Rameth Thomas v Wana Ungkunytja Pty Ltd T/A Anangu Jobs

[2017] FWC 5052

[2017] FWC 5052

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rameth Thomas
v
Wana Ungkunytja Pty Ltd T/A Anangu Jobs
(U2017/5861)

COMMISSIONER BISSETT MELBOURNE, 6 SEPTEMBER 2017

Application for an unfair dismissal remedy – reasonable and lawful direction – failure to follow direction provides a valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed.

[1] Mr Rameth Thomas was employed by Wana Ungkunytja Pty Ltd t/as Anangu Jobs (WU). His employment was terminated on 17 May 2017 for failing to abide by a direction in that he failed to relinquish his position as Chair of the Board of the Nyangatjatjara Aboriginal Corporation (NAC). Mr Thomas has made an application pursuant to s.394 of the Fair Work Act 2009 (FW Act) to the Fair Work Commission (Commission) seeking relief from unfair dismissal.

Background

[2] Much of the background is not contentious and is based on the evidence of parties to the proceedings and drawn from a number of reports which formed part of the evidence. Whilst there are some people named in this background who were not called to give evidence, no adverse inference is drawn of them.

[3] NAC is responsible for the operation of the Nyangatjatjara Aboriginal College (the College) which comprises secondary school campuses at Docker River, Imanpa and Mutitjulu (the communities) and a primary school campus at Docker River.

[4] WU is a wholly owned subsidiary of NAC. Through its business – Anangu Jobs – WU provides “job training and placement services and remote School attendance services” within the relevant communities. 1

[5] The structure of the businesses is such that both NAC and WU have separate Boards. The Boards have separate membership although some directors may be common across the Boards.

[6] The NAC Board has six member directors – two from each of the three relevant aboriginal communities and may have non-member directors to fill qualification or experiences gaps on the NAC Board.

[7] The WU Board is appointed by the NAC Board. It is made up of (at least) three persons. There is no apparent requirement that its membership be drawn from the local communities.

[8] WU receives funding from the Commonwealth as part of a program administered by the Department of Prime Minister and Cabinet (DPM&C) called the Remote School Attendance Strategy Project (RSAS Project). As part of the funding arrangements WU must comply with the requirements of the funding agreement.

[9] Mr Thomas commenced employment with WU on 21 March 2016. He was employed as a Schools Attendance Supervisor (SAS) at Mutitjulu under the RSAS Project. His role was to assist in the attendance at school of children within the communities.

[10] In May 2016 Mr Thomas was elected to the position of Chair of the NAC Board. He continued to hold his position as employee of WU.

[11] As Chair of NAC Mr Thomas engaged Mr Paul Gordon of NDA Law to provide him (as Chair) with legal advice and to attend and provide advice to the NAC Board. In this role Mr Gordon attended all meetings of the Board and wrote letters on behalf of Mr Thomas (presumably as Chair of the NAC Board). Mr Gordon could not attend the September 2016 meeting of the NAC Board and recommended the Mr Iain Evans attend in his absence. He apparently recommended Mr Evans as the Board was dealing with governance issues and Mr Evans had expertise in this area. This Board meeting was the only time Mr Evans personally met Mr Thomas.

[12] On or about November 2016 Mr Thomas commenced an absence from work from SAS as a result of stress. He made a workers’ compensation claim under the relevant NT legislation. That claim has been denied.

[13] The NAC Board determined at its June 2016 Board meeting to commission an audit report with respect to the operations of NAC. Mr Thomas, as Chair of the Board, was authorised to travel to Adelaide to brief such an external investigator. 2 The resulting report (the Morris Forensic report3) was dated 25 January 2017 and delivered to the Board on or about this time. The terms of reference of the Morris Forensic report were to undertake a forensic review of NAC and its subsidiaries.

[14] As is relevant to this application the Morris Forensic report said:

6.13 NAC does not have a documented Conflict of Interest Policy and does not maintain a Conflict of Interest Register…

6.14 Identification and management of conflicts of interest is vital to fair and effective decision making.

6.15 We have identified a number of conflicts that we consider require consideration and management. In particular:

16.5.1 Mr Rameth Thomas is the Chairperson of NAC, an employee of WU and appears to act as an observer for NAC at WU board meetings…

6.16 In our view, a conflict of interest arises by virtue of Mr Thomas being the Chairperson of NAC and an employee of its wholly owned subsidiary. This is because Mr Thomas has the ability, or might be perceived to have the ability, to influence decisions regarding his employment or decisions impacting on his employment… 4

[15] The Morris Forensic report indicated that Mr Thomas was contacted for his views in the conduct and preparation of the report but he declined to be interviewed. 5 Mr Thomas says that he did not participate on the advice of his doctor.

[16] On 29 July 2016 the Northern Territory Government (NT Government) wrote to the NAC Board and advised that it intended to undertake a special investigation of the Nyangatjatjara College. 6 The person to conduct the special investigation was Mr Iain Summers, a former Auditor General for the Northern Territory. The NT Government advised that the special investigation was warranted because of:

● Changes to the Board of NAC, including the removal of the Chair;

● Potential conflicts of interest between members of the NAC Board and the governance and financial arrangements of the NAC;

● Replacement of NAC’s legal counsel.

[17] The resulting report (the Summers report 7) was dated 23 September 2016. It said, on conflict of interest matters:

The CATSI Act requires Directors to make decisions that are in the best interest of the Corporation [Commonwealth Corporations (Aboriginal and Torres Strait Islander) Act, Section 265-5] and ahead of their own benefit or interests.

There are a number of conflict of interest issues with the current Board members that should be identified during Board meetings.

The current Chair also has a potential conflict [of interest] in that he is an employee of Anangu Jobs, the activity of Wana Ungkunytja Trust (WU). The Trustee of the Trust is a company whose sole shareholder is NAC, and its Board members are appointed by the NAC Board. The WU Board then appoints the General manager of Anangu Jobs. The Chair would have a conflict [of interest] if he was involved in decisions about appointments to the WU Board. 8

There has generally been no requirement in Board agendas for conflict of interest declarations, although I note this was included in the agenda for the Board meeting held on 4 September 2016.

[18] On 31 August 2016 DPM&C wrote to the General Manager of WU 9 in relation to project delivery concerns with the RSAS Project. That letter raised governance concerns in relation to the RSAS Project as follows:

5. The Department has serious concerns relating to the governance arrangements of Wana Ungkunytja Pty Ltd’s which we reasonably believe contribute to poor delivery of the Project in accordance with the Project Agreement. These concerns are:

5.1 There appears to be a breakdown of relationship between Wana Ungkunytja Board and its parent entity Nyangatjatjara Aboriginal Corporation (NAC), leading the Department to have concerns about the future of Wana and its ongoing governance capacity.

5.2 The Department also has serious concerns relating to the adequacy of the management of real and perceived conflicts of interest by Wana, including:

5.2.1 The role of the SAS employed by Anangu Jobs in being also the current Chair of NAC;

5.2.2 Managing real and perceived conflicts of interest, and separation of powers, between operational staff and Boards of Directors…

5.4 Key staff employed by Wana and Anangu Jobs, who are on the NAC Board, potentially being involved in NAC decisions relating to the appointment of Directors to Wana, which denotes a real conflict of interest due to employment under Wana and Anangu Jobs… 10

[19] On 7 September 2016 Mr Thomas signed a varied contract of employment with WU in which his employment was changed to Site Co-Ordinator – Mutitjulu and Employment Consultant. 11

[20] Following from an apparent meeting between the General Manager of WU and representatives of DPM&C, and Mr Thomas moving from his position as SAS, DPM&C wrote to the Executive Director Wana Ungkunytja 12 on 12 October 2016 and said:

12. Wana Ungkunytja appear to have addressed our concerns regarding governance of the corporation, through your advice that new Board members have been appointed…at a meeting held on 14 September 2016…

13. We continue to require that you ensure all real and perceived conflicts of interests between Wana Ungkunytja employees, the Wana Ungkunytja Board and the Board of its parent entity Nyangatjatjara Aboriginal Corporation (NAC) are managed appropriately, in line with your own constitution and sound governance practices.

[21] The NAC Board met on 5 and 6 February 2017. Mr Thomas did not attend that meeting. The draft minutes of the Board meeting indicate that the Morris Forensic report was discussed. The NAC Board noted that the report suggested Mr Thomas either resign from his directorship or employment or step out of meetings when “relevant matters” are discussed. 13 The NAC Board meeting also discussed issues associated with meetings of the WU Board.

[22] The NAC Board resolved to remove the current directors on the WU Board and appointed to the WU Board Mr Iain Evans, Mr Kelvin Onus-King and Ms Dorothea Randall. 14

[23] Arising from the February NAC Board meeting the Board wrote to Mr Thomas setting out concerns it had with respect to his conduct and possible conflicts. It requested a response on those matters “in writing within 21 days, or else resign from his position as Chairperson of NAC.” 15

[24] Jaak Oks lawyers, responded on behalf of Mr Thomas on 20 February 2017. 16 Following the details of his response the letter advised that Mr Thomas sees no reason why he should resign. A letter signed by the independent directors of the NAC was sent in reply to Jaak Oks on 24 February 2017.17 That letter further detailed the concerns expressed at the February NAC Board meeting.

[25] Mr Evans said that, following the NAC Board meeting where he was appointed tot eh WU Board, he met with Mr Gordon (NDA Law) and Mr Osborne (an independent member of the NAC Board) where he was briefed on matters relevant to the functioning of WU. Mr Evans said that Mr Thomas was invited to that meeting but did not attend.

[26] Mr Evans said that, on the appointment of the new members of the WU Board it met on 12 February 2017. 18 It started to examine a range of governance issues of WU including the payment of superannuation, outstanding invoices, reporting to government authorities such as the Charities Commission and Australian Taxation Office, compliance audits and the like.

[27] Mr Evans said that a critical matter for the Board was issues associated with managing conflicts of interest. He said that the WU Board was aware of the Summers Report, the Morris Forensic Report and the 31 August 2016 from DPM&C. He said in his oral evidence that given these three documents the WU Board had a duty to deal with the conflict of issue matters.

[28] The February 2017 WU Board meeting directed Mr Evans to prepare a draft recommendation in relation to conflict of issue matters. 19 Soon after this meeting Mr Onus-King resigned from the WU Board due to ill-health. Mr Onus-King had also been acting as Genaral Manager of WU and he resigned from this position as well. Soon after Mr Evans and Ms Randall, as to the two remaining members of the WU Board, determined to engage a contractor to take on that position of General Manager until a permanent appointment could be made.

[29] Soon after the February 2017 WU Board meeting the board finalised its Employee and Boards Policy (the policy). That policy was conveyed to Mr Thomas by email 20 on 23 February 2017 and by letter the same day.21 The letter states:

By resolution of the Wana Ungkunytja Board on 22 February 2017, the attached Wana Ungkunytja Pty Ltd Employee and Boards Policy was ratified.

You will see that it states the following:

The Board of Wana Ungkunytja Pty Ltd as adopted the policy that no employee can be a member of the Board of Nyangaytjatjara (sic) Aboriginal College, Wana Ungkunytja Pty Ltd or their related entities as from the 25/2/17.

I also refer to your written employment agreement dates 18 March 2016 as varied on 10 August 2016. It is a term of your employment that you are to comply with reasonable instructions and directions (clause 6.2(a)) and that you are to read and comply with obligations imposed upon you with AJ’s policies and procedures as they relate to your employment (clause 16). You are consequently directed to resign from any Board and/or Board Sub-Committee positions you hold that are in breach of the Wana Ungkunytja Pty Ltd Employee and Boards Policy by no later than 25 February 2017.

Failure to comply with this Policy and written direction will be treated as a serious breach of the terms of your employment and may consequently result in disciplinary action, including termination.

[signed]

Iain Evans

Director

Wana Ungkunytja Pty Ltd

[30] On 27 February 2017 Mr Thomas sent an email to Mr Evans 22 in which he said:

Hi Iain and the WU Board,

I have made contact with a solicitor and that I will be speaking with them tomorrow, I will be in a position to respond to your letter as I am entitled to seek legal advice, and I am aware and believe that the WU Board can not deprive me of my rights here and that I will need reasonable time to be able to achieve this response as the time given I believe was very unreasonable.

Cheers

Rameth

[31] On 27 February 2107 Mr Evans responded to Mr Thomas by letter 23 in which he stressed the need for urgent compliance with the policy but, in any event, extending the date for response to 1 March 2017. It is not apparent that Mr Thomas provided any response.

[32] On 1 March 2017 Tindall Gas Bentley lawyers (TGB) wrote to Mr Evans as a Director of WU 24 and advised:

We act for Mr Rameth Thomas in relation to his workers compensation claim for psychological injury. We ask that you cease all contact with our client in relation to that matter and forward your correspondence to our office.

Please note that we are not instructed in relation to any matters associated with Mr Thomas’ Board membership…

[33] Mr Thomas attended part of the March NAC Board meeting. 25

[34] On 5 May 2017 Mr Evans again wrote to Mr Thomas. That letter said:

I refer to my letter dated 27 February 2017 and letter provided by Tindall Gask Bentley dated 1/3/17 advising they were acting in relation to your current Workers Compensation Claim.

The direction give to you regarding compliance with the WU Employee and Board’s Policy is not connected with your Workers Compensation Claim…

Consequently to direction must be complied with notwithstanding that you remain on unpaid sick leave pursuant to your Workers Compensation Claim.

You have failed to respond to correspondence sent to you regarding the WU Employee and Board’s Policy and you have failed to comply with it…

Based on your disregard of the direction and ongoing participation in the NAC Board meetings since February 2017, which is regarded as a serious breach of the WU Employee and Board’s Policy and the terms of your employment agreement with Wana Ungkunytja, a decision will be made by close of business on 8 May 2017 regarding your ongoing employment.

[35] On 17 May 2017 Mr Thomas was sent a letter signed by Mr Evans. It said:

I refer to previous correspondence, including my letter dated 5 May 2017…

You have failed to respond to my letter dated 5 May 2017 and previous correspondence sent to you regarding the WU Employee and Board’s Policy.

As previously noted, you have failed to comply with the WU Employee and Board’s Policy whilst on leave from your employment, for the reason that you have continued to actively participate in NAC Board meetings.

Based on your disregard of the direction and ongoing participation in NAC Board meetings since February 2017, which is regarded as a serious breach of the WU Employee and Board’s Policy and the terms of your employment agreement with Wana Ungkunytja, your employment is now terminated with the provision of 14 days’ notice…

Was Mr Thomas unfairly dismissed?

[36] I am satisfied that Mr Thomas was dismissed from his employment. He is protected from unfair dismissal, the application was made within the requisite time period, his dismissal is not a result of redundancy, and the Small Business Fair Dismissal Code does not apply. It therefore leaves for me to consider if the dismissal was harsh, unjust or unreasonable.

[37] Section 387 of the FW Act states:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant.

Section 387(a) - a valid reason

[38] Mr Thomas’ employment was terminated because he failed to follow a lawful and reasonable direction in relation to his employment. That direction was that he abide by the WU Employee and Board’s Policy adopted by the WU Board that employees of WU not hold a position on the Board of NAC or related companies.

[39] I am satisfied that the policy adopted by the WU Board is a legitimate policy. It was determined in response to a real concern about potential and real conflicts of interest in relation to NAC and WU identified by three different sources. Whilst there may well be other means by which conflicts of interest caused by being an employee and chair of the parent organisation’s Board might be dealt with, the approach adopted by the WU Board is not unreasonable.

[40] I accept that there may well be Boards of the top ASX200 companies who have employees on their Board, but this cannot be taken to imply that in all circumstances it is appropriate to have an employee sitting on a Board. Regardless of the existence of such arrangements in ASX listed companies it does not mean that the decision of the WU Board is unlawful or unreasonable.

[41] There is nothing to suggest that the WU Board was not properly constituted at the time it adopted the policy such that the policy and/or direction to Mr Thomas that he abide by it were unlawful.

[42] I am therefore satisfied that the decision of the WU Board was within its remit. I am therefore satisfied that the resulting direction to Mr Thomas was a lawful and reasonable direction.

[43] Mr Thomas’ contract of employment requires that he abide by the lawful policies of WU 26 and that he abide by “all lawful and reasonable instructions.”27 Mr Thomas accepts that this is the case.

[44] Mr Thomas agrees that he received the email sent to all staff on 27 February 2017 and letter of the same date from Mr Evans in which he was advised that he was required to comply with the policy. Mr Thomas’ evidence is that he gave the letter to his lawyer to deal with and he did not understand the policy in any event.

[45] The following day Mr Thomas sent an email to Mr Evans in which he advised that he was consulting his lawyer. Mr Evans extended the time within which Mr Thomas was required to respond.

[46] Mr Thomas’ evidence is that he gave the correspondence to TGB lawyers although they made it clear in correspondence to WU that they did not act for Mr Thomas in relation to his Board membership.

[47] Mr Thomas agreed that he had consulted Jaak Oks lawyers in respect of conflict he was having with the NAC Board. His evidence, however, was that sometime after receipt of the letter from Mr Evans of 27 February 2017 he then consulted Povey Stirk lawyers with respect to his Board membership.

[48] Mr Thomas offered no reasonable explanation, given he consulted two law firms about his Board membership, as to why he did not respond to Mr Evans letter of 27 February 2017. Although in his email of 28 February 2017 he said he was consulting with his lawyer about the matter there is no evidence he did so. The limited evidence he did give on this matter was inconsistent and not credible.

[49] Mr Evans further wrote to Mr Thomas on 5 May 2017 in which he advised Mr Thomas that, should he fail to comply with the policy by 8 May 2017 his employment future would be considered.

[50] Mr Thomas said that he was too unwell to deal with the correspondence from Mr Evans.

[51] Whilst Mr Thomas may have been unwell and, at the time, had a workers compensation claim against WU, no evidence was given to the Commission of his illness or that his illness was such that he could not properly respond to the correspondence of Mr Evans. I therefore do not accept Mr Thomas’ reason for not responding to this correspondence.

[52] Further, Mr Thomas provided no medical certificate to Mr Evans or advice to Mr Evans from his lawyer or treating doctors that he was unfit to deal with the matters being raised by Mr Evans. In fact, the only correspondence Mr Evans or WU received with respect to Mr Thomas’ medical condition was correspondence from TGB who asked that correspondence in relation to workers compensation for Mr Thomas be sent to them but that it, expressly, was not dealing with matters associated with the NAC Board. The correspondence from TGB did not request, as Mr Thomas suggested, that WU not correspond with him on any matter.

[53] Further, the evidence supports a finding that Mr Thomas did attend an NAC Board meeting – albeit by phone and for a limited time – on 5 March 2017, indicating that he was, at times at least, well enough to deal with matters associated with the NAC Board.

[54] Given the lack of contrary evidence I am satisfied that Mr Thomas did disregard a lawful and reasonable direction given to him. That direction was contained in the letter of 27 February 2017, reiterated in the letter of 5 May 2017, and was that Mr Thomas abide by the WU policy, as adopted by the WU Board in February 2017. Mr Thomas was ultimately given until 8 May 2017 to show that he had abided by the direction. He failed to do so.

[55] For a reason for dismissal to be valid it must be “sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced cannot be a valid reason”. 28

[56] I accept the evidence of Mr Evans that the WU Board policy was not specifically directed at Mr Thomas but was directed at any employee of WU being on the NAC Board in circumstances where NAC was the parent company or the board of any other related company. Further, I am satisfied that the policy was a reasonable response to legitimate concerns that had been raised in the Morris Forensic report, the Summers report and the DPM&C letter. The direction to Mr Thomas was lawful and reasonable in the circumstances.

[57] I am therefore satisfied that neither the policy itself nor the requirement that Mr Thomas comply with it was capricious, fanciful, spiteful or prejudice. Mr Evans did not know Mr Thomas – they had met once and that was in September 2017. There is nothing to suggest that the reason for dismissal of Mr Thomas was motivated by any but reasonable intentions.

[58] I am therefore satisfied that the reason for dismissal of Mr Thomas was valid.

Section 387(b) - notified of the reason

[59] I am satisfied that Mr Thomas was advised of the requirement to comply with the policy and that, by letter of 5 May 2017 was aware that a failure to comply would result in his dismissal.

Section 387 (c) - opportunity to respond

[60] I am satisfied that Mr Thomas had an opportunity to respond to the reason for his dismissal from the time he was advised of the policy. He chose not to engage in any communication with WU about the matter. Whilst he indicated that he was seeking legal advice no correspondence was received from any lawyers acting on his behalf in relation to the policy.

[61] On 5 May 2017 Mr Thomas was advised that a decision with respect to his employment would be taken on 8 May 2017. Whilst the letter did not explicitly invite a response form Mr Thomas he was given an opportunity to provide such a response. He chose not to.

Section 387(d) - unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[62] Mr Thomas did not seek to meet with WU about the matter. This issue is therefore not relevant.

Section 387(e) - unsatisfactory performance

[63] Mr Thomas’ employment was not terminated for matters related to his performance. This is therefore not a relevant consideration.

Section 387(f) - the degree to which the size of the employer’s business would impact on the procedures followed

[64] WU submits that this is not a relevant consideration.

Section 387(g) - the degree to which the absence of dedicated HR specialists or expertise would be likely to impact on the procedures followed

[65] WU submits that it has no dedicated human resource employees. Despite this however it submits that the procedures adopted by it were fair.

[66] Mr Thomas made no submissions on this.

[67] I am therefore satisfied that this is a neutral matter in my consideration.

Section 387(h) - other matters

[68] Mr Thomas is an aboriginal man. He is an elder in his community. He and his family members are part of the communities that make up NAC.

[69] Mr Thomas says that he was working in Cooper Pedy and a member of a local indigenous health board when his family asked him to come home and help find missing royalties from the sale of the Ayres Rock resort. Mr Thomas says that he was put onto the NAC Board for this purpose. Mr Thomas says that many of things he did as Chair of the NAC Board, including the commission of the Morris Forensic report were directed at finding where a substantial sum of money (apparently some $19 million) had gone and how it had been used. This was an important issue for his community and apparently had been a matter of some concern for many years.

[70] WU submits that Mr Thomas saw his role on the NAC Board as requiring him to find what had happened to the money the community believed had been misused or misappropriated. It submits that the actions he took, including by establishing the terms of reference for the Morris Forensic report, were directed at WU (see for example the terms of reference for the Morris Forensic report which required an examination of NAC “and its subsidiaries”). This, it says, is indicative of the conflict of interest Mr Thomas had as NAC Board Chair and as a direct employee of WU.

[71] Whilst I can appreciate the concerns Mr Thomas and his mob had in relation to what they believe to be lost money cannot does not operate to outweigh the need or right of the WU Board to deal with the conflict of interest raised in the three documents referenced above.

[72] I do not accept the submissions of Mr Thomas that these reports or correspondence can or should be ignored. Whilst some of the concerns from DPM&C had been resolved there remained a potential conflict of interest with respect to Mr Thomas. I accept that the Summers report does not say that Mr Thomas should not be on the NAC Board but it is alive to the potential for a conflict of interest. Further, there is just no basis to say that the Commission should ignore the caution issued in the Morris Forensic report.

[73] It is not necessary that I identify any conflicts of interest of Mr Thomas. It is enough that the potential has been identified and the WU Board acted in a way it saw fit and was within its power.

[74] Mr Thomas commenced sick leave in November 2016. He has made a workers compensation claim. That has been denied.

[75] Section 65C of the Return To Work Act (NT) (RTW Act) states:

Employer not to dismiss worker

(1) An employer of a worker commits an offence if:

(a) the worker is totally or partially incapacitated for work as a result of an injury; and

(b) the employer intentionally engages in conduct during the relevant period; and

(c) The conduct results in the dismissal of the worker; and

(d) the employer is reckless as to whether the worker is totally or partially incapacitated for work as a result of the injury.

Maximum penalty: 200 penalty units

(2) Strict liability applies to subsection (1)(a) and (c).

(3) It is a defence to a prosecution for an offence against subsection (1) if the reason for the dismissal is serious misconduct by the worker.

(4) In this section:

“dismissal”, of a worker, includes a situation in which:

(a) an unreasonable employment condition is imposed on the worker that is designed to make the worker leave employment; and

(b) the worker leaves the employment.

“relevant period”, for an employer of a worker who is totally or partially incapacitated for work as a result of an injury, means the period:

(a) that starts on the day on which the injury occurs; and

(b) that ends 6 months after that day.

serious misconduct means:

(a) wilful or deliberate behaviour by a worker that is inconsistent with the continuation of the worker’s contract of employment; or

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

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business; or

(c) engaging in theft, fraud or assault in the course of employment; or

(d) being intoxicated in the workplace, including being too impaired to work because of alcohol or a drug, other than a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug; or

(e) refusal to carry out a reasonable instruction from the employer that is consistent with the worker’s contract of employment .

[76] Mr Thomas says that WU is in breach of the obligation under s.65C(1) of the RTW Act in that it intentionally engaged in conduct resulting in the dismissal of Mr Thomas at a time when he was totally or partially incapacitated for work.

[77] WU says, on this, that, at the time of Mr Thomas’ dismissal the six month period (the “relevant period”) had elapsed such that it was no longer subject to the provisions of s.65C(1) of the RTW Act. Mr Evans gave evidence that he had sought specific advice from WU’s WorkCover insurer who had sought advice from its legal advisor on the matter. The insurer had confirmed that the six month period had elapsed.

[78] Even if the six month period had not expired, WU submits that it is covered by the exception in s.65C(3) of the RTW Act in that Mr Thomas’ employment was terminated because of his failure to follow a “reasonable” instruction which, by virtue of s.65C(4) of the RTW Act, is serious misconduct.

[79] Given my finding above that the direction to Mr Thomas to comply with the WU Employee and Board’s Policy was lawful and reasonable and fell within Mr Thomas’s contract of employment, I am satisfied that the “instruction” was reasonable. This is a defence to any claim that Mr Thomas’ employment was terminated in breach of theRTW Act.

Conclusions as to harsh, unjust or unreasonable

[80] I appreciate the concerns Mr Thomas has about money payable to NAC or WU arising from the sale of the Yalara Resort. The aboriginal communities to whom the money belongs have a legitimate interest in that matter but this cannot override Mr Thomas’ obligations as an employee to obey directions of his employer. He failed to do so and as a consequence his employment was terminated.

[81] For the reasons outlined above I am satisfied that the dismissal of Mr Thomas was not harsh, unjust or unreasonable.

Conclusion

[82] For the reasons given above I find that Mr Thomas was not unfairly dismissed. An order 29 dismissing his application will be issued with this decision.

COMMISSIONER

Appearances:

J. Stirk for the applicant.

K. Stewart for the respondent.

Hearing details:

2017.

Alice Springs:

September 18, 19.

 1   Exhibit R10, paragraph 4.

 2   Exhibit R2, motion 4.

 3   Exhibit R10, annexure IE5.

 4   Exhibit R10, annexure IE5, p22.

 5   Ibid p15.

 6   Exhibit R2.

 7   Exhibit R10, annexure IE6.

 8   Exhibit R10, annexure IE6, pp.6-7.

 9   Exhibit R10, annexure IE3.

 10   Exhibit R10, annexure IE3, p3.

 11   Exhibit R10, annexure IE2.

 12   Exhibit A3.

 13   Exhibit R4, agenda item 4g.

 14   Ibid, motion 7.

 15   Exhibit R5.

 16   Exhibit R6.

 17   Exhibit R8.

 18   Exhibit R10, annexure IE8.

 19   Ibid, agenda item 11.

 20   Exhibit R10, annexure IE9.

 21   Exhibit R10, annexure IE10. Whilst the letter was marked confidential no request for orders in relation to confidentiality of the material was sought from either of the parties. It is, therefore, repeated here.

 22   Exhibit R10, annexure IE11.

 23   Exhibit R10, annexure IE12.

 24   Exhibit R7.

 25   Exhibit R9.

 26   Exhibit R10, annexure IE2, clause 16.1.

 27   Ibid, clause 6.2(a).

 28   Selvachandran v Peteron Plastics Pty Ltd, (1995) 62 IR 371, 373.

 29   PR596620.

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