Andrew Roos v Winnaa Pty Ltd - [2018] FWC 3568

[2018] FWC 3568

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections (consent arbitration)

Andrew Roos

Winnaa Pty Ltd

(C2017/300)

Loretta Roos

Winnaa Pty Ltd

(C2017/302)

Bree Dargan

Winnaa Pty Ltd

(C2017/371)

COMMISSIONER SIMPSON

BRISBANE, 19 JUNE 2018

Application to deal with contraventions involving dismissal – Respondent concedes contravention of s.351(1) – Respondent asserts exceptions in s.351(2)(b) and s.351(2)(a) –Reverse onus in s.361 does not apply – Evidentiary onus on Respondent – Multiple decision makers - Inherent requirements of Cultural Heritage Officer position – Whether there is an inherent requirement to be a Barada Barna person - Whether Respondent genuinely or honestly believed the Applicants were not Barada Barna – Substantive and operative reason for dismissal was failure to provide proof –Failure to provide proof not a positive conclusion that Applicants were not Barada Barna – Respondent fails to meet evidentiary burden to satisfy exception in s.351(2)(b) – Respondent fails to meet evidentiary burden to satisfy exception in s.351(2)(a) – Matter relisted for further submissions on remedy.

In 1908 four children whilst playing in or near a creek outside the town of Nebo in Central Queensland were forcibly taken away to Barambah (now known as Cherbourg) approximately 800 kilometres south of Nebo by government authorities. One of those children was Kitchener Brown. The consequences of what happened that day continue to impact on Kitchener Brown’s descendants. 108 years later, on 29 June 2016 Dowsett J of the Federal Court delivered a consent determination in Budby on behalf of the Barada Barna People v State of Queensland (No 7) [2016] FCA 1271 (Consent Determination) granting native title to the Barada Barna people.

This decision deals with a controversy that has arisen subsequent to the Consent Determination of Dowsett J, and for reasons that will become apparent involves an emotionally charged dispute about whether or not the decision of an employer to dismiss three employees was motivated by a genuinely held belief that the three dismissed employees were not Barada Barna people. An examination of that dispute is connected to the story of Kitchener Brown.

In August 2016 Ms Loretta Roos, Mr Andrew Roos and Ms Bree Dargan made applications under section 365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with General Protections applications involving dismissal in accordance with Part 3-1 of the Act. It was asserted in each of the three applications that s.344 and s.351 of the Fair Work Act 2009 had been contravened by their former employer.

The matters were not resolved at private conference and s.368 certificates were issued confirming as much. Separate applications were filed by Ms Loretta Roos and Mr Andrew Roos on 18 January 2017 and Ms Dargan on 20 January 2017 for consent arbitration by the Commission. Bree Dargan is the niece of Loretta Roos and cousin of Andrew Roos.

Each of the three applications identified the respondent as being the Barada Barna Aboriginal Corporation, however on 20 April 2017…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FWC 3568
Decision Date: 19 JUNE 2018

CaseChat Overview and Summary

The applicant, Andrew Roos, filed an application seeking redress for contraventions involving his dismissal from his employment with the respondent, Winnaa Pty Ltd. The dispute was heard in the Fair Work Commission. The respondent conceded that the dismissal breached section 351(1) of the Fair Work Act 2009 (Cth) but argued that exceptions under sections 351(2)(b) and 351(2)(a) applied. The applicant contested the applicability of these exceptions.

The legal issues before the court were whether the respondent's dismissal of the applicant was genuinely or honestly believed to be based on the applicant's failure to be a Barada Barna person and whether this failure was a substantive and operative reason for the dismissal. Additionally, the court had to determine if the respondent could meet the evidentiary burden to establish the exceptions under sections 351(2)(b) and 351(2)(a). The court found that the reverse onus under section 361 did not apply and that the evidentiary burden lay on the respondent. The court also considered whether the failure to provide proof of being a Barada Barna person constituted a positive conclusion that the applicant was not such a person.

The court ruled that the respondent failed to meet the evidentiary burden to establish the exceptions under sections 351(2)(b) and 351(2)(a). The court found that the substantive and operative reason for the dismissal was the applicant's failure to provide proof of being a Barada Barna person, rather than a positive conclusion that he was not such a person. The court concluded that the respondent had not genuinely or honestly believed that the applicant was not a Barada Barna person and that the failure to provide proof was not a positive conclusion of non-affiliation. The matter was relisted for further submissions on the remedy.

Orders