CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - ALLEGED UNLAWFUL TERMINATION - WHETHER VALID REASON FOR TERMINATION PROVED WORKPLACE RELATIONS ACT 1996, s170EA, ss170DE(1) MICHAEL JOHN REYNOLDS -v- ABORIGINAL CO-ORDINATING COUNCIL QI97/1024 BEFORE: BOULTON JR PLACE: BRISBANE (HEARD IN CAIRNS) DATE: 24 JULY 1997 IN THE FEDERAL COURT OF AUSTRALIA No. QI97/1024 QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION BETWEEN: MICHAEL JOHN REYNOLDS Applicant AND: ABORIGINAL CO-ORDINATING COUNCIL Respondent BEFORE: BOULTON JR PLACE: BRISBANE (HEARD IN CAIRNS) DATE: 24 JULY 1997 THE COURT ORDERS THAT: 1. The application be dismissed. NOTE: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA No. QI97/1024 QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION BETWEEN: MICHAEL JOHN REYNOLDS Applicant AND: ABORIGINAL CO-ORDINATING COUNCIL Respondent BEFORE: BOULTON JR PLACE: BRISBANE (HEARD IN CAIRNS) DATE: 24 JULY 1997 REASONS FOR JUDGMENT BACKGROUND This application was filed out of time in the Australian Industrial Relations Commission. On 9 April 1997 the Commission extended time for the filing. It referred the matter to the Industrial Relations Court of Australia on 15 May 1997, with its certificate under ss 170ED(1) of the Workplace Relations Act 1996. The application came on for trial before me in Cairns on 16, 17 and 18 June 1997. At all material times the applicant was employed as an auditor by the respondent, the respondent being a statutory corporation under Queensland legislation set up to assist, coordinate and care for the interests of the Aboriginal Trust Communities in Queensland. These Communities hold their lands subject to Deeds of Trust under the Queensland legislation. The respondent assists the local councils of the Communities to audit their books. The applicant worked out of Cairns. On 1 October 1996 he travelled from Cairns to one of the Aboriginal Communities, at Umagico. In consequence of that visit, and events which followed, the respondent resolved on 30 October 1996 to terminate the applicant's employment, notice of such termination being conveyed to the applicant by a letter dated 4 November 1996. In that letter, the applicant was given two weeks' notice of termination. He worked out the period of notice and ceased with the respondent on 18 November 1996. EVIDENCE There was not a great deal of dispute between the parties as to the salient facts. What follows below is a summation of what I consider to be the material features of the case. The respondent's staff policy required the applicant to obtain approval for travel and travel allowance prior to travel being undertaken. The relevant staff policy provided that travel must be relevant to the duties of the position of the officer, and approval for travel and travel allowance together with all supporting documentation must first go in writing to (the officer's) Manager and the Secretariat Director. The parties agreed that in the present case the office-holder from whom the applicant was required to obtain approval for travel was a Mr Opio-Otim who held the position of Executive Director of the respondent. The applicant made no secret in his evidence that he treated the Executive Director with disdain. The respondent's case was that the applicant travelled on 1 October 1996 to Umagico without first obtaining the approval of the Executive Director. This was said to be in breach of the respondent's travel guidelines. The respondent claimed that the applicant misrepresented the purpose of his travel in a telephone conversation with the Chairman of the respondent, a Mr Fourmile, on 30 September 1996, in order to gain the verbal approval of the Chairman for such travel. Mr Fourmile gave evidence before me. His evidence was that the applicant spoke to him on 30 September 1996 and raised problems with an internal audit then being conducted in Umagico. He sought the Chairman's permission to travel there. In consequence, Mr Fourmile tried to phone a Mr Gatewan, the Chairman of the Umagico Council. He was unsuccessful that day. That same night the applicant phoned him again about going to Umagico. I infer that Mr Fourmile then gave the applicant tacit permission to travel. On 1 October 1996 Mr Fourmile spoke to Mr Opio-Otim and asked him if he knew if the applicant had gone to Umagico. Mr Opio-Otim told him he had no knowledge of the trip. The Chairman heard that day from Mr Gatewan who told him that he did not want the applicant on his Community, apparently because there had been a problem in the past with some missing money. The applicant's case was that an officer of a State Government department, a Mr Orr, had phoned him to ask him to go to Umagico to help prepare documents for auditors acting for the State Auditor-General who were then in the area. The applicant claimed that he sought permission from Mr Fourmile at short notice for what was a special trip. The applicant claimed that when he spoke again to Mr Fourmile on the night of 30 September 1996 about whether he should go Mr Fourmile said it was up to him whether he did or not. The flight left at 6 am the next day. The applicant agreed that when he arrived on the Community, Mr Gatewan told him that they did not want him to touch anything. The council clerk later asked him to leave the Community. He left Umagico and stayed overnight at Bamaga, and flew back from Bamaga to Cairns the next day. The respondent's case was that the applicant's assertion that Mr Orr had asked him to attend at Umagico was false. Mr Orr did not give evidence before me. After the applicant's return to Cairns, the Executive Director sought information from him regarding the reason for the trip. The applicant had filled in a Request to Travel form. The Executive Director had written on the form: Gross irregularity. No approval granted but officer travelled. Find out who authorised the travel. Report to be provided upon return to office. That notation was dated 2 October 1996. In response, the applicant produced a typed memo addressed to the Executive Director and dated 4 October 1996. In that memo, he referred to the Executive Director's request for information regarding the "irregular" trip, and stated: I find the use of the work "irregular" on the Request to Travel form without making proper inquiries more than a little offensive and an apology is requested from yourself. The memo went on to state: Your lack of attention to proper procedures led to the airline ringing me today and requesting the order number so they could get paid. Marita had cancelled the ticket as the plane was proceeding down the runway. I was lucky to get aboard because of your stupidity. The reference to: ... as the plane was proceeding down the runway was a reference to the applicant's return flight. The applicant's memo caused the respondent to write to him by letter dated 11 October 1996. That letter stated, inter alia, that: The Executive is dismayed by the final sentence of your memo which makes an allegation of stupidity against the Executive Director. The allegation is not only false, but the ACC Executive and the Executive Director consider it to be insolent and highly offensive to the Executive Director. Not only have you directed this insulting assertion to the Executive Director, but you have seen fit to repeat it to an outside organisation, namely, OATSIA. This was a reference to the fact that the applicant had sent a copy of his memo of 4 October 1996 to OATSIA, being the Office of Aboriginal and Torres Strait Islanders Affairs (a State Government body). The letter of 11 October 1996 went on to request the applicant to deliver written reasons for his comments to the Executive within 14 days of the date of the letter. It also required him to deliver a written apology to the Executive Director within that time period and to forward a copy of such apology to OATSIA. The letter informed the applicant that he was on notice that the Executive was considering whether his comment was grounds to warrant his summary dismissal. The applicant responded by letter dated 18 October 1996 to the Chairman of the respondent. In that letter, the applicant made reference to the alleged cancellation of his return flight and stated: I became annoyed (as any reasonable person would) at this train of events and wrote the attached memo to the Executive Director. He went on: In my opinion, the way the Executive Director treats most staff has led to a marked decline in morale within the ACC. I do not believe I have done anything to apologise for, and request the Executive act in a just and fair manner in this matter. The Executive considered the matter on the second day of its meeting held in Cairns on 29 and 30 October 1996. After a discussion, the Executive invited the applicant to join the meeting at 3 pm. The applicant was asked why he had gone to Umagico, and he repeated his earlier assertion of the reason. Mr Fourmile, who was present at the meeting, told it that the only reason given to him by the applicant prior to the trip was concerning the installation of a new computer system. At the meeting, the applicant persisted in his reference to the stupidity of the Executive Director. He would not apologise to the Executive Director. The applicant left the meeting after about 20 minutes. After further discussion, the Executive resolved to dismiss him from his employment. That decision resulted in the letter of termination dated 4 November 1996. Mr Fourmile gave evidence that, during the meeting, the applicant waved his finger at the Executive Director, who was present, and said: Don't listen to everything this man tells you. Mr Fourmile claimed that it was extremely bad-mannered and offensive in his culture for someone to point a finger as the applicant did. The Executive Director described the applicant as having: ... stood up and shook his hands at me, accompanied with, Don't listen to everything this man tells you. A Mr Sands, a member of the Executive, gave evidence that he saw the applicant point his finger at the Executive Director and say: If it wasn't for the stupidity of this man, we wouldn't have this problem. He supported Mr Fourmile in his description of the offence given by the finger-pointing. The applicant at no time positively disputed the evidence of the respondent's witnesses of what occurred at the 30 October 1996 meeting. He agreed in cross-examination that correct procedure involved his submitting a memo to the Executive Director with written reasons for his travel. He agreed that he was aware the Executive Director had to authorise his flight back to Cairns. He agreed also that the Executive Director could have known nothing of his plans to return on 2 October rather than 4 October 1996 which was the date referred to in the Request to Travel form filled out by him. He was asked why he had not given a proper explanation to the Executive Director rather than preparing and sending the memo of 4 October 1996. He response was that he was very offended by the Executive Director's reference to gross irregularity. FINDINGS I am satisfied that the applicant travelled to Umagico without following the correct procedure in support of his trip. He did, however, have at least tacit permission to travel from Mr Fourmile. He left no document for the Executive Director concerning his need to depart urgently. He did not contact the Executive Director about arrangements for his return flight. The Executive Director would have had no indication of when the applicant was returning. In the circumstances, the Executive Director was entitled to call for an explanation from the applicant. The applicant's response was high-handed, and offensive. He ought not to have published his memo of 4 October 1996 to the State Government body. I am unable on the evidence to conclude what the real reason was for the applicant's trip. The applicant was given the opportunity to apologise. He chose to repeat to the Chairman his accusation of stupidity against the Executive Director. At the meeting of 30 October 1996 at which he knew his employment was on the line, he was not contrite but chose again to attack the Executive Director. He knew, or ought to have known, that his finger-pointing was highly offensive to a meeting of indigenous people. The Executive Committee found his behaviour at its meeting intolerable. My views have fluctuated about whether or not these events as found were sufficient to justify the termination of the applicant's employment. On balance, and after taking into account the particular sensitivities involved, I am satisfied that they were. No submission was made to me that there had been any breach of procedural fairness in the manner of the applicant's termination. I note for completeness that Mr Sands swore that he at least was considering at the Executive Committee meeting of 30 October 1996 the question of the missing money at Umagico and whether or not the applicant had any role in it. However, I am satisfied that this was a matter Mr Sands was weighing up before the applicant's comments and finger-pointing directed at the Executive Director. In other words, I am satisfied that this issue, which was never really explored with the applicant at the meeting or in evidence at trial, did not play any role in the respondent's decision to terminate the applicant's employment. ORDER I order that the application be dismissed. I certify that this and the preceding SIX (6) pages are a true copy of my Reasons for Judgment. Judicial Registrar: Date: 24 July 1997 Appearing for the Applicant: In person Counsel for the Respondent: Mr Waltham Dates of hearing: 16, 17 and 18 June 1997 Date of judgment: 24 July 1997