Patricia Andrea Mobb v King Island Council [1995] IRCA 615

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2246 of 1994 B E T W E E N: Patricia Andrea MOBB Applicant A N D KING ISLAND COUNCIL Respondent REASONS FOR DECISION 17 November 1995 PARKINSON JR This is an application made pursuant to s170EA of the Industrial Relations Act 1988. The applicant was employed by the King Island Council for a fixed term of two years on 11 August 1992 as a Community Development Officer. At the time of the applicant's employment the Council was being administered by a state government appointed administrator. The administrator exercised all of the powers of a council under the relevant local government legislation. On 2 August 1993, the applicant's duties and responsibilities were significantly altered and she was appointed to a further and different community service position. To enable her to undertake the additional responsibilities, her original terms of employment and duties were altered with her agreement and by resolution of the Council administrator. Some time later in 1993 elections were called for positions as councillors, and a new council was elected. It appears that from the time of the election of the respondent Council the applicant was placed under pressure as a result of reservations on the part of the Council as to the provision by it of community services, and the extent of its responsibilities in this regard. It is apparent from the evidence in these proceedings that there was opposition by the elected Council and Council staff, particularly at senior levels, to the provision of community services of the type which the applicant was employed to deliver. I have no doubt that the applicant was subjected to intense pressure and a degree of obstruction in her attempts to perform her duties. The fact of there having been harassment of the applicant was raised with the applicant in cross-examination by counsel for the respondent. Both sides in these proceedings acknowledged that the applicant was the subject of rumours and innuendo as to her sexual preferences, and implicit criticism and comment for being "that feminist woman". It is my conclusion that she was generally treated with disdain and accorded little cooperation in the performance of her duties as a professional officer of Council. She was characterised by other staff as being "demanding and pushy", and criticised for generating too much work. Various criticisms were made of her in these proceedings, however in none of the evidence before the court were there any sensible examples given. It was not suggested for example, by the persons doing typing work for the applicant, that she had been rude or demanding of inappropriate priority, rather the criticism seemed to be merely of the fact that she was asking for any typing to be done for her at all. The senior secretary, who was responsible for directing the work of more junior secretarial staff, apparently considered that the applicant's reports were unnecessary. It is my finding that the applicant was the victim of a campaign of harassment directed at her, and that in part that campaign was as a consequence of her sex. Not surprisingly, the applicant, as a result of this environment, became distressed and suspicious and ultimately ill, with her illness involving an absence from work for approximately four months. On or about 28 October 1994 the applicant's treating doctor certified her capacity to return to work, and her solicitors wrote to the respondent advising them of this fact, but seeking resolution of some areas of concern to the applicant. These concerns were relatively minor matters associated with accommodation and duty statements. The letter was not framed on the basis that resolution be a precondition to returning to work. Upon receiving advice that the applicant intended returning to work, a decision was taken by the respondent to terminate her employment. The applicant was told by telephone not to attend at the workplace. On 2 November 1994 a letter, Exhibit A1, was hand-delivered to the applicant by the acting general manager of the respondent, advising her that her employment was terminated. At the same time another letter, Exhibit A2, was delivered advising the applicant that owing to her certified capacity to return to work, the respondent was formally notifying of its intention to terminate her workers' compensation payments. The conduct of the respondent in terminating the employment was a disgrace. There was no attempt to discuss the issue of the employment with the applicant. There was no reason given for the termination of the employment, and it was done in a manner which, in my view, was vindictive. No discussion with the applicant had occurred. No matters of concern in relation to the applicant's work performance had been or were then raised. No reasons were given for the termination of the employment in the letter of 2 November . The complaints as to the applicant's work performance relied upon in these proceedings as founding valid reason for the termination of employment in substance were as follows: 1. That she created a lot of typing work and administration work. The evidence in this regard of the person responsible for her typing was that she did not have complaints as to the level of work. The evidence of Mrs Sullivan, the senior secretary and later a councillor of the respondent, was that it was her view that the applicant kept unnecessary pamphlets and copy documents on files and generated unnecessary reports. This witness was not qualified to speak in relation to the performance of community development functions, and as such her views on the applicant's work performance are of no assistance to the court. I am not satisfied that this constituted a valid reason for the termination of the employment. These complaints in my view were symptomatic of the attitude of various staff members towards Mrs Mobb holding the professional position that she did. 2. That she queried the allocation of funding monies and sought clarification with the funding bodies as to the respondent's responsibilities in this regard. In so far as this basis is concerned, it is noted that there is no evidence to suggest that the applicant was ever told by the respondent that she ought not make such contact. Nor is there any evidence to suggest that the applicant was doing anything beyond what is normally required of a person with responsibilities to administer or provide services within Commonwealth or State funded programs. 3. That the applicant wrote a letter to the editor of the King Island newspaper regarding community development service provision on 6 April 1994. This occurred some seven months prior to the termination of the employment and, in the absence of any warning or disciplinary action at the time or previously, or a repetition of such conduct after being warned, it does not constitute valid reason for a termination of employment some seven months later. No evidence was before this court as to any policy or directive of the respondent in respect of public comment of the type made in that correspondence. Further there is nothing on the face of the correspondence which is critical of the respondent or its officers. 4. That there continued to be difficulties between the applicant and the respondent as to the applicant's duty statement and complaints by the applicant as to the suitability of her accommodation as evidenced by the contents of the solicitor's letter advising of her return to work. Whilst I accept that there had been extensive discussions as to the applicant's job description from the time the applicant's duties and responsibilities were varied in 1993, and whilst I accept that the respondent felt some frustration in this regard, nevertheless this matter was not a valid reason for the termination of the employment. I am not satisfied that the respondent has established that it had valid reason for the termination of the applicant's employment. There is no evidence before this court that would suggest that the applicant was anything other than a dedicated and hardworking employee. The evidence of the respondent amounts to a dislike of the manner of the applicant, and in particular her assertiveness and dedication to her position. The employer took no steps in the course of the employment to remedy the harassment and innuendo to which the applicant was being subjected in the course of the employment. The jurisdiction issue The respondent submitted that there was no jurisdiction in this court to deal with the application because the applicant was originally appointed to a position for a fixed term. The respondent submitted that the applicant was appointed to her position on a fixed term contract for a period of two years until 30 June 1994. Consequently it submitted that Regulation 30B(1) (a) precluded the court from hearing and determining the S170EA application. The same submission was made in relation to the position of ACIS Information Officer. I disagree with this submission. I am not satisfied that the original contract, and in particular the application of its term, remained in force after the amendment to the terms of the engagement of the applicant by the resolution of the respondent dated 27 July 1993. It is clear from the exhibits that further changes to the duties and the applicant's functions were made in or about November, 1993. In this regard the Council discussion paper dated November 1993 (Exhibit R1, Document No 4) identifies a number of alterations to the manner of delivery of services previously performed by the applicant and then performed by another person engaged elsewhere. The duty statement and policy manuals adopted by council in November 1993 identify that the position occupied by the applicant was to be from that time that of Community Development Officer, incorporating responsibilities for the federally funded health program and the ACIS program. In so far as the applicant is concerned, after the integration of the programs and the reorganisation of the funding arrangements, either as at July 1993 or, at the latest, November 1993, whilst there might have been two separate and distinct positions for the purposes of funding, there was nevertheless ongoing employment with significantly changed duties and responsibilities. What occurred in July 1993 when the applicant was appointed to the new and additional position and duties was not a mere variation to the original contract of June 1992. This would be inconsistent with the provisions of the letter of appointment to the ACIS position in July 1993, which was clearly an ongoing appointment and not subject to a fixed term. The description of the positions as two separate or distinct positions by the respondent in its correspondence of 17 August 1994 and 2 November 1994 does not change the effect of the alterations to the original appointment terms by the steps taken in July and November, 1993. The applicant's existing employment arrangements were altered to enable her to take on the duties and functions of the ACIS role as an ongoing part of her duties as Community Development Officer of the Council. This alteration took place in July 1993. At that time there was a substantial change to the classification of the applicant, and there was at this time a fundamental alteration to the terms of engagement of the applicant. I am satisfied that this resulted in the applicant being engaged upon a new and different contract of employment at that time, one which was not subject to a fixed time term. Further, it is clear from the evidence in the proceedings that from July 1993 the conduct of the parties was at all times premised upon the applicant's employment continuing beyond the expiry date set in the original letter of appointment as Community Development Officer. This is to be ascertained from the policy manual adopted by respondent on 21 December 1993 wherein the applicant's position was discussed. The ACIS program is integral to the Community Development Officer's position, and is not treated as a separate and discrete position for job description purposes. The correspondence between the applicant and the respondent, and the applicant's union and the respondent in the period leading up to the 30 June 1994 and afterwards, clearly anticipates an ongoing employment relationship between the parties. Exhibit R1, Document No. 15 at p 26 is a letter dated 17 August 1994, from the respondent to the applicant advising her of a review to be undertaken of the positions of Community Development Officer and ACIS Information Officer. All that document does, is to advise that the "contract" relating to the position of Community Development Officer expired on 30 June 1995. There is no indication in that letter that the applicant does not continue in the employ of the respondent, and the applicant is invited to participate in a review of the positions of Community Development Officer and ACIS Information Officer to take place at some time in the future. The evidence is that the applicant left work on 28 June 1994 and, as a result of illness, was not able to return to work until 1 November 1994. It is apparent that the applicant's employment in the ACIS officer's position continued in fact beyond the fixed term contract expiry date of 30 June 1994 and I so find. I am satisfied that the applicant is not a person who is excluded from the operation of the Act by virtue of Regulation 30B. Remedy - S170EE I turn now to consider the question of remedy. The respondent's evidence was that in the event that the court ordered reinstatement, the council of King Island had resolved to cease providing a community services program or the ACIS service, (Exhibit R4) and that consequently, it submitted, I ought find that an order for reinstatement is impracticable. It was also submitted that because the applicant had found the previous hostility towards her difficult to handle, that an order for reinstatement placing her back in the same hostile environment was impracticable. In relation to the latter submission, I am of the view that in determining whether or not an order for reinstatement ought be made, the principal consideration regarding sensitivities and susceptibilities are those of the applicant. In this case the applicant has indicated that she wishes to return to the workplace and has informed the court that in circumstances where the option is unemployment, she seeks reinstatement. Further, I am of the opinion that the respondent ought not be able to rely upon the conduct of harassment of one of its employees about which it did nothing, as a basis for avoiding an order for reinstatement. In so far as the submission regarding the council resolution is concerned, I note that the resolution does not indicate that the council has decided to cease to provide such services, rather the threatened cessation of the services, which the applicant was originally employed to deliver, is clearly subject to the condition precedent of an order of this court being made. In my view the resolution was adopted for an improper purpose. The resolution is not a relevant consideration in determining whether an order for reinstatement is impracticable and I decline to have regard to the terms of such a resolution in determining this question. I am concerned merely with what is practicable at the time of the reinstatement. The resolution of the council referred to earlier in this decision establishes that the functions for the two funded programs were still being performed. At this time there is a position to which the court is able to reinstate the applicant. That is the position of Community Development Officer, including the ACIS position, and that is the order that I will make in these proceedings. The applicant is also entitled to that amount of remuneration she would have received but for the termination of the employment over the period between the date of termination of the employment and the date of the order for reinstatement. This is to be subject to deduction for any workers compensation or social security benefits received in that period and is payable as an amount with taxation deducted. The actual amount of lost remuneration will need to be the subject of calculation by the parties and therefore is not set at this time by the court. However the parties are reserved leave to apply in the event that there is disagreement as to the amount and in such circumstances The orders of the court will be: 1. That the applicant be reinstated to the position in which the applicant was employed immediately before the termination, being the position of Community Development and ACIS Officer. 2. That continuity of employment be maintained for all purposes. 3. That the respondent pay to the applicant all remuneration lost by the applicant between the date of the termination of the employment and the date of the order for reinstatement. The parties to settle the amount having regard to the deduction of workers compensation and PAYE deductions. Leave is reserved to apply in relation to the amount of remuneration. 4. Time for payment is 21 days from the date of this order. I certify that this and the preceding ten (10) pages are a true copy of the reasons for decision of Judicial Registrar Parkinson. Associate: Dated: 17 November 1995 APPEARANCES Solicitors for the applicant: McGrath Coleman Stewart Counsel appearing for the applicant: Mr G Burns Solicitors for the respondent: Crisp Hudson & Mann Counsel appearing for the repsondent: Mr G W Tremayne Dates of hearing: 11 & 12 October 1995