Ross Wunungmurra v East Arnhem Regional Council

[2019] FWC 2861

[2019] FWC 2861

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ross Wunungmurra
v
East Arnhem Regional Council
(U2018/3803)

COMMISSIONER BISSETT MELBOURNE, 2 MAY 2019

Application for an unfair dismissal remedy – reinstatement.

[1] Mr Ross Wunungmurra (Mandi) 1 was employed by East Arnhem Regional Council (EARC). His employment was terminated on 27 March 2018. On 9 November 2018 I issued a decision2 (2018 Decision) in which I found that Mr Wunungmurra had been unfairly dismissed.

[2] In making that decision I determined that I did not have the necessary submissions or evidence as to enable me to properly determine the appropriate remedy under the Fair Work Act 2009 (FW Act). I therefore issued directions for the filing of evidence and submissions in relation to remedy. Following the need to deal with some interlocutory matters the hearing in relation to the matter of remedy was heard by me on 11 April 2019.

[3] Mr Wunungmurra seeks reinstatement. In the alternative he seeks compensation. Reinstatement is opposed by the Respondent.

[4] I will deal with reinstatement first. Should I find that not to be appropriate I will consider compensation.

The Decision

[5] In the 2018 Decision I made the following findings relevant to the determination of remedy:

•  That Mr Wunungmurra had received counselling “on a number of issues over the period of his employment” but did not consider the counselling in 2013 or 2014 provided much support for the decision to dismiss him; 3

•  A counselling note in relation to an incident in 2015 suggests the matter was resolved; 4

•  Mr Wunungmurra received a warning letter dated 6 September 2017. The driving license matter raised in the letter was resolved; Mr Wunungmurra was absent without approval on 31 August 2017 and no finding was made in relation to his absence on 9 and 11 May 2017; 5

•  There were a number of timekeeping incidents with respect to Mr Wunungmurra which I found occurred:

◦  He claimed time he did not work on 4 January 2018 and 12-14 January 2018;

◦  He did not claim for work he did do on 11 January 2018;

◦  He claimed 10 minutes he did not work on 22 March 2018;

◦  He claimed 1 hour he was rostered to but did not work on 23 March 2018;

◦  He applied for leave on days he was not rostered to work in or around August 2017. 6

•  Mr Wunungmurra engaged in misconduct in that he claimed time as worked when he had not, in fact, done so. 7

•  If it had been Mr Wunungmurra’s intention to mislead EARC he was not very clever about it. 8

•  Whilst Mr Wunungmurra’s conduct was not above reproach it did not provide a valid reason for his dismissal. 9

Evidence

[6] Additional evidence was given in the remedy proceedings by Ms Diana Roper, Mr Don Wininba Ganambarr and Mr Barry Bonthuys. Mr Wunungmurra gave no further evidence.

[7] Ms Roper was employed by EARC as Regional Manager, Council Services (which included responsibility for the Community Patrol when Mr Wunungmurra worked) from September  2014 until 20 December 2018.

[8] Ms Roper gave evidence that:

•  at her first meeting with the Community Patrol in November 2014 Mr Wunungmurra challenged the right of EARC to request patrol members to justify the use of council vehicles, fuel consumption and other matters. She said that When Mr Ganambarr defended the right of EARC to request the information Mr Wunungmurra “became upset and threated Don Wininba [Ganambarr]…[Mr] Wunungmurra became violent and wanted to fight Don Wininba in the meeting room.” She said she considered calling the police when “Don Wininba instructed [Mr Wunungmurra] to sit down or leave the meeting.” 10

•  At meetings of the Community Patrol when she was providing instruction Mr Wunungmurra would “regularly stand up and tell me and the attending patrol officers that he would lead the discussion.” She says he would also speak to patrol officers in Yolgnu Matha even though it was apparent the patrol officers could converse in English; 11

•  Mr Wunungmurra would often stand beside or walk behind a patrol officer who was speaking. He would particularly do this to female patrol officers and she could “sense…he appeared to [be] trying to impose on them.” 12

•  Mr Wunungmurra told her that she should listen to him as he was a cultural leader. She explained to him that this was not transferable to the workplace. 13

•  She had spoken to two female patrol officers as to their views of Mr Wunungmurra returning to the workplace but both said they would not comment as they did not want to “get into trouble through their families and with Ross Wunungmurra.” 14

[9] Ms Roper gave evidence that Mr Wunungmurra attended a Local Authority meeting on 20 January 2016 where he advised the Local Authority that he was representing patrol teams (which he was not) and what the patrol teams would be doing in relation to collection of statistics. When questioned, Ms Roper agreed that Mr Wunungmurra and two other patrol officers were present at the meeting at the request of the Local Authority. She agreed that the minutes of the meeting (which she was responsible for taking) indicated that Mr Wunungmurra and another patrol member present spoke on their own behalf. 15 Ms Roper said however that she had removed things from the minutes unless it was something on which she had to report back to the Local Authority.

[10] Ms Roper agreed that her comments in relation to the conduct of Mr Wunungmurra at patrol team meetings were in relation to specific meetings only and she was not referring to all team meetings or his conduct on all occasions.

[11] Mr Barry Bonthuys is the Acting Chief Executive Officer (CEO) of EARC. He gave evidence that his statements were based on discussions he held with Ms Roper and Mr Ben Waugh, Director Council Services. He said that he had discussed Mr Wunungmurra once with Ms Roper and once with Mr Waugh. The discussion with Mr Waugh was more than six months prior to his statement in these proceedings. He said he is concerned that Mr Wunungmurra’s behaviour would not change from that which led to his dismissal should he be reinstated. He believes that this will make it very difficult for the night patrol to function effectively.

[12] Mr Bonthuys said that while EARC employs a number of staff on Galiwin’ku there are a number of other employers with positions available including Miwatj Health, Marthakal Homelands, ALPA Stores, Sheperdson College, Yalu, and within the Department of Prime Minister and Cabinet.

[13] Mr Bonthuys said that EARC must meet key performance indicators in relation to the funding from the Commonwealth Government in relation to the community patrol (night patrol) funding. This includes the number of hours worked and the proportion of these hours that must be completed by indigenous persons. He agreed that it is difficult to fill the night patrol positions and that there is a high staff turnover in this area.

[14] Mr Bonthuys agreed that the position of CEO has recently been advertised and that if he was not the Acting CEO he would be the Chief Financial Officer/Director Commercial and Agency Services. He agreed that the night patrol report through the Director Council Services (Mr Waugh) and if he was not in the CEO position he would have no involvement with night patrol.

[15] Mr Don Wininba Ganambarr gave evidence that he had had dealings with and interacted with Mr Wunungmurra as part of the night patrol.

[16] Mr Ganambarr said that Mr Wunungmurra did not undermine him in a bad way, that when interacting with other staff Mr Wunungmurra was helping them and that he assisted staff who only spoke the Yolgnu language in staff meetings.

[17] Mr Ganambarr said that if he and Mr Wunungmurra had disagreements they would talk them through and work them out. He said that he and Mr Wunungmurra had “bad” talks (arguments) that they sorted it out and Mr Wunungmurra had apologised to him. 16

Submissions – reinstatement

[18] Mr Wunungmurra submits that there is no basis on which to find that reinstatement is not appropriate. Mr Wunungmurra submits that the reliance of EARC on a history of misconduct is not supported by the 2018 Decision in relation to the application for unfair dismissal; assertions that he has consistently failed to follow directions and is disruptive is not consistent with the 2018 Decision or the evidence of Mr Ganambarr in the remedy proceedings and that claims that he is “violent and threatening” do not reflect the November 2014 incident on which the claim is based. Further, Mr Wunungmurra says that claims that he was violent and threatening in November 2014 have not been raised prior to these remedy proceedings despite Ms Roper having given evidence of the November 2014 incident in the initial proceedings.

[19] Mr Wunungmurra submits that reliance on these three matters does not sustain a claim that EARC has lost trust and confidence in him such that I could find that reinstatement was inappropriate.

[20] Mr Wunungmurra says that there is no evidence that he caused a loss of federal funding when he was employed by EARC and there is no reason to consider that would occur should he be reinstated.

[21] Mr Wunungmurra submits that any claim by EARC for a loss of trust and confidence must be “soundly based” 17 and that:

The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate. 18

[22] Mr Wunungmurra says that there are a range of factors that support reinstatement. Firstly he says that he has a good relationship with his work colleagues on Galiwin’ku. This, he says, is supported by a petition signed by people who would be his work colleagues. Secondly, he says he would have no difficulties returning to work and that there is no impediment to his return to work. Further, Mr Wunungmurra says that the evidence of Ms Roper in the initial proceedings supports the importance of the work he does in the community. His reinstatement would allow him to continue this role.

[23] Mr Wunungmurra says that he has worked for EARC since 2010 and is a respected member of his community.

[24] Mr Wunungmurra further submits that the remoteness of Galiwin’ku and the limited job opportunities adds weight to reinstatement as the appropriate remedy.

[25] EARC submits that reinstatement is not practical in this case. It submits that the employment relationship has irrevocably broken down because Mr Wunungmurra:

•  has a protracted history of misconduct;

•  has continuously failed to follow lawful directions and is disruptive in the workplace; and

•  is violent and threatening in the workplace.

[26] The misconduct it relies on is that of Mr Wunungmurra in incorrectly claiming time he had not worked.

[27] EARC relies on the evidence of Ms Roper and Mr Ganambarr in relation to its submission that Mr Wunungmurra failed to follow lawful and reasonable directions. EARC submits that Mr Wunungmurra showed a consistent disregard for Ms Roper; regular standing up in team meetings and stating he would lead the discussion; speaking in the Yolgnu Matha language knowing Ms Roper did not understand the language; and would became frustrated and walk out of meetings. Further, EARC says that the evidence is of Mr Wunungmurra attempting to control conversations, constantly seeking that the attention be focused on him and not allowing others to speak. In this regard EARC submits that Mr Wunungmurra regularly confused his position of clan leader with that of an employee of EARC.

[28] EARC submits that the evidence of Mr Ganambarr and Ms Roper supports a finding that Mr Wunungmurra was aggressive.

[29] EARC also submits that it is not relevant that evidence in relation to the conduct of Mr Wunungmurra has been raised for the first time in these proceedings as such matters may not have been relevant in relation to a consideration of whether his dismissal was unfair but may be relevant to a consideration of whether the employment relationship has broken down to such an extent that reinstatement is no longer appropriate.

[30] EARC submits that Mr Wunungmurra has given no evidence as to how he might re-establish a working relationship with his managers should he be reinstated and this tells against reinstatement.

[31] EARC says that the matters it identifies with the relationship between itself and Mr Wunungmurra are not merely ripples on the surface of the relationship but represent a rift that runs deep such that the relationship cannot be repaired.

[32] EARC relies on the decision in Commonwealth Bank of Australia v Barker 19 in which Kiefel J said:

66. The duty of trust and confidence of which these cases speak is not some abstract concept. It refers to conduct, on the part of an employee, which is contrary to the interests of the employer and serious enough to have the effect that the employer could not reasonably be expected to have confidence in the employee. The duty reflects an essential aspect of the relationship between employer and employee. Whilst trust and confidence is maintained, the relationship endures. In that sense, the employee's duty may be said to be directed to the maintenance of the relationship. Yet the law recognises that, where a point of no confidence is reached, it would be intolerable for the employer to continue with the relationship. In such a circumstance, termination of the employment is justified

Remedy

[33] The remedy provisions in relation to a finding of unfair dismissal are set out in ss.390-392 of the Fair Work Act 2009 (FW Act). The remedies provide for reinstatement (s.391) or compensation in circumstances where reinstatement is not appropriate (s.392).

[34] In Regional Express Holdings Ltd v Richards 20 a Full Bench of Fair Work Australia found:

[23] It is clear from the terms of s.390(3)(a) that, in circumstances where a remedy is appropriate, compensation must not be ordered unless the tribunal is satisfied that reinstatement is inappropriate. Seen in the proper context the Commissioner’s statement that reinstatement is the presumptive remedy is not indicative of any error in the decision. The section provides that compensation must not be ordered unless reinstatement has been found to be inappropriate. There is no basis for concluding that the Commissioner interpreted the section differently. Rex’s first submission on remedy must fail.

[24] In relation to remedy, therefore, the first question is whether reinstatement is appropriate…

[35] In Nguyen & Le v Vietnamese Community in Australia T/A Vietnamese Community Ethnic School South Australia Chapter 21 (Nguyen) a Full Bench of the Fair Work Commission (Commission) said:

[10] Subsection 390(3) underscores the primacy of reinstatement as a remedy for an unfair dismissal as the discretion to order a remedy of compensation may only be exercised if the Commission is satisfied that reinstatement is ‘inappropriate’. Further, one of the objects of Part 3-2 of Chapter 3, in which the unfair dismissal provisions appear, is “to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement”. We would observe that to describe reinstatement as the ‘primary remedy’, is to simply recognise that reinstatement is the first, perhaps even the foremost, remedy under the Act. The relevant question in determining whether to grant the remedy of reinstatement of an employee in relation to a dismissal that is found to have been ‘unfair’ is whether reinstatement is appropriate in the particular case. [Endnotes omitted]

[36] The corollary to a determination of compensation under s.392 of the FW Act that compensation be considered only if reinstatement is inappropriate is that the appropriateness of reinstatement must be considered in the first instance. I am therefore satisfied that reinstatement is the first matter to be considered in determining remedy.

[37] The Full Bench in Nguyen detailed those matters relevant to a determination of the appropriateness of reinstatement. The Full Bench found that:

[17] Reinstatement might be inappropriate in a whole range of circumstances, for example if such an order would be futile such as where reinstatement of an employee would almost certainly lead to a further termination of the employee’s employment because the employer has since discovered that the employee engaged in an act of serious misconduct which was only discovered after the employee’s termination or if the employer no longer conducts a business into which the employee may be reappointed. The fact that the employer has filled the position previously occupied by the dismissed employee would rarely, of itself, justify a conclusion that reinstatement was not appropriate […]

[19] Reinstatement may be inappropriate if an employee is incapacitated because of illness or injury. The weight to be accorded to ongoing incapacity when considering whether reinstatement is appropriate will depend upon all of the circumstances of the case. 

[20] The most common argument advanced in support of the proposition that reinstatement is inappropriate is the proposition, variously expressed, that there has been a loss of trust and confidence such that it would not be feasible to re-establish the employment relationship.

[21] In Perkins v Grace Worldwide (Aust) Pty Ltd the Full Court of the Industrial Relations Court considered the effect of a loss of trust and confidence on the question of the “practicability” of a reinstatement remedy and said:

“Trust and confidence is a necessary ingredient in any employment relationship... So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee’s employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court’s finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.

Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.

It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee’s employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer’s own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.”

[22] As the Full Bench of the AIRC observed in McLauchlan, although Perkins was decided under the IR Act, the Court’s observations reproduced above remain relevant to the question of whether reinstatement is appropriate in a particular case.

[23] In speaking of ‘trust and confidence’ in this context we are concerned with that which is essential to make an employment relationship workable. It is not to be confused with an implied term in a contract of employment of mutual trust and confidence, the existence of which was recently eschewed by the High Court in Commonwealth Bank of Australia v Barker.

[24] While it may be accepted that trust and confidence is a necessary ingredient in any employment relationship, it would be wrong to assume that it is the sole criterion or even a necessary one to determine whether or not reinstatement is appropriate...

[38] The Full Bench in Nguyen found that:

[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:

•  Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.

•  Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.

•  An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.

•  The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.

•  The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate. [Endnotes omitted]

Consideration

[39] On the basis of my findings in the 2018 Decision I am not satisfied that there is a history of misconduct by Mr Wunungmurra that could support a finding that reinstatement is inappropriate. Certainly Mr Wunungmurra does not have an unblemished record but it is apparent from the 2018 Decision that when performance or conduct matters have been raised with him he has responded appropriately.

[40] Whilst there is evidence to support a finding that Mr Wunungmurra has failed to follow directions the evidence does not support a finding that this is a chronic issue. The evidence does establish that Mr Wunungmurra has been difficult to manage at times and that he does have difficulty in separating his role as a clan leader in the community from his role as an employee required to follow the lawful and reasonable directions of his manager, but nothing suggests that these issues could support a finding that reinstatement was inappropriate in the circumstances. The evidence does not support a finding, as urged by EARC, that Mr Wunungmurra continuously failed to follow directions although I do accept, as set out in the 2018 Decision, that here were times when he has not followed directions. As I found in the 2018 Decision however, when issues had been raised with Mr Wunungmurra they appear to have been resolved and there has not been a repeat of the behaviour.

[41] The evidence before me does not support a finding that Mr Wunungmurra is violent or threatening in the workplace. EARC says I should accept the evidence of Ms Roper of what other night patrol officers have said to her but I must balance this against the petition tabled by Mr Wunungmurra signed by employees of EARC who say they support Mr Wunungmurra being reinstated. The petition, like the hearsay evidence given by Ms Roper cannot be tested – neither assist me in the decision I am required to make. I have, accordingly, afforded the statements of Ms Roper as to what others have said to her and the petition filed by Mr Wunungmurra little weight in my deliberations. If I was to give much weight to any of this evidence the competing claims appear to balance each other out.

[42] I note that Ms Roper’s evidence of Mr Wunungmurra being violent related to a single meeting on 14 November 2016 – 16 months prior to his dismissal and since which there has been no further reported incidents of aggression or violence. In any event it appears on the basis of the evidence of Mr Ganambarr that, to the extent there were any incidents between himself and Mr Wunungmurra, these were resolved by talking through the issues. I note that Mr Ganambarr no longer works for EARC such that any animosity or tension between him and Mr Wunungmurra in the workplace will no longer exist.

[43] The evidence of Mr Bonthuys does not support a finding that reinstatement of Mr Wunungmurra could jeopardise Commonwealth funding for the community patrol work. Mr Wunungmurra had worked on night patrol for some time without any effects on funding. There is no basis in which I could conclude it will now be an issue.

[44] The evidence before me does not support a finding that EARC has lost trust and confidence in Mr Wunungmurra such that I could find reinstatement inappropriate on those grounds.

[45] To the extent that Ms Roper had difficulties with Mr Wunungmurra (and I accept that this is the case) she no longer works for EARC. Mr Bonthuys evidence is based on what Ms Roper and Mr Waugh told him such that little weight can be placed on his evidence in this regard and Mr Waugh was not called to give direct evidence.

[46] The evidence of Mr Wunungmurra being difficult to manage does not support a finding of a loss of trust and confidence - which is much more than a mere difficulty in managing. Whilst EARC put submissions that if there had been no loss of trust and confidence in Mr Wunungmurra EARC would have re-employed him, that it has not done so prior to this hearing is not evidence, in and of itself, that supports a finding of a loss of trust and confidence. If it was that a failure to re-employ on a finding of unfair dismissal prior to any remedy order was evidence of a loss of trust and confidence then a finding of a loss of trust and confidence could be easily manufactured.

[47] I have not had regard to the evidence of Ms Roper with respect to what she says occurred at Local Authority meeting in January 2016. I find it convenient that she now says the minutes are not reliable when, in the initial hearing, she gave evidence that she had developed the habit over many years of documenting conversations in detail. Why she would exclude detail from the minutes of Local Authority meeting is inexplicable and I do not consider her evidence in this respect to be reliable.

[48] The evidence before me therefore does not support a finding that the relationship of trust and confidence between Mr Wunungmurra and EARC is irreparably damaged.

[49] I have considered the limited employment opportunities in Galawin’ku. I accept that there are a number of employers but the evidence suggests that many of the jobs with these employers are specialised or technical positions and the evidence does not support a finding that Mr Wunungmurra could undertake these roles. This of course does not excuse Mr Wunungmurra of any attempts to find employment in the time since his dismissal. Whilst I am satisfied that it is unlikely Mr Wunungmurra could undertake many of the jobs on offer (including those evidenced as being available at EARC) there would appear to be jobs he could have undertaken.

[50] Galawin’ku is a relatively small community off the coast of the Northern Territory. That Mr Wunungmurra has very strong ties to his country gives weight, in conjunction with the limited employment opportunities, to a finding that he should be reinstated.

[51] For these reasons I do not consider it inappropriate to reinstate Wunungmurra to the position he occupied prior to his dismissal. An order for Mr Wunungmurra’s reinstatement with EARC to the position he occupied prior to his dismissal will be issued with this decision (s.391(1)(a)).

[52] In reaching this decision Mr Wunungmurra should not consider that he is immune from the consequences of misconduct. He has an obligation as an employee to fulfil the requirements of his job and to comply with any lawful and reasonable directions given to him by his managers. He needs to keep in mind that he is an employee of EARC and he should conduct himself as such.

[53] I am satisfied, on the basis of my findings in the 2018 Decision, that the order I intend to issue should also order that the continuity of Mr Wunungmurra’s employment and his period of continuous service with EARC be maintained. There is no sound reason as to why this should not occur (s.391(2)(b)).

[54] Mr Wunungmurra seeks that the order I issue should also require that he be paid that amount of remuneration lost since his employment was terminated.

[55] Sections 391(3)-(4) of the FW Act states as follows:

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

[56] Whilst Mr Wunungmurra’s employment was terminated for misconduct I found that whilst the misconduct had occurred (in relation to his time recording) it did not provide a valid reason for dismissal. I did however find that his conduct was not above reproach. This is a relevant matter to consider. I have therefore taken into account that it was the misconduct of Mr Wunungmurra that caused his dismissal.

[57] I note, and I consider it relevant, that Mr Wunungmurra has, since the time of his dismissal, made no effort to seek alternative employment. Whilst I recognise that employment opportunities are limited on Galiwin’ku there is employment he could undertake but he has not sought to do so. I do not expect that he should be required to leave Galiwin’ku to find employment but there are efforts he could have made to mitigate his loss. For this reason the amount of lost pay I will order will be reduced.

[58] I have also taken into account that it is over 12 months since Mr Wunungmurra’s employment was terminated and six months since I found him to have been unfairly dismissed. The lengthy delay between my initial finding and the consideration of remedy is relevant in determining restoration of lost pay. The reasons for the delay are many and varied but Mr Wunungmurra should not shoulder the cost of all of that dealy.

[59] I have, for these reasons determined to order that EARC pay to Mr Wunungmurra an amount equivalent to five month’s pay plus the relevant amount of superannuation.

Conclusion

[60] I therefore intend to issue an order that provides that:

1. Mr Wunungmurra be reinstated to the position he occupied prior to his dismissal with EARC effective Thursday 9 May 2019;

2. Mr Wunungmurra’s continuous service and continuity of service be maintained;

3. Mr Wunungmurra be paid an amount equivalent to five month’s pay plus superannuation in restoration of lost pay. Lost pay should be calculated from five months prior to the date of reinstatement.

[61] The Applicant is directed to confer with EARC on the preparation of a draft order. Such draft is to be provided to the Commission by 4.00 pm Friday 17 May 2019.

COMMISSIONER

Appearances:

D. Yali for the Applicant.

J. Ingrames,of counsel, for the Respondent

Hearing details:

2019.

Melbourne via video link to Darwin:

April 11.

Printed by authority of the Commonwealth Government Printer

<PR707461>

 1   The Applicant is known as Ross Wunungmurra or sometimes as Ross Mandi.

 2   [2018] FWC 6808.

 3 Ibid at [45].

 4 Ibid at [46].

 5 Ibid at [47].

 6 Ibid at [53].

 7 Ibid at [54].

 8 Ibid at [56].

 9 Ibid at [57].

 10   Exhibit R9, paragraph 6.

 11   Ibid, paragraph 7.

 12   Ibid, paragraph 8.

 13   Ibid, paragraph 11.

 14   Ibid, paragraph 13.

 15   Exhibit A24.

 16   Transcript of 11 April 2019 @ PN607-PN610.

 17   Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 193 cited in Nguyen & Le v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 at [27].

 18   Nguyen & Le v Vietnamese Community in Australia T/A Vietnamese Community Ethnic School South Australian Chapter[2014] FWCFB 7198, at [27].

 19 [2014] HCA 32.

 20 (2010) 206 IR 17.

 21   [2014] FWCFB 7198.