[2018] FWCFB 7394
This document has been amended to correct a typographical error in the identifying code.
Associate to Vice President Hatcher
Dated 3 January 2019
1
Fair Work Act 2009
s.604 - Appeal of decisions
Andrew Roos; Loretta Roos
v
Winnaa Pty Ltd
(C2018/5529; C2018/5531)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT BINET
COMMISSIONER MCKENNA
SYDNEY, 21 DECEMBER 2018
Appeal against decision [2018] FWC 5692 of Commissioner Simpson at Brisbane on 12
September 2018 in matter number C2017/300.
Introduction and background
[1] Andrew Roos and Loretta Roos have each lodged a notice of appeal, for which
permission to appeal is required, against a decision of Commissioner Simpson issued on 12
September 2018 (compensation decision).1 The circumstances which led to the making of the
compensation decision require description at the outset. Mr Roos and Ms Roos, together with
Ms Bree Dargan, were formerly employed by the respondent to the appeal, Winnaa Pty Ltd
(Winnaa), as casual cultural heritage field officers. They commenced their employment with a
different but related corporate entity in November 2015, and Winnaa became their employer
on 22 February 2016. Winnaa is one of a number of corporate vehicles used by Barada Barna
Aboriginal Corporation RNTBC (BBAC) in the conduct of its affairs. BBAC is a registered
indigenous corporation which holds native title on trust for the Barada Barna people in respect
of lands located in central Queensland. These lands were the subject of a determination of
native title in favour of the Barada Barna people made by the Federal Court on 29 June 2016.2
[2] A dispute arose as to whether Mr Roos and Ms Roos (who is Mr Roos’ mother) and
Ms Dargan were blood descendants of an apical ancestor of the Barada Barna People such as
to entitle them to be members of BBAC and to be employed as cultural heritage field officers.
The heart of the controversy was whether Kitchener Brown, from whom Mr Roos, Ms Roos,
Ms Dargan and a number of other members of BBAC were descended, had been a Barada
Barna aboriginal. On 11 August 2016 the board of BBAC determined to suspend from
membership all those who claimed descent from Kitchener Brown, and to dismiss from their
employment with Winnaa Mr and Ms Roos and Ms Dargan. The dismissals appear to have
taken effect the following day. The reason given for the dismissals, when communicated by
1 [2018] FWC 5692
2 Budby on behalf of the Barada Barna People v State of Queensland (No 7) [2016] FCA 1271
[2018] FWCFB 7394
DECISION
[2018] FWCFB 7394
2
BBAC to Mr Roos, Ms Roos and Ms Dargan was “shortage of work”. Subsequently, on 29
April 2017 a general meeting of BBAC determined that all members of the Kitchener Brown
family group were to be removed from membership.
[3] On 30 August 2016 Ms Roos filed an application pursuant to s 365 of the Fair Work
Act 2009 (FW Act) for the Commission to deal with a dismissal dispute involving an
allegation of contravention of Pt 3-1 of the FW Act. Mr Roos and Ms Dargan did likewise on
the following day. In each application, the dismissal was alleged to have been in breach of ss
344 and 351 of the FW Act, with the s 351 contravention allegation being founded on the
contention that they had been dismissed on the grounds of social origin and national
extraction. The applications were the subject of joint conciliation on 7 October 2016, but they
were not settled. On 9 January 2017 the Commission issued certificates in each matter
pursuant to s 368(3)(a) to the effect that it was satisfied that all reasonable attempts to resolve
the dispute, other than by arbitration, had been or were likely to be unsuccessful. On 18
January 2017 notices were lodged with the Commission in relation to each matter indicating
that the parties had agreed to the Commission dealing with the dispute by arbitration pursuant
to s 369 of the FW Act. The matters were then heard together by the Commissioner.
[4] On 19 June 2018 the Commissioner issued a decision concerning whether, in respect
of each matter, there had been a dismissal in contravention of Pt 3-1 of the FW Act (liability
decision).3 The liability decision recorded that BBAC conceded that the dismissals occurred
for reasons which included that it had “formed a view” that Mr Roos, Ms Roos and Ms
Dargan were not Barada Barna, and that this constituted the taking of adverse action against
them because of their national extraction for the purpose of s 351(1).4 Section 351(1)
provides:
(1) An employer must not take adverse action against a person who is an employee, or
prospective employee, of the employer because of the person's race, colour, sex,
sexual orientation, age, physical or mental disability, marital status, family or carer's
responsibilities, pregnancy, religion, political opinion, national extraction or social
origin.
[5] That left the question to be determined as being whether BBAC was entitled to rely on
s 351(2)(a) or (b) such as to avoid a finding that it had contravened s 351(1). Those provisions
are as follows:
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti-discrimination law in force in the place where
the action is taken; or
(b) taken because of the inherent requirements of the particular position
concerned; or
. . .
[6] In the liability decision, the Commissioner dealt with s 351(2)(b) first. He determined
that, while it was an inherent requirement of their positions that Mr Roos, Ms Roos and Ms
3 [2018] FWC 3568
4 Ibid at [14]-[15]
[2018] FWCFB 7394
3
Dargan be Barada Barna,5 he was not satisfied that a majority of the board of BBAC held, at
the time the decision was made to dismiss them, a genuine belief that they were not Barada
Barna.6 Rather, he determined that:
“… I have concluded the collective mind of the decision maker concerning the
substantial and operative reason for the decision was that the Applicants had not yet
proved that they were Barada Barna, and that is different to concluding they
were not Barada Barna.”7
[7] It must immediately be observed that there is tension between this conclusion and
Winnaa’s concession that it had dismissed Mr Roos, Ms Roos and Ms Dargan because it had
“formed a view” that they were not Barada Barna. However that is not an issue which arises
for consideration in this appeal. In respect of s 351(2)(a), the Commissioner rejected BBAC’s
submission that ss 104 and 105 of the Anti-Discrimination Act 1991 (Qld) rendered their
conduct as lawful such as to make s 351(1) inapplicable.8 Thus the effect of the liability
decision was that BBAC had dismissed Mr Roos, Ms Roos and Ms Dargan in contravention
of s 351(1).
[8] The next step in the arbitral proceedings before the Commissioner was to determine
the remedies to be awarded for these contraventions. The power to award compensation is
found in s 369(2), which relevantly provides:
(2) The FWC may deal with the dispute by arbitration, including by making one or
more of the following orders:
. . .
(b) an order for the payment of compensation to the person;
. . .
[9] After receiving further submissions concerning remedy, the Commissioner issued the
compensation decision, in which he awarded the following amounts of monetary
compensation:
Mr Roos: Economic loss: $18,608.10 plus 9.5% superannuation, less deduction of
any tax as required by law.
Non-economic loss: $5,000.
Ms Roos: Economic loss: $18,675.15 plus 9.5% superannuation, less deduction of
any tax as required by law.
Non-economic loss: $5,000.
Ms Dargan: Economic loss: $15,219.75 plus 9.5% superannuation, less deduction of
any tax as required by law.
5 Ibid at [339]
6 Ibid at [359]
7 Ibid at [360]
8 Ibid at [362]- [374]
[2018] FWCFB 7394
4
Non-economic loss: $5,000.
[10] Orders were issued in conjunction with the compensation decision to give effect to
that decision.9
[11] In their notices of appeal, Mr Roos and Ms Roos both contend that the compensation
decision was attended by appealable error in four identified respects. We will set out those
contentions of error later in this decision. Ms Dargan did not file a notice of appeal and
accordingly the assessment of compensation for her does not arise for consideration.
The compensation decision
[12] In his consideration of compensation for economic loss in the compensation decision,
the Commissioner followed the approach taken in Heraud v Roy Morgan Research Ltd (No
2),10 namely that the principles identified in Haines v Bendall11 regarding damages in actions
in tort and contract should be applied to the assessment of compensation under the FW Act.12
The Commissioner summarised that approach as follows (footnotes omitted):
“[47] The process of calculation involves having regard to the totality of the evidence,
an assessment of how long the employee would have remained in that employment
and the determination of the value of the likely income stream, followed by the
application of the discount for contingencies and vicissitudes. The discounted income
stream is then reduced by the employee’s mitigated loss (his or her actual earnings
since the dismissal). It is for the employer to establish the facts going to the
employee’s alleged failure to mitigate his or her loss.
[48] An order for compensation for economic loss must also be predicated on an
appropriate causal connection between the contravention of the Act and the loss
claimed.”
[13] The Commissioner commenced his process of analysis by estimating how long Mr
Roos and Ms Roos (and Ms Dargan) would have remained employed had they not been
unlawfully dismissed on 12 August 2016. In this respect the Commissioner determined that
their employment would almost certainly have been brought to an end after the meeting of 29
April 2017 at which they were removed from membership of BBAC, even though this was
not technically an inherent requirement of their positions. On that basis he found that
compensation for economic loss was necessarily limited to the 21.5 weeks period from the
date of their actual dismissal to 29 April 2017.13 In respect of weekly earnings over the period
of their employment, the Commissioner determined that Mr Roos had earned an average of
$1,240.54 gross per week, and Ms Roos an average of $1,245.01 gross per week, and were
additionally entitled to 9.5% superannuation.14
9 PR700262 and PR700265 for Mr Roos and Ms Roos respectively
10 [2016] FCCA 1797
11 [1991] HCA 15, 172 CLR 60
12 Compensation decision at [46]
13 Compensation decision at [55]-[56]
14 Compensation decision at [64]-[65]
[2018] FWCFB 7394
5
[14] The Commissioner then considered how long Mr Roos and Ms Roos (and Ms Dargan)
would have remained in employment within the maximum 21.5 weeks period. He found that
Ms Roos had been employed on a casual basis with no guarantee of ongoing or regular work,
that her contract of employment provided that a 10-hour day would generally be worked on an
as-needed basis, and that under the contract her employment could be terminated at any time
without notice but that one week’s notice or payment in lieu thereof might be provided at the
employer’s discretion.15 In relation to Mr Roos and Ms Roos (and Ms Dargan) generally, the
Commissioner found that there was no relevant dissatisfaction with their performance, that
Winnaa’s demand for cultural heritage work fluctuated dependent upon the requirements of
resource companies and the weather, and that their period of employment had been relatively
brief.16 The Commissioner then said:
“[71] Having regard to the totality of the evidence, including length of service, and the
casual/non-ongoing nature of the employment I am of the view that the employment
may well have not had a duration any longer than the 21.5 weeks, regardless of events
at the general meeting in April 2017. I will adopt 20 weeks as the assessment of how
long the Applicants would have remained employed if Winnaa had not contravened the
Act.
[72] The value of the likely income stream of the Applicants’ excluding
superannuation would therefore be as follows:
• Ms Roos – $24,900.20 ($1,245.01 x 20 weeks)
• Mr Roos – $24,810.80 ($1,240.54 x 20 weeks)
• Ms Dargan – $20,293.00 ($1,014.65 x 20 weeks)”
[15] The Commissioner then considered whether there should be any further deduction for
contingencies, and in that connection referred to 15% as being the “usual figure” on the basis
of the decision in Sagona v R & C Piccoli Investments Pty Ltd & Ors,17 and also referred to
15% being applied in Masson-Forbes v Gaetjens Real Estate Pty Ltd.18 The Commissioner
determined that he should make a deduction for contingencies of 25% based on the following
reasoning:
“[74] In reaching my conclusions in the substantive matter I also determined that the
mind of the decision maker did not reach a subjective view that the Applicants were
not Barada Barna because only three of the seven members of the Board who voted at
the meeting in August 2016 had arrived at the requisite view at that time. Had I been
satisfied that one more member of the Board had reached the requisite subjective
view at that time the result would have been different.
[75] The evidence indicated that the Board did not have the power to suspend the
Kitchener line and subsequent events led to the general meeting of members of the
BBAC in April 2017 voting to remove the Kitchener line. However I am inclined to
the view on the evidence that had the Board not moved to terminate the employment
15 Compensation decision at [67]-[68]
16 Compensation decision at [69]-[70]
17 [2014] FCCA 875 at [358]
18 [2015] FWC 4329
[2018] FWCFB 7394
6
of the Applicants at the August 2016 meeting, they may well have done so before the
general meeting. The result of the vote at the general meeting in April 2017 indicates
the tide was turning against acceptance of the Kitchener line amongst the majority of
the membership of the BBAC and, whilst uncertain, it is quite possible a majority of
the Board may have arrived at that requisite view and decided to act on it before the
April 2017 meeting, and such a decision would have fallen within the exception in
s.351(2)(b).”
[16] The Commissioner made no further deduction for any failure to mitigate loss,19 and
accordingly he determined the compensation to be awarded for economic loss to be the
amounts identified in paragraph [72] of his decision (earlier set out) less 25%, plus 9.5%
superannuation and less deduction of any tax as required by law.20
[17] In relation to compensation for non-economic loss, the Commission proceeded upon
the basis that it was necessary for an applicant to have in fact suffered distress, hurt and
humiliation as a result of the contravention of the FW Act in order to be compensated, and
that something more than the usual element of distress accompanying most terminations must
be demonstrated.21 The Commissioner referred to decisions concerning compensation for non-
economic loss in which courts had taken into account what an applicant had deposed to and
what a reasonable person might feel on the basis of certain conduct directed at them; the lack
of probative evidence other than the applicant’s “display of despondency, disappointment and
anger” and the circumstances of their summary dismissal; and the conduct of the respondent
in their treatment of the party to be compensated including whether there had been an
apology, an undertaking about future conduct or a recognition of the need for treatment.22
[18] The factual findings upon which the Commissioner proceeded were as follows:
“[97] I am empathetic to the Applicants’ situations and recognise the stress, anxiety and
emotional upset that would accompany being removed from a community that they
had closely associated with for the majority of their lives. However, as was submitted
by Ms Roos and Mr Roos, at least from their perspective their status as Barada Barna
people remains intact despite the discontinuing of their memberships to BBAC.
[98] I find that the Applicants should be awarded some amount for non-economic loss
associated with the dismissal, as the level of distress they have experienced in these
unfortunate circumstances would go beyond the level of distress accompanying most
terminations.”
[19] The Commissioner referred to a number of decisions in which compensation had been
awarded for non-economic loss in the employment context, including the Federal Court Full
Court decision in Richardson v Oracle Corporation Australia Pty Ltd23(Richardson) which he
characterised as involving a finding that “an award of $18,000 was adequate in the
circumstances”.24 The Commissioner accepted that there was no medical evidence of
19 Compensation decision at [77]-[82]
20 Compensation decision at [83]-[86]
21 Compensation decision at [87]-[92]
22 Compensation decision at [93]
23 [2014] FCAFC 82, 223 FCR 334
24 Compensation decision at [99]-[100]
[2018] FWCFB 7394
7
psychological injury or need for treatment, no aggravating circumstances personal to any of
the applicants, and that any “tangible emotional upset” arising from their removal from
membership of BBAC was not relevant to any claim for non-economic loss.25 In this
connection the Commissioner observed: “…questions of discrimination arising from the
Applicants’ status, or otherwise, as Barada Barna People cannot form part of any claim for
non-economic loss, as this would necessarily involve determining that the Applicants were or
were not Barada Barna People”. It was concluded that the relevant emotional loss was the
denial of “rewarding work on Country for an organisation, membership and community
whose goals aligned with their own” and that this went beyond the usual level of loss
accompanying most terminations. On that basis the Commissioner awarded $5,000 for non-
economic loss in each case.26
Appeal grounds and submissions
[20] There are four appeal grounds stated in each of the notices of appeal:
(1) the Commissioner erred in applying a discount of 25% to the amount awarded
for compensation for economic loss;
(2) the Commissioner erred in failing to award compensation for economic loss
past 29 April 2017;
(3) the Commissioner erred in awarding a sum of $5,000 for non-economic loss as
that sum is manifestly inadequate; and
(4) the Commissioner erred in stating that the Full Court of the Federal Court in
Richardson awarded $18,000 by way of damages for non-economic loss when
in fact it awarded $130,000.
[21] The notices of appeal contended that the grant of permission to appeal would be in the
public interest because the public interest required that justice not only be done but seen to be
done, there were manifest errors in the compensation decision requiring correction, and
compensation for breaches of s 351(1) should be commensurate with the loss occasioned by
such a breach and reflect community standards that such breaches are unacceptable.
[22] In relation to their first ground of appeal, Mr and Ms Roos submitted that the
Commissioner erred by making a percentage deduction for contingencies when this was based
on a view that there would have been a termination prior to April 2017 rather than assessing
what the compensation amount would be in that circumstance. Further it was inappropriate to
discount for contingencies when assessing past and not future economic loss.
[23] As to the second ground of appeal, the appellants submitted that the Commissioner
erred in failing to award compensation past 29 April 2017 because:
section 369(2)(b) did not require, in respect of awarding compensation, a causal
connection between a contravention found to have occurred and economic loss, so that
25 Compensation decision at [101]-[103]
26 Compensation decision at [104]
[2018] FWCFB 7394
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the Commissioner was incorrect in treating 29 April 2017 as the end-point of
economic loss because the causal connection at that point terminated; and
in any event, the Commissioner failed to take into account that if they had remained in
employment until the 29 April 2017 meeting, Mr and Ms Roos would have acquired
unfair dismissal rights under the Pt 3-2 of the FW Act because they would have been
employed for over 12 months.
[24] The appellants submitted in relation to the third and fourth grounds of appeal that:
the Commissioner proceeded to assess compensation for non-economic loss based
upon a plain misreading of the amount of compensation awarded as a result of the Full
Court decision in Richardson;
more fundamentally, Richardson was authority for the proposition that it was
necessary to have regard to general standards prevailing in the community when
making an award for compensation, and such standards accord a higher value to
compensation for pain and suffering than before;
the spiritual or religious relationship between Australian aboriginals and the land was
well-recognised, and Ms Roos explained in her evidence the significance of the loss to
her arising from the disconnection to the land caused by the dismissal; and
the Commissioner failed to consider that the practical effect of the dismissals was to
remove the ability of the appellants to exercise that spiritual connection with the land
on an almost daily basis, and the amount of $5,000 awarded to each appellant was
manifestly inadequate to compensate them for that loss.
[25] Winnaa submitted:
deductions for contingencies and vicissitudes were commonplace in relation to awards
of compensation by the Commission and its predecessors and were not controversial;
the Commissioner correctly identified what the compensation should be before
applying a percentage deduction;
it was legitimate to take into account past hypotheticalities in making a deduction for
contingencies;
in considering contingencies, the Commissioner legitimately had regard to the facts
that the appellants’ employment was casual, there was no guarantee of ongoing work
and the work undertaken could be the subject of fluctuation;
there was no error in the approach whereby the Commissioner determined an earning
period post-termination for which there should be compensation, and then applied a
deduction for contingencies;
as to the Commissioner’s determination to cap compensation for economic loss to the
period ending on 29 April 2017, this was a conclusion that was entirely reasonable and
[2018] FWCFB 7394
9
open to him on the facts, and the Commissioner additionally took into account the
casual and fluctuating nature of the appellants’ employment;
the fact that the appellants might have been able to challenge a termination of
employment which occurred on or around 29 April 2017 under Pt 3-2 of the FW Act
was another hypothetical and did not make the 29 April 2017 cap on compensation
erroneous;
in relation to non-economic loss, the Full Court decision in Richardson was based on
its own facts, which involved eleven separate acts of overt and offensive sexual
harassment over a prolonged period of time, evidence of witnesses concerning the
effect of the harassment on the complainant, and medical evidence concerning the
effect of the harassment;
in this case, there was no independent or objective evidence of the effect of the
termination of employment on the appellants;
the Commissioner’s decision was correctly directed to the effects of the dismissal, and
did not take into account the loss of the right to exercise the spiritual connection to the
land which arose from their exclusion from the Barada Barna People;
the power to award compensation under s 369(2) was a power which arose in
resolution of a dismissal dispute, such that a causal link between the dismissal and the
loss being compensated was required; and
the power to assess compensation for non-economic loss was discretionary, and no
error had been demonstrated in the exercise of the discretion.
Consideration
Permission to appeal
[26] The appeals before us are brought pursuant to s 604 of the FW Act. An appeal under s
604 is an appeal by way of rehearing and the Commission’s powers on appeal are only
exercisable if there is error on the part of the primary decision maker.27 There is no right to
appeal and an appeal may only be made with the permission of the Commission. Section
604(2) requires that permission to appeal be granted if the Commission is satisfied that it is in
the public interest to do so.
[27] In addition, because the compensation decision was made pursuant to s 369 of the FW
Act, s 375A applies to these appeals. Section 375A provides:
375A Appeal rights
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a
decision made by the FWC under subsection 369(2) (which is about arbitration of a
dismissal dispute) unless the FWC considers that it is in the public interest to do so.
27 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and
Allied v AIRC [2000] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[2018] FWCFB 7394
10
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation
to a matter arising under subsection 369(2) can only, to the extent that it is an appeal
on a question of fact, be made on the ground that the decision involved a significant
error of fact.
[28] Section 375A is expressed in terms relevantly identical to s 400, which applies to
appeals from decision made pursuant to Pt 3-2 of the FW Act. We consider that decisions
made concerning the proper interpretation and application of s 400 are relevant for that
reason. In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v
Lawler and others28, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised
the test under s 400 as “a stringent one”. The task of assessing whether the public interest test
is met is a discretionary one involving a broad value judgment.29 A Full Bench of the
Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the
considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and
general application, or where there is a diversity of decisions at first instance so that
guidance from an appellate court is required, or where the decision at first instance
manifests an injustice, or the result is counter intuitive, or that the legal principles
applied appear disharmonious when compared with other recent decisions dealing with
similar matters…”30
[29] It will rarely be appropriate to grant permission to appeal unless an arguable case of
appealable error is demonstrated. This is so because an appeal cannot succeed in the absence
of appealable error.31 However, the fact that the Member at first instance made an error is not
necessarily a sufficient basis for the grant of permission to appeal.32
[30] We do not consider that it would be in the public interest to grant permission to appeal
in respect of the second, third and fourth grounds of appeal. In relation to the second ground
of appeal, we consider that the Commissioner’s decision set an “outer limit” for compensation
for economic loss at 29 April 2017, by reason of the exclusion of Mr Roos and Ms Roos from
BBAC which occurred on that date and the likely effect this would have had on any continued
employment was largely irrelevant to his assessment of monetary compensation. This is
because the Commissioner separately concluded that, if they had not been dismissed on 12
August 2016, the employment of Mr Roos and Ms Roos would not have extended for more
than 20 weeks having regard to the casual and fluctuating nature of their work. A period of 20
weeks from 12 August 2016 falls well short of 29 April 2017 since it does not go past the end
of 2016. Compensation was calculated by multiplying 20 weeks by average weekly earnings,
28 [2011] FCAFC 54, 192 FCR 78 at [43]
29 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v
Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied
Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78 at [44]-[46]
30 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
31 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
32 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR
288 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR
78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office
[2014] FWCFB 1663, 241 IR 177 at [28]
[2018] FWCFB 7394
11
and the 25% contingency deduction (which is dealt with later in this decision) was then
applied to this figure. The 29 April 2017 “outer limit” played no role in this methodology.
The Commissioner’s assessment of 20 weeks’ further employment was not the subject of any
challenge by the appellants in their appeals. Accordingly, the second ground of appeal lacks
utility because even if it were to be upheld it would not alter the result determined by the
Commissioner in relation to economic loss.
[31] In relation to the third ground of appeal, we do not consider that it is reasonably
arguable that the Commissioner’s assessment of compensation for non-economic loss was
manifestly inadequate. The evidence concerning any distress, hurt and humiliation suffered by
Mr Roos and Ms Roos as a consequence of the dismissal beyond that which would normally
be occasioned by dismissal was limited. Mr Roos’ witness statement described mental
unwellness and a loss of confidence since his dismissal; he said that it was hurtful to “have my
cultural identity undermined in this way” that it was “devastating” to have “ripped away” the
sense of belonging and self-worth from working on Country, connecting with his ancestry,
learning about Barada Barna lore and customs and working with other Barada Barna People
and making a connection.33 Ms Roos described in her reply witness statement34 in some
greater detail the comfort and satisfaction she obtained from working on and reconnecting
with Country, retrieving artefacts, attending sacred places and seeing ancient paintings. She
also regarded it as special that she was working with her son and that knowledge was being
passed on to him. She said that she was sad after her dismissal that she and her son could no
longer do cultural heritage work, hurt by the reasons for the dismissals, and that she had lost
confidence and self-belief as a result. She also observed a “decline” in Mr Roos due to his
loss of the means to support his children and assist his family. She characterised the
dismissals as being “inextricably linked” to the cancellation of BBAC membership, which she
described as humiliating, and said her concerns for Mr Roos were such that she convinced
him to go to the mental health team and the Aboriginal health service in town.
[32] There are at least four major difficulties in terms of this evidence supporting any
award of compensation for non-economic loss significantly greater than the amounts awarded
by the Commissioner:
(1) The non-economic benefits of working on Country which had accrued to Mr
Roos and Ms Roos from their employment with Winnaa had only actually
lasted for six months (with another three months’ prior employment with a
different but related entity). As earlier stated, the appellants did not challenge
the Commissioner’s finding that the employment would only have continued
for another 20 weeks, to the end of 2016, if the dismissals had not occurred.
Thus the enjoyment of working on Country would only have continued for a
relatively short period and would then have been lost anyway. This necessarily
placed a significant restriction on any award of compensation for non-
economic loss, as the Commissioner recognised.
(2) The non-economic damage described in the evidence clearly encompassed the
emotional consequences of the removal of appellants and the rest of the
Kitchener Brown family group from BBAC at the 29 April 2017 meeting.
Although that event arose, like the dismissals, from the dispute concerning
33 Exhibit 3 para 21
34 Exhibit 2 paras 93-109
[2018] FWCFB 7394
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whether the Kitchener Brown family group were Barada Barna, the 29 April
2017 meeting outcome was an independent event which likely would have
occurred irrespective of the dismissals of the appellants. That means there is a
lack of causal connection between the emotional consequences for the
appellants of the 29 April 2017 meeting and the dismissals. We reject as not
arguable the proposition that compensation may be awarded pursuant to s
369(2)(b) for losses not causally connected to the contravening dismissal.
(3) There was no evidence which demonstrated that the dismissals had the result
of depriving Mr Roos and Ms Roos of any capacity to maintain a connection
with the Barada Barna lands. We accept as likely however that their
subsequent removal from BBAC had that consequence since it presumably
removed their capacity to lawfully access those lands.
(4) Further, as the Commissioner recognised, any notion of non-economic loss
caused by an alleged deprivation by Winnaa of the appellants’ identity as
Barada Barna is necessarily premised on them being, properly speaking,
Barada Barna People in the first place who were entitled to be members of
BBAC. The Commissioner did not find that they were Barada Barna People,
and the appellants do not contend that he erred in this connection.
[33] These matters, we consider, render untenable the proposition that the amount of
compensation awarded by the Commissioner was manifestly inadequate.
[34] Finally, insofar as the fourth ground of appeal is concerned, it may be accepted that
the Commissioner mischaracterised the outcome of the Federal Court Full Court decision in
Richardson.35 As Winnaa submitted, the Full Court in that matter quashed the first instance
award of $18,000 for non-economic loss, and made an award of $130,000 in substitution.
However, in accordance with the principles earlier stated, not every error will justify the grant
of permission to appeal in the public interest. The amount of compensation in Richardson was
determined by reference to the particular facts pertaining to the contraventions which were
found to have occurred in that case. The factors which the Commissioner regarded as
operating to confine any award of compensation for non-economic loss in the matters before
him were applicable independent of anything stated in Richardson, so that we do not consider
that the error identified by the appellants had any effect on the outcome. For that reason, it
would not be in the public interest to grant permission to appeal in respect of the fourth
ground of appeal.
[35] We consider however that the grant of permission to appeal in relation to the first
ground of appeal would be in the public interest. For the reasons which follow, we consider
that the Commissioner’s approach in deducting 25% for contingencies was attended by
appealable error, that this error caused an injustice to the appellants and raises questions of
broader principle.
The deduction for contingencies
35 [2014] FCAFC 82, 223 FCR 334
[2018] FWCFB 7394
13
[36] The principles applicable to the application of a percentage deduction for
contingencies and the vicissitudes of life were summarised in the High Court in Wynn v NSW
Insurance Ministerial Corporation36 (Wynn) as follows:
“It is necessary to say something as to contingencies or `vicissitudes'. Calculation of
future economic loss must take account of the various possibilities which might
otherwise have affected earning capacity. The principle and the relevant
considerations were identified by Barwick CJ in Arthur Robinson (Grafton) Pty Ltd v
Carter as follows:
‘Ill health, unemployment, road or rail accidents, wars, changes in industrial
emphasis, so that industries move their location, or are superseded by new and
different techniques, the onset and effect of automation and the mere daily
vicissitudes of life are not adequately reflected by merely - and blindly - taking
some percentage reduction of a sum which ignores them.’ [(1968) 122 CLR
649 at 659]
It is to be remembered that a discount for contingencies or `vicissitudes' is to take
account of matters which might otherwise adversely affect earning capacity and as
Professor Luntz notes, death apart, `sickness, accident, unemployment and industrial
disputes are the four major contingencies which expose employees to the risk of loss
of income'. Positive considerations which might have resulted in advancement and
increased earnings are also to be taken into account for, as Windeyer J pointed out in
Bresatz v Przibilla, [(1962) 108 CLR 541 at 544] ‘(a)ll "contingencies" are not
adverse: all "vicissitudes" are not harmful’. Finally, contingencies are to be considered
in terms of their likely impact on the earning capacity of the person who has been
injured, not by reference to the workforce generally. Even so, the practice in New
South Wales is to proceed on the basis that a 15 per cent discount is generally
appropriate, subject to adjustment up or down to take account of the plaintiff's
particular circumstances.”37
[37] In short, the purpose of a deduction for contingencies is to apply a discount to an
assessment of future economic loss in order to account for future unknown matters which
might detrimentally affect that earning capacity. In the employment context, where it is
necessary to compensate an employee for the wrongful or unfair deprivation of employment,
a deduction for contingencies is usually applied after an assessment has been made of the
period the employee would have remained employed but for the termination of employment
and that has been applied to an estimate of future earnings over that period. Importantly, the
deduction for contingencies is applied to any future estimate of loss of employment earnings –
that is, earnings that would be lost after the date of hearing – consistent with the principles
stated in Wynn. If the assessment is that the employment, but for the termination, would only
have endured for a short period ending before the date of the hearing, then a deduction for
contingencies becomes irrelevant because the earning capacity of the employee over that part
period is a known fact, not a hypothetical.38
36 [1995] HCA 53, 184 CLR 485 at [497]
37 Ibid at 497–498 per Dawson, Toohey, Gaudron and Gummow JJ
Section 1.01 38 McCulloch v Calvary Health Care Adelaide [2015] FWCFB 2267 at [20]-[22]
[2018] FWCFB 7394
14
[38] Having regard to these principles, it is necessary to analyse the process by which the
Commissioner assessed compensation for the economic loss suffered by Mr Roos and Ms
Roos as a result of their dismissals. The first step which the Commissioner undertook was to
assess the period they would have remained employed. As earlier explained, the
Commissioner initially determined that the appellants would not have been employed past the
29 April 2017 meeting39 but this was overtaken by his finding that they would have been
employed for 20 weeks if Winnaa had not contravened the FW Act. In making that
assessment, the Commissioner took into account the casual and fluctuating nature of the
employment, its relatively short duration, and Winnaa’s demand for cultural heritage work.
The Commissioner then applied the 20 week period to the past average weekly earnings for
Mr Roos and Ms Roos to reach compensation figures of $24,810.80 and $24,900.20
respectively. The deduction of 25% then applied by the Commissioner appears to have taken
into account two factors: a “standard” deduction for contingencies of 15% and a further 10%
based on an assessment that, if the dismissal had not occurred on 12 August 2016, the board
of BBAC may have formed the “requisite view” that they were not Barada Barna at some
later stage prior to the 29 April 2017 general meeting and dismissed them.
[39] There are two significant errors of principle in this process of analysis. The first is that
the so-called “standard” deduction of 15% for contingencies was applied to past rather than
future economic loss. There was no proper basis to make this deduction at all, since any
matters detrimentally affecting the appellants’ earning capacity over the relevant 20 week
period of putative further employment could have been, but were not, the subject of evidence.
In short, there was no basis to conclude that there was anything which had affected the
appellants’ earning capacity over that part period.
[40] Second, the Commissioner added another 10% to the deduction because of the
possibility of termination prior to 29 April 2017, in circumstances where he had already
formed an estimate that the employment would have continued only for another 20 weeks but
for the dismissals. In effect, the Commissioner took into account in assessing compensation
the hypothetical duration of further employment twice – once through the 20 weeks’ estimate,
and the second time through the 10% deduction. This error is compounded by the fact the
deduction of 10% was expressed as taking into account termination at any time prior to 29
April 2017, when the Commissioner had already determined that the employment would not
have lasted beyond the end of 2016.
[41] This error of principle in the exercise of the discretion concerning the award of
compensation decision caused injustice to the appellants by reducing the amount of
compensation properly payable to them for what were found to be unlawful dismissals. We
consider that the appropriate course is to uphold the appeal with respect to the first ground of
appeal, and exercise our power under s 607(3)(a) to vary the compensation decision and the
accompanying orders by adding back into the amounts of compensation for economic loss the
amounts that were deducted for contingencies.
Orders
[42] We order as follows:
39 At paragraph [66] of the compensation decision, the Commissioner appears to refer to the period from the dismissals to 29
April 2017 as being 21.5 weeks. In fact it is approximately 37 weeks.
[2018] FWCFB 7394
15
(1) Permission to appeal is granted with respect to the first ground of appeal.
Permission to appeal is otherwise refused.
(2) The appeal is upheld with respect to the first ground of appeal.
(3) The compensation decision is varied to:
(a) replace the amount of $18,675.15 in paragraph [84] with the amount of
$24,900.20; and
(b) replace the amount of $18,608.10 in paragraph [85] with the amount of
$24,810.80.
(4) Order PR700262 is varied to:
(a) replace the amount of $18,608.10 in paragraph B with the amount of
$24,810.80; and
(b) replace the date of 24 October 2018 in paragraph C with the date 4
January 2019.
(5) Order PR700265 is varied to:
(a) replace the amount of $18,675.15 in paragraph B with the amount of
$24,900.20; and
(b) replace the date of 24 October 2018 in paragraph C with the date 4
January 2019.
Appearances:
K. Watson of Counsel and T. Makamure for Loretta and Andrew Roos.
J. Dwyer of Counsel and D. Pratt for Winnaa Pty Ltd.
Hearing details:
2018.
Sydney/Brisbane:
15 November.
VICE PRESIDENT
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PR702867
