Additional damages awarded for 'emotional upset' in unlawful termination by Aboriginal Corporation

The Fair Work Commission recently awarded three cultural officers additional damages after being unlawfully terminated by an Aboriginal Corporation, where membership eligibility was an issue.

Employee relations specialist Zev Costi reviewed this recent decision of Andrew Roos; Loretta Roos; Bree Dargan v Winnaa Pty Ltd [2018] FWC 5692 (12 September 2018) by the Fair Work Commission (the Commission), providing the following commentary for MPS Law.

The facts

  • Winnaa Pty Ltd (Winnaa), a part of the Barada Barna Aboriginal Corporation, took adverse action against three cultural officers by terminating their employment on the basis of social origin or national extraction contrary to the Fair Work Act 2009 (Cth).  

  • Winnaa argued that the reason for dismissal was protected because the “inherent requirements” of the officer’s positions required to have ancestral connection.

  • The officers said their ancestor was always considered a Barada Barna man, was listed as an apical ancestor on a number of previous Barada Barna native title claims and had his remains exhumed and returned to Nebo in 2008. 

  • In defence, Winnaa said that when it asked them to provide evidence, they failed to prove their ancestor was biologically related to the Barada Barna people. In response to suggestions for DNA testing, the officers said such testing was offensive. 

Findings

The Commission accepted that the officer positions did have an “inherent requirement” to have an ancestral connection.

However, the Commission found that termination was bungled because, at the time of the dismissal, a decision of the board to remove the relevant apical ancestor was still under consideration. As a result, Winnaa hadn’t at that point positively established the officers had a lack of ancestral connection.

The Commission awarded the non-economic damages in recognition of "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".

In calculating compensation for non-economic loss, the Commission reviewed other employment case law and compared the facts to this matter.

The Commission found, at [102], that:

While there is no precise way of defining “tangible emotional upset” in any case, the circumstances surrounding this case have made it clear that the central issue for the [officers] is their identity as Barada Barna people in the context of their employment with Winnaa. I find accordingly that the extent of any “tangible emotional upset” experienced by the [officers] on the facts presented before me can be informed and, indeed, limited to the fact that their membership of the BBAC has been discontinued some months after, and in connection with the circumstances surrounding their dismissal.

The Commission further found, at [103] that, “questions of discrimination arising from the [officer’s] 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.” (See, also, Andrew Roos; Loretta Roos; Bree Dargan v Winnaa Pty Ltd [2018] FWC 3568 (19 June 2018))

The Commission ordered the payment of $67,503 to the officers including $15,000 in general damages for “emotional upset”. Damages for “emotional upset” are rare in adverse action decisions.

Significance

This decision serves as an important reminder to Aboriginal Corporations that terminations should be very carefully considered as their impact can have greater consequence than most terminations.  Employees of Aboriginal Corporations can potentially suffer a higher level of distress from no longer working with a community or on country that they assert a connection with.

In addition, Aboriginal Corporation boards should be aware of the consequences of changes in policy or rules for establishing traditional connection and membership, and, delays in decision making.

Zev Costi is the director at Strategic Employee Relations, specialising in the delivery of commercial and innovative employee relations solutions. For more information about SER, visit www.strategicemployeerelations.com.au or email zev@strategicemployeerelations.com.au.