Mr Jeffrey Iversen v Arramwelke Aboriginal Corporation
[2025] FWC 1352
•16 MAY 2025
| [2025] FWC 1352 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Jeffrey Iversen
v
Arramwelke Aboriginal Corporation
(U2024/13608)
| COMMISSIONER RIORDAN | SYDNEY, 16 MAY 2025 |
Application for an unfair dismissal remedy
This decision concerns an application for an unfair dismissal remedy made to the Fair Work Commission (the Commission) by Mr Jeffrey Iversen (the Applicant), pursuant to s.394 of the Fair Work Act 2009 (the Act), in relation to the termination of his employment by Arramwelke Aboriginal Corporation (the Respondent).
The Applicant was appointed by the Respondent on 12 February 2020 to the position of Chief Executive Officer (CEO). The Applicant was terminated by correspondence from the Chairman of the Respondent, Mr David Blue (Jr), on 24 October 2024.
The Respondent failed to participate in any proceeding before the Commission. The Commission attempted to contact the Respondent by phone, email and post as follows:-
· On 22 November 2024, the Commission contacted the Respondent by telephone and spoke to a woman named ‘Roslyn’ who advised that the correct contact for the matter was ‘John’ and that she would forward any Commission correspondence to him.
· On 26 November 2024, the Commission made a further attempt to contact the Respondent to confirm a service email address, however, the line was not answered and a voice message was left.
· On 27 November 2024, the Commission served the application and notice of listing for conciliation via express post to the Respondent’s address.
· On 4 December 2024, the Commission attempted to contact the Respondent, however, they were advised that the Respondent was ‘away until 6 December 2024’.
· On 6 December 2024, the Commission attempted to contact the Respondent, however, there was no answer and a voice message was left.
· The Staff Conciliation scheduled on 9 December 2024 could not take place as the Respondent failed to attend.
· The matter was allocated to my Chambers on 9 December 2024.
· On 9 December 2024, my Chambers issued a notice of listing, by email, for a Conference/Directions to take place by telephone on 17 December 2024. The notice of listing also set directions for the Respondent to file its overdue Form F3 Employer Response by Friday, 13 December 2024.
· On 16 December 2024, my Chambers issued an amendment notice of listing, by email, advising that the Conference/Directions had been moved to 19 December 2024 and again reminding the Respondent to file its overdue Form F3 Employer Response.
· Also on 16 December 2024, my Chambers attempted to contact the Respondent by telephone, however, the call was answered by a gentleman at the ‘Bonya Store’ who advised that there was no one there by the Respondent contact person’s name.
· Further to seeking clarification from the Applicant and Applicant’s representative, my Chambers understood that the Bonya Store and Arramwelke Aboriginal Corporation shared the same premises/phone number.
· On 16 December 2024, my Chambers made two further attempted calls to the Respondent’s landline. These calls went to voice message, and a message was left advising that the Fair Work Commission was attempting to contact the Arramwelke Aboriginal Corporation in relation to a Commission matter. A representative for Arramwelke Aboriginal Corporation was asked to return Chambers’ call.
· On 17 December 2024, my Chambers called the Respondent’s landline number and the gentleman at the Bonya Store answered. My Chambers advised the gentleman that we were seeking to speak with someone at the Arramwelke Aboriginal Corporation, which we understood shared this landline number and premises. My Chambers asked if anyone was available at the Arramwelke Aboriginal Corporation and was advised that there was no one in ‘until maybe Friday’.
· On 17 December 2024, in light of no contact with the Respondent and no Form F3 Employer Response being filed, the Conference of 19 December 2024 was vacated.
· Following the Christmas and New Years period, my Chambers attempted to contact the Respondent by telephone on 7 January 2025. The call went straight to a message bank that announced it was for the Arramwelke Aboriginal Corporation. My Chambers left a message seeking an urgent return call to Chambers.
· Also on 7 January 2025, my Chambers made a further attempt to contact the Respondent by telephone. This call was answered by the gentleman at the Bonya Store who advised that no one from the Corporation was in that day. The gentleman advised that Chambers would need to speak with ‘Rosyln’ who would likely be available between 9.30 and 12pm the next day.
· On 8 January 2025, my Chambers made a number of attempts across the morning to contact the Respondent by telephone. Two of the calls were answered by the gentleman at the Bonya Store who advised that ‘Roslyn’ was due in but had not yet arrived. At 12pm AEST, during another attempted call to the Respondent, my Chambers were advised by the gentleman at the Bonya Store that ‘Roslyn’ was unwell and would not be coming into the office that day.
· On 9 January 2025, my Chambers sent a letter to the Respondent, by email, and issued a notice of listing for a Telephone Conference on 23 January 2025. Copies of this letter and notice of listing were sent by express post to the Respondent’s premises.
· On 23 January 2025, my Chambers attempted to contact the Respondent by telephone 7 minutes prior to the Conference start time. The call was answered by the Bonya Store and my Chambers were advised that no one was in at the Respondent’s offices that day.
· The Conference proceeded in the Respondent’s absence and was formally recorded. Directions were set at that Conference for filing of materials and a date was set for the Arbitration Hearing. Formal written Directions and Listing issued following the Telephone Conference, which provided that:-
“If the Respondent fails to respond or contact Chambers in relation to these Directions, and does not file any materials, the Hearing will be vacated and the matter will be determined on the papers.”
· Copies of the Directions and Listing were sent via express post to the Respondent’s premises on 23 January 2025.
· On 17 February 2025, the Applicant filed their materials as directed. Copies of these materials were printed and sent by the Commission via express post to the Respondent’s premises on 18 February 2025.
· The Respondent failed to comply with the Commission’s Directions.
The Respondent has failed to respond to any of my Chamber’s voice messages or the correspondence that was sent via express post or email to the Respondent. The Respondent has failed to file any materials as directed by the Commission.
On 24 March 2025, the Applicant’s representative wrote to my Chambers seeking confirmation that, in light of the Respondent failing to file any materials, the hearing date would be vacated and the matter would be determined on the papers.
The Hearing in this matter was vacated, accordingly, and a copy of the Cancellation Notice of Listing was sent to the Respondent’s premises via express post on 24 March 2025.
The Applicant is entitled to have his case heard. The Respondent was warned that if they failed to connect or respond to the Fair Work Commission, then the matter would be determined in their absence. The Respondent failed to respond.
I note that the Applicant was terminated by correspondence from the Chairman of the Respondent on 24 October 2024:-
“24th October, 2024
PRIVATE AND CONFIDENTIAL
To: Jeffrey Ralph Iverson (sic)
C/- Bonya Community
[redacted]Dear Jeffrey Iverson,
Termination of Employment
Please find attached the outcome of the Director’s meeting held 22nd October, 2024 regarding termination of your employment effective immediately with Arramwelke Aboriginal Corporation and Tyanttyenge Aboriginal Corporation
Yours sincerely,
David Blue (Jr)
Chairperson
Arramwelke Aboriginal Corporation
Tyanttyenge Aboriginal Corporation”
Determining a matter when the employer refuses to participate in a Commission proceeding is not unique.[1]
This matter is determined based on the submissions and statement of the Applicant.
Relevant Provisions of the Act
Section 394 of the FW Act provides that:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
Section 385 provides the meaning of ‘unfairly dismissed’ as follows:-
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
The meaning of ‘dismissed’ is provided at s.386 of the FW Act:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
Consideration
I have taken into account the submissions that have been provided by the Applicant and I have attached the appropriate weight to the evidence filed to the Commission.
It is not in dispute, and I find, that the Applicant is protected from unfair dismissal, submitted his application within the statutory timeframe, was not made genuinely redundant. I am unaware whether the Respondent is a small business.
When considering whether a termination of an employee was harsh, unjust or unreasonable, the oft-quoted joint judgement of McHugh and Gummow JJ in Byrne v Australian Airlines (Byrne)[2] is of significance:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
In analysing Byrne, a Full Bench of the Australian Industrial Relations Commission in Australian Meat Holdings Pty Ltd v McLauchlan (AMH)[3] held:
“The above extract is authority for the proposition that a termination of employment may be:
· unjust, because the employee was not guilty of the misconduct on which the employer acted;
· unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or
· harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct”.
Further, a Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd[4] said:
“[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination”.
The unchallenged evidence of the Applicant is that he was not provided with any KPI’s for his role, nor were there any performance reviews undertaken. Further, the Applicant was not subject to any warnings about his performance through the course of his employment. I have taken this into account.
Whilst not relevant to this proceeding, and outside the jurisdiction of the Commission, I note that the Applicant claims that he was not paid since the last week of February 2024.
I now turn to the criteria for considering harshness as provided in s.387 of the FW Act.
Section 387(a) - Valid Reason
The meaning of the phrase “valid reason” has been universally drawn from the judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd:[5]
“In broad terms, the right is limited to cases where the employer is able to satisfy the Court of a valid reason or valid reasons for terminating the employment connected with the employee’s capacity or performance or based on the operational requirements of the employer. …
In its context in s 170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that” the employer and employee are each treated fairly…”.
In Rode v Burwood Mitsubishi,[6] a Full Bench of the Australian Industrial Relations
Commission held:
“… the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”
In Qantas Airways Ltd v Cornwall (Cornwall)[7] the Full Court of the Federal Court of Australia said:
“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”
(My emphasis)
The Applicant was not provided with any reason for his termination. As a result, the reason for the Applicant’s termination is logically, not valid. I have taken this into account.
Section 387(b) - Notified of the Reason
The Applicant was not notified of the reason for his dismissal. I have taken this into account.
Section 387(c) - Opportunity to Respond
The Applicant was not provided with an opportunity to respond. I have taken this into account.
Section 387(d) - Any refusal of a support person
No meeting took place between the parties. I have taken this into account.
Section 387(e) - Unsatisfactory performance
No reason was given for the Applicant’s termination. The Commission is unaware whether the Applicant’s termination was due to performance issues. I have taken this into account.
Section 387(f) - Size of Employer
Due to the Respondent’s lack of participation in this process, I am unaware of the size of the business. I have taken this into account.
Section 387(g) - Dedicated HR specialists
I accept that the absence of HR expertise would have had a negative impact on the lack of procedures adopted by the Respondent in terminating the Applicant. I have taken this into account.
Section 387(h) - Any other matter
Section 381(2) provides a statutory guarantee that all parties are entitled to a ‘fair go’. The absence of a modicum of procedural fairness for the Applicant does not satisfy this statutory entitlement. I have taken this into account.
Regarding the unchallenged evidence of the Applicant, I note that in the Full Bench decision of INPEX Australia Pty Ltd v The Australian Workers’ Union,[8] it was stated that:-
“[29] The Commission is not a court. It is not bound by the rules of evidence.6 It is required to perform its functions and exercise its powers in a manner that is quick, informal and avoids unnecessary technicalities.7 But when the Commission makes a finding of fact, it must proceed by reference to rationally probative material. 8 That material may include, inter alia, evidence or, in an appropriate case, submissions. For example, it may be appropriate for a finding of fact to be made on the basis of an unchallenged submission made by one party, particularly when the other party is legally represented.”
(My emphasis)
Further, a Full Court of the Federal Court of Australia stated in Ashby v Slipper[9] that:-
“The second aspect, critical to this appeal, relates to the weight or cogency of the evidence: that is, as a general proposition, evidence, which is not inherently incredible and which is unchallenged, ought to be accepted: Precision Plastics Pty Limited v Demir [1975] HCA 27; (1975) 132 CLR 362 at 370-371 (per Gibbs J, Stephen J agreeing, Murphy J generally agreeing). The evidence may of course be rejected if it is contradicted by facts otherwise established by the evidence or the particular circumstances point to its rejection.”
(My emphasis)
I am satisfied and find that the Applicant’s unchallenged evidence should be believed. I have taken this into account.
Conclusion
The Commission made numerous attempts to contact the Respondent in an attempt to have the Respondent engage in this process. All attempts failed. As an Australian worker, the Applicant has the right to the protections of the Fair Work Act. I find that the Respondent has been given ample opportunity to participate in this process and that the Commission determining this matter in the Respondent’s absence is the appropriate course of action.
The Respondent simply dismissed the Applicant by correspondence, without providing any reason or warning. Based on the evidence before the Commission, the Applicant was not dismissed for a valid reason, nor was he provided with any of the necessary procedural fairness processes to challenge his termination. As a result, I am satisfied and find that the Applicant’s dismissal was harsh and unjust.
I find that the Applicant was unfairly dismissed.
Remedy
Having found that the Applicant was unfairly dismissed, I now turn to the issue of an appropriate remedy.
The relevant provisions of the FW Act in relation to a remedy for an unfair dismissal are:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a)the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a)the FWC is satisfied that reinstatement of the person is inappropriate; and
(b)the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
“391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a)reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b)appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a)the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b)that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c)appoint the person to the position in which the person was employed immediately before the dismissal; or
(d)appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:
(a)the continuity of the person’s employment;
(b)the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:
(a)the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b)the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a)the effect of the order on the viability of the employer’s enterprise; and
(b)the length of the person’s service with the employer; and
(c)the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d)the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e)the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f)the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a)the amount worked out under subsection (6); and
(b)half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a)the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b)if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
I do not accept that reinstatement, although the primary remedy under the Act, would be the appropriate remedy in this circumstance.
I can see no reason why the Applicant would not have continued in his employment for the next 3 months. The Applicant had worked as the CEO for more than 4 years, without any warning or complaint and has a desire to be reinstated. Due to the unfairness of this situation and the attitude of the Respondent, I am satisfied and find that the Applicant is entitled to a compensation remedy of 13 weeks’ pay, plus superannuation. I have reached this decision after taking into account all of the issues pertaining to s.390(2). The simple fact is that the Applicant has not been paid since February 2024. I have concluded that the Applicant would not have allowed this situation to continue for a further 3 months without taking the necessary steps to ensure that he was paid for his daily endeavour.
Under normal circumstances it would be important and relevant to consider each of the provisions of s.390(2) individually, however in this circumstance, where there are no opposing or contradictory submissions or evidence, such an exercise would be futile. For example, the question about the financial viability of the Respondent in this matter may be a very relevant consideration. However, because the Respondent made no submissions in relation to this or any other issue, I can only assume that it is an ongoing concern and has sufficient funds to pay the compensation ordered by the Commission.
When considering the level of compensation, it is commonly held that the ‘Sprigg formula’ which emanates from the Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket,[10] provides an appropriate, but not necessarily conclusive, means of undertaking this calculation.
The approach in Sprigg is as follows:
Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination. Workers’ compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation ordered.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
Applying the Sprigg formula:-
I have earlier indicated that the Applicant would have been employed for a further 13 weeks.
The Applicant has advised me that he been unemployed since his termination. I note that the Applicant is an elected Councillor of the Central Desert Regional Council, and receives a stipend of some $50,000 per annum. The Applicant is not an employee of the Council and being a Councillor is not considered as employment, nor is the stipend considered to be wages. I find that the stipend that the Applicant receives from the Council is not money that he has received since his termination for the purposes of this calculation.
I have decided to apply a contingency of 10% in this circumstance.
The order that I will make is subject to the appropriate taxation.
Therefore, the amount to be paid to the Applicant is 11.7 weeks’ pay. The Applicant was earning $80,000 per annum, which equates to $1538.46 per week.
On the basis that my order is for 11.7 weeks’ pay, the actual dollar amount to be paid to the Applicant is $17,999.92 less appropriate taxation, plus superannuation.
Conclusion
I order that the Applicant be paid $17,999.92 less appropriate taxation, plus superannuation.
I so Order.
COMMISSIONER
[1] See for example [2025] FWC 725; [2024] FWC 1346; [2018] FWC 4665.
[2] (1995) 185 CLR 410.
[3] (1998) 84 IR 1.
[4] [2000] AIRC 1019.
[5] (1995) 62 IR 371.
[6] PR4471.
[7] (1998) 84 FCR 483.
[8] [2021] FWCFB 1038.
[9] [2014] FCAFC 15.
[10] (1998) 88 IR 21.
Printed by authority of the Commonwealth Government Printer
<PR787346>
0
10
0