Tharren Kickett v Ballardong Aboriginal Corporation, Mat Wilson, Kylie Tame, Caroline Neeling
[2024] FWC 3454
•11 DECEMBER 2024
[2024] FWC 3454 FAIR WORK COMMISSION
DECISION Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Tharren Kickett
vBallardong Aboriginal Corporation, Mat Wilson, Kylie Tame, Caroline Neeling
(AB2024/510)
DEPUTY PRESIDENT O’KEEFFE
PERTH, 11 DECEMBER 2024
Application for order to stop bullying – employee no longer at work – application has no reasonable prospects of success - application dismissed pursuant to s.587 of the Act.
[1] On 8 July 2024 an incomplete application for an anti-bullying order was received by the Fair Work Commission (FWC). The FWC’s registry staff deduced the identity of the applicant – being Mr Tharren Kickett - and contacted him requesting a completed application. Such application was received on 11 July 2024.
[2] On 24 July 2024 a response was received from the Ballardong Aboriginal Corporation (Ballardong). Ballardong made a jurisdictional objection to the application on the basis that it asserted Mr Kickett was no longer an employee of the Corporation as he had tendered his resignation. On 31 July 2024 the matter was allocated to Commissioner McKinnon. On 6 August 2024 the Commissioner’s Chambers issued directions to the parties for a jurisdictional hearing to be held on 22 August 2024.
[3] On 20 August 2024 Mr Kickett contacted the Commissioner’s Chambers seeking an adjournment to the hearing on the basis of his ill-health. The Commissioner’s Chambers wrote to Mr Kickett requesting medical evidence to support his request and advising that the Commissioner was of the view that the matter could be dealt with “on the papers”. On 21 August 2024 a voicemail message was left from a person identifying themselves as Mr Kickett’s support person, advising that Mr Kickett was suffering from an “extreme increase in blood pressure” and that he had recently lost a number of family members. As a consequence, Mr Kickett was requesting an adjournment. Chambers then received an email on 21 August 2024 from “ballardongconsultancy@gmail” as follows:
“As discussed, Mr Kickett has high blood pressure which is causing an impact on his physical health and is with Dr’s as I write this, Mr Kickett has lost numerous family members this past week and respectfully requests an adjournment of the hearing listed for tomorrow. Respectfully Support for Mr Kickett.”
[4] The hearing scheduled for 22 August was vacated and a mention hearing scheduled for 29 August 2024. On 23 August parties were advised by the Commissioner’s Chambers that the matter was held over pending advice from another member of the Commission who was dealing with a related matter. The matter was subsequently listed for a mention hearing on 15 October 2024. At that hearing, Ballardong raised another jurisdictional objection, being that the Corporation was not a trading corporation and thus not subject to the Fair Work Act.
[5] After this hearing it was decided that the matter should be allocated to a member in Western Australia to allow in-person listings given some issues that had been experienced using video and telephone links. On 15 October 2024 the matter was re-allocated to my Chambers. On 22 October 2024 I issued a notice of listing and directions for a hearing of the jurisdictional objections on 28 November 2024. As part of these directions, Mr Kickett was to file his submissions and evidence by 1 November 2024. No material was received from Mr Kickett by that date and so my Chambers emailed him as follows:
“Dear Parties,
Chambers notes that the Applicants submissions were due by 4:00pm (AWST) Friday 1 November 2024 as per the attached ASC Listing.
Deputy President O’Keeffe requests that the Applicant submit their submissions by no later than 12 noon tomorrow (being Wednesday 6 November 2024).”
[6] Mr Kickett responded as follows:
“To whom it may concern.
I Tharren Kickett, do not understand what your (sic) referring too (sic).
I’m not a lawyer.
I’m representing myself. ive tried to get legal advice.
I’ve tried Multiple times to get a pro bone (sic) lawyer and no luck whatsoever.I’m on centrelink ,i cant afford to gire (sic) a lawyer
.but I also do know in The Governance role, the Agreement between Ballardong Aboriginal and The trustees .You cannot use Nyoongar Fundings against a Nyoongar person in Court.
For respect (sic) for Our past and present Elders.
Please respect our culture.”
[7] To try to resolve the matter, I convened a conference with the parties on 8 November 2024. Prior to that conference, Mr Kickett emailed my Chambers on 5 November 2024 as follows:
“To whom it may concern Deputy President O’Keeffe.
The Ballardong Aboriginal Corporation will have a (sic) AGM meeting this November. And the Ballardong Members will address the issues,
regarding Misuse of Funding against a Ballardong Member (me)
And the matter against Kingston Reid.”
[8] On 6 November Mr Kickett emailed my Chambers as follows:
“To whom it may concern. Deputy President O’Keeffe.
I’ve been informed that Kylie Tame is no longer a Ballardong Employee.
And I’ve always been advised that The CEO was asked to step down by a Ballardong Director.
The Ballardong Director informed ORIC .”
[9] Later that day the following email was sent by Mr Kickett:
“To whom it may concern Deputy President O’Keeffe.
I ask for Respect in Aboriginal Culture.
PLEASE !!!
For Past and present Elders .
Non indigenous people need a understanding of our Culture.
Kingston Reid is using funding’s (sic) from the Ballardong Aboriginal Corporation.
The 1,400 Ballardong Aboriginal Members have not been informed about fundings being used against a Ballardong Member.
This is Serious Breach of the Ballardong Aboriginal Corporation (sic).
This matter will be addressed at the Ballardong AGM in November.
Furthermore, this matter needs to be highlighted that at no terms (sic) have the CEO of Ballardong.
Is (sic) following the proper process of this Matter.”
[10] A further email from Mr Kickett was received later still that day:
“To whom it may concern. Deputy President O’Keeffe.
Would like to inform, that the CEO
Has not provided approval of my payment as a Cultural Advice Committee to South West Aboriginal Sea and Land Council payroll.
The CEO of South West Aboriginal Land and Sea Council, knows the Right Process (sic) of my matter.
The CEO SWALASC knows that I Tharren Kickett is (sic) still a Cultural Advice Committee Ballardong Member.
And I’m hoping to call the SWASLC CEO in fairworks (sic) as a witness. And the 4 Directors of Ballardong Aboriginal Corporation as well as a Witnesses.
[11] On 7 November 2024 my Chambers sent the following email:
“Dear Mr Kickett,
Deputy President O’Keeffe notes your concerns about Ballardong Aboriginal Corporation’s use of Kingston Reid to represent it in your matter at Fair Work. The Deputy President has examined the rules of the Ballardong Aboriginal Corporation and can find nothing that prevents the Corporation from engaging legal counsel to represent it in matters such as this. As such, if you have a concern or belief that there is an unwritten but still observed rule about such representation it might best be raised directly with the Corporation itself.
Please be advised that the conference on Friday will not be hearing evidence from the parties but instead will be exploring the possibility of resolution of the matter.”
[12] The conference scheduled for 8 November 2024 went ahead but did not resolve the matter. The conference had to be abandoned part way through as Mr Kickett advised that he had health issues that prevented him from continuing with the discussions. Given this, my Chambers emailed Mr Kickett on 11 November 2024 as follows:
“Dear Mr Kickett,
I refer to the conference with Deputy President O’Keeffe which was adjourned due to your health. The Deputy President is seeking to understand your intentions with respect to the above application.
As things stand, the Deputy President is mindful of the following issues which would appear to bear heavily on your case:
1. The Respondent is claiming, on reasonable grounds, that the Ballardong Aboriginal Corporation is not a trading corporation and thus does not fall within the scope of the Fair Work Act.
2. It would appear that – fairly or unfairly – you no longer hold your position on the Cultural Advice Committee and that you have not attended the workplace or been paid for several months. Whether you resigned or were dismissed makes little difference in the context of your bullying application as the Commission can only deal with bullying matters for current employees.
3. There may also be some doubt as to whether your elected position on the Cultural Advice Committee would mean that you are a worker as defined in the Work Health Safety Act.
Given the above, it is clear that there may be some jurisdictional impediments to your claim progressing. As such, the Deputy President advises as follows:
1. You must advise Chambers by no later than 4.00pm Wednesday 13th November 2024 as to
a. when you think you will be healthy enough to continue dealing with your matter, and
b. if you intend to continue with your case
2. If it is your intention to continue with your case, you are put on notice that you will need to adequately address the three points above in submissions before the matter will be listed for hearing.
[13] On 12 November 2024 Mr Kickett emailed my Chambers as follows:
“To whom it may concern Deputy President O’Keeffe.
I WOULD LIKE TO LIKE TO POSTPONE MY CASE 2024/510 UNTIL I have BLOOD TESTS DONE & OTHER RESULTS DONE .
MY GP DOCTOR A VAN BALLEGOOYEN is on Leave at the Moment.
[14] On 12 November 2024 my Chambers responded as follows:
“Dear Mr Kickett,
Deputy President O’Keeffe notes your email dated 12th November in which you respond to his email of 11th November. You have asked to postpone your matter in circumstances where you – essentially - claim you are not fit to participate in the processes for resolving the claim. Despite this, you infer that you have not in fact seen your doctor who you claim is currently on leave.
Given that your state of health is such that you have apparently not sought an alternative medical provider, the Deputy President regards your situation to be such that you should be capable of providing written submissions to the Commission. As such, the Deputy President refers you to the three points he raised in his email of 11th November, which for your convenience are shown below:
1.The Respondent is claiming, on reasonable grounds, that the Ballardong Aboriginal Corporation is not a trading corporation and thus does not fall within the scope of the Fair Work Act.
2.It would appear that – fairly or unfairly – you no longer hold your position on the Cultural Advice Committee and that you have not attended the workplace or been paid for several months. Whether you resigned or were dismissed makes little difference in the context of your bullying application as the Commission can only deal with bullying matters for current employees.
3.There may also be some doubt as to whether your elected position on the Cultural Advice Committee would mean that you are a worker as defined in the Work Health Safety Act.
You are hereby directed to provide written answers to the following questions:
1.Do you accept that the Ballardong Aboriginal Corporation is a not-for-profit organisation?
2.Do you claim that the Ballardong Aboriginal Corporation falls within the jurisdiction of the Fair Work Act and if so, why is this so?
3.How is it that your elected position on the Cultural Advice Committee qualifies you as a worker for the purposes of s.789FC of the Fair Work Act?
4.Given that you have not attended the workplace in several months, have not been paid for several months and the Ballardong Aboriginal Corporation says you are no longer a member of the Cultural Advice Committee, how is it that you can be regarded at law as an employee? Please note that even if you have been unfairly / unlawfully removed from your position on the Committee you are nonetheless removed and no longer a member of the Committee.
The answers to these questions must be received in Chambers no later than 4.00pm (AWST) Friday 15th November.
You should be aware of the following:
1.If you provide answers, the Respondent will be given an opportunity to provide a written response.
2.If you do not provide answers by the required time, your application may be dismissed on the basis that it has no reasonable prospects of success.
[15] On 14 November Mr Kickett provided the following answers to my questions:
1. “Do you accept that the Ballardong Aboriginal Corporation is a not-for-profit organisation? Ballardong AC is classified as a Not-for - Profit under the ACNC though under the ILUA and the NBT and ACNC’s charity obligations Ballardong have exemption and special condition to be able to trade for commmercial (sic) operations and other means. Ballardong Primary is Charitable with the allowances from the ACNC for trading operations and commercial trading.
2. Do you claim that the Ballardong Aboriginal Corporation falls within the jurisdiction of the Fair Work Act and if so, why is this so? YES, Kingston Reid attempted to use the jurisdiction in another Fairwork (sic) procedure recently a Federal court judge has ruled that Ballardong AC does fall under the Jurisdiction
3. How is it that your elected position on the Cultural Advice Committee qualifies you as a worker for the purposes of s.789FC of the Fair Work Act? Under section 789 of the Fairwork act (sic) (attached) it states: Broadly, for the purposes of the Work Health and Safety Act 2011 , a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer. A CAC member would identify as either an employee, a contractor or subcontractor, outworker or paid volunteer. The BAC Rulebook read in conjunction with the Cultural Advice Policy and the employee contract states clearly that the CAC member can be paid either by way of direct deposit into the bank account or by invoicing the corporation as a contractor.
4. Given that you have not attended the workplace in several months, have not been paid for several months and the Ballardong Aboriginal Corporation says you are no longer a member of the Cultural Advice Committee, how is it that you can be regarded at law as an employee? Please note that even if you have been unfairly / unlawfully removed from your position on the Committee you are nonetheless removed and no longer a member of the Committee. The Ballardong Rule book with the Cultural Advice policy clearly outlines the process to remove a member of the CAC (see below), Ballardong Aboriginal Corporation held NO General meetings in 2023 or 2024 to follow the legal process of removing a CAC member regardless whether stating lawfully or unfairly. I attempted to attend and offered to attend via video conference and was refused (another form of bullying by the CEO). The extensive BULLYING/ HARRASSMENT & COERSION (sic) is VIOLENCE which currently has been identified by the state and National Government as Domestic violence and Violence against Aboriginal people. I attended a meeting for Ballardong as recent as 19th of October 2024 the BAC AGM with the permission of the Magistrate from Northam who has allowed me to attend all future meetings, previously I had to wait for the legal permission. I would have attended all other meetings if the BAC CEO wasn’t performing COERSION (sic) on elders, and making up meetings that did not happen where he then went to a magistrates court to take out a misconduct order for himself preventing me from attending the meetings. Noting also that the BAC CAC Chairperson Des Blurton on the 31st of January announced that the BAC CEO was not to attend the CAC meetings other than to present his CEO report due to his inappropriate and culturally disrespectful manner. I have alot (sic) of evidence in writing from the BAC CEO to me and to others proving that he has been acting coercively and bullying me out of the role. I have lost income, respect in my community, and my respectful standing position because of his lies and the bullying and harassment from him as the CEO, Kylie Tame (who is no longer an employee at BAC - Began her new position at DBCA 2 weeks ago) and Caroline Neeling. These people have bullied me because of my medical condition with my hearing and labeled (sic) me because of their lack of understanding and respectful ways of working with Aboriginal people, by way of taking Mathew Wilson through the court for a Misconduct order I was in fear of going to Jail if I did attend the meetings because he would send out an email from board pro I received by email, saying the meetings were going ahead, I respected the courts and did not attend. It even came out at the AGM that Mathew Wilson made contact with other members to get me to attend Kellerberrin where he would be, I chose not to attend because I felt further unsafe. These are not accusations and can be justified. I do not believe in my lens (sic) and other members that I am not a CAC member I have not resigned and provided any written resignation, only been placed on hold while the legal process had to happen. SWALSC and the CAC CAP evidence that the BAC CEO and Directors do not have the legal right to make the decision to remove a CAC member. Only by resolution at a General meeting of the members. I also want to add that I was an approved member of the Ballardong AC on the 23rd of August 2023 I received a letter welcoming me and my Member number, on the new updated member list (can only be updated by the CEO Mathew Wilson) on the 2nd of November 2024 my name has been removed - this is an illegal action under federal legislation of the CATSI act. NOTED: I have not chosen to not attend, I have been forcibly coerced into a situation where the CEO did not want me to be able to prove what he is doing and he then took this to a magistrates court. I have been following my legal obligations; The Fairwork (sic) Commission need to support by undertaking their due diligence. As I applied for this when i was still being paid by BAC. The CEO is ursurping (sic) his rights and responsibilities and breaching the BAC rulebook, Cultural Advice policy, employment law, Workplace health and safety and the whistle blower policy amongst others laws. Section 12 of the Ballardong Cultural Advice Policy page 25 (where the BAC rulebook states to follow the process) - Cessation of a member (Cultural Advice Committee member)
Reads the following:
(a) A member can resign from the commitee (sic) by giving WRITTEN notice to the corporation (This did not happen regardless that the CEO has put in writing to many persons including ORIC)
(b) The corporation, by resolution at a General Meeting, may terminate a Cultural Advice Committee member’s tenure if the corporation ressolves (sic) that the member:(i) can no longer fulfil the objects of the committee;
(ii) is no longer eligle (sic) as a member; or
(iii) has otherwise not met the high standards required of the Cultural Advice CommitteeBALLARDONG HAVE NOT HELD ANY GENERAL MEETINGS TO PASS ANY RESOLUTIONS.
PLEASE NOTE ANY EMAIL ADDRESSES INCLUDING MY OWN COULD YOU PLEASE REMOVE BEFORE SENDING ONTO THE RESPONDENT, I DON’T FEEL SAFE AND NEITHER DOES MY FAMILY. THE TRAUMA HAS BEEN PROLONGED BY THE ABUSE OF THE CEO AND I NEED TO BE PROTECTED”.
[16] On 20 November 2024 my Chambers received the following email from Ballardong’s representatives:
“Dear Associate
AB2024/510 – Application by Kickett
We refer to the Directions issued by the Deputy President on 12 November 2024 (below) and confirm that we have not received any written material that was due to be filed by the applicant on 15 November 2024.
We would be grateful for confirmation as to whether the Commission has received any written material from the Applicant and if we could be provided with a copy.
Alternatively, if no written material has been received, we respectfully apply for the Application to be dismissed pursuant to section 587 of the Fair Work Act 2009 (Cth) (FW Act) on the following grounds:
1.The applicant has not taken steps to prosecute the matter or to comply with directions issued by the Commission
a.The applicant was directed to file written submissions and witness statements by Friday 1 November (per directions of the Deputy President dated 25 October 2024.
The applicant sent some documents to the Commission which we understand, were purported to assist the applicant’s case, however, no written submissions or witness statements were filed.
b.The applicant was directed to provide written answers to four questions asked by the Deputy President by Friday 15 November 2024 (per directions of the Deputy President dated 12 November 2024).
The applicant has not complied with the Commission’s directions.
Failure to comply with directions and to prosecute a claim enlivens the Commission’s general discretion to dismiss applications pursuant to section 587 of the FW Act (see Yatmaz v BSA Limited & Ors [2016] FWC 5944 and Chand v State Rail Authority of NSW [2006] AIRC 848, [48] by way of example)
c.The applicant has filed no material that demonstrates:
i.he remains a worker of Ballardong Aboriginal Corporation;
ii.he was bullied by any of the named individual respondents; or
iii.there is a risk he will continue to be bullied by the named individuals.
2.The application has no reasonable prospects of success.
a.In the absence of any evidence to support his claim, the applicant’s case has no reasonable prospects of success and demonstrates a clear unwillingness to participate in the proceedings commenced at his initiative (see Kora v Cardno Staff Pty Ltd T/A Cardno [2015] FWC 4699, [10]-[14] by way of example).
b.The applicant’s failure to prosecute his application or to provide evidence to support it demonstrates the application is untenable and groundless. The application has no reasonable prospects on that basis.
For the above reasons, we say the Commission has sufficient grounds to exercise its discretion to dismiss the matter pursuant to section 587 of the FW Act. That dismissal may be made specifically under subsection 587(c) (for having no reasonable prospects of success), or under section 587 generally (for the applicant’s general failure to prosecute and participate in the proceedings); as section 587 is a non-exhaustive provision.
The respondents are prepared to make further submissions and/or provide further evidence in support of their application pursuant to section 587 should the Commission require them.
The applicant is copied to this email.”
[17] On 21 November 2024 my Chambers provided a copy of Mr Kickett’s responses to my questions to Ballardong’s representatives. On 22 November 2024 my Chambers received the following email from those representatives:
“Dear Associate
AB2024/510 – Application by Kickett
Thank you for providing us with a copy of the applicant’s correspondence to chambers.
The respondents withdraw their application for the matter to be dismissed pursuant to section 587. However, the respondents do not concede that the applicant complied at any time with the directions issued by the Commission on 25 October 2024.
The respondents maintain their jurisdictional objection to the application on the basis that the Ballardong Aboriginal Corporation is not a constitutionally covered entity and that the applicant is no longer a worker.
Given the nature of the applicant’s correspondence and the statements made therein, to ensure efficiency, the respondents respectfully propose for directions to be made for the filing of evidence and submissions by the respondents by Friday 29 November in relation to the respondents’ jurisdictional objections only. Following which, the applicant may be granted a right of reply.
The applicant’s last known email address is copied to this email. However, noting the applicant’s comments, we request that you forward on this email if the applicant has updated his contact information.”
[18] As I had concerns regarding Mr Kickett’s assertions regarding Ballardong’s pleas in the Federal Circuit and Family Court on 22 November 2024 my Chambers sent the following email to Ballardong’s representatives:
“Dear Mr Burton,
Deputy President O’Keeffe notes that the Respondent in the above matter continues to press the jurisdictional objection of not being a constitutionally covered entity. The Deputy President also notes the Order of Judge Street of the Federal Circuit and Family Court (as attached) wherein the Court finds that it has jurisdiction to deal with a Fair Work Act s.365 matter involving Ballardong Aboriginal Corporation – albeit that it appears that an incorrect reference to s.155 of the Fair Work Act is used to establish jurisdiction.
The Deputy President is seeking clarification of why the Respondent appears to have conceded that it falls within the jurisdiction of the Fair Work Act in that matter but seeks to deny it is bound by the same jurisdiction in Mr Kickett’s matter. Can you please provide a written explanation to Chambers by no later than 4.00pm (AWST) Wednesday 27th November 2024.”
[19] On 26 November 2024 the following response was received:
“Dear Associate
AB2024/510 – Application by Kickett
Thank you for your email.
Ballardong Aboriginal Corporation has not made any concessions in respect of jurisdiction on the issue of being a constitutionally covered business or entity. It does not dispute that it was the employer of the Applicant in that proceeding in the normal meaning of that term. It does not concede however, that it was a National System Employer for the purpose of that application.
At the directions hearing, Street J advised that an application on the constitutional corporation issue could be made and that is a matter of separate instructions.
To avoid doubt, there have been no submissions or evidence filed on the issue in that proceeding to date and no ruling has been made on the issue. We anticipate that process would occur in respect of the anticipated application.
Separately, would chambers please confirm that the hearing listed for Thursday 28 November 2024 at 10am is no longer proceeding having regard the way the matter has progressed?”
[20] On 26 November 2024 my Chambers sent the following email to parties:
“Dear Parties,
Deputy President O’Keeffe thanks Mr Burton for clarifying the position with respect to the status of Ballardong Aboriginal Corporation for the purposes of the matter currently before Judge Street in the Federal Circuit and Family Court.
On the basis of that information, the Deputy President confirms the following directions:
1.The hearing scheduled for 28th November 2024 is cancelled.
2.The Respondent’s submissions on jurisdiction are due 2nd December 2024.
3.The Applicant’s submissions on jurisdiction are due 9th December 2024.
4.The Respondent’s reply submissions are due 16th December 2024.
5.The matter will be heard on 20th December 2024 commencing at 10am.
A notice of listing outlining the above will be sent to parties shortly.”
[21] On 26 November 2024 Mr Kickett emailed Chambers seeking what I assumed to be an extension of time for his submissions, citing health issues. The request was accompanied by a medical certificate and a further request that neither Ballardong nor its representatives be made aware of the nature of the health issues. On 27 November 2024 I instructed my Chambers to send an email to Mr Kickett only as follows:
“Dear Mr Kickett,
The Deputy President is unsure about the nature of your request for more time and requires further information before making a decision. Are you seeking an extension of time to make your submissions which are due on 9th December and, if so:
1.Why do you need an extension – putting together written submissions would not appear to require any physical exertion and there is nothing in your medical certificate that suggests you would be incapable of performing such a task?
2.How much additional time are you seeking?
Please provide responses to those questions by no later than 4.00pm (AWST) Thursday 28th November.”
[22] No response was received by the required date. On 2 November 2024 – as per directions - Ballardong filed its submissions and evidence addressing its two jurisdictional objections. On 3 November 2024 I caused a further email to be sent to Mr Kickett as follows:
“Dear Mr Kickett,
Deputy President O’Keeffe notes that you have not responded to his request for further information regarding your request for an extension, which was due on 28 November 2024.
The Deputy President also notes the submissions and evidence of the Respondent, submitted on 2 December 2024. From that evidence, it would appear that a
compelling argument has been made that the Ballardong Aboriginal Corporation (BAC) is a not a trading corporation and thus does not fall within the coverage of the Fair Work Act. As you would be aware, in the matter that is progressing in the Federal Court (Rebecca Sariago v Ballardong) the BAC has not yet made this jurisdictional objection.Given your failure to respond to the Deputy President’s request, you are formally advised that no extension will be provided. As such, your submissions are due on 9 December 2024.”
[23] On 9 December 2024 the following email was received from Mr Kickett:
“Response
To whom this may concern
I advise you that I have enlisted the support of family to assist with constructing this response.
The recent advise (sic) from the commissioners (sic) office is disrespectful and condescending, I am one man standing up for my rights and the rights of other Aboriginal people. considering I provided medical certificates in late November noting the impact that the ongoing situation has had on me affecting my health which ultimately also impacts my physical health. Which is what Ballardong Aboriginal Corporation are wanting so that I give up and walk away. Too often this happens toAboriginal people, corporations and our people are left continuing to fight rather than grow and be sustainable. To support this is aiding and abetting, the outcasting (sic) and stripping of identity that the BAC CEO is attempting. Which we see often where Aboriginal people still have the highest suicide rates in the world.
I note that I provided the necessary medical certificates requesting an extension to provide the responses so that I can deal with my health, and be able to stand up for what happens all too often to our people keeping us below the poverty line and without a voice as evidenced on the 13th of October 2023.
The recent response from your associate demonstrates that the Fairwork (sic) commission lacks cultural education (awareness and connection) and human empathy.
Culturally as Aboriginal and First Nations people when our spirit is impacted and causes health issues such as what I provided in my medical certificates this impacts our physicality and also impacts our family. I have had to enlist the support of family and friends to support me to construct this response, they have assessed the documents and other communication between the parties. I do not have the means to pay lawyers as Mathew Wilson is by using Ballardong AC funds.
It is noted that the associate of the fairwork (sic) commission advises that my physical is not impacted therefore I can respond.
This has placed further pressure on my health and mental health, I maintain though that I will stand up to BAC and their bullying and corporate fraud. Please see the following.
I refer to the following:
Mathew Wilson is hiring a legal firm, Kingston Reid lawyers using Ballardong Aboriginal funding to pay them to respond to the fairwork (sic) commission on his behalf, and on behalf of Kylie Tame (who is no longer an employee of BAC) and Caroline Neeling all non Indigenous people. This is another clear case of inappropriate use of funds using Aboriginal money against Aboriginal people.
I refer to the recent case of Geoff Clark (ATSIC) who was recently found guilty for using Funds for legal costs and is serving a 6yr prison sentence.
It is noted that Mathew Wilson has made a signed statement. Mathew Wilson is NOT a credible witness, currently ORIC are investigating him for fraudulent activity uploading misleading information such as his own membership to Ballardong AC in February 2024 when he was not tabled to the board then approved a member until after March 2024. It has also been proven to ORIC he usurped his role removing members illegally against the CATSI act.
It has also been identified that he made statements to the court in writing that certain cultural elders attended meetings with him, they have just found out, because they did not attend and this will now be raised with the court system as he has committed purgery (sic) and falsified statements that are signed off by Kingston Reid lawyers.Mathew Wilson also has not provided financial statements for the Ballardong Aboriginal Corporation for 2 years in a row.
I refer to the case of the Carnarvon CEO who was fined and is looking to serve a term for illegally breaching the requirements.
At present I am extremely unwell, given that the actions of Mr Wilson impacted my employment, my financial situation, made up false allegations against me in my community, my commitments to my cultural obligations and to the families’ of Ballardong country.
I formally request on the grounds that I have already provided medical certificates including a discharge summary. And that I now am attending further appointments to address my high blood pressure caused from this. I request that the commissioner supports me while I restore my health so that I can address these matters with a clear head and good health.
I understand many people have said why don’t you walk away. Would you walk away when people keep getting in these positions and abusing Aboriginal funds and corporations setup to change the trajectory for Aboriginal people and our inclusion in society?
I refer to the CEO of a Yamitji corporation who is also sitting in a prison at the moment. Too many people take on these roles without doing what is right for Aboriginal people.
Please allow me the time to address my health and then meet to have a conciliation with a support person.
Given that there are currently 5 fairwork (sic) claims against Mr Wilson. I wish to fulfill my obligations with good health.
And to not allow me to do so is allowing the continuation of historical acts of dishonesty and misuse of Aboriginal resources.”
[24] I note that no medical evidence – of either physical or mental health issues that would prevent Mr Kickett from drafting submissions - was included with this email. I note further that Mr Kickett has been capable of sending lengthy and detailed emails throughout the period where he has asserted that his health means that he cannot participate in the FWC’s required processes.
Consideration
[25] I have considered the submissions and evidence provided by Ballardong. It appears to me that a strong prima facie case has been made that Ballardong is not a trading corporation, as the most recent audited financial report shows that 92.6% of its income comes through grants from a trust and it is doubtful that any significant portion of the remaining income could be said to derived from trading activities. Given this, it is probable that Ballardong’s jurisdictional objection of not being a constitutionally covered business would succeed at hearing.
[26] However, notwithstanding this, it is difficult to see how Mr Kickett could possibly overcome the second of the jurisdictional objections to the making of a stop-bullying order, being his status as a person no longer working at Ballardong. Mr Kickett does not dispute that he has not performed his role on the Cultural Advice Committee since June of this year, nor that he has not been paid since that time. However, he maintains – contrary to the position of Ballardong – that he did not resign his position, nor was he removed using the correct processes.
[27] Even if his position was to be accepted, it still remains the fact that he is not at work, and there is no evidence before the FWC to suggest that he will return at any time in the future. I note that Mr Kickett seems to be operating on the assumption that he will be restored to his position, albeit that his assertions in that regard have proven to be unfounded. Two examples will illustrate the point. In the mention hearing on 15 October 2024, Mr Kickett suggested that at the Annual General Meeting (AGM) of Ballardong, the CEO would be voted out and he would be restored. I note his comments as follows:
“MR KICKETT: Well, Saturday, okay, we got a AGM meeting on Saturday in Northam. The people, the Ballardong people, do know what’s going on in the Ballardong Corporation. They want to vote the CEO off. They want – they want to step him down, and same as the new directors who came onboard. They want to stand him down for what he been doing. He’s been doing his own stuff without the consent of the other two directors”.[1]
“Like I said, Commissioner, the only people who can take me off as a CAC member – and they selected me for that for three years – the only people who can take me off in the governance way in (indistinct) are the (indistinct) themselves, the Ballardong people. They’re the only people who can take me off. And the other day, they said:
You’re still an employee. So when you come on Saturday, so when you come to that meeting, we’re going to stand behind you and support you and tell this person what he did was wrong. The only people who stand you down, Tharren, are the people who voted you on for those three years.”[2]
[28] There is no evidence that any of Mr Kickett’s suggestions about what would happen at that meeting, which was held on 19 October 2024 proved to be correct. Notwithstanding this, Mr Kickett persisted with the suggestions that his issues would be addressed in an email to my Chambers dated 5 November 2024, wherein he stated as follows:
“To whom it may concern Deputy President O’Keeffe.
The Ballardong Aboriginal Corporation will have a (sic) AGM meeting this November. And the Ballardong Members will address the issues,
regarding Misuse of Funding against a Ballardong Member (me)
And the matter against Kingston Reid.”
[29] I have examined the website of Ballardong and it is clear that the 2024 AGM was held on 19 October 2024. There is no suggestion of a second AGM in November – noting that there would logically only be one annual general meeting per year - or indeed any special meeting in November or at any time to come. I also note that Mr Kickett has not provided any evidence of such. Given this, if Mr Kickett is relying on a meeting of sufficient authority to reinstate him it appears that such meeting has yet to be contemplated or notified.
[30] Given all of this, it is very difficult to see how Mr Kickett can sustain an argument that there is a risk that he will continue to be bullied at work, where such risk is a pre-requisite to the FWC making a stop bullying order. In his decision in Shaw v ANZ Banking Group Ltd Deputy President Gostencnik observed as follows:
“It is clear that Mr Shaw is no longer employed by ANZ. The employment relationship has ended. That Mr Shaw is taking steps to seek a remedy in relation to his dismissal and that that may result in reinstatement at some point in the future does not have a bearing on the question that I must answer and is speculative and uncertain. It seems to me clear that there cannot be a risk that Mr Shaw will continue to be bullied at work by an individual or group of individuals identified in his application because Mr Shaw is no longer employed by ANZ and therefore is no longer at work.”[3]
[31] In the present matter, Mr Kickett is clearly no longer at work, nor is there any evidence to suggest that he will be returning to the workplace. It may be that Mr Kickett tries to challenge his current status with Ballardong and seeks a remedy that effectively reinstates or returns or otherwise restores him to his position. However, an anti-bullying application cannot provide that outcome. If it is the case that at a point in time Mr Kickett does return to the workplace, then he will be at liberty to make a further anti-bullying application. However, this current application should not be allowed to proceed.
Conclusion
[32] Even if Mr Kickett could overcome the jurisdictional objection that Ballardong is not a constitutionally covered business – which is doubtful – I cannot see how he can overcome the objection that he is no longer at work and as such cannot be bullied at work. Given this, I am satisfied that his application has no reasonable prospects of success and should be dismissed at the FWC’s own initiative. An order to that effect will issue.
DEPUTY PRESIDENT
[1] See Transcript at PN48
[2] See Transcript at PN70-71
[3] Shaw v ANZ Banking Group Ltd [2014] FWC 3408 at [16]
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