Ms Lorraine Lesley Victorena Williams v Larrakia Nation Aboriginal Corporation

[2011] FWA 3939

[2011] FWA 3939

FAIR WORK AUSTRALIA

DECISION

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

Ms Lorraine Lesley Victorena Williams
v
Larrakia Nation Aboriginal Corporation
(U2011/4753)

COMMISSIONER ROE DARWIN, 22 JUNE 2011

Termination of employment –summary dismissal.

[1] The matter arises from an application filed on 4 February 2011 under s 394 of the Fair Work Act 2009 (the Act) by Ms Lorraine Williams (the Applicant) for relief in respect to the termination of her employment from Larrakia Nation Aboriginal Corporation (the Respondent). The original application referred to the respondent as Geoff Finch (Special Administrator) for Larrakia Nation Aboriginal Corporation. It is not in dispute, and I am satisfied that, between about 4 October 2010 and April 2011 Mr Finch was appointed Special Administrator of the Corporation under the Corporations (Aboriginal and Torres Strait Islander) Act 2009 (CATSI Act). It is not in dispute that the Special Administrator had control of the corporation’s business during that period and that in particular he had the power to hire and fire on behalf of the corporation. 1

[2] The dismissal took place by the sending of a letter by email from Mr Finch to the Applicant on 21 January 2011. It followed an incident on 20 January 2011 when the Applicant allegedly sent an inappropriate email to the Chief Executive Officer of the Respondent at 3.39 pm.

[3] Following an unsuccessful conciliation conference the matter proceeded to arbitration. The parties elected to proceed to a hearing on 20 June 2011.

[4] I am satisfied that the Application was made within the time limit prescribed by the legislation. I am also satisfied that the other jurisdictional requirements for protection from unfair dismissal are met including that:

• The Respondent is a constitutional corporation and the employment of the Applicant is covered by an enterprise agreement approved by the AIRC, the Larrakia Nation Enterprise Agreement 1999 (the Agreement).



• The Respondent employs approximately 70 employees and is not a small business.



• The Applicant was employed from 1 July 2008 until 21 January 2011 a period of two and half years.



• The Applicant’s annual salary was $55,837.60 at the time of dismissal.



• The Applicant was employed as the coordinator or manager of the Minbeni Ranger Program for the Respondent.



• The Applicant was dismissed at the initiative of the Respondent and there is no suggestion she was made redundant.

[5] The Applicant represented herself and appeared as a witness. The Applicant submitted a large number of documents as attachments to her witness statement. The Applicant sought to include a further document 2 but I determined after considering submissions from the parties that it was not relevant given that the performance of the Applicant was not being challenged by the Respondent except in respect to the alleged sending of inappropriate emails.

[6] Ms Lorraine Coombes, who provides administrative and accounting support for the Respondent, gave evidence that the Applicant had received her entitlements upon termination. 3 The Respondent also submitted into evidence two email exchanges between the Applicant and Ms Donna Jackson of 3 and 4 March 2010 and 16 September 2010.4 The Respondent initially proposed to call a number of witnesses but when it became clear that the performance of the Applicant other than in respect to the alleged sending of inappropriate emails was not at issue and that the Applicant was not seeking reinstatement, the Respondent elected not to call those further witnesses.

[7] The pay slips, offer of employment letter and confirmation of change to employment agreement dates which relate to the employment of the Applicant with a new employer subsequent to her dismissal were also submitted as evidence. 5

[8] The Respondent relied on the reasons for dismissal given in the termination letter of 21 January 2011. The Respondent did not allege or seek to rely on any other issues of performance or conduct from the period of the Applicant’s employment. The reasons relied upon were:

“Yesterday you sent an email to the LNAC CEO that demanded, inter alia, to know why vacancies had been advertised without consulting you that was prepared in a particularly unprofessional matter (sic) making serious unsubstantiated allegations and may well be libellous.

This has not been your first email sent that was considered unprofessional, potentially libellous concerning the character, honesty, integrity and ethics of others persons (sic) demonstrating your unsuitability for the position that you presently hold.

I am advised that you have been previously instructed concerning the content of your emails but it seems that you not (sic) complied with those instructions.

In these circumstances, I must now conclude that you do not have the best intentions of LNAC at heart and have failed to demonstrate your willingness to change.” 6

[9] I am satisfied from the evidence provided that there was very significant internal conflict within the Larrakia Nation Aboriginal Corporation during the year prior to the Applicant’s termination. The Applicant gave evidence which I accept that there were five different CEOs during the two and a half years of her employment with the Respondent and three different Human Resources Managers. The appointment of the Special Administrator in October 2010 is strong evidence of this turmoil but there is also strong evidence in the material provided by the Applicant and attached to her statement. The Respondent did not dispute that there was such conflict.

[10] The Respondent is the peak advocacy and support agency for the Larrakia people, the traditional landowners of the Greater Darwin area. Initially established in 1998 to represent the native title interests of the Larrakia people the organisation has evolved to deliver a range of services for the Larrakia people and employs approximately 75 people. The Respondent is a not for profit community run organisation. The members of the Respondent are the eight main family groups who hold rights and interests to the traditional country. There is a Board of Directors representative of these families which is responsible for the administration of the Respondent. There are also general meetings where the wider membership is involved.

[11] I am satisfied that the Applicant is a member of the Larrakia Nation and entitled as a member to participate in the affairs of the Respondent and was in fact an active participant in the affairs of the Respondent. In this sense she was not just an employee of the Respondent but also an active participant and entitled to be an active participant in the internal disputes within the organisation.

[12] I am also satisfied that the suspension of the Applicant from her duties for a period in 2010 and the exchanges concerning that suspension were inextricably linked to the internal conflict within the organisation. The Respondent quite properly did not seek to rely on the issues raised at this time. The conflict and disagreements between the Applicant and Ms Eldridge who was at various times the CEO and some others on the Board of Directors was not just a conflict or disagreement about employment matters but was inextricably linked to the internal conflict that led to the appointment of the Special Administrator. In this process the Applicant was acting as a member of the organisation and at times as a family or community member not just as an employee of the organisation.

[13] The only evidence relied upon that the Applicant had been “previously instructed concerning the content of your emails” was a letter of 6 July 2010 from Ilana Eldridge to the Applicant which ended the period of suspension of the Applicant pending an investigation which Ms Eldridge had instigated on 20 May 2010. 7 The letter was signed “Ilana Eldridge Chief Executive Officer”. However, it is not in dispute and I accept that Ms Eldridge was suspended by the Board of Directors of the Respondent from the position of CEO of the Respondent the previous day. Ms Eldridge was again the CEO during the period of Special Administration after October 2010. In the letter of 6 July 2010 the following paragraph is the only reference to inappropriate emails:

“Regarding the sending of abusive emails and other denigration of members of the Board of Directors, might I remind you that it is the Larrakia Families who select their representatives on the Board, and that abuse, by email or otherwise, to any member of staff is highly inappropriate and a dismissible act.”

[14] The only evidence of previous allegedly inappropriate emails were two email exchanges. 8 Firstly an email exchange between the Applicant and Ms Donna Jackson on 3 and 4 March 2010. A copy of that email exchange was forwarded by Ms Jackson to the CEO Ms Eldridge on 4 March 2010. Secondly an email exchange between Ms Jackson and the Applicant on 16 September 2010. There is no evidence that the Administrator was aware of either of these email exchanges at the time he wrote the termination letter on 21 January 2011. Nor is there any evidence that these allegedly inappropriate emails were drawn to the Applicant’s attention by the CEO or the Administrator at any time prior to the termination.

[15] The Applicant and another employee in her work program were suspended by the CEO on 20 May 2010 pending investigation of a number of allegations. The Applicant says that she understood that she was reinstated on 31 May 2010 however she only received formal confirmation of this in the letter of 6 July 2010. The Applicant strenuously denied and refuted the allegations made which formed the basis for the suspension. The issue of inappropriate emails was not one of the allegations made in the letter of 20 May 2010 which outlined the items which were being investigated and were the reasons for the suspension. 9 There were never any adverse findings by the Respondent against the Applicant as a result of the investigation of the allegations. I do not have regard to these allegations.

[16] The Applicant did respond to the suggestion made about the sending of abusive emails in the correspondence from Ms Eldridge on 6 July 2010 in correspondence dated 27 July 2010 as follows: 10

“Sending offensive and abusive emails

This issue was also not discussed at the meeting and if it was an issue at the time it should have been aired, especially in the presence of Aunty Mary Raymond and my sister Judith Williams as both elders would have disciplined me accordingly or have supported me if they thought I was in my right to make comment on what I suspect are strongly worded emails to Donna Jackons’s (sic) and the current Chair Kathy Williams. I feel you are in no position to comment on family matters even though you are my cousin’s wife and in asserting that I could be expelled as a member of the organisation I personally feel that you are taking advantage of your authority as the CEO in this instance. This direction to remove me from the membership could only ever come from the Larrakia Nation Directors...”

[17] I accept the submission of the Respondent that the letter of 6 July 2010 did put the Applicant on notice that Ms Eldridge regarded “abuse, by email or otherwise, to any member of staff is highly inappropriate and a dismissible act”. However, I do not regard this as a warning or as an official “putting on notice” by the Respondent employer in light of the following:

• The very significant internal conflict within the organisation.



• The fact that the sending of inappropriate emails was not one of the complaints raised with the Applicant when she was suspended pending investigation on May 20.



• The fact that the Ms Eldridge was not the CEO at the time she sent the letter.



• No particular allegations of the sending of inappropriate emails were ever raised with the Applicant or investigated.



• The fact that the Applicant responded to the suggestion and made it clear that she considered the comments in the context of her role as a member of the organisation and as a family member rather than her role as an employee.

[18] I therefore do not accept there is an adequate basis for the following statement in the termination letter:

“I am advised that you have been previously instructed concerning the content of your emails but it seems that you not (sic) complied with those instructions. “

[19] Similarly, for these reasons and for the reasons set out below, I am not convinced that the emails produced by the Respondent as evidence that previous inappropriate emails were sent 11 provide sufficient evidence to justify the following statement in the termination letter:

“This has not been your first email sent that was considered unprofessional, potentially libellous concerning the character, honesty, integrity and ethics of others persons (sic) demonstrating your unsuitability for the position that you presently hold. “

[20] An examination of the email exchanges between Donna Jackson and the Applicant in the context of the evidence given by the Applicant suggests that it was to a significant extent an exchange in the Applicant’s role as a member of the Larrakia Nation Aboriginal Corporation and as a family member not primarily as an employee.

[21] The exchange of 16 September 2010 began with a comment by the Applicant on some of the most recent developments in the internal conflict in the organisation that “Unbelievable! You tell a lie for long enough and it becomes a truth.” Ms Jackson responded “Sounds like you are talking about yourself there Lorraine! Your absolute denial about your bullying of junior staff is what is “unbelievable”. The Applicant then responded “Sticks and Stones will break my bones but “sooky secretaries or rangers will never hurt me”. In context I do not regard this as particularly serious.

[22] In the exchange of 3 and 4 March 2010 the Applicant does make some serious allegations against Ms Jackson and a serious attack on her character. However, I have no basis for making any judgement about the statements made. Ms Jackson on 4 March 2010 forwarded the exchange to Ms Eldridge with the following comment:

“I decided to share this with Aunty Tanya, Aunty Kathy, Aunty Audrey and Nanna Mary tonight. They are not impressed, and I have been advised to ignore her. I do not like having no good relationships with family, but I am sick of her behaviour and unprofessional approach. I am also concerned about her misconceptions and paranoia about the Board, Sovereignty and the Directors full and ongoing support for the Minbeni RP...I am not asking you to take any action, there is some talk about tabling it at the next meeting, but I am happy to just let the main people know (as I already have) and now I’ll leave it at that. It’s sad and just plain nasty.”

[23] There is some doubt as to whether or not Ms Jackson was actually an employee of the Respondent in March 2010 but it is not necessary for me to make any finding about this matter.

[24] The Respondent submitted that the content of the emails produced 12 is not consistent with the “General Code of Conduct” which is attached to the Agreement and which provides in particular that employees:

“Treat staff and employees of Larrakia with respect and consideration and actively take an interest in their welfare and convenience in relation to their employment with Larrakia...

Act with goodwill, courtesy and cooperation towards the employees and other staff members....

Treat Larrakia community and its representatives with respect and at all times observe and respect the wishes/instructions of the Governing Committee of Larrakia....

Ensure that your actions and behaviour at no time brings the Larrakia into disrepute.”

[25] There is obviously some force to this submission. However, the internal conflict within the organisation makes it hard to be sure what were the wishes of the Governing Committee and what was in the best interests of the welfare of employees and what actions may or may not bring the Larrakia into disrepute. An examination of some emails provided with the Applicant’s statement illustrates that some of the emails sent by other employees or members of the Board of the Respondent to the Applicant were equally passionate and intemperate. 13 The Applicant submitted that accusations were raised by some of the participants in the conflict that certain persons associated with the Applicant were not Larrakia women and there appear to have been threats to have the Applicant expelled from the organisation. I can understand that this would have been particularly upsetting to the Applicant.

[26] The Agreement contains a number of provisions in respect to the question of discipline and termination. The following are of particular relevance:

“14 Disciplinary Procedure

14.1 Counselling

Prior to any disciplinary action being taken by an employer against any employee, such employee will be counselled in relation to the matter, with a view to accurately identifying work performance problems, and locating means of reducing and removing the problems.

14.2 Reprimand

14.2.1 If the supervisor is unsuccessful in counselling the employee, the supervisor shall reprimand him/her for the unsatisfactory performance of his/her duties. Prior to the reprimand the employee is to be advised that a union delegate may be present as an observer, if the employee wishes, when the reprimand is given.

14.2.2 In reprimanding the employee, the supervisor shall notify the employee that the disciplinary procedure has commenced and that the employee could be dismissed if he/she does not improve his/her performance.

14.2.3 When the reason for the reprimand has been identified and agreed between the parties it shall be documented. If the employee so requests, appropriate counselling and/or training shall be provided so that any problems can be rectified.

14.2.4 The supervisor shall keep a full record of the reprimand and any future reprimands that take place.

14.3 First warning

14.3.1 If the employee does not improve his/her performance after a reprimand, the supervisor shall indicate to the employee that he/she is to be warned.

14.3.2 The warning is to be confirmed in writing, properly worded and handed to the employee.

14.4 Final warning

14.4.1 If the employee does not improve his/her performance after the first warning, the supervisor, after consultation with the Employment Sub-Committee, will give to the employee a final warning. This warning is to be confirmed in writing and signed by the Coordinator at the direction of the Employment Sub-Committee.

14.4.2 The union delegate (if one has been appointed) may be present at this warning stage.

14.4.3 The final warning shall clearly state that should the employee’s actions continue, he/she will be dismissed. Copies of the final will be placed on the employee’s personnel file.

14.5 Conference prior to termination

Prior to any notice of termination, a problem-solving conference will be held between the Employment Sub-Committee or their delegate and the employee and a union official if so desired.

14.6 Recommencement of disciplinary procedure

14.6.1 Where an employee has been given a reprimand or a first warning, and, six calendar months after the date on which the employee received that reprimand or warning, they have received no further reprimand or warning, the disciplinary procedure shall recommence with counselling in its future application to that employee, and the reprimand and/or warning shall be deemed withdrawn.

14.6.2 Where an employee has been given a final warning and twelve calendar months after the date on which the employee received the warning, they have received no further reprimand or warning, the disciplinary procedure shall recommence with counselling, in its future application to that employee, and the warning shall be deemed withdrawn.

14.7 Termination

If there has been no improvement in the employee’s performance, the Coordinator will discuss the matter with the Employment Sub-Committee and should it be considered that termination is warranted, then the employee’s contract of employment will be terminated in accordance with the agreement. The termination will be formalised by a letter of termination signed by the Chairperson of the Governing Committee.

14.8 Summary dismissal

Where summary dismissal is appropriate it is understood that the disciplinary procedure will be waived. An employee may be dismissed without notice for malingering, inefficiency, neglect of duty or misconduct in accordance with the Agreement.”

“11.2.4 Summary dismissal

Notwithstanding the provisions of 11.2.5 hereof the employer shall have the right to dismiss any employee without notice for conduct that justifies instant dismissal, including malingering, inefficiency or neglect of duty and in such cases the wages shall be paid up to the time of dismissal only.”

[27] It is quite clear from the above that if the earlier sending of inappropriate emails was regarded as a disciplinary matter by the Respondent then the disciplinary process was required to be utilised. It was not.

[28] Having considered all of the evidence, I am not satisfied that the Applicant was previously warned in respect to the sending of inappropriate emails. I am not satisfied that the earlier emails can form justification for the dismissal. Hence I am satisfied that the reason for the dismissal was essentially the sending of the email of 20 January 2011.

[29] I am satisfied that, having regard to the Agreement and to all of the circumstances, there could not be a valid reason for dismissal for the sending of an inappropriate email on 20 January 2011 unless that conduct constituted serious misconduct justifying summary dismissal. If the sending of the inappropriate email on 20 January 2011 did not justify summary dismissal then the Respondent was required to go through the disciplinary and warning process as outlined in the Agreement. Even if the Agreement was not in existence I would find that if the conduct did not constitute serious misconduct justifying summary dismissal then it could not found a valid reason for dismissal in the absence of prior warnings and counselling.

[30] The dismissal was a dismissal for “serious misconduct”. The dismissal letter stated: “I have reluctantly exercised my powers under Section 499-5(1)(d) of the CATSI Act to terminate your employment with the corporation with effect immediately.” The reasons for the dismissal were then set out in the letter as quoted earlier. The letter then concluded as follows:

“I understand you commenced employment with LNAC on the 1 July 2008. Whilst your behaviour is in my opinion, a serious misconduct, I have approve the payment of two (2) weeks pay in lieu of notice which it the period of notice prescribed under the Fair Work Act 2009 for a person with your length of service. Salary, pay in lieu of notice and pro-rata annual leave payments etc. will be electronically transmitted to your bank on Tuesday 25 January, 2011.” 14

[31] The Respondent submitted that this could be interpreted either as a summary termination and the payment of two weeks as an ex gratia payment or as a dismissal with notice. The letter makes it clear that the dismissal is to have effect immediately and that employer regarded the reason for the termination as “serious misconduct.” I am therefore satisfied that the dismissal was a summary dismissal for serious misconduct.

[32] The email sent by the Applicant to Ilana Eldridge on 20 January 2011 was as follows:

“Hi Ilana,

Could you please advise as to why you are recruiting new staff without first informing me?

Do you have a program for them to work. Who is going to be on the interview panel. Do you even know what our program does? Do we even have a program.

I have requested that Annie Risk and Pauline Baban be employed in the ranger Program on several occasions and you have blatantly ignored me. Employ good people, diligent workers and people that are committed to working for Larrakia people. Both Annie and Pauline have got the skills to carry out important projects. Yet you have chosen to re-employ Kathleen and Chantel Fejo.

Don’t give me the drug addicts, the mentally unstable, the slack arses, the trouble makers all of the Larrakia whom you can manipulate, that you have chosen to re-employ into the Minbeni Ranger program and whom you choose to surround yourself with.

I need workers that I can trust, who I know can carry out tasks. Who are committed and are diligent and dedicated workers.

Did anything come of the mediation? Are we expected to have mediation?

Does anyone know what is happening with anything around here?

DOES ANYONE CARE?” 15

[33] The Applicant gave evidence that the negative characteristics she lists in the 4th paragraph are not directed at “Kathleen and Chantel Fejo” but at others whom she had heard were rumoured to be considered for employment. The Applicant said that she was not sure who was employed or who was going to be employed at the time she wrote the email and so it was not a criticism of any particular person. I accept this evidence.

[34] The Respondent submitted that the email was clearly a strong attack on the integrity and judgment of Ilana Eldridge to whom the Applicant reported. The Respondent suggested that the email alleged that Ms Eldridge was corrupt. The Respondent submitted that since the Special Administrator was in charge at the time there was no requirement for the Applicant to be consulted about appointments as the Special Administrator had this power.

[35] The fact that the Special Administrator had the power to hire and fire does not change the situation that the Applicant as the manager of the program reasonably felt that she should be consulted about appointments. I am satisfied that the Applicant had good reason to be very annoyed about the failure to consult her about appointments and also that annoyance was understandably amplified by the general situation of internal conflict which I have discussed earlier.

[36] I do not accept that the email alleges that Ms Eldridge is corrupt but it is a serious attack on her competence, integrity and judgment. Of course I am in no position to judge the validity or otherwise of the Applicant’s critique of the appointments proposed to be made but I have no hesitation in concluding that the email was inappropriate and offensive.

[37] However, in the circumstances prevailing in this organisation and taking into account all of the evidence, I am not satisfied that the sending of this email constitutes serious misconduct. In my view the sending of the email was a significant breach of the Code of Conduct which is attached to the Agreement and it certainly justified the immediate initiation of the disciplinary process of the Agreement. If the offence had been repeated it could ultimately have provided a valid reason for dismissal. It is not contested and I am satisfied that the Applicant was not the subject of any formal counselling or disciplinary process in accordance with the Agreement.

[38] I am therefore satisfied that there was no valid reason for termination for serious misconduct.

[39] I am required by the Act to have regard to the following in determining whether or not the dismissal was unfair.

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that FWA considers relevant.”

[40] In respect to Section 387 (b) I am satisfied that the Applicant was notified of the reasons for dismissal.

[41] In respect to Section 387(c) I am satisfied that the reason for dismissal related to the conduct of the Applicant and the Respondent accepted that the Applicant was not given any opportunity to respond to the reason for dismissal prior to the dismissal being implemented. In the circumstances of this case this is a serious breach of procedural fairness. In the circumstances of this case, where the Respondent is a community organisation and there is serious internal conflict about the direction of that organisation and a great deal of contention about the facts applying to many issues, the failure to allow the Applicant the opportunity to respond to the allegations that formed the basis for her dismissal renders the dismissal unjust and unreasonable and therefore unfair.

[42] In respect to Section 387 (d) there was no meeting between the Applicant and the Respondent. There was no opportunity for a support person to be present as there was no meeting.

[43] In respect to Section 387 (e) the dismissal related to the unsatisfactory conduct and performance by the Applicant in respect to the sending of inappropriate emails. The Agreement makes it very clear that except in the case of serious misconduct justifying summary dismissal there should be a defined process of warnings and counselling. For reasons discussed earlier I am not satisfied that the Applicant was warned in response to conduct or performance which had occurred prior to the dismissal. I am not satisfied that there was any finding by the Respondent that the Applicant had sent inappropriate emails prior to 20 January 2011 which the Applicant had been advised or warned about. I am also satisfied that the procedure set out in the Agreement was not followed. The failure to follow the reasonable disciplinary counselling and warning process that the Respondent was bound to follow by virtue of the Agreement also made the dismissal unjust and unreasonable and therefore unfair.

[44] In respect to Section 387(f) the Respondent is not a small business and its size did not affect the fairness of the process.

[45] In respect to Section 387(g) the Respondent had employed and continues to employ an HR specialist.

[46] In respect to Section 387(h) I consider the nature of the organisation, the level of internal conflict, and the role of the Applicant and other players as members of the organisation and in many cases as relatives not just as employees to be significant relevant factors.

[47] Taking all of these matters into consideration I have found that the dismissal was harsh and unjust and therefore unfair.

Remedy

[48] The Applicant does not seek reinstatement. In all of the circumstances I do not consider reinstatement would be appropriate or practical. The relationship of trust is not able to be restored. In all of the circumstances I find that an order for compensation is appropriate.

[49] The Applicant sought that compensation should include compensation for damage to the engine of her motor car which she says occurred due to an incident in the internal conflict that led up to the dismissal and also for the failure to return certain items which she said were not acquired by the Respondent as part of her work for the Respondent namely a logo, a fridge and a freezer and their contents. I advised the parties that the evidence was not sufficient for me make any determination about these issues.

[50] The Act requires that I consider the following:

“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), FWA 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 FWA considers relevant.

Misconduct reduces amount

(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA 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 FWA 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 FWA 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.”

[51] The Applicant found alternative employment from 31 January 2011. 16 The Applicant is paid in her new employment a few cents per hour more than she was paid by the Respondent. The Applicant was a permanent and ongoing employee of the Respondent. The employment with the new employer is on a “full time fixed term basis”.17 The Applicant has successfully completed a three month probation period with her new employer and the cessation date of her current fixed term contract is 31 December 2012.18

[52] I am satisfied that the order which I make will not affect the viability of the Respondent.

[53] The length of the Applicants employment with the Respondent is not a significant factor in this case. It is not so short as to adversely affect the likely length of ongoing engagement and it is sufficiently long to have established a strong career expectation and significant loss upon termination of the employment relationship.

[54] The Applicant made adequate efforts to mitigate any loss by quickly finding alternative employment.

[55] Taking into account the payment made upon termination there is no net monetary loss during the period from the termination to the date of the making of this order. I also expect that there will be no loss between the date of the making of this order and the actual date of payment of any compensation.

[56] I take into account that it appears from the pay slips provided that the Applicant was paid four weeks in lieu of notice. The Respondent submits that two weeks of this may have been paid in error.

[57] Estimating the length of time that the employment with the Respondent would have continued had the dismissal not occurred is not an easy matter in this case. There is no issue about the performance of the Applicant, nor any doubt about her passionate commitment to the ranger program which she initiated, developed and managed. I am also satisfied that following a period of Special Administration the relevant authorities are satisfied that the community is able to again manage the affairs of the Respondent. This suggests that the instability of the previous year may be behind the Respondent. However, there is an inherent element of uncertainty about the longevity of a program of the type that was managed by the Applicant. I therefore judge that the Applicant would have continued in her employment with the Respondent for a further eight months had it not been for the dismissal.

[58] It has been five months since the dismissal and given it is a community organisation I will allow a further month to elapse prior to the payment of any compensation. The Applicant will therefore have suffered no financial loss in the six months prior to the payment of any compensation. I do not need to make any allowance for contingencies in making this estimation. This leaves compensation of two months. The loss suffered by the Applicant includes but is not restricted to the fact that the new employment is fixed term not ongoing, the loss of continuity of employment, loss of career progression and development opportunities, loss of reputation, and loss of long service leave and personal leave entitlements. I have not taken into account any “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”

[59] I must provide for some contingency for the uncertainty of my estimation of the length of employment with the Respondent had the dismissal not occurred and some uncertainty about the continuation of the period of the new employment. The possibility that the Applicant may have been paid an additional two week’s notice in error is also relevant to this consideration. I consider a 25% contingency appropriate. I also consider it appropriate to make some deduction from any compensation in recognition of the fact that the sending of the inappropriate email on 20 January 2011 contributed to the dismissal of the Applicant. I consider a 25% deduction for the contributory conduct of the Applicant to be appropriate. On this basis I consider it appropriate to reduce the amount of compensation from 8 weeks to 4 weeks.

[60] The Applicant was earning $1073.80 gross per week at the time of the dismissal. 19 I therefore order that compensation of $4,295.2 less appropriate taxation be paid within 28 days.

COMMISSIONER

Appearances:

Ms Lorraine Williams appeared on behalf herself.

Mr Martin Blandy appeared on behalf of the Respondent.

Hearing details:

2011

Darwin

June 20

 1   Section 499-5(10)(d) of the Corporations (Aboriginal and Torres Strait Islander) Act 2009.

 2   Exhibit W2.

 3   Exhibit L5, Statement of Ms Coombes and Exhibit L6, payroll advice.

 4   Exhibit L1.

 5   Exhibits L2, L3 and L4.

 6   Exhibit W1, Attachment Item 2 to Statement of Applicant.

 7   Ibid, Attachment Item 4.

 8   Exhibit L1.

 9   Exhibit W1, Attachment Item 3.

 10   Ibid, Attachment Item 5.

 11   Exhibit L1.

 12   Ibid.

 13   Exhibit W1, Attachment Items 12 and 14 for example.

 14   Ibid, Attachment Item 2.

 15   Ibid, Attachment Item 1.

 16   Exhibit L3, the Letter of Offer of Employment states that the agreement commences from 31 January 2011.

 17   Exhibit L3.

 18   Exhibit L4, Change to Employment Agreement Dates.

 19   Exhibit L6.

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