Dillon v Miles/Chinchilla Aboriginal Housing Company [1998] QIRC 216 (1998) 157 QGIG 90

90 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 29 May, 1998 ########################################################## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workpftu-e Ridmiom Au 1997 s. 218- applicativn for reins1 a1emcn1 Avcril Dillon AND Miles/Chinchilla Ahvriginal Housin g Company /No. 8/.li<Jof/997) COMMISSIONER BLOOMFIELD 15 May 1998 Reinstatement ·· Dismissal - Termination of Employment - Community Deve.lopm<!nt Otfo.:cr - Su1111mu·y dismissal - Applirnnt dismi;.scd by newly "ppoimcd Board members - RC,L'><.ms for termination nor known to Applicanr until hearing - No previous concerns with Applicani"., perti,m1ance - Arbitrated Mauer - No warnings given · · No oppo11unil)' to improve performance - No op1xmunity 10 defend - Decision to 1erminatc Applicant'; ;,crviccs was taken wilhoul regard to any industrial laws or requirements - Dismi,sal was harsh. unjusl or unreasonable - Rcinsrnement unworkable - Compcnsarion of $5.000 net awarded - Compensation to he paid in 4 equal instalment, over 4 month,. DECISION Thb i, an application lodged by Queensland Servi,es. Industrial Union of EmplO)'e<?, 1QSIU) which scd, the reinstarcmenc of Ms Avcril Dillon ro her fom1er position of Community Development Officer with the Miles/Chinchilla Abo11gin.tl Housing C,,mpan) tthe Company). Jv1s Dillon hccamc the President of the Compan y at irs delayed 1995 Annual Gene ral Meetin g hekl in Fcl11\mry 1996. Shonly after her elccrion 10 thm position she stancd to perform the function, ,>f the Company·, Community Development Officer following hi, resignation. She pe1fo11ned thar role in an unpaid capadty until �O .lune I996 and �ontinued in thar role a., a paid employee from I July 1996. Durin g her period a, an w1paid employee rhe monies rhat would have otherwise 1->een available 10 pay her as an employee were avaih.:d of by the then Board of the Company to clear ,werdue debls. Following her fom1al appoimment to rhe rnle in " remporary capacity. comrnen,ing I July I996, the posiriun wa, adveni,cd. She was confirmed as the suc-ces,ful c·,mdidate in early Augusr 1996 following the considerarion of al l applicarions by a Commircee whil:h included an impartial ourside represenrative. An unsuccessful candidate for the position was Ms Vivien Wybenga who,e name I mention oornu�c it shall reawrc below. 29 May, 1998 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 91 Ms Dillon resigned from her position as Presidenr al the 1996 Annual General Me,eting apparently held in e.arly December 1996. During her renure as Lxith President and _ Communiry Development Offi,er $he had excluded her!<elf from d1.scuss1ons which may have involved her role us Communicy r.xvek1pmen1 Officer because ()f her pecuniary interest. In early February 1997 Ms Dillon wrote to the Minister for Aboriginal and Torres Scrait blander Affairs and to the Chairperson of rhe Aboriginal and Torres Strait blander Commission (ATSIC) raising concerns about the financial conduct of the Company and alleged unaccounced expenditure of 0,-er $210.000 identified in previous audit Matcments. Jn April 1997 Ms Dillon successfully applied to be allowed to occupy a newly construl'ted house nwned by the Company. This house had been built 00 tlie site of a previou, house owne d by the Company which had burned to rhe crouncl �orne time earlier. Apparently a dispuce arose within the local com;nunity about rhe decision to grant tenancy 10 Ms Dillon instead of the previous re,idenis on the basis thar 1hey had occupied_ the house w�ich pre\'iously cxis1cd ,m that same site. After the personal mtervcnuon ol 1'v1r Ray Robinson. Deputy Chairman of ATSIC. Ms Dillon agreed to va,ate the ho�sc allhough she ha d already moved her per:,onal belongings into it. M, Dillon apparently commenced le.gal action against the Company seeking some restitution in relation to expenses incurred in moving into the house and then having to vacate ir. Some allegacions were also made during t)ie course of the hearing chat rhe decision of the Board 10 allow Ms Dillon to (>ecupy the new house - allegedly in contlict wi1h ATSIC funding requircmenr, - had resulted in the Company losing a grant of $220.000 for the construction of additional houses. Thi� mauer. and others. c.ausc<l srnne people in the local community to ,1uc>1ion tl1c ac1ivi1ie, of the l:loard of the Company a nd the decisions heing rnken hy ir. There was apparently also ,ome disenchancment about Ms Dillon hernu,e of the housing issue (above). By lerter dated 27 May 1997 Ms Vivien Wybenga re.quested the President of rhc Company to convene an Extrnordinary Mcering with rwemy t>nc day,. l\,fartcr, proposed 10 he raised at rhaL meeting were set ouc in the letter, which w11s also signed by rhe requisite five members of the Company v.hich the constitution required for such me etings to be convened. The rc..1uisi1ion wa, apparently not acted upon an d Ms Wybenga took it upon herself. by lcucr dated I!$ June I997, to convene what was called an F.w:iorJinar) Mcetin� in the office ofrhe Company at 6.00 p.m. on n .lune 1997. Although copic, of this notice were apparently delivered to the existing Board. a, well as Ms Dillon. only a Mr Hal.ard of the old Board ,mended. At the Extraordinary �•leering held on 2J June the previous Board was ,ailed upon 11, resign and a new Commiuee was elected in its stead. Ms W)bcnga bc<:ame the Secretary. Following the elc.:ti,,n of rhe new Commirtcc the meeting <:onsidered a numllt'r of other matter,. In tht nore.s of the mee.ring taken by the newly appninted Secretary. Ms Wybenga. the following is recorded:- --1. Fire CDO. I. Da,·id C. 2. ,\nthony T . Unanimous. Not dning duty. pecuniary. disruption communiry Company to cnun. Breach of confidence. Wilful damage. 3. �,>ticc to inform of firing and repos,es, car. :'Jo notice civcn. I. Lync.11c �H. 2. Amhony T. U nanim\lus:·. Ms Wybenga rnncedcd in cvidcm;e rhat rhe notes 11::lle\Cted a decision tak�n t,, rcrn,inare M, Dil.lon · s .services for the reasons identified. She could not_ remember details of the reasons. simply nvring 1hat they had been raised by llld1vidual members and that she had recorded the hroad i$SUe misc<l and nothing more. A meeting or the new Board wa, apparcnrly held following the Exrraordinary Meeting ln,:luded in the fomial minures of this meeting are the following irem,:- "(J) Lener to Averil Dillon and Board of Direcwr, to notify them of new Boa rd', decbion. Moved by Amhony Turnbull seconded by Mefo,sa Bligh. Carried Unanimously. ( 10) Industrial Relations Lo be contacted Re: Miss A. Dillon·s position a., COO. Vivien Wybenga to action . Moved hy Trevor L. Seconded by An thony T. Carried Unanimously:·. On 24 June 1997 M� Dillon, in the company of the previous Secretary. a Ms Muir. travelled to Brisbane to meet the State Manager of ATSIC. The purpose of this meeting, which had been arranged previously. was tn di,cuss the continuing problems within the Company. including ongoing fricrion because of familial connections. Ms Dillon informed me that she was unaMe to gain acce,s to the Company's premises on 25 June because the locks had been changed. She notified Ms Muir that the locks had been changed and they agreed to drive to �ee 10 the ATSIC Regional Manager at Roma taking all Company documents with them for "safekeeping". Ms Muir and Ms Dillon infonned me that they handed over tO Mr Shi mm,. the ATSIC Regional Mana ger. al l Company documents which they had in their possession including minu1e books. cheque books. rental deposit books and the Company seal. After explaining 10 Mr Shimms the. problems a� they s<1w them - includin g the apparent sacking of tl1e old Bvard - Mr Shimms spoke to the Company's bank ar Chinchilla and froze all of the Company's accou nts excepr for several cheques which had heen drawn in favour of Ms Dillon for wages and for annual leave which ,he wa, due to commen ce on I July 1997. A cheque was also apparently dra wn for $I()() for e.xpenses a�sociated with the trip to Brisbane on 24 June 1997. Ms Dillon gave evidence that be.cause ,he was unable 10 gain ac<.:ess 10 the 01mpany's premises she e0ntinucd m pe,frnm her usual duties from home between 26 June an(.) 30 June. She proceeded onto annual le ave on I July 1997. On or about 7 July I 997 a letter advising Ms Dillon of her 1crminati(1n wa, delivered to her hnu,e. The le11er was in the following terms:- --Dear Ms Dillon You are hereby given notice rh:it your position as Community Dcvelopmenc Officer has been cenninared u nder the section 2(h) of the wnstirurion of Miles/Chinchilla Abori ginal Housing I\> be affective. immediately. Yours sincerely Alexandra O,mbamgo (Presidenl) Vivien Wybenga (Secre tary) Sarccta Turnbull (Board of Directors) 4t.h July 1997". Another lellcr was given to her at the same time requiring her co hand over possession of any Company propc11y. including the Compan y car. The QSIU subse<juently attcmpred 10 ascertain the reason, for M, Dillon's tennination. wil11out success. Ms Dilloo·s membership of the Company was subsequently tem1inated by lcllcr dated 23 January 1998 on rhineen grounds a$ set out in that lcne r. Until the handwriucn notes of the Extraordinary Meeting came co light during the course of the hearing the QSIU. and Ms Dillon. had believed thar her employment as Community Development Oftker was tcnninatcd on those. or similar. thirteen grounds. However. as rJ1e note, of the Extraordinary Meeting show. the grounds were much more Jimiced. Conclusion Prior co 23 June 1997 there was no suggestion that any member of the Boru·d of Miles/Chinchilla Aboriginal Housing Comp any had any concerns ahout M� Dillon ·s pcrfom1a nc.e as the Company's Community Development Oflicer. Indeed, a number of te.,timonial leuer, tabled a s exhibit 31 suggesred that Ms Dillon had ca1Tied out the function� of the Community Development -- 1 of 2 -- 92 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 29 May, 1998 Oflker in a competent anti exemplary fashion during her time in that rok. Funher, the audit rcpo,1 rrcpare<l !'or 1h.: Dc<.:cmbcr I 99t> Annual General Meeting ,tatcd ·· . . . q/i,· r 1/Je 11e,r c ommit1ee ,ms appoi111ed in Fehmarr /996, the recordkn,ping H·<1,, nfa xood .H<mclarcl. Prior 10 this rlu:re u·as i•err liu/,, record kel;/1i11g mai111ai11edlpr<'.1e111ed .fi11· t111di1i11g f>lh<'r 1ho11 ch<'q1te hooks und depusi1 books:· M., Dillon w,t, the Prc,idem during thi, ti me antl also ac1ed for the majority of the same time as the Community Di:, clop1 11ent Olli t:�r in both a vol untary and a paid ha.sis. Durin� 1he ,ourse of her e,·itkncc and ,uhmi"ion, Ms Wyhcnga. on behalf of the Company. all<!tnp1ed l•l ju,tify th.e 1crminati<m or Ms Dill,m by as,ening tha1 Ms Dillon hac.J foiled to currculy rernrtl rental re,:ei p1, anti that ,;he had duplicated a numl:><!r of rental receipt, which had lllildc it diflicuh 10 rc,oncik bankings and rental pay111cm,. However. apart from lim iu:d reference 10 the duplicated rL't:Cipt, no other matl'rial wa, prc,cn1cd which '-'OUld enable the Commission 10 make any findings whatso,:vcr on any of the a:-..�nion� adv:.ttK'cd. In any event nont: of the material sought hl he rdi"d upon hy Ms Wybenga on behalf of the Company wa,; known about when 1hc dc,·ision wa, 1akcn on 23 June 1997 10 di,pen,e with M, Dillon·s scrvic:.:, without notice. Quite apart from that aspco.:l it is now widely acccp1c<l that heforc an employee <.:an he ju,1il'iahly 1cnninatcd any allegL't.1 ddit:icncic, in their pe1formancc must be drawn 10 their a11cn1in11 and an appropriate opponunit) given to the employee lo impmw their pcrfonnancc. Nont' of that happ,:ncd here. In my vic.w. the decision 10 1crmina1c Ms Dill(,n·, scrvkc, wa, taken without regard to any indu!:itrial law:-. or ri:qui1t.!mcnt� hy a group of people who <:oul d not di,1111gubh the activi1ie.s of M, Dillon. in her rnle a, a C()Jlllllunity Dt>velopmcni Ofliccr, from the Board of the Company rn1d from her much earlier role as President of the Board. The criticism of M, Dillon for occupying the hou�c uf1cr a <l�(;i:,.ion Oy the Boan.1 w grun1 h.,;r applit:Htion for tenancy anu. thereby. supposedly resuhing m a ltN, of promised funding from f\TSIC highlight, 1hi, 1x1i111. Although taking the det:i,ion tn 1erminmc M, Dillon·, ,crviccs on 23 Jun.: 1997 the Ill"-' Board failed 10 a<.:t tn infrn-m her or her termination umil on or .Lround 7 July I 997. Thal delay '"is �ought hJ be explained on a numher or ground, i ncluding that appropriate advice had to he ,ought ah,iut the rca:-.on� whidl �hould he given. It was -;.aid that the n;a.,on spell out in the lellcr of termination was suggested to 1he President after she ,poke 10 !he Dcp.u 1mcn1 nf Training and Industrial Relation, anti that a lcner <.:m1ltl not be r1..:parcd and ,igned until Ms Wyh�n�a rc1umctl frnm llri�bane (where ,he ,wrkctlJ 10 Chinchilla. I han: not takrn 1he tlday into a,·t:nunl in makin;: the uhima1,· d�c·ision that I have :ind I .shall simply oh,cn·e 1ha1 ii ""' ...:onsi.,1cn1 with the l3oar<f !-- f;.iilun: lo .\ho"v i111y nmsidera1ion. or t:ourh:::-.y. whatsoever lo M, Dillon duii ng this whole ti me. Section 220 of 1h,• Wod.1,lace Rel01io11, Ac1 HNi sets out the mailer, \\ohi...:h 1hc (\l1 11mis�ion n1ust c,:om, kkr when tle--c.:icJinl_! v ... 'h1..·1h�r a Jbmi!-i�:11 \.Vas har,,;,h, unjusl t.lr unrca:-.onahh::. After having con!-.id�rcd Cho:-.c matt('f',, I have 11:ad1etl the ,ondu,ion 1ha1 the 1ennina1ion of M, /\ v,eril Dillon hy lcucr tlakd 4 July 1 997 w,i s harsh. unju,t or unreaso1mbk-. In my ,·icv.. the employer faik-J 10 oh,ervc the fundamental rL'ttuircme111, assodatcd with 1crmi11ation in that it faiktl to inform Ms Dillon. until 1he hearing. of 1he reastms for her termi nation and failed 10 rrovidc her wi1h any oppn1111ni1y. what,oever. IO respond 10 any c"<>ncerns which 1he new Board ma) haw ha<I al>ou1 her conduct. capa,il) or pcrfrnrnance. Funher. even if Lhcrc were any "alid crnKcnh no warning wa, l,!i,·cn 10 M;; Dillon :il>o ul ,ueh ,on<.:crn, and no orrommil) wa.s pmvidcd 10 her to cOJTC<,:l ;.u1y al kgcd <lcficicnde�. On llehalr or the Company M, W�b<:nga plcalled ignornn,·e about the nt·ed to follow apprnpri,11e pro,edurcs stuting that withi n Abori _,?inal communi1ic� ..nol everyone i, an �xp?n on cn�rythi11g.. !\1' Wybcnga also indit:aled that the Comp,uiy would nnt be in a iioarn: ial JX>sition w pay any L'{,mpcn,aliun lO �h. Dillon if the Company w;.l.., rountl at fault in this ni,c. Section 222 (•f thi;; Workp/(lc<' lfriatim1.1 Acl /9Y7 deals \\ith 1h ft'llll'!di�!-> av\1il�1blc for ,onsi<lt..!ration by tht:: Commis:-.iun if the Cornnfr,sinn is ,atisfied that an employ<'r has unlawfully dismissed an employee. In my l"icw. rdn,,tatemcnt would 1101 he an inappropria1� remedy. The <!viUencl! �ugg�!'>t� lht.1l 1hen.' i:-. an ongoing an<l �erious dispute hclwccn the appli,ant and a number of members of Ll1c Board and of the membership of th� Company ant.I the thil1('Cn grounds dt�d in the letter of 23 JamHll) 1997 to ju,tify the termination or M, Dillon·, rncmber,hip or 1hc Companv suggest, 1ha1 ,my order for reinstat<.:n1..:n1 would simply he unworkable. A<.:t:ortlingly. the Commission 1um:, its mind to an order for thc payment of <:OITI[)cnsation in acconl,mce wi1h ,. 222( I )(b). In urn,idering any such order 1he Conuni,,ion i, bountl by ,ubsec1ion t4J "hich b in the following 1e11n:-.:-- --(4) The <:ommission mu,t not make an rn·dcr under subsection ( I J or (2) unlcs,. rnn sidcring all the ,:irrnm,tancc, of the maucr. it is sati,lied 1he remctly ordered i, appropriate:· Sub,c't:lion (8) of s. 222 provides:- ..(81 In thi, ,ct: tion - "drcumstances·. for an appli(.'.ation alleging Lhe dbrni:-.:--al was har,h. unjust or unrca,,mahlc. include, .. ta) if raised by the employer - the viability of the employer's undertaking. c:--1ablishincnt or scrvit'c if the order were made: and (b) th� length of the employec·s emrloyme111 with the �mpl\>ycr. ·�. Ahhough Ms Wybenga ha, matlc so111e a.,,c11ion, from the bar tabl e about the operations or the Company and it, financial cap:icity I am not satisfied that an award of .:umpensation would havc the cfft:l:t for which she t:ontcnd,. In any cvcn1. I am satislic<l. in all of the c ircumsrnnces of thi, rnaucr. tha1 the remedy 1ha1 I haw ultimately ordered b appropriate. In my vkw. 1hc dcc:i,ion 10 tcnninme Ms Dilk> n\ scn ires was taken without any rt:gard wht.11�<'•1.'!vcr for h�r fundarnemal rights a� an �mployec and witht>ut any cnn,iderminn nr 1hc ohl i[!atiorb which rna) have been on the Colllpan)'. The degree of h,11.,,hncss. unjustness anti unr.:a,onablencss a,sociated with the 1.Crmim11in11 - pa11kularly in ,11<.: h a ,mall community - dkt;itc th,11 an appropriate level nr <.:nrnpensa1ion be awarded to M, Dillon. In all nr the circ·um,1ano.:es. afler full and appropriate consideration of the st ated linanci,11 p,"i1ion or 1hc rmplnyer. anti :,rtcr havint-t considered s. 222( 41. I ha,,e 1-cad1,ed 1he condusi,m 1ha1 :m appropri a1c amount of wmpen,ation Ill t hb t:asc is SS.000.00 net. I n my siew. an ,1 p1)ropria1c time within \\'hid1 l\·1' Dillon coultl hare lx=�n t:xpct.:tcd lt• lind 1\>a:,,on.ihJc ah1:rnatiY..; cmployn1ent would !wvc been not k» 1han thincen week,. Al h,er weekly wage of approxim:uely $370.IKI net. :md allowing for :-.iunc sn1all amou nt <1f co:-.ts a(;!'>Ot:it.itcd with attendafll'e at the hc;,rin�. I ha,\: an-iv.:d .it 1hc amount of $5.(�J0.0O net. Hat! I not been �otl:,..l.'i\)U� of the rinan..;ial pt)si1ion of the employ0r I may hav.: awarded a .,lightly higher amount. in chc order of an addition:il four ,web. hut I beJie1e Lhal 1hc amounl !--O c.lcL..:rmjn..:.·d i� \Ill appro priall! amoonl of comJ)l..!ns.aLion for Ms Dillrn1. pankularly havini: regard to 1hc lln11 , placed upon me by vinuc or,. 22l!4i. h i, my Ot'Jcr 1hat th� amount so detcnnincd i, 10 be paid 10 Ms Dillon i11 fou r �4ual instalmcm, of 5 1 .2:\0.00 fr<:e of t,,x to he paiJ 1111 I June. I July. I August :md I Scp1cmbc·r 199�. respective I) . The Commi:-.:-.ion J�t.l..!rminc,; an<l onk"r-i m.:�on.lingly. A.L. BLOOMFIELD. C,,mmi"ioncr. Mr I. Bud,ky. of 1hc Qu,-cnsl and Scrvi,·c,. lndu,triul L'nion of Employ� for M, /\. Dillllll. :\1, V. Wyt>cnga for Milcs/Chind1illa ;\l'iorig inul Hou,ing Co, npany. 29 May, 1998 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 93 -- 2 of 2 --