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[2002] AIRC 1525
defendant. The Commissioner extended the time for lodgement and dismissed the application.
1 cited instrument linked from this judgment.
The Commission allowed McEvoy’s application to proceed despite its late filing. After hearing the evidence, the Commissioner accepted that his job was tied to a one-off ATSIC-funded project, that the allocated wage money had been spent and that more funding was not available. The Commissioner found the position redundant and dismissed the application. The decision also noted that CQACM should have a formal process for handling employee complaints.
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Owen Edward McEvoy applied under s. 170CE of the Workplace Relations Act 1996 for relief concerning the termination of his employment by the Central Queensland Aboriginal Corporation for Media (CQACM). The Commission heard the matter in Rockhampton on 26 November 2002. McEvoy represented himself; CQACM was represented by its Chairperson, Robert Beckett [1]-[2].
McEvoy had started work on 18 July 2001 as a Cultural Research Producer. The role was to develop a cultural language project involving interviews with Aboriginal people and the collection of cultural information. The project was supported by a one-off ATSIC grant [6]. The parties agreed that the $70,000 grant included $40,000 for McEvoy’s work, $20,000 for travel and about $10,000 for a trainee [7].
The principal factual dispute was about the duration and funding basis of McEvoy’s employment. McEvoy understood that the funding arrangement could support 18 months of work and said he expected further employment, including as a cultural broadcaster [8], [10]. CQACM’s evidence was that the project and the position were limited to the funded period, that the wage allocation had been spent, and that additional funding was not obtained [9], [23]-[25].
A separate dispute concerned McEvoy’s complaint about Beckett. Following a disagreement during a work trip to Charleville, McEvoy made a written complaint on 25 June 2002. On 26 June, he received a letter saying that his position had become redundant because further ATSIC funding had not been secured [15]-[16], [26]. McEvoy alleged that the termination was connected to his complaint [6], [14]. The Commissioner recorded the complaint and the competing evidence, but the ultimate decision turned on the finding that the position was linked to the funded project and that its funding had been exhausted [32]-[34].
There was also a preliminary timing issue. The application was lodged on 18 July, one day after the 21-day period calculated from the termination date of 26 June [3]. The Commissioner exercised the discretion to extend the period, noting that CQACM had not objected and that the application would be within time if calculated from the written redundancy notification dated 2 July [3]-[4]. The matter then proceeded to an arbitration decision on the evidence.
The deciding officer was Commissioner Spencer of the Australian Industrial Relations Commission. The reasons identify the Commission as acting under the Workplace Relations Act 1996. The central factual question was whether McEvoy’s position continued independently of the specific project funding, or was linked to that funding.
The Commissioner accepted evidence that the ATSIC grant was for a one-off, 12-month project. The decision refers to correspondence from an ATSIC Field Officer stating that projects receiving funding for the 2001-2002 financial year were limited to a maximum one-year period because the relevant funding initiative was ending [25]. The Commissioner also accepted evidence that McEvoy had been told that the position depended on whether additional funding could be sourced [28]-[29], [33].
The parties disagreed about how much of the wage allocation had been spent. McEvoy said he believed funds remained and that his salary was to be reviewed in December 2002 [30]. CQACM’s evidence was that the $40,000 allocation had been used, including tax and superannuation costs. The decision also notes back-pay of $3,303.60 and a redundancy payment of $4,047.96 [31]. On the evidence and the amounts paid, the Commissioner found that the funding allocation had been discharged [31], [34].
The decision considered other circumstances supporting the funding explanation. Mrs Smallwood’s position had also been made redundant when further funding was unavailable [28]-[29], [32]. The documents described the project as successful while also recording that it could not continue without funding [13]. The Commissioner accepted the evidence that further funding for the project or a proposed additional position had not been secured [12], [32].
The reasons acknowledge that McEvoy disputed the redundancy explanation and alleged that the termination followed his complaint. However, the decision does not set out a distinct legal test for assessing a complaint-related motive, nor does it give a separate, detailed finding applying such a test. Its operative reasoning is that the job was tied to the funded project, the funds were spent and the position was redundant [32]-[34]. It would therefore be inaccurate to treat the decision as establishing a broad rule about the legal effect of employee complaints.
The Commissioner’s conclusion is concise: “the Applicant's employment contract was linked to the funded project,” the position was redundant, and the application was dismissed [34]. This is a fact-specific conclusion based on the funding and employment evidence recorded in the decision.
The decision refers to several provisions of the Workplace Relations Act 1996. The application was made under s. 170CE [1]. The Commissioner expressly relied on s. 170CE(7) to extend the lodgement period [3]-[4]. The procedural history records a conciliation certificate under s. 170CF(2) and an election to proceed to arbitration under s. 170CFA(3) [2]. The Commissioner also stated that the requirements of s. 170CG(1) had been met for arbitration to proceed [4].
The heading to the timing section refers to ss. 111(1)(r) and 111(2), while the operative explanation of the extension decision refers to s. 170CE(7) [3]-[4]. The supplied decision does not reconcile those references. Its explicit account of the discretion actually exercised is under s. 170CE(7).
The decision does not set out a general statutory test for redundancy or explain the development of redundancy law before or after 11 December 2002. Nor does it identify earlier cases or explain how its reasoning fits into a line of precedent. Its account is narrower: it evaluates evidence about this employment relationship and this grant-funded project, then finds this particular position redundant [31]-[34].
Accordingly, the decision’s value for understanding the record is clearest in two respects. First, it shows that the Commission addressed the filing delay by exercising the stated statutory discretion, rather than treating the delay as preventing the arbitration from proceeding [3]-[4]. Second, it illustrates the Commissioner’s reliance on evidence about the funding period, the wage allocation and the availability of further funding when deciding whether this role had become redundant [25], [31]-[34]. The text supplied does not establish that this reasoning was adopted as a general rule by later courts or tribunals.
At [4], the Commissioner said that the Commission should exercise its discretion under s. 170CE(7) and extend the filing period. In plain English, the application was late when measured from the termination date, but the Commissioner allowed the matter to proceed. The lack of an objection from CQACM and the alternative calculation from the written notification date were relevant circumstances [3]-[4].
At [22], the Commissioner said CQACM’s Management Collective should use a formal procedure for employee complaints. In plain English, the Commissioner considered that complaints should be dealt with through a process that is fair and transparent. This is an important observation about workplace grievance handling, but it was not the stated basis for the final order. The application was dismissed on the redundancy finding [22], [34].
At [32], the Commissioner said the Applicant was genuine and passionate about the project, and that his work was valued. The Commissioner also observed that the project had ended before full development because funding was unavailable. In plain English, the decision distinguished the value of McEvoy’s contribution from whether the funded position could continue. Positive assessments of his work did not alter the finding about the funding basis of the job [32].
At [34], the Commissioner stated that the employment contract was linked to the funded project and that the position was redundant. This is the decisive passage. In plain English, the Commissioner accepted that the job depended on a project grant that had been used up, and dismissed the application on that basis. The passage should be read in the context of the evidence the decision describes, rather than as a complete statement of a general redundancy test [31]-[34].
The decision concerns a particular combination of facts: an employee engaged to work on a specific grant-funded project; evidence that the project funding was limited in duration; a dispute about whether the employment was expected to continue beyond that period; evidence that the wage allocation had been spent; and no further funding being secured. The Commissioner also took account of other funding-dependent work ending and documents describing the project’s funding status [25], [28]-[29], [31]-[34].
For professionals analysing a similar record, the factual matters that appear relevant in this decision include the employment documents and communications, the stated length and purpose of the grant, the way the funding was allocated, the payments made from that allocation, whether additional funding was sought or obtained, and whether the role was linked to the funded activity. Those are matters reflected in this decision, not a checklist declared by the Commission as a general legal test.
The case also involved a late application and an allegation that termination followed an employee complaint. The timing issue mattered procedurally because the Commissioner had to decide whether to extend the period [3]-[4]. The complaint formed part of the factual background, including the close timing between the complaint and the redundancy notification [15]-[16]. However, the dismissal is expressly based on the finding of redundancy, and the reasons do not set out a comprehensive test for deciding complaint-related termination allegations [32]-[34].
The safest description of the decision’s reach is therefore narrow. It demonstrates how Commissioner Spencer assessed evidence of the funding basis of this job and the exhaustion of this project’s wage funds. The supplied text does not establish that every role funded by a grant is necessarily redundant when funding ends, or that the same result follows where employment terms or other evidence differ.
The supplied judgment contains no citations to earlier cases, and the materials provided do not include later judgments or tribunal decisions discussing this decision. Its treatment by later courts therefore cannot be determined from the source text available here.
The decision itself records a Commission arbitration and gives Commissioner Spencer’s reasons [1]-[2]. It does not describe itself as applying or distinguishing precedent, and the precedent-relationship field is consequently empty. There is no basis in the supplied material to say that later courts followed, approved, distinguished or overruled its reasoning.
For research purposes, this means the decision can be described as a fact-specific Commission determination, but no claim about its subsequent precedential treatment can be grounded in the text supplied. Any account of later treatment would require additional legal sources that are not included here.
The decision does not reproduce the full employment contract or resolve every disagreement about what McEvoy was told when he started. McEvoy said he understood that the project could continue for 18 months and that he would continue in a broadcasting role, while CQACM’s witnesses said he knew the position was funded for 12 months unless more money was obtained [8], [10], [23], [28]-[29]. The Commissioner accepted the latter account for the purpose of deciding this application [32]-[34], but the supplied reasons do not detail every communication or document bearing on that dispute.
The decision states that the $40,000 wage funding was exhausted, referring to evidence about tax, superannuation, back-pay and payments to McEvoy [31]. It does not provide a full accounting ledger or set out a calculation reconciling every payment against the original grant. The conclusion is that the evidence and sums paid demonstrated expenditure of the allocation [31], [34].
The complaint issue is also not developed into a separate legal analysis. The decision recounts McEvoy’s account of the Charleville conflict, his written complaint and the timing of the redundancy letter [15]-[21]. It records Beckett’s position that the conflict was not an ongoing issue and that the redundancy resulted from lack of funding [30]. But the reasons do not identify a distinct statutory test for the alleged connection or set out separate findings on each element of such a test. The final reasoning is the finding that the job was linked to the funded project and had become redundant [32]-[34].
Finally, the Commissioner’s observation about formal grievance procedures [22] is not accompanied by details of a particular procedure or a specific finding about the consequences of CQACM’s handling of this complaint. The decision says that a formal process is necessary to support a fair and transparent approach, but does not state that this observation altered the redundancy finding or the disposition.
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s.170CE application for relief in respect of termination of employment
Central Queensland Aboriginal Corporation for Media
[1] This decision arises from an application by Mr. Owen Edward McEvoy (the Applicant) pursuant to s. 170CE of the Workplace Relations Act 1996 (the Act) for relief in respect of the alleged unfair termination of his employment on 26 June 2002 by the Central Queensland Aboriginal Corporation for Media (CQACM, the Respondent). The Applicant lodged his application with the Commission on the requisite Form R18 on 18 July 2002.
[2] In accordance with the Act, the matter was referred to Ms L. Soetens for conciliation on 2 August 2002, and for a further conciliation conference (convened in Rockhampton) before Commissioner Hoffman on 21 August 2002. On 25 September 2002, Commissioner Hoffman issued a certificate pursuant to s. 170CF(2) of the Act in respect of this matter. The Applicant lodged an Election to Proceed to Arbitration on the requisite Form R25 pursuant to s. 170CFA(3) of the Act on 2 October 2002, and the matter was heard in Rockhampton on 26 November 2002.
SECTION 111(1)(r) AND SECTION 111(2) OF THE ACT - APPLICATION TO EXTEND PRESCRIBED PERIOD FOR LODGEMENT
[3] The Applicant's application in this matter was lodged in the Commission on 18 July 2002, one day after the expiration of the prescribed 21 day period for lodgement from the date of his termination on 26 June 2002. No request was made by the Applicant for the Commission to exercise its discretion pursuant to s. 170CE(7) of the Act to extend the prescribed period for lodgement. The Respondent at no time objected to the late lodgement. The application is, however, within time if the 21 days is calculated from the written notification of the Applicant's Redundancy from the Respondent on 2 July 2002.
[4] I am satisfied that, in all the circumstances of this case, and noting the failure of the Respondent to notify any objection to late lodgement, I should exercise the discretion of the Commission pursuant to s. 170CE(7) of the Act, and I do so to permit the extension of the prescribed period of time for the lodgement of the Applicant's application in this matter on 18 July 2002. I am satisfied that the requirements of s. 170CG(1) of the Act have been met in order for the arbitration of this matter to proceed.
[5] The Applicant in this matter was self-represented, and the Respondent was represented by the CQACM Chairperson, Mr Robert Beckett.
[6] The Applicant was engaged on 18 July 2001 by the then General Manager, Ms. Stacey Miller, as a Cultural Research Producer to develop a cultural language project. The project entailed collecting, by way of interviews with Aborigines, cultural information related to the heritage of Aboriginal language. This project was funded by a one-off grant from the Aboriginal and Torres Strait Islander Commission (ATSIC)[1]. The Applicant considered that the grant was to be extended by way of an agreement to allow for 18 months of work on this project. Further to this, he understood that he was employed as a Language Programmer and Cultural Broadcaster. He alleged that his employment was terminated after he made a complaint to the CQACM about Mr. Beckett, the current General Manager.
[7] The agreed evidence was that the $70, 000 ATSIC grant was comprised of a $20, 000 travel budget to undertake the appropriate interviews to compile culturally significant Aboriginal stories and songs for broadcast on the CQACM. A further $40, 000 was allocated for payment of the Applicant for his role in organising and completing the project. A component of approximately $10, 000 was included for wages for a Trainee to assist the Applicant with this project.
[8] The Applicant provided evidence that an agreement was reached between himself and the former General Manager to extend the 12 month funding period to 18 months by reducing the Applicant's weekly wages from the $40, 000 grant. He contended that doing so would allow the project to reach full development. The Applicant stated that it was further agreed he would receive weekly "top-up monies" from the Cultural Development Employment Program (CDEP) fund of $185 per week, in addition to the ATSIC funding.
[9] The Applicant maintained that, at the time of his termination, funding from the ATSIC fund of $40,000 remained and that such monies would have allowed him a further 6 months of employment to the end of December 2002. This was denied by the Chairperson of the CQACM, Mr. Robert Beckett, who gave evidence that the $40, 000 in funds had been expended on this project. Mr Beckett stated that the depletion of the ATSIC grant for this project and the non-renewal of the funding were the reasons that the Applicant's employment had been made redundant.
[10] The Applicant provided evidence that he was a single Aboriginal man of 50 years and he had anticipated ongoing employment with the CQACM. He stated that he was of the understanding he had been employed on a permanent, full time basis as a Cultural Research Producer, 4US Language Programmer and Cultural Broadcaster in July 2001, after having worked there as a volunteer for some time, and had completed a probationary period of three months. The Applicant stated in his statement that:
"The above roles of Cultural Research Producer and 4US Language Programmer were to cease in December 2002, but I was to continue as Cultural Broadcaster.[2]
[11] The Applicant submitted that the funding for the project was a `one off thing' and that this project work was not full time:-
"...At that time I asked her about the advertising aspect of it. She had informed me that it's only a one off thing and it wouldn't be a full-time thing but the end result of the cultural producer's job was to ensure that down the track that there will be a position for a cultural broadcaster, which is a specific position. Not like any other position like a person who plays country and western music or the - hip hop, this is all categorised....[3]
"I was told in the letter confirming my dismissal that my position had become redundant but that a new position of Cultural Research Unit Co-ordinator was to be advertised".[4]
Both Mr Beckett and Mrs. Margaret Smallwood (also a member of the CQACM Management Collective) provided evidence that the new position was not advertised, as further ATSIC funding was not obtained.
[13] Mr Beckett provided evidence that he was the Applicant's Uncle. The Applicant's work was commended by both Mr. Beckett and Mrs Smallwood. They considered that the materials developed by the Applicant were of a very high standard and that he had made a valuable contribution. The Applicant had been awarded a plaque by Mr Beckett for his work on this project. Exhibits 11 and 12, the CQACM Activity Performance Measures, further confirm that funding for the Applicant's project had ceased and was not renewed. The report describes the project as a "complete success". It also states: "I do not consider this activity complete, simply it does not have any existing funding".
[14] The Applicant was concerned that whilst he had substantially completed his part of the project in compiling the information in line with the objectives of the ATSIC funding, these materials would now not be fully utilised because he had been terminated. The Applicant alleged that his employment had been terminated after he made a complaint against Mr Beckett.
[15] The agreed evidence was that during a trip by car to Charleville by Mr. Beckett and the Applicant to collect some of the cultural materials, a conflict had arisen about a number of things, including the use of the CQACM vehicle. During this conflict, the Applicant stated that he was threatened with physical abuse by Mr. Beckett and he subsequently made a written complaint about Mr Beckett to the CQACM. The incident arose on 24 June 2002, and on 25 June 2002he made his written complaint to the CQACM. On 26 June 2002, he received a letter from Mr. Beckett stating that his position had been made redundant and that further funding had not been forthcoming from ATSIC to renew the position or the project.
[16] The nature of the Applicant's complaint was that Mr Beckett had failed to pick him up for work on 22 and 23 June 2002. In addition, the Applicant had been annoyed that an Aboriginal elder known as Mr. Fraser, whom the Applicant had organised to interview for his project, had been interviewed the night before by Mr. Beckett.
[17] The Applicant explained his frustration with Mr Beckett's disrespect for him and the project as follows:
"We drove to a location to do the interview. I proceeded to interview Mr. Fraser, beginning with songs he is known to have. I said we are going to do an audio visual recording of this then he said I did that last night with him pointing to Robert. I looked at Robert and he started laughing. He said also `No old fella he went them songs for this one' [sic]. That was very disturbing - it was wrong for Robert to have interviewed Mr. Fraser while I was present - It was wrong for Robert to have held back the information of his interviewing Mr Fraser. And that he treated the whole matter as a joke."[5]
[18] He further set out that on Monday 24 June 2002:
"Robert made no attempt to contact me on this morning concerning anything in the afternoon of this day Robert threatened to cause bodily harm to my person".
He stated that Mr. Beckett had determined that he would return to Rockhampton that afternoon in the Corporation vehicle.[6] Mr Beckett explained that he had to return to attend an organised CQACM Management Collective Meeting.
[19] The Applicant set out in his letter of complaint that:
"I told Robert, I have not completed my duties - We are scheduled back tomorrow and I'm keeping the car and staying till I finish the job".[7]
"Robert jumped out of the car screaming abuse at me then ultimately offering to fight me. I said `Robert, you raise a hand to me and you will end up in jail. This is my job I am here for and I am in charge of the operation'. He calmed down".[8]
[21] A further complaint was made by the Applicant against Mr. Beckett on 28 June 2002. In the complaint, the Applicant states that Mr Beckett, rather than advising him that he was terminated, said: "Give me the keys and get out or I'll move you out".[9]
[22] I acknowledge that the Applicant was concerned that there was no formal response to him in relation to the complaints, particularly when the events coincided with his redundancy. It is necessary that the CQACM Management Collective utilise a formal procedure to deal with such complaints to ensure that a fair and transparent process is discharged in respect of employees' grievances.
[23] Mr Beckett stated that the redundancy was activated by the end of the funded project. Mr Beckett and Mrs. Smallwood gave evidence that the Applicant knew the project was only for a period of 12 months, and had been funded by a grant from ATSIC for the purpose of this project.[10]
[24] The following document (Exhibit 10), prepared by Mr. Robert Beckett, set out the employment status of the Applicant:
Please be advised on the employment status of Mr Owen McEvoy at CQACM.
Mr McEvoy was initially employed by our media organisation on 18.07.01. On commencement of his appointment, Mr McEvoy was placed on a three month probation period, of which he had no problems in passing. At the time of Mr McEvoys appointment as the new Cultural Research producer it was also stipulated to him that the program was only to be funded for a period of twelve months, through our funding body, ATSIC. Although additional funding was sourced through various funding avenues, we unfortunately were unable to secure any additional funding to continue running this program, and subsequently the position became redundant. It is with great misfortune that ATSIC could not continue to fund this important, if not vital project, however these are the pitfalls of being dependent on ATSIC funding.
Mr McEvoy received his last weekly payment of $547.96 (net) on the 26th June 2002. Mr McEvoy also received a very generous remuneration package of $4047.96, leaving the Management Collective of our organisation `stunned' that he would ask for additional monies from a position that was held by himself for only twelve months. All funding for this project was expended on 26th June 2002, after a maximum remuneration package was signed, and witnessed. All relevant information will be made available to the appropriate delegate on request.
[25] This material on the duration of the funding is in accordance with the correspondence from Mr. Albert Hegarty (ATSIC Field Officer, Rockhampton regional office) in Exhibit 6, which provides that:
"Projects that receive funding for the 2001-2002 financial year are limited to a maximum 1 year period as funding for the Language Access Initiative runs out in 2001-2002".
[26] The Applicant was sent the following letter from the CQACM Member Management Collective, which was dated 26 June 2002 and signed by Mr. Beckett. The letter set out his redundancy as follows:
It is with deep regret that we inform you that the position of Cultural Research Producer had recently become redundant.
Please be advised that the new position of Cultural Research Unit Coordinator will be advertised in the Morning Bulleting on Monday, 8th July 2002, in accordance with ATSIC guidelines.
The Management Collective strongly recommend that you apply for this position as your recognised prior learning gives you a very strong possibility of filling this position.
Please be advised that a severance package of four weeks ($4, 047.96) is available to you through the Chairperson, on receipt of all CQACM's properties and assets".[12]
[27] The Applicant signed the following letter in acceptance of the redundancy package. The letter was as follows:
The Management Collective of Central Qld Aboriginal Corporation for Media would like to offer you a redundancy package of accrued entitlements, at your previous rate of Cultural Research Producer. If you accept this package as being true and accurate account of which you are entitled, please sign below in receipt of a cheque for the amount of $4,047.96.
The Management Collective would also like to take this opportunity to express our appreciation, for all your assistance, and efforts in promoting the growth, and development of our organisation.
Your work ethics, and motivation had not gone unnoticed, and for that too we commend you.
The letter was signed by Mr Beckett. The Applicant signed this correspondence in acceptance of receipt of the redundancy payment, recorded on the letter as cheque number 001009.
[28] Mrs Smallwood confirmed in her evidence that she had been employed by the CQACM for 3 years and had been a member of the CQACM's Management Collective for the past year and a half. She provided evidence that her ATSIC funded position had also been made redundant due to the non-renewal of the ATSIC funding. She also provided evidence that she had discussed with the Applicant the fact that his position was for the limited term of 12 months. She expressed disappointment that her position and the project on which the Applicant had been working had been finalised due to the lack of further funding.
[29] Mrs. Smallwood set out in her statement that:
"...the organisation was lucky enough to gain funding to see the growth in establishing Publishing and a Cultural sections within the organisation. It was at this time that I was given the responsibility as Editor of a magazine called "Tell-us-Murries", which has been in existence for more than 15 years, to my knowledge.
It was also during this time that Mr McEvoy, who approached CQACM with his knowledge of Culture and his willingness to starting a program on Radio 4US. Mr McEvoy was placed on a Community Development Employment Program (CDEP) prior to full time employment as Cultural Broadcaster.
To my knowledge Mr McEvoy performed his duties to the best of his abilities as Cultural Broadcaster whilst employed at CQACM. During one time as Editor, I accompanied Mr McEvoy to Woorabinda to interview a well-known Bidgera Elder. I still to this day, enjoyed this experience as it enabled for me to get a closer insight into Culture. I have nothing but praise for the work Mr McEvoy performed whilst he was a Cultural Broadcaster.
As a work colleague, during the last quarter of the 2001/2002 financial year I informed Owen McEvoy that funding for the Cultural/Language Section would be depleted by June 2002. I also informed Mr McEvoy that this was a one off funded activity for CQACM unless we could convince ATSIC otherwise or source funding from elsewhere. Mr McEvoy travelled to Charleville for further funding to convince the Regional Commissioner of ATSIC that this was a valuable tool (Culture Program) for that community and if any financial assistance were available, that it would have been greatly appreciated. I thought that this trip was a success. It was to my belief that Mr McEvoy understood the implications of what this meant. (That if no more funding was available).
I, myself, was placed into this very same position when the funding for the Publishing section wasn't forthcoming. This was a surprise to myself as well as the community, as stated prior, as this magazine, Tell-us-Murries, had been established in the Central Queensland area for well over 15 years. The position for Editor was made redundant."[14]
[30] The Applicant did not consider that the $40, 000 ATSIC funding for his wages had been fully used. He stated: "When I was employed I was earning approximately $540.00 net per week, including CDEP contributions" (of $185 per week). "...My salary was to have been reviewed in December 2002."[15] He alleged his dismissal was linked to the complaint he made against Mr. Beckett after the trip to Charleville where conflict arose between the two. In Mr Beckett's evidence, he confirmed that whilst the conflict did arise in Charleville, it was not an ongoing issue in his mind, and he endeavoured to restore relations between the two of them immediately after. Further, he asserted that the redundancy was solely based on the fact that the ATSIC funding was not renewed to continue this project, similar to the circumstances of Mrs Smallwood's position as editor of the "Tell-us-Murries" magazine.
[31] Exhibit 3 (the Applicant's Commonwealth Bank Statements) and Exhibit 12 indicate the Applicant's remuneration net of tax. Mrs. Smallwood provided evidence that the $40, 000 ATSIC funding for the wages of the Applicant's position was an all-encompassing amount that included the tax to be paid and the payment of the 9% statutory charge for superannuation. An amount of $3303.60 in back-pay was also paid to the Applicant for the probationary period he served (as set out in Exhibits 7 and 8). In addition, he was paid $4, 047.96 as a redundancy payment. The evidence supports and demonstrates that the Applicant's position was finalised due to the expenditure of the available funding for the Applicant's wages on the project.
[32] The Applicant presented as a very genuine person who was disappointed that the project which he was clearly passionate about, and which he had put a considerable amount of work and effort into, had been terminated prior to its full development. It was clear that all those involved considered that the work of the Applicant was particularly valuable and his contribution and methods were not, in any way, in question. On the evidence and materials before me, it is clear that the basis of the Applicant's employment was linked to the ATSIC funding, which was for a 12 month, one-off project. It was also evident that the funding had been exhausted, thus causing the termination of the Applicant's contract. Other positions also dependent on funding, such as that of Mrs. Smallwood, were also made redundant. Whilst there may have been an intention to continue the Applicant in a further funded position, this was not possible when the funding for such a project was not granted.
[33] The evidence of Mrs Smallwood's discussions with the Applicant confirms that he was clear on the conditions of the Cultural Research Producer's position, and that the allocated funds could only sustain this position for up to a year, unless additional funding was sourced. Mr Beckett and Mrs Smallwood contended that due to the funding cuts from ATSIC, they were unable to continue the position of Cultural Research Producer. The Applicant signed, in acceptance of a Redundancy severance package agreement, confirming that the position had become redundant.
[34] On an assessment of the evidence and the sum of monies paid to the Applicant from the ATSIC funding, it is evident that the funding of $40,000 was discharged. On the evidence it is clear that the Applicant's employment contract was linked to the funded project, and therefore, I find that the position was redundant. Accordingly, I dismiss the application.
The Applicant, Mr. OE McEvoy, was self-represented.
The Respondent, CQACM, was represented by Mr. R Beckett.
Printed by authority of the Commonwealth Government Printer
1 Transcript, Tuesday 26 November 2002, PN75, PN169 & PN254.
2 Exhibit 1 - Statement of Evidence for Owen Edward McEvoy.
4 Exhibit 1 - Statement of Evidence for Owen Edward McEvoy.
15 Exhibit 1 - Statement of Evidence for Owen Edward McEvoy.
Owen Edward McEvoy
Central Queensland Aboriginal Corporation for Media - PR925644 [2002] AIRC 1525;
The Commissioner extended the time for lodgement and dismissed the application.