Kevin Boland and Maningrida Council [1995] IRCA 429

INDUSTRIAL RELATIONS COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY No DI 94/159 BETWEEN: Kevin BOLAND Applicant AND: MANINGRIDA COUNCIL Respondent PLACE: DARWIN DATE: 1 SEPTEMBER 1995 BEFORE: TOMLINSON JR Revised Reasons for decision delivered Ex-Tempore This matter of Kevin Boland and Maningrida Shire Council was heard in Darwin on 8, 9, 10, 14, 15, 16 and 17 August. The reasons for this decision are delivered ex tempore. By application dated 26 September 1994, the applicant Kevin Boland sought reinstatement and compensation from the respondent. I have considered the matters in detail. I note the submission of Mr Kilvington that he would urge me not to hand my reasons down ex tempore. I have reached a conclusion and I think it is fair to the parties concerned that as soon as that is done that I advise them.

Later that was changed to seek compensation only. By affidavit provided under the rules of court, the applicant stated he was employed as a bank officer under an enterprise agreement being the Remote Communities Local Government (Northern Territory) Award 1989. The work commencement date was stated as being 1986, but in oral evidence the applicant told the court he began work in either 1989 or 1990. The date of termination was stated as being 23 September 1994 and the reason given by the respondent for dismissing the employee was gross neglect of duty.

By affidavit dated 12 October 1994, Martin Louis Blandy on behalf of the respondent stated the reason for the respondent's decision to terminate the employee's employment was based on capacity and/or conduct. The argument outlined that there existed an adequate alternate remedy was not put to the court in the course of these proceedings. A chronology filed by the respondent on 14 June 1994 stated the facts as being:

March 1, 1990. Kevin Boland the applicant commences employment as a bank clerk.

24 January, 1992. The applicant is dismissed summarily from his position as bank clerk on the basis of his failure to adequately provide training to Aboriginal employees under his supervision, his use of abusive language, and lack of co-operation in dealing with his employers.

18 February 1992. Commissioner Hoffman of the Industrial Relations Commission provides directions in relation to the application by Mr Boland against his dismissal.

19 February 1992. Maningrida Council voted to reinstate Mr Boland upon Mr Boland's undertaking to respect Council decisions, to follow all directions given to him by the town clerk [sic], to withdraw his court proceedings and to apologise to the Council president. He also agreed to take leave without pay until the town clerk was able to re-organise the banking system so the bank could be re-opened.

26 February 1992. Mr Boland and the Council clerk sign a reinstatement agreement containing additional terms of work performance.

3 March 1993. Employment agreement is signed by the applicant and Council for further two year contract which commenced on 1 March 1993 and to cease on 28 February 1995.

July 1994. Bank staff introduce a reliable system of reconciling the trade in the bank each day.

12 August 1994. $40,000 in cash is delivered to the bank at Maningrida in a sealed box. Mr Boland had charge of the keys to the bank and of the safe over the week-end. Mr Boland left early on Friday afternoon without properly reconciling the cash count.

15 August 1994. The Council clerk, Allan Clough was advised that $5000 was missing from the moneys delivered on Friday, 12 August 1994. This was discovered after the Monday morning cash count was completed.

16 August 1994. Mr Boland advised Mr Clough that he took delivery of the cash and commenced counting it at 1 pm on Friday. He further advised Mr Clough that between 1.20 pm and 2 pm on 12 August 1994 he left the bank premises taking the bundle of money with him. Mr Boland was unable to recall why he left the bank with the money. Mr Clough directed Mal Fraser, the accountant, to report the matter of the missing cash to the police. Mr Clough later spoke to Constable Taylor who told him that Mr Boland had not mentioned leaving the bank and taking the money with him.

17 August 1994. Mr Clough spoke again with Mr Boland about the missing money. Mr Boland stated he had been feeling for some time that the bank job was beyond him and that he had been considering not renewing his contract of employment. He also stated he would not be surprised if he lost his job over the missing money. He stated that he accepted for some time that Mr Clough had encouraged him to undertake further training to improve his skills and he now regretted he failed to undertake that training. Mr Clough asked Mr Boland if he had told the police about leaving the bank with the $40,000. Mr Boland said, yes, he had told the police this. As this last answer conflicted with information received by the police, Mr Clough asked Mr Boland to take two days special leave whilst he considered the situation and sought advice.

17 August 1994. Mr Clough expressed concerns to Superintendent Owen that the police investigation may be compromised by the close friendship between Constable Taylor and Mr Boland.

19 August 1994. Mr Clough advised Mr Boland that he should work under Mr Fraser's direction in the workshop yard whilst he continued to seek advice on the matter of the missing moneys.

13 September 1994. Discussion between Allan Clough, Kevin Boland, Reggie Wuridjal, Council president, and Milak Winunguj, Council member, to give Kevin Boland an opportunity to tell his side of the story. Mr Boland again indicated the loss of money was his responsibility and he did not have the requisite skills to do the jobs properly. And if the Council decided to dismiss him, he would accept that decision.

15 September 1994. Mr Clough writes to the President of Maningrida Council outlining his concern at Mr Boland's actions in leaving the bank carrying $40,000 in cash and outlining alternative disciplinary procedures.

21 September 1994. Auditor's report confirms a sum of $5000 went missing between 11 August 1994 and 15 August 1994.

26 September 1994. Letter to Kevin Boland advising the Council had decided to terminate his employment from the Council president. Letter from Allan Clough to Kevin Boland advising that although grounds existed for summary dismissal on the basis of inefficiency and neglect of duty, he would be given four weeks notice to take effect from 21 October 1994 based on the discussion held with Kevin Boland earlier that day about the Council's decision and Mr Boland's response. Kevin Boland lodges an application for unfair dismissal pursuant to 170EA of the Industrial Relations Act.

The chronology continued with nothing of importance to this decision. On behalf of the applicant the following chronology was filed:

March 1990. Mr Boland commences work with Maningrida Council as a bank clerk.

Late 1990. Mr Boland introduces procedures and systems to tighten up the Council's banking system despite the opposition of John Hart, the Council clerk. Mr Boland commenced a system of cash reconciliations. Mr Boland is very successful in recovering most of the debts due on overdrawn accounts. Mr Boland stops problems associated with misappropriation of moneys.

1992. Mr Boland is dismissed for allegedly showing disrespect to Council members. Mr Boland strenuously denies all the allegations and is eventually reinstated with no loss of entitlements or pay. During the course of the industrial dispute surrounding Mr Boland's dismissal, Mr Clough becomes Council clerk. Mr Clough appears at the conciliation conference in early 1992 re the industrial dispute in Maningrida. Mr Boland continues to run the Council's bank and its banking services. The bank has inadequate control systems in place, there are problems with staff discipline.

Late 1992. Number of transactions made at the bank begins to increase dramatically. No increase in staff occurs.

1993 to late 1993. The bank takes over the responsibility for running the post office. The bank is further given the function of Air North in assisting people with their travel. The air travel responsibilities fall to Mr Boland to organise as to most of the post office duties.

1993. The bank is appointed agent for Power and Water Authority when that Authority introduced billing to the - I think it should be direct billing to the community.

Late 1993 to early 1994. Council clerk employs someone to design and implement a new computer system which is intended to reduce the amount of manual handling at the bank to make imprest accounts and reconciliations quicker to do.

Early 1994. The bank becomes agent for Telecom. No increase in number of staff occurs.

Early 1994. Mr Boland asked for a secretary who can input data and do less demanding tasks to free Mr Boland to do the more complex tasks associated with the bank. No additional staff is provided.

Early 1994. Implementation of computer systems turns out to be a disaster.

Early August 1994. System to reconcile amounts of cash received and paid out is re-established.

Friday, 12 August 1994. $40,000 arrives in cash in a security sealed mail bag from Westpac by aeroplane.

Approximately 11 am, Friday 12 August 1994. Mr Boland takes delivery of a bag containing $40,000 and the money is put in the strong room.

Lunch time. Mr Boland locks the strong room before going home for lunch.

PM, 12 August 1994. Mr Boland returns from lunch and opens the bag containing the money. While counting the money there are repeated interruptions by unauthorised people in the bank. While counting the money, Mr Boland sees another Council employee with whom he needs to speak and Mr Boland puts all of the money back in the box, tucks it under his arm and speaks to this employee about 30 metres from the bank. Mr Boland then returns directly to the bank. Mr Boland finishes counting the money and verifies there is $40,000 in the bag. Two other bank officers also count and certify there is $40,000. The money is then counted by another employee as it is put into the safe and it is verified in the cash control book that $40,000 has been put into the safe. Mr Boland locks the safe.

Monday, 15 August 1994 Mr Boland locks the safe.

Monday, 15 August 1994 Mr Boland conducts a cash reconciliation and Mr Boland's reconciliation reveals there is an approximate $5000 short in cash on hand. The Council clerk is informed there is a shortfall of about $5000.

Tuesday, 16 August 1994. A meeting is held between all those staff present in the bank on Monday.

Wednesday, 17 August 1994. Mr Clough asked Mr Boland some questions which indicate Mr Clough believes Mr Boland has stolen the missing money. The matter is subsequently investigated by the police. Mr Clough threatens civil and criminal proceedings. Mr Clough tells Mr Boland to hand in his keys and not to come back to work until he has been told to.

Approximately 24 August 1994. Mr Clough directs Mr Boland to attend the Council workshop not the bank. He is not given any particular work to do.

23 September 1994. Mr Clough tells Mr Boland he will be dismissed.

26 September 1994. Mr Boland is dismissed.

At the hearing of the matter on 8 August 1995, Mr Kilvington on behalf of the applicant, stated the pleadings put in the case of the applicant comprise the application, the affidavit of the respondent in its defence filed 12 October 1994, and a letter showing income details of the applicant marked as exhibit 1 in these proceedings and dated 2 August 1995. The applicant further stated the respondent, by notice of motion, would seek to amend its affidavit by inserting the words:

"Inserting the following two paragraphs after the paragraph commencing 21 September 1994.

(1) 23 September 1994. At the Maningrida Council Incorporated meeting of 23 September 1994 a decision is made to dismiss Mr Boland from his position as bank clerk with an adequate period of notice. The decision to dismiss Mr Boland is based on the employee's continued inadequate performance in the position, with particular concern in regard to his actions on 28 August 1995.

(2) Between 26 February 1992 when the respondent signed the reinstatement agreement, and 23 September 1994 the respondent [sic] (i); failed to undertake the appropriate training despite repeated requests from the Council clerk to undertake such training.

(ii); continued to play computer games on the employer's computer during working hours despite repeated requests and warnings from the Council clerk to cease this activity.

(iii); failed to perform on a daily basis the reconciliation of daily business and cash count pursuant to condition 4 of the reinstatement agreement.

(iv); failed to keep cash belonging to his employees within a secure area."

The court was advised this application would be opposed later in proceedings. In his evidence in chief, the applicant stated that Maningrida was in Arnhem Land and that he had married his girlfriend, a nurse, in approximately 1989 and in 1990 he had been advised by the then Council clerk his friend, Mr John Hart, that the position of bank clerk to the Council was to be advertised. At that time a banking service was operated by Westpac out of its Darwin establishment and Westpac apparently employed staff in Darwin to record and monitor the banking transactions performed at the Maningrida Council office.

From time to time Westpac would send an auditor to examine the accounts and apparently prepare reports, and the applicant stated that the visiting accountant found the banking situation to be total chaos. The witness stated he was not aware if Westpac ever made formal written or other representations to the Council members as to the fashion in which banking activities were conducted. The applicant stated that Westpac had been the bankers to the Council for some eight or nine years and ceased their operation some four years ago.

The reason for Westpac ceasing operations was that too many full time staff were needed to be employed back in Darwin to regularise the banking records and that expense could not be justified and the chaotic situation could not properly be coped with. The court heard no evidence from Westpac to substantiate this evidence. The applicant stated he had no formal schooling beyond Year 10, that his date of birth was 15 December 1964, he now being some 30 years of age. The knowledge of the position of bank clerk the applicant learned by trial and error and advised the court that the bank at the Council he estimated would have a turnover of some $7 million per annum and that in some individual weeks banking transactions could be in the vicinity of $100,000 per week.

When the applicant commenced his position he stated there were no proper systems in place and the practice had developed of allowing customers to withdraw money although that customer's account showed a nil balance. This practice had the title of a "book-up." During the first eight months of his time with the bank, the applicant stated, Matters were in disarray and in addition to accounts being overdrawn, there was often cash not accounted for, which simply was acknowledged as "missing." After conversations with the Westpac accountant at Darwin, the applicant instituted procedures whereby delinquent accounts were slowly put back to the correct side of the ledger and outstanding borrowings repaid.

The applicant did this upon learning from Phil Hedger employed at Westpac Darwin, that Council members of the respondent could be personally liable to Westpac for the overdue moneys, some $60,000. As a result, the applicant stated he commenced generating computer print-outs of the state of the accounts and the court was advised that at the time he commenced work there were no procedures and no rules in place relating to the conduct of banking by the respondent Council.

The institution of recovery procedures and refusing to allow "book-ups" according to the applicant, was not without cost to the applicant. A confrontation allegedly took place between the applicant and Mr Milak Winunguj the President of Maningrida Council. It seems the latter demanded a cash advance on a "book-up" basis and the applicant refused to provide it. Mr Winunguj according to the applicant in his evidence in chief, pushed the applicant physically in the bank. The incident occurred on 21 January 1992 and the result allegedly was that the applicant was summarily dismissed.

The applicant stated, although he was friendly towards Mr Winunguj, that friendship was cautious. The applicant brought proceedings for unlawful termination and was subsequently reinstated to his position of bank clerk. The court heard there was another Council member with whom the applicant had personal difficulty. This person the applicant refused to name as he had passed away and the Maningrida people did not speak of the dead in this fashion. The court heard the applicant had five staff under him whose work he supervised and it was often that some of them failed to turn up for work.

The applicant stated it was his practice to borrow a Council vehicle and travel around looking for his staff and to collect them to come to work. In the beginning, reconciliations revealed money to be missing from the bank almost on a daily basis according to the applicant. And he tried to instruct his tellers as to systems and correct methods of accounting. Sometimes up to $1000 per week would be unaccounted for. The counter was only one foot wide in the early stages and the court heard how one customer had managed to steal some of the bank's money using a pointed stick and reaching over the counter. In accordance with his chronology of events the applicant outlined the increasing work load and burgeoning responsibilities placed on him by the respondent. In addition to the Telecom, Power and Water responsibilities, the court heard from the applicant that from September 1992 the applicant became responsible for issuing alcohol permits to residents who were then able to obtain alcohol from the legitimate source.

The applicant estimated that orders for liquor in the vicinity of $11,000 to $12,000 per fortnight would be ordered through the respondent's permit system. The applicant told the court her also assumed responsibility for the post office and for the issuing of airline tickets with Air North. Occasionally, if the demand warranted it the applicant had to arrange for an extra charter flight for council members. Mr John Hart left in early 1992 and the court heard that Mr Allan Clough took over as council clerk and that at that time Mr Clough expressed in the reinstatement of the applicant after the pushing incident with Mr Milak Winunguj.

After the transfer of the post office business to the bank the title of the applicant changed from bank clerk to banking postal manager. The applicant stated he never had a clear job description it simply fell to him to do the extra duties involving the widened scope of operations. However, the fuel dispensing duties and Air North ticketing responsibilities moved from his domain shortly before August 1994.

It was the practice of the applicant as bank clerk to anticipate the cash needs of the community and to order the necessary cash by security post from Westpac Darwin to be flown in in advance to be delivered on Friday, 12 August 1994 the applicant ordered the sum of $40,000 to be delivered to the council; the money was duly delivered in the standard container. The applicant stated that between 1 and 1.30 that day he opened the box in the bank and commenced counting the money. The applicant said there were many interruptions.

During the counting the applicant said he saw Mr Vern Pech outside in the street. Mr Pech had the engineering responsibility for power and water and the applicant stated he needed to speak to Mr Pech concerning a matter involving a community member. The applicant put the money all into the box, closed the lid, tucked it under his arm and went out into the street for some 90 seconds or so, spoke with Mr Pech and returned to the bank. The incident was observed by other people who were apparently aware that what the applicant had under his arm was a large amount of money.

The applicant stated he returned to the bank and the money was then checked by another employee, Michelle Nathan, and a second employee, Patricia Kernan. The witness stated to the court that it was confirmed that there was $30,000 in $50 notes and $10,000 in $20 notes. The witness stated he signed cash book indicating $40,000 was received and presumed that Ms Kernan would also have signed the book. According to the witness the money was put into the safe between 2.15 and 2.30 pm on Friday, 12 August 1994. The applicant stated that during the afternoon's business the tellers ran short of cash. Two of those tellers were Amelia Turner and Natalie Wilson.

The applicant stated he visited the safe and gave each teller the sum of $6500 to carry on with. Those amounts the applicant recorded in the cash book. The applicant told the court that some time prior to this the council clerk, Mr Clough, had commissioned a computer expert to design and install a computerised system for recording transactions and this system was a failure and was not used. The applicant stated that some 10 or so days before 12 August 1994 he had in fact reverted to his old way of reconciling cash in hand and on this particular Friday afternoon that this physical reconciliation was in fact not done either.

The reason for this was that on that particular day the bank was short staffed and there had been an unusually large number of transactions. The applicant took the key to the safe and the key to the bank home with him, this was normal and usual practice. The key hung on a special hook out of sight in the applicant's kitchen. The applicant stated he went away camping for the weekend, however his wife remained at home. The following Monday morning on 15 August 1994 upon reconciling the cash the applicant discovered $5000 was missing. Michelle Nathan confirmed $5000 was missing.

A search of the bank was conducted and the applicant instructed Malcolm Fraser, the accountant to contact Mr Clough. In his evidence the applicant stated it was unusual for money, even up to $1000, to be missing at the end of the day and in this case he thought the tellers may have omitted to include various cheques in the tally sheets. The court heard evidence that on occasion cheques simply blew around in the wind. The implication before the court was that such a thing might have occurred during Friday, 12 August 1994.

The next day, Tuesday, a staff meeting was held and the issue of the missing money discussed. The applicant had two meetings shortly thereafter with Mr Clough. Mr Clough asked the applicant what he thought had happened and it seems the applicant stated he thought he would be dismissed. The applicant stated he felt Mr Clough was of the view he had taken the missing money. The police were informed and statements taken. The applicant told the court no police action has resulted. The applicant was relieved of his banking position for a short time and he had to report to the council workshop. Subsequent meetings occurred.

A letter dated 26 September 1993 noted as exhibit 3 from Allan Clough to the applicant, stated:

At its meeting on Friday, 23 September the Maningrida Council resolved to terminate your employment with this council. The reason for your termination is your gross neglect of your responsibilities leading to the loss of $5000 of council money from our bank. This loss has been confirmed by an independent audit of the books for the period. Clause 43(d) of the Remote Communities Local Government (Northern Territory) Interim Award provides for summary dismissal for inefficiency, neglect of duty and misconduct. However, in view of your family situation, as principal income earner with two dependants I have decided to dismiss you with the notice period appropriate to your length service. The termination becomes effective then on Friday, 21 October 1994. In addition, in accordance with the decision made by Maningrida Council I am seeking advice as to who may seek the recovery of the lost money from you.

Exhibit 4 was a letter also dated 26 September 1994 addressed to applicant signed by Mr Reggie Wuridjal, council president and also on letterhead of Maningrida Council. That letter stated inter alia:

That a meeting held on Friday, 23 September 1994 the Maningrida Council decided to terminate your employment with the council. The reasons for your dismissal have already been explained to you by the council clerk and in my view they are very serious. At the same meeting the council's senior land owners present also decided to terminate your permit to enter and remain on Aboriginal land. Please leave by Friday, 21 October. The senior land owners of Maningrida and the council have made this decision as a group. Please do not attempt to lobby the land owners to support you and your family as you did once before. This kind of lobbying is very disturbing and stressful to them.

Exhibit 5 was the employment agreement dated 3 March 1993 entered into between the applicant and respondent. Clause 7 specifically deals with training programs and provided:

The employee shall be responsible for and carry out such training programs, not inconsistent with the employee's normal duties, for Aboriginals of the council as the council may from time to time direct.

The applicant stated on one occasion during the course of his employment as bank clerk a member from Westpac Darwin telephoned him and advised him that one of the council employees, Ms Sharon Hayes, had telephoned her and requested accounting information concerning five accounts; this information had been provided. Subsequently, five withdrawal slips all in the same handwriting appeared in the Darwin office of Westpac. The applicant, upon request, was supplied with the five slips. The applicant advised the court that at least two of the account holders were absent from Maningrida Community at that time.

The matter was, according to the applicant, discussed with Malcolm Fraser and Allan Clough. Mr Clough allegedly agree a fraud had been committed but directed the applicant to do nothing about it at the time and not to report it to the police. The applicant stated he thought it was possibly the same the person, Ms Hayes, who could have been responsible for the loss of the missing $5000 in August 1994. At the conclusion of his evidence the applicant stated he and his family had left Maningrida and within half an hour of his wife making an appropriate telephone call she had been offered two positions in the capacity of nurse.

The position at Oenpelli was accepted and the applicant stated that due to rumours abroad he felt he had been unsuccessful in obtaining work. The evidence was that wife of the applicant was employed at a greater salary than that earned by the applicant in Maningrida. The applicant now stayed at home and cares for the children of the marriage. On behalf of the applicant it was sought to tender character references obtained by the applicant during 1992 in relation to the earlier termination. Such tender was disallowed on the basis the documents were not relevant to proceedings.

During the course of the hearing of this claim the applicant told the court he was currently enrolled in a course at Adelaide University concerning accounting and was able to do this whilst he minded the children at home. Under cross-examination the applicant was shown the cash control book admitted into evidence as exhibit C. That exhibit established that no one else apart from the applicant verified the receipt of $40,000 on 12 August 1994. The applicant denied a suggestion he had been instructed not to play computer games whilst on duty at the bank. He stated he had not received a warning concerning his employment in this regard.

The applicant had agreed that he and his wife previously determined they would depart Maningrida within 12 or so months and that the wife planned to further her career but the applicant wished to stay in employment. The applicant confirmed he had left Altona High School in year 10 and that he had never studied bookkeeping. The applicant stated he made inquiries as to his duties and that included were to instruct staff, there were some five people in the bank and that he was to tell them how to conduct themselves including not to stay at home in bed on occasion and to come to work.

In relation to the skill of reconciliation the applicant spoke frequently with Mr Phil Hedger, now of the Northern Territory Insurance Office, as to how this was done. The applicant made it clear that in his opinion Westpac Bank was telling him to do one thing and council members were telling him to do another. The applicant denied that it was his lot to be responsible for the bank operations and stated it was his view council members were reluctant to safeguard themselves and to put in proper banking systems.

In cross-examination it was elicited that the applicant was mistaken about the events of the weekend of 13 and 14 August. He ultimately agreed with the proposition that he in fact attended a party for Ms Helen Matthews on Saturday night of 13 August 1994 and further that he did not go away camping but went pig shooting for the day only with his friend Constable Taylor. The applicant confirmed in his evidence-in-chief that in 1992 the main reason for his dismissal was that Mr Milak Winunguj did not like him.

In cross-examination the applicant stated he remembered that a bank employee, Michelle Nathan, was on the telephone on the afternoon of Friday, 12 August trying to get legal aid assistance for a mother of another bank employee. The applicant under cross-examination told the court that at the time of signing his agreement he indicated to Allan Clough that he was quite happy to take on extra duties involved and that it was later on during the course of his employment that his workload became impossible. The evidence of the witness was that on many occasions he asked for more staff.

In 1994 the witness said a person named Ursula came to install a computer program to assist the bank after - and after that bank system failed the bank, to use his words, was out of control. In cross-examination learned that it was the suggestion of Michelle Nathan who introduced the cash control book, a method of recording cash movements within the banking system. In comment upon this statement put by Mr Lawrence, on behalf of the respondent the applicant stated, and I quote:

"I was uncertain for the reason of the introduction of the book."

The applicant specifically denied this suggestion put to him that he forgot to include $40,000 when he was performing the first reconciliation on Monday, 5 August 1994 and that he was reminded of its existence by Michelle Nathan. At one point when it was put to the applicant again that during his initial reconciliations attempts on Monday, 15 August 1994 he overlooked the existence of the $40,000 until reminded he stated Allan Clough did not include that in his computer program. When confronted with the fact that no other person had signed the cash control book evidencing the receipt of $40,000 contrary to earlier oral evidence the applicant stated:

"I asked Patricia Kernan to sign it and I honestly thought she had signed it."

When cross-examined about the evidence given concerning the signing of the book the applicant admitted he was wrong in his recollections. He also stated the reason he put the money under his arm when he left the bank allegedly was to speak to someone outside was that he did not trust people in the bank, I presume he means the staff, with the money. The applicant, in reply to a question under cross-examination from Mr Lawrence outlining the proposition concerning the undertaking of further training, the applicant stated, "I accept that he told me that."

The applicant agreed that until 13 September 1994 at the direction of Clough, he reported to the council workshop for duty and that on that day a meeting was held in the demountable council room where, according to the applicant, Allan Clough put questions to him that had been previously put to him and the applicant answered them to the best of his ability. In cross-examination the applicant, concerning that meeting, stated, "I don't think I was given the opportunity to answer questions. Allan Clough asked me if I had anything to say and I did add a bit."

The applicant agreed he was advised that a full council meeting would thereafter be held where the matter of the missing would be discussed and further Allan Clough had interviewed him and that notes were taken by Mr Clough of those interviews. The applicant, in re-examination, stated he had never been given any specific instructions by the respondent as to the manner in which cash was to be transported and on occasion Allan Clough accompanied him around the various areas when the applicant was carrying cash.

Further, the applicant stated that both Ms Sharon Hayes and Mr Milak Winunguj were from the same Aboriginal tribe the Nakara Tribe. The applicant stated he received no instructions nor invitation to attend the council meeting held to discuss the matter further. The applicant stated he later learned that complaints had been made on behalf of the respondent as to the manner in which the police had conducted their inquiries.

In re-examination the application stated the course Allan Clough suggested was only a very short bookkeepers course. Further, that when the cash discrepancy was discovered he not assist Michelle Nathan to do her reconciliation. In relation to his job duties the applicant, in re-examination, told the court he was subject to no criticism from the respondent as to his training of the employees and further, that he frequently did overtime.

On behalf of the applicant the court heard from Superintendent Mark McAdie, who stated he was sure Constable Taylor had contacted his superiors and received advice that he was able to conduct an investigation involving a friend and an allegation of missing money. The photocopy of the file of the investigation was produced to this court, the original being with the Ombudsman. The Superintendent confirmed he examined the file and found nothing untoward in the fact that on the evidence before the police in a statement from an employee of the respondent that it was doubtful, if in fact any money was missing, that the investigation was halted.

On behalf of the respondent the court heard from Ms Patricia Kernan who told the court she had worked in the Commonwealth Bank for a while, and then she was at Santa Teresa where she had worked for some time as a pay roll clerk. Ms Kernan stated that during the course of her employment she performed cash balances at the close of business every afternoon. Additionally, the witness told the court that whilst living in South Australia with her husband and children she was employed as a part time pay roll clerk and also at some stage had attended a course at Batchelor, near Darwin.

Having three small children Ms Kernan moved to Maningrida in 1991 to be near family after the loss of her husband. In 1993 the witness became a clerk to Allan Clough, and part of her duties included working in the bank, recording creditors and debtors on to the computer. There were three tellers in the bank then, Sharon Hayes, Madeleine Atkinson and Joanne Wilson. These people were doing deposits, issuing cheques and selling power cards.

Ms Kernan stated on Friday, 12 August, she was in the bank balancing the savings account which Allan Clough suggested she perform at the desk of the applicant, Kevin Boland. The witness stated she remembered $40,000 coming into the bank. She was seated at the right-hand side of Kevin Boland. The witness stated he finished counting the money, which involved making bundles of notes.

Ms Kernan said he then asked Michelle Nathan to count the bundles. This was done by Miss Nathan, who was placed on the left of Kevin Boland. Ms Kernan stated that Mr Boland then stood up and walked out of the bank. This, the witness found, to be very unusual, as she had not seen it done before. Ms Kernan stated Mr Boland walked out of sight round the corner. He was away less than a minute. According to the witness the applicant returned to the bank.

The witness stated she did not see Vern Pech. The applicant, upon his return, went to the strongroom. He was by himself. The witness stated she heard him allegedly counting the money out loud, presumably as it was placed in the vault. Ms Kernan stated that Mr Boland did not ask her to check or verify the money, nor did he ask her to sign the cash book. Ms Kernan stated that Friday was not a busy day, and she recalled the girls were able to chat among themselves as things were quiet.

On Monday, 15 August, 1994, the witness came to work at 8.30, and present were Sharon Hayes, Michelle Nathan and the applicant. The reconciliation was being done. According to the witness the money at that time was still in the vault. In relation to Power Authority work Ms Kernan stated there was not much in the way of work for the bank to do, and in relation to training of staff it was she who helped Amelia to do the computer work.

The witness had no knowledge as to whether the applicant ever taught Amelia work skills. In response to a direct question Ms Kernan described the position of the applicant, stated that he had to look after the general banking responsibilities. In cross-examination Ms Kernan told the court she was now the bank clerk and had taken over the applicant's job. The evidence of the court was given that the books now balance and the employees are able to keep trace of cash movements.

Sometimes it seemed slight discrepancies still do arise, but not to the former extent. On behalf of the respondent the court heard evidence from Mr Milak Winunguj, who stated in 1992 he held the elected office of President of Maningrida, and that approximately 2000 people lived in the district. A stated policy of the council of the Maningrida peoples according to Mr Winunguj was that whoever was accepted by the council to live in the area had to abide by the rules of the Maningrida Council.

The witness told the court that in his opinion Mr Boland had "an attitude problem," and that it was his responsibility to deal with complaints made to him by his people about Mr Kevin Boland. Mr Winunguj told the court that Allan Clough advised him the money was missing and that he had also written to him about this problem. In relation to the interview in the demountable office of the council held on 13 September 1994, the witness told the court he had told the applicant he should have been able to trust the staff in the bank so that it would not have been necessary for him to leave the money as he in fact - to leave the bank with the money as he in fact did.

In relation to the question of consultation put to the witness under cross-examination, Mr Winunguj stated his door was always open. The witness denied he pushed the applicant in 1992, and further stated Mr Boland was managing the bank, and that he Mr Winunguj was not present at the council meeting on 23 September 1994 when the decision to terminate was taken. On behalf of the respondent the court on Friday, 11 August 1995 heard evidence from Mrs Michelle Nathan, who stated she was a married woman, aged 43, and who had lived at Maningrida with her husband since 1994.

The witness outlined her extensive bookkeeping and office administration experience in running of the business with an annual turnover of some 20 million dollars. Additionally, the witness had tertiary qualifications in accounting from TAFE. The court heard since June 1, 1991, Mrs Nathan has been the bookkeeper to the Maningrida Council and in order to obtain that position she was interviewed by the full council. She was directed to work with the council accountant, and her job was to reconcile the bank accounts and the imprest account that ran the entire bank.

Upon commencing work the witness stated there were recorded three differing cash amounts, as money was kept in different places around the bank's premises. Mrs Nathan told the court her direct boss, Allan Clough, told her to perform morning and evening cash accounts and to obtain accurate balances of the imprest account. Mrs Nathan stated that the work load for staff members were roughly the same then as when she commenced work, and that when she commenced there were problems as there were no systems for recording cash movements.

The witness stated it was the responsibility of the applicant to issue money to the tellers and to draw the remaining money back again. The work of the Post Office was minimal, and there was only one telephone box requiring emptying. According to the witness on 2 August 1994, after discussion with the accountant, Allan Clough, she introduced a cash control book which recorded under signed entry the movement of all moneys by the bank. The witness stated that such a book had the effect of protecting people from suspicion as all movements of cash could be recorded.

The witness stated that the teller staff had no idea how to balance their cash drawers, and that Mr Boland seemed to be out of his depth in relation to this responsibility. In cross-examination Mrs Nathan stated it was she who taught the girls how to perform cash reconciliations. With regard to Friday, 12 August, the witness stated that it was not a pay day and things were really quiet. Mrs Nathan stated Mr Boland asked her to check $40,000 brought into the bank and that Patricia Kernan was seated directly beside him at the time that request was made, and that it was a point of wonder to her why he did not ask Ms Kernan to check the money.

Mr Boland it seems did not ask the witness to sign the cash control book. The witness stated that it was a responsibility of Mr Boland to do the cash count at the end of each day's trading and that it was not done until Friday, 12 August, as Mr Boland stated he wanted to go pig shooting. On Monday, 15 August, 1994, the witness stated the applicant showed her his computer generated reconciliation of the day's trading for Friday, 12 August, and she observed the applicant's reconciliation showed an excess of $35,000.

It was the evidence of the witness, Mrs Nathan, that no other employee at the time in question apart from the applicant performed cash reconciliations, and now it seems after the applicant has left the employ of the respondent, according to Mrs Nathan, all the employees do this. Mrs Nathan was firm in her evidence that the two teller girls were advanced a sum of $6500 each by the applicant prior to the sum of $40,000 being placed in a safe. Further, it was clearly demonstrated that what was missing was a bundle of $50 notes.

Upon learning from Mrs Kernan that the applicant had walked out of the bank with the money under his arm, Mrs Nathan commented that that was a stupid thing to do. In cross-examination the witness stated that when mistakes were made the applicant would fail to go over those mistakes, and on many cases and occasions the applicant would fail to follow the advice the witness, Mrs Nathan, would provide as to banking procedures.

In cross-examination the witness admitted that on some occasions the cash count is still not performed at the end of each day, and that further she felt it to be a serious oversight on her part that she did not sign the cash control book after counting the bundles of money at the applicant's request. In cross-examination it was put to Mrs Nathan that the bank was less formal than one would expect a bank to be after the witness had told the court that everyone at the bank was less concerned about the missing money.

On behalf of the respondent the court heard evidence from Mr Allan Clough, who stated he was the clerk of the council, that he posed an Honours/Bachelor's degree in Science, together with a Master's degree in Science. For some time the witness has studied towards a Doctorate in Philosophy at an American university, and apart from teaching bookkeeping to year 10 level had no formal qualifications in accounting. Prior to coming to Maningrida in 1992 the witness held the position of bookkeeper at Minjilang on Croker Island for some 12 months.

In 1992 the witness supervised 22 staff. In 1995 this has grown to 300. The main duty of the witness was to be responsible for the orderly keeping of the council finances, as well as to look after council assets. The witness stated in addition he attended council meetings and took minutes. In 1992 Mr Clough advised the Council of Maningrida faced severe substance abuse problems and associated criminal activity on the part of the residents. Since that time the court has been told petrol sniffing has been eradicated and alcohol abuse controlled.

In relation to the earlier dismissal of the applicant the witness told the court the applicant had asked and had been allowed to attend the council meeting held as a direct result of the order made by Commissioner Hoffman. That meeting voted to reinstate the applicant. The witness was shown exhibit G and agreed this was the letter of employment signed by the applicant at that time in 1992. Mr Clough stated on many occasions he told the applicant that both morning and night reconciliations were vital.

Further that on more than one occasion the applicant came to him and advised him how he enjoyed his job, and that whereas previously he was bored, he commented to Mr Clough his days were full. The witness stated that after money had gone missing on 12 August 1994 the applicant the following Tuesday had told him he could not remember why he had left the bank and gone outside with the money, and that he had sought advice of officers in the local government association and other bodies.

In conducting his inquiry as to the circumstances surrounding the disappearance of money, the witness read to the court a list of questions he had asked of the applicant, and the applicant provided answers to those questions. The court heard the applicant contacted Mr Clough on Tuesday, 16 August, 1994, and stated that it was important to him that he had forgotten to tell the police that Ms Sharon Hayes was with him when he counted the $40,000 on Monday.

It was on that day that Mr Clough learned from Constable Taylor the applicant had omitted to tell the police that he left the bank with money on Friday, 12 August, 1994. The witness told the court that it was on that day that he first contacted Brett Barton of the Northern Territory Local Government Association in order to discuss the position generally of the council. The witness confirmed he had another interview with the applicant on Wednesday, 18 August 1994, that lasted one hour.

The witness made notes in longhand that were recorded on to the computer that night. The witness referred to those notes during the course of giving his evidence and copies were made available to the applicant's counsel during the course of this hearing. At the second meeting the applicant was told that it would not be a decision of Mr Clough as to whether he would lose his job or not over the incident, and he was further advised that the position for the applicant was serious.

The notes of the witness revealed the applicant, at that meeting commented he was simply unsure if he had given $5000 to Natalie or not. At the conclusion of the meeting the applicant was placed on special leave, and on Friday, 19 August 1994, the witness instructed Malcolm Fraser, the accountant, that the applicant was not to work around the bank any more. On Friday, 19 August 1994, the witness, Mr Clough, contacted the Northern Territory Chamber of Commerce in order to seek advice and guidance as to how best to handle the situation.

Additionally, the North Australian Aboriginal Legal Aid Service was contacted. By 5 September 1994 the witness had returned from a short period of leave and was advised by the police that the complainant, Malcolm Fraser, had withdrawn the complaint so the matter of police involvement was ended. Mr Clough then formalised the position and wrote to the President of the respondent employer outlining the position, and attaching his notes of interview. That letter was admitted into evidence as exhibit G.

Mr Clough confirmed the details of the meeting held in the air-conditioned demountable room between the two members of the respondent council, the applicant and himself. The witness took further notes. It was at this meeting the applicant recalled seeing Martin Gibson outside the bank on the day in question, but could not remember if he had gone to the public toilet area. According to the notes of Mr Clough the applicant apologised, in fact mutual apologies appear to have been exchanged.

A council meeting was held on Friday, 23 September, 1994, and minutes taken by the witness. At the point of voting on the future of the applicant, Mr Clough and other observers left the council chamber. Upon learning of the council's decision to terminate the applicant, Mr Clough sought legal advice from representatives as to how to abide by the requirements of procedural fairness. On Monday, 26 September, 1994, the witness, Mr Clough, advised the applicant of the decision by the council to terminate his employment.

The witness was handed two letters, admitted into evidence, stating that fact. At that meeting the applicant recalled it was Vern Pech to whom he had spoken when he left the bank with the money under his arm on Friday, 12 August. The applicant was asked if there were any compelling reasons why the decision to terminate should not be carried out, or whether there were any mitigating circumstances. The applicant allegedly said no to both questions and then advised Mr Clough that Mr Clough would be relieved to know he would not be taking industrial action, to which Mr Clough replied that if such action did eventuate it would be strongly resisted.

In cross-examination it was put to the witness at this point the applicant said he wanted to stay in Maningrida. In cross-examination the witness stated he did not specifically give to the applicant a list of duties and indicated that the letter of Friday, 26 February, 1992, marked exhibit A, to his mind was sufficient. In relation to the extra duties, Mr Clough stated the applicant indicated he was able to cope with his duties. He agreed that the applicant to his knowledge did his best with regard to the ordering of alcohol.

It was specifically denied that Mr Clough found fault with the standard of the education of the applicant, and clearly stated that on several occasions he urged the applicant to embark on further study. These conversations occurred when the witness learned that difficulties were being experienced in accounting for cash. The witness was aware that it was not possible to leave the job of large reconciliations to the responsibility of the applicant as to his knowledge the applicant lacked the ability to perform those tasks.

Mr Clough on several occasions tried to explain the importance of daily cash counts to the applicant. In cross-examination Mr Clough told the court the bank was pivotal and a central meeting point for the people of Maningrida. Some of the elders would try to control the business of the bank and direct that cheques be stopped, or that the business of the bank be halted for ceremonial reasons. Externally, the bank attracted highly emotionally charged situations and Mr Clough stated that due to the unsatisfactory results turned in by the recording systems at the bank, the bank was seen by the community as a place of blame and of shame.

To that end some of the Aboriginal women experienced difficulty with the concept of working there. The witness stated because of that delicate situation he was at pains to see that things at the bank were correctly done. The witness, Mr Clough, specifically denied the suggestion that because of the blame situation he was aware that by giving special leave to the applicant he was publicly demonstrating he thought the applicant to be guilty of theft. He also denied he was determined to dismiss the applicant in order to pacify a volatile community after the cash was missing.

In conducting his investigation, Mr Clough agreed that he only interviewed the applicant in relation to the missing money. After returning from leave the witness contacted the police and learned that nothing more was to be done on that front as Malcolm Fraser had withdrawn his complaint. Mr Clough wrote a lengthy letter to Mr Milak Winunguj, and Mr Reggie Wuridjal, attaching copies of his notes and records of interview explaining the position.

After the meeting of 13 September the witness agreed a full council meeting was convened for 23 September 1994. The witness stated the applicant was not invited to attend, nor did he seek to attend. The agenda for the council meeting was set by the witness, Mr Clough, with the President of the council. Included as observers and advisers to that meeting were Mr Blandy, from the Local Government Association; John Foley, the auditor, Brett Barton from the Local Government Association, and Bill Somerville, a lawyer to the council.

On behalf of the respondent the bank heard evidence from the accountant, Malcolm Fraser. I found Mr Fraser to be a credible and reliable witness. It was confirmed the applicant attended a party at the home of Malcolm Fraser on Saturday, 13 August, 1994. In hearing submissions from counsel in this matter it was indicated this court did not find - it was not appropriate for this court to make findings on matters of fact not connected with Industrial Relations legislation.

Mr Kilvington on more than one occasion stated that running through the entire proceedings was the underlying thing the applicant had stolen the money. The court ruled that first the evidence of Mr Milak Winunguj was relied upon, and that he did not accuse the applicant of theft, and secondly, the respondent clearly stated during the course of proceedings the applicant was not dismissed for theft.

During the course of counsel presenting final submissions I stated that it was inappropriate for industrial relations court proceedings and transcripts of evidence to be used deliberately by either party for the purpose of perhaps a hidden agenda in relation to proceedings that may or may not eventuate in another place and to that end to seek to press the court to make findings on irrelevant issues. Accordingly, I will only be making findings on matters of fact germane to these proceedings in order to reach conclusions of law concerning the Industrial Relations Act.

Mr Lawrence, on behalf of the respondent, stated that it was on no factual basis that the applicant proffered Sharon Hayes as the person under the suspicion for the loss of money. I have to say I place no evidence on the weight on the evidence this court has heard in relation to the involvement of Ms Hayes in that regard. To that end I formally read the affidavit of Ms Hayes on to the record but noting the time. I note that it has 13 paragraphs and it is to be incorporated as part of this record.

The respondent argued that on the basis of Byrne and Frew v Australian Airlines (1992) AILR 228, Hill J argued that the words harsh and unjust and unfair should be accorded their ordinary meaning. Further, that in determining the validity of termination I should look at the fairness of the situation. Mr Lawrence submitted the respondent did afford the applicant a fair go and that the actions of the respondent have to be looked at in context. Mr Lawrence explained to me for the purposes of applying criminal law the code of the Territory the test of the man on the Clapham Omnibus has been transposed to be the ordinary man in similar circumstances.

On that basis in application of industrial relations legislation Mr Lawrence argued that the Aboriginality of the respondent should be taken into account in interpreting procedural fairness and jurisprudentially that approach is just basic common sense. Mr Lawrence argued on the basis of a Woolworth's case argued in Australian Labour Law 48.160 the court found it to be just plain wrong to use facts on one case and apply them to another.

Further, Mr Lawrence argued that in Bostik's and Georgievski (1992) 41 Industrial Reports at 452 cited by approval of Hill J in the case of Byrne and Frew for authority that the conduct of both the employer and the employee should be looked at in the case of termination and accordingly that I should look at the interests of the bank as it was a place of cultural focus and it was central to the life of the community and that that community had a cash economy. In addition, it had acquired the reputation of being a place of shame and blame. It was argued those factors should be taken into consideration when applying industrial relations regulations.

Further, Mr Lawrence argued on the basis of Lane and Arrowcrest that the post-dismissal conduct should be taken into consideration. I have to say I discount that submission. Mr Lawrence argued the actions of the respondent should be looked at in light - I am of the view that the actions of the respondent should be looked at in light of what the state of knowledge was of the respondent at the time of the dismissal. On behalf of the applicant Mr Kilvington argued that the respondent, in the form of Mr Clough, found the applicant to be an honest person and the applicant did his best with regard to the management of the bank up until August 1994.

Mr Kilvington argued that Mr Clough attempted to sway the finding of the council in dismissing the applicant as he failed to put in all the evidence. Mr Kilvington urged the court to make the finding that there was no causal connection between the taking of the money outside the bank and the money being missing. I do not see that that finding is relevant to the termination as the termination was not made for theft. Mr Kilvington urged me to find that incompetence of the applicant did not lead to the loss of $5000; I will deal with that later.

Mr Kilvington stated the respondent counsel had received bad advice from its legal advisers in relation to industrial relations legislation in that Mr Clough told the applicant "strong letters" would have to be written afterwards. I heard no evidence as to the responsibilities of notice provisions that had to be complied with under local government regulations so I am not in a position to either agree or disagree with that submission.

In each case of unlawful termination the correctness of the dismissal has to be looked at in light of the particular circumstances that existed at the time in order to reach the correct conclusion. I know propose to look at the particular circumstances of this dismissal. I have to say I found the two chronologies filed by these parties fall more into the category of witness statements and that much of the material contained therein has been afforded little weight as it was found to be self-serving. This is a difficult case as much of the factual evidence before the court was common ground.

The applicant was employed as a bank officer and as such he ordered $40,000 to be delivered to the bank from Darwin. That was done on 12 August 1994. The applicant stated he verified the amount upon receipt. It was not conclusively proved to the court that the people who worked in the bank verified the amount received by the applicant. At best a bundle check only was done. At the close of business of Friday the applicant shortly after 4.30 pm went home. He did not perform a cash reconciliation of the money held at the bank.

It was common ground during the afternoon he had provided the tellers with approximately $20,000 in order that the cash in the bank could operate. It was not shown to the court that the responsibility of performing a cash reconciliation fell to any other person but the applicant. However, I have to say in this regard I found the witness, Ms Nathan, a little ambivalent. The evidence of the applicant as to his activities over the weekend of 13 and 14 August was overturned in cross-examination in that he ultimately agreed he had not gone camping as he categorically first stated and I have to say this is one of the many first occasions when serious doubts were placed in my mind as to the credibility of the applicant.

To a person who cared about his job, and the consequences of being dismissed, the events such as those that occurred on Friday, 12 August, 1994, should not be easily forgotten. The evidence of the applicant was that after the weekend, on the following Monday, 15th, the amount received from Darwin was counted again. The evidence of the applicant is that the money was counted in the normal course of events. The evidence of the respondent is that when he first reconciled the cash in bank the applicant totally overlooked the delivery of the $40,000.

The applicant admitted he performed several reconciliations that morning, however it was common ground that on Monday, 15 August, the sum of $5000, the property of the respondent, was missing. The circumstances of this case are unique in that had a similar set of circumstances occurred in any other banking system, I have no doubt the employer bank would have had in place strict rules and regulations relating to the transfer and securing of cash, and secondly, some security investigations branch, or internal guard, would have immediately conducted the most rigorous of inquiries leading almost certainly to the laying of criminal charges if the money was still missing.

If a breach of any of the civil rules and regulations referred to above had occurred, it is more than likely any infringement by an employee would be classified as misconduct, warranting instant dismissal without notice. That did not happen here. The applicant demonstrated in his evidence it was his opinion his employers were resistant to change, that correct account and reconciliations systems were things he alone was supporting, and that chaos was the first regime of the employer respondent.

It was the evidence of the applicant that he bore the brunt of - the denial of giving book credits to Aboriginal people, and that when he refused to do this in 1992 he was dismissed. It was the evidence of the applicant that the respondent was either tacitly or directly aware of the casual procedures in the bank with regard to the handling of cash. It was the evidence of the applicant that it was during the course of his employment it was he who was attempting to bridge the differing approaches, that is the approach of the white man and the approach of the black man as to the manner in which the council's bank should be conducted.

I found the applicant to prevaricate in his dealings - in his answers dealing with the plans of his wife. On the one hand the court was told that during the time when the couple lived at Maningrida the wife for some 12 months completed a midwifery certificate in Darwin. The extra qualification gained was whilst the husband was employed at Maningrida has allowed the wife to be placed in a higher category of salary with her present employers at Oenpelli. Further, the applicant stated that the plans of the wife were to further her career.

The applicant in cross-examination had difficulty with the suggestion that in furthering her career the wife would necessarily have to go back to work and seek employment. To my mind it is impossible to further a career without going back to work, and so accordingly it is a finding of this court that prior to an independent determination of the applicant, Kevin Boland, both he and his wife determined that the wife would return to work. The applicant stated that the plans for the couple were for the wife to go back to work when the children were at school.

The court heard no evidence as to when the wife underwent the midwifery course and the nature of the child minding arrangements if necessary. The court heard that part of the salary package of the applicant included subsidised air travel and housing, and so the fact that the wife had to undergo a course in Darwin would not have been a hardship. The court was told that part of the wife's salary package at Oenpelli includes the housing and travel allowance, and from the information provided it cannot be said the family of the applicant is worse off because of the termination.

I found the applicant in his demeanour to prevaricate when dealing with the issue of the cash control book. To my mind the introduction of the cash control book was specifically to avoid the circumstances that occurred on Friday, 12 August. Those circumstances were -

(1) That money should physically leave the bank without it being recorded in the book. It is noted the applicant left the bank carrying $40,000 under his arm.

(2) Kevin Michael Boland would close the bank without doing a cash reconciliation. It is noted the applicant was keen to take leisure time as quickly as possible.

Within the framework of Wheeler and Phillips the applicant at very least was not performing his job to a reasonable standard. In determining the facts and intentions of the applicant and the respondent it has been necessary to look at the credibility of both parties. The applicant asks the court to believe:

(i) when he first told Allan Clough of the missing money on Tuesday, 16 August 1994 he was not able to recall why he left the bank with the money under his arm.

(ii) when he made his first sworn statement to Constable Taylor on 16 August 1994, he forgot to include the fact he left the bank on 12 August 1994 with the money under his arm.

(iii) when he made his amended sworn statement to Constable Taylor on 18 August 1994 he recalled he left the bank with the money under his arm on 12 August 1994 to speak to Roger and Stanley the two Air North boys.

(iv) when he spoke to Allan Clough, Milak Winunguj and Reggie on 13 September 1994 he said, when he left the bank with the money under his arm he recalled meeting Martin Gibson. Five, when he spoke to Allan Clough on 26 September 1994 he recalled it was Vern Pech he met outside the bank and not Roger and Stanley as alleged.

On these facts alone I find the applicant has strained the bounds of credibility and I am forced to place very little weight on his testimony. The applicant admits any reference of his giving of statements to the police in his chronology filed in these proceedings; that fact and others has led me totally to discount both chronologies. It should be borne in mind that in suddenly recalling it was Vern Pech after a long time - the incident to whom he spoke, he was not able to recall that fact immediately afterwards. The applicant was able to recall the minutiae of a telephone conversation an employee allegedly was having in the bank on the afternoon in question with a third party involving legal aid.

I prefer the evidence of Ms Kernan and Ms Nathan who stated it was not a pay day on the day in question, to that of the applicant who stated it was. To my mind nothing flows from the incident in the bank of 1992 as to whether or not Mr Milak Winunguj and the applicant had a physical tussle. There was evidence before the court that a condition of the re-employment of the applicant was that he provide an apology to Mr Winunguj. I agree with the submission of Mr Kilvington that those circumstances play no part in these proceedings on the basis of the manner in which evidence was presented.

However, if circumstances such as these arise again, perhaps consideration should be given as to what legal weight should be accorded to actions on the one hand that are classified as disrespectful and therefore lead to a denial of privilege and the other hand as not being of much substance. To my mind there were important discrepancies between the evidence of Mesdames Kernan and Nathan and that of the applicant as to the physical workload undertaken by the applicant during both the course of the performance of his duties generally and on the day in question.

To my mind there is no doubt that Friday, 12 August was not a busy day and I find accordingly. It is further finding of this court, the bank was not short-staffed and indeed the applicant failed to identify the staff who were allegedly absent. I totally disregard the evidence of the applicant in that regard. For some reason best known to himself, the applicant has attempted to give a picture of events on that day that simply did not happen. I would have had a harder job to reach that conclusion if the applicant had called Mr Vern Pech to substantiate his claims, but I have to say I am aware of the constraints of distance.

It may also be that the applicant considered the divisive effect it would have if he called witnesses to assist his claim. In an attempt to accord respect - in relation to the evidence of the applicant, this court further notes that the former Westpac accountant, Mr Phil Hedger, is resident here in Darwin and it would have been simple in order to substantiate allegations made by the applicant to have called Mr Hedger. I found the evidence of Ms Patricia Kernan to be delivered in a reliable and thoughtful manner and I have no doubt as to credibility.

From her evidence it may be concluded as said previously, that the bank was not busy on the day. On behalf of the applicant it was protested that much of the evidence sought to affix the applicant with the conclusion that he took the missing $5000. To my mind that is incorrect evidence and this court finds it is of importance to ascertain who did what, when, the reason for so doing, the time at which it was done, in order to establish if there has been a gross neglect of duty.

If the applicant wishes to allege he was terminated unlawfully under section 170EA as has happened here, then under section 170EDA the termination is taken to have contravened section 170DE(1) unless the employer proves that apart from DE(2) there was a valid reason or valid reasons of the kind referred to in subsection 170DE(1). 170 provides,

An employer must not terminate an employee's employment unless there is a valid reason connected with capacity or conduct.

Subsection (2) provides,

A reason is not valid if, having regard to the employee's capacity and conduct and those operational requirements, the termination is harsh, unjust or unreasonable.

This subsection does not limit the case where a reason may be taken not to be valid. To my mind, the taking of evidence as to who did what and when and why, was necessary if the respondent was to have a chance of discharging the onus of proof placed on him by section 170EDA. The respondent has stated the applicant was terminated for gross neglect of duty. The questions for this court to determine are, first, was that a valid reason and secondly, was the effect of that harsh, unjust or unreasonable. In order to determine the validity of the reason of the conduct of the applicant and the reasons for that conduct, detail must be looked at.

Mr Kilvington has stated on the one hand that legislation applies to all people and therefore the conclusion is that the legal obligations of the respondent are both strict and clear. And yet in his approach to witnesses, Mr Kilvington suggested that the Maningrida Council bank was apart from mainstream commercial practice and local habits and customs were understandable in existing circumstances. I instanced the cross-examination of Mrs Nathan and Mr Clough. That dual approach can only be unfair to the parties.

And so, this court finds it necessary to categorise the individual acts of the parties as to who did what and when and why in light of the special circumstances that governed the situation, in order to determine if the respondent had a valid reason to terminate the applicant and whether the effects of that termination was harsh and unjust. I found Ms Nathan to be an informed and reliable and credible witness. The court was impressed with her sincerity and accordingly placed appropriate weight. It is noted Ms Nathan stated it was she who taught the girls how to do cash reconciliations and it is noted that Mr Clough also expressed the view that it was the applicant who taught the girls how to balance their cash drawers.

To my mind, those two statements are not all together incompatible bearing in mind Mr Clough was not around all the time and Ms Nathan was physically there, and in all probability both people taught the girls something. What it is important to deal with in that regard is what in fact the applicant taught his staff. Ms Nathan in cross-examination told the court everyone at the bank was concerned about the missing money. And I discount the suggestion that the applicant's counsel put to Mr Clough that because no-one at the staff meeting expressed alarm at the fact that the applicant had taken the money off the premises, that was somehow to be interpreted that it was all right in the eyes of the employees and the respondent that this should happen.

That proposition to my mind was simply not backed up by evidence. It was found to be a matter of concern to this court that the applicant stated he lacked expertise for the job and yet, until the arrival of Ms Nathan, there was no-one who could successfully perform cash reconciliations. I am unable to agree entirely with the suggestion of applicant's counsel that the responsibility in that regard lay solely with Mr Clough. It is true, however that Mr Clough bore the overall responsibility for financial administration of the bank.

But it seems odd that the applicant seemingly failed to come to grips with the situation and that he failed to suggest that someone else rather than he be responsible for cash reconciliations, knowing as he did the heavy workload and personal responsibilities of both Mr Clough and Mr Fraser. The applicant admitted the job was very much a learn as you go job. The applicant failed to demonstrate to this court that he ever learnt much about cash reconciliations or how to get someone who could do it. However, the court heard evidence that the applicant was of the view that he needed a secretary.

And also the court learnt that whilst he was employed, the applicant was reluctant to increase his skills so that he could learn to perform cash reconciliations and avoid the problems of missing cash. I do not agree with the suggestion made in cross-examination of Mr Clough, that somehow because the applicant was employed full time and lived at Maningrida, extra time for study for extra qualifications was impossible. When the witness, Mr Clough, was under cross-examination Mr Kilvington made reference to the fact that the applicant was the bank manager.

That accorded with evidence given by Mesdames Kernan and Nathan. Accordingly, it is finding of this court that the primary responsibility rested with the applicant to see the alleged amount of $40,000 was counted by the applicant as soon as practicable after delivery, and that that amount was recorded by double signature in the cash book, and that was not done. It is common ground that Ms Nathan introduced the system of the cash recording book, but in light of the use of the term manager, and the fact that the status of Ms Nathan was book-keeper, I accord the applicant that responsibility even though reference has been made from time to time that the bank staff operated as a team.

I interpret the reference to team in these proceedings as a reference to mutuality of trust rather than a reference of responsibility for counting deliveries of cash. In relation to examination of the cross-examination of Mr Clough, I do not agree with the suggestion that going outside the bank with money under his arm did not of itself cause a loss to the community. To my mind, that action alone was a severe dereliction of duty, that termination should have been considered forthwith.

Such conduct as leaving a bank in those circumstances in which he did, is not generally acceptable on the part of a bank manager or indeed a bank employee of any rank, and to my mind falls into the category of gross neglect of duty. It is a finding of this court that it was not a denial of natural justice or justice that Mr Clough did not interview other employees, as no-one else in the bank left carrying money. And further, it was only the applicant whose job at that time was at risk.

In dealing with the contention that the respondent failed clearly to spell out to the applicant that such conduct was not acceptable, Mr Clough noted that he did not tell people how to drive on the correct side of the road. I agree with that analogy and I find the matter of how to treat cash when one is employed as a bank manager, to be first a matter of basic common sense and secondly, perhaps a matter of special instruction. At best the applicant totally failed to exercise basic common sense to the point he was grossly neglectful in his duty as a bank employee.

It cannot be said that because the applicant wished to stay at Maningrida, that the termination was harsh and unjust in its effects. To my mind the applicant during the course of employment, was not denied the opportunity to ensure he remained both in employ of the bank and resident at Maningrida. This court has heard reference to the phrase self determination, and to my mind that phrase precisely sums up the philosophy behind the running of the bank at Maningrida Council, for the benefit of its people.

That philosophy is clearly spelt out in the contract of employment tendered as exhibit 3 dated 3 March 1993 wherein the applicant is to train Aboriginal employees in the ways of banking. This court takes judicial notice of the fact that it is a stated policy of the Government of Australia that Aboriginal people are to be encouraged to be in control in every facet of their lives. I find little commitment to that philosophy on the part of the applicant. I understand the applicant chose to work and live in an Aboriginal community, for which he was amply rewarded.

That of itself is not a commitment to the philosophy of self determination. In stating the applicant demonstrated no commitment to the moral issues involved, I illustrate the answers provided in cross-examination by the applicant, that when an issue arose wherein the commercial best practices of banking conflicted with the lack of knowledge of the Aboriginal peoples, the applicant stated he was met with hostility; that he lacked experience to deal with the situation; or that the staff were lax.

To my mind those statements were made to hide the fact that the applicant was lazy and determined to remain so. And that the evidence showed on more than one occasion he would allow the bank to close earlier without having performed a reconciliation. Further, in the early stages, the title of the applicant was bank clerk and when the issue of his personal responsibility arose, he would simply say that it was the Council who was responsible for the running of the bank. To my mind the Maningrida Council displayed a trust and competence in the applicant that he would use his best endeavours to put systems and methods into place whereby Aboriginal people who used the banking system would gradually achieve self determination and have their bank run smoothly.

That did not happen. The applicant this court finds, was aware of his own lack of knowledge, the practical effect of which caused the bank to remain a place of blame and shame. This court heard evidence the applicant has managed to enrol in further courses to advance his knowledge and skills, and no evidence was ever given that he did this during his employment with the respondent as requested. The trust and confidence so placed by the respondent was misplaced. The applicant in his cavalier attitude to his duties and responsibilities, allowed the sum of $5000 of his employer's money to go missing after he had been in a job for some 4˝ years.

It is clear the applicant placed his own relaxation and his pig-shooting activities before his responsibility to his employers. Such demonstrated lack of loyalty does not befit a person who is employed to quote the applicant, "To teach Aboriginal people how to conduct themselves in the business of banking, how to dress, when to come to work and not to stay at home in bed, and generally how to behave." The issues facing this court for decision are questions of fact which flow to conclusions of law. To my mind the facts are clear and I have been at pains to indicate the reasons for the various findings made.

To follow with conclusions of law is difficult as the parties have differing understandings of their respective legal responsibilities. The Industrial Relations Act, under which this claim is brought, is quite clear as the case law which has developed around it as to the onus of proof on the respondent in relation to legal responsibility. The Industrial Relations Act is white man's law; the applicant has had the benefit of being raised in and living in a white community totally governed by white man's law until he reached adult status.

The respondent is an Aboriginal Council who is trying to meld Aboriginal law with white man's law. That procedure is relatively new and extremely complex. I agree with the submission on behalf of the applicant, that the laws of the Parliament of Australia apply equally to all citizens and that no difference is accorded as to whether one is Greek, Turkish, English, Maori, or anything else. However, that submission has to be refined in my view, and I agree with the submission as to context as made by Mr Lawrence so that the circumstances of each individual claim made under the Industrial Relations Act has to be looked at.

In coming to this court and applying totally white man's law and drawing legal conclusions imputing white man contentions as to only the facts as they are found, would be unfair to the respondent Aboriginal Council. I therefore conclude it is encumbent upon me to deal with the events that occurred from 13 August until 26 September within the framework of the Industrial Relations legislation in light of the understanding of the legal implications of both parties in relations to those facts. In recording the evidence presented to the court, there has been much detail.

The applicant states the termination was unlawful and the provisions were contravened. Mr Kilvington stated that underlying is the theme that the applicant stole money. I find there to be no allegation before this court that the applicant stole money. The respondent states the termination was valid and the effects of the termination not harsh. The respondent stated the applicant was given a fair go to present his case and the special circumstances of the respondent. The respondent told the court that it was only the day before the hearing of this case, Monday, 7 August 1995 that all the witnesses for the respondent were able to be interviewed by legal representatives.

Section 170DB provides for the termination of in the case of serious misconduct. It was the opinion of the respondent that the conduct of the applicant did not fall into that category. As indicated earlier, that had the applicant's conduct occurred in a capital city of bank, there would certainly have been a finding of misconduct. So, in this case special facts have to be looked at. And they have worked in favour of the applicant. It is noted in this regard, there is no claim for notice payments. The applicant in spite of the fact of other circumstances, would have been found to commit serious misconduct. The applicant was accorded and has accepted notice payments.

There is no pleading before this court that such payment was made in error. Section 170DC says,

"An employee must have an opportunity to respond to the allegations made."

Having looked at all the evidence, I find that opportunity was accorded in the form of investigations and interviews carried out by Mr Clough. Mr Clough kept copious notes and records of his interviews with the applicant and the police relating to his investigations. Those notes have been admitted into evidence. Those notes were made available to the respondent during the course of hearing. There was no suggestion those notes insofar as the physical conditions allowed, were not an accurate representation of what took place when the applicant was interviewed. The applicant was aware his job was in jeopardy and at all times was free to volunteer any information or facts in support of his position as he chose.

Those notes were made available to the elders of the Council when a formal report of the actions of the applicant was made by Mr Clough. It is clear the applicant was given every opportunity to answer the allegation as to why he left the bank carrying money as he did. On at least three of those opportunities afforded to the applicant to answer that allegation, he provided three different answers. In other places he offered different answers yet again knowing full well the respondent would have access to those answers. The primary reason for the termination of the employment is gross neglect of duty.

The applicant has sought to say that that neglect was never clearly explained to the applicant. I do not agree with that submission. The respondent took its duties very seriously and for some reason the applicant did not. In carefully analysing gross neglect from the evidence before the court, I find that that falls into two categories. The first, the applicant according to both the applicant and the respondent, left the bank without authority carrying its money for no good reason.

The evidence showed that both Ms Kernan and Ms Nathan were shocked by the action and it can be concluded that that action was not only against all good sound banking practices, but from the evidence before this court, it was against Maningrida practices. The applicant has not demonstrated otherwise. Secondly, in the terms and conditions of his employment the applicant was charged specifically and morally with the duty of teaching Aboriginal people how to run their bank. When the applicant was employed there the bank did not run smoothly.

The evidence shows that both the applicant and the respondent attributed that fact to the fact that the applicant lacked skills to make the bank run smoothly and hence to teach his staff how to achieve this. The applicant has produced no evidence to show he ever bothered to acquire more skills to do as he was told to do, so the bank would run smoothly. From the date of 15 August 1994 when the respondent discovered that the applicant was responsible for the loss of $5000, the respondent showed it was not prepared to tolerate the situation any more.

It is true to say the applicant may not have been aware that if he failed to undertake further education he possibly faced termination. The applicant could offer no good reason, while he failed to educate himself, to see that such things did not happen. But common sense dictates that if dire consequences flow from a failure to follow a suggestion from an employer - and here those dire consequences were the loss of money - the applicant employee can reasonably expect his employment to be placed in jeopardy. I am of the view that if the applicant had undergone further training, he would not have taken the money out of the bank in the manner in which he did; he would not have been able to not account for the money nor would he have conducted the business of the bank as he did.

The applicant neglected his duty; the results that flowed from that neglect -I find that neglect to be placed in the category of gross neglect. I am satisfied that through its other employees the respondent proved that such conduct was certainly not the sort of conduct that would be tolerated or condoned. I am satisfied that the applicant was terminated for a valid reason and that the respondent has proved to this court that the reason was valid. I am satisfied that the applicant was given, during the various interview processes that took place on 16, 17 and 18 August, every opportunity to defend his position and to justify his actions in order to retain his employment.

The evidence showed that the applicant was aware that his job was in jeopardy during the course of the investigation processes. I place little weight on the fact that the applicant did not attend the final Council meeting on 23 September as he was familiar with the manner in which Aboriginal Council of Maningrida operated. And in light of his previous experience with the Council, the applicant seemingly could rely on the fact that his position would be fairly dealt with. The respondent went to pains to be guided by the best advice available to it to see that procedural fairness under the Industrial Relations Act was followed.

To my mind that procedural fairness was accorded to the applicant. In relation to the aspects of procedural fairness it is noted that from the earliest time Mr Clough sought advice. Although the evidence showed the decision to terminate technically was done without the applicant being present, I am satisfied he had every opportunity to present his case that the requirements of procedural fairness were fulfilled prior to the Council decision being made. Further, the evidence shows that the applicant was afforded the opportunity from the respondent via Mr Clough to place any mitigating or vitiating circumstances which may cause the Council to change its mind, before that Council.

As stated earlier, simply to say, "I do not want to lose my job, I want to live at Maningrida", has no bearing on why the applicant left the bank allegedly carrying $40,000 of his employer's money. I find the effects of the termination not to have been harsh and unjust on the applicant. The evidence shows the applicant not to have been disadvantaged after the termination. I accordingly dismiss the application of Kevin Boland in these proceedings.

I certify that this and the preceding 37 pages are a true and accurate record of the Revised Reasons for Decision delivered by Judicial Registrar Tomlinson in these proceedings Associate: Date: 1 September 1995 Appearances Counsel for the Applicant: Mr Kilvington Instructed by: Mr Priestley of Waters James McCormack Counsel for the Respondent: Mr Lawrence Instructed by: Ms Dikstein of the North Australian Aboriginal Legal Aid Service Incorporated