DECISION NO:100/97 CATCHWORDS INDUSTRIAL LAW - UNLAWFUL TERMINATION - VALID REASON - COMPENSATION - overtime claim Workplace Relations Act 1996 (C'th) (formerly Industrial Relations Act 1988 (C'th)) Ss 170DC, 170EA, 170EE(1) IAN ALAN SHALLCROSS v STRELLEY PASTORAL PTY LTD WI 1436 of 1996 Before: BOON JR Place: PERTH Date: 21 MARCH 1997 IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) WESTERN AUSTRALIA DISTRICT REGISTRY ) WI 1436 of 1996 B E T W E E N: IAN ALAN SHALLCROSS Applicant A N D: STRELLEY PASTORAL PTY LTD Respondent MINUTE OF ORDERS 21 MARCH 1997 PERTH BOON JR THE COURT ORDERS AND DECLARES THAT : 1. There was a valid reason for the termination of Mr Shallcross' employment within the meaning of section 170DE(1) of the Act. 2. There has been a breach of section 170DC of the Act. 3. The claim for payment of overtime is dismissed. 4. It is not appropriate in all the circumstances to make an order for payment of compensation. 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 ) WI 1436 of 1996 B E T W E E N: IAN ALAN SHALLCROSS Applicant A N D: STRELLEY PASTORAL PTY LTD Respondent REASONS FOR DECISION 21 MARCH 1997 BOON JR INTRODUCTION This is an application under section 170EA of the Workplace Relations Act 1996 (formerly Industrial Relations Act 1988). The applicant, Mr Shallcross, seeks payment of compensation arising out of the alleged termination of his employment by the respondent, Strelley Pastoral Pty Ltd. Mr Shallcross is also seeking an amount of $3,621.38 under this Court's accrued jurisdiction in which he alleges represents accrued overtime payments. Mr Shallcross is a 42-year old man who has many years experience working on stations and in the transport industry. The respondent company was set up out of a group called Nomads which was developed around Aboriginal people who live in an area east of Port Hedland in the northwest of Western Australia. With the assistance of Mr Donald McLeod, an 88-year old non-aboriginal person, a number of Aboriginal companies were set up which purchased six or seven pastoral leases in the area over a 20-year period. The majority of shareholders belonged to aboriginal communities and many are elders of their tribes. A number of non-aboriginal people act as directors of the companies and their task is to translate business practices to aboriginal people. Mr Shallcross gave evidence that his ex-father-in-law, Mr Ross Gibson, was the manager of Strelley Pastoral Pty Ltd. He was based in Perth and Mr Shallcross was giving him a hand when he was having problems with a vehicle in March 1996. Mr Gibson asked Mr Shallcross if he was interested in going up to the Carlindie Station which is owned by the respondent company. Mr Shallcross accepted a position as a station hand/stockman with the company. As the homestead had been burnt down Mr Shallcross volunteered to bring his caravan and this was agreed to. Mr Shallcross arrived at the station in the second week of March 1996. He started working on fences on his own and continued to do that until 8 May when three aboriginal boys were sent to the station to work with him. After some time, a further three boys arrived. According to Mr Shallcross, Mr Gibson told him that the boys were under a training scheme and were there to learn the running of the station, fencing, and earmarking and branding of cattle. Mr Shallcross said that for the first four to six weeks the boys worked very well but then they started to "slack off". He said that the boys were not doing the work he assigned them properly and that he had to keep on re-doing the work. Mr Shallcross was the only person working with the aboriginal boys. Mr Shallcross said that although he found it frustrating the only time he really said anything to the boys was after they were spoken to by the manager of the company. Mr Shallcross then said to the boys that they were trying to run a cattle station, not a holiday camp. Mr Shallcross said that this conversation happened in the dining room at the company. Mr Gibson was there and sat the boys down. Mr Shallcross had spoken to Mr Gibson about the boys and had said that they would rather look for bush tucker than work. He said that when he was working with them he would tell them what to do and then they would do the work, but if they were on their own they would not do the work. According to Mr Shallcross, the boys were "not too happy" about him giving them instructions and Mr Gibson sent them out to work on their own. Mr Shallcross said that nine times out of ten the boys had only done five or ten minutes work in a day. Mr Shallcross said that he then spoke to the boys in a paddock about their work. After that, the boys decided to leave the station. Mr Shallcross said that a few days after that on 30 July he was notified by Mr Gibson that he had had a phone call from Perth that Mr Shallcross was to have his employment terminated. Mr Shallcross said that he asked why and Mr Gibson told him that the boys had accused him of telling them to "piss off". Mr Shallcross denies that he ever said that to the boys. It is common ground that Mr Shallcross then asked the company if he could work until the end of the month and the company agreed. Mr Shallcross then spoke to Mr McLeod about getting a company vehicle to bring his caravan back down to Perth and this was eventually arranged. Mr Shallcross sent a letter to the elders about his position and eventually one of the elders agreed to a meeting at his home on about 28 August. The meeting took place between an elder, Mr Billy Thomas, Mr Gibson and Mr Shallcross. Mr Shallcross said that he explained to Mr Thomas what had happened and that he denied having used those words to the boys. Mr Shallcross said that it must have been a misunderstanding between the boys and himself. Mr Shallcross worked on Saturday 31 August and then left for Perth. The respondent had organised a vehicle and driver to tow his caravan back to Perth. Mr Shallcross said that he had been offered an alternative job and was due to start there on 2 September 1996. He said that by midnight on 1 September he did not feel like driving the last 80 kilometres to Perth. He said that there was something wrong with the car but the next morning he did drive the extra distance to Perth. However he did not go for the alternative job as he arrived in Perth too late. His wages with the respondent were $783 gross per fortnight. He would have been paid considerably more than that in the job which he did not go to on 2 September 1996. Mr Shallcross said that he based his claim for overtime payments on the fact that he was working well in excess of the normal 40-hour week. He admitted that there had been no agreement or discussion in relation to overtime payments. The Court heard from Mr Neil Munro, an accountant with the company. Mr Munro gave evidence that the company arranged to have some work done on the vehicle and also arranged for another driver to go back to Perth with Mr Shallcross after his employment had been terminated. Mr Munro argued that there had been an opportunity for Mr Shallcross to get another job and the company did what they could to assist him in getting to Perth on time. Mr Thomas gave evidence that he is an elder and is on the board that manages Strelley Pastoral Pty Ltd. Mr Thomas said that although he himself had not watched Mr Shallcross' work performance the aboriginal boys who had worked with Mr Shallcross on the station walked off the job because they refused to work with Mr Shallcross any longer. Mr Thomas said that the boys had complained to him about Mr Shallcross and that he tried to push them around and called them black and lazy. Unfortunately that evidence from Mr Thomas was hearsay and the boys themselves were not called to give evidence. Mr Thomas was of the view that Mr Shallcross should have handled the aboriginal people properly as they have their own habits. He should look after the aboriginal people and let them learn rather than be critical of them. Mr McLeod gave evidence that he has been working with aboriginal people for 55 years. He has gained the trust of aboriginal people and he acts as spokesperson for them. Mr McLeod gave evidence that he went to the station at the end of May and in June. He saw the way Mr Shallcross dealt with the aboriginal boys and did not like it. He said that Mr Shallcross had a condescending attitude towards them. Mr McLeod said that he told Mr Shallcross a couple of times that he had to change his attitude to the aboriginal boys as they did not want to work with him. Mr McLeod said that Mr Shallcross and Mr Gibson considered that they were the managers and the aboriginals had to do what they were told whereas it should be the other way around because it was an aboriginal station. He said that in July he gave Mr Shallcross a month's notice as it was clear that he would not change his style in that he always acted as though he knew what was best. Mr McLeod was of the view that as it was an aboriginal station run by and for aboriginal people Mr Shallcross should modify his behaviour accordingly. As he refused to do that, his employment was terminated. Mr Shallcross denied that Mr McLeod had spoken to him about the way he treated the aboriginal boys. He also made the point that he himself had always received his instructions from Mr Gibson. During cross examination Mr Shallcross considered that it was possible that the boys did not like working with him. He said words to the effect that he was there to teach the boys and if they were not prepared to learn, that was their problem. Mr Shallcross made a number of comments like this which appeared to me to confirm Mr McLeod's evidence in relation to the attitude Mr Shallcross had to the aboriginal boys. Mr Shallcross further considered that his sense of frustration could have boiled over into him making comments to the boys. He said he made comments like "Use your brains instead of me thinking for you." He said that he treated them the same as any other employee, white or black. WAS THERE A VALID REASON FOR THE TERMINATION On behalf of Strelley Pastoral Pty Ltd it is argued that there was a valid reason for the termination of Mr Shallcross in that his attitude to the aboriginal boys was such that they refused to work with him. As it is a station run for the benefit of aboriginal people it was a requirement of the job that Mr Shallcross be able to work with them. Mr Shallcross denies that he did anything wrong. I accept his evidence that he treated the aboriginal boys the same as he would have treated non-aboriginal people. Unfortunately Mr Shallcross seems to have missed the point that there are substantial cultural differences between aboriginal and non-aboriginal people, particularly in the more remote parts of Western Australia. It appears to me that Mr Shallcross did not take these cultural differences into account and was unable to communicate properly with the aboriginal boys in his care. As the aboriginal boys refused to work with Mr Shallcross and walked out on him, I am satisfied that there was a valid reason for the termination of his employment. WAS THERE AN OPPORTUNITY TO RESPOND TO ALLEGATIONS Mr Shallcross alleges that Strelley Pastoral Pty Ltd breached the provisions of section 170DC of the Act in that he was not given an opportunity to respond to allegations against his conduct or performance before his employment was terminated. It appears from all of the evidence that the only time that he may have been spoken to about his conduct or performance prior to the decision to terminate was made was when Mr McLeod made some comments to him about his attitude to the aboriginal boys. This however occurred well before the date of termination. Mr Shallcross said that he was never given a satisfactory reason for the termination of his employment. In these circumstances, I consider that there has been a breach of the provisions of section 170DC. THE CLAIM FOR OVERTIME PAYMENTS It is argued on behalf of Strelley Pastoral Pty Ltd that there was never any agreement to pay Mr Shallcross overtime, that he never had any approval to claim overtime and that in any event it is the practice within the industry to work longer than normal hours on some occasions. Mr Shallcross admitted that this was so. In these circumstances I consider that it would not be appropriate to make an order for payment of alleged accrued overtime and that part of Mr Shallcross' claim is dismissed. THE APPROPRIATE REMEDY Under section 170EE(1) of the Act, the Court may grant a remedy if it "considers it appropriate in all the circumstances of the case". The remedies the Court may grant include reinstatement or payment of compensation. Reinstatement is not sought by Mr Shallcross and I am satisfied in all the circumstances that it would be impracticable to make an order for reinstatement. The only question that arises therefore is whether it is appropriate in all the circumstances of the case to make an order for payment of compensation to Mr Shallcross. Mr Shallcross on his own evidence admitted that the company had organised for a driver to take him and his caravan back to Perth so that he could get to the other job on time. Mr Shallcross chose not to drive the last 80 kilometres of the journey late at night when he could have arrived on time for his new job. In these circumstances I consider that he has failed to mitigate his loss and that it would not be appropriate to order Strelley Pastoral Pty Ltd to pay compensation to Mr Shallcross. He could have been gainfully employed from 2 September 1996 and earning a higher wage than he was earning at Strelley Pastoral Pty Ltd. The orders are that the Court orders and declares: 1. There was a valid reason for the termination of Mr Shallcross' employment within the meaning of section 170DE(1) of the Act. 2. There has been a breach of section 170DC of the Act. 3. The claim for payment of overtime is dismissed. 4. It is not appropriate in all the circumstances to make an order for payment of compensation. I certify that this and the preceding nine (9) pages are a true copy of the reasons for decision of Judicial Registrar Boon. Associate: Date: APPEARANCES Applicant (in person) Mr I Shallcross Representative for the Respondent Mr Munro of Strelley Pastoral Pty Ltd Date of hearing: 16 December 1996 Date of judgment: 21 March 1997