Andrew Roos v Winnaa Pty Ltd

In the case of Andrew Roos v Winnaa Pty Ltd, the Fair Work Commission (FWC) was asked to consider whether the dismissal of Andrew Roos and his wife Loretta was unfair and unlawful under the Fair Work Act 2009 (Cth). The primary issue before the FWC was whether Winnaa Pty Ltd (the Respondent) had a substantive and operative reason for dismissing the Applicants that met the exceptions in s.351(2) of the Fair Work Act. The Respondent conceded that the dismissals contravened s.351(1), but argued that the dismissals fell within the exceptions in s.351(2)(b) and s.351(2)(a). The Applicants argued that the Respondent failed to meet its evidentiary burden to establish the exceptions.

The FWC found that the inherent requirement of the Cultural Heritage Officer position was not a requirement of evidence or proof of being Barada Barna, and that the genuine belief of the Respondent that the Applicants were not Barada Barna was not a positive conclusion that they were not. The FWC held that the Respondent failed to meet its evidentiary burden to satisfy the exception in s.351(2)(b) and s.351(2)(a). The FWC also held that the reverse onus in s.361 did not apply in this case, and that the evidentiary onus was on the Respondent to establish the exceptions. The FWC found that the decision to dismiss the Applicants was made without proper consideration of the evidence and the complexity of the issue, and that the manner in which the dismissals were carried out was hamfisted.

The FWC relisted the matter for further submissions on remedy, and made no orders as to costs. The FWC found that the dismissals were unfair and unlawful, and that the Respondent had failed to meet its evidentiary burden to establish the exceptions in s.351(2) of the Fair Work Act. The FWC held that the dismissals were not based on a substantive and operative reason that met the exceptions in s.351(2), and that the reverse onus in s.361 did not apply in this case. The FWC found that the Respondent's witnesses were unconvincing and not credible regarding the anthropological and genealogical reports, and that the Board did not have the power to suspend the Kitchener line despite purporting to do so. The FWC relisted the matter for further submissions on remedy, and made no orders as to costs.