Roberta Elizabeth Byrnes v Bendemere Shire Council [1995] IRCA 517

CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - OPERATIONAL REQUIREMENTS - HARSH, UNJUST OR UNREASONABLE - PROCEDURAL FAIRNESS - REINSTATEMENT IMPRACTICABLE INDUSTRIAL RELATIONS ACT 1988 , ss170EA, 170DE Fenton & Gallagher v Casey College of TAFE VI 1106 & 1107/94 Parkinson JR 8 December 1994 ROBERTA ELIZABETH BYRNES v BENDEMERE SHIRE COUNCIL No. QI95/1025 BEFORE: BOULTON JR PLACE: BRISBANE DATE: 14 AUGUST 1995

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) No. QI 95/1025 QUEENSLAND DISTRICT REGISTRY BETWEEN: ROBERTA ELIZABETH BYRNES Applicant AND: BENDEMERE SHIRE COUNCIL Respondent MINUTE OF ORDERS CORAM: BOULTON JR PLACE: BRISBANE DATE: 14 AUGUST 1995 THE COURT ORDERS THAT: 1. The application be allowed. 2. The respondent pay to the applicant the sum of $924 within 14 days of today. NOTE: Settlement and entry of orders are dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) No. QI 95/1025 QUEENSLAND DISTRICT REGISTRY BETWEEN: ROBERTA ELIZABETH BYRNES Applicant AND: BENDEMERE SHIRE COUNCIL Respondent BEFORE: BOULTON JR PLACE: BRISBANE DATE: 14 AUGUST 1995 REASONS FOR JUDGMENT Background The applicant, now aged 56, was a clerical assistant employed by the respondent at Yuleba in Western Queensland, and had been so employed since 7 August 1989. There are presently about 1200 people in the local government area administered by the respondent. Cattle, grain crops and some gas production account for the Shire's principal income-producing activities. Yuleba has a population of about 300, while the other towns in the Shire have about 300, and 30 people, respectively. The respondent has an elected mayor and six councillors. Like much of rural Australia, the Shire has been ravaged by drought. It is presently undergoing some rebuilding. The Shire's ratepayers have been so badly affected by the drought that for the last two years the respondent has offered a 10 per cent drought rebate on the rates levied by it. Because of financial constraints, including a cutback in funding from the Queensland Department of Transport, there has been a gradual pruning back in the respondent's workforce. Its outside work-force has gone from about 45 people to a present level of about 18 - 20. The respondent's inside or office staff have numbered 4 at least since the applicant's employment. They are, apart from the applicant, the Chief Executive Officer (a Mr McArthur), a Senior Clerk and a Cost Clerk. About four - five years ago, computers were introduced for the use of the office staff, which progressively freed up their time from the more manual duties. The Mayor, a Mr Smith, who has occupied that office (previously known as Shire Chairman) for 20 years, expected there might be a reduction in the Council's office staff as a result of the new technology. In early 1994 he discussed the question of a reduction in those numbers with Mr McArthur. His expectation was that Mr McArthur would make a decision to terminate the services of one of the other three, in consultation with the respondent. The Mayor was aware by early December 1994 that there appeared to be insufficient work in the respondent's office to keep all four staff occupied. In January 1995, the Mayor learnt that Mr McArthur had decided it was the applicant whose employment was to be terminated, the other three staff to share her duties. He was not surprised that she was the choice. The Senior Clerk, Mrs Mirabito, had been some 24 years with the respondent, and was a fully-qualified local government officer who could take over from the Chief Executive Officer whenever the latter was away. She had, in about March/April 1994, received a pay rise, as a Deputy Chief Executive Officer. The Cost Clerk, Mr Irwin, had also had lengthy service with the respondent, and computer familiarity to a level which the applicant did not have. The applicant's general duties had been as a receptionist, filing clerk, register keeper, a taker of Council minutes and tea maker. She had also receipted moneys, answered telephones, and manned the Council library at the back of the office premises in Yuleba. The library was well patronised and regarded by the applicant as a wonderful service for the ratepayers. It was common ground that the applicant's conditions of employment were governed by the terms of the Queensland Local Government Officers Award (1992) (the Award), its predecessor having like effect. The applicant's employment was terminated on 27 January 1995. There is no dispute that she received all statutory and other entitlements on termination, including four week's pay in lieu of notice, an extra week's pay on account of her being over 45, and eight weeks' severance pay. It was also common ground that during the course of her employment with the respondent the applicant had never been counselled or warned about any aspect of her performance as an employee. It is clear that the applicant's job was very important to her: she said as much in evidence. She also said that she wanted to keep as active as possible for as long as possible, working being part of that strategy. She is an intelligent person who displayed puzzlement at what had befallen her. She also, I think, does not easily forgive and forget. The applicant went on holidays in the week before Christmas 1994. She was due to return to work on 27 January 1995, a Friday. On the afternoon of 23 January, a Monday, she learnt from one of the councillors that her employment was to be terminated. The councillor thought, wrongly, that the applicant had returned to work that day and would have been informed that day about the impending termination by Mr McArthur. That evening the applicant went to see Mr McArthur at his home, and told him what she had heard. He confirmed it. There is a dispute between the applicant and Mr McArthur about what was next said. There is also a dispute between the applicant and the Mayor about what subsequently passed between them. I do not consider it necessary to resolve these conflicts, as in my view a resolution does not impact on the disposition of the matter. Either then or a few days later, the applicant learnt that redundancy was the reason for the impending termination of her employment. The applicant made it known to Mr McArthur that her preference was to work out the notice period. However, when she went in to work on 27 January, her possessions had all been packed up in two cardboard cartons, and her preference was denied her. She described this to me as frightfully traumatic. The applicant has had no employment since termination. Section 170DE The respondent submitted that it terminated the applicant's employment for a valid reason, within the meaning of subsection 170DE(1) of the Industrial Relations Act 1988 (the Act), based on its operational requirements. While in the opening it was said on the applicant's behalf that the redundancy was not genuine and the reliance on the introduction of technological change a subterfuge, the applicant's attack on the respondent's evidence directed to this issue seemed to lack vigour. I say this with no disrespect to Mr Buckley, who appeared on behalf of the applicant. In any event, I am satisfied on the evidence before me that the respondent has proved it had a reason of the sort it contends for in terminating the applicant's employment. There was a need for cost saving to be achieved. The applicant was the logical candidate for redundancy. The decision was made for bona fide reasons, and was not merely a sham to enable the respondent to avoid scrutiny of the termination - Fenton & Gallagher v Casey College of TAFE VI 1106 and 1107/94 Parkinson JR 8 December 1994. Was the termination harsh, unjust or unreasonable? Mr McArthur is a long-serving and very experienced local government officer. He has had about 18 years in all performing the duties of a Shire Clerk (the position now known as Chief Executive Officer). He agreed that he was, prior to the applicant's termination, familiar with the Award and those clauses of it which imposed obligations on the respondent to its employees in the event of planned major staffing and other changes likely to have significant effects on those employees, and in the event of planned redundancies. Those obligations include notice to and discussions with employees likely to be affected, to be held as early as practicable, and involvement of a relevant union - clauses 46A and 46B. On no view could Mr McArthur be regarded as having complied with the requirements of those clauses. Why he did not remains a mystery. I suspect that perhaps because of his friendship with the applicant and knowledge of her personality, he was putting off what he thought would be an unpleasant task. He may also have not wanted any union involvement in the termination. Whatever the real reason, his handling of the applicant's termination does him no credit. That the applicant should have learnt of the upcoming loss of her job by an indirect means, and at the eleventh hour, is most unsatisfactory. I consider that the termination was harsh, unjust or unreasonable in light of the requirements of the Award earlier referred to, and the general law as to procedural fairness. The applicant complained of other specific matters associated with her termination, being the refusal of the respondent to let her work out the period of notice, and its failure to clothe her termination with some formality, such as informing her of the decision in the Council chambers, and giving her a piece of paper recording that decision before it took effect. None of these matters amounts in my view to a failure to accord procedural fairness. Remedy I consider that reinstatement is impracticable where operational requirements mean that a position has legitimately gone. Even if that were not so, it is difficult to imagine the restoration of any harmony at the workplace between the applicant, Mr McArthur and the shire's elected representatives. What would have occurred if the respondent had complied with its obligations to accord the applicant procedural fairness? The decision taken to terminate the applicant's employment may have been delayed, at best, but it would still have been implemented. Appropriate compensation in my view for the breach of the Act I have found must be fixed by reference to my assessment of the likely period of that delay - in other words, how long would a procedurally fair termination have taken to be carried out? A matter of a few weeks only must be the answer. At termination, the applicant was earning $24,000 gross per annum, about $462 per week. I assess appropriate compensation to be the sum of $924. In conclusion, I urge the applicant to put the matter behind her. She has lost friends because of it, in a very small community. She can feel vindicated by the result she has achieved, but must get on with her life without rancour. The orders I make are: (1) The application be allowed; (2) The respondent pay to the applicant the sum of $924 within 14 days of today. I certify that this and the preceding EIGHT (8) pages are a true copy of my Reasons for Judgment. Judicial Registrar: Date: 14 August 1995 Appearing for the Applicant: Mr Buckley Solicitor for the Respondent: Mr Watson Freehill Hollingdale & Page Date of hearing: 18, 19 and 25 July 1995 Date of judgment: 14 August 1995