Christine Elizabeth Barsby & Ors v Great Southern Shelter Inc [1996] IRCA 90

DECISION NO: 90/96 C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - alleged unlawful termination - incorporated association - incapacity of respondent to defend claim - application to intervene - whether valid reason for termination - harsh, unjust or unreasonable - reinstatement - compensation - associated juristication - non-compliance with objects of incorporated association. INDUSTRIAL RELATIONS ACT 1988 Ss 170DE, 170EA, 170EDA, 170EE. Associations Incorporations Act 1895, Ss 31, 34. Spiteri -v- Monocure Pty Ltd IRCA No. 299 of 1995, Wilcox CJ, reported, 20 Dec 1990 Annetts -v- McCann (1990) 170 CLR 596 Walker -v- Ken Vidler Surfsports IRCA No. 655 of 1995, RD Farrell JR, unreported, 30 November 1995 Aitken -v- CMETSWUA (WA Branch) IRCA No. 352 of 1995, Lee J, unreported, 7 August 1995 CHRISTINE ELIZABETH BARSBY & Ors -v- GREAT SOUTHERN SHELTER INC - WI95/2093 & Ors BEFORE: R. D. FARRELL JR PLACE: PERTH (Heard in Albany) DATE: 8 MARCH 1996

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 95/2096 BETWEEN: ELSIE AGNES WOODS - Applicant AND: GREAT SOUTHERN SHELTER INC - Respondent MINUTE OF ORDERS BEFORE: R. D. FARRELL JR PLACE: PERTH (Heard in Albany) DATE: 8 MARCH 1996 THE COURT ORDERS THAT: 1. The respondent pay to the applicant compensation pursuant to Section 170EE(2) of the Industrial relations Act 1988 in the sum of $2,089.00 NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 95/2093 BETWEEN: CHRISTINE ELIZABETH BARSBY - Applicant and: GREAT SOUTHERN SHELTER INC - Respondent AND No. WI 95/2097 BETWEEN: JAN ALEXIS BACK - Applicant and: GREAT SOUTHERN SHELTER INC - Respondent AND No. WI 95/2124 BETWEEN: CORALIE FAYE DESLANDES - Applicant and: GREAT SOUTHERN SHELTER INC - Respondent AND No. WI 95/2094 BETWEEN: CHRISTINE CHARLOTTE EAST - Applicant and: GREAT SOUTHERN SHELTER INC - Respondent AND No. WI 95/2095 BETWEEN: JOY JESSICA LEHRAIN - Applicant and: GREAT SOUTHERN SHELTER INC - Respondent AND No. WI 95/2096 BETWEEN: ELSIE AGNES WOODS - Applicant and: GREAT SOUTHERN SHELTER INC - Respondent BEFORE: R D FARRELL JR PLACE: PERTH (HEARD IN ALBANY) DATE: 8 MARCH, 1996 FINAL REASONS FOR JUDGMENT These are applications under Section 170EA of the Industrial Relations Act 1988 arising from the alleged unlawful termination of the employment of the applicants, Christine Elizabeth Barsby ("Ms Barsby"), Jan Alexis Back ("Ms Back"), Christine Charlotte East ("Ms East"), Joy Jessica Lehrain ("Ms Lehrain"), Elsie Agnes Woods ("Ms Woods") and Coralie Faye Deslandes ("Ms Deslandes") by the respondent, Great Southern Shelter Inc. ("the Association"), which is an association incorporated under the Associations Incorporation Act 1895. With the exception of Ms Deslandes and Ms Woods, the applicants sought reinstatement, if I were of the view it were practicable. All of the applicants sought compensation. Ms Barsby, Ms Back, Ms East, Ms Lehrain and Ms East were members of the Australian Municipal, Administrative, Clerical and Services Union ("the Union") and were represented by Ms Sackville, an official of the union. Ms Deslandes represented herself. It was contended by Ms Sackville and Ms Deslandes that there was no valid reason for the applicants' dismissal, contrary to Section 170DE (1) of the Act, and that in any event their dismissal was harsh, unjust or unreasonable, contrary to Section 170DE (2) of the Act. The applicants also brought several other claims which the Court could deal with under its associated jurisdiction. These included claims under applicable awards, and claims for underpayment of minimum wage entitlements. The detail of each applicant's claims is dealt with below. These reasons should be read together with my interim reasons for decision published on 22 December 1995 in connection with Ms Barsby's application. I have found in my earlier reasons that the termination by the Association of Ms Barsby's employment, and that of her fellow employees, was in breach of Section 170DE of the Act. I set out the reasons for this finding below. With regard to Ms Sackville's contention that Ms Barsby was owed money by the association arising from underpayment of wages and the failure to pay out accrued annual leave on termination, I have adequately dealt with this aspect of Ms Barsby's claim in my interim reasons. The Incapacity of the Respondent to Appear There was no appearance by the respondent. Having satisfied myself that the respondent was properly notified of the time and place of hearing by the Court, I proceeded to hear the application in the respondent's absence. Ms Sackville then led evidence which satisfied me that, while the respondent still exists as a legal entity, it no longer has a serving executive committee, and therefore has no capacity to instruct representatives to appear on its behalf. While it sometimes happens that respondents do not appear in matters brought before this court, usually that can be characterised as a matter of choice on the respondent's part. In this case, the respondent had no capacity to exercise a choice. The consequences of this incapacity are significant where, as under Section 170EDA of the Industrial Relations Act, the onus is placed on the respondent to show a valid reason for dismissal. At the conclusion of the applicants' case, I had insufficient evidence to reach a view as to the reason for dismissal. It was not in the applicants' interests to call such evidence because, in the absence of evidence of a valid reason, I am required by the legislation to find for the applicants. The Court has an inherent power to call witnesses of its own motion. It is a highly qualified power and the discretion to take this course should be used sparingly and with great care. (See Hon. Mr Justice D A Ipp, "Judicial Intervention in the Trial Process", 69 Australian Law Journal 365 at pp373ff; cited with approval by Wilcox CJ in Spiteri v Monocure Pty Ltd IRCA No. 299 of 1995 at pp8-9). I was satisfied that this was a case in which that discretion should be exercised, given that the adversarial process which would normally have brought such evidence before the Court was not functioning, due to the incapacity of the respondent. It seemed to me, in all the circumstances, that the Court owed a duty to the respondent to call readily available evidence the respondent might have called had it had the capacity to do so. It became apparent in the course of this hearing that a number of former members of the respondent's executive committee were attending and interested in the hearing, and accordingly I invited two of those former members of the respondent's committee to give evidence as to the reasons for the respondent's decisions which brought about the dismissal of the applicants. They accepted that invitation and their evidence is discussed below. Request by the Minister for Family and Community Services to be Heard The other procedural matter to which I will briefly refer is informal application by a third party, the then Western Australian Minister for Family and Childrens' Services, Mr Roger Nicholls, for an opportunity to be heard. The manner in which this matter was raised is canvassed in my interim reasons. I have given consideration to the Minister's request, and to the proper response of this Court. I am satisfied that, if it were the intention of this Court to make adverse comments or recommendations concerning the Department of Family and Childrens' Services ("the Department"), its Director General, or the Minister, then those parties would have a right to be heard in opposition to any potential adverse finding in relation to themselves: Annetts v McCann [1990] 170 CLR 596. I am also aware that, as a matter of practice, the Court should normally refrain from making adverse comments concerning persons who are neither witnesses nor parties to the proceedings where it is unnecessary to do so for the purposes of resolving the matter before the Court. I am satisfied that I am not required to make findings, adverse or otherwise, concerning the behaviour of the Department, its Director General, or the Minister. It will suffice to recount the evidence of the two witnesses who were members of the committee. These committee members formed a view as to the Department's intentions concerning the respondent. I make no finding as to whether their view was a correct view. It is sufficient for the purposes of this case that the committee members genuinely believed the Department wished them to act in a particular way, even if they were mistaken in that belief. Given that I do not propose to make adverse comments or recommendations concerning the Department, its Director General, or the Minister, I have not considered it necessary to hear from them. Great Southern Shelter Inc The association was incorporated in 1985. It ran the Albany Women's Refuge, providing 24 hour emergency accommodation, assistance and support to women and children in the Albany region. It was solely funded under the Supported Accommodation and Assistance Programme ("S.A.A.P.") and relied on those funds for its continued operation. That funding was administered by the Department of Family and Childrens' Services. Before 1994, the refuge had been run on a collective model. On the evidence before me, the collective appears to have had no formal structure nor formal membership. Ms East said that in order to be a member of the collective, one had to be a full-time employee or a "community member". Ms Back gave evidence that, by the end of the collective's existence, there were problems and disputes as to who was entitled to participate in the collective's decision-making processes. In 1994, the association became governed by a committee, presumably as a result of a change to its rules. Ms Back says that the collective decided to change to a committee because if it did not do so it would face defunding. Ms Bojcun, the committee's President or Chairperson, acknowledged that the management committee was introduced under the funding guidelines. Under Rule 16 of the Rules of the Association, the affairs of the association are managed by a Committee of Management. It comprises a President, Vice-President, Secretary, Treasurer, Co-ordinator (or any other senior employee), and not more than six committee members, with the capacity to co-opt two additional members. Ms Back was Acting Co-ordinator of the Great Southern Shelter at the time of the dismissals and therefore, under the rules, a member of the committee. The other applicants were full-time or part-time refuge workers. Ms Back says the committee was formed after the association asked different people whether they would go on it. In other words, the committee was recruited by the old collective. There does not appear to have been any election conducted. According to the Register of Management the members of the Committee of Management as at June 1995 were Merryn Bojcun (Chairperson), Bronwyn Bateman (Acting Secretary), Ingrid Baas-Becking (Treasurer), Treacy Woods, Catherine Pirie, Jenny Williams, Jacqui Muir and Megan Griffiths. As I have noted, the senior employee at the time was Ms Back. The quorum for Committee of Management meetings is fixed at five committee members (Rule 17.5). The potential number of committee members was thirteen. The actual number was, in my view, nine. The minutes of the meeting dated 31 August 1995 suggest there were only seven committee members. It would appear that they exclude Ms Pirie (who it seems had not attended a meeting since December 1994) and Ms Back, who as the senior employee was automatically a member of the Committee under the rules. Ms Back gave evidence that the committee met once a month, usually for about 2 hours. Ms Back said she attended quite a few of the meetings, even when the other co-ordinator had been there. Despite the association having rules prescribing the manner in which members might join the association by completing prescribed application forms, Ms Back, Ms East and Mrs Muir all confirmed that neither they, nor to their knowledge, anyone else had ever completed those forms. It seems the membership of the association has never been formalised. While the applicants did not challenge the legitimacy or validity of the committee, the non-compliance with the rules governing membership of the association raises obvious difficulties with identifying a manner in which the committee might be elected or replaced, given that the rules of the association provide for election at a General Meeting of members.