Carol Altmann – The Terrier

More than 100 membership applications* for Lyndoch Living will be hand-delivered to Lyndoch on Friday by Jim Burke, thanks to those who have stepped forward and signed up.

The next step is for the Lyndoch board to decide who from the community, if anyone, is accepted.

This is an opportunity for the board to right a wrong, because surely it is wrong that there is not one single member of the general community among Lyndoch’s current membership. Not one.

And, as far as I know, Lyndoch’s membership still doesn’t include any residents, or family of residents.

This means that aside from a handful of executive staff (about six) and the seven people on its board, Lyndoch doesn’t have any other members.

If that situation has changed in recent times, we don’t know about it.

The situation at Lyndoch is very different to other community owned, not-for-profit residential homes like, for example, Boandik in Mt Gambier.

Members of Boandik (which is about half the size of Lyndoch) are those who have donated to its work in the past fin year, or are a resident.

In theory, you can apply to become a member of Lyndoch if you are over 18, of sound mind, and agree to its main objectives.

In practice – for the last couple of years – anyone who has applied without being invited has been rejected.

Lyndoch now has 100-plus chances to change that.

[*The final figure will be known by Friday when last-minute forms roll in. What a great effort by everyone who has been involved.]

Carol Altmann – The Terrier

A simple but unsettling question underpins this Sunday’s membership drive for Lyndoch Living: why is Lyndoch so scared of the community it serves?

Why has it not allowed one single person from outside Lyndoch to join its membership ranks in the past two years, if not longer?

A not-for-profit, community owned organisation is normally hunting like a hungry Scottie for members who care enough to at least, on a good day, turn up to the AGM.

Speaking of the AGM, here’s another curly question: why are there no annual reports available on the Lyndoch website, other than the most recent? Odd.

And why, in the past two years, has Lyndoch not advertised to fill any board vacancies as they arise?

Every single vacancy has been filled by invitation only.

Is it you?

Is it, gulp, me?

Are we so terrifying that we must be kept at arm’s length from poking around and tearing a hole in the delicate fabric of the Lyndoch Living image?

Surely the community is not that scary, after all, we are talking about the same people whose parents, aunts, uncles, friends and families helped to create Lyndoch in the first place.

Without the community, there would be no Lyndoch.

Believe it or not, the community still owns it.

Admittedly, I don’t expect to be on Lyndoch’s Christmas drinks list. I have never met the CEO and I have never received, like one journo, a string of love hearts on Facebook from a board member. I get that I am never going to be allowed in.

But YOU – as a member of the wider Warrnambool community – YOU should be welcomed with open arms.

So why has Lyndoch – metaphorically – gone and changed the locks while you weren’t looking?

Perhaps, and this is only a theory, Lyndoch is nervous of the potential power of members.

Under its constitution, members can, if they like, ask questions.

Maybe Lyndoch is also twitchy about members being able to call general meetings, where they can pass resolutions, like, say, a vote of no confidence.

Members don’t have to do these things…but they can.

Members, as a group, can be powerful.

Perhaps that’s why Lyndoch is so scared of the community it serves, because its comfort zone has become a place of total control and losing control is, well, terrifying.

If you apply to become a member of Lyndoch on Sunday, and I really hope you will, this theory will be tested.

Applying to become a member does not mean you will be accepted, and therein lies the challenge.

We shall see how many, if any, make it through.

[The sign-up will be held this Sunday, August 15, Civic Green, 11am to 1pm. No fee required. Forms provided. Bring a pen, wear a mask. You can find a membership form in advance here, and the Lyndoch constitution here.]

Carol Altmann – The Terrier

After a three-day hearing in the Victorian Supreme Court, the fate of sacked Warrnambool City Council CEO Peter Schneider now comes down to three options:

First, he loses his case.

Second, he wins his case and accepts an untold amount of damages that are yet to be decided.

Third, Mr Schneider wins his case, his termination is quashed, and the new WCC councillors are left to decide whether they would like to keep him or replace him.

Any move by the new council to sack Mr Schneider would require a fresh motion and – no doubt – the opportunity for him to defend his record: an opportunity which his lawyers say he was denied on 13 July last year when the axe fell by way of a 4/3 vote. (Mr Schneider’s contract was due to expire in Feb 2023.)

The presiding judge Justice Michael McDonald says he hopes to hand down his judgment by 28 June and my word, it can’t come soon enough.

Because regardless of the outcome, this bruising court battle has done our city no favours.

By the time this is settled, our city will have been left sitting in grid lock for almost a year, unable to move ahead with a permanent leader.

Just as bruising is the spotlight on the tribalism within the old council.

By way of the written affidavits and evidence lodged with the court, the factionalism, infighting and petty nastiness within the previous council has been put on display outside of the Liebig St bubble.

We might have become used to it as part of our Stockholm Syndrome (since cured), but those exposed to it for the first time must have been astonished.

It’s perhaps not surprising that Justice McDonald dismissed most of the “he-said, she-said” evidence with one swipe on day one of the hearing on Tuesday, saying he wasn’t interested – “for heaven’s sake” – in the inner workings of the WCC.

He was attuned, however, to the implications of allowing a senior public official to be “caught in the cross-fire of factional warfare between councillors”.

As Justice McDonald said with punch yesterday, any CEO caught in this crossfire could be “figuratively get taken out the back and shot”.

He repeated this theme today, saying there were specific laws to protect a public official, like a council CEO, from “the capricious and whimsical actions” of others.

“Because of the close contact between a CEO and a council, this is the very example of (an officer) needing that protection.”

As I wrote last night, the case hinges on whether Mr Schneider’s individual contract and its “no reason” clause holds more sway than section 94 (c) of the Local Government Act, which, by law, says all council workers must be treated fairly.

As Justice McDonald outlined yesterday, it is a case with potential implications for every council CEO across Victoria.

In fact we learned in the final day of the hearing today that this is the first time in 28 years that the Local Government Act (1993) has been challenged in this way.

No other council in Victoria – in recent history at least – has had a legal battle between a sacked CEO and a council make its way to the Supreme Court.

So Warrnambool will make history and Schneider v Warrnambool City Council will probably find its way into the text books of the next generation of civil lawyers.

But no doubt ratepayers, who one way or the other are paying for this battle and the fallout, would prefer this chapter had never been written.

Carol Altmann – The Terrier

If you think the Supreme Court battle between the Warrnambool City Council and dumped CEO Peter Schneider is just a local bunfight, think again.

The potential implications of this case for council’s right across Victoria was made clear by the presiding judge today.

The Honourable Justice Michael McDonald said if Mr Schneider loses his legal fight on the grounds argued by the WCC, every council CEO across Victoria was at risk of “figuratively (being) taken out the back and shot”.

“If you are successful, then any local government within Victoria would then have the power to terminate a contract for no reason at all,” Justice McDonald told counsel for the WCC, Ragu Appudurai.

Justice McDonald said, “looking at the very broad, non-legalistic picture”, the outcome of this case had wide-reaching implications for councils far beyond Warrnambool.

One is the “no reason” clause – like that used to dismiss Mr Schneider – left all council CEOs vulnerable to tribalism of councillors.

“A CEO could be caught in the cross-fire of factional warfare between councillors and figuratively get taken out the back and shot,” Justice McDonald said.

Justice McDonald said the CEO position was “an extremely important position” and if the WCC was found to be able to sack Mr Schneider without reason or fairness, the impact on good governance would be devastating.

“That would be an extraordinary outcome and extraordinarily destructive for good governance,” he said.

“(It would be) quite an extraordinary outcome …a council can simply employ someone on a contract which permits the council to (dismiss them) for no reason at all.”

The nub of the case is whether Mr Schneider’s individual contract holds more sway than section 94 (c) of the Local Government Act, which guarantees all council workers will be treated fairly.

Mr Appudurai today spent several hours outlining the council’s argument that Mr Schneider is not a regular council employee, but a senior employee on a specific contract.

As such, the council could sack him using the “no reason” clause in this contract and had no obligation to treat him “fairly”.

This lack of fairness included the four ex-councillors not giving Mr Schneider a chance to defend himself on the night of his sacking.

Lawyers for Mr Schneider, however, argue that no individual contract can over-ride the Act, which is the law.

They say that Mr Schneider was sacked unlawfully and so is – technically – still the CEO of the Warrnambool City Council.

This is part of what Justice McDonald will have to determine in his judgment that he hopes to hand down by 28 June.

In the meantime, an interesting question raised by the Justice today was, if Mr Schneider wins his case, what happens to the $200,000 payout he received last year?

Would it need to be repaid?

Not according to Mr Schneider’s lawyer David Grace QC, who argued that because Mr Schneider was sacked illegally, this money (after tax) was the wages he would be entitled to keep from the day he was sacked to the day he is reinstated.

In other words, Mr Schneider is still – technically – the CEO.

The WCC, however, saw this payout as “the price it had to pay” to sack Mr Schneider without reason.

To quote Justice McDonald: “there are plenty of curly questions being thrown up by this case”.

That might be the understatement of the year.

Final submissions will be heard in the Supreme Court tomorrow.

Carol Altmann – The Terrier

Lawyers for sacked Warrnambool City Council CEO Peter Schneider today argued in the Supreme Court that he was a victim of “subterfuge” and a “concerted plan” by four former councillors to get rid of him.

Today (23/3) was the opening of a two-day hearing into whether Mr Schneider was denied natural justice when he was sacked on 13 July last year on a 4/3 vote of the then-councillors.

The day started with a surprise move from the council’s lawyer, Ragu Appadurari (Russell Kennedy lawyers), suggesting witnesses could be called to give evidence and cross-examined, rather than the court relying solely on written affidavits already lodged.

This move would have potentially blown out the length of the hearing and delayed the delivery of a judgment until the end of the year: making it impossible for the WCC to appoint a CEO until late 2021.

The Honourable Justice Michael McDonald said, if witnesses were called, he could no longer aim to meet a 26 June deadline that he set after last week’s injunction hearing.

Perhaps not surprisingly, this move to call witnesses was dropped by the WCC after a short adjournment.

The rest of the day was spent by Mr Schneider’s counsel, David Grace QC, outlining the key points of his case, including the seeking of legal advice by then Councillors Kylie Gaston, Michael Neoh, David Owen and Sue Cassidy.

Mr Grace argued this legal advice from Maddocks lawyers was not approved by the full council, was not shared with the other three councillors and was used to map out “the easiest way” to get rid of Mr Schneider with less risk of court action, or public outrage.

That “easiest way” outlined by Maddocks was to sack Mr Schneider using the “no reason” clause in his contract, rather than sack him for poor performance, Mr Grace said.

The case hinges on whether this “no reason” clause holds more weight than the protections of the Local Government Act.

The court also heard that former Mayor Tony Herbert, having learned of the move to sack Mr Schneider on 13 July, prepared 31 questions to ask at the meeting.

These questions included whether the councillors would give Mr Schneider a chance to defend himself.

The four councillors, however, “stayed mute” to all 31 questions, having received legal advice not to respond.

If they did respond, they would then have to justify the “causes” for sacking the CEO, Mr Grace said.

Justice McDonald earlier in the day indicated he had had some taste of the dysfunctional relationships within the former WCC from the affidavits lodged by the four councillors, Mr Herbert, the acting CEO and Mr Schneider.

“I will not be having any regard to any of the material about so-and-so had an unprofessional relationship with so-and-so…for heaven’s sake,” Justice McDonald said.

“I don’t have any enthusiasm at all for hearing evidence on the inner workings of the WCC…(and) it is of no legal bearing on the legal questions which will determine the case.”

The hearing continues tomorrow with Mr Grace, followed by Mr Appadurari for the defence.