Banjo v Kowanyama Aboriginal Council [2005] QIRC 45 (2005) 178 QGIG 426

[Extract from Queensland Government Industrial Gazette, dated 29 April, 2005, Vol. 178, No.18, pages 426-428] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Lance Banjo and Kowanyama Aboriginal Council (No. B1703 of 2004) COMMISSIONER FISHER 14 April 2005 Application for reinstatement – Applicant absent from duty without written notice to Council – Leave granted by QPS to applicant and not conveyed to Council – Applicant requests Employment Separation Certificate – Council pays termination pay – Council absenteeism policy – Applicant returns to be advised he his no longer employed – Representations on applicants behalf by QPS – Applicant employed for a further period – Applicant terminated – Industrial Relations Act 1999 s. 77 – Dismissal found substantively and procedurally unfair – Compensation awarded – Applicant should be considered for any upcoming vacancies for Community Police Officer. DECISION This is an application by Lance Banjo for reinstatement to his former position of Community Police Officer with the Kowanyama Aboriginal Council (the Council). Community Police Officers work under the supervision of Officers of the Queensland Police Service but the Aboriginal Council is the employer. Mr Banjo had been employed as a full-time Community Police Officer with the Council during the 2000/2001 and 2003/2004 financial years. He was briefly employed again on 24 September 2004 until 5 October 2004. While the main focus of the parties’ attention was on events between 11 June 2004 and 23 September 2004, the critical period of employment was the last one, from 24 September 2004 until 5 October 2004. The parties are not in dispute that Mr Banjo left his job on 18 June 2004 without giving written notice to the Council. Mr Banjo and Senior Constable Lance Millward of the Queensland Police Service stationed at Kowanyama both agree that Mr Banjo telephoned Senior Constable Millward to advise that due to pressure from the community and family problems he required some time away from Kowanyama. (For completeness I note that Senior Constable Millward’s Statement refers to the telephone conversation occurring in August 2004 but the pay records show Mr Banjo’s absence from June 2004. On this point I accept Senior Constable Millward is mistaken about the date.) Senior Constable Millward agreed to Mr Banjo taking leave and made adjustments to the roster. Except for the notations on the roster and time sheets which were sent to the Council, no advice was given by Mr Banjo or Senior Constable Millward to the Council that Mr Banjo would be absent from work. Mr Banjo was absent from his position in Kowanyama from 18 June 2004 until some time in September 2004. During his absence he maintained periodic telephone contact with Senior Constable Millward to update him on his absence. On at least one occasion he also spoke to Sergeant Rod Stanley, Acting Officer in Charge of Kowanyama Police Station. However, the only contact Mr Banjo had with the Council during that period was a telephone call in July 2004. During that conversation with Mr Robbie Sands, Acting Deputy Chief Executive Officer of the Council, Mr Banjo asked for his Employment Separation Certificate in order to access Centrelink benefits. Mr Banjo was quite clear in his evidence that he asked for an Employment Separation Certificate but said that he did not realise that the effect of asking for it was that he was notifying that he was ceasing employment with the Council. Mr Robbie Sands, quite naturally, interpreted Mr Banjo’s action as a resignation. He arranged for the Employment Separation Certificate to be faxed to the Centrelink office in Mt Isa, where Mr Banjo was residing, and for his termination pay consisting of accrued annual leave entitlements to be paid into his bank account. Mr Banjo acknowledged receipt of the termination monies but said he did not know what they were for. He was unable to access Centrelink benefits because the Employment Separation Certificate did not arrive. There is some confusion over the Employment Separation Certificate. The Council produced a copy of the one it sent. It shows that Mr Banjo last worked for the Council on 18 July 2004 and was signed by the employer on 15 September 2004 and was faxed to Mt Isa Centrelink. It is not apparent on the face of the document when it was faxed to the Centerlink office. A satisfactory explanation was not given as to why it was not provided on receipt of the telephone call from Mr Banjo. Despite this confusion, I am satisfied that by Mr Banjo requesting the Employment Separation Certificate and by the payment of termination monies by the Council, that Mr Banjo terminated his employment with the Council. That Mr Banjo made this telephone call to Mr Robbie Sands in July 2004 was not known to the Queensland Police Service Officers. Mr Banjo returned to Kowanyama in September 2004 expecting to return to work as a Community Police Officer. When this apparently was not going to happen, Sergeant Stanley and Senior Constable Millward met with Mr Bob Sands, Chief Executive Officer of the Council on 23 September 2004. At the time both Sergeant Stanley and Senior Constable Millward believed that Mr Banjo, and another Community Police Officer, had been terminated from their positions by the Council. -- 1 of 3 -- 2 During the meeting Mr Sands informed Sergeant Stanley and Senior Constable Millward that Mr Banjo’s employment had been terminated for taking more than two days’ leave without authorisation. The Officers of the Queensland Police Service advised Mr Sands that they were unaware that Council had such a policy, that Mr Banjo had been in periodic contact with them and they had approved his absence. They apologised for the oversight in not informing the Council of the situation. The Officers requested Mr Banjo’s reinstatement. There is no dispute between Sergeant Stanley, Senior Constable Millard and Mr Sands that the latter agreed that Mr Banjo would recommence work as a Community Police Officer. What is in contention is the period of that employment. Mr Sands was adamant that Mr Banjo was only to be employed on a temporary basis, to provide additional Police presence for a Football and Softball Carnival that was occurring over the weekend of 25 and 26 September 2004. Neither Sergeant Stanley nor Senior Constable Millward understood the employment was to be temporary. They believed Mr Banjo was resuming normal duties but that they would advise him of Council’s policy regarding absences without approval. I have difficulty accepting that Mr Banjo’s employment was to be temporary only. Reference was made by Mr Robbie Sands to Council paperwork that was said to support this position. The relevant document only shows that Mr Banjo was appointed to fill the position of Community Police Officer as from 24 September 2004. No end date is written on the document and nowhere is it noted that the employment was to be temporary. The other difficulty is that Mr Sands said that he agreed to employ Mr Banjo temporarily to assist the Police to cover the Football and Softball Carnival that was occurring over the weekend of 25 and 26 September 2004. Why then was Mr Banjo still employed at 8 October 2004 when the Carnival had long since finished? In my view, it was not initially the intention to employ Mr Banjo on a temporary basis in September 2004. It is clear that Mr Sands came under pressure from at least some members of the Kowanyama Aboriginal Council in October 2004 over Mr Banjo’s continued employment. Those members were concerned over Mr Banjo’s reemployment with the Council after having had an extended period away from his position without the approval of Council. The evidence does not reveal whether the Council took into consideration that Sergeant Stanley and Senior Constable Millward had approved such leave. I expect that such considerations would have been considered to be irrelevant given that it was the Council that had such responsibility and not the Queensland Police Service. It was also Mr Sands’ evidence that Council rigidly enforced its policy of leave of more than two days requiring authorisation. Such policy had been in force since 1997. After discussions with a number of Council members on 8 October 2004 Mr Sands decided to terminate Mr Banjo’s employment. Senior Constable Millward met with Mr Sands on 8 October 2004 to press for Mr Banjo’s reinstatement. He advised that he acted with the authority of the Queensland Police Service. Mr Sands declined to accede to Senior Constable Millward’s demand. Section 77 of the Industrial Relations Act 1999 requires the Commission to consider a number of matters in determining whether a dismissal was harsh, unjust or unreasonable. The first factor is whether Mr Banjo was notified of the reason for his dismissal. Mr Sands informed Senior Constable Millward on 8 October 2004 that Mr Banjo was being dismissed because of his absence without approved leave. Senior Constable Millward conveyed this information to Mr Banjo and Mr Sands confirmed it when Mr Banjo arrived at the meeting. Accordingly, I am satisfied that Mr Banjo was notified of the reason. The Commission must next consider whether the reason for the dismissal related to Mr Banjo’s conduct, capacity and performance and if it did, whether Mr Banjo was warned about such conduct or whether he had the opportunity to respond to allegations about the conduct. The reason related to Mr Banjo’s conduct in taking unauthorised leave. The difficulty with the stated reason for the termination is that it related to Mr Banjo’s earlier period of service with the Council that concluded in July 2004 by Mr Banjo’s request for an Employment Separation Certificate. To be legitimate the reason for termination must relate to the period of employment in question. Mr Banjo had been absent without approval from the Council for about one month by the time he requested the Employment Separation Certificate. In seeking that Mr Sands terminate Mr Banjo’s employment in October 2004, it is not at all clear whether Council were aware that Mr Banjo terminated his own employment or simply believed that Mr Banjo had been absent without approval for the entire 3½ month period of his absence. I accept that when the policy provides for approval to be given for more than two days absence, then even a period of one month far exceeds the required period. It is inescapable however that the reason for the termination did not relate to any conduct by Mr Banjo during his most recent period of employment commencing 24 September 2004. -- 2 of 3 -- 3 Mr Banjo was not warned about his conduct and was also not given an opportunity to defend against allegations about his absence. The decision was taken without any opportunity being given to Mr Banjo to comment on the matter. The Commission is also able to take into account such other factors it considers relevant (s 77(d)). I can understand that the Council wanted to be seen to be enforcing its policy. Absence without approval has been an issue of concern for successive Councils at Kowanyama and it is important to the Council that the policy is enforced rigidly and consistently applied. The perception was that Mr Banjo was treated differently by being allowed to return to work after such a lengthy absence without approval and to ensure harmony at Kowanyama, this could not be allowed to continue. Accordingly, pressure was applied by various Council Members to Mr Sands who decided that Mr Banjo’s employment was to be terminated. Given that Mr Sands believed that Mr Banjo’s employment was temporary then not all the steps required by the Act were taken. It is also the case that all employment has to be approved by the full Council. In this case the employment of Mr Banjo from 24 September 2004 was not approved by the full Council. In the circumstances Mr Sands was placed in an unenviable position. The Queensland Police Service made representations to Mr Sands for Mr Banjo’s re-employment and once that occurred, several Council members sought that Mr Sands dismiss Mr Banjo so that the Council policy could be seen to be being enforced. Had Mr Banjo simply been re-employed for the weekend sporting carnival, I doubt that the matter would have come to a head. The continuation of his employment beyond that event brought the issue into focus. Given the strength of feeling about the policy issue, Mr Banjo’s dismissal was inevitable. There is no issue about his work performance. In my view the dismissal was unfair because the reason for dismissal did not relate to the relevant period of employment, Mr Banjo was not warned about any unsatisfactory conduct nor was he given the opportunity to defend against any allegations. The dismissal was both substantively and procedurally unfair. In considering a remedy Mr Banjo initially sought reinstatement but in closing submissions sought compensation instead. I consider this to be the more practicable outcome. Mr Banjo’s period of employment to which the dismissal relates was short: some 14 days. Given Mr Banjo was caught in a situation that was not of his own making but that his employment could not be allowed to continue for reasons already outlined, I consider that it would have been more appropriate for reasonable notice of his dismissal to have been given to Mr Banjo. This would have provided some opportunity for Mr Banjo to make alternative arrangements. In light of his periodic employment with the Council, the period of his re-employment and in the circumstances of this case, Mr Banjo should have been given two weeks’ notice of his termination. Accordingly, I order that Kowanyama Aboriginal Council pay to Lance Banjo an amount equivalent to two weeks’ wages. Any pay in lieu of notice paid to Mr Banjo on termination on 8 October 2004 is to be deducted from the above amount. The monies as ordered are to be paid within 22 days of the date of release of this decision and are to be taxed according to law. In addition to the above order for compensation, I recommend to the Council that Mr Banjo be seriously considered for the position of Community Police Officer when the next vacancy becomes available and should he decide to apply. I make this recommendation given that the dismissal stemmed from an admitted oversight on the part of the Queensland Police Service and their satisfaction with Mr Banjo as an employee, the endorsement by Mr Sands of Mr Banjo’s performance as Community Police Officer (transcript p 66 line 20) and his undertaking on the record that if a vacancy for a Community Police officer arises that Mr Banjo would have every right to apply and would be treated fairly in his application (transcript p48 line 30). I have every confidence that the comments made by Mr Sands regarding possible re-employment of Mr Banjo at the hearing will be honoured. Order accordingly. G.K. FISHER, Commissioner. Hearing Details: 2005 16 & 29 March Released: 14 April 2005 Appearances: Mr L. Banjo appearing on his own behalf. Mr R. Sands (Snr), Chief Executive Officer, Kowanyama Aboriginal Council for the respondent. Government Printer, Queensland The State of Queensland 2005. -- 3 of 3 --