9.00am. Mr Kohlmann told him about the request for a meeting. Mr Ryder was not available for a meeting, as he was already running late for a previously arranged meeting with the Northam Town Clerk.
Mr Kohlmann advised the others that Mr Ryder was unavailable. Mrs Yarran interpreted Mr Kohlmann’s response to their request for a meeting as negative and obstructive. Mr Kohlmann says that Mrs Yarran started abusing him, raising her voice and accusing him of engineering the failure to have the meeting. She denies swearing, except perhaps using the adjective “bloody”.
Mr Kohlmann says that he asked Mrs Yarran what the meeting was to be about, and that she screamed at him that “he knew”. Mrs Yarran says she started to shout at Mr Kohlmann that she wanted a meeting with him because they “weren’t being treated right”. She complained that Mr Kohlmann was picking on her and Lorna Yarran. Pastor Jones agrees that Mrs Yarran’s voice, and perhaps those of the others were raised. He said that Mr Kohlmann never shouts. Both Mr Kohlmann and Mr Parsons, the accountant, say that, at some stage, Mr Yarran called Mr Kohlmann a “white dictator”. Pastor Jones recalls Mr Yarran saying something directed towards Mr Kohlmann. Mr Kohlmann then decided that, rather than remain and be abused, he would leave the office.
Mr Kohlmann went from the reception area at the front of the office near Mr Parson’s room, down a corridor to the back of the office to advise Mr Vaughan Harman, the next most senior employee, that he was leaving. He was followed by Mrs Yarran, Mr Yarran, and Pastor Jones.
Mr Parsons left his office and followed the others to the back room. Mr Kohlmann says Mr Parsons told Mr and Mrs Yarran that he took exception to the racial comments that were being made, that there was no need for this type of comments, and that he wouldn’t stand for it.
Pastor Jones says that Mr Parsons voice was raised, and that he approached Mrs Yarran aggressively, or at least determinedly, and put his face very close to hers. Mr Kohlmann disputes that Mr Parsons was provocative or aggressive.
Mr Kohlmann says that Mrs Yarran started abusing Mr Parsons in a very loud voice. Mrs Yarran says that she told Mr Parsons “I don’t give a stuff what you heard, butt out of my business”. It was Mr Kohlmann’s evidence and Mr Parson’s evidence that Mrs Yarran grabbed hold of Mr Parson’s shirt front and then with both hands pushed him backwards. Mr Kohlmann says Mr Parsons had to twist his body as he stumbled backwards to avoid hitting the photocopier. Mr Parsons does not recall that. Mrs Yarran in her evidence said Mr Parsons touched her on the arm. Mr Parsons denies this, and no-one else recalls it. She agrees she grabbed Mr Parsons by the collar with her left hand. She denied pushing Mr Parsons, and claimed to be holding a diary in one hand, so that she certainly could not have pushed him with both hands. Pastor Jones confirms that Mrs Yarran grabbed Mr Parsons by the collar, but says he did not see her push him. Nor did he see Mr Parsons touch Mrs Yarran. He agrees Mr Parsons moved back, but says that he stepped back.
Mr Kohlmann and Mr Parsons say that Mr Parsons then raised his hands in the air in a gesture of surrender and backed away saying something like “this is crazy”. Neither Mrs Yarran nor Pastor Jones recall that. Pastor Jones says he moved in between Mr Parsons and Mrs Yarran.
It is significant that Mrs Yarran admitted in a letter to the Regional Council dated 21 February 1995 that she pushed Mr Parsons, which is inconsistent with her testimony. In the letter, Mrs Yarran says:
“Bruce Parsons came in and pushed his way into me, (assaulted me first). I then pushed him.”
This inconsistency has caused me to place less weight on other aspects of Mrs Yarran’s evidence.
Pastor Jones subsequently persuaded Mr Kohlmann to join him and Mr and Mrs Yarran in a meeting in the boardroom to talk through the issues of concern to Mrs Yarran and Lorna Yarran. Mr Kohlmann says that Mrs Yarran spent the first five minutes in the boardroom screaming insults and incoherent accusations. Pastor Jones says Mrs Yarran told Mr Kohlmann that she felt discriminated against. Mrs Yarran then left the boardroom for a moment and later returned quietly. Mrs Yarran agrees that initially she shouted, and banged her diary on the desk, but says she later settled down.
Mr Parsons says that Mrs Yarran walked into his office about ten minutes after the incident, and started yelling at him in a “frenzied” state. He reacted passively, responding “Yes Glenys... Yes Glenys”. This may have been when Mrs Yarran left the meeting with Mr Kohlmann. This was not put to Mrs Yarran, and I place no great significance on it.
Mr Kohlmann described the meeting as unpleasant and commented that Mr Yarran remained unrepentant about his racial taunts and that both Lorna and Mrs Yarran persisted in their opinion that Mr Kohlmann had been unfair in his treatment of them. Pastor Jones says it ended on a good note, on the basis that they could talk out any problems. Pastor Jones felt that things had been resolved. Mrs Yarran recalls Mr Kohlmann saying they would sort out any future complaints before it got too far. The incident with Mr Parsons was not discussed at the meeting.
A little later, two policemen arrived, including Mark Davis, a member of the WAC Executive Committee. Mr Ryder had called the police because Mr Parsons had wanted to register a complaint of assault with the police, but not proceed with it. They left soon after.
Mrs Yarran stayed at the office until 2.30pm that afternoon. By that time Mr Warmdean, the Chairperson, and Murray Yarran, Mrs Yarran’s nephew who was a member of the governing committee, had arrived at the office.
There was a meeting in the afternoon between Mr Warmdean, Mrs Yarran, Reg Yarran, Murray Yarran and Lorna Yarran. The incident that morning was discussed, together with the underlying problems. Mr Warmdean assured Mrs Yarran that nothing would be done until he had heard both sides of the story.
Mr Ryder says Mr Warmdean instructed him to call a special meeting of the executive committee for Monday 20 February 1995 to consider the matter.
At 2.30pm Mrs Yarran told Mr Ryder that she was going to sign off and go home. Mrs Yarran and Lorna Yarran deny they were told that there would be a meeting on Monday 20 February 1995. Mr Ryder gave evidence that he told Mrs Yarran before she left that the executive committee would be meeting on Monday to discuss the incident with Mr Parsons and that there was a good chance she would be sacked. Mr Kohlmann was not aware of this conversation
Mr Parsons gave evidence that, by the following Monday, he was extremely stiff in the neck and upper back area and could hardly move his neck so that he had to seek out treatment from a chiropractor. He filed a worker's compensation claim to meet the costs of that treatment.
The WAC’s Investigation of the Confrontation
A special meeting of the executive committee was called and held on Monday, 20 February 1995. It was attended by three of the executive committee members including Mark Davis and Bill Warmdean, with a fourth member participating over the telephone.
The committee heard from staff, including Vaughan Harman, Frank Kohlmann, Bruce Parsons and three other unnamed staff members about the events of Friday 17 February 1995. The executive committee did not hear from Mrs Yarran, Reg Yarran, Lorna Yarran or Pastor Jones. Minutes of the meeting of the executive committee were tendered in evidence. The notes of the staff members’ accounts of the incident appear to support Mr Kohlmann’s version of events. Staff were asked for their views as to the appropriate outcomes and it appears that most favoured Mrs Yarran’s dismissal.
Mrs Yarran and Lorna Yarran had a rostered day off scheduled for Monday 20 February 1995. Rostered days off were allocated in advance by Mr Kohlmann. Mrs Yarran says she would have cancelled her rostered day off had she known of the meeting. Mr Ryder says he had assumed she would be at work, and became aware that she had a rostered day off part way through the day. Mr Warmdean recalls Mr Ryder saying at the meeting that Mrs Yarran had been told about the meeting.
The WAC’s Decision
The committee decided unanimously that Mrs Yarran be dismissed on the grounds of her verbal abuse of Mr Kohlmann and the assault on Mr Parsons. It was decided that Mrs Yarran be paid one week’s pay in lieu of notice. Mr Ryder was advised of this decision, and prepared a letter of termination in consultation with the Aboriginal Legal Service (“ALS”). Mr Ryder says that the ALS insisted on a sentence in the letter advising Mrs Yarran that if she wished to appeal the decision she could meet the executive committee to discuss the matter.
Mrs Yarran’s Response to the WAC’s Decision
It was decided by the executive committee that Mark Davis, who was one of its members, would advise Mrs Yarran of the decision on the following day, Tuesday 21 February 1995.
Mrs Yarran was told of her dismissal when she arrived to work on the morning of Tuesday, 21 February 1995.
Mr Kohlmann says that he and Mr Parsons were advised by Mr Davis that it would be better if they left the WAC office on the morning of 21 February 1995. They were out of the office from 10.20am until about 1.00pm. Mrs Yarran had remained in the office during this time. Mr Kohlmann then went to Mrs Yarran, told her that she had been dismissed and that she should leave the office immediately. He says Mrs Yarran became abusive and told him that Mark Davis had told her that she could stay until 2.00pm. Mr Kohlmann agreed to this.
Mr Kohlmann says that Mrs Yarran again abused him, telling him that the WAC was an Aboriginal organisation for Aboriginal people and that he had no place there. Mr Kohlmann left her and went back to work in his office. The police then arrived at the office, ascertained that Mrs Yarran had agreed to leave after 2.00pm and left. Mrs Yarran, Lorna Yarran and a man known as “Ken”, accompanied by other people who where not known to Mr Kohlmann, left the office at 2.05pm.
Mrs Yarran also wrote a letter to Mr Hayden, the Chairperson of ATSIC’s Kaata-Wangkinyiny Regional Council, dated 21 February 1995.
She complained in that letter that she, as an Aboriginal staff member, was dismissed while Mr Parsons, a non-Aboriginal staff member who she claimed assaulted her first, was not dismissed. She admits that she pushed him back. She called on the Regional Council to look into the matter and called for a full committee meeting and a regional meeting of the WAC. She asked that the letter be tabled in general business. It was tabled as requested, but the Council again resolved not to get involved.
On 24 February 1995, Mrs Yarran’s solicitors Messrs McDonald & Sutherland, faxed a letter of the same date to the Executive Officer of the WAC. After some introductory paragraphs, the letter continued thus:
“With respect to the dismissal of Ms Yarran, we note that our client has not been given the opportunity to be heard in respect of the allegations against her. Such denial is in contradiction with Section 170DC of the Industrial Relations Act 1988 (Commonwealth) whereupon an employer must not terminate an employees employment for reasons related to his/her conduct or performance unless the employee has been given the opportunity to defend himself against the allegations or the employer cannot reasonable be expected to give the employee that opportunity. There is no reason why in this case an opportunity to defend herself should not have been afforded to Ms Yarran.
We ask that the Corporation reconsider its decision to terminate the employment of Ms Yarran as a matter of urgency.
Should you have any enquires in relation to this matter, please do not hesitate to contact Mr Mackey of this office”
Neither Mr Kohlmann nor Mr Ryder recall having seen this letter. It appears it was forwarded to the Aboriginal Legal Service. Mr Kohlmann composed file notes dated 27 February 1995 in response to the correspondence, in which he made the following points:
“1.The meeting between Glenys and company with myself last over one hour, and this meeting took place after the assault on Bruce Parsons.
2.At no stage during this meeting did Glenys explain her actions against Bruce, even though I informed her that I would be reporting the incident.
3.Glenys in fact left the meeting and (I am informed by Bruce) she went to Bruce’s office and continued to abuse him.
4.Glenys left to go home at approximately 1.00pm.
5.The decision to hold the special executive committee meeting had already been taken before the time that Glenys went home.
6.Glenys decided to proceed to take her rostered day off on the Monday even though the special committee meeting had been called.
7.All other staff (except Lorna Yarran) made themselves available to be questioned by the executive committee.
8.Glenys was given the opportunity to appeal the decision and has chosen not to.
In summary, it was Glenys’s decision not to appear before the executive about this matter, it is therefore not the duty of the executive committee to pursue her in order to get her to appear before them”.
The Aboriginal Legal Service replied to McDonald and Sutherland on 28 February 1995. They conclude that:
“In the circumstances we believe that our client has given Ms Yarran every opportunity to provide her side of the story and that the grounds and method of dismissal are lawful”.
It appears however that this conclusion is based on an uncritical acceptance of Mr Kohlmann’s account of the facts.
On 28 February 1995, five individuals (namely Murray Yarran, Newton Keckett, Jeanette Keckett, George Hayden and Alan Jones) wrote to the Chairperson of the WAC, describing themselves as financial members of the WAC and demanding a special general meeting to be held under what they described as “Section 12” of the WAC Constitution to discuss the following issues:
·“Alan Jones Letters to be tabled.
·Report on Christmas parties: adventure World, Boat Cruise & Chinese Restaurant - costings
·Golf trips to Albany in W.A.C. vehicle
·Cleaning Service Re: Ruby Blurton
·Kalgoorlie trip in W.A.C. motor vehicle.
·Murray Yarran Letters & Summons.
·Community Concerns & Letters
·Trevor Ryder misuse of W.A.C. motor vehicle Letter 3.9.95
·Glenis Yarran dismissal by Executive on 21.2.95
·Aboriginalize W.A.C. positions”
On 23 March 1995, Mr Ryder replied to these members with advice that
“The request is illegal as the five members have quoted the wrong constitution in calling for this general meeting, this constitution that was quoted has not been approved by Canberra........
If you wish to call for this special meeting you will need to call for it under the current Constitution of WAC (old rules).”
At first glance, this appears a pedantic response, given that Clause 16(6) of the rules tendered to the Court provides that:
“(6) The committee shall on the requisition of not less than five voting members being the holders of shares upon which all sums then due have been paid, forthwith proceed to convene a special meeting.
(7) A requisition for a special general meeting shall state the objects of the meeting and must be signed by the requisitionists and deposited at the registered office of the association.......”
It is not necessary for the purposes of the Court exercising its jurisdiction in this matter, however, for me to reach a final view as to whether the Rules of the WAC were complied with in respect of this particular request.
Whether There was a Valid Reason for Termination
Section 170EDA(1)(a) confers the onus on the employer to prove that there was a valid reason for the termination of the employee’s employment connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service.
In Selvachandran v Peteron Plastics Pty Ltd (IRCA No. 329 of 1995, Northrop J, 7 July 1995, unreported), Northrop J said:
“the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of subsection 170DE(1).”
I am satisfied that Mrs Yarran’s conduct on the morning of Friday 17 February 1995 could provide a valid reason for the WAC to terminate her employment.
Whatever justification she may have had for her grievances, and while I accept that any language she used would have not included obscenities, I find that the hostility which she displayed in shouting at Mr Kohlmann for a relatively prolonged period of time went beyond that which was acceptable in the workplace. In reaching that finding, I have not attributed to Mrs Yarran anything done by others in the group.
Having considered all the evidence, I find that it is more probable than not that, while Mr Parsons spoke firmly to Mrs Yarran, he did not touch her. I find on the same basis that Mrs Yarran grabbed Mr Parsons by the shirt collar and then gave him a significant shove backwards. While Mr Parson’s intervention was perhaps unhelpful, the assault by Mrs Yarran on Mr Parsons was not justified, and there is ample authority that such assaults amount to misconduct justifying dismissal.
While Mrs Yarran was not a party to the standard employment contract, it is indicative of the standards applied by the respondent. That contract defines “physical violence on project premises or business working hours” and “verbal... harassment of any other employee ... particularly in respect of race...” as “gross industrial misconduct” justifying summary dismissal.
When Mrs Yarran’s conduct towards Mr Kohlmann is viewed together with her actions in shouting at Mr Parsons, grabbing his collar and pushing him, the executive committee’s decision to terminate is well defensible.
Whether the Termination was Harsh, Unjust or Unreasonable
The next matter for determination is whether the termination is harsh, unjust or unreasonable.
Section 170EDA(1)(b) confers the onus on the employee to prove that, because the termination is harsh, unjust or unreasonable, there was not a valid reason for the termination.
The views of most staff witnessing the events who were consulted by the executive committee prior to the decision lend support to the proposition that the termination was not harsh, unjust or unreasonable.
In view of Mrs Yarran’s somewhat troubled history of employment up to that time, even putting to one side Mr Kohlmann’s misgivings about her performance, there is little to mitigate Mrs Yarran’s actions.
Was Mrs Yarran given an Opportunity to Defend Herself?
Whether or not Mrs Yarran was told by Mr Ryder of the meeting, and on balance I find that she was, it was prudent of the ALS to insist that Mrs Yarran be given a right of appeal to the Executive Committee, given that the original meeting was held when she was on a scheduled rostered day off, and she had been told by the Chairperson that nothing would happen until they had heard her side of the story.
It is clear that Mrs Yarran, through her solicitors, sought to invoke that right of appeal, and that it was ultimately refused her.
Accordingly, I find that the respondent breached Section 170DC of the Act.
Remedy - Notice?
Mrs Yarran was paid one week’s pay in lieu of notice. As an employee of more than one year’s duration, who was over 45 years of age, she was entitled under Section 170DB of the Act to 3 weeks’ pay in lieu of notice unless she was guilty of misconduct of a kind such that it would be unreasonable to require the employer to continue the employment during the notice period.
Given the breakdown in the relationship between Mrs Yarran and Mr Kohlmann resulting from Mrs Yarran’s conduct, I accept that it was unreasonable for WAC to be required to continue the employment during the notice period. This is demonstrated by the events on the morning of Tuesday 21 February 1995.
Remedy - Compensation
The parties agreed that reinstatement of Mrs Yarran is impracticable. Accepting that this is the case, the Court is empowered to order the payment of compensation as is sought by Mrs Yarran, given the breach by the respondent of Section 170DC.
However, because this case was heard after the proclamation of recent amendments to the Act, the Court may only order such compensation as it considers “appropriate in all the circumstances of the case”. (See Section 170EE(2) of the Act, as amended and also Item 14 (2)(b)(ii) of Schedule 2 of the Industrial Relations and Other Legislation Act 1995).
Even prior to the amendment, it was well established that, in assessing the compensation that was appropriate, the Court would have regard to what is reasonable in the circumstances and look at what would have been likely to occur had the Act not been contravened: Aitken -v- CMETSWU (1995) 63 IR 1 per Lee J at 9.
It should not be assumed that, had Mrs Yarran been afforded the opportunity to defend herself to which she was entitled, the applicant would have been dismissed anyway. As Chief Justice Wilcox explained in Nicolson v Heaven & Earth Gallery (1994) 57 IR 50 at 62, such an assumption ignores the rationale of procedural fairness and everyday experience that decision-makers often change their minds when presented with another side of a case.
However, Chief Justice Wilcox also recognised that it would be unrealistic for a court automatically to assume that, if this employer had complied with Section 170DC, the employee’s employment would have continued indefinitely.
Having carefully considered all the circumstances of this case, I find that it is very likely that the WAC would have decided to terminate Mrs Yarran’s employment notwithstanding anything she could have said in her defence. In so finding I have taken into account the matters that have been put before the Court, and the greater discretion that might have been exercised by the respondent’s committee in reaching its decision.
Conclusion
Accordingly, I have awarded nominal compensation of $907.20, being an amount equal to two weeks’ salary.
I certify that this and the preceding (25) pages
are a true copy of the reasons for decision of
Judicial Registrar R.D. Farrell.Associate:
Dated: 29 August 1996APPEARANCES
Counsel appearing for the applicant: Mr A.N. Makey
Solicitors for the applicant: McDonald & Sutherland
Counsel appearing for the respondent: Mr A.J. Smetana
Chamber of Commerce and Industry of Western Australia
Dates of Hearing: 24 & 25 January 1996
Date of Judgment: 29 August 1996
Written submissions complete: 13 February, 1996.
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