T7408
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 David Leon Manson and Indigenous Tasmanian Aboriginal Corporation
Industrial dispute - termination of employment - employer agreed dismissal unfair - no valid reason - racial discrimination claimed - no finding as dismissal acknowledged to be unfair - Nicolson v Heaven and Earth Gallery Pty Limited (1994) 1 IRCR 1994 applied - compensation determined $12,414.56 payable by 15.9.98 REASONS FOR DECISION This application was lodged by David Leon Manson pursuant to section 29(1A) of the Industrial Relations Act 1984, seeking a hearing in relation to a dispute with the Indigenous Tasmanian Aboriginal Corporation (ITAC). The dispute related to the termination of his employment. The application cited the date of Mr Manson's termination as 26 November 1997. The application, although dated 10 December 1997, was not received in the Commission until the following day. Section 29(1B) of the Act requires an application of this nature to be made within 14 days of the day of termination, or within any further period the Commissioner considers appropriate in the circumstances. The matter came before the Commission for hearing on 9 January 1998. Mr S Cooper and Mr R Burton, both legal practitioners, with the leave of the Commission, appeared for the applicant and employer respectively. The parties were invited to address the Commission on the question of an extension of time. Mr Cooper submitted that it was appropriate for the Commission to exercise discretion in favour of the applicant, adding that there should be no prejudice to the employer "as a result of 24 hours". Mr Burton did not claim there was any prejudice to the employer. In the circumstances, given that the applicant had approached his solicitor for advice within the fourteen day time limit; that the parties were agreed, as it transpired, there was substance to the claim; that there was no prejudice to the employer, and the delay was of one day only, I am prepared formally to extend time to allow this application to be considered by the Commission. After a brief outline of the application an adjournment was granted for the purpose of allowing the parties further time to negotiate a settlement to the dispute. As that process failed to achieve the desired result, both parties indicated a wish for the matter to proceed to arbitration. The applicant had been employed as the office manager for the Indigenous Tasmanian Aboriginal Corporation (ITAC). That body is, Mr Cooper said, a "funding conduit" for the Aboriginal and Torres Strait Islanders Commission (ATSIC). Its function is to provide housing for indigenous Tasmanians. It does that by disseminating funds received, purchasing houses, looking after rental properties, arranging tenants and so on. The applicant was the senior employed person with the organisation. He commenced with ITAC on 14 November 1995. At that time there was no formal contract of employment. In July 1996 Mr Manson prepared his own contract of employment being for two years from 23 July 1996. The contract was duly formalised. It was tendered and marked Exhibit C1. Mr Cooper submitted that Mr Manson was answerable to the ITAC governing committee. Between July 1996 and April 1997 problems developed and there was conflict in the organisation. These problems came to a head in April 1997 when "threats" were made to terminate Mr Manson's employment. A letter dated 23 April 1997 to Mr Manson from the chairperson of ITAC, Mr R Maynard, demanded answers to certain questions and Mr Manson was told that if the questions were not answered to the best of his knowledge or belief by the following day his employment would be terminated. In June "things became too much" for Mr Manson. He sought medical advice and was certified unfit for work and given 13 days off. He made a claim for compensation under the provisions of the Workplace Rehabilitation and Compensation Act. His claim was approved and a consent order was issued by the Workers Rehabilitation and Compensation Tribunal on 21 August 1997 admitting liability. Mr Cooper submitted things did not improve and on 20 October 1997 Mr Manson "purports to resign his employment". The following day, 21 October 1997, Mr Manson was re-appointed by the governing committee. Mr Cooper claimed the re-appointment was for an initial three month period with an intention that the contract continue for two years after that. On 26 November 1997, at 3.15 p.m., by facsimile transmission of a handwritten message from, and signed by, Mr R Maynard, the Chairperson, ITAC, Mr Manson was informed as follows:
The Employment Separation Certificate tendered and identified as Exhibit C4, which was completed by the grant controller at ITAC, included the following as the reason Mr Manson ceased work on 26 November 1997:
Mr Cooper contended that Mr Manson had been "wrongfully terminated" and that the issue to be determined by the Commission was the amount of compensation to be paid to Mr Manson, since it was conceded by "all and sundry" that reinstatement was not practicable. At the time of his dismissal Mr Manson was in receipt of a weekly wage of $675.91 gross. He was provided with a company car, a mobile telephone and city car parking, all of which it was later agreed was valued at $100 per week for the purposes of compensation if any was to be awarded. Mr Manson's evidence attested to the facts outlined by Mr Cooper. In addition, Mr Manson recited his employment history at G P Fitzgeralds, the Royal Hobart Hospital, E.Z.Risdon, and the Hydro-Electric Commission. Mr Manson confirmed that he had "problems with the governing committee" in April 1997. The committee had accused him, wrongfully he said, of forwarding "various records" to ATSIC, which "indicated mismanagement amongst the governing people". As a result ATSIC had appointed a grant controller to start in July. Mr Manson said that by June that year the office environment was "unbearable" with accusations being made "every day without fail". Mr Manson named certain members of the governing committee with whom he experienced problems. Mr Manson said he consulted a doctor and obtained certificates for the time he had off. When the grant controller was appointed he said the situation improved. In September, following the annual general meeting of ITAC, governing committee people were elected who, he felt, were not beneficial to the organisation and problems at work increased. He said he resigned on or about 23 September 1997 because the pressures were affecting his family life and he thought the "best thing" would be to get another job. He said he was re-appointed the next day on a "casual basis" until 21 October 1997 when his job would become "full time". He said "that it was virtually promised that the governing committee would change and that the workings of the governing committee would be advantageous to both the office staff and to ITAC".1 When asked by Mr Cooper what he understood about his re-appointment, he said he left a meeting held on 20 October 1997 and
Mr Manson said he suspected that something might happen given the changes to the governing committee, but he had received no notification or warning that his employment was under threat. Mr Manson said he was not aboriginal and he was called a "white administrator" by certain members of the governing committee who "highlighted that point" to him on many occasions. In cross-examination Mr Manson said he had not complained to anyone about the comments which he had accepted "as part of the job", he said, but they made him feel uncomfortable. Mr Manson agreed that there was never any certainty from year to year that ATSIC would approve ITAC's funding which included a component for his salary. When asked why he drew up his contract of employment for two years, Mr Manson said he was confident that on the quality of the submission the funding for an office manager would continue. He said that unless ITAC were "to fold", funds for an office manager would always be forthcoming. In respect of the removal of documents from the ITAC office, the following exchange took place between Mr Burton and Mr Manson:
Mr Manson said that from February or March 1997 he was not told of governing committee meetings, some of which were held outside the office, at private residences. The office staff were not given minutes of the meetings. Mr Manson said "all we got was a list of decisions supposedly made by the governing committee".4 Mr Manson admitted that he had applied for a position as Administrator of Aboriginal Corporations prior to the annual general meeting of ITAC and in November he heard that he would be placed on a list of people who might be called upon to perform that task. If another "competitive" job had been available by the beginning of September he would have taken it, he said. He agreed that when he resigned on 23 September, ITAC was put in a difficult position as the committee was unable to replace him immediately because of the "specialised" nature of the position. He was content to return to work on a casual basis at the request of the grants controller and to accept, after a month, the offer of full time work for three months until January 1998 when he was hopeful that the "personnel" of the committee would be people with whom he could work. Ms Natasha Jane Ellis was called to give evidence. She was employed as receptionist-secretary at ITAC from early June 1995 to September 1997. She had been responsible to Mr Manson. She said she had "difficulties" with the committee members referred to by Mr Manson. They were "very condescending" and would "stand over you and tell you what to do". Ms Ellis recalled a time when one of the committee had stated that Mr Manson was not aboriginal and that Mr Manson "did not know what he was doing in relation to aboriginal affairs". Mr Gary Phillip Hankin, who was treasurer of ITAC between November 1996 and September 1997, was also called to give evidence. He said he would have spoken to Mr Manson on a daily basis. He thought Mr Manson was "very efficient and capable in his work". He said about June 1997 he became aware that Mr Manson was suffering "difficulties at work of a stress nature". He said:
Subsequently when Mr Manson made a claim for workers' compensation, the insurer contacted him. He said:
Mr Hankin said on one occasion he had heard a member of the committee refer to Mr Manson in a racially derogatory manner. However, he was uncertain whether Mr Manson had heard the comments and he had not told Mr Manson what had been said about him. Mr Cooper also tendered a statutory declaration made by Garry Mitchell Maynard who was Treasurer of ITAC from 6 October 1997 until he resigned on 24 November 1997. In that statutory declaration Mr Maynard, amongst other things, declared:
Two personal character references in relation to Mr Manson were also tendered by Mr Cooper. Mr Burton submitted I should place very little weight on the documents as the authors were not available for cross-examination. Mr Cooper referred to the ILO Convention concerning the Termination of Employment at the Initiative of the Employer, which declares, amongst other things, that termination on the grounds of race shall not constitute a valid reason for the purposes of the Convention. He said the Commission was entitled to draw an inference that the termination of Mr Manson's employment had some "racial characteristics". Mr Cooper submitted that the history of the employment relationship and the contract of employment which, he said, had "been in fact for two years", indicated that there would have been indefinite continuation of employment. He submitted the Commission should not draw "too much" from the evidence that Mr Manson had applied for a number of other jobs. The Commission was urged to award compensation of the order of six months' wages plus consideration of "collateral benefits" including the availability of the fully maintained motor vehicle, a mobile phone, and parking in the city. Mr Cooper submitted the Commission should take a broad brush approach to assessing a fair sum as compensation for the termination. Mr Burton called no witnesses on behalf of the employer. He responded to the applicant's case by asserting that Mr Manson's history with ITAC was "littered with difficulties" with at least three governing committee members, and that the situation had become so intolerable that he needed medical assistance and time off work. Notwithstanding Mr Manson's resignation and subsequent re-employment, Mr Burton said Mr Manson would have left ITAC to take up the position with the Registrar of Aboriginal Corporations if a position had become available. He said the employment contract was only a three month contract and that nothing had been conveyed to Mr Manson to guarantee continuation of his job past its expiry in January 1998. Mr Burton submitted there was not "a scintilla of evidence" that Mr Manson had been dismissed upon grounds of race. He said that even if the Commission were to find that some people had made derogatory comments about Mr Manson, there was no evidence to link such comments with the termination. ITAC did not challenge the allegation that Mr Manson had been unfairly dismissed, but considered that Mr Manson was entitled, by way of remedy, only to a sum equal to that which he would have received if the contract for three months had continued and ended. He estimated that sum to be $5,310.72. Findings The applicant sought to develop the claim that his termination of employment was the result of racial discrimination. I have no doubt, given the evidence which was before the Commission, that racially derogatory remarks were commonly made by some members of the governing committee about Mr Manson. However claims of racial discrimination are relevant in this Commission only for the purpose of determining whether a valid reason exists to justify termination. In this case the employer has conceded that Mr Manson's dismissal was unfair and in the circumstances the assertions of racial discrimination add nothing to Mr Manson's claim. On the material put I agree with the parties that the termination of Mr Manson's employment was unfair in that there was no valid reason for the governing committee of ITAC to dismiss Mr Manson. In the circumstances I do not consider it necessary for the Commission to rule on whether or not dismissal was the result of racial discrimination. I turn now to consider the remedy which I consider is necessary to settle this industrial dispute. Both parties argued that reinstatement is not an option. I have considered the brief submissions on the matter and in the circumstances I am satisfied for the purposes of section 31(1B) of the Act that reinstatement is impractical. Having reached that conclusion I consider it is appropriate to determine the amount of compensation to be paid to Mr Manson in lieu of reinstatement. In so doing it is important to establish the length of the verbal contract of employment entered into between the governing committee and Mr Manson on 20 October 1997. Mr Manson thought he was to be employed for 3 months until 21 January 1998, when, if he was happy with the governing committee, he would be offered a 2 year contract. The employer simply asserted that Mr Manson had no guarantee of continuing employment, and that the only contract between the parties was one for 3 months to conclude on 21 January 1998. No member of the committee gave evidence on the matter although Mr G Maynard, who was a committee member at the time of the dismissal, stated in his statutory declaration that it was his expectation that Mr Manson would have continued in that employment "after the expiration of 3 months". I do not doubt that Mr Manson had been given the impression that after 3 months if he was satisfied with the governing committee he would be offered a 2-year contract. However, there were a number of factors which might have prevented Mr Manson from continuing in his employment with ITAC for that 2-year period. They were:
Overshadowing these possibilities is the agreed view of the parties that it would not be possible to re-establish a good working relationship between the current ITAC governing committee and Mr Manson. In my opinion if Mr Manson had not been dismissed on 26 November 1997 his hold on the position with ITAC would have remained extremely tenuous. In the circumstances I think it is unlikely that Mr Manson would have remained with ITAC for more than 8 weeks after the completion of the 3-month period on 21 January 1998. In reaching this conclusion I have had regard to Nicolson v Heaven and Earth Gallery Pty Limited (1994) 1 IRCR 1994. Having regard to Article 10 of the ILO Convention, I consider that Mr Manson should receive compensation in lieu of reinstatement of an amount equivalent to wages he would have received if he had remained in employment with ITAC between 26 November 1997 and 18 March 1998, a period of 16 weeks, and an additional $100 per week for that period. The amount of $100 per week was the amount agreed by the parties as representing the value of the motor vehicle, mobile telephone and city parking facilities provided to Mr Manson as part of his employment conditions. Mr Manson's rate of pay was $675.91 per week. Accordingly, pursuant to Section 31(1) of the Industrial Relations Act 1984, I hereby order the Indigenous Tasmanian Aboriginal Corporation to pay to David Leon Manson the sum of $12,414.56 in full settlement of this industrial dispute, such payment to be effected by 15 September 1998.
F D Westwood Appearances: Date and place of hearing: 1 Transcript p.16 |