15 minute read
A New Way of Doing Things
A NEW WAY OF DOING THINGS - A WHOLE NEW SET OF RULES
by Christina Turner, Director, Cox Turner and Associates
Advertisement
In a world of constantly changing legislation in relation to the workplace, there has always seemed to be a set of clear principles or rules which have guided us when making complex and difficult decisions in relation to staffing issues. Most of those principles have been with us for generations and indeed are across the entire workplace scene in Australia. Principles such as "its an employer's right to sack those staff who drink or fight in the workplaces" and "it's an employer's right to sack those staff who steal from us" are typical. Those principles, and the principle that an employer has the right to hire and dispense with labour as he/she sees fit, have been derived from Common Law and have until the last few years in Australia formed a large basis of our employment law. They have also been the guiding principles by which we have made human resource management decisions and framed our employment policies and procedures. We have traditionally classed actions of theft, drunkenness, and fighting as "gross misconduct" and accordingly our policies have reflected that
summary dismissal is the appropriate course of action to deal with such incidents. Terminating the services of employees who steal from their employers either by way of theft of cash, fraud or pilfering of stock or materials has been as common to our large corporates as it has been to the corner milkbar. These rights to dismiss workers in such situations have been rarely challenged by workers or their
industrial representatives, indeed the vast majority of decisions arising from the industrial relations commissions throughout Australia have enforced the concept. However with the advent of the procedurally fair to the employee * that the employee has had ample time to answer allegations and present his/her defence or explanation * that the punishment "fits the crime"
Federal Industrial Relations Reform Act of 1993 and the corresponding amendments to the state legislation in Queensland, we are beginning to see from Commission decisions relating to unfair dismissals, that the traditional common law principles and rights of the employer are
changing to reflect a greater burden of proof on the employer to take into account a new set of principles and concepts when contemplating
termination of employment. These principles and concepts are also
derived from common law and indeed "natural justice" and can sometimes appear on the surface to be in contrast to other common law rights and principles. This apparent conflict can be demonstrated most in the area of summary dismissal. Whilst the employer's right to
summarily dismiss still applies, the actions by the employer leading up to such a dismissal and the context of the employee's actions, are crucial in determining the fairness of such a dismissal. The changing burden of proof for employers in relation to traditional summary dismissals includes an obligation to prove: * that a thorough investigation has been conducted * that the investigation observed "due process" and was
Employers' failure to demonstrate the above has been responsible for a large number of reinstatements and compensation decisions by the Commission which have recently received lengthy media coverage in Queensland. In a recently reported case before Commissioner Bougoure, an ex -employee of a small cafe in Surfers Paradise was awarded
$41,000 for unfair dismissal, when he was dismissed after allegedly stealing money in the course of managing the cafe business. It was clear that in their determination to dismiss the
employee, the cafe did not conduct a full and thorough investigation and failed to take into account the story provided by the employee. In his written judgement, Commissioner Bougoure said that there were exceptional circumstances and that it was unnecessary for him to make a specific finding on whether the employee had actually stolen the money. He said, "in my view, even if a person is technically guilty of stealing, that does not necessarily justify a dismissal in all cases". To surmise however that it is now not possible to terminate the services of employees who are guilty of gross misconduct, or that the rights of employers have now been diminished, would not in my view, be a fair or accurate judgement of the current industrial labour laws. Of more accuracy, would be to state that current industrial relations legislation reflects a need for a greater recognition of the principles of due process and natural justice in
termination of employment actions generally, and a shift in the burden of proof for employers to implement procedures and processes which can demonstrate procedural fairness and the consideration of all the relevant circumstances surrounding a
dismissal. Employers seeking to ensure that they can demonstrate procedural fairness in the event of a claim for unfair dismissal should consider the
following * the appointment of an independent and trained
investigator to investigate serious allegations of misconduct such as theft, fighting, or sexual harassment * the development of clear and unambiguous procedures for
internal investigations * the inclusion of the accused employee in all aspects of the investigation and decision making process (including making specific allegations and allowing input as to penalty) * clear documentation recording all aspects of the investigation And above all, when in doubt as to whether to dismiss, employers should ask the questions: "could this investigation be considered a judicial evaluation of proven facts?" and "is dismissal a reasonable and proportionate response in the circumstances?"
INTERLOCK
FREE, CONFIDENTIAL, PROFESSIONAL
HELP WITH YOUR PERSONAL, SOCIAL, OR WORK PROBLEMS.
Interlock is an Employee Assistance Program, which provides help to workers in the form of Councelling. All Interlock Counellors are trained and experienced in dealing with a broad range of problems that you may face at work or in your personal life.
Interlock Brisbane Interlock Townsville
Ph: (07) 221 5355
Fax: (07) 221 2481
South of Mackay: North of Mackay:
Ph: (077) 71 5253 Fax: (077) 71 5022 All other areas:
1-800 172 069
1-800 019 037
John Kleem El A In
IA 111 ILI CONSULTING
68 Ellalong Road Cremore NSW Australia 2090
Corporate Planning Organisation Reviews Professional Development Culture Analysis Productivity Schemes Award Restructuring Facilitation Recruitment
If you want theory and practice together contact the Local government specialist John Kleem
Telephone: 02 908 4845
Fax: 02 908 1157
RON IRVINE - A QUIET ACHIEVER
by Doug Tucker, University of Queensland
An interesting but largely unexplained fact of municipal
management in Queensland is that a small number of councils seem to serve as training grounds for a substantial number of senior
municipal managers! Dalby town council comes to mind as one of these, and why this is so is not easy to explain. Brisbane City Council (BCC) is another, which is readily accounted for by its size. During the 1950s to the 1970s, a group of three future chief executive officers were moving up the ladder in the BCC's Department of City Administration: Ivan Fien led the way, with Ron Irvine a couple of years behind, and the youngest of the group, Terry Moore, a lap behind him. The trio were friends at work and out of hours as well, and they stayed in contact long after all had left Brisbane City.
Ron was born at Lismore in March, 1938 and was educated in the Northern Rivers District of New South Wales at Lismore, Byron Bay and Mullumbimby to Leaving Certificate (senior) level. Moving to Ipswich with his parents in 1953, he began his career in local government in April, 1955 when appointed to the BCC as junior clerical officer in the Department of City Administration, central records section - an excellent place to begin an administrative
career.
At the age of 25 years Ron got married, and from this time career advancement moves began to occur at regular intervals. The first was a transfer to the subdivision and Town Planning Section of the Department of Town Planning and Building, which not only broadened his experience and understanding of
BCC responsibilities, but turned out to be relevant to his duties at a later stage in his time with the BCC. of consideration given to the likely political effect that could result from a change of zoning in the review of the town plan. This was due to the fact that the change of zoning could result in an alteration in the demographic composition of the area, with consequent changes in probable voting preferences. In the meantime, Ron was successful in obtaining the Local Government Clerk's Certificate in 1969.
After 18 months he was promoted back to the central records section as the records clerk, where he spent two years or so before his next promotion as correspondence clerk in the Town Clerk's Branch, Department of City Administration. There his duties entailed preparing and ensuring the dispatch of all correspondence arising from the meetings of the full council. By this time Ron could see a career in local government beckoning and like his friend Ivan Fien was studying for the local government certificate.
In May 1968, Ron was promoted to the vacancy of committee clerk no. 3, also within the Town Clerk's Branch of the Department of City
Administration. Part of the role of the occupant of this position was to act as secretary to the Planning Advisory Committee, chaired by the Lord
Mayor, Alderman Clem Jones. Other members were Sir David Muir, Sir Jack Egerton, Sir Arthur Petfield, Mr Ron Riddel, and the Vice Mayor Alderman Cliff Greenfield. The first review of the City of Brisbane Town Plan was undertaken during Ron Irvine's time in this position. Many meetings of the Planning Advisory Committee would continue until
around midnight and even 1.00 a.m. when dealing with the review. Ron was surprised to discover the extent Ron's next move was to the position of committee clerk no. 2 around February 1970. His role in this position was to attend meetings of the aldermanic standing committees and all meetings of the full council. The town clerk and city administrator, Tom McAulay, did not normally attend these meetings and committee clerks 1 and 2 therefore represented the town clerk in this regard.
From August 1970 until his
resignation from the BCC in August 1972, Ron held the position of secretary of the BCC's Administration Board. This was a board of officers whose role was to furnish recommendations to the full council through the Finance Committee and the Establishment and Co-ordination Committee on such matters as acquisition of property, sale and lease of BCC property, compensation claims
against the BCC, provision of street lighting, and extension of electricity supply (the BCC was at this time responsible for reticulating electricity throughout the City of Brisbane.)
Ron's final 12 months with the BCC were times of considerable upheaval at the top of the administrative
organisation. Deputy town clerk Ian Hawes was at the centre of the controversy, having refused to
comply with an instruction to dismiss
a council draftsman, John Goss,' for handing out how -to -vote cards for the Citizens Municipal Organisation candidate in the by-election in the BCC ward, Nundah in 1971 -
something which mightily displeased the Jones Labor administration. As a consequence of this refusal, Hawes himself came under threat of dismissal, whereupon Town Clerk McAulay protected his deputy by threatening to resign if the dismissal of Hawes proceeded. The media then reported that Lord Mayor Jones was attempting to mobilise support for a motion to dismiss McAulay - something which only the full council could do. Strong aldermanic support for the embattled town clerk prevented this, however, but a breakdown in relationships between the lord mayor on the one hand and the town clerk and deputy town clerk was subsequently reported in the press.
By this time, the Jones administration was viewing the senior BCC officials in the Town Clerk's Branch with some suspicion and classifying them as "pro -Labor administration" or "anti -Labor administration"
functionaries. As mentioned in an earlier article on Ivan Fien's career2, Ivan soon recognised that the Labor administration saw him as an ally of McAulay and Hawes, despite his non- involvement in the drama.
In similar vein, Ron Irvine discovered that the Labor administration quite incorrectly believed that he was a member of a suburban branch of the Liberal Party - an alleged association which formed the basis for the Labor Administration's cancelling his membership of the BCC
Administration Board (although he retained his role of secretary). Ron's cause was not assisted when a well- meaning and ill -formed non -Labor BCC alderman, Barrie Gainford (CMO, Ithaca), rose in the council chamber and attacked the Labor administration for victimising an officer purely on the basis of his party political affiliation - an affiliation which in fact did not exist!
Just as Ivan Fien saw the writing on the wall and departed to Redcliffe
City Council as Deputy Town Clerk in June, 1972, his friend and
colleague Ron Irvine followed suit two months later to take up an
appointment as Deputy Town Clerk in Gympie in August 1972. Both men considered the grounding they received at the BCC in municipal management very good: they had also seen at close quarters how hard the game could be played in Brisbane!
Ron, now the father of a three-year old daughter and a baby son, spent the next seven years in a much smaller setting when the local government experience gained was much broader and closer to the
workface than he could have gained by remaining in Brisbane. The
atmosphere, too, was more relaxed. The seven years spent as Deputy Town Clerk, Gympie City, were an excellent preparation for advancement as Town Clerk - his
final career move in local government which was made in November, 1979, when his predecessor, Perry Landy, resigned to take up a local government appointment in New
South Wales.
During Ron's service with Gympie City Council, he was instrumental in introducing computerisation, first with a computer bureau service for rating, and later with an 'in house' installation covering all accounting and financial systems. He also redrafted the Council's
Administration By-law to introduce more modern committee and council meeting procedures. More modern office and records equipment and systems were also introduced, including dictaphones, calculators, photocopiers and the like.
The Civic Centre and the Senior Citizens Centre were both constructed during Ron's time at Gympie. In addition, a joint library service with Widgee Shire was established. A somewhat controversial boundary change
between Gympie City and Widgee Shire was made, which slightly expanded the City area. Major
reconstruction and beautification of Mary Street in Gympie's CBD led the Council to introduce a coupon
regulated parking system rather than disfigure the beautified street with parking meters. The coupon system was maligned by some very vocal critics, but its success elsewhere convinced the Council to persevere with it, and it is still in operation five years later.
Whilst at Gympie, Ron became very active in the IMM and in 1984 he joined with Dan Philpot (the Noosa Shire Clerk) and John Cuddihy (then Kilkivan Shire Clerk) in forming the South East Queensland Branch of the Queensland Division of the IMM, which covered nine cities and 30 shires. Ron was elected President of the Branch at its second annual meeting at Caloundra in 1985. In 1982 Ron became a Councillor in the Queensland Divisional Council of the Institute and retained office as a Divisional Councillor for nine years until 1991.
In all, Ron was Town Clerk at Gympie for 14 years until his local government service came to an end with the amalgamation of Widgee Shire and Gympie City to form the new Cooloola Shire in 1993. He served with two mayors in that
period, Alderman Mick Venardos and Alderman Joan Dodt, and enjoyed excellent relations with both of them. With the merger about to become a reality, the Gympie City Council approved a termination payment to Ron in excess of two years' salary. This in turn led Housing Local Government and Planning Minister Terry Mackenroth, apparently indignant about the Council's "ill- conceived" generosity with public moneys, to include in the relevant regulation a limit in the payouts to officers retiring as a result of amalgamation, of one year's salary
only.3
In retirement, Ron and his wife are playing golf at Mount Coolum on three days a week giving their services voluntarily to "Meals on Wheels", and doing some travelling in South-east Asia and in the Pacific (Norfolk Island, New Zealand). They are now the proud grandparents of a grand -daughter born in April 1994. After giving excellent service to local
government, Ron and his wife have obviously made a promising start to what will hopefully be very many years of happy retirement. 1. John Goss later became a Brisbane City Council alderman, and subsequently the Liberal Member of the Legislative Assembly for the (state) seat of Aspley.
2. See Vol 5, No 2 of this journal, pp. 10-12.
3. Quite apart from the fact that the regulation constitutes an unnecessary invasion of local government
autonomy, the irony of the Minister's action would not have been lost on those who followed the so-called "parliamentary travel rorts" affair.
I141V11
CONTRIBUTIONS WELCOME!
The Editor seeks your assistance to make Municipal Manager an interesting, informative and entertaining publication. He requests news items, personal
profiles, or other stories of the kind YOU would enjoy reading.
Send contributions to:
Gary Kellar c/- PO Box 226 WOODRIDGE, Qld, 4114.
Deadline for the March issue is February 15.
Contributions for Des's Diary should be phoned through to Des's Secretary, Linda, by phone (07) 280 9219, or posted to Des Smallwood, c/- Ipswich City Council.
MEMBERS' PROFESSIONAL DEVELOPMENT RECOGNISED
At the recent Divisional Conference the opportunity was taken to publicly recognise those members who are actively involved in professional development pursuits. Some twenty members qualified for the issue of Professional Development Certificates: Richard Brittain Vincent Corbin Barry Evans Greg Hallam Daryl Hitzman Robert Holmes Graeme Kanofski Alan Lambert Malcolm McCallum Terry Moore John Oberhardt Andrew O'Brien Terence Pailthorpe Wayne Saxvik Lester Schumacher Spencer Slatter Paul Smith Ian Stevenson Dermaid Stower John Torpy
MANAGEMENT DEVELOPMENT PROGRAM DIPLOMA:
It was with much pleasure that presentation was made of a Management Development Diploma to John Hooper (CEO of Banana Shire) in recognition of his completing the program. Although the Program has suffered some setbacks as a result of the restructuring of the Local Government Training Council in Queensland, the IMm and the LGAQ are keen to see its retention and further promotion. The program provides a valuable reintroduction to formal studies for many managers who have been "away from the books" for some time.
BRUCE EDMONDS (right)( 1MM representative on the Local Government Training Council) presents JOHN HOOPER with his Management Development Program Diploma.
