Dynevor v Cherbourg Community Council [1995] QIRC 132 (1995) 149 QGIG 275

274 QUEENSLAND GOVERNMENT IND USTRIAL GAZETTE [ 19 Ma y, 1995 19 M ay . 19951 QU EENSLAND GOVERNME NT IND UST RI AL GA ZETTE 275 #########################################Ii## ### ######## QUEl!NSI.AND INDUST RI AL RELATIONS CO MMI SS ION lndusmal Rela11on.r Act I 990 s 295 application for reinstatement Jarrett 1 ro) Dy ne vor AND Chcrhourg Community Council f.\o . IJY(J(I of J 99.S) ('O .\1Ml 'NI TY POLl ('E (,\BOJUGI NA L AND I . LA;\)) CO\1.\11' '\' I TI ES A'\'0 LOCA i. ArT IIORITll:: S) \\ A RD - TAT!:: CO MM ISS IONER llFCIILY 9 May 1995 rcrminatinn of hnployrnent Disrnis;al Re instntcmem - l klrn v iour - Coun se ll in g - Suspe nsion - D isc iplinary Action - Distingui,tung Feature~ of a11 Ahoriginal C'ommuni tv Council - ,\ hem ate I rnploymcnt Offered I crmination "as no; l,'n)a\\ fol - Apphca11011 Refused DECISION .\1r Jdrrcu D)nC\or \\35 emplo)ed by the ( 'herbourg Communit) Co unc il us n Community Police Officer fr om 16 February 1993 10 16 August 1994 His cmplo)mcnt 1\a; terminated b} the Council on 16 August I 994. 1h c reaso n given being "because of pa st com plaint s and your n;ccnt behaviour. which is seen a~ detrimental to t he position which ~ou holtl .. 15054_1 DOC -- 1 of 2 -- 27 6 QUEENSLAND GOVERNMENT IN DUSTRIAL GAZETTE [19 May,1995 The Council provided material to suppon its position through evidence from Mr Colin Purcell, Deputy Chairman of the Che rbourg Community Council. Mr Purce ll also ho lds the position of Co- ordinator of the Council' s legal se rvice. The evidence went to previous counselling and suspension from dutv of Mr Dynevor by t he Council. comp laints about his behaviour as ;n aboriginal Community Police Officer and complaints about his behaviour when off duty. Evidence of support for Mr Dynevor was drawn from Mr Leslie Charles Stewart M.B.E. Mr Stewart, until recently, had been a member of the Cherbourg Community Council fo r twenty-seven years. including fifteen years as Cha irman. A number of issues arise out of this mailer which distinguish ii from what cou ld be referred lo as normal proceedings und er the current Legislation. Both Mr Stewart and Mr Purcell. but more particu larly Mr Purcell, have proposed to the Commission tliat there are distinguishing features in an aboriginal Community Council which shou ld be taken into account when dealing with t he matter. These include the different method of functioning of a Community Council as against the method of operation of a non- aboriginal Local Government Council: the d ifferent expecta ti ons 1ha1 conslituent.5 have of a Community Council as against a non- aboriginal Local Government Council: and the regard that constituents expect council lors 10 give 10 verbal communication rather Lhan ¼'Tinen communication. A further issue which has p laced a cloud over some of the evidence given is the fact that there appears 10 have been a recent substantial change in the make- up of the Council and there is a significant degree of antipath y between Messrs Stewarl and Purce ll as 10 the standing of the past and prcse111 Counci ls. Mr Stewart appears to have very low regard for the present Council and in his evidence stated that '' the Council is the biggest lawbreaker there, you know, al the present time, and, mailer of fact, I even wrote to the Go vernor recommending they invest igate Cherbourg, you know" (transcript p. 16) and .. Well. you know. like I sav. I - I think the present Council is - need 10 be investigated , y~u know. concerning money and things like that and . (transcript p. I 8). On the other hand Mr Purcell seems to have the sam e low regard for the previous Council under Mr St ewart' s Chairn1anship. Alp . 38 of the transcript he states "Sir, I - I will say this to you, and I'll say it 10 this Commission, and I'll - I'll say it to Satan if I 'vc got to, that the previous Council's a very weak Council. The majority of that Counci l's a very weak Counc il. It 's totally - ifs far the difference - there's a big difference between that Council and this Council.". During his emp loyment as a Comm unity Police Officer Mr Dynevor has been counselled and d isc iplined on a number of occasions. Just three months a~er commencing employment he was suspended from duty from I O to 18 Ma y I 99 3 for unaccep table behaviour and unauthorised absence from dut y. He was later suspended by the Council from 2 to 16 November I 993 fo r misconduct. TI1e leller infonning Mr Dyncvor of the November suspension also conveyed the advice that the mauer would be discussed al the next fu ll Council meeting. By leuer dated 29 November 1993 from Senior Sergeant Robert Bond, Officer-in-Charge of the Community Police, addressed to the Chairman of the Cherbourg Community Council, further issues regarding Mr Dynevor's conduct were raised. These included further unauthorised absences from duty on 26 , 2 7. 28 and 29 November 1993. be ing seen with young females in the pol ice vehicle at the local tip with a canon of beer and his setti ng a bad example for younger members of the Community Po lice Force. The letter also refers to previous counselling given to Mr Dynevor over the issue of young females in the po lice vehicle. Two subsequent matters regarding Mr Dynevor's conduct were raised. these being a use of excessive force and rough handli ng a minor under the influence of alcohol in January 1994 and an assault on Mr Dynevo r's de facto wife by hitting her on the head with two "Stubbics'' in August 1994. It is th is last incident which was the cata lyst for the Council's action in tenninating Mr Dynevor' s emp loyment. I have been urged by Mr Purcell 10 take into account the differences between Aboriginal and European co mmunities particularly with regard to verba l rather than written communication from members of the community 10 Council members and the expectation that such communication will be respected as being truthful and upon which the Council should act. I have considered this request but, although some regard shou ld be had 10 aboriginal customs, I must act in a manner wh ich ensures that a d ismissed emp loyee receives fair treatment and, in particular. is given an opportunity to respond 10 any allegations made against him or her and 10 confront those making such allegations. I would 1101 regard as acceptable any "custom'' which might be seen to follow a change in a Council where appointees of a previous Counc il are 1crn1inated hecause they do not belong to the same group as the new Council. I was informed during these proceedings that a new Council was elected in early 1995 and that "Che rbourg docs differ from some of the other Community Councils because a lot of the other Community Councils were based around one tribe or one clan where Cherbourg itse lf is a co llection of different groups .' ·. The evidence before me does no t suggest Mr Dynevor 's termination is the result of a differen t group being e lected to the Council, although it was pointed out to me t hat the victim of the assault about the head with two "stubbies" was the niece of the Chairman of 1he Counci l. a Mr Bone. However. Mr Bone was a member of the previous Council , and ii appears was well aware of and sup portive of the approach adopted by the Council to previous complaints as to Mr Dynevor's behaviour. While a number of comp laints regarding Mr Dyn evor ·s behaviour since the new Council was elected earlier this year may not havo;: been in writing and while ¼T itten evidence of counselling in that per iod may not be available, there has been presented in evidence wriuen material regarding earlier disciplinary action for quite serious a llegations against Mr Dynevor. Nothing has been put which mi ght suggest that Mr Dynevor was not afforded appropriate opportunity to defend himself against any of the charges involved at the time. As to the most recent matter, the evidence is that Mr Dynevor attended the Council meeting on the day that consideration was given to the complaint against him and t ha t he did not attempt 10 deny any of the allegations made again st him. The Council has used two periods of suspension for misconduct by Mr Dynevor. This seems to have had little effect on Mr Oynevor because he again absented himself from duty for a number of days shortly after tl1e last suspension. 15054_ 1. DOC 19 May, 1995J QUEENSLAND GOVERNMENT INDUSTRIAL GAZET TE 277 In the circumstances of this part icular matter I am prepared to accept the evidence of Mr Purcell that there were further incidents of inappropriate action by Mr Oynevor although there is no written material 10 su pport these complaints. Howeve r, such evidence would not nonnally have been regarded as being sufficien t or acceptable in the absence of \\-Titten or ot her supporting material relating 10 earlier matters dealt wi th by the Council. The incident which precipitated Mr Dynevor' s termination apparently occurred out of working hours in the residence shared with h is de facto wife. The material before me ind icates that a restraining order against Mr Oynevor has been obtained by his partner. Is it appropriate that such an incident be taken imo account in determ ining the employment of the applicant? Evidence going to thi s point was drawn from both Mr Stewart and Mr Purce ll. Mr Stewart was presented as a person with a great dea l of knowledge and experience in running a Community Council and managing th e affairs of the Community and also as a pe rson who is highly regarded at both local and government levels. Although he gave evidence in support of Mr Dynevor 's applica ti on he did. in res ponse lo a question from Mr Vincent, indicate in the following extract from transcript that it was necessary for Community Police Officers to abide by the law and set an example 10 the community:- "lf I could just go back to - you spoke a liule bit about it, about the role or the community policeman. My understanding is there 's a need for the community pol ic~ to upho ld the law? - Yeah. Would you also agree there 's a need for the community po li ce to abide by t.he law? - Oh yeah. Yeah. we ll. that ;s why we got the European police there, you know. He' s - he 's there to look after our boys, see that they do the right thing concerning law and -· -· · ··· Yes. Would you agree there's a need for the community po lice to set an examp le 10 the community'> - Oh definitely. yeah. I think anybody, even the elders, you know , anybody - anybody should show a example 10 the younger generation and - and I think that's the role of anybody . So ii would follow that, if Mr Dynevor had not been abiding by the law, that he would be setting a bad example? - Oh, that appl ies to anybody. Yeah, you know--·-···" (transcri pt p. 18). A similar attitude was adopted by Mr Purcell who gave evidence against Mr Dynevor for the Council and the applicant himsel f acknowledged the necessity for a Community Policeman 10 set an examp le to the commun ity (transcript p. 9) . Such an incident in isolation mav not warrant the severitv of lhe action taken in this instance but whe~ combined with the evidence of earlier counse ll ing and suspension and one f~rther matter, raised by the Council during the hearing, does, in my mind , provide a reasonable basis for termination. The further matter re fe rred 10 above relates 10 a complaint that early in his emp loymen t Mr Dynevor, un invited, entered the home of an e lderly coup le. assaulted and abused them, ate their meal and thr ea tened to lock them up and bash thern up j f they reported anything. In earlier times the traditional punishment for such an action would have been ban ishment from the tribe, according 10 Mr Purcell. It appears that this matter was referred to the Criminal Justice ~ommiss ion but no action has been taken against Mr Dynevor. No further information was available to the Commission with regard to this complaint but I act on the understanding that there is some basis of foci in the complaint as no evidence was sought from the applicant 10 deny the allegatio ns made. However, I have regarded this incident as peripheral rather than pivotal in the decision I now make . Mr Dynevor has acknowledged the suspensions and the offences referred to in the letters of suspension. It would appear from the evidence that reasonable opportunity was given to him to respond to the comp laints made through his attendan ce at Council meetings when the complaints were discussed. I find that Mr Oynevor has been given several opportunities to rcfo1m and that the termination of his employment by the Council was not unlawful. Although Mr Dynevor was dismissed as a Communi ty Police Otlicer I was infonned that employment will be offered 10 him by the Council in another capacity under the Community Development Employmenl Programme at Cherbourg. While this offer of employment, which has already been made to Mr Dynevor, may not entirely be to his liking it is recommended that he take it up to assist his rehabilitation into the community. I decline to make any orders as sought by this application. RE. BECHLY , Commissioner. Appearances: ••· Mr M. Vining for The Australian Workers' Union of Employees, Queensland on behalf of the applicant. Mr A. Vin ce nt fo r the Local Government A ssociation of Queensland (Incorporated) on behalf of Cherbourg Community Counci I. Operative Date: NIA Decision - Re instat ement Released: 9 May I 995 ####################################################### 15054_1.DOC: -- 2 of 2 --