[2020] FWC 3718

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Robert Tamwoy
v
Northern Peninsula Area Justice Services Aboriginal and Torres Strait Islander Corporation
(U2020/743)

COMMISSIONER HUNT

BRISBANE, 2 SEPTEMBER 2020

Application for an unfair dismissal remedy – Small Business Fair Dismissal Code – Applicant engaged in conduct sufficiently serious to warrant summary dismissal – Respondent’s belief based on reasonable grounds – application dismissed.

[1] On 23 January 2020, Mr Robert Tamwoy made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Northern Peninsula Area Justice Services Aboriginal and Torres Strait Islander Corporation (NPAJSC/the Respondent).

[2] Mr Tamwoy commenced employment with the Respondent on 5 December 2016. The parties agree that Mr Tamwoy was notified of his dismissal on 15 January 2020 and the dismissal was effective from that date. He was summarily dismissed.

[3] NPAJSC is a corporation incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) and is wholly reliant on receiving funding from the State of Queensland through the Department of Justice and the Attorney-General (DJAG). There are five statutory Community Justice Groups (CJG’s) being Injinoo, Umagico, Bamaga, New Mapoon, and Seisia, all independent and established under the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984. Mr Tamwoy was employed by NPAJSC and not by the CJG’s.

[4] The purpose of the Respondent’s existence is detailed in a Service Agreement between the DJAG and the Respondent, to work towards reducing the over-representation of Aboriginal and Torres Strait Islander offenders and victims within the criminal justice system. The Respondent is tasked with delivering or referring to culturally appropriate support services to improve quality of life and to increase cultural understanding in the courts and the wider criminal justice system.

[5] The key tasks required of the Respondent pursuant to the Service Agreement is:

• Preparation and presentation of bail submissions to the court;

• Preparation and presentation of sentencing submissions to the court;

• Attend court sittings when Aboriginal and Torres Strait Islander offenders and victims are attending;

• Support victims and offenders through court processes;

• Pro-actively refer victims and offenders to support and legal services; and

• Attend interagency working group meetings and community events to provide advice on cultural issues and communicate community views on justice related issues.

[6] The Respondent has a considerable number of Directors who constitute the Board of Directors. The Directors are Aboriginal and Torres Strait Islander Elders. In addition, the Respondent has individuals who have taken out membership of the organisation and are called members. Mr Tamwoy is not a member, nor was he a member during his employment with the Respondent.

When can the Commission order a remedy for unfair dismissal?

[7] Section 390 of the Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the person was protected from unfair dismissal at the time of being dismissed; and

(b) the person has been unfairly dismissed.

[8] Both limbs must be satisfied. I am therefore required to consider whether Mr Tamwoy was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that Mr Tamwoy was so protected, whether he has been unfairly dismissed.

When is a person protected from unfair dismissal?

[9] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

When has a person been unfairly dismissed?

[10] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

Has Mr Tamwoy been dismissed?

[11] A threshold issue to determine is whether Mr Tamwoy has been dismissed from his employment.

[12] Section 386(1) of the Act provides that a person has been dismissed if:

(a) the person’s employment with their employer has been terminated on the employer’s initiative; or

(b) the person has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the employer.

[13] Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. There was no dispute and I find that Mr Tamwoy’s employment with the Respondent was terminated at the initiative of the Respondent. I am therefore satisfied that Mr Tamwoy has been dismissed to satisfy s.385(a) of the Act.

Initial matters

[14] Under section 396 of the Act, the Commission is obliged to decide the following matters before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(d) whether the dismissal was a case of genuine redundancy.

Was the application made within the period required?

[15] Section 394(2) requires an application to be made within 21 days after the dismissal took effect.

[16] It is not disputed, and I find that Mr Tamwoy was dismissed from his employment on 15 January 2020 and made the application on 23 January 2020. I am therefore satisfied that the application was made within the period required in subsection 394(2).

Was Mr Tamwoy protected from unfair dismissal at the time of dismissal?

[17] I have set out above when a person is protected from unfair dismissal.

Minimum employment period

[18] The Respondent is a small business, employing only two employees at the time of the dismissal; Mr Tamwoy as the Coordinator, and Ms Elizabeth Carney as the Domestic and Family Violence Court and Family Support Officer. It was not in dispute and I find that Mr Tamwoy was an employee with a period of continuous service in excess of 12 months.

[19] It was not in dispute and I find that Mr Tamwoy was an employee.

[20] I am therefore satisfied that, at the time of dismissal, Mr Tamwoy was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.

[21] It was not in dispute and I find that, at the time of dismissal, the sum of Mr Tamwoy’s annual rate of earnings (being $64,000.00) without any other such other amounts worked out in accordance with regulation 3.05 of the Fair Work Regulations 2009,was less than the high income threshold, which, for a dismissal taking effect on or after 1 July 2019 and at or before 30 June 2020 is $148,700.

[22] I am therefore satisfied that, at the time of dismissal, Mr Tamwoy was a person protected from unfair dismissal.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

[23] Section 388 of the Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code (the Code) if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

[24] The Code was declared by the Minister for Employment and Workplace Relations on 24 June 2009, and states:

“Small Business Fair Dismissal Code

Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[25] As mentioned above, I find that the Respondent was a small business employer within the meaning of s.23 of the Act at the relevant time, having fewer than 15 employees (including casual employees employed on a regular and systematic basis).

[26] It is therefore necessary to consider whether the Respondent complied with the Code in relation to the dismissal. If I find that it did comply with the Code, the application will be dismissed. If I determine that Mr Tamwoy’s dismissal was not in accordance with the Code, it is necessary for me to consider if the dismissal was harsh, unjust or unreasonable pursuant to s.387 of the Act.

Hearing

[27] There being contested facts involved, the Commission is obliged by s.397 of the Act to conduct a conference or hold a hearing. After taking into account the views of the parties and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing. 1 The hearing was conducted by telephone on 2 June 2020.

[28] Mr Tamwoy appeared and gave evidence on his own behalf. Leave was granted pursuant to ss.596(2)(a) and (b) of the Act for the Respondent to be represented by Mr Greg Schipp of Counsel, instructed by Ms Tamsin Johnston, Director of Australian Presence Legal. Witness statements were admitted into evidence for the following witnesses who were not required for cross-examination:

• Ms Elizabeth Carney, Domestic and Family Violence Court and Family Support Officer;

• Ms Mazorie Townson, Director;

• Ms Lorraine Solomon, Director;

• Ms Polly Mooka, Director;

• Mr Muen Lifu, Director;

• Mr Erris Eseli, Director;

• Ms Edna Mark, Director;

• Ms Agnus Mark, Director; and

• Ms Kitty Gebadi, Director.

[29] While it would have been difficult, but not impossible to dial-in the Respondent witnesses to the telephone hearing, given many of the witnesses are remotely located in far north Queensland, Mr Tamwoy stated during the hearing that he did not wish to cross-examine the witnesses on account of his respect for them as Aboriginal and Torres Strait Islander Elders.

Confidentiality Orders

[30] I have made a confidentiality Order [PR722335] in respect of a number of individuals. I considered it necessary to protect their identity in these proceedings. Throughout this decision the individuals will be referred to as Mr XY, Mr ZA and Mr CD.

The reasons for the dismissal

[31] According to the Respondent’s Form F3, Mr Tamwoy was dismissed on three grounds:

• Creating an Instagram account under the employer’s name where he posted pictures of two men held in police custody, which mentions the name of the men and location they were being transferred to. The account and posts were made without consent or authorisation. The reputational damage in a small community for the employer has significant repercussions to its operations and standing of the community elders;

• Mr Tamwoy knowingly misused his position and deceived the court and attempted to pervert the course of justice. Mr Tamwoy failed to schedule cultural mediation for the client and advised the court that the failure of cultural mediation was due to the complainant being unresponsive. A letter annexed to the Respondent’s response shows that the complainant had agreed to cultural mediation; and

• It was alleged that Mr Tamwoy provided confidential financial information of the employer to his spouse in breach of his employment contract and confidentiality obligations. Mr Tamwoy’s spouse had publicly shared the employer’s financial information on Facebook on or about 16 December 2019.

Respondent’s evidence and submissions

[32] The termination letter issued to Mr Tamwoy is produced below:

“16/01/2020
Private and Confidential

MR Robert Tamwoy
[address redacted]

Dear Mr Tamwoy,

Termination of your employment

The Directors have recently been made aware that you have breached your Contract of Employment in your role as the NPA Community Justice Group Co-ordinator, under the following sections:

SECTION 10 CODE OF CONDUCT

• 10.3 – Behave in a manner that does not cause offence or bring disruption the community justice group or the community and individuals that make up the community justice group and community;

It has come to our attention that you have placed sensitive images on your personal social media that are in breach of this clause in your contract.

• 10.4 – obey the rules and guidelines that the community justice group may implement the workplace and/or on behalf of the community;

By placing these images on social media, you have failed to obey the rules and guidelines of the NPA Justice Group.

• 10.5 – Act in an honest manner in all dealings with the community justice group and community;

You did not seek the permission of the Directors as per the requirement of your position.

SECTION 12 CONFIDENTIALITY

Any information and/or documentation relating to the business or activities of the community justice group remains the property of the community justice group and may not be disclosed to any person without the express written approval of the community justice group or as required under any relevant legislation

You did not seek the written permission of the Directors as per the requirement of your position, to publish sensitive images on your personal social media.

Due to the above very serious breaches of your contract, the Directors of the NPA Community Justice Group hereby terminate your employment with NPA Community Justice as the Co-ordinator, EFFECTIVE IMMIDIATELY.

All physical and intellectual property belonging to the organisation must be returned immediately and is to be handed in to the Directors of the NPA Justice Group no later the 5pm Friday 17^thJanuary 2020. This includes (but not limited to) all motor vehicles, mobile phones and sim cards, lap tops, printers, USB devices or memory sticks and any confidential documentation.

Once these items have been received the organisation will arrange for your termination pay to be processed.

Yours sincerely
On Behalf of NPA Justice Services ATSIL Corporation.”

[33] The Respondent has in place a Code of Conduct. It includes the following:

“Dealing with Outside People and Organisation

Employees and members must take care to separate their personal roles from their MPAJSC position when communicating on matters not involving MPAJSC business. Employees and members must not use MPAJSC identification, stationary [sic], supplies, and equipment for personal or political matters.

When communicating publicly on matters that involve NPAJSC business, employees and members must not presume to speak for the NPAJSC on any topic, unless they are certain that the views they express are those of the NPAJSC and it is the NPAJSC’s desire that such views be publicly disseminated.

When dealing with anyone outside of the NPAJSC, including public officials, employees and members must take care not to compromise the integrity or damage the reputation of either the NPAJSC, or any outside individual, business, or government body.

……..

Privacy and Confidentiality

When handling financial and personal information about customers or others with whom the NPAJSC has dealings, observe the following principles:

Collect, use and retain only the personal information necessary for the NPAJSC’s business. Whenever possible, obtain any relevant information directly from the person concerned. Use only reputable and reliable sources to supplement this information.

Retain information only for as long as necessary or as required by law. Protect the physical security of this information.

Limit internal access to personal information to those with a legitimate business reason for seeking that information. Use only personal information for the purposes for which it was originally obtained. Obtain the consent of the person concerned before externally disclosing any personal information, unless legal process or contractual obligation provides otherwise.

Breaches of Code of Conduct

Breaches of Code of Conduct will be handled initially by the employee’s line manager. If it becomes a performance issue, it will be managed under the employee’s contract. Breaches of Code of Conduct by a member will be handled by the Board of the NPAJSC.”

Witness Statement of Elizabeth Carney

[34] Ms Carney is employed by the Respondent in the position of Domestic and Family Violence Court and Family Support Officer. On 10 December 2019 she was contacted by a concerned community member about the existence of an Instagram account in the name of ‘NPAJustice17.’ Ms Carney stated that the community member had come across the account and expressed concerns about the photo of two men that had been published under that Instagram account.

[35] Ms Carney held concerns and decided she needed to view the account to see the image. She did not have an Instagram account herself and had to create her own account on her home computer. She viewed the picture posted on 10 November 2017; it contained uncensored faces of two men who were held in the Bamaga Watch House, and the caption mentioned both men by their first name and mentioned that the men were being sent to Lotus Correctional Centre. The caption associated with the image also contained the text: “Safe Journey boys to Lotus. Be strong. We are with you. Good night with the bala [ZA] and bala [XY]. We all make mistakes, no one perfect.”

[36] I note that bala is a term for brother.

[37] Ms Carney said she did not know at the time that the two men in the photo were clients of the NPAJS, but assumed they were likely to be clients as she had been working with the partner of one of the men pictured in the photo. She said she was familiar with the environment of the Bamaga Watch House and immediately recognised the location and said it is not a public place.

[38] Ms Carney stated that she immediately recognised that the image that had been posted could be considered to be very serious and a breach of the privacy and confidentiality provisions imposed on employees and members by the NPAJS Code of Conduct, contracts of employment and relevant policies. She took a screenshot of the Instagram post.

[39] On 11 December 2019, she spoke face-to-face with Directors Ms Kitty Gebadi, Ms Lorraine Solomon, Ms Polly Mooka, Ms Edna Mark, and Ms Mona Townson. She showed them the screenshot of the men held in the Bamaga Watch House and asked them if they were aware of the Instagram account. She said that upon viewing the screenshot, the Directors appeared to be quite disappointed and angry and told her that they were not aware of any Instagram account being operated by NPAJSC. At least three of the Directors stated that an urgent Special Directors’ meeting should be called to discuss the matter.

[40] That same day Director Kitty Gebadi sent the following email to Directors:

“Hi Directors

There has been a lot of serious outstanding issues and actions regarding our current Coordinator that needs to be addressed as soon as possible.

He has also gone ahead and created a social media account on Instagram without our consent. We are still yet to site [sic] all outstanding previous meeting. We really need to form a quorum ASAP this week and get to the bottom of it soon or all of us will be held accountable for his actions.

Please response to this email.

Regards

Kitty”

[41] Ms Carney stated that she was invited to attend the first meeting of Directors, held on 12 December 2019 at the Bamaga Courthouse. A quorum of Directors was present. At this meeting the following was discussed:

(a) A screenshot copy of the Instagram photo of the two men;

(b) A copy of a submission by Mr Tamwoy to the Magistrates’ Court in respect of Mr CD; and

[42] Regarding the submission by Mr Tamwoy to the Magistrates’ Court it reads as follows:

“05 12 19

To the Presiding Magistrate
Bamaga Magistrate Court

Your Honour,

Robert Tamwoy Coordinator for NPA Justice Services ATSI Corp presenting result of our attempt of Cultural mediation for Mr CD and Complainant [redacted].

Sadly we have not been able to be successful on coordinate a Cultural Mediation Attempt due to no response from the Complainant on the request therefore we have exhausted our efforts and we affirm that we have not been able to complete a successful remediation.

We are also of the understanding that Mr CD is still unwell and his continuing medical treatment for his current illness. We wish Mr CD all the best for his treatment.”

[43] Regarding the email sent by Ms Carney to Mr CD’s legal representative it reads as follows:

“13 December 2019 @ 4:31pm

Hi Bob,

Annabelle told me that you are the lawyer for Mr CD and to direct inquiries regarding his Court matter to you.

I understand that a letter dated 05/12/2019 was provided to the Court by Robbie last week saying that the NPA CJG “has exhausted our efforts” to complete mediation, “due to no response from the Complainant”.

I confirm I have today spoken with [name] who is the CEO of the [organisation] Complainant. [name] confirmed she advised Robbie that she was keen to do cultural mediation a long time ago, and had been waiting for Robbie to get back to her. Unfortunately, she did not hear from Robbie again. She had understood he would organise a date and time and let her know so the cultural mediation could go ahead.

I also spoke with [Director] who is the [position] this week. She is [redacted]. [Director] informed me that Mr CD has asked her on numerous occasions when is Robbie coming to see him. [Director] stated that Robbie had advised Mr CD to leave it with him and he would organise it and get back to him. This doesn’t seem to have happened.

I am going to follow up with Robbie to confirm what records he has kept in terms of attempts to contact [name] and Mr CD regarding mediation, because there is a clear discrepancy between what he has written in this letter to the Court – purportedly on behalf of the NPA CJG – and what has now come to light from further inquiries.

I will update you once I have received a response from Robbie.

I trust that you will use this information to act in the best interests of Mr CD….”

[44] As it eventuates, and following Mr Tamwoy’s dismissal, the CEO of the above complainant organisation wrote the following on its organisation’s letterhead:

“11/02/2020

To whom this may concern,

This letter is regarding proposed cultural mediation for Mr CD.

In mid 2019, Mr CD approached me in community and advised that he had been told to undertake mediation with myself and the board and to pay back the funds. I told Mr CD that we would agree to the mediation and looking forward to it.

In late 2019, Mr Robbie Tamwoy contacted me to arrange cultural mediation for Mr CD. I advised him that the organisation was still agreeable to cultural mediation.

As CEO for [organisation], I would like to confirm the organisation is still willing to undertake cultural medication for the above matter with Mr CD.”

[45] Returning to Ms Carney’s statement, following the discussion held by the Directors at the first meeting, all Directors present unanimously decided the following:

(a) The Directors were not aware of the existence of any NPAJustice 17 Instagram account prior to the external alert made to Ms Carney;

(b) The Directors did not authorise the setup of the Instagram account, the consideration of any setup for any such account was never taken or minuted at any previous Directors’ meetings;

(d) Mr Tamwoy should be dismissed for gross misconduct.

[46] Following the meeting a draft letter of termination was prepared by Ms Carney and sent to the Directors for review and final approval.

[47] Ms Carney is aware that a second Special Directors’ meeting was held on 11 January 2020 to discuss the finalisation of the draft letter of termination. She was not present at the second meeting and did not view the final version of the letter of termination which was given to Mr Tamwoy on 15 January 2020.

[48] Ms Carney stated that Director Lorraine Solomon spoke with her on 14 January 2020, informing her that she had visited upon Mr XY and shown him the photo of him. Ms Solomon’s evidence on this issue is at [70] – [71].

[49] Ms Carney was contacted by Ms Annabelle Craft, a solicitor from the Aboriginal and Torres Strait Islander Legal Service (ATSILS). Ms Craft requested Ms Carney locate Mr XY and obtain a copy of his Centrelink income statement so a referral to Legal Aid QLD could be made. Ms Carney then visited upon Mr XY who already knew about the photo having been published as a result of his conversation with Ms Solomon. Mr XY informed Ms Carney that he was very upset and angry about the photo on the Instagram account. Ms Carney informed him that Ms Craft was going to make a referral to Legal Aid.

[50] Ms Carney stated that Mr XY appeared to be happy that he was going to get support to have legal help, and he said to her, “I get angry every time I see Robbie”. Mr Tamwoy lives in very close proximity to Mr XY. Mr XY also asked Ms Carney if she could assist with writing a letter of complaint, to which she informed him that she could.

[51] On 5 February 2020, subsequent to Mr Tamwoy’s dismissal, Ms Carney presented to Mr XY a draft letter. She attended upon Mr XY together with Directors Edna Mark and Agnes Mark. Ms Carney read to Mr XY the letter and asked him if he agreed with the contents. Mr XY did agree with the contents read to him and he signed the letter.

[52] Ms Carney informed Mr XY that the Directors were having a meeting that night and asked him if he would like the letter tabled, to which he confirmed that he did.

[53] Mr XY’s letter dated 5 February 2020, subsequent to the dismissal and prepared by Ms Carney for Mr XY reads as follows:

“I am writing this letter of complaint regarding the actions for the former Coordinator of the NPA Community Justice Group, Robert Tamwoy. This is about a photo of me published by Robert Tamwoy on an Instagram page under the NPA Community Justice Group name on 10 November 2017. The photo is of me in the Bamaga watchhouse with another prisoner.

I confirm:

1. I did not consent for the photo to be taken and published by Robert.

2. I am very upset that this photo was published on social media because it creates a permanent and public record that I was in custody and that I was sent to Lotus Glen Correctional Centre. This is private information and I believe it is very disrespectful how it was done.

3. I was not aware that it was on the Instagram Page until I was informed by the Community Justice Group at the beginning of December 2019. They said they had only just found out about the photo too and told me as soon as possible.

4. I understand all the Directors agreed that him publishing this photo was completely unacceptable and I support the NPA CJG having taken immediate action to remove Robert from his position as Coordinator.

5. I understand that the NPA CJG has also provided a copy of the photo to the Police for further investigation in January 2020. I hope that action will be taken by the Police too.

This is a serious breach of my privacy. It could have ongoing effects on me for the rest of my life. For example; my standing in the community and the reputation of myself and my family and my ability to secure employment in the future. I am seeking legal advice regarding my rights.

Yours sincerely

[Mr XY]”

Witness Statement of Mazorie Townson

[54] Ms Townson is a Director of the Respondent. She stated that the funding requirements of the Respondent dictate four key outcomes to be met:

(a) The Aboriginal and Torres Strait Island victims and offenders are supported in the justice system;

(b) Bail and sentencing decisions are culturally appropriate and take into account a person’s relationship to their community;

(d) Stakeholders (judiciary, support services and community) have an improved cultural understanding.

[55] She stated that clients who use the services of the Respondent are provided with a privacy policy which outlines in clear terms that information provided to the Respondent is strictly confidential. It reads:

“This Corporation recognises the importance of your privacy, however we require the information you provide to us as a means to assist you in the legal process.

This Corporation provides to the Court a cultural submission in either written or oral form at the bail or sentencing stage of your proceedings. The information assists the Court to make a decision in your case.

The collection and use of personal information by this Corporation and the disclosure of information to the Court is authorised by the Penalties and Sentencing Act 1991, the Bail Act 1980 and the Youth Justice Act 1992.

Your details as provided by you to this Corporation are confidential and will not be made to anyone other than myself, a nominated representative or during Court to assist in the bail and sentencing process.

If for any reason the information you provide have no bearing on a judicial finding the same rights to privacy exist and this information will not be made available to anybody outside of the Corporation on a strictly need to know basis.

___________________________	___________________________
(Delegate of the Corporation)	(Client)”

[56] Ms Townson stated that the Respondent is bound by stringent legislative conditions regarding confidentiality and the use of information obtained by its representatives, including limitation on recording or using material, as well as disclosure of information. A copy of the Confidentiality Undertaking of the Respondent was attached as evidence. It refers to extracts from the Penalties and Sentences Act 1992 regarding members of a community justice group. The Confidentiality Undertaking requires the following to be confirmed:

“Without limiting the general nature of the provisions referred to in clause 1 of this undertaking, and any other Queensland or Australian laws relating to confidentiality:

3.1 I acknowledge that I will come into possession of information (‘confidential information’), when I:

(a) Take part in court hearings and sentencing and bail processes as provided for in the Bail Act 1980, the Youth Justice Act 1992 and/or the Penalties and Sentences Act 1992; and

(b) Support Aboriginal and/or Torres Strait Islander victims and offenders at all stages of the legal process.

3.2 I acknowledge that I may also come into possession of confidential information through communications with other members of Community Justice Group.

3.3 I undertake to treat as confidential all information disclosed to me, made known to me or obtained by me in pursuance of the activities referred to in clause 3.1 and clause 3.2 above.

3.4 I undertake not to record any confidential information, except if the recording is part of making submissions to the court.

3.5 I undertake not to use any confidential information, except if the use is part of making submissions to the court…..”

[57] Ms Townson gave evidence that she was made aware of the Instagram account and post on 11 December 2019 and attended the Special Directors’ meeting on 12 December 2019 where the following was discussed:

(a) A screenshot copy of the Instagram photo of the two men;

(b) A copy of a submission by Mr Tamwoy to the Magistrates’ Court in respect of Mr CD; and

[58] All Directors present at the meeting confirmed that they were not aware of the existence of any such Instagram account prior to being advised by Ms Carney, nor had authorisation for the creation of such account been previously considered or agreed.

[59] Ms Townson’s evidence is that the Directors resolved that Mr Tamwoy had breached the Code of Conduct, together with confidentiality and privacy obligations, and this warranted immediate termination. Ms Townson stated that the decision was made on the basis that Mr Tamwoy wilfully failed to comply with the confidentiality obligations imposed on him as a representative of the Respondent, thereby breaching the relevant of applicable legislation to which he and NPAJS were required to adhere, as well as the Respondent’s contractual obligations under the funding agreement.

[60] Ms Townson considered that given Mr Tamwoy’s position, he was fully aware of the obligations imposed on the Respondent and on himself, and the duties owed to the clients. She considered that his actions caused serious and imminent risk and possibly irreparable harm to the Respondent’s reputation, and potentially its entitlement to ongoing government funding.

[61] She stated that the Directors requested Ms Carney prepare a draft letter of termination for Mr Tamwoy, which she did, and it was emailed to the Directors for review and final approval.

[62] Ms Townson stated that there was a lapse of time between the first meeting on 12 December 2019 and a second Directors’ meeting on 11 January 2020 as a result of communication issues. This is because the Respondent’s Directors consist of Elders as well as individuals who have full-time employment elsewhere. The Elders who do not work are usually the ones who attend court and are engaged in cultural mediation and youth justice conferences. Further, some of the Elders live in areas with limited phone access, resulting in delays in returning emails.

[63] At the meeting of 11 January 2020, the finalisation of the draft termination letter was discussed and agreed. The Board unanimously agreed that Mr Tamwoy’s conduct was unacceptable and so serious that the Respondent had no option but to dismiss Mr Tamwoy. She stated that the decision to dismiss was not taken lightly.

[64] Ms Townson stated that she organised and attended the termination meeting with Ms Edna Mark, and Senior Sergeant Poole, a Queensland Police Officer. The meeting occurred at the Bamaga Courthouse. She considered Senior Sergeant Poole to be a neutral person and a witness. She stated, “I also wanted to prevent a potential escalation of disagreements from both parties”.

[65] At the termination meeting Ms Townson informed Mr Tamwoy of what she describes as the Respondent’s “discovery of the acts of gross misconduct against him”. She informed him of the two special Directors’ meetings where the Instagram account was discussed. She informed him he was dismissed and handed the letter of termination to him. The following conversation occurred:

Mr Tamwoy:	Seriously? Youse going to let me explain?
Ms Townson:	Okay we will let you explain. Please explain the photo.
Can you please explain why you open up an Instagram page and why you uploaded these photos on the Instagram page?
Mr Tamwoy:	Are youse for real? This is bull. [he then stood]
You will hear from my lawyer!
Ms Townson:	That is totally up to you, if that is your intention.
Sorry this has come to this, but these are the grounds that you have been dismissed as the Coordinator. The simple facts that we have come to this decision is because the things that could come back to us from your actions.
Mr Tamwoy:	I will pray for you and I will pray to my God to forgive youse. Is that all?
Ms Townson:	I want the keys for the work car and the car. All work-related items such as the gazebo, laptop, chairs and other MPAJS items need to be returned to the Justice Centre by Friday afternoon.
Mr Tamwoy:	I can’t get over this. Is this a dream? I can’t believe that you are doing this.
Ms Townson:	Robbie explain this picture. This is a photo that you have taken inside a Correctional service facility. This is not acceptable because the NPA Justice Group can get into a lot of trouble. You created this social media page without our approval and you uploaded this photo. These two boys were going into incarceration for domestic violence and we do not tolerate this kind of behaviour, especially as you are the Coordinator of the NPA Justice Group.
Mr Tamwoy:	This is bull, and you’ll be hearing from my lawyer and I esso youpla for everything youse have done and all my hard work I’ve done with the NPA Justice Group.
My God is a good God, and I gor ask my God to forgive youpla.
Okay, I will go.

[66] Ms Townson stated that Mr Tamwoy did not request a support person at the termination meeting.

Witness Statement of Lorraine Solomon

[67] Ms Solomon is a Director of the Respondent. She was shown the Instagram photo on 11 December 2019 by Ms Carney. She stated:

“I could tell the photo of the two men was taken inside the cells at the Watch House. I wondered why no police were there because it seemed like Robbie had just walked through to the cells with a phone in his pocket or something. I know that normally when you visit, you have to take everything out, no phones, no earrings and you have to put your belongings into a bag and put it in a locker. I think that we will all probably get searched now when we go inside the Watch House in Bamaga. Robbie has made a bad name for all of us.

When I saw the photo of those two boys in the Watch House, it was a shocking thing to see. I cannot believe Robbie actually put it up on social media and honestly, I felt disgusted. I felt sorry for those two boys and their families, especially as they did not know it was put up on social media. Publishing their names was not good and breached them (the boys) and our media policies.”

[68] Ms Solomon said the following was discussed at the 12 December 2019 meeting:

(a) A screenshot copy of the Instagram photo of the two men;

(b) A copy of a submission by Mr Tamwoy to the Magistrates’ Court in respect of Mr CD; and

[69] Ms Solomon stated the Directors present unanimously determined that Mr Tamwoy’s actions risked the confidence, trust and funding of the Respondent. Also discussed was the potential for legal action against the Respondent. The Directors determined that Mr Tamwoy had breached the code of conduct, confidentiality and privacy policies of the Respondent and his employment should be immediately terminated. Ms Carney was tasked with preparing a termination letter.

[70] Ms Solomon stated that she approached Mr XY to discuss the photo of him and Mr ZA on Instagram. She knows Mr XY personally and cautioned Mr XY against doing anything “silly”. Before she showed him the picture, she told him that he should see Ms Craft at ATSILS to obtain legal advice.

[71] Ms Solomon stated that upon being shown the photo, Mr XY said he wanted to punch Mr Tamwoy. She said to him, “No, calm yourself down. You go home and calm yourself down. If you need to ring Annabelle you come here at [location] and I go and ring Libby and we can get hold of Annabelle for you or I can ask Libby to come here and take you up to see Annabelle. Whatever you do, just ignore him and you just calm yourself down.” She was certain that if she had not calmed him down, he would have punched Mr Tamwoy. Mr XY informed her that he did not know that Mr Tamwoy was going to put the picture on Instagram; he just thought that he was taking a picture of him and the other man.

[72] Ms Solomon recalled the second Directors’ meeting on 11 January 2020 and stated that the Instagram photo was discussed, together with the letter Mr Tamwoy had sent to the court, and the email Ms Carney had sent. She stated that everybody present was “still shocked” about the photo, and they determined that no permission had been given to Mr Tamwoy to make an Instagram account. Ms Solomon stated that the Directors resolved to dismiss Mr Tamwoy, and it was important for the Respondent’s image to be restored in the community.

[73] The termination letter was discussed, and Ms Townson was tasked with finalising the letter following the meeting.

Witness Statement of Polly Mooka

[74] Ms Mooka is a Director for the Respondent. She provided a witness statement which recounted the first and second Directors’ meeting, and confirmed that in the second meeting, Mr Tamwoy’s letter of termination was finalised and he was to be dismissed as he had damaged the trust and reputation of the Respondent.

[75] She said the first meeting ran for some three and a half to four hours, starting at 6:00pm and finishing between 9:30pm and 10:00pm. She stated that the following was discussed at the 12 December 2019 meeting:

(a) A screenshot copy of the Instagram photo of the two men;

(b) A copy of a submission by Mr Tamwoy to the Magistrates’ Court in respect of Mr CD; and

[76] Ms Mooka stated that when she first saw the Instagram photo her first thought was how the police would react, and it had been taken in “lockup”. She was concerned for the Respondent and the damage to its reputation. She stated that even though Senior Sergeant Poole is good with the Respondent and its representatives, she was concerned that the Respondent and its representatives could be subject to future police intervention as a result of Mr Tamwoy’s actions.

[77] She stated that all of the Directors present expressed surprise at the existence of the Instagram account, and felt the Respondent was exposed.

[78] In determining to dismiss Mr Tamwoy, Ms Mooka stated that the Respondent had no choice as Mr Tamwoy had breached confidentiality, privacy and trust that the Respondent needs to operate in the close community.

Witness Statement of Meun Lifu

[79] Mr Lifu is also a Director of the Respondent. He was present at the meeting of 12 December 2019 where he said the following was discussed:

(a) A screenshot copy of the Instagram photo of the two men;

(b) A copy of a submission by Mr Tamwoy to the Magistrates’ Court in respect of Mr CD; and

[80] Mr Lifu stated that when he saw the photo he was deeply concerned. He was not aware of the Instagram account, and he was worried the Respondent had been exposed. He stated:

“The confidential work undertaken by and for NPAJS should only be internal and posting photos on Instagram was not right and not in accordance with our policies.”

[81] Mr Lifu stated that at the first meeting the Directors present agreed that Mr Tamwoy’s actions constituted serious misconduct. The Directors considered that he had breached the confidentiality policy, privacy, and trust the Respondent needs to operate in the close community. He considered that he had “most likely” broken the law. Ms Carney was tasked with drafting a termination letter.

[82] Mr Lifu was present at the meeting of 11 January 2020. He agreed it was appropriate for Mr Tamwoy to be dismissed, and said the decision was not taken lightly. He concluded that if no action had been taken, it would have had further devastating effects on the Respondent, its reputation, and its work within the community.

Witness Statement of Erris Eseli

[83] Mr Eseli is a Director of the Respondent. He said he was present at both meetings on 12 December 2019 and 11 January 2020. He stated the following was discussed at the meeting of 12 December 2019:

(a) A screenshot copy of the Instagram photo of the two men;

(b) A copy of a submission by Mr Tamwoy to the Magistrates’ Court in respect of Mr CD; and

[84] He said when he was first shown the photo, he was very concerned as he knows that photos were not allowed to be taken at the gaol, and it was also against the Respondent’s policies. Mr Eseli said that if a photo was posted on Instagram “everybody knows”. He stated it was a NPAJS matter and every NPAJS matter is confidential.

[85] At the meeting, Mr Eseli informed the others that this kind of thing had never happened before, and it was a surprise to him to learn of the Instagram account. He said that even though he would like for everyone to see what the Respondent does as a justice group, the confidential work undertaken by and for the Respondent should only be internal. He considered posting photos on Instagram was “not right” and was not in accordance with the Respondent’s policies. He considered it was a breach of privacy and confidentiality obligations and could severely affect the Respondent’s reputation, funding and ongoing ability to provide services to the community.

[86] The decision to terminate Mr Tamwoy’s employment was agreed and Ms Carney was tasked with preparing the termination letter. At the second meeting the letter was tabled and agreed.

Witness Statement of Edna Mark

[87] Ms Mark’s statement was filed as a telephone statement by Ms Elizabeth Carney, as Ms Mark had been unavailable to give a written statement due to the COVID-19 pandemic travel restrictions.

[88] I have had regard to Ms Mark’s statement, however, given the confidentiality order made, it is not necessary to discuss her statement in detail in this decision.

Witness Statement of Agnes Mark

[89] Ms Agnes Mark is also a Director of the Respondent. Her evidence included the following:

“When I saw the photo, I just thought that if it was my son, I would be really upset because I wouldn’t want everybody to see him behind bars and posing like that. It makes crime look like it’s a cool thing. The photo was definitely taken at Bamaga. I wondered, “Where were the Police Officers there when he be taking the photo?”. Just makes me wonder, as a mother.

I recognised that the photo did not look like it is taken from outside where families can come to visit. It was definitely taken from inside (the Watch House). When I read the comments posted with the photo, it is almost like he is condoning their actions. I don’t think that it’s right, all the words. I asked myself, “How would he like if his two boys were in there and someone take a photo?” You have to lean from what you do; you can’t be fighting with your partner. That’s what I had to tell [redacted]. When you do the thing (domestic violence) you have to learn to accept that you are wrong.

In our community, young fellas would say (if they see the photo), “Hey look at them young fellas there, we can make mistakes” They say it, but they don’t know what it’s like when they get there or they might think it’s okay to go to Lotus Glen. I’m sure that the older men would think that they don’t want their sons to think it’s a good thing going to gaol.

I believe that the two fellas in the photo would think that it’s okay for Robbie to take the photo because it’s been taken from Robbie of NPAJS and someone they know and wouldn’t betray them as a professional person. Like betray their trust that it would be just kept for himself and not made public.

By taking the photo and putting it on social media, Robbie not only breached the boys privacy, but his actions have also damaged NPAJS reputation within our small community. People are supposed to trust us and trust that we will not divulge personal information about them.”

[90] Ms Agnes Mark did not attend the first special Directors’ meeting on 12 December 2019 as she was in Cairns at the time. She saw Director Beverly Jacob at Cairns Airport the next day, where Ms Jacob informed her of the Instagram page and the photo.

[91] Ms Agnes Mark attended the second Special Directors’ meeting on 11 January 2020. She stated that it was agreed by the Directors that the creation of the Instagram account was inappropriate and had not been approved. The posting of the photo warranted termination. She considered that Mr Tamwoy had taken advantage of being employed by the Respondent. She stated that he shouldn’t have gone “in there” and taken photos and put it on Instagram.

[92] Ms Agnes Mark signed the termination letter that was issued to Mr Tamwoy.

[93] Subsequent to the dismissal Ms Agnes Mark met with Mr XY in the presence of Ms Edna Mark, Ms Townson and Ms Carney. Mr XY was shown the draft letter prepared by Ms Carney. Ms Carney asked him, “Are you happy with the content of the letter and are you comfortable to sign it?” He replied, “Yes.” Ms Agnes Mark considers that he was not under any pressure or induced to write such a letter. Mr XY then said to Ms Carney, “Can you please issue the letter to the Board?” to which Ms Carney confirmed that she would.

Witness Statement of Kitty Gebadi

[94] Ms Gebadi is a Director of the Respondent. She said that she was shown the photo by Ms Carney on 11 December 2019 and upon seeing the Instagram photo, she initiated the first special Directors’ meeting.

[95] She stated that prior to the meeting on 12 December 2019 she and Ms Townson looked on Instagram and viewed the relevant account. This was the first time she had seen the account and it was active. When she tried to view it at the meeting on 12 December 2019 it was no longer active.

[96] Ms Gebadi stated that at the first meeting the following was discussed:

(a) A screenshot copy of the Instagram photo of the two men;

(b) A copy of a submission by Mr Tamwoy to the Magistrates’ Court in respect of Mr CD; and

[97] She stated that the Directors did not approve of the Instagram account. There had been no approval for it to have been created. She stated:

“I had never seen the photos that Robbie put on that Instagram account before. It’s just wrong; it not justice.

Anything that was put on that account and referring to it as NPAJustice is irrelevant to what we are and what the NPAJS is about. Robbie had no right at all to publish anything not even a sentence or a word without the Directors’ approval. Nothing was approved by the Directors and he was not given consent to use that page.

When I first saw the photo of the two boys in the Bamaga Watch House, I was embarrassed that we would do that. I felt we wronged someone because of breach of confidentiality and also us working with the law and us as a corporation. It was big misconduct and was wrong. I was embarrassed especially for our networks and stakeholders that we would even consider a picture like that to go up on a site that was named after us. It was just wrong on all accords. I was very disappointed with the Coordinator himself not coming forward and owning up to it.”

[98] The Directors present agreed that Mr Tamwoy’s actions risked the confidence, trust and funding of the Respondent. The Directors concluded that he had breached several serious code of conduct, confidentiality and privacy policies of the Respondent and it was cause for immediate termination.

[99] Ms Gebadi was present at the second special Directors’ meeting held on 11 January 2020. She stated that Ms Townson had a folder containing a draft termination letter, pictures from the Instagram account, the letter Mr Tamwoy had sent to the court regarding Mr CD, and the email from Ms Carney to Mr CD’s solicitor. She considered that none of the pictures that were posted on the Instagram account were appropriate to the business of the Respondent. It was unanimously agreed Mr Tamwoy’s employment be terminated.

[100] Ms Gebadi concluded:

“He needs to be held accountable for his actions. The gross misconduct has tainted our image in the community. We have to work again now to rebuild the trust with the community. That is the hard thing to get.”

Facebook post made by Mr Tamwoy’s wife

[101] Admitted into evidence and referred to by the Respondent was the following Facebook post made by Mrs Melani Kay Tamwoy on or around 16 December 2019:

“So this is an appreciation post for my husband Robert tamwoy... the Bible says to give honor when honor is due and I feel o need to give honor

When robby got the job as coordinator for the npa justice group 3 years ago he came into a position that didn’t have enough money to pay him. the corporation was in deficit by $20,000 so that means in debt no money to buy anything or pay him !! he worked for several weeks months with no pay because there was no money to pay him.. I was working the coffee van and only making enough to cover the cost and put food on the table. He invested our own money in buying printers and ink and fuel for the work car, used our own phone and credit for work purposes and used his own money to buy directors lunches and provide food with his own money for meetings. Robby invested his everything into the corporation because he loves his community and the people are his heart.. today by the favour of God upon roberts life the corporation now is in surplus by thousands of dollars they were able to buy brand new vehicle and there has been a whole new job role, crime rate drop and so much more great things happening in the corporation.. in these last 3years I have seen with my own eyes and even felt the weight seeing my husband passionately invest his time his love and see God use my husband to take something from nothing and change it right around to where it is today and it’s all by the grace of God.. thankyou for always putting people first and when people won’t appreciate or see all the good you have done and continue to do I will acknowledge and give honor.. thanks for being obedient to God and fighting for the lives of your people..”

Submissions

[102] It was submitted that the meaning of serious misconduct under the Code takes the meaning in Regulation 1.07 of the Fair Work Regulations 2009 (the Regulations) and includes wilful or deliberate conduct that is inconsistent with the continuation of the contract of employment as well as conduct causing serious and imminent risk to the health and safety of a person or to the reputation, viability or profitability of the employer’s business.

[103] The Respondent made the following submissions:

“At the time of the Dismissal, the Respondent believed on reasonable grounds that the Applicant’s conduct amounted to wilful or deliberate behaviour inconsistent with the obligations imposed on him as a representative of the Respondent and auspicing body of the five statutory CJGs and was sufficiently serious to justify immediate dismissal. Put simply, his conduct was inimical to the Respondent’s reputation and its core functions as a CJG and did not constitute appropriate behaviour expected of a senior employee whose role was fundamental in coordinating justice initiatives on behalf of the Respondent. The Applicant’s conduct not only resulted in him breaching the statutory and contractual confidentiality obligations imposed on him by relevant statute as well as in his employment contract, an act which in itself was inconsistent with the continuation of his contract of employment, but also comprised conduct causing serious and imminent risk to the reputation, viability or profitability of the Respondent’s business. His actions resulted in the Respondent inadvertently breaching its statutory confidentiality and non-disclosure obligations as a CJG under relevant Queensland Government legislation as well as its obligations under the funding agreement with the Department of Justice and the Attorney General (‘the DJAG’). Contravention of some of these statutory provisions can result in penalty orders of up to 100 penalty units or 2 years imprisonment (Youth Justice Act 1992 and the Penalties and Sentences Act 1992).

The Respondent’s belief was premised on complaints made directly to it by concerned members of the community as well as individual clients and proven true by accompanying evidence including a screenshot of an Instagram account depicting the publication of the two men held in police custody, a screenshot of the Applicant’s wife’s Facebook post clearly naming the Respondent and discussing confidential information, as well as complaint letters from two clients directly affected by the Applicant’s actions.

Expeditious action on the part of the Respondent was necessitated in an effort to appease the members of the community and clients directly affected by the applicant’s actions, and to minimise the damage already caused to the Respondent’s reputation and that of the community Elders serving as directors on the board. Failure to act expediently would have had a further negative impact on the Respondent’s continued operations, the relationship with its clients and members of the community, as well as its ongoing relationship with the DJAG and would have created further risk to the reputation, viability or profitability of the Respondent’s business.

The Respondent genuinely believed on reasonable grounds that the Applicant’s conduct was sufficiently serious to justify immediate dismissal.

The Respondent therefore complied with the Summary Dismissal part of the Code and acted fairly in dismissing the Applicant without notice or warning.”

[104] In oral closing submissions, the Respondent submitted that Mr Tamwoy was completely unrepentant, demonstrating an extraordinary lack of self-awareness. Further, it submitted that the Respondent could be exposed to litigation as a result of his actions and could be required to pay compensation to the men in the photo if any tort action was successful.

[105] The Respondent asserted that the unfair dismissal application had been made by Mr Tamwoy without merit. The Respondent submitted that Mr Tamwoy’s actions leading to his dismissal had caused significant reputational damage and risk to ongoing funding, and the application itself had cost the Respondent, a corporation with limited resources a significant amount of funds in defending the application. The Respondent requested special consideration be given to an order for costs being made against Mr Tamwoy.

Mr Tamwoy’s evidence and submissions

[106] Mr Tamwoy stated that he is currently the Lead Pastor of C3 Umagico Church, Umagico. Since 2018 he has been the Chair of the Torres and Cape Queensland Health Consumer Advisory Committee. He is a founder of Thupmul Coffee Youth Mentoring Indigenous Corporation, and following his dismissal he was elected as a Local Councillor of Umagico Division 2 in the Northern Peninsula Area Regional Council. It is an elected, paid role.

[107] In his role for the Respondent he stated that his duties included working in partnership with the following stakeholders:

(a) The Department of Justice Attorney-General staff;

(b) Bamaga Magistrate’s Court;

(d) Queensland Police;

(e) Probation and Parole;

(f) Youth Justice;

(g) Child Safety; and

(h) Promote and market NPA Justice services and programs to NPA Community – attend community events, attend community stakeholder meetings, promote NPAJSC works on social media, ratio and local newspaper.

[108] He stated that the aim was to decrease incarceration of Aboriginal and Torres Strait Islander Peoples who come into contact with the criminal justice system. He stated that it was his passion and his “love for my people”.

[109] His evidence is that when he was interviewed for the role, he strongly informed the interview panel that he would be promoting the work of the Respondent to the NPA Community via social media and other methods.

[110] He stated that as the successful candidate, and as promised in his interview, he created the Respondent’s Instagram page as the official work page of the Respondent as it was his role to promote the Respondent’s good works in the community and inform the community of key dates such as the Magistrates’ Court dates, licence drive days, DV awareness month, amongst other things.

[111] He stated that as the Coordinator and only employee at the time he was the administrator of the Instagram page titled “NPAJUSTICE17”. He considered it to be an official work page and it was not a personal page.

[112] Ms Carney commenced her role on 4 September 2019, reporting to Mr Tamwoy. On 7 December 2019, Mr Tamwoy completed a probationary review of Ms Carney which was not glowing. He repeatedly scored her 0/10, 1/10 or 2/10 in many of the particular reviews. He answered one question as follows:

“Demonstrate ability to effectively Communicate with Aboriginal and Torres Strait Islander People.

I don’t believe Mrs Carney can effectively communicate with the Aboriginal and Torres Strait Islander Peoples of NPA due to her not being a local Indigenous person or a person who is a long-time residence of NPA. This is evidence with her communication with a New Mapoon person who reacted and punched the windscreen of our new van shattering the windscreen with cost over $700 to repair. Score 2/10”

[113] He concluded his report as follows:

“My recommending the NPAJSC Corporation release Mrs Carney and reengage with Pastor Titom Tamwoy who was the 2nd Suitable candidate for the role. I believe Pastor Titom will be very effective in this role as I mention at the meetings at the start of the recruiting process. This role needs a person who as strong ties and influence in NPA and can impact the issues of DV in our Community. This was my recommendation at the beginning, and it is still my recommendation for this role.”

Termination meeting

[114] Mr Tamwoy stated that on 15 January 2020 he received a call from Ms Townson who informed him that the Board wished to meet with him at 1:00pm in the Magistrate Court’s room. He agreed. Ms Townson asked for Ms Carney’s probation review report to be emailed to her which Mr Tamwoy did.

[115] Mr Tamwoy entered the room at the Bamaga Magistrate’s Court and noticed Senior Sergeant Poole in attendance, together with Ms Townson and Ms Edna Mark. Ms Carney left the meeting as Mr Tamwoy entered the room.

[116] Mr Tamwoy took a seat and he had with him Ms Carney’s probationary review report, together with his diary. Ms Townson opened the meeting and stated, “It has come to the Board’s attention that you have breached the code of conduct of the Justice Group by posting sensitive images onto your personal social media page which is serious breach and because of this the Board has terminated your contract effective immediately”. She handed to him the termination letter.

[117] Mr Tamwoy began reading the letter and after he had finished looked to Ms Townson and Ms Mark and said, “Are you serious? Is this for real?”. He said that he was in massive shock. Ms Townson replied, “Yes Robbie, this is a breach and we could get into serious trouble for what you did”. He replied, “But these boys were my clients”.

[118] Mr Tamwoy informed the Directors that he was in shock and he could not believe they have done this after all he had done for the organisation and as friends in the organisation. He told Ms Townson, “This is wrong”, to which she replied, “I know I could not sleep thinking of this moment”.

[119] Mr Tamwoy asked both of the Directors on three occasions, “Are you sure you want to do this?” On each occasion they each replied, “Yes”. He stated to them, “Firstly, this is a massive shock and I can’t believe that you have done this to me after all I have done for you as an organisation. Secondly, I forgive all of you on the board and I thank you for everything you have done for me. I will be fighting this in court as I believe this is not right. Is that it?”

[120] Ms Townson stated that she will need the keys to the office and keys to the car as Magistrate Black will be using the car for “court day”. Mr Tamwoy replied, “Yes, no worry, God bless”.

[121] He stated that following the meeting Senior Sergeant Poole met him outside of the office and said that he had nothing to do with the termination and he encouraged Mr Tamwoy to seek legal advice.

[122] Mr Tamwoy made the following submissions relevant to his dismissal:

• He was not given a fair chance to defend himself;

• He was unaware of the large scale of the investigation including long meetings;

• Ms Solomon had acted in conflict of interest in sourcing evidence;

• Mr XY’s letter of complaint was written by Ms Carney, two weeks after the dismissal;

• The Board did not hear why he had posted a photo of the men which is not a fair process and very one sided;

• The Respondent does not have a social media policy, therefore the breach of code of conduct is being applied very broadly;

• He has not committed theft, fraud or a violent crime nor been convicted in court of a crime therefore instant dismissal must come into question;

• The Board’s decision was uninformed based on false and misleading information presented by Ms Carney;

• The termination letter is untrue as the social media account was a work account, not a personal account;

• The photo of Mr XY was made following a sentencing hearing which had occurred in a public court which is open to the public. The sentencing of Mr XY was not private;

• The photo and Instagram post were made after Mr Tamwoy spent some time with both men after bringing them food to consume;

• The area where he took the photo is a public area where visitors can access 24/7 to visit prisoners in custody. He did not need permission to take a photo of the two clients as he was in a public area, but he did ask the two clients if he could take their photo that is why they are both standing/posing with their arms around each other, with hand gestures of “thumbs up” and smiling;

• The sole purpose of posting the picture on the Instagram account is to inform the community that the Respondent stands with its clients even if they make mistakes, and to also make the community feel that we are all humans who make mistakes but support each other;

• Due to the high number of Indigenous deaths in custody, Mr Tamwoy makes it is his priority to support and assist his clients in custody, even if he is not paid for time spent with them outside of work hours, as is the case with this photo;

• The Board did not ask him if he required a support person;

• The Respondent did not inform him he was going to be participating in a termination meeting;

• The Respondent had requested a Police Officer in attendance which made him feel scared and intimidated and made him feel like a criminal;

• He was presented with the letter of termination within only one meeting therefore his response was not considered;

• He believed that he was supporting his clients;

• Instant dismissal is harsh when regard is had to his family income and his integrity in the community; and

• There was no balance in the investigation.

Evidence given during the hearing

[123] Mr Tamwoy was asked questions in cross-examination during the hearing. He considered that he had not done anything wrong and had been supporting Mr XY and Mr ZA who had both breached parole. He differentiated their conduct from having been charged with an offence; he said that they were both going back to gaol to serve time.

[124] Mr Tamwoy stated that he understood that the Respondent was 100% reliant on funding. He considered his loss of his job to compare with the potential loss of the Respondent’s funding. He did agree his actions could have put the Respondent’s funding in jeopardy.

[125] It was put to Mr Tamwoy that the sentencing of the two men to gaol constituted activities of the Community Justice Group. Mr Tamwoy responded, “I am the Community Justice Group. I have the responsibility to promote my work. It is my position to promote the work that do were doing. I was micro, the Board was macro”.

[126] He stated that he did not believe the photo of the two men was confidential; it was public. When asked if he would do it again, he stated that it was the right thing to do. He responded, “It was me promoting them saying we know mistakes are made”.

[127] Regarding the photo taken of the men, Mr Tamwoy stated that they knew the photo was being taken, however he could not remember if he informed them that he was putting it online. He felt certain that they would have agreed, but he conceded that he did not obtain permission from them. He asserted that that his intentions were good, and he did not intend to bring shame upon anyone.

[128] Mr Tamwoy stated that he likes to promote and given that some of the Elders on the Board are older people, including 70-year olds, they don’t “understand” Instagram. He believes he did tell Board members from his first day that he was going to set up an account. He thinks perhaps it was not recorded that he had said that.

[129] It was put to him that at some point the Instagram page had been deleted by him, as he was the only administrator of the page. He agreed that he deleted it on or around 12 December 2019 after seeing an email sent to somebody else where it was suggested that he had committed breaches. He stated that he didn’t want it to be investigated by the Board and he deleted it for protection. He had been given a “heads up” by a Director that they were investigating him, and he considered that there was a plot to have somebody take his job. He stated that he knew in advance people wanted his job.

[130] It was put to Mr Tamwoy that there is a stigma attached with people knowing that somebody has been sentenced to gaol. He agreed. He did not, however, consider that it would have any effect of the standing of Mr XY in the community as he had been to gaol before. He agreed that if a person did not know that Mr XY had been to gaol, but then saw the photo, it could affect his ability to get a job. Mr Tamwoy then stated that Mr XY is “always in and out of prison, including twice more since the photo was taken”.

[131] I inquired of Mr Tamwoy if he understood what a spent conviction is? He is not legally qualified, and he answered that he does not understand the concept of a spent conviction. I briefly explained it to him, noting that if Mr XY did not serve lengthy gaol sentences, or commit certain crimes, under each state and territory’s spent conviction legislation, he might, at some point, after a certain number of years not need to inform individuals/future employers if they ask whether he has a criminal conviction. For example, it might be that the conviction is 6 or 7 years old, and there being no offences in that time, he could truthfully answer to not having a criminal record, if the earlier convictions were of a certain class or length of imprisonment. I did not at the time have before me the specific period of time relevant to Queensland spent convictions.

[132] Mr Tamwoy confirmed that he did not know, until I explained to him, what a spent conviction is.

[133] Relevant to the alleged breaches of the Penalties and Sentences Act 1992, Mr Tamwoy submitted that only members of Community Justice Groups are governed by that particular part of that Act. Mr Tamwoy was not a member of the Respondent, only an employee. He agreed that the actions would have been illegal if he had been a member. Section 195C is reproduced below:

“195C Confidentiality

(1) A person who is a member of a community justice group must not—

(a) record or use information the person, or another person who is a member of the community justice group, gains through performing a function under this Act, or intentionally disclose it to anyone, other than under subsection (2); or

(b) recklessly disclose the information to anyone.

Maximum penalty—100 penalty units or 2 years imprisonment.

(2) A person who is a member of a community justice group may—

(a) record, use or disclose the information if the recording, use or disclosure—

(i) is done as part of making submissions to the court under section 9(2)(p); or

(ii) is otherwise required or permitted by law; or

(b) disclose the information to another member of the community justice group.

(3) In this section—

disclose information to someone else means—

(a) orally disclose the information to the other person; or

(b) produce to the other person, or give the other person access to, a document containing the information; or

[134] Mr Tamwoy accepted that he breached the Respondent’s Code of Conduct but stated that it was not intentional.

[135] Relevant to the Facebook post made by his wife, Mr Tamwoy agreed that the information in the post had been information he had shared with his wife.

Mitigation

[136] Mr Tamwoy was elected to the Northern Peninsula Area Regional Council in April 2020 and receives a salary of approximately $53,000 per annum. He stated that prior to being elected he applied for a job, but he didn’t get it. He stated that he didn’t apply for Centrelink because he doesn’t believe in it.

Consideration

[137] As noted above, the Respondent has raised the jurisdictional objection that it is a Small Business Employer and that the dismissal was a summary dismissal in accordance with the Code. It is therefore necessary to determine whether the dismissal is in accordance with the Code, and if I am so satisfied, the elements of s.387 are not required to be considered.

Determination of whether dismissal was in accordance with the Code

[138] In Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services 2 the Full Bench considered the proper application of the ‘Summary Dismissal’ section of the Code. The Full Bench’s conclusions were as follows:

“[38] We therefore consider that the “Summary dismissal” section of the Code applies to dismissals without notice on the ground of serious misconduct as defined in reg.1.07.

[39] To be clear, nothing stated above is to be taken as suggesting that in relation to such a dismissal it is necessary for the Commission to be satisfied that the serious misconduct which is the basis for the dismissal actually occurred in order for the dismissal not to be unfair. As was explained in Pinawin T/A RoseVi.Hair.Face.Body v Domingo:

“[29] … There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.”

[40] Whether the employer had “reasonable grounds” for the relevant belief is of course to be determined objectively.

[41] In summary, drawing on the conclusions stated above and the ratio in Pinawin, we consider that the “Summary dismissal” section of the Code operates in the following way:

(1) If a small business employer has dismissed an employee without notice - that is, with immediate effect - on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the “Summary dismissal” section of the Code. All other types of dismissals by small business employers are to be considered under the “Other dismissal” section of the Code.

(2) In assessing whether the “Summary dismissal” section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal, and second whether the employer’s belief was, objectively speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element.”

[139] Regulation 1.07 of the Fair Work Regulations 2009 states:

“1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

the health or safety of a person; or

the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.”

Did the Respondent believe that Mr Tamwoy had engaged in conduct sufficiently serious to warrant summary dismissal?

[140] The Respondent is made up of a Board of Directors of respected Aboriginal and Torres Strait Islander Elders. It is thus necessary to consider whether the Directors believed Mr Tamwoy’s conduct was sufficiently serious to warrant summary dismissal.

[141] As set out in Regulation 1.07 above, serious misconduct includes conduct which causes a serious and imminent risk to the reputation, viability and profitability of the employer’s business, together with wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment. The Directors stated in their witness statements that they all held serious concerns regarding the impact to the Respondent’s reputation as a result of Mr Tamwoy’s actions. They also said that they had serious concerns regarding ongoing access to government funding and said that Mr Tamwoy’s actions put their funding at risk. The Respondent is reliant on government funding to operate.

[142] Where each of the Directors who attended the first meeting on 12 December 2019 stated that they considered the following three items, it is only possible for them to have considered the first two items:

(a) A screenshot copy of the Instagram photo of the two men;

(b) A copy of a submission by Mr Tamwoy to the Magistrates’ Court in respect of Mr CD; and

[143] That is because the email sent by Ms Carney to Mr CD’s legal representative was not sent by her until 13 December 2019. I do not consider there to be impropriety in each of the witness statements where this error has been made; I consider it to be a drafting error in the preparation of the witness statements. It is clear from Ms Gebadi’s evidence at [99] that at the second special Directors’ meeting on 11 January 2020, all of the issues were discussed, and Ms Townsend had a folder with the various documents for discussion, including that relevant email from Ms Carney.

[144] The witness statements of the Directors make it clear that their consternation with Mr Tamwoy’s conduct was with regard to the creation of the Instagram account without the Respondent’s permission, and the posting of the photograph of the incarcerated men. There is little to no mention of the issues surround Mr Tamwoy’s deliberately false assertions to the Court regarding Mr CD and his failure to have organised cultural mediation.

[145] The termination letter does not make mention of this incident, nor the issues surrounding his wife’s Facebook post and the inappropriate sharing by Mr Tamwoy of confidential Respondent information with his wife.

[146] That leads to a conclusion that the only reason for the summary dismissal was the improper creation of the Instagram account and the posting of the photo. In my view, the other reasons might have been known and discussed between some of the Directors but did not play a material role in the decision to dismiss.

[147] As is clear from Full Bench authority, it is not necessary in a determination of a dismissal against the Code to determine if the conduct complained of actually happened. In this situation there is no factual contest, other than Mr Tamwoy’s assertions that the Directors or some of the Directors ought to have known that he was going to be promoting the Respondent’s activities on social media.

[148] While it is not necessary for me to have regard to Mr Tamwoy’s actions upon learning that the Respondent knew of the Instagram account, because it is only the Respondent’s belief as to whether the conduct warranted dismissal (on reasonable grounds) that need be considered, it is extraordinarily telling that upon being given a “heads up” of the inquiries, Mr Tamwoy deleted the Instagram account. His evidence is that he didn’t want an investigation into the account, and he deleted it for “protection”. Such conduct has no place in any organisation. It is, in my view, deceptive and would constitute a serious breach in preventing the Respondent from properly investigating his conduct related to his employment.

[149] The Directors present at the meeting of 12 December 2019 unanimously resolved to terminate Mr Tamwoy’s employment. A further meeting was then carried out on 11 January 2020 where another unanimous resolution was made to summarily dismiss him. The termination letter that had been approved was endorsed by the Board.

[150] I consider there to have been two flaws in each of the Directors’ consideration. Firstly, many of the Directors considered that where Mr Tamwoy had taken the photo of the men was a prohibited area. They concluded that Mr Tamwoy had breached rules regarding not having mobile phones in this area, and all possessions being locked away. On hearing Mr Tamwoy’s evidence on this issue, I am more inclined to accept his evidence that he took the photo from the public area where no such restrictions are in place.

[151] Secondly, it is clear that some of the Directors considered that Mr Tamwoy’s conduct may have breached s.195C of the Penalties and Sentences Act 1992. My careful consideration of the Act is that on the basis that Mr Tamwoy is not a member of the Respondent, he could not have breached that relevant provision. I accept that the Directors are not lawyers and may not have appreciated the distinction at the time between members of the Community Justice Group and those who represent clients of the Community Justice Group.

[152] Again, however, in considering the Code, it is a matter of consideration as to what the decision makers believed at the time, with the Commission having to consider if the belief was on reasonable grounds.

[153] Having regard to the information before them relevant to the Instagram account and the photo of the incarcerated men, it is patently clear that the Directors believed that Mr Tamwoy’s conduct was sufficiently serious to justify immediate dismissal. His conduct breached the Respondent’s Code of Conduct, excerpts at paragraph [33].

[154] His conduct made a farce of the Privacy Statement issued to Mr XY and Mr ZA where the Respondent committed to ensuring the appropriate collection and use of personal information by the Respondent. Mr Tamwoy asserted that because the sentencing of the men was conducted in a public hearing, it wasn’t a private matter. Mr Tamwoy had no regard to the fact that at least in Mr XY’s case, he was gaoled for matters related to domestic violence, and his public identification of Mr XY heading to a certain gaol, encouraging him to be strong and noting that we all make mistakes, demonstrates that Mr Tamwoy had no regard to the victim of the domestic violence, also a client of the Respondent.

[155] Where some of the Directors considered that Mr Tamwoy’s posting of the photo made such criminal acts look “cool” it was, indeed, an inappropriate message to have posted when regard is had to all concerned; Mr XY, Mr ZA and the relevant victims of their offences. The Directors’ concerns were well-founded.

[156] Where Mr Tamwoy asserted that he was at the gaol delivering food to Mr XY and Mr ZA outside of his work hours, and that should be recognised, it is pleasing to hear that he was able to offer such support to the men on their way to their gaol. However, his conduct certainly breached the confidentiality undertakings he made at [56].

[157] On the evidence before the Commission it is clear that Mr Tamwoy’s scathing criticism of Ms Carney in his probationary review report had no bearing on the Respondent’s decision to dismiss him.

Was the Respondent’s belief based on reasonable grounds?

[158] The uncontested evidence of each of the Directors is that they were essentially horrified to learn of Mr Tamwoy’s conduct relevant to the creation of the Instagram account and the posting of the photo. The Respondent and its Directors had never considered any request for the creation of an Instagram account because one had never been made to them. This evidence is clear, and Mr Tamwoy’s action in immediately deleting the Instagram account provides further evidence that it was inappropriate for the account to have existed and he knew that to be the case.

[159] The Directors’ uncontested evidence is that they each held fears that Mr Tamwoy’s conduct may result in the Respondent being stripped of future funding such was the concern of the breach. This fear was genuine and well-founded. The Service Agreement makes clear the reason for the existence of the Respondent. Mr Tamwoy’s actions could have caused serious repercussions in the community with close family ties of those people involved. The Respondent’s very existence is to be a trusted source of support to the relevant community; not an expose of individuals at the time of their incarceration where clearly, Mr XY and Mr ZA had not fully appreciated that the photo that they had posed for would be forever on the internet, recording for eternity the moment of their jovial pose in such serious circumstances.

[160] I have had regard to Mr Tamwoy’s evidence and his conduct during the hearing. I consider that his evidence in the proceedings was, at times, extraordinarily egotistical. I consider that he believes he has a higher calling, and he knows best what is good for the clients of the Respondent; more so than the respected Elders who constitute the Board, are responsible to its members and seek relevant funding for its existence. He considered that it was his duty as Coordinator to promote the Respondent, including through Instagram. He noted that some of the Elders would not understand Instagram. At one point during the hearing he stated, “I am the Community Justice Group”, and he was then critical of the Board for being “macro” while he dealt with the “micro” issues.

[161] I consider that Mr Tamwoy’s evangelistic or self-proclaimed divinity to his work whilst employed, and then during the hearing was staggering and arrogant. He was not tasked with being any person’s saviour; he was there to lend support to Mr XY and Mr ZA during their sentencing hearing. He had no place to create the Instagram account in the Respondent’s name and make posts without the Respondent’s express consent.

[162] I remark that I consider it was unnecessary for the Respondent to have invited Senior Sergeant Poole to the termination meeting.

Conclusion

[163] I have carefully weighed up the evidence of the Respondent relevant to the issue of the Instagram account and the photo of the two men. I conclude that each of the Directors who made the decision to dismiss Mr Tamwoy believed that he had engaged in conduct sufficiently serious to warrant summary dismissal. The decision was made by each Director and was unanimous.

[164] Having regard to my consideration above I am satisfied that the belief was based on reasonable grounds.

[165] I am satisfied that the Respondent complied with the Code.

[166] It is not necessary to have regard to the other serious breaches in my consideration of the Code, including Mr Tamwoy’s false assertions to the Magistrates’ Court relevant to Mr CD, other than to say that this conduct reflects very poorly on Mr Tamwoy’s integrity.

[167] Having concluded that the Respondent has complied with the Code, Mr Tamwoy has not satisfied the requirements of s.385 of the Act that must be met in order to obtain a determination that he has been unfairly dismissed.

[168] The application is dismissed.

[169] It is noted that the Respondent at [105] requested special consideration be given to an order for costs being made against Mr Tamwoy. This is not a matter to which I can consider in this decision. Such consideration may only be dealt with within an application to the Commission for the payment of costs in accordance with the Act, being a separate application.

COMMISSIONER

Appearances:

Tamwoy R, the Applicant.
Schipp G, Counsel for the Respondent, instructed by Johnston T, Solicitor.

Hearing details:

2 June 2020, Brisbane (by Telephone).

Printed by authority of the Commonwealth Government Printer

1 See section 399 of the Act.

2 [2016] FWCFB 1638.

Mr Robert Tamwoy v Northern Peninsula Area Justice Services Aboriginal and Torres Strait Islander Corporation

[2020] FWC 3718

2 SEPTEMBER 2020

DECISION

Respondent’s evidence and submissions

Witness Statement of Agnes Mark

Mr Tamwoy’s evidence and submissions

Did the Respondent believe that Mr Tamwoy had engaged in conduct sufficiently serious to warrant summary dismissal?

Was the Respondent’s belief based on reasonable grounds?