Loretta Roos v Winnaa Pty Ltd - [2018] FWC 7394

[2018] FWC 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 to have been in breach of ss 344 and 351 of the FW Act, with the s 351 contravention allegation being founded on the contention that…

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.

Keep reading for free

Create a free CaseChat account to read Loretta Roos v Winnaa Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FWC 7394
Decision Date: 21 DECEMBER 2018

CaseChat Overview and Summary

The appeal before the Fair Work Commission was brought by Andrew Roos and Loretta Roos against a decision of Commissioner Simpson, who had found that they were unlawfully dismissed by Winnaa Pty Ltd in contravention of s 351 of the Fair Work Act 2009, and had awarded them compensation. The appellants contended that the compensation awarded to them was inadequate in two respects: the Commissioner had applied a discount of 25% to the amount awarded for economic loss, and the Commissioner had awarded $5,000 for non-economic loss, which was manifestly inadequate. The Commission concluded that permission to appeal should be granted only in respect of the first ground of appeal, and that the appeal should be upheld in that respect. The Commission held that the Commissioner erred in applying a deduction for contingencies to past economic loss, and in taking into account in assessing compensation the hypothetical duration of further employment twice. The Commission varied the compensation decision to increase the amounts awarded for economic loss. The other grounds of appeal were rejected as not being in the public interest.

Orders