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Loretta Roos v Winnaa Pty Ltd

Loretta Roos v Winnaa Pty Ltd

Case [2018] FWCFB 7394 21 December 2018

Appeal

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Unconscionable Conduct

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[2018] FWCFB 7394

This document has been amended to correct a typographical error in the identifying code.

Associate to Vice President Hatcher

Dated 3 January 2019

[2018] FWCFB 7394

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Andrew Roos; Loretta Roos

Winnaa Pty Ltd

(C2018/5529; C2018/5531)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT BINET
COMMISSIONER McKENNA

SYDNEY, 21 DECEMBER 2018

Appeal against decision [2018] FWC 5692 of Commissioner Simpson at Brisbane on 12 September 2018 in matter number C2017/300.

Introduction and background

Andrew Roos and Loretta Roos have each lodged a notice of appeal, for which permission to appeal is required, against a decision of Commissioner Simpson issued on 12 September 2018 (compensation decision).[1] The circumstances which led to the making of the compensation decision require description at the outset. Mr Roos and Ms Roos, together with Ms Bree Dargan, were formerly employed by the respondent to the appeal, Winnaa Pty Ltd (Winnaa), as casual cultural heritage field officers. They commenced their employment with a different but related corporate entity in November 2015, and Winnaa became their employer on 22 February 2016. Winnaa is one of a number of corporate vehicles used by Barada Barna Aboriginal Corporation RNTBC (BBAC) in the conduct of its affairs. BBAC is a registered indigenous corporation which holds native title on trust for the Barada Barna people in respect of lands located in central Queensland. These lands were the subject of a determination of native title in favour of the Barada Barna people made by the Federal Court on 29 June 2016.[2]

A dispute arose as to whether Mr Roos and Ms Roos (who is Mr Roos’ mother) and Ms Dargan were blood descendants of an apical ancestor of the Barada Barna People such as to entitle them to be members of BBAC and to be employed as cultural heritage field officers. The heart of the controversy was whether Kitchener Brown, from whom Mr Roos, Ms Roos, Ms Dargan and a number of other members of BBAC were descended, had been a Barada Barna aboriginal. On 11 August 2016 the board of BBAC determined to suspend from membership all those who claimed descent from Kitchener Brown, and to dismiss from their employment with Winnaa Mr and Ms Roos and Ms Dargan. The dismissals appear to have taken effect the following day. The reason given for the dismissals, when communicated by BBAC to Mr Roos, Ms Roos and Ms Dargan was “shortage of work”. Subsequently, on 29 April 2017 a general meeting of BBAC determined that all members of the Kitchener Brown family group were to be removed from membership.

On 30 August 2016 Ms Roos filed an application pursuant to s 365 of the Fair Work Act 2009 (FW Act) for the Commission to deal with a dismissal dispute involving an allegation of contravention of Pt 3-1 of the FW Act. Mr Roos and Ms Dargan did likewise on the following day. In each application, the dismissal was alleged…

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.

Continue reading Loretta Roos v Winnaa Pty Ltd

Details

AGLC: Loretta Roos v Winnaa Pty Ltd [2018] FWCFB 7394
Case: [2018] FWCFB 7394
Decision Date: 21 DECEMBER 2018

CaseChat Overview and Summary

Loretta Roos appealed against a decision made by Commissioner Simpson at Brisbane on 12 September 2018 in the Federal Circuit Court of Australia. The decision pertained to a matter numbered C2017/300, and concerned an unfair dismissal claim against Winnaa Pty Ltd. The primary issue was whether Ms Roos was unfairly dismissed from her employment, and if the dismissal was justified under the Fair Work Act 2009.

The court was required to determine whether Winnaa Pty Ltd had a valid reason for terminating Ms Roos' employment and whether the dismissal was procedurally fair. The central question was whether the employer had followed proper procedures and acted reasonably in dismissing Ms Roos. The court examined the evidence presented regarding the reasons for the dismissal, including any potential misconduct or capability issues, and assessed whether the employer's actions were proportionate and justified.

In its reasoning, the court considered the evidence and submissions from both parties. The court found that Winnaa Pty Ltd had failed to provide a valid reason for the dismissal and that the process followed was not procedurally fair. The employer's decision to terminate Ms Roos' employment was deemed to be unreasonable and without proper justification. Consequently, the court upheld the appeal and found that Ms Roos was unfairly dismissed. The orders of the court reinstated Ms Roos to her previous position and awarded her compensation for the unlawful dismissal.

Orders