Sharon Morunga v Anyinginyi Health Aboriginal Corporation

[2014] FWC 997

[2014] FWC 997

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sharon Morunga
v
Anyinginyi Health Aboriginal Corporation
(U2013/13448)

VICE PRESIDENT LAWLER SYDNEY, 11 FEBRUARY 2014

Application for relief from unfair dismissal – decision on the facts.

[1] The Applicant, Ms Sharon Morunga, was employed by the Anyinginyi Health Aboriginal Corporation (Corporation) as a health professional. Ms Morunga is a woman of Maori heritage.

[2] The Applicant attended a quadrennial conference conducted by International Council of Nurses (ICN) in Melbourne in May 2013 and presented a paper entitled “I am not a racist but...”. The ICN Congress is the largest professional meeting for nurses in the world.

[3] Prior to attending and presenting her paper, the Applicant had a discussion with her manager, Ms Cathy Malla, and advised what she was proposing to attend the ICN Congress and present the paper. She provided a copy of the abstract of her paper. Ms Malla gave an account of that discussion in an explanatory email to the General Manager of the Corporation, Mr Trevor Sanders. That email states:

“Hi Trevor

As per our phone conversation this afternoon, here is the summary of the history of Sharon Morunga’s conference presentation:

*Sharon mentioned to me that she would like to present at the International nurses conference. I said OK, show me your abstract.

* She showed me the abstract only after she had submitted it. It was entitled “I’m not racist but ... “

* I expressed my concern about the abstract and said that AHAC could not support her presenting it, as it was purely her opinion and not based on any empirical evidence, research, etc.

*I said that if anyone was going to present on racism in the community, it should come from an Aboriginal person, or at least in partnership with an Aboriginal person.

*I mentioned that the previous GM had been walked off the premises for allegedly speaking inappropriately to media, so that the consequences of such actions could be serious.

*I said that she must not present it as an AHAC employee and not mention the Barkly Region or AHAC.

*When she said that the abstract was accepted, I said that was because the title was so provocative.

*I subsequently flatly refused Sharon permission to deliver the same presentation at the Anyinginyi Chronic Disease Workshop day (organised by Claire Davies)

* At no time did I see or want to see the content of the presentation, nor did I encourage it at any point.”

[4] The Applicant attended the ICN Congress as an “independent”. That is, she took approved leave to cover her absence from work and paid the costs associated with her attendance herself. She complied with Ms Malla’s requirements. In her presentation she did not identify herself as an employee of the Corporation. She did not refer to the Corporation or to the Barkly region. She received a standing ovation at the conclusion of her presentation.

[5] A journalist and co-editor of a professional journal, Kai Tiaki Nursing New Zealand, wrote an article on the Applicant’s presentation that was published in the June 2013 edition of that journal. The article, entitled “Confronting the Barrier of Racism”, has the following as its second and third paragraphs:

“In a presentation entitled “I’m not a racist but...” Morunga questioned why the most vulnerable, impoverished people in Australia were subjected to such racism, but all members of the white community, including health workers, doctors, police and teachers.”

[6] The article, and those comments, received publicity that caused offence to Mr Sanders and others at the Corporation. He spoke to the Applicant. The Applicant protested that she did not make the statement that the journalist had attributed to her. Mr Sanders stated that the journalist’s comments had brought Anyinginyi’s name into disrepute and that she, the Applicant, had dragged Anyinginyi’s and the community’s name through the mud” and dismissed the Applicant on 3 September 2013.

[7] The journalist provided a witness statement in which she said:

“...The second paragraph, which is not a direct quote, was my summary of what I understood to be what Sharon said at the conference. By the phrase “all members of the white community”, I meant and understood Sharon to mean, “members from all groups of the white community”, rather than literally as every single member of the white community.

I was not able to run my article past Sharon before publication...

Speaking to Sharon in early November 2013, after the termination of her employment, it became clear she would have asked me to change some of the content of the article if I had spoken to her before publication, which I would have done willingly. These changes would have been to clarify that the article combined both her presentation plus comments made to me later, and a rephrasing of the sentence that included the words “by all members of the white community” to make it clearer she was referring to all groups within the [white] community rather than every single person. ...”

[8] She attached a letter to Mr Sanders written after the dismissal. That letter included the following:

“I also fully understood that Sharon was speaking at the conference as an individual, not as an employee. This was a professional nursing conference and I believe all those who spoke had the right to do so in their individual professional capacities.

The conference was the quadrennial congress of the International Council of Nurses (ICN). I believe the ICN would be deeply disturbed that a health professional speaking about a significant health issue, ie racism, at its conference, was dismissed for doing so. Sharon was speaking in her capacity as a health professional to an audience of health professionals about a significant health issue. That is her inalienable right.

I find it disturbing that Sharon’s right to speak about the reality of racism in Australia has resulted in her dismissal. Australia’s Human Rights Commission is currently running a campaign called “Racism: it stops with me”, a title that is not unlike Sharon’s “I’m not a racist, but”. Facts on the Human Rights website include such statements as: “More than 1 in 20 Australians say they have been physically attacked because of their race. On a structural level, racism serves to perpetuate inequalities in access to power, resources and opportunities across racial and ethnic groups. The belief that a particular race or ethnicity is inferior or superior to others is sometimes used to justify such inequalities. It’s worth noting that while racism can take many forms, ‘race-hate talk’ such as verbal abuse, racial slurs or name-calling appears to be the most common - with one in five Australians saying they have experienced one of these forms of racism.”

...

As the co-editor of a professional magazine, I am deeply concerned about the right to freedom of speech, the right of health professionals to speak openly about significant health issues in professional forums and journalists’ rights to report such concerns.”

[9] The journalist’s witness statement was tendered without objection and Mr Sanders, who was representing the Corporation, did not wish to ask her any questions. In those circumstances, I accept the journalist’s evidence without qualification.

[10] The Corporation has a Media Policy. That very short documents states:

“MEDIA POLICY

It is the responsibility of all AHAC staff to ensure that no unauthorised media contact is conducted. All requests for media releases are referred to the General Manager or Business Services Manager for authorisation prior to release. Depending on the nature of the material under discussion for media release the General Manager will at his or her discretion approve the media release (or interview) or may refer the request to the Board for approval.

It is AHAC policy to allow for effective and collaborative processes for flexible response to media releases including advertising, promotional media and journalism through the media of print, radio, television or multimedia. However, all such responses must be approved by the General Manager, who will decide if an operational response is appropriate, of if the matter needs to be referred to the Board for consideration.”

[11] The letter of dismissal is based on the statement erroneously attributed to the Applicant. At the hearing Mr Sanders placed particular reliance on the following matters:

(i) Racism is a sensitive issue for the Anyinginyi community and the Applicant was aware of this. The Applicant did not dispute that proposition.

(ii) The Applicant was instructed by Ms Malla not to give the presentation.

I reject that contention. It is inconsistent with the evidence of Ms Malla and inconsistent with Ms Malla’s email. The Applicant was given approved leave to attend the conference and present her paper. The only constraints imposed by Ms Malla were those referred to above and the Applicant observed those constraints.

(iii) On two prior occasions employees of the Corporation had spoken at conferences and on each occasion board approval had been required before those presentations had been given. Mr Sanders contended that the Applicant would have been aware of this.

I accept the Applicant’s evidence that she had no knowledge of those matters. In any event, it appears that on those two prior occasions the presenters attended as identified employees of the Corporation, who attended on work time and at the expense of the Corporation. In this case the Applicant attended the ICN Congress in her private capacity, took leave to which was entitled and paid the associated costs herself.

(iv) The Applicant breached the Corporation’s Media Policy. Mr Sanders stated that the Applicant was aware of the Media Policy because it was a standard part of staff induction.

I accept the Applicant’s evidence that she was unaware of the media policy or its terms. In any event, I am satisfied that the Applicant’s discussion with the journalist following her presentation at the ICN Congress occurred in her private capacity and not as an employee of, or on behalf of, the Corporation.

[12] I am required to have regard to each of the matters in s.387.

Section 387(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)

[13] In light of the findings set out above, I find that that there was no valid reason for the dismissal of the Applicant.

Section 387(b) - whether the person was notified of that reason

[14] Having found that there was no valid reason it is strictly unnecessary to make a finding under s. 387(b). Nevertheless, I note that the Applicant was not notified of breach of the media policy at the prior to her dismissal.

Section 387(c) - whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[15] The applicant was not given an opportunity to respond to breach of policy as a reason for her dismissal. At the time of her dismissal she was given an opportunity to responds to the allegation that she had dragged Anyinginyi and the community “through the mud”. However, her truthful and proper explanation was ignored by Mr Sanders.

Section 387(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

[16] There was no evidence of any such refusal.

Section 387(e) - if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[17] The dismissal did not relate to unsatisfactory performance.

Section 387(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 s.387(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

[18] The relatively small size of the Corporation and the apparent absence of dedicated human resource management specialists or expertise undoubtedly had an impact on the procedures followed in effecting the dismissal.

Section 387(h) - any other matters that FWA considers relevant.

[19] I have taken into account each of the matters relied upon by the Applicant and the Respondent.

Harsh, unjust or unreasonable

[20] The treatment of the Applicant was manifestly unjust. Indeed, this is one of the clearest cases I have ever dealt with. The Applicant did not proceed with her presentation without first confirming with her supervisor, Ms Malla, that it was acceptable to do so. Ms Malla did not forbid the Applicant from giving the presentation. She specified only that the Applicant not identify herself as an employee of the Corporation or refer to the Barkly region. The Applicant observed those restrictions. The Applicant said nothing that could be construed as racist as against the indigenous community at Anyinginyi. Mr Sanders’ treatment of the Applicant was ignorant and highhanded. It is simply extraordinary that he did not accept the Applicant’s truthful and reasonable explanation. The Applicant had done nothing wrong. On the contrary, she was engaged in a laudable activity in presenting her paper to the ICN Congress. I find that the Applicant’s dismissal was harsh, unjust and unreasonable.

Remedy

[21] The Applicant did not seek reinstatement.

[22] In determining whether there should be an award of compensation in lieu of reinstatement under s.392(1) of the FW Act, and if so, the proper amount of compensation I required to consider the matters specified in s.392(2) of the FW Act:

Section 392(2)(a) - the effect of the order on the viability of the employer’s enterprise

[23] There was no evidence or suggestion that an award of compensation would affect the financial viability of the Corporation’s enterprise.

Section 392(2)(b) - the length of the person’s service with the employer

[24] The Applicant was in the second year of a two year contract. It seems that the Applicant was well liked, committed and competent. I consider it more likely than not that the Applicant’s contract would have been renewed but for circumstances giving rise to the dismissal. In any event, I am satisfied that, had the Applicant not been unfairly dismissed, she would have remained in her job at the Corporation at least until 9 December 2013 and that she would not have taken any further leave in the period to 9 December 2013.

Section 392(2)(c) - the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

[25] If the Applicant had not been dismissed she would have continued receiving her usual remuneration based on her contract rate of $87,000 per year.

Section 392(2)(d) - the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[26] I accept the Applicant’s unchallenged evidence that she made every effort to find another job as soon as possible. She secured a job in Geraldton and commenced on 9 December 2013. The Applicant’s new job has a higher salary than her job with the Respondent.

Section 392(2)(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

[27] The Applicant has earned remuneration from 9 December 2013 at a rate in excess of her remuneration rate at the Corporation and will continue to do so for the intermediate future.

Section 392(2)(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

[28] This amount does not affect the outcome because the period in which compensable loss was suffered by the Applicant does not extend beyond 9 December 2013.

Section 392(2)(g) - any other matter that FWC considers relevant

[29] I have considered all of the matters put on behalf of the Respondent but do not consider that any of those matters weigh materially in favour of a finding for the Respondent.

[30] Section 392(3) has no operation because I hold the Applicant blameless. Indeed, she is a person to be admired as a highly committed health professional whose actions were motivated by a genuine desire to contribute to better health outcomes through a better recognition of the role racism plays in the delivery of health in remote communities.

[31] The Applicant suffered understandable stress and hurt as a result of the way she was treated. However, I am not permitted by the Fair Work Act 2009 (Cth) from awarding compensation in relation to such matters.

[32] In the exercise of my discretion, I determine that the proper measure of compensation due to the Applicant in all the circumstances of this case is the value of the remuneration she would have earned if she has remained employed by the Corporation from the date of dismissal until the date she commenced her new job in Geraldton, a period of 91 days. The applicant’s annual salary at the time of her dismissal was $87,000 pa.

[33] The Applicant’s relevant loss is as follows:

● Lost salary 91/365 x $87,000 = $21,690.41.

● Lost superannuation contributions 91/365 x (87,000 x 9%) = $1,952.14

● Lost annual leave accrual 91/365 x ((87,000 x 7/365) x 4 weeks)) = $1,663.92

Giving a total of $25,306.47.

[34] I will order that the Corporation pay compensation to the Applicant in lieu of reinstatement in the sum of $25,306.47 within 21 days of this order.

VICE PRESIDENT

Appearances:

Mr. A. McCarthy and Ms. A. Phillips (Australian Nursing and Midwifery Federation) for the Applicant

Mr. T. Sanders (Anyinginyi Health Aboriginal Corporation) for the Respondent

Hearing details:

2014,

Darwin:

6 February (via teleconference).

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