Hansen v Northern Land Council [1999] NTSC 69

PARTIES:	PETER JULIAN HANSEN

	v

	NORTHERN LAND COUNCIL

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	CIVIL

FILE NO:	No 143 of 1993 

DELIVERED:	12 July 1999

HEARING DATES:	17-19 November 1998, 8 February, 1-5 March, 17-19 March and 9 June 1999 

JUDGMENT OF:	ANGEL J

REPRESENTATION:

Counsel:
	Plaintiff:	S Southwood
	Defendant:	B O’Loughlin

Solicitors:
	Plaintiff:	A G James
	Defendant:	Northern Land Council

Judgment category classification:	B
Judgment ID Number:	ang99005
Number of pages:	42

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA

No 143 of 1993
(9315757)
Hansen v Northern Land Council [1999] NTSC 69
No 143 of 1993

	BETWEEN:

	PETER JULIAN HANSEN
						Plaintiff

	AND:

	NORTHERN LAND COUNCIL
						Defendant

CORAM:	ANGEL J

REASONS FOR JUDGMENT

(Delivered 12 July 1999)

INTRODUCTION

[1]	This is an action for damages for wrongful dismissal.  
[2]	The plaintiff was employed by the defendant as a Senior Policy Adviser in December 1992.  On 23 February 1993 the defendant terminated the plaintiff’s employment as from 4 March 1993.  There is little common ground.  The parties dispute the terms of the plaintiff’s employment by the defendant, the plaintiff’s competence for his employment, his conduct and performance whilst employed, the circumstances of termination; whether the grounds given by the defendant for termination were justified and both the quantum and bases of the plaintiff’s claimed loss.
THE PARTIES

[3]	At the time the plaintiff applied for the position of Senior Policy Officer with the defendant his experience, qualifications and abilities well suited him to the position.  He had been the principal Policy Adviser and senior staff member of Senator A T Gietzelt, a Minister under the Federal Labour Government of the Hon R J L Hawke AC, in charge of the Veterans Affairs portfolio.  He was well qualified for employment in the defendant’s senior executive position of Senior Policy Adviser.  His duties in that position included supervising and coordinating activities of staff attached to the directorate, overseeing the defendant’s liaison, information and public relations functions, ensuring a broad, active public profile in the media whilst maintaining cohesion between the operations of the defendant and the aspirations of its constituents with its public posture, and liaising with government, other Land Councils and other significant Aboriginal political community and social organisations on matters significant to the defendant.  The position of Senior Policy Adviser required initiative and autonomy on the part of the incumbent.
[4]	The defendant is a body corporate established pursuant to the Aboriginal Land Rights (Northern Territory) Act (Cth).  At the time of the matters in dispute the Director of the defendant was Mr Michael Dodson who gave evidence.

THE ISSUES

[5]	The plaintiff puts his case on two broad bases.  
[6]	First, he puts his case as follows:
(a)	The plaintiff was employed for a three year term from 3 December 1992 to 3 December 1995.
(b)	It was a condition of the plaintiff’s three year contract of employment that he was to complete a probationary period of six months.
(c)	The probationary period was a proper period of review.
(d)	The plaintiff’s performance during the probationary period was to be assessed objectively and reasonably; for the plaintiff to be found to be unsuitable and to have his contract terminated there had to be objective evidence which in fact reasonably established his unsuitability.
(e)	This is not a case such as Hogan v Tumut Shire Council (1954) 54 SR (NSW) 284, where the contract was subject to duties being carried out to the entire satisfaction of the employer.  The plaintiff says it is not to the point that the defendant via the Director Mr Dodson might have been personally dissatisfied with the plaintiff’s performance.
(f)	The defendant’s internal probationary structure contained procedures which had to be followed before any employee’s employment, including that of the plaintiff, could be terminated as a result of probationary assessment.
(g)	The probationary procedure was to form part of the terms of the plaintiff’s employment as a result of a telephone conversation between Mr Dodson and the plaintiff on 2 December 1992.
(h)	The plaintiff’s termination was unlawful as, not being in accordance with the procedures contained in the probationary structure of the defendant, it was unjustified, the grounds of termination contained in the defendant’s letter of 22 February 1993 having no basis, and the plaintiff having performed his duties in a satisfactory manner.
The second alternative basis of the plaintiff’s claim is that even if, which the plaintiff denies, it was a condition of the plaintiff’s employment that during his probation he was required to perform his duties to the entire satisfaction of the defendant, the termination was nonetheless a breach of contract because it was not bona fide and was done for an ulterior purpose quite unrelated to the plaintiff’s probationary assessment, namely, to be rid of the plaintiff’s inconvenient insistence that the defendant’s accounts for the financial years 1990/91 and 1991/92 be re-audited.  It is an implication of law that where a probationary period is to be performed to the entire satisfaction of an employer, an employer can not act capriciously or in bad faith in dismissing an employee:  Alchin & South Newcastle Leagues Club Ltd [1977] AR 236;  Connolly v The Labour Daily Ltd (1925) 42 WN (NSW) 101.
[7]	The defendant denies that the probation guidelines form part of the agreement between the parties, and says the contract between the parties is constituted by the defendant’s letter to the plaintiff dated 2 December 1992, a letter of offer from the defendant to the plaintiff dated 3 December 1992, and the Public Sector Union (Central and Northern Land Councils) Award 1990.  The defendant says that the letter of offer dated 3 December 1992, containing as it does the words, “Your appointment will be on the basis of an initial six months probationary period, which, if satisfactory, will continue as a contract for three calendar years”, means that if the defendant did not find the plaintiff satisfactory it could terminate his employment, ie. that the term was for the benefit of the defendant and thus “if satisfactory” meant if satisfactory to the defendant.  The defendant’s case is that the defendant’s probation guidelines were not incorporated into the contract of employment by any oral conversation between the plaintiff and Mr Dodson because the document setting out the essential terms of the agreement, ie the letter of 3 December 1992, demonstrated an intention that it exclusively governed the relationship between the parties, that the conversation relied on was after the plaintiff agreed to be employed by the defendant, that the plaintiff placed no reliance upon Mr Dodson’s statement about the probationary guidelines either when he signed the attachment to the letter of 3 December 1992 on 16 December 1992 or when he commenced employment on 4 December 1992, that the plaintiff was not induced to sign the attachment to the letter of 3 December 1992 nor to work for the defendant by Mr Dodson’s oral statement about the probationary guidelines and that the probationary guidelines document itself, being an instruction to supervisors, in its own terms, was not intended to be part of any contract between the plaintiff and the defendant.  Whether or not the probationary guidelines formed part of the contract, the defendant said its termination of the plaintiff’s employment was justified by reason of the grounds given in the letter of termination which were made out in the evidence.  
[8]	The defendant pleaded the matter thus in paragraph 12 of its Amended Defence:
“12.	The defendant denies paragraph 5 of the statement of claim and says the plaintiff’s employment was terminated pursuant to the term of the agreement set out at paragraph 4 of this defence relating to probation.  The defendant decided bona fide that the plaintiff’s employment performance during the probationary period was unsatisfactory and decided bona fide that it did not want to employ the plaintiff.
Particulars of Unsatisfactory Employment Performance
12.1	The plaintiff could not work in harmony with other staff of the defendant, particularly staff within the Directorate Section where he was in charge of 3 other employees.  
12.2	The plaintiff displayed a lack of judgment in speaking over the top of the Director of the defendant in a conference call to the Minister for Aboriginal and Torres Strait Islander Affairs and then introducing a topic not under discussion during the same call.
12.3	The plaintiff acted without the authority of the Director of the defendant and displayed a lack of judgment in speaking to the media at a press conference given by Dr Wooldridge (then Opposition Spokesman for Aboriginal and Torres Strait Islander Affairs) in Darwin on 8 February 1993.  At that press conference the plaintiff made comments which he knew or ought to have known were false and/or misleading and potentially embarrassing to the defendant.
12.4	The plaintiff acted without authority and displayed a lack of judgment in faxing a copy of a letter from Dr Wooldridge to the defendant to the office of the Minister for Aboriginal and Torres Strait Affairs and the Office of the Member for the Northern Territory with a covering note which said “You did not get this from us”.
12.5	The plaintiff failed to give the Director of the defendant adequate advice relating to the said letter received by the defendant from Dr Wooldridge.
12.6	The plaintiff displayed a lack of judgment and a lack of ability to undertake his duties by the verbatim use of materials prepared in the office of the Member for the Northern Territory in preparing a letter for the Director of the defendant to sign addressed to Dr Wooldridge.
12.7	The plaintiff’s general character and attributes were inappropriate for a person in the position of Senior Policy Officer.”.
CREDIBILITY AND RELIABILITY OF WITNESSES

[9]	The plaintiff was an honest conscientious witness and able to remember events.  He is a believable witness.  In so saying I have not overlooked that this action has been bitterly fought and that the plaintiff is a bitter man devastated by his dismissal.  However I consider that he fully appreciated the need to be objective and honestly tried to give a true account of events.  
[10]	Mr Dodson, whilst having the opportunity to refresh his memory from contemporaneous records of the defendant, did not do so.  He lacked a memory for detail, was not as conscientious as he might have been, and I regret to say, on occasions, did not give honest answers.  I do not accept the distance he sought to put between the defendant and Mr Snowdon, the NT Federal Member of the Parliament.  Mr Dodson accused the plaintiff of plagiarising a draft letter prepared in Mr Snowdon’s office.  He said it went to the heart of his “ethical concerns” about the plaintiff.  The fact is Mr Dodson had asked Mr Snowdon to prepare a draft letter for the defendant to write to Dr Wooldridge in response to a letter to the defendant from Dr Wooldridge.  Mr Dodson, with the assistance of a Mr Cresswell, prepared a letter to Dr Wooldridge incorporating much of Mr Snowdon’s draft reply.  Mr Dodson signed and sent the letter.  It was  not a question of plagiarism at all.  All went as Mr Dodson had wished.  It had nothing to do with the plaintiff’s “ethics”.
[11]	I also reject Mr Dodson’s version of the telephone conversation with the Federal Minister for Aboriginal Affairs Mr Tickner as false.  The plaintiff did not swear offensively at the Minister as Mr Dodson alleged.  Nor did the plaintiff interrupt Mr Dodson and “speak over the top” of him.
[12]	Mr Haritos, a former employee of the defendant, was a biased and untrustworthy witness who was quite unreliable.  I do not accept the truth of Mr Haritos’ evidence, save where it is consistent with the evidence of the plaintiff.
WHAT WERE THE TERMS OF EMPLOYMENT?

[13]	So far as the terms of the contract are concerned the principal issue is whether the defendant’s probationary procedures form part of the contract of employment.
[14]	What then are the facts?  The defendant placed an advertisement in the Northern Territory News on Saturday 3 October 1992 in the following terms:
“NORTHERN LAND COUNCIL
POSITION VACANCY –
SENIOR POLICY OFFICER
SENIOR OFFICER GRADE B
The Northern Land Council invites applications for the position of Senior Policy Officer from suitably qualified persons.
The successful applicant will report to the Director and be responsible for carrying out research and preparing policy submissions.  The person will also be responsible for coordinating the activities of staff attached to the Directorate and overseeing the council liaison, information and public relations functions and advising the Director on these matters.
Applicants should have a degree in politics, economics, journalism and/or a related discipline.  They should have a good knowledge of government and party policy on Aboriginal land issues and a knowledge of Land Rights and related legislation, both Commonwealth and Northern Territory.  A knowledge of the media is essential.  Possession of a high level of managerial and administrative skill is desirable.
This position provides for a three (3) year contract with a six (6) month probationary period, five (5) weeks annual leave, cumulative sick leave and district allowance.  The successful applicant and descendants will be provided with annual airfares (equivalent to the cost of a return airfare to Adelaide).
The position is at Senior Officer Grade B level and annual salary starts at $46,537 with increments to $53,403.
For further information, please contact  Neville Mitchell on phon e 20 5100 or write C/- The Director, Northern Land Council, PO Box 42921, Casuarina NT 0811.
Applications addressing the duty statement should be in writing, stating qualifications and experience, and nominating three referees.
The Northern Land Council operates in a ‘Smoke Free Environment’.
Aboriginal and Torres Strait Island people are encouraged to apply.
Closing date for applications is close of business, Friday 16th October, 1992.”

[15]	Having seen the advertisement the plaintiff rang the defendant and requested a copy of the duty statement for the position of Senior Policy Officer.  The defendant provided the plaintiff with a copy of the duty statement which was in the following terms:
“NORTHERN LAND COUNCIL
DUTY STATEMENT

POSITION:					SENIOR POLICY OFFICER
BRANCH:					DIRECTORATE
LEVEL:					SENIOR OFFICER GRADE B
IMMEDIATE SUPERVISOR:		DIRECTOR
MAILDEX:					DS02
LAST DATE OF REVIEW:		23 September 1992
												
1.	Provide policy advice to the Director on the relations of the Northern Land Council with the public, government, political parties and other organisations having a significant influence in matters affecting the Land Rights of Aboriginal people,
							and
supervise and coordinate the activities of the Directorate of the Northern Land Council.
2.	Keep informed of, and provide advise (sic) at a senior level on all significant political, policy and public relations issues affecting the interests of Aboriginal people.
3.	As required by the Director, supervise the preparation of the Council agenda and the organisation of meetings of the Northern Land Council and its regional committees.
4.	Prepare and review submissions to government and government committees as required by the Director.
5.	Ensure a pro-active public profile in the media maintaining cohesion between the operations of the Land Council and the aspirations of its constituents with its public posture.
6.	Oversee the preparation of the Annual Report, Land Rights News and other public relations documents produced by the Northern land Council.
7.	Liaise with government, Land Councils and other significant Aboriginal political, community and social organisations on matters significant to the Northern Land Council.
8.	Other duties as may be directed.

BACKGROUND AND EXPERIENCE:
Essential:
Sound knowledge of the Aboriginal Land Rights (Northern Territory) Act 1976 and other legislation affecting the land rights of Aboriginal people.
Considerable experience in providing policy advice at senior levels in government departments and/or in Aboriginal organisations.
Substantial awareness of Aboriginal land and political aspirations and of public and political issues affecting these.
Experience in media production and relations with representatives of the media.
Understanding of budget preparation and the budgetary control process.
High standards of written and verbal communication.
Possession of an “A” class driver’s license (sic) is essential.

Highly Desirable
Ability to administer, supervise and coordinate a section providing services to the organisational executive.
Relevant tertiary education.
Negotiating skills of high order.”

[16]	Having read the duty statement the plaintiff by letter dated 12 October 1992 wrote to the Director of the defendant in the following terms:
“Dear Sir
I write to apply for the position of Senior Policy Officer, advertised in the Northern Territory News on 3 October 1992.
I have examined carefully the duties, background and experience prescribed for this position and I can say with confidence I have the knowledge, experience, analytical skills, discretion and judgment which you are looking for.
Fifteen years working in politics, finance, government and media relations has given me the breadth of ability to do this job very well.
Included in my work history is eight years of political advisory work at the highest level, first with a Territory Opposition Leader and then with a Federal Minister.
Through my work and life in the Territory over a long period I have a very sound knowledge of the issues, challenges and opportunities for which the NLC has responsibility.
Following Labor’s relative success in the 1977 Territory election I became chief adviser to Opposition Leader, Jon Isaacs.  I was senior researcher and adviser for the Leader and his shadow ministers, office manager, coordinator of policy committees, draftsman for Opposition Bills, and I had responsibility for liaison with the Public Service, unions and business.  I resigned at the 1980 election to stand for Parliament against Paul Everingham.
For two terms of government, from 1983 to 1987, I was Senior Private Secretary to the Minister for Veterans’ Affairs, Senator Arthur Gietzelt.  I was chief adviser and office manager for the whole of his ministerial career during which he was lasting respect both for the manner in which he administered his portfolio and the reforms he introduced.
What is not generally known is the enormous scope of the Veterans’ Affairs portfolio.  It was then the fourth largest Commonwealth Department with 14,000 staff, a four billion dollar budget and 500,000 clients.  It provided hospital, medical, dental, legal, housing, financial, rehabilitation and counselling services.  In the minister’s office I was responsible for nine staff and our job was to oversee every aspect of the portfolio, firstly, to ensure people received the services to which they were entitled, and, equally importantly, to ensure that the Department did not screw up through neglect, incompetence or carelessness.  In pursuing those objectives I vetted and advised on every document handled by the Minister – every letter, Cabinet Submission, Budget Paper, Briefing and Minute.  I think it was through that sort of effort we earned our reputation.  During that period I had responsibility for an inquiry into hospital services, the drafting of a new Act, a Royal Commission into Agent Orange and the dismissal of the Australian War Memorial Director.
I am pleased that under my management our office won the highest regard from members of both sides of Parliament, from the Minister’s many constituencies, from lobby groups, veterans and others who sought assistance.  We were effective and responsive, and a measure of the good spirit I fostered was that we had the lowest staff turnover of any Ministerial Office.  For my own part, when Arthur Gietzelt retired at the 1987 election I was the third longest serving Senior Private Secretary (of 27).
At that stage it was time for me to turn my hand to something different and have a pause from the long hours and extensive travelling.  Subsequently I established a vineyard and ran several election campaigns.  More recently I have been doing some political and financial advising while also renovating my house.
I am familiar with the history and operation of the Land Rights Act.  I have heard the arguments for change from both sides of politics and I have worked strenuously against weakening the Act.  During Holding’s years as Minister for Aboriginal Affairs I am proud to say I assisted the NLC by making available all resources of my office in the successful lobbying campaign against his amendments.
I am confident and qualified in all aspects of the media relations functions except desktop publishing for which I would acquire the necessary skills.  In my previous advisory jobs I have had ultimate responsibility for dealing with the media.  After consultation with my boss I was responsible for deciding the subject matter, content, tone, editing and final approval of all media releases.  I also handled background briefings and interview requests.  In addition, I have worked on over a dozen political election campaigns where I have been active in the selection, design and layout of advertising material and personal brochures.  I know the senior journalists in the Parliamentary Press Gallery and I believe I could enhance the portrayal of NLC activities and objectives.
Other activities earlier in my working career have given my knowledge and experience which would be useful in this position.  I have travelled extensively in Australia and worked in mines at Mt Tom Price, Dampier and Kambalda in Western Australia and Zeehan in Tasmania.  Subsequently I worked with Australia’s leading stockbroker J B Were and Son and became a qualified investment analyst.  I have maintained my interest since and I possess a Good knowledge of the mining industry, particularly in the Territory.
In conclusion, I thoroughly believe in what the Northern Land Council does and I am confident I have the personal and professional qualities to do a demanding job very well.  I can assure you no-one will work harder.
Yours faithfully

PETER HANSEN”.
It was not suggested in cross-examination that anything said in this letter was untrue.
[17]	With that letter the plaintiff enclosed a Curriculum Vitae and some personal references.  Consequent upon that letter the defendant arranged for the plaintiff to be interviewed by a panel which included the defendant’s Director, Mr Dodson.  The interview took place on 26 November 1992.  Other people were interviewed for the position including Mr Haritos, a then employee of the defendant.  Following the interview, Mr Dodson phoned the plaintiff on 2 December 1992.
[18]	Without objection, the plaintiff gave the following evidence about that phone call, which evidence I accept:
“Could you tell his Honour what was discussed, if anything, between you and Mr Dodson on 2 December 1992 please? --- Mr Dodson called me and he said that he’d had a lengthy conversation with my former boss, Senator Gietzelt.  The conversation had gone for about 40 minutes or so, that he’d also had a conversation with his brother, Pat, and that he’d also spoken with Warren Snowdon.  He said that the interview panel had been line ball on whether I should get the job or whether another candidate should get the job.  He said because of the glowing references I’d received and because the references – or the referees’ reports on the other candidate were nowhere near as good, he was proposing to appoint me.  He then asked would I accept the job and I said I would be delighted to.  He then asked did I have anything that I’d like to talk about and I said, ‘Well, look, in all my previous employment, I have applied for positions, been interviewed, accepted for the job and appointed to the job’.  I said, could he enlighten me as to what was meant by ‘probation’?  In other words, what did it involve?  He said that the NLC had written guidelines on probation advising supervisors as to how they were to assess the performance and conduct of the person involved, that he would – and these were guidelines to supervisors and that he would be my supervisor and that he expected that I would come through any test with flying colours, given what he’s been told by my referees.  He then asked how soon could I start and I said, ‘Well, I’m pretty much available now or pretty much straight away.’  He then said that he was going to Canberra the next day but that he would – he would like me to start on Friday, although he wouldn’t be there, he would like me to start then.  He then said that he’d be returning from Canberra on Saturday and that the NLC Christmas party was being held at Tracy Village and could I attend the Christmas party and we would have a further talk then.  And I think he said that he was also – and that that would be the only opportunity to talk because he was then going off to New York for 10 days.
Now, if I can just ask you whether, during that conversation, did he tell you firstly; anything about the duties contained in the duty statement or not? --- No.
Did he tell you anything about what he required you to do between the time he’d started – sorry, between the time he’d asked you to start work and when you would first have an opportunity to have some kind of discussion with you about work? --- No.”.
[19]	Following that phone call the defendant wrote a letter dated 2 December 1992 to the plaintiff in the following terms:
“Dear Peter,
The Director, Michael Dodson has advised me that you have accepted his offer of employment as Senior Policy Officer with the Northern Land Council, and that you will be available to commence duty on Friday 4 December 1992.
As you are aware, Mick is currently interstate on official business.
This letter is to advise that your contract of employment, which will extend for three years from the date of commencement (ie; 4 December 1992 to 3 December 1995), will be formalised on Mick’s return which will be 16 December 1992.
In the meantime, if you have any queries, please do not hesitate to contact me.
Regards

(sgd) Desley Lee
Senior Administration Officer – Personnel”.

[20]	Just before departing for overseas Mr Dodson on behalf of the defendant signed a letter addressed to the plaintiff dated 3 December 1992 in the following terms:
“Dear Peter
I am pleased to offer you employment with the Northern Land Council.  The attachment to this letter sets forth details of salary and the specific benefits applicable to you.
Your appointment will be on the basis of an initial six (6) months probationary period, which if satisfactory, will continue as a contract for three calendar years, with effectiveness from the day you report for work at the Northern Land Council.  Duty hours are 0800 to 1621 from Monday to Friday.  Your normal working located will be Head Office, Mitbul House, 9 Rowling Street, Casuarina NT; however, travel throughout the Northern Territory may be required.  Salaries and allowances are paid fortnightly.
Accrual of recreation leave and sick leave and other terms and conditions of service will be in accordance with the present standard terms and conditions for employees of the Council until such time as a specific award covering conditions of employment with the Council is operational.  By signing the attached form, you will agree to accept the terms and conditions of that award when these supersede the existing terms and conditions.
You are asked to sign the original and duplicate copies of the attached documents and return the duplicate copies to me.  This constitutes your contract with the Northern Land Council.
Yours sincerely

(sgd) Michael Dodson
DIRECTOR
Enclosure”.

[21]	That letter included an unsigned attachment headed “Extract and Acknowledgment of Terms and Conditions of Employment” which provided as follows:
“Extract and Acknowledgment of Terms and Conditions of Employment
Name of Employee				:	Peter Hansen
Date of Contract				:	4 December 1992 to 3 December 								1995
Position Classification			:	Senior Office Grade B (APS Equivalent)
Salary Range					:	$46537 - $53403
Starting Salary				:	$46437
District Allowance				:	as appropriate
Specific Benefits				:

•		Recreation Leave – five weeks annual leave per year.
•		Sick Leave – Credits to two weeks on full pay and two weeks 	on half pay, at time of appointment with further accrual at the 	rates applicable to officers of the Australian Public Service.
•		Annual return economy airfare for yourself and accompanying 	dependants in accordance with Northern Land Council ‘Terms 	and Conditions of Employment paragraph 5(2)(i) and (ii).

	Michael Dodson					Date
	DIRECTOR
I have read the Terms and Conditions of Employment of the Northern Land Council dated 21 January 1983, and hereby accept them.  I agree to abide by the terms of this contract and by the conditions of the Public Sector Union (Central and Northern Land Councils) Award 1990.

	Signature of Employee				Date			”.

[22]	As can be seen the document provided for the signatures of Mr Dodson and the plaintiff.  The plaintiff in fact commenced work on 4 December 1992, when he was handed Mr Dodson’s letter of 3 December 1992 with the attachment.  The attachment was signed by Mr Dodson and the plaintiff on 16 December 1992 upon Mr Dodson’s return from overseas.  
[23]	At the time of the telephone conversation between the plaintiff and Mr Dodson on 2 December 1992 the defendant had written probationary guidelines as part of its Administrative Procedures.  Those guidelines were not given to the plaintiff at the time.  The written guidelines provided as follows:
“				PROBATION
Instruction and advice to Supervisors
All employees of the Northern Land Council are subject to probation from the date of commencement of their contract.  Probation extends for a period of six months, with reports by the Supervisor to be completed at the end of the third and sixth months.
The purpose of the probation period is to make sure that the conduct and work performance of the employee meets the standard expected of employees of the Northern Land Council
THE SUPERVISOR HAS RESPONSIBILITY FOR A PROBATIONER’S DAY TO DAY SUPERVISION, ON-TH-JOB TRAINING, THE COMPLETION OF PROBATIONARY REPORTS AND ASSOCIATED COUNSELLING.  THE SUPERVISOR IS ALSO RESPONSIBLE TO ENSURE THAT A PROBATIONER HAS A SMOOTH ENTRANCE INTO THE WORKING ENVIRONMENT AND THAT THEY RECEIVE PROPER INDUCTION.
Supervisors should give regular feedback on performance during the probationary period to ensure that the employee knows how he or she is doing and has plenty of opportunity for improvement, if necessary.  If problems are encountered, the probationer should be counselled and steps taken to resolve them.  Written records of counselling interviews and outcomes should be kept.
The probationary period gives the Supervisor the opportunity to monitor the development of the employee, to assess their suitability for continued employment, and to offer any training or information necessary to do the job.
Completed probationary reports should be shown to the probationer, who should read, sign and date them, indicating that the contents of the report have been noted.  Any weakness or adverse aspect of a probationer’s work performance should be specifically noted and drawn to his/her attention.  If there are adverse aspects of a probationer’s work performance, the Director will be notified, and a letter prepared under his signature, to advise the probationer that unless his/her work performance improves, termination of employment may occur.
It is essential that probationers be given a full opportunity to state their case before any termination decision is taken.
Probation should be regarded as a true trial period to assess a person’s suitability and whether he/she meets standards expected (including work performance and conduct).  It should not be regarded as a routine period through which all new employees naturally progress.
It is important to identify an employee’s strengths and weaknesses at an early stage so that appropriate development action can be taken during the probationary period.  Such action should minimise the likelihood of poor work performance occurring after an employee has been confirmed or disciplinary action being necessary.
You should comment under each heading in as much detail as is possible.  Comments such as “satisfactory” or “unsatisfactory” will not be sufficient.
Descriptive statements should be made and where possible examples cited to illustrate the point.  In particular, if any aspect of a probationer’s performance is unsatisfactory or marginal, sufficient detail should be noted to enable identification of specific instances of poor performance.
If a heading is not relevant to a probationer’s performance, note this in the space provided and give the reason, eg ‘Cannot say – not applicable’.
The list of headings is not meant to be exhaustive.  If some aspects of conduct and performance which you regard as important are not covered, please comment under the heading ‘other comments’.”.

[24]	On behalf of the defendant it was argued that the probation document did not form part of the contract of employment of the plaintiff.  First, it was said, Mr Dodson’s letter of 3 December 1992 with attachment, having regard to its terms, raised an inference that it exclusively governed the relationship between the parties and that no other terms by inference governed the parties, and reliance was placed upon the judgment of Street CJ in Thorne v Thomas Borthwick (1955) 56 SR NSW 81 at 88.  Secondly, it was said, the parties’ failure expressly to incorporate the probationary guidelines in writing indicated that they were not intended to form part of the contract, United State Surgical Corps v Hospital Products International Pty Ltd (1984) 156 CLR 41 at 61. Thirdly, it was said, the oral conversation of 2 December 1992 in its terms could not give rise to a contractual term.  It was not, it was said, a statement of fact which induced the plaintiff to enter into the contract of employment.  The plaintiff had clearly indicated, prior to the conversation about probation, his intention to enter into the contract.  There was, it was said, no reliance by the plaintiff upon the telephone conversation in order to enter into the contract.  Furthermore, it was said, Mr Dodson’s statement about the probationary guidelines was not promissory.  It was not a promissory term inducing the plaintiff’s entry into the contract.  It was further submitted that on the plaintiff’s own evidence, Mr Dodson did not show the plaintiff the guidelines, Mr Dodson did not give the plaintiff any detail of the guidelines and did not say he would apply the guidelines to the plaintiff.  Finally it was submitted the very terms of the document indicated that it was not intended to be part of the contract of employment.  The document itself, it was said, was an internal administrative document for the instruction and advice of supervisors and clearly was not intended to be read by an employee on probation.  For all these reasons, it was said, the probation guidelines did not form part of the contract.
[25]	I reject these submissions of the defendant.  The plaintiff alleges a contract of employment partly in writing and partly oral.  The plaintiff does not plead or allege that the oral conversation of 2 December 1992 comprised a collateral term or that the defendant is bound by some form of estoppel.  I agree that the plaintiff did not rely on the conversation about probation as an inducement to accept employment or commence work on 4 December 1992 or to sign the attachment to Mr Dodson’s letter of 3 December on 16 December 1992.  However that is not the end of the matter.  Mr Dodson was asked to explain the meaning of an ambiguous term – “probationary period”.  He gave an explanation in which the plaintiff acquiesced and accepted.  The defendant’s probationary procedures were in place at the time of the conversation.  Mr Dodson said they would apply to the plaintiff and that he, Mr Dodson, would be the plaintiff’s supervisor.  This was in accord with the defendant’s advertisement for the position of Senior Policy Officer.  Mr Dodson’s statement about probation was made in the context of a conversation when the plaintiff agreed to accept the position offered and agreed to commence work on Friday 4 December 1992.  The letter of 3 December 1992 did not say unambiguously one way or other what was meant by probation.  It did not expressly spell out that the defendant’s right to terminate the plaintiff’s employment at the end of the probationary period if the plaintiff did not perform his duties “to the entire satisfaction of the defendant”.  I think the defendant’s reliance on the majority view in Thorne v Borthwick, supra, is misplaced, for it no longer represents the law.  The question whether the parties have integrated their transaction into a single document is not to be determined by reference only to the terms of the contractual document itself.  See the reasons for judgment of McPherson J (as he then was) in Stoddart Tiles Pty Ltd v Alcon Australia Ltd, unreported, other than in Hocker Dufty & Heffey Cases & Materials on Contract 5th edn (1983), 262, Nemeth v Bayswater Road Pty Ltd [1988] 2 Qd R 406 at 413, 414, per McPherson JA, Nosic v Zurich Australian Life Insurance Ltd [1997] 1 Qd R 67 at 81, 82, per McPherson JA (with whom Pincus JA agreed).  The correct rule is the existence of writing which may appear to represent a written contract between parties is no more than an evidentiary foundation for a conclusion that their agreement is wholly in writing, and the whole of the evidence must be considered to ascertain the consensus, State Rail Authority of NSW v Health Outdoor Pty Ltd (1987) 7 NSWLR 170, at p191-192, per McHugh JA, Norwest Beef Industries Ltd v Peninsular & Orient Steam Navigation Company (1987) 8 NSWLR 568 at 570 (CA), NSW Cancer Council v Sarfaty (1992) 28 NSWLR 68 at 76, 77, per Gleeson CJ and Handley JA.
[26]	The terms of the letter of 3 December 1992 and the attachment do not exclude consideration of the oral conversation as forming part of the contract of employment.  The conversation was not at variance with and did not contradict the letter of 3 December 1992.  The conversation identified part of the subject matter of the agreement, just at the identity of transactions to which a guarantee related were identified in Perrylease Ltd v Imecar A G [1988] 1 WLR 463 and Heffield v Meadows (1869) LR 4 CP 595.  The matter is analogous to the “ticket” cases where railway passengers are referred to the terms of their carriage.  It is not a question of the plaintiff’s reliance, as it would be if the issue was estoppel or collateral contract.  The issue is what was agreed.  The agreement was that the defendant’s existing probationary procedures would apply to the plaintiff’s employment with the defendant.
[27]	In short, there are two answers to the defendant’s submissions.  First, if the defendant’s letter of 3 December 1992 with attachment is to be regarded as the exclusive repository of the terms of the agreement – “This constitutes your contract with the Northern Land Council” – the telephone conversation explains the meaning of the expression “initial six (6) months probationary period, which if satisfactory, will continue as a contract for three calendar years …”.  As Scott J said in Perrylease Ltd v Imecar A G, supra, at 471: “In the present case there is a complete written contract.  Where there is a written contract objective extrinsic evidence is admissible to explain the meaning of expressions used therein.”.  Alternatively the conversation comprised part of the overall agreement, when one has regard to the whole of the circumstances.  I observe that Mr Dodson later filled out a probationary report on the plaintiff as if the guidelines applied to him, though I place no weight on this, finding it unnecessary to discuss or consider the significance of subsequent conduct, cf Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310 at 326, per Priestley JA (with whom Meagher JA agreed), Terrex Resources N L v Magnet Petroleum Pty Ltd (1988) 1 WAR 144 at 160, per Kennedy J, and Queensland Independent Wholesalers Ltd v Coutts Townsville Pty Ltd [1989] 2 Qd R 40 at 42.  I simply record that estoppel by convention was not argued in this context.
LENGTH OF TERM

[28]	The defendant argued that the probation period of six months created two distinct contracts.  Its written submission included the following:
“4.4	Nevertheless, the effect or meaning of a probation period was discussed in Re: Alchin & South Newcastle Leagues Club Ltd [1977] AR 236, where Sheehy J at 241 stated:
‘as his employment was on probation, I think had the board sought to retain for itself, by the use of that expression, the right to decide whether or not it wanted to employ him – the same right that any employer would have at an initial interview when deciding whether or not to engage an employee.  …  However, it would no doubt have been assumed that the board would act honestly in making any decision as to the confirmation or otherwise of the appointment.’
4.5	Furthermore, the Australian Labour Law Reporter, admittedly without explanation but presumably accepting history stated above, stated at 47-480:
‘The probationary period is a short period at the end of which both parties clearly understand that this initial contract is terminated.  This leaves the employer free to make a decision about whether to offer a fresh contract of employment to that person.’
4.6	Not only is the employer free to make decisions without the restrictions applicable to permanent employees, but the probation period creates two distinct contracts (discussed later in why damages, if any, should be reduced to a few days or at most three months).
4.7	Accordingly, the most the plaintiff had was a contract of employment for six months.  A contract that can be ended at any time if the employer finds the probationer  unsatisfactory and where the usual rights afforded to permanent staff are explicitly excluded.  At the end of that period there would be no contractual duty on the defendant to continue the employment as the defendant was left with the option.”.

[29]	I reject these submissions.  The contract was for a fixed term of three years.  The signed correspondence between the parties said so.  The three year term included a six month probationary period.
“SATISFACTORY” – SUBJECTIVELY OR OBJECTIVELY?

[30]	The letter of 3 December 1992 contains the following statement:
“Your appointment will be on the basis of an initial six (6) months probationary period, which, if satisfactory, will continue as a contract for three calendar years.”.

It was submitted by the defendant that “satisfactory” meant subjectively satisfactory to the defendant, not objectively satisfactory to a reasonable person.  Given the context that the plaintiff could resign at any time during the three year term and given that once probation was completed the plaintiff could only have his employment terminated in certain limited circumstances, it was submitted that the term regarding probation was inserted for the defendant’s benefit, it being “of no use to the plaintiff”.  The term, including “if satisfactory” being for the benefit of the defendant, it followed, it was said, that “satisfactory” should be given the subjective meaning of “satisfactory to the defendant”.  I reject this argument.  I have already found that the defendant’s probationary procedures applied to the plaintiff.  The terms of the defendant’s probation instructions established an objective system for assessing performance during the probationary period according to an objective standard expected of employees.
TERMINATION

[31]	The plaintiff’s employment with the defendant was terminated as from 4 March 1993.  On 22 February 1993 Mr Dodson wrote a draft letter to the plaintiff in the following terms:
“				    D R A F T
			STRICTLY CONFIDENTIAL
February 22, 1993						LMF-777/DS01
Mr Peter Hansen

Dear Peter
All employees of the Land Council are engaged on the condition that they satisfactorily complete a six month probationary period.  An assessment of all probationary employees is made at the end of the third and sixth month of their conditional employment.  The probationary period is a true trial period to ensure that conduct and work performance is satisfactory.  Employment can be terminated during the probationary period if the employee is considered to be unsuitable.
It is my unpleasant task to inform you that I will not be endorsing your continuing probation with the Land Council.  This means your probationary appointment with the Land Council will cease immediately.
I wish to detail my reasons for reaching this decision.  They are as follows:
I have been, and remain, disappointed with the performance of your duties as Senior Policy Adviser.  It has, in my view, been unsatisfactory.
You will recall I have spoken to you on a number of occasions about your performance.  I have warned you about the inappropriateness of your ‘hardline’ uncompromising, authoritarian and argumentative approach to staff and issues.  This is not an approach which I will tolerate or foster in staff of the Northern Land Council.
I turn now to specific matters of concern to me which has led to my decision.
Firstly, I had cause to speak to you about your lack of judgement in speaking over the top of me during the course of a conference call to the Minister and particularly in introducing a topic not under discussion.
Secondly, during discussions with John Ah Kit in Katherine you informed us you had told a journalist, Gordon Feeney, about the outcome of the Jawoyn meeting: an action on your part not authorised by me or for that matter the Jawoyn or the Association.
Thirdly, I understand you were authorised by the Chairman to hand certain documents to the media at Dr Wooldridge’s press conference and indeed to attend the press conference.  You were not authorised by myself or the Chairman to speak with the media – you did so.  Some of what you said to the media, in my view, exacerbated the situation.
Fourthly, and the action which I find the most ill-considered, is your faxing (without authority) of the Wooldridge letter to Minister Tickner'’ and Warren Snowdon’s office - not only was it done without authority but you stupidly wrote on the fax cover sheet ‘you did not get this from us’.  That shows an appalling lack of judgement for someone occupying a vital position with the Land Council.  In relation to the Wooldridge matter I must say I was disappointed in the almost non-existent advice, given by you to me – it was left up to your subordinates – that’s just not good enough.
Finally, I request you vacate your office immediately.  I will permit you reasonable time to clear up your office and make arrangements with personnel over your entitlements.
I regret that it has not worked out as we both would have liked, however I must make decisions which I believe are in the overall interest of the organisation.
Yours sincerely,

Michael Dodson 
DIRECTOR”.

This draft letter was handed to the plaintiff without warning on 23 February 1993.
It was followed by a letter dated 5 March 1993 from the defendant to the plaintiff in the following terms:
“Dear Peter,
Please find enclosed a cheque for the amount of $1872.00 which represents your final pay with the Northern Land Council.  This includes payment of salary and sick leave for the period from 25 February, 1993 until 4 March 1993 as well as accumulated pro-rata recreation leave and leave loading for the period from 4 December 1992 to 4 March, 1993.
As you are aware from the discussions we have held, I have not endorsed your continuing probation, and as a consequence, your employment with the Northern Land Council has ceased with effect from close of business on Thursday 4 March, 1993.
The Senior Policy Adviser is an extremely important position in the professional Management of the Northern Land Council and my decision to cease your employment has not been easily made.
However, you are aware from our discussions on specific matters, that I have been deeply concerned about the inappropriateness of your approach to staff and issues, and in addition, I have been disappointed with your performance in the carriage of your duties as Senior Policy Adviser.  In my view, this type of concern is not acceptable for such a senior employee.
I would be happy to elaborate on these matters if you wish me to.  As you remember, we had a lengthy discussion about the details of my concerns before you left, and I showed you a draft letter outlining my concerns at that time.
I will provide a final version of this letter if requested.  In addition, a copy of your probation report will also be furnished if you desire.
In response to your query regarding payment in lieu of your appointment fare, Clause 13 of the Public Sector Central and Northern Land Councils Award 1990 states that airfares are granted to an employee and his/her dependants on appointment.  It further states that such airfares may not be utilised until such time as the employee has 12 months’ continuous service.
As you have not completed 12 months service, I have to advise that you are not eligible to access this fare.
The National Mutual Life will be in touch with you shortly regarding arrangements for superannuation benefits.
If you have any additional queries regarding your final pay, please do not hesitate to contact Desley Lee on 205139
Regards

Michael Dodson
Director ”.
The letters were sent without warning in the circumstances that the defendant had not complied with the probationary procedures applicable to the plaintiff.  The plaintiff was not given an opportunity to state his case before the decision to terminate his employment was made.  The plaintiff had not been given written or any instructions about the matters complained of nor any proper induction into his job or what was required of him other than the Duty Statement.  Significantly that document gave him a wide scope of autonomy, as one would expect in so senior a position.  The plaintiff was given no regular feedback on his performance during his probation.  He was not given a proper opportunity to show cause why his employment should not be terminated.  He was not counselled.  No proper steps were taken to resolve any of Mr Dodson’s complaints either at the time or later.  No written records were kept by the defendants of any of the matters complained of.  No assessment was made of the plaintiff’s overall work performance.  He was not informed of any specific policies regarding who might speak to government ministers or the media on behalf of the defendant.  The fact is Mr Dodson had determined to terminate the plaintiff’s employment as at 22 February 1993 (502t) and that in reality was the end of the matter.  The situation, so far as the defendant was concerned was beyond recall and the plaintiff completing his time to 4 March 1993 changed nothing.
The plaintiff’s dismissal in these circumstances was wrongful.  There was no misconduct of the plaintiff such as to justify summary dismissal.  Indeed the defendant did not put its case on that basis.
Having thus far found the plaintiff was wrongly dismissed, it is unnecessary to consider whether the grounds given for the dismissal were made out or whether the plaintiff was dismissed for an ulterior purpose.  However, should this matter go further, I will state, in a summary way, the reasons.  I have for rejecting Mr Dodson’s given grounds for the plaintiff’s dismissal as baseless.
(a)	I have no doubt that the plaintiff’s competent, direct approach to staff and issues and “wanting to get the job done” might have given the appearance to some that he was authoritarian.  Mr Dodson’s duty to the defendant was to employ and retain a competent person.  The plaintiff was such a person.  If fellow employees, like Mr Haritos, jealous and resentful of a ‘doer’ were unable to cope, it is they who should have been brought into line or dismissed, not the plaintiff.  Mr Dodson apart, no evidence was called to support Mr Dodson’s allegations of the plaintiff’s authoritarianism, or inability to work with other staff.  No member of staff who may have complained was called to give evidence.  No staff from within the defendant’s “Directorate” was called.  The plaintiff regularly pressed Mr Haritos to complete an edition of the ‘Land Rights News’ long after Mr Haritos had failed to meet a deadline.  In these efforts, the plaintiff was backed by Mr Dodson who reprimanded Mr Haritos.  Mr Dodson never complained about the plaintiff’s part in this.
(b)	I accept the plaintiff’s account of the telephone call with the Federal Minister for Aboriginal Affairs, Mr Tickner in Mr Dodson’s office.  The plaintiff did not speak over Mr Dodson.  He did not swear at the Minister.  The plaintiff was a long standing friend of Mr Tickner.  Mr Dodson made no complaint at the time.  The Minister did not complain, then or subsequently.  No apology was sought or given.  There is no substance in Mr Dodson’s allegation.  Mr Haritos’ evidence of this incident is make-believe.  He was not present in Dodson’s office at the time.  Mr Tickner was not called as a witness, nor was Mr Medina who was present.
(c)	So far as the plaintiff’s action on 20 January 1993 in talking to Mr Gordon Feeney of Australian Associated Press about the Jawoyn Community agreement with Zappopan is concerned, again, there is no substance in Mr Dodson’s complaint.  Consistent with the plaintiff’s Duty Statement, he had authority (in the absence of some prohibition, and there was none) to speak to the press, indeed to be “pro-active” with the press.  Neither Dodson nor the Jawoyn Community’s Chairman Mr Ah Kit complained of the plaintiff’s actions at the time.  It is another example of Mr Dodson dredging something from the past in an effort, ex post facto, to justify his decision to dismiss the plaintiff.
(d)	So far as Mr Dodson’s complaint about the plaintiff’s handling of the Dr Wooldridge press conference is concerned, again the complaint is without foundation.  The defendant’s Chairman, Mr Yunipingu authorised the plaintiff, in Dodson’s absence, to attend the press conference to “fix the bloody thing”.  An issue had arisen and the plaintiff was left to his own devices as to how it should be handled.  When Mr Dodson was told what had happened after his return from Sydney he congratulated the plaintiff for his efforts.  Mr Dodson approved the defendant’s subsequent press release which confirmed the plaintiff’s actions.  It is another case of ex post facto rationalising by Mr Dodson.
(e)	Likewise there is nothing in Mr Dodson’s complaint about the defendant’s letter to Dr Wooldridge.  That letter, signed by Mr Dodson, had been largely composed in Mr Snowdon’s office at Mr Dodson’s request.  I reject Mr Dodson’s evidence that he never asked Mr Snowdon to prepare a response to Dr Wooldridge’s correspondence.  Given the close working relationship between Mr Dodson and Mr Snowdon (a relationship Mr Dodson sought to deny) and his relationship with Mr Tickner, matters known to the plaintiff, it was natural for the plaintiff to send copies of Dr Wooldridge’s letter to Mr Snowdon and Mr Tickner for information.  Endorsing the copy “You did not get this from us” was consistent with Mr Dodson’s wish that the defendant be perceived as apolitical and as remote or distanced from these politicians, albeit that such was not the case.
		Given these conclusions it is not necessary to consider whether the 		plaintiff’s dismissal was for an ulterior purpose.
		I turn to the question of damages.
DAMAGES

[32]	The relevant law is as set out in Halsbury’s Laws of Australia Vol 10, para 165-925:
“Damages for termination before the expiry of a fixed term
Where the duration of the contract of employment is expressed to be for a fixed term, unless the employee has repudiated the contract, it is a repudiator breach of the contract actionable in damages for the employer to terminate the contract before the expiry of the fixed term.  There is only one proper method of performance of such a contract in relation to duration, and therefore the least burdensome performance rule does  not apply and the measure of damages for wrongful termination is the sum necessary to put the employee into the position in which he or she would have been had the contract been allowed to run its full term.  Thus the primary measure of damages for wrongful termination of a fixed term contract is a sum equivalent to wages for the unexpired portion of the term.  To this is added an amount in relation to any statutory or contractual benefits to which the employee was or would have become entitled during the remainder of the term.  The employee is required to mitigate the loss by seeking appropriate alternative employment, and the rules as to mitigation discussed in relation to dismissal without notice or with inadequate notice apply.  The employee is not entitled to damages for distress or injured feelings resulting from the manner of the dismissal or for the fact that the wrongful termination makes it difficult to find alternative employment even after the term has expired.”.

So far as mitigation is concerned the relevant principles are set out in Halsbury, supra, para 165-910 as follows:
“However, the primary measure of damages is subject to the requirement that the plaintiff take reasonable steps to mitigate his or her loss, and an award of damages will not cover loss which could have been avoided by reasonable steps in mitigation or loss which the plaintiff has in fact avoided.  Reasonable steps in mitigation, in the case of wrongful dismissal, require that the employee make reasonable efforts to find new employment at a wage equal to or as near as possible to that earned in the employment from which he or she has been wrongfully dismissed.
…
The employee is not required initially to accept employment at a substantially reduced wage or status; and too ready acceptance of such employment may be held to be unreasonable.  The employee should initially seek new employment at the same wage and status, and, if the search is unsuccessful, gradually lower his or her sights.”.

The plaintiff gave evidence of the efforts he had made to get employment after his dismissal.  He gave the following evidence (pp 137-141):
“If I can then come forward to the period post-termination of your employment and if I could ask you to tell His Honour what attempts you have made to obtain employment between 5 march 1993 and today? --- If I did – I did nothing in terms of attempting to gain alternative employment for about two months after I was dismissed.
Why was that?  --- Because I embarked on trying to find out what was the real reason for the dismissal.  That involved me in an enormous round of telephone conversations with people who would possibly shed light on it, writing letters to various politicians; to Bob Collins, to the minister, discussions with the union, discussions with lawyers - - -
HIS HONOUR:	When you say, ‘minister’, who do you mean? --- Tickner’s office, sorry.  Mr Tickner’s office.
MR SOUTHWOOD:	And after that two month period, did you then make attempts to find employment? --- Yes, I did.  I registered with the Commonwealth Employment Service at Casuarina and then I began to use all of my political contacts.  I think that I had two possibilities of work; one was to return to the political-advising area and the second was to find something within the Aboriginal Affairs-advising area.  So I started on the phone – and the way the political process operates is that you’ve got to be – you’ve got to be known personally, you’ve got to have established credentials.
What do you mean by ‘established credentials’? --- Well, you’ve got to have a track record and you’ve got to have experience and it’s very important that people have trust and confidence in your ability and the way they do that is to consult with people that they also trust.  So, it’s a bit of a circle of – I’m known to a politician, that politician would ask other politicians about the background of Peter Hansen and what they know of him.
Do you tend to be typecast or not, for example, if you’re known as a senior policy adviser for the Labor Party, does that mean you’re unlikely to get a job as a senior policy adviser with the Liberal Party, for example? --- Oh, it closes it off totally.
Yes? --- There is - - - 
Are you able to say to what extent that you become typecast as a policy adviser or as a senior secretary? --- Well, pretty much wholly.
Yes, can you give some detail of what you mean by that please? --- That you are known to be a particular person with talents, connections, abilities, strengths and weaknesses and you’re known to have occupied a certain level of classification.  In other words, I had been a senior private secretary, so I was the boss.  In this position, I had been the senior adviser to the director, so in terms of typecast, all right, well, ‘Hansen’s ability is – and his background is that he is the most senior person in a ministerial office.
Yes, the typecasting that you gave some evidence about previously as to whether, for example, if you’d been a senior adviser with the Liberal Party or the Labor Party, it mean you could cross the line, as it were, does it become more particular than that?  For example, is it factional or what’s the position? --- Yeah, absolutely, all right.  Let’s – we’ve got two sides of politics; Labor and Liberal.  If I’ve been a senior adviser, I can’t work on the Liberal side of politics.  They wouldn’t trust a person who has been at such a senior level and who has personally been a member of the other political party.  So, half of the political - - -
HIS HONOUR:	Are you saying that’s an absolute rule? --- I know of no exceptions.
Mr Bob Collins is currently advising the CLP government, I think, isn’t he? --- But this is after his - - -
MR SOUTHWOOD:	He’s retained as a consultant, as I understand it, by the Northern Territory Government, Your Honour, yes.
THE WITNESS:	And Bob would never have employed someone with a Liberal Party background while he was minister.
HIS HONOUR:	There’s an old saying from Italy, ‘Keep your friends close but keep your enemies even closer.’ --- That’s very similar to the dictum of Senator Gietzelt.  He said, ‘It’s very hard to attack people who like you personally.’
MR SOUTHWOOD:	In any event, does, for example, the fact that you were employed by Senator Gietzelt mean that other factions within the Labor Party would - - -? --- Yeah.
--- not employ you, or what’s the position? --- Yeah, it – in practical terms, you then have a further division.  Within the Labor party, you’ve got the left, the right and the independents.  Now, again, for basically the same reason but for different considerations, you don’t get a job with a right-winger if you’re known to be a left-winger.  So, there’s a bit of a – so what’s happening is that the scope of opportunity narrows.
Now, given that, was that something you took into account or not when you sought employment? --- Very much so.
If I could then ask you to detail please what – who you spoke to, what was discussed in relation to obtaining employment, if you could tell His Honour about those matters please? --- Well, to be almost easier to say who I didn’t speak to.  I started off looking here in the Northern Territory.
Yes, who did you speak to? --- I spoke to the staff of Brian Ede’s office.  I spoke to various members of the Northern Territory Labor Party Executive.  I spoke with Minister Collins, Senator Bob Collins’ office and that really is the sum total of possibilities in the Northern Territory.
Were you successful in obtaining a job as a result of any of those discussions? ---No, there were no advertised vacancies.
Were you told why you were unsuccessful or not? --- Well, that there weren’t advertised vacancies.  What I was doing was calling these people to say, ‘Look, if anything comes up, would you consider me for it?’.
Yes? --- So I got a polite and courteous hearing but - - - 
Nothing eventuated? - - - Nothing eventuated.
So far as interstate is concerned, did you make attempts to get employment interstate or nationally? --- Yes, I used my various contacts in Canberra and Sydney with exactly the same aim in mind, that was to call them, to tell them that I was available for immediate start if any suitable job came along and so could they keep me in mind, could they let me know of any position which came up.
Yes, and can you say who you spoke to interstate? --- I spoke to Senator Fawkner, (inaudible) Senator Gietzelt.  I spoke to Jack Hallum, the former Leader of Government Business in the Upper House of the Legislative Council in New South Wales.  I spoke to Ian McDonald, who was and still is in NLC in Sydney.  I spoke with Janette McHugh, with Senator Childs, Senator Barney Cooney.  I also spoke with the national secretary of the Labor Party.  I think I tried a couple of people in Victoria and I just can’t recall the names at the moment but if you showed me a list of all the senators and members of the House of Reps and ministers, I could detail them.
Now, that’s the best you can recall at this point however? --- Yeah.
Now, did you speak to these people on just the one occasion or did you go back to them from time to time? --- From time to time and I also met them occasionally.  On occasions, there were -–Senator Bolkas was another one – on occasion, they would in fact be in Darwin, so I’d see them at maybe a Labor Party function.  Also another – I don’t know whether he’s still in the Legislative Assembly, Labor Party member for Alice Springs, so from time to time, I’ve met them socially.
And were you able to have any success or not? --- No, … .
MR SOUTHWOOD: … did anyone ever tell you why it was you weren’t being successful? --- No.
No-one had informed you of a reason? --- No.
Now, forming part of your application, document 14 – in fact, as it turns out, not properly part of your application, there are one, two, three, four references.  Could I ask you just to have a look at those please, those include Mr Gietzelt, Mr Valqua, Ms McHugh and Mr Snowdon? --- Sorry, which document?
Document 24, they appear to be, I think, wrongly included in document 24 – yes, 14 sorry, not 214, that’s in volume 1?  Do you see those references? --- Yeah.
Were those references obtained for the purposes of assisting you in your employment application or for some other reason? --- Mainly for the purpose of getting work.
And were you able to get work following receipt of those references or not? --- No.  By this time, the stress and strain was really beginning to tell.  My relationship with my spouse had broken up.  I finally gave up hope of getting work in the Northern Territory, so I moved to New South Wales with the hope that perhaps being closer to the action, Sydney and Canberra, that maybe I’d have more success.
HIS HONOUR:	When was that that you moved to New South Wales? --- In about August ’95, it would be.
MR SOUTHWOOD:	And were you successful interstate in obtaining employment or not? --- No.  Well, I’ve worked as adviser to the Mayor of Young on his election campaign in 1996 but it was unpaid work.  I found, to my horror, that even to be a farm labourer, these days you need a TAFE certificate but I did unpaid work for a friend on his cattle property.  Finally, I was at my wit’s end and so I sold up the last of my assets and bought this dilapidated vineyard.
During the period of time prior to purchasing and after your termination of employment with the Northern Land Council and apart from that instance you’ve described with the Mayor of Young, were you employed or unemployed? --- Again, I’d work on an unpaid basis for the Labor Party candidate for Nightcliff in the Northern Territory election campaign of ‘83 or ’84.  I also worked for the Bureau of Statistics as a census collector and that’s my only paid employment that I’ve had in this entire time.
So, between 5 March 1993 and now, your only paid employment was with the Bureau of Census, is that right? --- That’s correct.
For how long did that paid employment last? --- Just during the collection of – it was the householder’s survey for the census.
Yes, how long did the employment last for? --- About 10 days.
And can you recall how much you were paid for those 10 days? Less that $1000.
How then did you survive during that period of time that you weren’t in receipt of income from employment? --- I sold my assets.  I didn’t wish to get to the level of applying for the dole, so I sold my assets.
And - - -? --- And cash in my superannuation.”.

[33]	I accept the plaintiff’s evidence that because of his long experience on the Labor side of politics that he had become typecast and that the scope of reasonably available employment as a policy adviser to the Labor side of politics was therefore limited.  I also accept that the circumstances of his dismissal from the defendant significantly narrowed the opportunities he had with employment as a policy adviser in Aboriginal affairs.  In the circumstances I conclude that the plaintiff acted reasonably in his efforts to seek re-employment or at least that the defendant has failed to show that he acted unreasonably.  Somewhat like Blain J in Yetton v Eastwoods Froy Ltd [1967] 1 WLR 104 at 120, I see no reason to assume the plaintiff might have obtained any employment he in fact failed to obtain.  The defendant called no evidence of available employment at the same or similar wage level or status.  Given the plaintiff’s credentials in his field and experience I infer that there was no available employment at the same or similar level in wage or status available to him.  I must say that I am surprised that the plaintiff could not get employment in his chosen field, particularly given his experience and ability.  I should say that I carefully observed the plaintiff during his many days in the witness box and could not detect anything to suggest he was a “difficult” person, unlikely to “get on” with reasonable competent fellow employees.  He has, if I might say so, a pleasing personality; there is no manifest reason why he should not be employed in his chosen field, for he, on the evidence I have heard, is undoubtedly reliable, well qualified, experienced and eminently suitable for such employment.  If there was any underlying problem such as the defendant asserts, one would have expected it to surface long ago during the plaintiff’s extensive period of employment with Senator Gietzelt.  There is no suggestion from any other quarter that the plaintiff is unable to work in harmony with others.
CONCLUSION

[34]	The defendant is liable to the plaintiff for damages for wrongful dismissal.  The plaintiff is entitled to an award of damages in a sum equivalent to his salary and any other statutory or contracted benefits to which he was or became entitled to during the remainder of the three year contractual term.  By agreement the parties led no evidence on quantum of damages.  They said they hoped to agree.  They asked me to adjourn the matter for further consideration.  I shall hear the parties as to quantum and as to interest and costs and any further matters arising.
[35]	Judgment for the plaintiff.