ALBON -v- THE COMMONWEALTH OF AUSTRALIA [1997] IRCA 192

DECISION NO:192/97 C A T C H W O R D S INDUSTRIAL LAW - termination of employment - performance - conduct - misconduct Workplace Relations Act 1996 ss.170DC, 170DE, 170EA. CASES: Selvachandran v Peteron Plastics Proprietary Limited (1995) 62 IR 371

Johns v Gunns Ltd (1995) 60 IR 258

Nicolson v Heaven & Earth Gallery Pty Ltd (1994) IRCR 199

ALBON -v- THE COMMONWEALTH OF AUSTRALIA No. VI-2719 of 1996 Before: Ryan JR Place: Melbourne Date: 21May 1997 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI-2719 of 1996 B E T W E E N : WILLIAM ALBON Applicant AND THE COMMONWEALTH OF AUSTRALIA Respondent MINUTES OF ORDERS Judicial Registrar Ryan 21 May 1997 THE COURT ORDERS: 1. That the application be dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI-2719 of 1996 B E T W E E N : WILLIAM ALBON Applicant AND THE COMMONWEALTH OF AUSTRALIA Respondent Before: Ryan JR Place: Melbourne Date: 21 May 1997 REASONS FOR JUDGMENT (Delivered Ex Tempore) William Albon worked for Dr Andrew Theophanous MP. He worked for Dr Theophanous for a number of years and for three specific periods. He worked first as an Electoral Officer, later he worked as an adviser when Dr Theophanous was a Parliamentary Secretary, finally he worked as an Electoral Officer from May to October 1996. Mr Albon had a chequered career with Dr Theophanous. His first period of employment came to an end in circumstances which would lead one to expect that it was unlikely that he would receive further employment of that nature or with that Member of Parliament. His second period of employment also ended in what I consider to be slightly curious circumstances after the change of Federal Government in March 1996. Prior to that election, Dr Theophanous as a Parliamentary Secretary had been entitled to more staff than were provided to him as a Member of Parliament in opposition. Mr Albon and Dr Theophanous agreed that the former would take a termination payment with the change of government and with the automatic ending of the position of adviser to Dr Theophanous in his former role as Parliamentary Secretary. However, part of the agreement was an understanding that about three months later Mr Albon would be re-employed as an Electoral Officer subject to certain assurances. Whether such a speedy return to employment with Dr Theophanous was consistent with the spirit and procedures which had led to the termination payment in March 1996 is not a matter which is relevant in the proceedings before the Court. It is an arrangement which is noted because it was part and parcel of the agreement made by the parties prior to the ending of the second period of employment. In the few months prior to the March 1996 election Dr Theophanous received reports which suggested Mr Albon was acting in support of a factional rival of Dr Theophanous. Clearly electoral staff, personal ministerial staff, and personal staff of parliamentary officers, like Parliamentary Secretaries, are expected to act in the political and personal interests of the Members of Parliament they are appointed to serve. Such staff are expected to display political loyalty and support for a political rival could never be so categorised. However, for reasons best known to himself Dr Theophanous continued to employ Mr Albon in a position of great trust and, subject to certain assurances, had agreed in March 1996 that about May or June Mr Albon was to return for his third stint of employment with Dr Theophanous. The assurances which were a pre-condition of the third period of employment were assurances given to Dr Theophanous by Mr Albon in general terms before he left employment in March 1996 and provided in specific terms when Mr Albon began the third period of employment on 22 May 1996. Dr Theophanous asserted in writing exhibit R4 and in his sworn evidence in these proceedings that: (1) the assurances were undertakings to him by Mr Albon that he, Albon, would be totally loyal as a member of staff especially when dealing with political issues (2) he, Albon, would follow instructions given by Dr Theophanous (3) he, Albon, would not carry out unauthorised actions or initiatives which would in any way compromise Dr Theophanous or the standing of his office. On 22 October 1996 The Commonwealth of Australia, through Dr Theophanous terminated the employment of Mr Albon as an Electoral Officer. The grounds of the termination are set out in a letter of termination of employment of 22 October 1996, exhibit R6, and in a letter of 18 October 1996, exhibit R4. The grounds relate to the performance and conduct of the applicant and they were summarised by the solicitor then acting for the applicant in paragraph 21 of an Application for Relief in respect to Termination of Employment as "alleged disloyalty and poor behaviour towards other staff". Mr Albon applied for reinstatement and alleged that the termination of his employment was unlawful being without valid reason. The matter was referred to the Court by a Commissioner of the Industrial Relations Commission under s170ED of the Workplace Relations Act 1996, being a matter which had not settled at conciliation and a matter where the parties had not elected to proceed by consent arbitration. The respondent, The Commonwealth of Australia, was represented by Mr Tracey QC, and, having conceded that the termination of the employment was at the initiative of the employer, led evidence first in accordance with the dicta of Northrop J in Selvachandran v Peteron Plastics Proprietary Limited (1995) 62 IR 371. During Mr Tracey's opening address and in response to a question from the Court, the applicant, who was representing himself, indicated that he no longer sought reinstatement but sought compensation for what he maintained was the unlawful termination of his employment. Dr Theophanous, Ms Virginia Wellard, and Mr Telmo Languiller, gave evidence for the respondent. The applicant made an oral submission under oath and was cross-examined. Dr Theophanous outlined the assurances on loyalty and performance sought and given by Mr Albon before he began his third and final period of employment on 22 May 1996. He gave evidence of reports to him, particularly reports from Ms Wellard and Mr Languiller. He also gave evidence of his own observations in respect to the applicant's performance and behaviour and of directions to and counselling of the applicant. Ms Wellard is an Electoral Officer and former adviser employed with Dr Theophanous. She gave evidence of a complete breakdown in communication with the applicant; open, public, condemnation of her by the applicant; derogatory and insulting references made of her in her presence; criticism by the applicant of Dr Theophanous in telephone conversations in the electoral office in which the applicant spoke in a loud voice and within the hearing of constituents in the office at the time, and the failure of the applicant to deal promptly or at all with certain electoral correspondence. Mr Languiller corroborated this evidence. He also outlined a conversation in June or July 1996 in which the applicant is said to have offered him an inducement on the basis that he, Languiller, use his influence to work against the future pre-selection of Dr Theophanous in his seat of Calwell. Matters came to a head in October 1996 when Ms Wellard and Mr Languiller put their concerns to Dr Theophanous in writing. I am referring there to exhibit R2 dated 13 October 1996, and exhibit R3 dated 16 October 1996. On 18 October, exhibit R4, Dr Theophanous wrote to the applicant and he ensured that the letter was delivered to the applicant on 19 October. He referred to several telephone conversations with the applicant on 17 October and to the failure of the applicant to request permission to take leave on 18 October, and to the fact that the applicant made no arrangements to cover his absence on 18 October and left the electoral office to use Dr Theophanous' words, "unexpectedly short staffed". Indeed, the evidence of all three respondent witnesses was that the electoral office was closed and not staffed at all, at least on the morning of 18 October 1996. Dr Theophanous began his letter of 18 October as follows: "It is with great sadness that I write to formally inform you that I have no choice but to consider terminating your contract of appointment with me as Electorate Officer." Dr Theophanous refers to serious disagreements about the handling of staff and the future directions of the office; undertakings of loyalty and in respect of performance given by the applicant when he returned to work on 22 May 1996, an attitude to staff including threats and denigration; behaviour in the office deleterious to the harmony and performance to the office internally, the effect of such behaviour on the level of service to constituents and members of The Australian Labor Party, counselling against such behaviour and "about sloppy and careless work", deterioration of the applicant's performance compared to performance prior to the 1996 election and an irretrievable breakdown in the applicant's working relationships in the electoral office. Dr Theophanous concluded the letter as follows: "It is essential, as you know, that my staff act as an effective team that gives me and the Parliamentary Party reliable support through the electorate office. However, despite our direct discussions on the concerns I refer to above your behaviour continues to be counter productive to achieving this fundamental requirement. These circumstances and your lack of response to them oblige me to reconsider your continued employment. I ask you to again consider the serious matters I have raised and to provide me with your response. For this purpose I ask you to report to the office in Broadmeadows at 9.30 am on Tuesday 22 October 1996. To enable you to consider your position I do not require you to present yourself at the office until that time on Tuesday. I will not make a final decision until then." The applicant and Dr Theophanous met for over two hours on 22 October. Mr Languiller and another electorate officer, Mihalis Michael, were present as witnesses, but they did not speak or take part in the meeting other than as observers. In my view, the applicant was given ample opportunity at this meeting and before and after it to respond to allegations made in respect of his conduct and performance as an employee. The Court notes that the applicant in this hearing did not deny in any specific sense any of the allegations made in respect of his conduct and performance. He denied that he was ever disloyal. He conceded that his conduct and attitude might have often been "irreverent but was never heinous or filthy". He denied that his conduct and performance constituted a valid reason or reasons for the termination of his employment. He alleged that the termination was effected with indecent haste and without proper counselling. He alleged that the termination was a result of a political conspiracy. He stated that the termination was about a political struggle and his assertion of a strong political position. He made broad brush colourful references to: "...other forces of darkness conspiring and getting this conspiracy theory going against me, a fabrication of a case against me, the indecent haste with which the whole thing was packaged. This Tuesday 22 October is effectively the first time in a lot more than a decade that Andrew and I worked together that we have a confrontation of 'these are your ills, and these are your sins' and we have a pre-determined set of circumstances. No sins have been committed, no felony, no crime, certainly no disloyalty, and the process that was used to knock me over and get me out was unfair and unjust and unreasonable." The Court is satisfied that there is a substantial and valid reasons for the termination of employment of the applicant by Dr Theophanous on behalf of The Commonwealth of Australia, and that these were sound, defensible, and well sounded reasons connected with the applicant's performance and conduct. In that respect, the Court is content to rely on the well known oft cited description of "valid reasons" by Northrop J in Selvachandran v Peteron Plastics Pty Ltd.The Court is amply satisfied that the applicant was given ample opportunity of responding to the allegations made against him. In that respect the Court is content to rely on the dicta of Northrop J in Johns v Gunns Ltd (1995) 60 IR 258 at 269-70 and of the Chief Justice in Nicolson v Heaven & Earth Gallery Pty Ltd (1994) IRCR 199 at 209-10. The applicant made many concessions in cross-examination. He conceded: · his appointment was a personal one and involved a close personal relationship between Dr Theophanous as a Member of Parliament and himself as the person appointed · it is a relationship that depends on mutual loyalty and trust the electorate office provides the public face of the Member to his constituents in the electorate · the officer has a very important role in representing the Member in his constituency · in the absence of the Member it falls to the electorate officer to deal with matters of correspondence, queries that come over the telephone from constituents and similar matters on behalf of the Member · it is the reasonable expectation of a Member of Parliament such as Dr Theophanous that the responses that come from Members to approaches by constituents will be prompt, courteous, and accurate. There is no doubt that the applicant occupied a position of particular and special trust and that he breached that trust, and that the termination of his employment was lawful and for valid reasons. The application is dismissed. MINUTES OF ORDERS THE COURT ORDERS: 1. That the application be dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding 5 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan. Associate: Dated: 22 May 1997 The Applicant represented himself. Solicitors for the Respondent: Australian Government Solicitor