DECISION

Fair Work Act 2009
s.394—Unfair dismissal

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

Application for an unfair dismissal remedy – dismissal harsh, unjust or unreasonable – remedy to be decided.

[1] Mr Ross Wunungmurra (Mandi) 1 was employed by East Arnhem Regional Council (Council) from 18 November 2010 until the termination of his employment on 27 March 2018. On 12 April 2018 Mr Wunungmurra made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (FW Act) seeking relief from unfair dismissal.

[2] Mr Wunungmurra was employed as a community night patrol officer. His job was to patrol the community at night and deal with disturbances or call the local police to assist. He undertook this task as part of a team. The night patrol team also ensured any children in the community who were out late at night were delivered home safely.

[3] Mr Wunungmurra is a clan leader, which carries with it certain responsibilities. He is also a Board Director with the Miwatj Health Aboriginal Corporation (Miwatj Health) and a board member of the Yalu Aboriginal Corporation.

[4] Ms Diana Roper is the Regional Manager for Council Services at Galiwin’ku, the community in which Mr Wunungmurra lives and worked. Ms Roper is responsible for the delivery of Council Services in the community and was, therefore, Mr Wunungmurra’s manager.

Background, evidence and submissions

[5] Evidence was given in proceedings for the Applicant by:

•  Mr Ross Wunungmurra;

•  Dr Bentley James, Anthropologist/Linguist;

•  Ms Janet Deacon, Senior Administration Office, East Arnhem Regional Council;

•  Mr David Collins (uncontested statement - not required for cross examination);

•  Mr Patrick Honan (uncontested statement - not required for cross examination).

[6] Evidence was given for Council by:

•  Ms Diana Roper.

[7] An undated statement signed by David Yununpingu, Lisa Yawnunymarra, Daphne Gondarra and Julie Anne Gondarra 2 was filed by Mr Wunungmurra. A further, undated, statement signed by Lisa Yawnunymarra, Julie Anne Gondarra, Daphne Gondarra, Nathan Rrapan and David Yunupingu3 was also filed for Mr Wunungmurra. I have treated these two statements as submissions. The documents were undated and none of the signatories were available for cross-examination.

[8] The Commission was also presented with a petition of the Yolgnu People of Galiwin’ku dated 20 May 2016. 4 The circumstances of the hearing made it difficult to have the petition confirmed in circumstances where the Council suggested that a different cover sheet (story) had been placed on the petition to that originally circulated. It was suggested by Council that community members understood that they were signing a petition to assist a community member (Damon) obtain housing. A number of community members attended the hearing of this application by phone5 and said that there were two petitions circulating at about the same time – the one provided to the Commission and a separate one in relation to housing. Mr Wunungmurra’s representative and Mr Smith for Council asked questions of those community members present by phone. I am satisfied, on the basis of the responses given, that the petition should be accepted as indicative of community views in relation to Ms Roper at the time the petition was signed. I would add that the petition is not persuasive of any particular finding I am required to make in determining the application before the Commission.

Background

[9] On 24 May 2017 United Voice on behalf of Mr Wunungmurra formally made a complaint to Mr John Japp, Chief Executive Officer of the Council, in relation to the conduct of Ms Roper. 6 The letter said, in part:

Mr Wunungmurra is of the view that he is treated differently from his work colleagues which is causing him great stress and anxiety. Mr Wunungmurra does not know why his (sic) being treated differently by Ms Roper but believes it could stem from Mr Wunungmurra’s Fair Work Commission application in 2014.

[10] The letter then detailed particular behaviours of Ms Roper (the 2017 complaint).

[11] As a result of this complaint Council appointed an independent investigator to investigate the matters raised by Mr Wunungmurra. The investigator visited the community and interviewed Ms Roper and Mr Wunungmurra. The outcomes of that investigation are not before the Commission although are alluded to in the “show cause” letter (below).

[12] On 31 July 2017 Mr Wunungmurra was given a show cause letter in relation to driving a Council vehicle without a licence and failure to attend for work on 9 and 11 May without a valid reason and was invited to respond. Mr Wungunumurra did not respond to the letter. Mr Wunungmurra was then issued with a warning letter on 6 September 2017 in relation to the driver’s licence matter, his failure to attend for work when he was rostered to work on 31 August 2017, lodging a leave application for a period when he was not rostered to work and his failure to provide a response to the show cause letter.

[13] On 24 January 2018 Mr Wunungmurra received a final warning letter which outlined previous counselling meetings he had attended with Ms Roper and Mr Ben Waugh, Council Services Director, where his attendance and performance had been discussed with him and where he had been advised of the need to contact Ms Roper in the event that he could not attend or would be late in attending for work. The letter then outlined more recent issues with Mr Wunungmurra’s attendance and timesheet accuracy. The letter read in part:

This is a final warning letter. If significant improvement in your performance is not achieved by 22 February 2018 your employment may be terminated. To reiterate, our expectation is that you;

•  Immediately notify Diana [Roper] if you are not able to attend work for any reason, and

•  Act lawfully and honestly in your dealings with East Arnhem Regional Council when completing your timesheet recording your attendance at work.

EARC accepts that ceremonial leave may require an employee to give short notice of non-attendance at work, as such Diana has acknowledged that you may give short notice if you are required to access cultural leave and attend ceremony.

[14] On 25 January 2018 Ms Roper asked Ms Janet (Jan) Deacon to sit in on a counselling session she was about to have with Mr Wunungmurra. When Ms Deacon arrived Mr Wunungmurra was explaining to Ms Roper that he had not had time to organise a support person. The meeting was therefore not specified to be a counselling session but did otherwise proceed. At the conclusion of this meeting Ms Roper handed the final warning letter of 24 January 2018 to Mr Wunungmurra.

[15] Council says that it attempted to arrange a formal counselling session with Mr Wunungmurra between late January 2018 and 20 March 2018 but was not successful with Mr Wunungmurra not turning up on a number of pre-arranged times. This assertion was countered by the uncontested evidence of Mr Patrick Hanon 7, an organiser with United Voice, who said he attended a counselling session by telephone with Mr Wunungmurra and Ms Roper on 12 February 2018. Further, the uncontested evidence of Mr David Collins8 is that he attempted to organise a time when Mr Wunungmurra could meet with Ms Roper when he, Mr Collins (as Mr Wunungmurra’s support person), was also available. This was not successful with Ms Roper responding in part that Mr Wunungmurra had failed to attend a meeting on a day in the future.

[16] Following receipt of the final warning letter dated 24 January 2018, United Voice responded on Mr Wunungmurra’s behalf on 8 February 2018 9 and requested that the counselling session proposed in the letter be conducted by an alternative Council employee of equivalent status to Ms Roper. United Voice also requested that the final warning be downgraded to a second warning. No evidence of a response to this letter was before the Commission.

[17] On 28 February 2018 a meeting of the community patrol team occurred where timesheet accountabilities was discussed.

[18] On 27 March 2018 a meeting of community night patrol team was held where attendance and timesheet accuracy was again discussed. At this meeting, and on the apparent insistence of Mr Wunungmurra, Ms Roper outlined issues with the timesheets submitted by Mr Wunungmurra as outlined in the following paragraph.

[19] Following the team meeting of 27 March 2018 Ms Roper called Mr Wunungmurra into her office. In this meeting Ms Roper put various issues to Mr Wunungmurra in respect to his completion of timesheets. After hearing from Mr Wunungmurra Ms Roper advised him that his explanation was not satisfactory and that Council had decided to terminate his employment without notice and effective immediately for serious misconduct. Ms Roper handed Mr Wunungmurra a letter which said in part that:

…The issues related to your nonattendance (sic) at work when rostered and that you act lawfully and honestly when completing your timesheets. Most recently you have been untruthfully recording you attendance at work, as follows:

1. You recently 23^rd March 2018 submitted your timesheet for the 12^th, 13^th and 14^th March 2018, claiming you had worked five hours each night. You have also submitted a leave form for the same dates, to attend Miwatj Board meeting.

2. On the 22^nd March 2018, you entered a start time 7.30pm, however you were not at work until 7.50pm

3. On the 23^rd March 2018 you entered a finish time of 12pm, however you finished work at 11pm.

As discussed previously, not being truthful when completing timesheets is fraud, and in the circumstances your continued employment during a notice period would be unreasonable.

We consider your actions constitute serious misconduct… 10

[20] Mr Wunungmurra’s employment was terminated at this time.

[21] Mr Wunungmurra has now made an application to the Commission seeking relief from unfair dismissal. He seeks reinstatement.

Statutory requirements

[22] I am satisfied that Mr Wunungmurra made his application to the Commission within 21 days of the date of dismissal. Further, I am satisfied that the Small Business Fair Dismissal Code does not apply and that it is not claimed the dismissal was a redundancy.

[23] I am also satisfied that Mr Wunungmurra is protected from unfair dismissal in that he has completed the minimum employment period with his employer and an enterprise agreement applies to his employment with Council. 11

[24] I am also satisfied that Mr Wunungmurra has been dismissed.

[25] In order to determine if Mr Wunungmurra was unfairly dismissed it is necessary to determine if his dismissal was harsh, unjust or unreasonable. The criteria to be considered in making such a decision are set out in s.387 of the FW Act which states as follows:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

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

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

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

Section 387(a) - a valid reason for dismissal related to capacity or conduct

[26] For a reason for dismissal of an employee to be for a valid reason it must be “sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced cannot be a valid reason…” 12

[27] Further, where the reason for dismissal relates to misconduct it is not sufficient that the employer believes the misconduct occurred. It is incumbent on the Commission to determine, on the balance of probabilities, if the conduct did, in fact, occur.

[28] Mr Wunungmurra’s employment was terminated for untruthfully recording his attendance at work. The reasons specifically cited as warranting dismissal related to his untruthful record of attendance on 12 to 14 March 2018, his start time on 22 March 2018 and his finish time on 23 March 2018. 13

[29] Mr Wunungmurra gave evidence that he completes his timesheet at the end of the fortnight, which, for the days in question, was apparently 25 March 2018 although Mr Wunungmurra’s last day of work for the period was 23 March 2018.

[30] Council, in relation to each occasion cited in the termination of employment letter, relies on notes made by Ms Roper following the dismissal meeting with Mr Wunungmurra on 28 March 2018. 14 Ms Roper said that she had developed the habit over many years of documenting in detail conversations where she needs to. She says therefore that her notes are reliable.

[31] Ms Roper’s evidence is that she has had incorrect timesheets submitted by Mr Wunungmurra in the past where he has claimed hours he had not worked or forgotten to claim hours he had worked. 15

[32] Ms Roper also gave evidence that it is important for the work that is done that members of the patrol group attend when they are rostered to work. She said that there are ramifications for team members if a member does not report to work when rostered as the patrols need to be restructured.

12-14 March 2018

[33] On 12 March 2018 Mr Wunungmurra (Mandi) submitted an application form requesting leave without pay from 12 to 14 March 2018 for the purpose of attending the Miwatj Health Board meeting. That leave was approved by Ms Roper on 13 March 2018. 16

[34] Mr Wunungmurra said that he did attend the Miwatj Health Board meeting and returned to Galiwin’ku on the Thursday. He said that at the time of returning and completing the timesheet “a lot of things was in my mind and was happening to me” 17 and also that there was preparation to be done for the impending cyclone.

[35] Mr Wunungmurra said that he made a mistake by claiming that he had worked on 12 to 14 March 2018 when he had not. 18

22 March 2018

[36] Council says that Mr Wunungmurra claimed to have commenced work on 22 March 2018 at 7.30pm when he actually commenced at 7.50pm.

[37] Council says that Ms Roper called a meeting of the night patrol team on 22 March 2018 which concluded at 7.45pm. Mr Wunungmurra arrived at 7.50pm. Council says that this was confirmed by Mr David Yunupingu (but who did not provide a statement in these proceedings). Ms Roper’s notes of her meeting with Mr Wunungmurra dated 28 March 2018 19 confirm Council’s view that Mr Wunungmurra was late to work on the evening of 22 March 2018.

[38] Mr Wunungmurra says that he arrived at work at either 7.30pm or 7.40pm on 22 March 2018. He said that when he arrived Ms Roper was already there and he “happened to not come in”.  20

23 March 2018

[39] Council says that the night patrol were directed to finish work at 11.00pm on 23 March 2018 but Mr Wunungmurra claimed on his timesheet he had finished work at midnight.

[40] In his evidence Mr Wunungmurra said he could not remember what had occurred although later conceded that, in filling out his timesheet, he forgot the instruction that had been given so filled in 12.00pm because that was the normal finish time.

[41] Despite Council claims, there is no evidence as to who Mr Wunungmurra was with when he completed the timesheet. 21

[42] Mr Wunungmurra said that he had not intended to cheat on his timesheet and he completed his timesheet in accordance with what was on the roster. He agreed however that on 23 March 2018 he was told to finish that day at 11.00pm. 22 He says that he “forgot the story, when was finish, so what I said, "We always finish at 12 o'clock, then I have to put that 12 o'clock."”23

[43] Ms Roper agreed that the enterprise agreement that applies at Council does not allow the hours of work for part-time employees to be altered without agreement. 24 Whilst acknowledging this she also said that Mr Wunungmurra had not objected to the change in working hours.

Consideration of valid reason

[44] Council relies on earlier warnings given to Mr Wunungmurra to support its decision to terminate his employment.

[45] On the basis of the evidence before me I am satisfied that Mr Wunungmurra has received counselling on a number of issues over the period of his employment. I am not convinced that the counselling sessions of 2013 or 2014 provides such support for the decision to dismiss him. Those events occurred four years prior to his dismissal and were for quite different issues than recording working time. Further, the earlier counselling sessions appear to have resolved whatever the issue was with no apparent repeat of the problems identified.

[46] A counselling note in relation to an incident in June 2015 indicates that this matter was resolved. No further action is evidenced or appears to have been taken in relation to that matter such that it is difficult to rely on it to support the existence of a valid reason for dismissal.

[47] As to the matters raised in the warning letter of 6 September 2017 it seems that the matter of Mr Wunungmurra’s drivers licence was resolved and has not been an issue since. I am satisfied that he was absent without approval on 31 August 2017. I make no finding in relation to Mr Wunungmurra’s absence on 9 and 11 May 2017 (which were raised in the show cause letter of 31 July 2018 but not in the warning letter).

[48] I am satisfied that Mr Wunungmurra applied for leave on days he was not rostered to work. I note however that this leave was not approved and the evidence does not show that days when he was not rostered to work were taken as leave. There does not appear to be a pattern of conduct in this respect.

[49] I accept that Mr Wunungmurra received a final warning letter dated 24 January 2018 (although apparently given to him in the meeting on 28 January 2018). I accept the evidence that Mr Wunungmurra did complete his timesheet to show that he had worked on 4 January 2018 when he had not. He does appear to have crossed out his working hours on 11 January 2018 when he did, in fact work (according to the final warning).

[50] I am satisfied that Mr Wunungmurra claimed on his timesheet to have worked on 12-14 March 2018 when he had not done so.

[51] I am also satisfied that Mr Wunungmurra incorrectly claimed that he had commenced work at 7.30pm on 22 March 2018 when he had, at best, started at 7.40pm. I take Mr Wunungmurra’s evidence cited above as supportive of such a conclusion.

[52] I am satisfied that Mr Wunungmurra claimed he had finished work at 12.00pm on 23 March 2018 when he had, in fact finished at 11.00pm. However, I am not satisfied that Ms Roper had any agreement with Mr Wunungmurra that his hours of work should be altered in accordance with the relevant provisions of the East Arnhem Regional Council Enterprise Agreement 2016-2020. However, if Mr Wunungmurra did finish at 11.00pm this should have been reflected on his timesheet with a note that this change of roster had not been agreed with him.

[53] The totality of the time keeping incidents involving Mr Wunungmurra appear to be:

•  Claiming for time he did not work on 4 January 2018 (8.5 hours) and 12-14 March 2018 (3 lots of 5 hours);

•  Not claiming for time he did work on 11 January 2018 (5 hours);

•  Claiming for 10 minutes he did not work on 22 March 2018;

•  Claiming for 1 hour he did not work (but was rostered to work) on 23 March 2018;

•  Appling for leave on days he was not rostered to work in or around August 2017.

[54] I am satisfied that Mr Wunungmurra engaged in misconduct in that he incorrectly claimed time that he had worked when he had, in fact, not done so. I am not convinced it is misconduct to not claim time that is actually worked.

[55] Whether Mr Wunungmurra’s misconduct constitutes serious misconduct is not determinative of whether the misconduct provides a valid reason for his dismissal 25 although it may be a relevant matter in considering if a dismissal, although valid, might be harsh.

[56] If it had been Mr Wunungmurra’s intention to deliberately mislead Council on his timesheets (or commit a fraud) he was not very clever about it. The reasons given in the termination letter for Mr Wunungmurra’s dismissal were three separate incidents in the same fortnight in circumstances where he could not possibly have thought that Ms Roper would not notice. She, after all, signed his request for leave without pay on 13 March 2018, knew whether he was at the team meeting on 22 March 2018 and had given the direction of the earlier finish time on 23 March 2018. Despite this however I cannot overlook the facts in this matter. Mr Wunungmurra did seek to claim for time not worked on three occasions over the one fortnight and, on one of those occasions, for three days when he did not work at all.

[57] I have carefully considered the conduct of Mr Wunungmurra in relation to his time recording. Whilst the most recent incidents have occurred in some proximity I am not convinced that the matters raised in the warning letter of 6 September 2017 or the final warning letter along with the incidents of 27 March 2018 supports the decision of Council to terminate Mr Wunungmurra’s employment. I acknowledge that Mr Wunungmurra’s conduct was not above reproach and some sanction was warranted. I am not convinced however that the conduct provides a valid reason for dismissal. Considered objectively I do not consider the reason for dismissal was not sound or defensible. It is not necessary that I find the reason to be capricious, fanciful or spiteful and I do not. It is enough that, in context and objectively considered, I do not consider it forms a valid reason.

[58] In reaching my decision I have carefully considered Mr Wunungmurra’s conduct in the context of his responsibilities as a clan elder, his responsibilities as a Board Director of Miwatj Health, and that other employees also had apparent difficulties with properly completing timesheets – evidenced by time recording being raised at meetings of all community patrol employees in February and March 2018.

[59] I do not consider the driving without a licence issue, raised in the 31 July 2017 show cause letter, supports a finding that there was a valid reason for dismissal. Apart from the show cause letter there is little else before the Commission on this matter.

[60] Having found that there was no valid reason for dismissal it would be unusual to find that the dismissal was not harsh, unjust or unreasonable. I have however considered the other criteria under s.387 of the FW Act.

Sections 387(b) and (c) - whether the person was notified of the reason for dismissal and given an opportunity to respond

[61] It is well established that notification of the valid reason for dismissal must be given to the employee before the decision to terminate is made. 26 That notice must be in explicit terms.27

[62] In Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport 28 the Full Bench established the following:

[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG (3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.

[63] I am not satisfied in this case that Mr Wunungmurra was notified of the reason for his dismissal prior to being advised that his employment had been terminated.

[64] At the night patrol team meeting of 27 March 2018 matters associated with accurate time recording on timesheets was raised. Ms Roper says that Mr Wunungmurra challenged her on this and, in effect, asked that she explain to the team problems with his timesheets. Ms Roper said the discussions as to Mr Wunungmurra’s attendance continued at the team meeting 29 where Mr Wunungmurra advised her that he must have got confused.30 She says that she:

…said, "Okay." I then had to issue or hand over a letter from the CEO which is the chief executive officer of East Arnhem Regional Council. I was instructed to do that through my director, Ben Waugh, and that’s when I asked Ross to come to my office, because there was no way was I going to present the document in front of the staff. 31

[65] Ms Roper says that she met with Mr Wunungmurra privately and discussed the matters with him and provided him with a leave without pay application. She says it was clear to Mr Wunungmurra that he had filled in his timesheet incorrectly. Ms Roper then gave evidence that:

After that business was finished, I advised him that I had been instructed to provide him with a letter. The letter was not from me. It was actually signed by Barry Bonthuys, the acting CEO. 32

[66] It is apparent from her evidence that Ms Roper was instructed to terminate Mr Wunungmurra’s employment on that day but prior to meeting with him. She said she was “not delegated to engage in any arrangements in regard to that letter. I was merely asked to deliver it to him and to ensure that he had received it, so that’s what I did.” 33

[67] It was not put to Mr Wunungmurra that his employment may be terminated because of these issues. Nor was he invited to provide any explanation in relation to the specific matters raised. It is apparent, given the instructions to Ms Roper, that Mr Wunungmurra could not have influenced the decision to terminate his employment as that decision had already been made by people who were not at the meeting. Ms Roper did not believe she had any capacity to do anything except deliver the letter, regardless of what Mr Wunungmurra may have said. As Ms Roper said, she was no more than the means of delivery of a decision already made.

[68] As to whether Mr Wunungmurra was given an opportunity to respond, Ms Roper said that the letter of termination invited him to raise any issues with Mr Barry Bonthuys, the acting Chief Executive Officer and signatory of the letter. Ms Roper also said that she was not aware if Mr Wunungmurra had the opportunity to respond to the new allegations raised in the letter of termination. 34 She conceded however that the opportunity to respond was only afforded after Mr Wunungmurra’s employment had been terminated.

[69] In relation to the final warning letter dated 24 January 2018 I do note that it appears to have included an expiration date. The letter said, in part:

…If significant improvement in your performance is not achieved by 22 February 2018 your employment may be terminated. [emphasis added]

[70] Whilst it may have been foolish of Mr Wunungmurra to ignore the gravity of warnings given to him, there is no evidence that his performance did not improve by 22 February 2018 such that he might fully understand the consequences of future misconduct issues such as recording working times.

[71] While I appreciate that the remoteness of the community in which Mr Wunungmurra works might create particular challenges, there is no reason the issues identified with Mr Wunungmurra’s record keeping in the fortnight ending 25 March 2018 could not have been put to him in writing and some explanation sought prior to a decision being taken to terminate his employment. That Mr Wunungmurra was on a final warning does not excuse the Council from affording procedural fairness to him and given him an opportunity to respond prior to a decision being made.

[72] I am not satisfied that Mr Wunungmurra was afforded procedural fairness in this respect.

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

[73] Mr Wunungmurra was not advised that the meeting with Ms Roper on 27 March 2018 was for the purpose of discussing his misconduct with respect to his timesheets.

[74] Even on Ms Roper’s account, and taking the most generous view of the meeting of 27 March 2018, Mr Wunungmurra could not have asked for a support person as he was not aware of the purpose of the meeting and he did not become aware of that until his employment was terminated. It is not clear what would have occurred had Mr Wunungmurra sought that the meeting be stopped, as Ms Roper said her sole role was to deliver the letter of termination and nothing more.

[75] While Mr Wunungmurra was not unreasonably denied access to a support person I am not satisfied that he was ever aware that he might need one.

[76] The actions of Council in this respect leave much to be desired in terms of its openness with its employee.

Section 387(e) - unsatisfactory performance

[77] Mr Wunungmurra’s employment was not terminated for matters associated with his performance. Whilst issues with his performance were alluded to in the 24 January 2018 final warning letter there is nothing before me to suggest this formed the basis for his dismissal although I accept that it forms part of the historical narrative.

[78] I therefore do not consider this a matter to further consider.

Section 387(f) and (g) – the size of the employer’s business and absence of dedicated human resource management specialists or expertise

[79] Council is a large employer with 301 employees at the time Mr Wunungmurra was dismissed. It engages the services of Latitude 12, an organisation which the Commission understands provides human resources, pay roll and like services to regional Australia in the Northern Territory. The notes Ms Roper constructed following her meeting with Mr Wunungmurra on 27 March 2018 were emailed to Mr Smith of Latitude 12.

[80] I accept however that Council is affected by the remote nature of its operations and that its operations are spread over a geographically large area.

[81] I would expect however that an organisation of some 300 employees that does operate in a remote area and has a geographically diverse workforce would have developed policies and procedures that would minimise errors in the processes utilised to dismiss an employee for reasons of misconduct or poor performance.

[82] Further, through Latitude 12, it appears Council does have access to human resource specialists such that it should be expected to be in receipt of sound advice in relation to effecting dismissal. It is disappointing that, in this case, it does not appear to be so. Rather Council appears to have confused conduct and performance, using the terms interchangeably; put an expiration date apparently on the final written warning delivered to Mr Wunungmurra on 24 January 2018, resolved certain issues apparently satisfactorily but then relied on these to support the decision to dismiss and failed to afford Mr Wunungmurra procedural fairness.

[83] In these circumstances it could be suggested that Council review its processes or, if they are solid and well based, review what caused the missteps apparent in this case.

Section 387(h) – any other matters

[84] I have dismissed Mr Wunungmurra’s past transgressions as providing a basis for the reason for dismissal. It does not however mean that they are inconsequential in determining if the dismissal was harsh, unjust or unreasonable.

[85] I have considered those matters (previous warnings and discussions at team meetings on recording working times) but, in circumstances where there is no valid reason for dismissal they add little to my decision as to whether the dismissal was harsh, unjust or unreasonable.

[86] I would also add that the attempts to taint Mr Wunungmurra in relation to his preparedness to meet with Ms Roper following delivery of the 24 January 2018 final warning letter does not do credit to Council. It did not seek to cross-examine Mr Collins or Mr Honan to test their claims that there was a meeting between Mr Wunungmurra and Ms Roper on 12 February 2018 and that attempts were made to set a further meeting time around 20 March 2018.

Conclusion

[87] There was no valid reason for the dismissal of Mr Wunungmurra. Further, the process by which Mr Wunungmurra’s employment was terminated was lacking in almost every respect. In these circumstances I am satisfied that the dismissal was both harsh and unjust.

[88] Even if I had found that there was a valid reason the lack of procedural fairness would have convinced me that the termination was otherwise unjust. I am not satisfied that, had Mr Wunungmurra been afforded procedural fairness, a different result might not have been the outcome. I am satisfied of this in part because Mr Wunungmurra had been represented by his union in relation to matters with Council and it is likely, had he been given time, he would have engaged its assistance again.

[89] Having found that the dismissal was harsh and unjust I am therefore satisfied that Mr Wunungmurra was unfairly dismissed.

Remedy

[90] The parties have made brief submissions with respect to remedy. Mr Wunungmurra seeks reinstatement and this is opposed by Council.

[91] My preliminary (but not concluded) view is that reinstatement is not inappropriate. I am aware that Mr Wunungmurra lives in a relatively remote community and am not of the view that the Commission has adequately detailed submissions to reach a concluded view on this point. For this reason further directions shall be issued in relation to remedy.

COMMISSIONER

Appearances:

D. Yali for the applicant.

S. Smith for the respondent.

Hearing details:

2018.

Darwin:

August 2, 3, 7.

Final written submissions:

Applicant: 25 August 2018 and 15 September 2018.

Respondent: 7 September 2018.

Printed by authority of the Commonwealth Government Printer

<PR702048>

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

 2   Exhibit A19.

 3   Exhibit A20.

 4   Exhibit A22.

 5   Glenn Gurruwiwi, Verna Wunungmurra, Lisa Dhurrkay, Lama Thorne, Ruth Dhurrkay, James Gumbula and Geoffrey Damaranji, Galiwin’ku community members.

 6   Exhibit A16.

 7   Exhibit A18.

 8   Exhibit A17.

 9   Exhibit A9.

 10   Exhibit A10.

 11   Fair Work Act 2009, s.396.

 12   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at p. 373.

 13   Exhibit A10.

 14   Exhibit R2.

 15   Transcript PN899.

 16   Exhibit A11.

 17   Transcript PN506.

 18   Transcript PN524-PN525.

 19   Exhibit R2.

 20   Transcript PN526 and PN530.

 21   Transcript PN581 and PN589.

 22   Transcript PN565 and PN570-PN578.

 23   Transcript PN589.

 24   Transcript PN1367.

 25   Annetta v Ansett Australia Ltd Print (2000) 98 IR 233 at [10].

 26   Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897 at [70]–[73].

 27   Previsic v Australian Quarantine Inspection Services Print Q3730.

 28   Print S5897.

 29   Transcript PN884.

 30   Transcript PN885.

 31   Ibid.

 32   Transcript PN886.

 33   Transcript PN887.

 34   Transcript PN1290.