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[2002] AIRC 1564
defendant. The filing period was extended and McEvoy’s application was dismissed.
McEvoy said that his dismissal followed a complaint about the CQACM Chairperson and that funding remained to keep him employed. The Commission accepted that his job was created for a project funded by a one-off ATSIC grant, that the relevant wages funding had been spent, and that additional funding had not been secured. It also considered that McEvoy had been told the role was limited to the funded period. Although it criticised the absence of a formal process for his complaint, it found that the complaint did not displace the funding-based reason for the redundancy. The Commission allowed the late application to proceed, but dismissed it after finding the termination was not harsh, unjust or unreasonable.
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1,806 words · generated 30/09/2026
Owen Edward McEvoy applied to the Australian Industrial Relations Commission for relief concerning the termination of his employment by the Central Queensland Aboriginal Corporation for Media (CQACM). The application was made under s 170CE of the Workplace Relations Act 1996. The decision identifies 26 June 2002 as the termination date and records that McEvoy lodged his application on 18 July 2002 ([1], [3]).
1 cited instrument linked from this judgment.
McEvoy had been engaged on 18 July 2001 as a Cultural Research Producer. His work was to collect cultural information, including interviews about Aboriginal language heritage, for a project funded by a one-off grant from the Aboriginal and Torres Strait Islander Commission (ATSIC) ([6]). The agreed evidence described a $70,000 grant, including $40,000 allocated for McEvoy’s work, $20,000 for travel and approximately $10,000 for a trainee ([7]).
The parties disagreed about the duration and funding of the employment. McEvoy said there had been an agreement to extend the funded period from 12 to 18 months by reducing his weekly wages, together with weekly top-up payments from the Community Development Employment Program ([8]). He believed that $40,000 remained and would have funded another six months of employment ([9]). CQACM’s Chairperson, Robert Beckett, said the grant had been expended and that funding had not been renewed ([9]).
A separate dispute arose during a work trip to Charleville. McEvoy said Beckett had failed to collect him for work on 22 and 23 June and had interviewed an elder whom McEvoy had arranged to interview. McEvoy alleged that Beckett threatened him during a disagreement about the trip and the use of the organisation’s vehicle. McEvoy made a written complaint on 25 June. On 26 June he received a letter stating that his position had become redundant because further ATSIC funding had not been obtained ([15]–[20], [26]).
The Commission first addressed the late filing. The application was one day outside the 21-day period when calculated from 26 June, but the respondent had not objected. The Commission used its discretion to extend time, then heard the merits at arbitration ([3]–[4]). Its decision of 17 December 2002 dismissed the application ([45]).
The decision-maker was Commissioner Spencer. The central factual finding was that McEvoy’s job was linked to a particular funded project, and that the allocated funding for his wages had been used. The Commission considered evidence about the grant, the employer’s records, the payments made to McEvoy and the evidence of Beckett and Margaret Smallwood. It concluded that the $40,000 wages allocation had been discharged ([31], [45]).
The Commission treated the cessation of funding as a valid reason for the termination. It said that the position was based on ATSIC funding, as McEvoy’s own submissions also indicated ([33]). It found that McEvoy had been told the role was for a one-off 12-month period, and that discussions with Smallwood confirmed the funding limitation ([42], [44]). Its conclusion was not that all funding-dependent employment must end in the same way. Rather, it found on this record that the project funding had run out, further funding was not obtained, and the position was redundant ([43]–[45]).
The Commission then considered the matters listed in s 170CG(3). It found McEvoy was notified in writing of the reason for termination ([34]). Because the termination was not based on capacity or conduct, the Commission found there was no obligation to give him an opportunity to respond to a capacity- or conduct-related reason ([35]). It found no evidence that the decision was based on unsatisfactory performance, noting that his work had been commended ([35], [37]).
It also considered the employer’s size and human resources procedures. CQACM was described as a community-based organisation with a small workforce and volunteers, and no evidence showed it had a human resources or industrial relations specialist ([39]). The Commission considered that a specialist might have handled McEvoy’s complaint more appropriately. It nevertheless found that this did not counteract the funding-based reason for ending the position ([39]).
The complaint remained relevant to the overall context. McEvoy was concerned that the timing of the redundancy, immediately after his complaint, indicated a connection. The Commission acknowledged that no formal response had been made and said the Management Collective should use a formal complaint procedure to support a fair and transparent process ([22]). However, it accepted the evidence that the project’s funding had ended and noted that Smallwood’s own funding-dependent position had also become redundant ([28], [41]–[43]). The decision therefore distinguishes the handling of the complaint, which it criticised, from the reason it found for the termination.
The decision applies the statutory scheme as it stood under the Workplace Relations Act 1996. It identifies s 170CE(1)(a) and s 170CG(3) as governing whether a termination was harsh, unjust or unreasonable, and separately refers to ss 111(1)(r) and 111(2) for extending the application period ([3]–[4], [32]).
The decision does not review the history of those provisions, cite earlier cases explaining them, or set out a general account of the law before this dispute. Nor does the supplied judgment establish a change in the law after the decision. Its contribution, within the text provided, is an application of the statutory factors to the particular evidence about a grant-funded role.
The Commission’s reasoning shows how it approached those factors in this case: it considered the reason for termination, whether the employee was told that reason, whether a response opportunity was relevant, performance, the employer’s size and expertise, and other circumstances ([32]–[41]). It then reached an overall conclusion under the statutory test ([42]). This description should not be treated as a statement of current Australian employment law. The judgment concerns a 2002 statutory framework, and the supplied material does not provide subsequent legislation or authorities.
At [4], Commissioner Spencer said that, given the circumstances and the respondent’s failure to object, the Commission should extend the filing period. In plain English, the Commission did not treat the one-day delay as a bar to hearing the application. It exercised the discretion it identified in ss 111(1)(r) and 111(2).
At [33], the Commission found a valid reason because the applicant’s position was based on ATSIC funding. This was the key merits finding. The Commission tied the reason for the redundancy to the ending of the project’s financial support, rather than to McEvoy’s complaint or work performance.
At [39], the Commission said a dedicated specialist might have dealt with the complaint more appropriately, but that this did not counteract the funding having run its course. In plain English, the Commission regarded the complaint-handling weakness as relevant, but not enough to change its assessment of why the position ended.
At [42], the Commission concluded that the termination was not harsh, unjust or unreasonable. It relied on its findings that McEvoy knew the job depended on one-off, 12-month funding, that the end of funding was the basis for redundancy, and that the funding cessation process also affected another position.
At [45], the Commission concluded that the funding had been spent, the employment contract was linked to the funded project, the position was redundant, and the application should be dismissed. That is the operative outcome.
The reasoning is most relevant to a fact pattern where employment is said to have been created for a defined, externally funded project; the funding is time-limited; and the employer says the role ended because the funds were exhausted or not renewed. In McEvoy, the Commission relied on evidence about the original grant, the intended 12-month period, the expenditure of the wages allocation, the written redundancy notice and the absence of further funding ([7], [24]–[26], [31]).
The case also illustrates the importance of a dispute about what the employee was told. McEvoy asserted an understanding that the project could continue for 18 months and that funds remained. The Commission accepted evidence that he had been told the role was limited to a year unless further funding was sourced ([8]–[9], [28], [42]–[44]). The decision’s reasoning therefore depends on its factual findings about the grant and communications, not merely on the label “redundancy”.
The judgment also addresses a situation where an employee alleges that termination followed a workplace complaint. Here, the complaint was made the day before the redundancy letter. The Commission acknowledged the lack of a formal complaint response, but accepted that the funding had ended and found no capacity, conduct or performance reason ([15], [22], [35], [37], [41]). It does not establish that timing is irrelevant in other matters. Its conclusion turned on the evidence before Commissioner Spencer.
Finally, the decision includes a filing issue: an application one day outside the prescribed period, with no objection from the respondent. The Commission extended time in those circumstances ([3]–[4]). The judgment does not provide a comprehensive test for all late applications.
The supplied judgment contains no later decisions and no discussion of how a subsequent court or tribunal treated PR925812. It also does not cite any earlier judicial decisions as authorities. Accordingly, the source material does not establish whether the decision was followed, distinguished, or otherwise treated later.
The decision should be read as a fact-specific Commission determination applying the provisions it identified in the Workplace Relations Act 1996. No broader claim about its precedential status or present-day legal effect can be drawn from the judgment alone. Any account of later treatment would require additional legal sources, which are not included in the supplied material.
The judgment does not reproduce the grant agreement or resolve every detail of the asserted 18-month arrangement. It records McEvoy’s evidence about reduced weekly wages and CDEP top-up payments, and the employer’s contrary position, but the Commission’s central finding was that the available funding had been expended ([8]–[9], [31], [45]). The source does not set out a detailed accounting of every grant transaction.
The decision also does not explain what procedure the Management Collective should adopt for complaints. It states that a formal procedure is necessary to support a fair and transparent process, but does not prescribe its contents or determine that the procedural shortcoming made this termination unfair ([22], [39]).
There is no broader analysis of how the complaint’s timing should be weighed in cases where funding is also said to have ended. The Commission accepted the funding explanation on the evidence in this matter, while acknowledging the applicant’s concern about the lack of a complaint response ([22], [30], [41]–[43]).
Finally, the judgment does not address how its reasoning interacts with later amendments to employment legislation or later authorities. Those questions cannot be answered from this decision alone.
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s.170CE application for relief in respect of termination of employment
Central Queensland Aboriginal Corporation for Media
This decision replaces a previous decision [PR925644.
[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 - EXTENSION OF 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. 111(1)(r) and s. 111(2) 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 the late lodgement, I should exercise the discretion of the Commission pursuant to s. 111(1)(r) and section 111(2) 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 Management Collective Chairperson.
[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 the Applicant was his 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 2002 he 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 [sic] - 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.
SECTION 170CE(1)(a) AND SECTION 170CG(3)(a) OF THE ACT
[32] Sections 170CE(1)(a) and 170CG(3)(a) of the Act relate to whether the termination is harsh, unjust or unreasonable, and whether there was a valid reason for the termination.
[33] The Respondent identified the finalisation of the funding and the lack of ongoing funding as the cause of the redundancy, and led evidence in support of that submission. I find that there was a valid reason for the termination, as the Applicant's position was based on the ATSIC funding, as identified in his own submissions.
[34] In determining whether a termination was harsh, unjust or unreasonable, the Commission must, pursuant to s.170CG(3)(b) of the Act, have regard to whether the Employee was notified of the valid reason for the termination. In this matter, the Applicant was informed in writing of the reason for the termination, and he confirmed this by signing the correspondence in receipt of the redundancy payment.
[35] In determining whether a termination was harsh, unjust or unreasonable, the Commission must, pursuant to s. 170CG(3)(c) of the Act, have regard to whether the Employee was given an opportunity to respond to any reason related to their capacity or conduct. The CQACM had no obligation to provide the Applicant with an opportunity to respond to any reason related to his capacity or conduct, as his termination did not relate to his capacity or conduct. The Applicant had been commended on his project work. It was the fact that the funding for the project had ended that caused the redundancy of his position.
[36] Section 170CG(3)(d) of the Act relates to whether the termination was for unsatisfactory performance by the Employee, and whether the Employee was warned about the unsatisfactory performance prior to termination.
[37] I have found no evidence to support a conclusion that any reason for the termination of the Applicant's employment by the CQACM related to unsatisfactory performance.
[38] Sections 170CG(3)(da) and 170CG(db) of the Act relate to the degree to which the size of the Employer's undertaking, establishment or service, or to which the absence of a dedicated human resource management specialist or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination.
[39] The CQACM is a community-based organisation, conducted by a small workforce and a number of volunteers. There is no evidence that it employs a Human Resource or Industrial Relations specialist. Human Resources issues have been dealt with by the General Manager, the Chairperson or the Management Collective. It is likely that a dedicated specialist would have dealt with the Applicant's complaint more appropriately; however, this does not counteract the fact that the Applicants position was reliant on the ATSIC funding that had run its course.
[40] In determining whether a termination was harsh, unjust or unreasonable, the Commission must, pursuant to s. 170CG(3)(e) of the Act, have regard to any other matters that the Commission considers relevant.
[41] The Applicant has submitted that he should not have been selected by the CQACM for redundancy, as ATSIC funds remained to support his employment for a further 6 months and his understanding was that he would be provided with further employment. These matters were assessed, and the evidence supports the Respondent's contention that the funding had been fully expended and that no additional funding was provided for a further role.
SECTION 170CG(3)(a)-(e) OF THE ACT - WAS THE TERMINATION HARSH, UNJUST OR UNREASONABLE?
[42] After applying each of the elements of the "harsh, unjust or unreasonable" test in s. 170CE(1)(a) and s. 170CG(3) of the Act to the facts and relevant considerations of this case, I am of the view that the termination was not harsh, as the Applicant was made aware that his employment was based on a one-off 12 month ATSIC grant. The Applicant had been made aware of this at the commencement of his employment and it had been further confirmed in his conversations with Mrs Smallwood. The redundancy was not unjust, as there was not a lack of fairness on the Respondent's part in exercising the redundancy, based on the end of the funding for the Applicant's position. The process where the funding was completed and not renewed was also applied to Mrs Smallwood's Editor's position. The termination was also not "unreasonable" because the redundancy was based on a valid reason, arising from the cessation of the period of funding for the position.
[43] 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.
[44] 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.
[45] 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 - PR925812 [2002] AIRC 1564;
The filing period was extended and McEvoy’s application was dismissed.