Subject: Update 26Dec02: Timorese sacked in Timor Gap Joint Authority office, Darwin

Update 26 Dec 02: Timorese sacked in Timor Gap Joint Authority office, Darwin Hearing

Intro: This update follows the report of 21 December 02. It covers the evidence of the last two witnesses to give evidence, Ninny Borges and Andrew Caddy, who I thought were very fair. There was questioning as to why a material witness in Egidio de Jesus was not available. It was noted that both Mr Mollah and Mr Kyranis had moved interstate for holidays. The next day 24th Dec was the summing up by barristers for both sides. We await the decision of deputy commissioner McCarthy of the Australian Industrial Relations Commission. Meanwhile the three have stayed in Darwin.

Technically, the Timor Gap Joint Authority has moved a motion for dismissal of each of the three applicants' application for relief in respect to termination of their employment. The application by the employer is made pursuant to Sect 170 CEA 1 of the Workplace Relations Act that the Commission is without jurisdiction to hear the applications. The sole ground of the TGJA is that no termination took place. The applicants claim 3 grounds: that termination was harsh, unjust or unreasonable (Sectn 170 CE(1); alleged contravention of Sectn 170 CK on discrimination and other prohibited reason; alleged contravention of Sectn 170 CM to give statutory notice.

The Commissioner has reserved his decision but hopes to be expeditious. His decision I gather will be as to whether this case can go to the Federal Court for determination. It is estimated that to this point the case will have cost around A$100,000. I did suggest before the TGJA ought to admit its unfair handling of this issue, apologise, reinstate, and the directors Mollah and now also Egidio de Jesus should retire. My reports are from my notes taken in court, I'm confident in their accuracy, but apologies if there are errors.

Day Monday 23rd December 02:

1. Andrew Caddy is the Finance Director of the TGJA and the 'record keeper' as in Privacy Policy. The spreadsheet with salary information on it which was accessed by one of the Timorese was on office server 'H' drive, on one of the directories. The information was not marked confidential, there was no security system or pass required - though there is now. After hearing from Mr Kyranis (Technical Director) late on 13th December he spoke at a meeting almost immediately afterwards with the 3 Timorese. He suggested the issue was serious, the document accessed was confidential, there were privacy issues, the info must not go outside the TGJA, and he was upset at the suggestion of discrimination. He suggested the issues should be put in writing by the three to himself and Kyranis. Asked by Mollah, he said they were addressing the issues.

The next day Mollah called a meeting which Caddy had no prior knowledge of and didn't assist with. Mollah was angry, alleged breaches of privacy, confidentiality, trust, and it was all very serious. They were alleged to be in breach of the Privacy Guidelines - which are read in conjunction with the C'wealth Privacy Act. Caddy didn't agree. Caddy drafted a letter to the three saying that if they don't contact Mollah by 22 Nov then their entitlements would cease - though this was later agree to be too onerous. He has paid them their entitlements to date but these will not at this stage extend beyond 31 Dec 02. But the TGJA will continue its life until after the Timor Sea Treaty has been signed by both countries, which will not be before mid February by Australia, and there was (before) a reasonable expectation that the jobs of the three would continue until then at least. He agreed the three may have been embarrassed and humiliated but was not asked to and had not contacted them.

2. Ninny Borges is the legal officer employed as a technical officer. Agreed that at the meeting on 14th Dec Mr Mollah didn't fully understand the privacy policy of the TGJA. She interpolated that the issue really was the confidentiality clause of the employment contract. She agreed the Privacy Act had no relevance. She agreed employees had a right to speak to their employers under the Workplace Relations Act. She agreed the spreadsheet was not classified confidential at the time it was accessed. She was a nominee by Mari Alkatiri to the TGJA, and she said Alkatiri said to her he had also nominated the three. (We had heard that Xanana had originally nominated the three, so it was good to hear they had ETG support too).

The Commissioner asked the barristers to give thought to when did (alleged) termination take place, and what constitutes a suspension cf termination.

Day Tuesday 24 December 02: Summing Up

1. Mr Grove for the TGJA alleged that the employment of the three Timorese employees was 'suspended' not 'terminated'. Their employment contracts are construed etc under NT laws. They were entitled to procedural fairness. He agreed there were no actions by the employer to conciliate, and no work was allocated. A letter by Mr Caddy to the three on 9th December told them they were to return to Dili when their entitlements would cease, but their salaries would cease on 31st December, though they were not required to perform any duties. So Mr Grove argued their termination was not until 31st. Not much else to report, really. Not much enthusiasm shown.

2. Mr Colin McDonald was rather more colourful in arguing for the three Timorese. He said the employment of the three was 'terminated' on the 14th December by Mr Mollah with all the hallmarks of an 'abusive dismissal', which was brutal, humiliating, and calculated to destroy any employment relationship. Any doubt was dispelled by Egidio de Jesus refusing to meet them and their Union rep on the 23rd November. Mollah had done no investigation of the facts and issues - he just jumped to conclusions. The meeting on 14th November was tense and unhappy, Mollah was intemperate, insensitive, harsh, unfair and ignorant, and made a tirade. His behaviour was over the top, and unbecoming to his position as CEO of an organisation between 2 nation states. His language and acts were of finality - eg 'you have no right to work in this office any more'. TGJAS management actions showed recalcitrance, were punitive, refused reasonable concessions or conciliation.

McDonald suggested to use commensense in looking at this and the law, and not to rely on sterile argument relating to salary being paid until 31st December. Actions were taken to drive the three out of the Authority. The Employer refused to admit wrong, and compounded the mistakes. The TGJA had an obsession with secrecy, to query their salaries was reasonable, the right to do this is enshrined in the Act. The actions of the TGJA were unlawful and are entitled to prosecution. They were morally reprehensible and industrially unacceptable.

Asked if any inference can be drawn from Egidio de Jesus' failure to conciliate and not giving evidence when he should have, McDonald said 'the normal inferences apply'.

Comment: Solidarity activists fought for human rights for East Timor and East Timorese. Hallmarks of the Indonesian regime which we opposed included illegality, abusiveness, corruption, unfairness, lack of concern for the rule of law. A new government in a 3rd world country may find it difficult to behave to establised best world standards, and the lack of support by the ETG for their three professional staff who have worked well and done no wrong, merely queried an apparent injustice, is profoundly disappointing. As so many dills in 'Bush- country' need to learn, it is NOT 'my country right or wrong', but 'human rights without fear or favour'. As Horta said on 22nd May 02 to Solidarity, sometimes you will do things against my decisions and you may well be right - and this case may be one of those type of situations. I ask Mari Alkatiri to look at this case immediately and take urgent constructive action to support his staff. Given their treatment, one would think that not to take a strong stand now will be prejudicial to the interests of East Timorese employees in the future, and even to East Timor's interests vis a vis the Oil companies and the Australian Govt, certainly to our efforts to gain support from the Australian population for a fair go for East Timor's rights over maritime boundaries and TST issues.

Rob Wesley-Smith Darwin 0419 807175 08 89832113

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