Douglas Maynard v Tasmanian Aboriginal Centre Inc [1995] IRCA 589

C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - PROBATION - NON-COMPLIANCE WITH WRITTEN DIRECTION - FAILURE TO ATTEND A SEMINAR - PUBLIC CRITICISM OF EMPLOYER - REINSTATEMENT - COMPENSATION - LIKELY DURATION OF EMPLOYMENT. Industrial Relations Act 1988, S170CC, S170DC, S170DE, S170EA, S170EE CASES: R V Gorman and Others; ex parte Australian Broadcasting Commission (1979) 24 ALR 609 Gibson v Bosmac (1995) 130 ALR 245 at 254 Johns and Gunns Limited (unreported) IRCA TI148R of 1994 Nicolson and Heaven and Earth Gallery, (1994) 1 IRCR 199) DOUGLAS MAYNARD V TASMANIAN ABORIGINAL CENTRE INC No. TI-95/1154 Before: Ryan JR Place: Hobart Date: 6 November 1995

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY Matter No TI-95/1154 B E T W E E N: DOUGLAS MAYNARD Applicant AND: TASMANIAN ABORIGINAL CENTRE INC Respondent RYAN JR MINUTES OF ORDER 6 NOVEMBER 1995 THE COURT ORDERS THAT: The respondent pay the applicant compensation in the sum of $5,600 within 21 days. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY Matter No TI-95/1154 B E T W E E N: DOUGLAS MAYNARD Applicant AND: TASMANIAN ABORIGINAL CENTRE INC Respondent COURT: RYAN JR PLACE: HOBART DATE: 6 NOVEMBER 1995 REASONS FOR JUDGMENT CLAIM OF UNLAWFUL TERMINATION OF EMPLOYMENT PRE EMPLOYMENT NEGOTIATIONS The Maynards and the Mansells are well known and respected families in the Tasmanian Aboriginal community. Douglas Maynard has been twice elected as a member of the State Committee of Management of the Tasmanian Aboriginal Centre. He has been a member of the Rocky Cape Committee and Chairperson of a southern sports committee in Tasmania. He has been involved in Aboriginal affairs as a Welfare Officer with the State Department of Community Welfare for four years, as an employee in the Commonwealth Department of Veteran Affairs for six years (three as a supervisor) and for eight months as an employment officer with the Tasmanian Trades and Labour Council. Michael Mansell is the Legal Manager of the Tasmanian Aboriginal Centre and solicitor in charge of the Aboriginal Legal Service. He was the State Secretary of the Centre between 1976 and 1978, the President between 1972 and 1976 and he is still a member of the State Committee. In or about January 1995 Mr Mansell seems to have become aware that Mr Maynard was unemployed and to use Mr Mansell's words "scratching for a few dollars to set up his mutton bird operation". Mr Mansell states that soon thereafter Mr Maynard asked him about the possibility of work as a Legal Aid Field Officer with the Tasmanian Aboriginal Centre. A few days later again, after a discussion with Heather Sculthorpe, the Administrator of the TAC, Mr Mansell offered Mr Maynard a position as a Legal Aid Field Officer. Mr Mansell conceded that he has no formal authority to appoint staff. In fact, he admitted, with engaging frankness, that this was just as well "because some of my choices have been absolute disasters". Nevertheless, it is quite clear that Mr Mansell's standing in the Centre is such that he is able and does from time to time arrange the employment of people by the Centre and the formalities are picked up and addressed a little later. This is what happened with Mr Maynard. Mr Mansell discussed the appointment with Ms Sculthorpe. Ms Sculthorpe gave evidence that she had some reservations because Mr Maynard "did not have a reputation of being a supporter of the Tasmanian Aboriginal Centre". She states that Mr Mansell said: "We should give it a go...he knows the community...if it does not work out he has other work options". Ms Sculthorpe also gave evidence as follows: "I agreed that it seemed worthwhile to put him on the payroll to see whether it would work out". THE EMPLOYMENT Mr Maynard began work as a Legal Field Officer in Hobart on 1 February. A few days later, Mr Christopher Mansell, the Finance Manager with the Centre, went through basic employment details with Mr Maynard and ensured that superannuation, taxation and personal details forms were completed. Mr Christopher Mansell also claims that Mr Maynard asked for a copy of staff conditions and that this document was given to him. The document (Exhibit A4) deals with working hours, leave, travel expenses, use of cars, probationary period, termination of employment and grievance procedures. The document is endorsed as follows: "Revised August 1993 - ratified by State Committee 21 August 1993" The second paragraph of the document reads as follows: "Probationary Period Workers will undergo a probationary period for the first three months of employment. Permanent employment will be made subject to a satisfactory probationary report by the supervisor after three months. Staff appraisals will then be conducted annually and increments may be made subject to satisfactory performance." Mr Maynard denies that he asked for or received a copy of this document during his interview with Mr Christopher Mansell. He states that he did not see the document until after the termination of his employment. Mr Christopher Mansell stated that Ms Sculthorpe directed him to place Mr Maynard on the normal probationary period. He did not provide the applicant with the usual letter of employment because Ms Sculthorpe asked him to wait as she was expecting the applicant to provide her with a curriculum vitae so that she could finalise the appropriate pay rate. In the meantime Mr Maynard was paid at the base rate applicable for a Legal Aid Field Officer. The personnel record (Exhibit R10) states that Mr Maynard was employed as a full time Field officer - Legal with a 3 month probationary period ending 1 May 1995. MUTTON BIRDING On 28 February 1995 Mr Michael Mansell approved of Mr Maynard having five days paid cultural leave and 36 days leave without pay in order that he might go mutton birding on Big Dog Island during the mutton bird season. It appears that four or five employees of the Centre, including Michael Mansell and Mr Maynard, were given leave of one kind or another to participate in the mutton bird season. While there is some minor discrepancy in the applicant's personnel record produced from the computer on 20 July 1995 (Exhibit R10) it is clear that the applicant was absent from duty on leave between 24 March and 5 May 1995 and resumed duty in Hobart on 8 May. The application for leave form made and approved on 28 February confirms this (Exhibit A6). TRANSFER TO BURNIE Soon after returning to work on 8 May the applicant sought and was granted approval to act as a Legal Aid Field Officer in Burnie from 29 May to 19 June while the incumbent was on leave. The applicant wanted to work in Burnie because his parents were both in ill-health and he wanted the opportunity to be with and near them. Several respondent witnesses conceded that Mr and Mrs Maynard senior were respected elders in the aboriginal community and that both were in very poor health and that Mr Maynard senior was seriously ill. RUTHERGLEN REVISITED On 23 May Ms Sculthorpe issued a memo encouraging attendance by staff at a seminar scheduled for Sunday 18 June to Tuesday 20 June. The memo (Exhibit R1) reads as follows: "RUTHERGLEN REVISITED Seminar & workshops for staff & committee Sun 18 - Tues 20 June 1995 Arrive in time for Sunday lunch, leave after Tuesday lunch. As many staff as possible should attend.