Christine Ann Jarrett v Durri Aboriginal Corporation Medical Service [1995] IRCA 503

CATCHWORDS INDUSTRIAL LAW - UNLAWFUL TERMINATION - CONDUCT AND PERFORMANCE - VALID REASON - TERMINATION NOTICE - PROCEDURAL FAIRNESS - Reimbursement of Credit Union Loan Industrial Relations Act 1988ss 170DC, 170DE , 170EA CHRISTINE ANN JARRETT -v- DURRI ABORIGINAL CORPORATION MEDICAL SERVICE No. NI 1247 of 1995 COURT: MCILWAINE JR PLACE: PERTH (HEARD IN KEMPSEY) DATE: 26 SEPTEMBER 1995

INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES REGISTRY No. 1247 of 1994 BETWEEN: Christine Ann JARRETT Applicant AND: DURRI ABORIGINAL CORPORATION MEDICAL SERVICE Respondent REASONS FOR JUDGMENT 26 September 1995 McIlwaine JR This is an application by Miss Christine Ann Jarrett of West Kempsey claiming unlawful termination of her employment under Division 3 of Part VIA of the Industrial Relation Act 1988 ("the Act"). The Court has received a certificate issued by Commissioner Redman of the Australian Industrial Relation Commission, that the Commission has been unable to settle this matter by conciliation. I am satisfied the matter is properly before me. Miss Jarrett was employed by the Durri Aboriginal Medical Service as an aboriginal youth worker at Kempsey on 9 May 1994 and her employment ceased with that organisation on 20 October 1994. In her application the applicant only claims compensation, although I note that in an earlier letter written by her former solicitors, Messrs Sheridan and Stubbs dated 11 November 1994, the solicitor, presumably on instructions, asked for reinstatement in her position. At the outset of the hearing, Mr Miles, solicitor, who appeared for the Medical Service, applied for the dismissal of the application on the basis that it was not lodged in accordance with section 170EA(3) of the Act, within 14 days after the written notice of the termination. As I had proceeded to Kempsey for the hearing, it seemed to me that I ought to hear the whole application then determine the question as to whether the applicant was out of time along with the other issues covered by the application. The applicant gave evidence to me of her having four teenage daughters who were not dependant on her at the moment. The applicant indicated she was a founding member of the organisation that started the Ngaku Child Care Centre. The applicant left school at 15. The applicant has good reading ability and does a lot of reading. The applicant has not done any formal training in the care of children. When asked about what makes her think she could do work to help young females as advertised in the advertisement her answer was: "I have four daughters and they weren't actually - I went through a rough time with my family through practically everything and I've known all the kids within Kempsey and the outlying area. I know every family in this place and I see a lot of things and at the time I refused a position to go back and work within the Shire Councils, the trainee job going on to a permanent position. I refused that job to go and work with youth." The applicant has also worked with the Shire Council driving the mobile library, part time work with the South Primary School. She has done the domestic violence course with the ladies at the neighbour centre and has volunteered court support with some of the ladies. The applicant is of aboriginal decent, the mother of four teenage children, has a current licence, classes 1B and 3B and has had previous employment with Ngaku Multi Purpose Centre, Kempsey Women's Housing, Kempsey Shire Library, part time work at the South Kempsey Primary School, and has also been involved with coordinating the Homework Centre and after school hours facility care at the South Kempsey Primary School. The applicant, since her termination has worked on two days a week for two hours a day at $28.00, as supervisor of a homework centre. The applicant also attends a TAFE General Skills Course and is in receipt of Abstudy. Abstudy is for aboriginal students. The amount involved is $359.00 per fortnight. At the outset of the hearing Miss Jarrett gave evidence that it was in response to an advertisement in a local newspaper that she had applied for the position with the Durri Medical Service. It is convenient to set out that advertisement as follows: "CES A position exists in the Durri Corporation for FEMALE YOUTH WORKER Hours: Full time Pay: Award Rate Job Description: Provide support and guidance, information and resource and referral services to young females. Drivers licence essential, must be prepared to study, able to work unsupervised. Contact Steve Blunden (065) 626957 All applications to Kempsey CES Closing date March 18 1994 Under Section 14(D) of the Anti Discrimination Act." The statement of duties for the position of aboriginal health worker/youth services is set out in exhibit "C". It is clear on the evidence of both the applicant and the respondent that the applicant attended either an interview or a series of interviews in connection with this advertisement however, the recollection of all witnesses in this regard was deficient and indeed there was no evidence called from any person who had participated in the interview of the applicant by the original committee. The corporation had apparently formed an interviewing committee or had a junior committee that was already established and it was this committee that was responsible for the interviewing of the applicant. Nevertheless the applicant was properly appointed to the position. Although it was suggested to me by the solicitor for the respondent that there was a dispute about the terms of the appointment, I am satisfied that the applicant received a phone call at the Ngaku Multi-purpose Centre where she was working and was asked to come into the medical centre on the Monday to start work. The evidence of the applicant is clear in this regard and it is supported by the evidence of Miss Norma Kelly, the Deputy Chief Executive Officer of the Medical Centre who made the telephone call. Initially there was some dispute amongst the parties as to whether or not the applicant started on Monday 9 May or Thursday 19 May 1994 as shown of the Employment Separation Certificate. I don't think a lot turns on which date is correct although what it does tend to highlight is the lack of attention to basic details in the whole of her employment situation. The letter advising of employment is exhibit 3 in the proceedings and it speaks for itself. There is another date revealed in a document which I am satisfied was prepared by an employee of the respondent who knew it was for the purpose of the applicant applying for a loan from the Macleay Mutual Credit Union to buy a new car. In this regard I accept the evidence of the applicant, particularly as this is a common feature of Credit Union loans: "that the car that I had was just not going very well and to receive that loan I had to get a letter stating my employment from Durri Medical Centre which they did give to me." Although the applicant was not required by the corporation to purchase a motor vehicle, I am satisfied that the vehicle was purchased by her in order to assist her to perform her duties. There was ample evidence from both sides of the case that it was difficult for the applicant to have access to some of the cars operated by the medical centre and that the applicant required a motor vehicle during the course of her duties. In fact, Miss Jarrett was reimbursed for motor vehicle expenses. At some stage the position occupied by the applicant was readvertised. This was explained by Mr Steven Blunden, the Chief Executive Officer. As arising out of the complaint he had received about the interviewing process for the original position. As a result of the original selection process, two people complained about the fact that Miss Jarrett received the position over and above some other person. I accept the evidence of the applicant that there were only two letters of complaint received, to her knowledge, and one apparently was in relation to a disagreement with her employment per say and the other may be against a member of the committee who was part of the original interviewing panel. Mr Blunden gave evidence that he considered the matter and that he determined that it was necessary to have an appeal situation. There was then an internal review process and it was at that stage decided to readvertise the position. In accordance with section 170DC of the Act, during this process the applicant should have been invited and assisted if necessary to put her case to whatever internal organisation was doing this review, to the effect that the applicant be maintained in the position. The failure to implement this safe guard would in any event have been, in my view, sufficient to find a contravention of that particular section and therefore to justify me making a decision that there was no valid reason for termination. I understand why this opportunity was not given as the Chief Executive Officer gave evidence that he anticipated that the applicant would be able to remain in the original position and justify her appointment by that situation. However, this did not turn out to be the case. I'm satisfied that there was no evidence of any poor performance or improper conduct by the applicant. The only area that was touched on in this regard was that a folder, that is not in evidence before me, was produced to the applicant who was then asked to comment on some of the reports or some of the documents contained in that folder, which apparently had been prepared by the new incumbent of the position. As the folder was not tendered to me, I am unable to make any decision or take that into account but nevertheless, it seems to me that if reports were required then that specification would need to be clearly specified in the original advertisement. There was no suggestion of any report writing in the original advertisement. Having regard to the information that I received from Miss Jarrett as to her experience in life and bringing up her daughters in the aboriginal community, it seems to me that the applicant was well qualified for the position which had been gained by her although, she may not have been able or prepared to see the relevance of producing lengthy reports. However, if the job was to be directed by a committee, I can well understand the importance of such reports to the functioning of the committee, however, it would be necessary in my view, to give Miss Jarrett an opportunity to respond to those sought of issues. This was not done. During the course of the proceedings, Mr Myles assured me that the Durri Aboriginal Corporation Medical Service was a legal entity and it was an aboriginal corporation constituted under a special Federal Act. As I indicated many times during the hearing, this is a matter which primarily involves the aboriginal community and ought to have been settled on the basis as outlined in clause six of the Health Services Union of Australia (Aboriginal Health Services) Award 1992. It is relevant to briefly incorporate the principle of aboriginal self determination as set out in clause six of the award as follows: "(a) The HSUA will not seek to influence the operation, administration or decision making processes of NAIHO or its affiliated Aboriginal health services, party to this award. (b) Where a dispute arises between the employer and an employee or employees, the union will act as a mediating body only if so desired and agreed by the employer and the employee or employees affected. (c) Members of the union employed by the respondents shall be bound by the rules of the union and shall pay membership subscriptions to the union at the usual rate. (d) Members of the union employed by the respondents shall have the same rights of participation in the democratic processes of the union as all other members. (e) The union shall seek to improve the terms and conditions of employment of employees of the respondents in an orderly and effective manner. (f) The union shall seek to assist the respondents in improving the health status of Aboriginal people in Australia. To her credit, the applicant first wrote a letter of complaint dated 26 October 1994, to Mr Jimmy Budd, Chairperson North Eastern Indigenous Regional Council ATSIC. A copy of the letter is exhibit 8 in the proceedings The respondent's case mainly rested on the evidence of Mr Steven Vincent Blunden, who is the Chief Executive Officer of the Durri Aboriginal Medical Service. Mr Blunden impressed me as a person who was hard working in the cause of the aboriginal community in which he lived. He held a position with Durri initially in 1979 and then for a period of three years, 1979 -1981, he was their Chief Executive Officer. He then worked for the Commonwealth Department of Aboriginal Affairs and Aboriginal Development Commission for six years and he returned to the Kempsey region as a Senior Project Officer with that department and at the time he re-opened the Durri Medical Service which had closed down for a period of 2 1/2 years. This apparently was done at a meeting on 18 August 1987. Since that date he has been the Chief Executive Officer of Durri Medical Service and that they moved from the Greenhills Aboriginal Settlement to John Street, then to Smith Street where they are currently located. The Durri Medical Service provides a large range of services. Their main objective is provide medical services, disease and health education programs to the aboriginal community. They have a large range of dental services, mid wife programmes, health workers and doctors visiting the aboriginal community within the Macleay Valley. They also employ youth workers and look at community development. Their intention is, to try to develop the aboriginal community and areas where they have no general services like water, sewerage and electricity. They help them compile reports to the Government and Mr Blunden referred me to the case of "Burnt Bridge" where the community is now receiving $4 million to put infrastructure and housing in place. Durri Medical Service is funded by the Federal Government through the Aboriginal and Torres Strait Island Commission and also the Commonwealth Department of Health. They receive funding from the NSW Department of Health and from the Department of Community Services. They have a small amount of private income through Medicare. Mr Blunden testified that Christine Jarrett's selection for her job was performed by a semi-autonomous sub-committee of Durri, namely, the Kempsey Youth Committee. There were three people on the selection committee. The Youth Committee was represented on the committee by Mrs Mavis Davis. The Durri Medical Service had a board director, Mr Harold Barker and Mr Darren Kershaw, who is a Senior Project Officer with the Department of Community Services, chaired the interview panel. Mr Blunden testified that he had known the applicant most of his life. Mr Blunden meet some difficulties in giving his evidence as the file on Miss Jarrett had apparently been lost. Mr Blunden gave evidence as follows: "Christine, we've got these letters, people are appealing against the decision made about you getting the position as youth worker. Now it's a standard procedure, I've got to present these back to the Youth Committee for them to make a decision on .... but that's just standard procedure. Nothing might come of it but unfortunately the Youth Committee, the decision they made was to investigate why the interviews went the way they did. Because we had two women who appealed to the Durri board and the Durri Youth Committee that their interviews weren't really spot on and they were going to take appropriate action to have a fair hearing and so on. What happened, the Durri Board and the Youth Committee, they developed an appeals tribunal. As aboriginal people we try to sort this out ourselves and that lingered over a three month period. In the time building up to that three month period I told Christine that we would keep her employed in a position until we sorted it out because I could not pre-empt what the Youth Committee was going to decide or even the Durri Board but after about three months the Youth Committee decided to re-advertise the position. That was recommended back to the Durri Board of Directors and they accepted that recommendation." Mr Blunden then gave evidence that he told Christine that: "we are going to re-advertise the position but will keep you employed in the position and this will give you a big advantage over other people applying for the job. It will give you your programs that you will develop. The work experience you gain will benefit you on the day of your interview and I felt that because of the appeals we did the right thing by Miss Jarrett by keeping her on for that period. However, none of this was put in writing by the respondent". In any event the applicant apparently applied as she was required to do for the job and interviews were conducted. There was a new interviewing panel comprised of Mr Charlie Davidson from Taree, Mr Davidson apparently operates a big youth project in Taree and he chaired the interviewing panel on that occasion and the chairman of the Kempsey Youth Committee, Mr Huskings, participated. Originally, a Miss Janine Sines was to be a women's representative on the interview committee but on the morning of the interviews she was unable to participate apparently because of a family difficulty, and so, Norma Kelly, the Deputy CEO of the medical service stepped in. I am satisfied that it was not intended originally that Miss Norma Kelly would participate in the second round of interviews. Miss Kelly is apparently related to the successful applicant. Mr Blunden confirmed that he had received no written complaints or reports from the Youth Committee in any respect adverse to Miss Jarrett. The only issue that he was aware of was that Christine didn't like working weekends. Mr Blunden, in some telling evidence, gave the following: Mr Gillroy: "The complaints as to the interview process, when were you first made aware of those documents?" Mr Blunden: "It was just after, probably the end of the first week when Christine first started. Mr Gillroy: "On the first day there was no reference made to any appeal structures or any appeal prospects?" Mr Blunden: "No, I hadn't received the letter on the first day." Mr Gillroy: "When you first spoke to her at the Durri Aboriginal Medical Service you made no reference to that appeal structure or the appeals process?" Mr Blunden: "That Monday there were no letters in my sight, I was aware of no petitions from anybody. Mr Gillroy: "You just welcomed her as a new employee to the Durri Service. Mr Blunden: "Thats it." Mr Gillroy: "Did you tell her of the limitations as to funding on the position? Mr Blunden: "No, I, because she was - I would assume my deputy CEO would have advised her of that." In the light of that evidence and the supporting evidence of Miss Kelly on this issue I find that the applicant was employed as a permanent employee and she was not lead to think otherwise on 9 May 1994. Termination of Employment The termination is summarised in the following way, best quoted from the evidence of Miss Kelly: "You told Miss Jarrett that she was not successful in getting the position?" "Yes, she approached me and asked me. We went into my office and I notified her that she didn't get the position and I offered to talk to her about it, she got up and left." "When did you next see her after that?" "I seen her the Friday morning after that for about 15 minutes and that was it. That would Friday, I think, 25 October, or 26. The Friday after that, what ever the Friday was, yes." Did she make any complaints to you at that stage about not having succeeded in that interview?" All she said that I can recall is that all she wanted was her travelling allowance, her travel kilometres, that she was going to, like, take Durri to court for something. It was something like that, I just can't remember the exact words. Further in her evidence, Miss Kelly confirmed that those sought of words were used on the Friday. While she didn't remember the exact words, she thought it was something like: "She wasn't going to let us get away with it or something like that." An unsatisfactory aspect of her evidence arose out of the fact that Miss Kelly had, during the course of the day, consulted the person who chaired the original interview panel and she was giving some of her evidence based on information from him. I do not find that her evidence was untruthful as I was similarly impressed with her dedication to her community as I was with Mr Blunden. Miss Kelly was not present at the first interview and it would have been better had this evidence had been lead from that person, however, nothing turns on the matter because I am satisfied, on the overwhelming evidence of both parties, that Miss Jarrett was a reasonable, responsible and diligent employee and that is supported by Mr Blunden and Miss Kelly. The "Employment Separation Certificate" recorded the termination as being "because of a shortage of work", which is probably not a strictly accurate description of what happened. In this matter I find Durri Medical Corporation to be in contravention of section 170DC of the Industrial Relations Act 1988. I also find that there was a termination by the employer which took place at the time when Deputy Chief Executive Officer, Norma Kelly advised Miss Jarrett that her position was taken by some other person. I find that there was no valid reason for her termination Whilst I know that the persons who gave evidence to me would accept my decision if I were to reinstate Miss Jarrett, I do not feel that is a practical course in view of the time that has elapsed in this matter. I know that the two persons who gave evidence on behalf of the respondent would be supportive, however, they were not able to provide me with any advice as to the likely reaction of the aboriginal community. Any decision to reinstate the applicant could not work without the full co-operation of that community. I therefore find it is impracticable to reinstate the applicant. One other matter remains for me to make a finding. It was put to me fairly strongly that the letter of 25 October 1994, addressed to Miss C Jarrett and signed by Mr Blunden enclosing a cheque for $1,898.14 as final pay amounted to written notice of termination. In my view, in order for section 170EA(3) to be satisfied, ie, that there must be a written notice of termination, moreover something more is required than a covering letter enclosing a cheque indicating the amount as being for the final pay. The section refers to "the employee receives written notice of the termination". I find that the letter of 25 October 1994 does not constitute such a notice. In those circumstances there is no written notice and therefore a period of 14 days for the application to be made does not apply. In making that decision I have taken into account the fact, as I have earlier indicated, the applicant very properly complained to the aboriginal community leader initially and this matter was not able to be resolved through that avenue. Compensation The evidence of Miss Jarrett was supported by her daughter, Christine Marion Donovan, who gave evidence that she was employed in the Durri Aboriginal Medical Service as a Trainee Medical Records Clerk. Ms Donovan testified that she had previously looked after the motor vehicles for the Durri Medical Service, confirmed that there was 20 - 30 employees, that all the vehicles are shared amongst all the staff. There is apparently one vehicle for medical staff only and the balance of the vehicles were all shared by everyone. Ms Donovan confirmed that there was no specific vehicle allocated to the youth worker. The evidence was also clear from the respondent's witnesses that there were not as many cars as the employees would like to have available to go about their day to day activities. The applicant gave evidence of currently paying $50.00 a week off the loan however, at the time the loan was arranged, it was to be repaid at $70.00 per week. Following her termination of employment the applicant came to an agreement with the credit union to reduce the amount by $20.00. On my assessment, it will take her about 12 months to recover the situation as she may no longer be able to claim for her expenses for the car for taxation purposes. This would be an amount of $1,040.00 I note that the employer advised they considered the weekly salary to be $466.00 (gross) and $375.00 (nett), which is a substantial improvement over her salary of $180.00 prior to her leaving her then employment to join the Durri Medical Service. At the end of the day there has been loss for Miss Jarrett. I note that a lot has been said about the financial circumstances of the service however, I propose to order $6,632.00 be paid as compensation. In view of the financial position of the service as submitted to me, I propose to deliver the above judgment and then give the solicitors who appeared for both parties, an opportunity to address me by telephone conference as to the time, if any, to be allowed for payment of that amount. I set down 2.15pm on Thursday 25 September 1995 Perth time, (4.15pm Sydney time) for this purpose. If the parties agree on a timetable for payment in the meantime I will make orders accordingly. I certify that this and the proceedings sixteen (16) pages are a true copy of the Reasons for Judgment of Judicial Registrar McIlwaine. Associate: Caroline Sternberg Date: 26 September 1995 APPEARANCES Solicitor for applicant: Mr R Gillroy Solicitor for respondent: Mr S Miles