SALVERON -v- FAR WEST ABORIGINAL PROGRESS ASSOCIATION [1997] IRCA 10

DECISION NO:10/97 C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - whether employment a SPECIFIED PERIOD - whether ABANDONMENT of employment by employee - whether VALID REASON for termination - whether PROCEDUAL FAIRNESS - COMPENSATION. Workplace Relations Act 1996 (Cth) (formerly Industrial Relations Act 1988 (Cth)) Ss 170DC, 170DE(1), 170EA, 170EDA, 170EE. Industrial Relation Regulations Reg 30B(1)(a) Anderson v Umbakumba Community Council (1994) 56 IR 102 Gibson v Bosmac Pty Ltd (1995) 60 IR 1 Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 The State of Victoria v The Commonwealth (1996) ALR 129 Jose Mari SALVERON -v- FAR WEST ABORIGINAL PROGRESS ASSOCIATION SA 1262 of 1995 BEFORE: R. D. FARRELL JR PLACE: PERTH (Heard in Ceduna) DATE: 23 January 1997

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. SA 1262 of 1995 BETWEEN: Jose Mari SALVERON Applicant AND: FAR WEST ABORIGINAL PROGRESS ASSOCIATION Respondent MINUTE OF ORDERS BEFORE: R. D. FARRELL JR PLACE: PERTH (Heard in Ceduna) DATE: 23 January 1997 THE COURT ORDERS THAT: 1. The application is dismissed. 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 SA 1262 of 1995 BETWEEN: Jose Mari SALVERON Applicant AND: FAR WEST ABORIGINAL PROGRESS ASSOCIATION Respondent REASONS FOR DECISION 23 January 1997 R. D. FARRELL JR This is an application under Section 170EA of the then Industrial Relations Act 1988, now known as the Workplace Relations Act 1996 ("the Act"). The original application was for reinstatement or, in the alternative, compensation arising from the alleged unlawful termination of the employment of the applicant, Mr Jose Salveron ("Mr Salveron"), by the respondent, the Far West Aboriginal Progress Association ("FWAPA"). FWAPA is an association the chief object of which is "to promote the interests of Aboriginals in the far west area of [the State of] South Australia". It relies heavily upon the Aboriginal & Torres Strait Islander Commission ("ATSIC") for its funding. Mr Salveron, who had previously been Community Coordinator for the Koonibba Aboriginal Community Council Inc near Ceduna, worked as FWAPA's Assistant Director in the period from May 1994 until he left to take leave in April 1995. He was advised in June 1995 that his employment was ended. Reinstatement On the third day of the hearing of this matter, following an unavoidable adjournment of over two months, I asked Mr Salveron whether he was still pursuing reinstatement. After a series of indirect responses from Mr Salveron, we had the following exchange: "MR SALVERON: I guess, your Honour, as the saying goes, it takes two to tango. If the one does not want to, sort of resume the relationship as the respondent has stated, then there is really no point then. THE J. REGISTRAR: So I take you to be saying that you concede, given the attitude of the respondent, that reinstatement is impracticable. Is that what you are saying, in which case I will concentrate on - it will be limited solely to the assessment of compensation? MR SALVERON: I would say so." As I, perhaps inelegantly, advised Mr Salveron at the time, the primary remedy of reinstatement is ordered only where the Court finds that it is not impracticable. Where, as in this case, it is conceded by both parties that reinstatement is impracticable, the only remedy available under the terms of Section 170EE of the Act is compensation. Mr Salveron's concession effectively, if not formally, withdrew his application for reinstatement. Whether Mr Salveron's Employment was for a "Specified Period" such that he was Excluded from the Operation of the Act's Unlawful Termination Provisions Regulation 30B(1)(a) of the then Industrial Relations Regulations provides that an employee engaged under a contract of employment for a specified period of time, being a contract that was entered into before 16 November 1994, is excluded from the operation of the unlawful termination provisions of the Act. FWAPA contends that Mr Salveron is such an employee. Mr Salveron entered into an employment contract with FWAPA on 2 May 1994. He had applied for, was offered and accepted the position of Assistant Director with FWAPA. The document signed by Mr Salveron and by FWAPA's Director, Mrs Wanda Miller, is headed "Twelve Months Contract". The period of employment is specified as "1994 -1995 (12 mths)". The commencement date is "2 May 1994". The termination date is "May 1995". The document goes on to provide as follows: "In accordance with a Management decision of FWAPA, you have been selected for employment as an Assistant Director for an initial period of Twelve Months. It is proposed that you will perform the duties of this position from 2 May 1994. Before the completion of this period of employment, the Director in conjunction with FWAPA management is required to provide to you, either notice of your termination date, or an indication that FWAPA will be seeking to extend your period of employment. Your employment will then cease on the date specified in your termination notice, please note no further notice of termination will be given. If your period of employment is to be extended another contract will be signed by you and the delegate before the expiration of your present contract. It should be noted that the Director may dispense with your services at any time if your services are no longer needed, or for any other reason..." In Anderson v Umbakumba Community Council (1994) 56 IR 102, von Doussa J considered the meaning of the phrase "contract of employment for a specified period of time". He said: "A 'specified period of time' is a period of time that has certainty about it. A contract of employment for a specified period of time would be one where the time of commencement and the time of completion are unambiguously identified by a term of the contract, either by the contract stating definite dates, or by stating the time or criterion by which one or other end of the period of time is fixed, and by stating the duration of the contract of employment... A contract of employment to run throughout a nominated number of days, weeks, or years would be a contract of employment for a specified period of time. If the terms of the contract of employment, instead of identifying in this manner the period of time during which it is to run, provides that it is to run until some future event, the timing of the happening of which is uncertain when the contract is made, the contract will be for an indeterminate period of time." In that case, each party had the right to bring the employment to an end on two weeks' notice. His Honour held that the cessation date set out in that contract therefore "merely records the outer limit of a period beyond which the contract of employment will not run..." Within that period, the duration of the contract was held to be indeterminate, so that it was not a contract of employment for a specified period of time. Similarly, in this case, the reservation to the FWAPA's Director of the right to "dispense with [Mr Salveron's] services at any time if [his] services are no longer needed, or for any other reason..." renders the duration of the contract indeterminate, within the twelve month period. I therefore find that Mr Salveron's contract is not a contract of employment for a specified period of time, so that Mr Salveron is not excluded by Regulation 30B from the protection of the Act. Mr Salveron contends that in fact the term of his employment was to be three years. He claims to have been given oral undertakings to that effect by both Mr Wayne Miller, FWAPA's then Director, and by Mr Miller's successor as Director, Mrs Wanda Miller. He also relies upon a statement in the letter to him from Mrs Miller dated 28 March 1994, offering him the position. The letter provides that: "This position requires an initial contract period of twelve months after which a further two years will be offered." This claim is irrelevant to FWAPA's jurisdictional argument. However, I will note at this point that: · The terms of the letter are contradicted by the unambiguous terms of the later written contract signed by the parties, unless the letter is understood to be referring to the position remaining in existence and therefore being "offered" for three years, rather than it being offered exclusively to Mr Salveron over that time; · Mr Miller did not give evidence; · Mrs Miller did give evidence and, having considered her evidence and that of Mr Salveron, I find on balance that anything said by Mrs Miller about the Assistant Director's position and about Mr Salveron holding that position for more than the initial term was in the nature of a prediction rather than an undertaking. In any event, even had I accepted Mr Salveron's claim that he was promised three years' employment, there would be no impediment on FWAPA terminating the contract for a valid reason within that three year period. Whether There was a Termination at the Initiative of the Employer It is well established that the unlawful termination provisions of the Act do not apply unless the employment is terminated at the initiative of the employer: Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200. FWAPA claim that Mr Salveron's actions amounted to an "abandonment" of his employment, such that there was no termination at the initiative of his employer. Also implicit in their submission was an alternative claim that the employment ended automatically by the effluxion of time, rather than at the initiative of the employer, when the twelve month term of the contract expired while Mr Salveron was on leave. Mr Salveron bears the onus of proving that there has been a termination at the initiative of the employer. In my view, he has met that onus. Mr Salveron left on leave on 13 April 1995 to visit his family in the Philippines, having earlier received messages from them that they were suffering from illness and financial difficulties. There is a dispute between the parties as to the intended duration of that leave. Mr Salveron had originally applied for seven weeks' leave from 18 April 1995 to 6 June 1995, but I accept that this leave was not approved by Mrs Miller. Mr Salveron raised the issue at a meeting of FWAPA's Management Committee on 11 April 1995, claiming that he was entitled to four weeks' annual leave and to an additional three weeks' time off in lieu of overtime ("TOIL") for overtime he claimed to have worked in the preceding year. The Committee made a provisional decision crediting Mr Salveron with two weeks' TOIL. Neither party challenges this decision; rather, the dispute concerns the time at which the Committee permitted the TOIL to be taken. It is therefore not necessary for me to make a finding as to whether Mr Salveron's original claim for TOIL was genuine. The minutes of the meeting of 11 April 1995 record that the following resolution was carried after representations from Mr Salveron to the Management Committee in Mrs Miller's absence: "Jose to get his four weeks annual leave plus two weeks time in lieu, and preferably his pay to be released before Thursday." Mrs Miller arrived later in the meeting and when the meeting adjourned at the end of the day it was resolved that the meeting would resume the next day "to finish discussing Jose's holidays." The meeting reconvened on 12 April 1995. There was further extensive discussion of Mr Salveron's TOIL claim with Mr Salveron, Mrs Miller and FWAPA's Administrator, Ms Wilson, in attendance. Finally, Mrs Miller suggested a compromise whereby Mr Salveron would be credited with two weeks' TOIL, taking one week of his TOIL with his annual leave and another week after he returned from his holidays. Mr Salveron initially resisted this suggestion, but later accepted it. However, the minutes record him immediately adding, "[b]ut in case here's (sic) longer, he would like to take it as one week leave without pay." The final resolution of the Management Committee, made after Mr Salveron and Ms Wilson had been asked to wait outside, is recorded as follows: "Jose to get his four weeks annual leave, plus one week time in lieu with the remaining extra time in lieu to be taken after the NAIDOC week. It is strongly recommended that he comes back after five weeks annual leave and if by chance he doesn't return after five weeks, the extra time taken (sic), then his extra time in lieu will be forfeited." FWAPA contends that, under this resolution, Mr Salveron was due back on 22 May 1995, after only five weeks' leave. I accept that this was Mrs Miller's understanding of the resolution, which she saw as consistent with her original compromise proposal. Mr Salveron concedes that 22 May 1995 was the "preferred date of return". However, he contends that the terms of the resolution are not inconsistent with his request that, if he was away longer, he be permitted to take a further week off as leave without pay. I agree with this interpretation of the resolution. The Management Committee's strong recommendation that Mr Salveron return on 22 May 1995 clearly falls short of the status of an instruction or an order. Mr Salveron had indicated he might be away for a week longer than the proposed five weeks. The terms of the resolution indicate a tolerance of that proposition, subject to the imposition of conditions that the additional leave is unpaid, and at the expense of the entitlement he would otherwise have had to a further weeks' paid TOIL. The Management Committee's decision, which was made in Mr Salveron's absence, was communicated to him by Mrs Miller. I accept that at the time he left for the Philippines, Mr Salveron reasonably believed it to be merely the Committee's preferred position that he report for work on 22 May 1995, so that he could choose to return the following week on 29 May 1995, provided he accepted that the additional leave was unpaid and he would be entitled to no further TOIL. For reasons which I will detail later and which were unknown to FWAPA, Mr Salveron did not report for work on 22 May 1995. At a meeting on 26 May 1995, FWAPA's Management Committee decided to not extend his employment. It was resolved that: "[a] letter be sent to Jose regarding the expiration of his contract, thanking him for his service over the last 12 months and encouraging him to apply for a position should one arise within the near future." A letter to Mr Salveron was drafted but not sent, because FWAPA did not have Mr Salveron's contact details in the Philippines. There were some suggestions raised at the meeting as to who might have the address. It is not clear what enquiries were made. On 29 May 1995, FWAPA received a facsimile transmission from Mr Salveron in the Philippines explaining his absence and requesting an extension of his leave to the end of the second week in June (which might be either 9 or 16 June 1995). I regard the date of this facsimile as consistent with Mr Salveron holding the belief that he was entitled to be away until 29 May 1995, despite the Management Committee's strong recommendation to the contrary. On 31 May 1995, Mrs Miller sent a facsimile transmission to the facsimile number from which Mr Salveron's facsimile had been sent advising him that his request for an extension of leave was denied. FWAPA received a further facsimile transmission from Mr Salveron on 3 June 1995 offering further explanation and apologies for his absence. On 9 June 1995, Mrs Miller attempted to transmit a further letter to the facsimile number from which Mr Salveron's facsimiles had been sent. In that correspondence she advised Mr Salveron that his contract had expired in May 1995 and would not be renewed as he had abandoned his employment. When a facsimile was received from that number asking that the letter be retransmitted because only the front page, addressed to Mr Salveron and headed "Re: Termination of Employment" had been received, the letter was retransmitted on 12 June 1995. Whether the Employment was Terminated by the Effluxion of Time I will first address the potential argument that the employment was terminated by the effluxion of time as at 2 May 1995, although the submission was not fully developed by counsel for FWAPA. The contract required FWAPA to decide and advise Mr Salveron, before the completion of the twelve month period on 2 May 1995, whether his employment would be extended. If it was to be extended, another contract was required to be signed before the expiry date, which I have held to be 2 May 1995. If his employment was not to be extended, then FWAPA was required to provide him with notice of his termination date before 2 May 1995. Neither of these requirements were met. This appears to have been at least partly due to inadvertence. I accept that there was a misapprehension on the part of Mrs Miller and, consequently, the Management Committee, that the expiry date of Mr Salveron's contract was the last day in May 1995. This belief was based upon the fact that the contract merely prescribed "May 1995" as its "Termination Date". As I have indicated, I do not accept this interpretation of the contract, but I accept that it was honestly held by Mrs Miller. No decision was made on 11 or 12 April 1995 by FWAPA's Management Committee on whether Mr Salveron's employment should be extended. The fact that it decided he should return from leave on 22 May 1995 to assist with the preparations for NAIDOC week, which was scheduled for July 1995, indicates at least that there had been no decision at that point to end his employment. Such a return was, on Mrs Miller's view, a week prior to the expiry of the contract. Mr Salveron claims that on Thursday 13 April 1995, which was the last day he was at work, Mrs Miller and Ms Wilson attended an informal meeting with ATSIC for a preliminary review of the next financial year's grant application. He claims that when they got back they came to his office and informed him that FWAPA's funding application had been technically approved. He says they even gave him his new rate of pay proposed under application. He contends this was a tacit renewal of his contract. Mrs Miller says she did not see Mr Salveron at all on Thursday 13 April 1995, but recalls a conversation with Mr Salveron and Ms Wilson after the Management Committee meeting ended on Wednesday 12 April 1995 at which they discussed the need for team-building. She does not recall any discussion of the grant application and disputes that there was any discussion of the renewal of his contract. Ms Wilson was not called by either party to give evidence. The grant application in question was submitted on 30 January 1995. Formal approval by ATSIC of the grant is conveyed by a letter of offer. The letter of offer for the relevant grant approval was not forwarded until 16 August 1995. However, Mrs Miller agreed that it was common to receive informal advice that a grant application had been approved by the Regional Council prior to the letter of offer. While I am not satisfied that any discussions between Mr Salveron, Mrs Miller and Mrs Wilson before Mr Salveron left amounted to an implicit renewal of his contract of employment, I accept that they were positive in nature and that they gave Mr Salveron good reason to hope that his employment would be extended. FWAPA also rely upon the evidence of Mr Alan Whitehouse, the Deputy Regional Manager of ATSIC based in Ceduna. He says that Mr Salveron commented to him at a party before he left to go to the Philippines that wasn't sure what he was doing in terms of FWAPA, and if he did come back to Ceduna he'd be working with Tjutjunaku Worka Tjuta ("TWT"). They say this indicates that Mr Salveron was in doubt about his future employment at FWAPA. TWT is a Ceduna-based ATSIC-funded Aboriginal organisation implementing the community development employment programme ("CDEP"). I consider Mr Whitehouse's evidence further below. I find that Mr Salveron left to go on leave on 13 April 1995 without a decision having been made and communicated to him, expressly or implicitly, as to his future employment. On 26 May 1995 FWAPA's Management Committee decided to not extend Mr Salveron's employment, and directed that written notice of the decision be given to him. No such notice was sent to Mr Salveron until FWAPA's facsimile of 12 June, 1995, over two weeks after they had received his first facsimile and, with it, a facsimile number at which he could be contacted. On any view, FWAPA did not provide notice of termination to Mr Salveron before the expiry of the initial twelve month period of employment. Did the employment relationship cease automatically on 2 May 1995 while Mr Salveron was on leave? In my view, it did not. The requirements imposed by the contract upon FWAPA appear designed to avoid the possibility of FWAPA not making and communicating a decision on the future of the employee's employment before the expiry of the initial employment contract. It would be an odd result if the failure by FWAPA to comply with those requirements had the effect of ending the employment relationship automatically on the expiry of the initial employment contract. The better view is that the relationship would remain on foot, under a new contract of indeterminate duration on similar terms but terminable by notice, until such a decision was made by FWAPA and communicated to Mr Salveron. I find, therefore, that the employment relationship between Mr Salveron and FWAPA did not end by the effluxion of time on 2 May 1995, but remained on foot until 12 June 1995. Whether the Employment Was Abandoned by Mr Salveron In Mohazab v Dick Smith Electronics Pty Ltd (No 2), the Full Court suggested that the expression "termination at the initiative of the employer" should be treated as a reference to a termination that is: · brought about by an employer, in that the action of the employer is the principal contributing factor which leads to the termination of the employment relationship and results directly or consequentially in the termination; and · not agreed to by the employee, so that the employment relationship is not voluntarily left by the employee. I am satisfied that Mr Salveron did not voluntarily leave the employment relationship. If FWAPA's perspective on his actions is accepted as correct, then it might fairly be said that he knowingly breached the terms of his employment. I will consider that question below. I am satisfied, however, that he acted in a manner which indicated a desire to preserve his employment relationship despite any such breach. To put it colloquially, he was trying to have his cake and eat it. It was FWAPA who acted to bring the employment relationship to an end, by giving him notice on 12 June 1995 that his employment had ended. FWAPA point to various matters which they say indicate that Mr Salveron voluntarily left the employment relationship. For example, they rely on the fact that Mr Salveron vacated his rented premises and placed his furniture into storage indicating an intention not to return. I accept Mr Salveron's explanation that this was to minimise his expenses. Mr Whitehouse gave evidence that Mr Salveron had told him, at a party soon before his departure, that he was going over to the Philippines and that he'd make up his mind when he was over there whether he was going to come back or not. Mr Whitehouse says Mr Salveron added that he wasn't sure what he was doing in terms of FWAPA, and if he did come back to Ceduna he'd be working with TWT. Mr Salveron in fact commenced employment with TWT on Monday, 26 June 1995 - about two working days after his return to Ceduna. Mr Salveron had been working closely with TWT prior to his departure. Counsel for FWAPA invited me to draw the inference that Mr Salveron had arranged this employment at TWT prior to his departure from Ceduna and that he had no intention of returning to work with the respondent. I am not satisfied that such an inference is justified, particularly where Mr Salveron appears to have gone to some effort to keep his employment with FWAPA on foot notwithstanding his unauthorised absence. While I accept that Mr Salveron made remarks of the sort recalled by Mr Whitehouse, I have reservations as to the accuracy of Mr Whitehouse's recollection; for example, he recalls Mr Salveron claiming to have purchased a one-way ticket, which is clearly not the case. Remarks of the sort recalled by Mr Whitehouse are probably consistent with Mr Salveron merely considering the possibility that his employment with FWAPA might not continue, or indeed the possibility that he might decide to remain in the Philippines. I note that Mr Whitehouse accepted that it would be possible for Mr Salveron to begin work under TWT's Community Development Program without delay if there were vacancies available. FWAPA also claims that Mr Salveron purchased a return airline ticket to the Philippines without booking the return date at the time he left. Mr Salveron explained in evidence that he did not book a return date because his leave arrangements with FWAPA had not been finalised when the ticket was booked on 27 March 1995. I note that, in the minutes recording the Management Committee discussions on 12 April 1995, Mr Salveron is recorded as mentioning that he had "booked an overseas trip for 6 wks". This was in support of his request that he be permitted to add two weeks' TOIL to his four weeks' annual leave, and prompted Mrs Miller to observe that he shouldn't have done so. This discrepancy is relevant to Mr Salveron's credibility generally. However, the fact that the ticket was left open is consistent with Mr Salveron merely leaving open the option of returning after more than five weeks, if necessary. This was a possibility that he had openly canvassed at the Management Committee meeting. It does not indicate that he had made a firm decision to remain away more than five weeks. Whether There was a Valid Reason for Termination Given that I have found that there was a termination at the initiative of the employer, Sections 170DE(1) and 170EDA(1)(a) confer an onus upon FWAPA to prove that there was a valid reason for the termination of Mr Salveron's employment connected with his capacity or conduct or based on FWAPA's operational requirements. The reason cited by FWAPA for the termination of Mr Salveron's employment is his conduct in failing to return to work from leave by 12 June 1995, when the decision to end the employment relationship was communicated to him. Mr Salveron did not in fact return to Australia until 18 June 1995 and did not return to Ceduna until about 22 June 1995. However, the documentation tendered in evidence indicates that the reasons for the decision to end Mr Salveron's employment evolved from 26 May 1995, when it was first decided that Mr Salveron's employment should end, to 12 June 1995 when the employment was in fact ended by facsimile advice to Mr Salveron. In tracing the progress of this evolution, I have placed greater weight on the documentary record than on the oral evidence. Many of the changes were changes of emphasis, and it is understandably difficult for those participating in decisions to recall which of the various factors was uppermost in their minds at any particular time. There was evidence of earlier difficulties with Mr Salveron's employment, including minutes of a staff meeting on 22 March 1995 recording angry outbursts directed by Mr Salveron at FWAPA's Administrator, Ms Mary Wilson, and at Mrs Miller. This led Ms Wilson to write a letter of complaint to Mrs Miller the next day. The letter cited her concern about Mr Salveron's conduct, which she described as unacceptable behaviour, over some time and particularly the displays of aggression and abuse at the staff meeting. She asked that steps be taken to curb this behaviour. Ms Wilson's letter was tabled and discussed at the Management Committee meeting dated 11 April 1995, and again briefly on 12 April, but it was decided to deal with it at a later time when Mr Salveron was back from leave and all the relevant parties were present. Again, on the view prevailing at FWAPA, that could still have been prior to the expiry of Mr Salveron's contract. Mr Salveron's employment was terminated before he returned and there is no evidence that the letter was ever considered again. Mrs Miller also drafted a letter dated 11 April 1995 to the Chairperson of the FWAPA Management Committee, citing complaints about Mr Salveron's "behaviour and attitude", including the following: · "Total disregard to instructions · Aggressive behaviour · Harassment of book-keeper [Ms Wilson] · Consistently argues once decisions have been made · Actively works against the spirit of the decision · Constantly fails to consult me on most matters and continually undermines me. · Continually represents himself as being a spokesperson for FWAPA without first consulting myself as the Director of the Management Committee · Recently during my absence, he attended a 2 day CDEP conference at Streaky Bay without prior consultation or permission from myself, thus leaving office staff without any Senior Staff supervision. We [were]also unaware where he was. ... ATSIC has queried the funding of this Assistant Director position and Mr Salveron's actions are making it difficult for FWAPA to maintain his position in the future" This letter was never submitted to the Chairperson but, despite Mr Salveron's efforts to cast doubt on its authenticity, I accept that it is an accurate record of Mrs Miller's concerns made at the time. The minutes of the Management Committee meeting on 11 April 1995 record that Mrs Miller raised some of these matters when she arrived at the meeting during its discussion of Ms Wilson's letter of complaint. She makes other remarks consistent with this letter during the Management Committee's further discussion of Mr Salveron's TOIL claim on the morning of 12 April 1995. I am satisfied that the Management Committee was aware of personal difficulties between Mr Salveron on the one hand and FWAPA's Director and Administrator on the other following its meeting on 11 and 12 April 1995. FWAPA has never sought to rely upon these personal conflicts as justification for the decision to end Mr Salveron's employment. It is not therefore necessary for me to decide whether Ms Wilson's and Mrs Millers' criticism was justified. I should comment at this point that Mr Salveron made it very clear in the course of the hearing of this application that he held the view that FWAPA was being mismanaged. He consistently sought to make the perceived shortcomings of FWAPA's management a dominant issue in these proceedings, despite numerous rulings by the Court that such alleged mismanagement was relevant only insofar as it was relevant to the termination of his employment. I would have been ready to accept, given that he held these views and given the manner in which he conducted himself in the hearing, the probability that at least some of Mrs Miller's complaints were justified, though the manner in which they are expressed may reflect her perspective on the matter. Mrs Miller's evidence was that she was empowered as Director to decide whether Mr Salveron's employment should continue, had she wished to do so. This was confirmed by FWAPA's Acting Chairperson, Mr Lyle Ware, in his evidence. I accept that she was so empowered. I note that clause 15 of FWAPA's Constitution provides that the Management Committee has the power to employ. However, it is not unlikely that that power would be delegated to the Director as the organisation's chief administrator. The terms of Mr Salveron's contract, which reserve to the Director the right to dispense with his services at any time, sufficiently establish that such a delegation had taken place. Mrs Miller decided on this occasion, however, to take the matter to the Management Committee for decision, and raised the issue of Mr Salveron's employment for the consideration of the Management Committee on 26 May 1995. Mr Salveron could have been involved in the discussions on 26 May 1995 had he returned to work on 22 May 1995, as the Management Committee had strongly recommended. While it is clear the Management Committee was aware that he had not returned to work on 22 May 1995, there is no indication that it was a significant factor in their decision on that day. The minutes of the relevant discussion are brief. There is no record of further discussion of the personal conflicts within the office. The Management Committee proceeded on the basis that the contract would expire on 31 May 1995. It seems to have been accepted without discussion that it should so expire and not be renewed. There was then discussion about creating a Project Officer's position instead of the Assistant Director's position. They contemplated Mr Salveron having the opportunity to apply for that position. I note that this proposed change to the position was further discussed by the Management Committee meeting on 28 June 1995, and was ultimately proceeded with. I accept that it was therefore a genuine proposal. A letter to Mr Salveron was prepared the next day, 27 May 1995, but was not sent, for want of an address. It was to have advised him that the reasons for the termination of his employment were: · the completion of twelve months employment; and · possible funding restraints being placed on FWAPA by ATSIC. The letter thanked Mr Salveron for his service and advised him that FWAPA would be pleased to receive an application from him if a position arose in the organisation in the near future. Had there been no further developments and had the letter been sent, then Mr Salveron's claim to have been promised three years' employment would have had far greater relevance, and the validity of FWAPA's reasons for termination would have rested on a consideration of FWAPA's operational requirements at that time. The evidence on these issues was scant. However, before the letter was sent, Mrs Miller received a facsimile from Mr Salveron in the Philippines, the substantive part of which reads as follows: "Dear Wanda, ATTN: Mr Leith Miller, Chairperson RE: Request for Extension of Leave I apologise for not being able to return to work on time. I am currently occupied with pressing family commitments that I did not anticipate. Both my parents are ailing and are currently undergoing medical attention. The management and operation of our family assets/business are in total disarray and nobody in the family except myself at the moment, is available to attend to the urgent concerns. I have scheduled a final meeting with our solicitors and property lessors on 07 June 1995. I've also arranged to get my sister to take over my place here. She will be available on most likely the above-mentioned date as she is also travelling from overseas. Moreover, I am also under medical observation as a result of an accident which occurred last weekend. I sustained deep cuts on my left hand which required five stitches. I am currently waiting for my x-ray analysis to confirm suspected fractures. Considering all these unforeseen events, I hereby request for your and the management committee's consideration to allow for the extension of my leave. I expect to be back by the end of the 2nd week of June. I hope you appreciate my situation. I look forward to your approval of this request. Yours sincerely, (signed) Mr JOSE M. SALVERON Assistant Director" Mrs Miller took this letter to indicate that Mr Salveron did not intend to return before 31 May 1995, which she understood to be the date of the expiry of his employment contract. Further, Mr Salveron intended to remain away despite believing that his employment relationship was continuing. Mrs Miller observed in evidence that she formed the view that Mr Salveron was not really committed to FWAPA. These were, in Mrs Miller's view, additional reasons justifying the end of Mr Salveron's employment. The original letter to Mr Salveron was never sent, though FWAPA now had a facsimile number for him. Mrs Miller indicated in evidence that she consulted an officer of ATSIC and accepted his advice not to send the original letter. Mr Salveron contends that the reason for his continued absence was as set out in his facsimile letter to Mrs Miller, namely: · unanticipated pressing family commitments until his sister's return from overseas on 7 June 1995, including: · the ill-health of his parents; · the requirement that he urgently attend to the management and operation of our family assets/business, including a meeting with solicitors and property lessors on 7 June 1995; and · an injury to his hand requiring five stitches, for which he was under medical observation and awaiting x-ray analysis for suspected fractures. FWAPA contends that the request for leave transmitted on 29 May 1995 by Mr Salveron was deliberately misleading. I have already noted a doubt about Mr Salveron's credibility in connection with the booking of the airline ticket. I have allowed for the fact that he was cross-examined on matters of some complexity and was subject to the added stress of conducting his own case. However, there were occasions in Mr Salveron's evidence, and particularly during his cross-examination in relation to his activities in the Philippines, when I formed the view that he was being deliberately evasive, deliberately vague and feigning confusion. Accordingly, I have reservations in accepting his evidence as to his activities in the Philippines and particularly as to the detail of his claims as to the difficulties he had in communicating with FWAPA from the Philippines and as to the level of incapacity arising from his injury. I accept that Mr Salveron felt a moral obligation to stay and assist his parents, given their frail health and an inability on their part to manage the family's business interests. Mr Salveron sought to persuade the Court that he was not aware until almost the last moment that he would need an extension to his leave, and that he made unsuccessful attempts to contact FWAPA prior to 29 May 1995. However, I am satisfied that he made an early decision to remain in the Philippines for as long as his family required him there, whether or not FWAPA agreed to extend his leave to permit him to do so. I find on balance that Mr Salveron sought the extension of leave as late as possible in order that FWAPA would be presented with a fait accompli. I note that the arrangements to meet Mr Salveron's family solicitors on 7 June 1995 were made by him before 20 May 1995, before he sustained his injury. The injury was not, therefore, the reason for his failure to return. Mr Salveron sought an extension of his leave on 29 May 1995, on what he understood to be the last possible day to do so, having already committed himself to remain in the Philippines at least until 7 June 1995. Further, he made no arrangements to be notified of any response to his request for further leave. Then, on learning of the refusal of his request for further leave, Mr Salveron did nothing to return sooner to Australia. With regard to Mr Salveron's injury, he tendered a medical certificate purportedly completed by the doctor he attended at the Philippines on 20 May 1995. It was not provided to FWAPA at the time. The certificate confirms that he required five stitches and that his hand was x-rayed. However, it indicates that the x-ray was available "next week". There was no evidence of further doctor's visits. Mr Salveron could not accurately be said to be "under medical supervision" or "awaiting x-ray analysis" as at 29 May 1995. I find that it is more probable than not that Mr Salveron's injury would not in itself have prevented him from returning to work in Ceduna by 29 May 1995. Mrs Miller sent a facsimile on 31 May 1995 to the facsimile number used by Mr Salveron, advising him that his request for an extension of leave was unacceptable and had been denied. It is clear from the terms of her facsimile that Mrs Miller proceeded on the basis that Mr Salveron had been instructed to return by 22 May 1995, rather than merely "strongly recommended". She therefore regarded him as having been absent without permission for a week before he sought the extension. Mr Salveron submits that Mrs Miller had the power to grant him sick-leave, compassionate leave or leave without pay. He claims that she was motivated by hostility towards him. It may be that another employer might have granted such leave. Mrs Miller was entitled, however, to decline to extend the leave, given the material before her. In the circumstances, her decision to decline further leave was not unreasonable in the sense that a reasonable employer could not have come to that decision. This is so even though the decision was, to some extent, made under a misapprehension. While Mr Salveron had not been required back on 22 May, he was clearly going to be absent for some time after 29 May anyway. While he had applied at, rather than after, the expiry of his approved leave, his absence beyond his approved leave was a fait accompli, because he applied at the last possible moment. Mr Salveron did not learn of Mrs Miller's refusal of his request for leave until 3 June 1995; he had made no arrangements to be notified if he received a reply. He wrote back immediately, offering apologies and reiterating his explanations concerning his family commitments. He did not disclose any intention to return sooner than he had indicated in his earlier facsimile. FWAPA's Management Committee had already decided that Mr Salveron's employment should end. The Committee had left Mrs Miller to implement the decision. Mrs Miller was now aware of the additional issues relating to Mr Salveron's continued absence which had not been considered by the Management Committee. Mrs Miller therefore effected the termination of Mr Salveron's employment by a letter dated 9 June 1995, which was communicated to Mr Salveron on 12 June 1995. The letter was written in consultation with the Acting Chairperson, Mr Lyle Ware, and an employee of ATSIC. The letter was in the following terms: "Dear Mr Salveron, I am writing to advise you that your contract of employment with this organisation which expired in May 1995 will not be renewed. You were due back at work on 22nd May 1995 and did not even notify your absence until 29th May 1995. Your request for an extension of leave was subsequently denied and your response indicating that you did not intend to return immediately has been borne out by your continued absence for a further working week. Accordingly, you are considered to have abandoned your employment and your contract will not be renewed. Whilst you are arguably ineligible for any further monies an ex-gratia payment is being made to you. We are unable to forward such payment to you as you have not provided a forwarding address in the Philippines, nor do we have a current residential address for you in Ceduna. Could you please nominate an address where this payment can be sent to you personally by Certified Mail Yours faithfully (signed) WANDA MILLER DIRECTOR" As is apparent, Mrs Miller cited Mr Salveron's continued unauthorised absence as the reason for the termination of his employment. While she regarded the absence to have been unauthorised since 22 May 1995, by the time the letter was sent it was still at least two weeks since Mr Salveron had been required to return from leave. FWAPA contend that Mr Salveron knowingly and deliberately breached the terms of his employment by remaining absent from his work after his leave expired on 22 May 1995. Given that I have found, on balance, that Mr Salveron was entitled after the Management Committee's meeting to extend his leave to 29 May 1995, FWAPA would contend that Mr Salveron's further absence from work after that date was a deliberate breach of his obligations under his employment contract. If Mr Salveron had returned from leave on 29 May 1995 then it is doubtful that his absence would have been a valid reason for the termination, given my interpretation of the Management Committee's resolution on the matter. The fact that Mr Salveron did not return by 9 June, and in fact did not return until 22 June 1995, renders those doubts of marginal relevance. I accept that Mrs Miller was empowered to make decisions regarding Mr Salveron's employment, and it is clear that the management committee left it to Mrs Miller to advise Mr Miller that his employment would not continue after 31 May 1995, which advice would have the effect of ending his employment. Additional matters later came to Mrs Miller's attention which were not known to the Management Committee when it decided Mr Salveron's employment should end. Had these new matters indicated that the Committee's decision should not be implemented, Mrs Miller would have had the power to refrain from implementing the decision pending the Committee's reconsideration of its decision. Instead, Mrs Miller came to the view that the new matters indicated that the Committee's decision should be implemented, but for reasons additional to and more compelling than those which motivated the Committee's decision. Mrs Miller cited those new reasons in her letter terminating Mr Salveron's employment. In the circumstances, FWAPA can properly cite those reasons as the reasons why Mr Salveron's employment was ultimately terminated. I find that there was a valid reason for the termination of Mr Salveron's employment connected with his conduct in failing to return to work by 29 May 1995. I am satisfied that Mr Salveron decided soon after his arrival in the Philippines to stay as long as he needed to enable him to attend to his family's needs. He put what he perceived to be his obligations to his family ahead of those to his employer. He knew that, in doing so, he would put himself in breach of his employment contract. In the circumstances, he was not prepared to be bound by the terms of his employment. Having decided to absent himself whether or not that absence was authorised, Mr Salveron then dealt with FWAPA in a manner he calculated would maximise the prospects of maintaining the employment relationship, despite his failure to return on time. However, whatever the moral obligation Mr Salveron felt to remain in the Philippines, there was no legal obligation on FWAPA to permit him to do so. Mr Salveron's deliberate failure to return to work by 29 May 1995 constituted a valid reason for the termination of his employment connected with his conduct. Mrs Miller's decision that his employment should end for that reason therefore complied with Section 170DE(1) of the Act. Mr Salveron made submissions contending that the dismissal was harsh, unjust and unreasonable, contrary to Section 170DE(2) of the Act. The High Court has since held Section 170DE(2) to be invalid on the grounds that it is unconstitutional: Victoria v Commonwealth (1996) 138 ALR 129. It has not therefore been necessary for me to consider those submissions, except insofar as they are relevant to the issue of whether there was a valid reason for the termination of his employment. Whether the Applicant was Given the Opportunity to Defend Himself against the Allegation Section 170DC of the Act provides that: "An employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless: (a) the employee has been given the opportunity to defend himself or herself against the allegations made; or (b) the employer could not reasonably be expected to give the employee that opportunity." Though it was not squarely raised by Mr Salveron, the obligations under Section 170DC apply to FWAPA's decision to terminate his employment for the reason that he was absent from work without authority. In Gibson v Bosmac Pty Ltd (1995) 60 IR 1, Wilcox CJ noted that Section 170DC does not require any particular formality, and should be applied in a practical, commonsense way so as to ensure the affected employee is treated fairly. That injunction is especially applicable to a factual situation of this complexity. I proceed on the basis that Mr Salveron was ultimately dismissed due to his absence from his employment. His facsimiles of 29 May and 3 June 1995 canvass the reasons for his absence. The decision that the absence justified the termination of Mr Salveron's employment would have involved similar considerations as the decision to refuse to grant him further leave. Had Mrs Miller sent a further facsimile to Mr Salveron after receiving his facsimile of 3 June 1995 asking him to show reason why his employment should not be terminated, then FWAPA would clearly have complied with Section 170DC. On balance, I do not regard it as reasonable to expect her to have done so, given the restrictions in her ability to communicate with Mr Salveron, and given that she was acting in a context of Mr Salveron's employment being subject to renewal in any event. If I am wrong on that matter, then looking at what would have been likely to occur had Section 170DC not been contravened, and having regard to the matters raised by Mr Salveron in his defence in the hearing, I consider it unlikely that Mr Salveron's employment would have continued in any event, so that any award of compensation would have been nominal. Conclusion I will order that the application be dismissed.