Fair Work Act 2009

s.365 - General protections (consent arbitration)

Application to deal with contraventions involving dismissal (consent arbitration) - remedy.

[1] This decision concerns the remedy to be awarded in the above matters. I issued Directions to the parties on 12 July 2018 regarding the filing of materials relating to pay records and figures to be used for calculating quantum of remedy. Pay records and submissions were filed by all parties in compliance with these Directions. The parties consented to the decision concerning remedy being dealt with on the papers.

[2] The orders that may be made by the Commission when dealing with a general protections dismissal dispute are set out within s.369 as follows;

"Dealing with a dismissal dispute by arbitration

(a) the FWC issues a certificate under paragraph 368(3)(a) in relation to the dispute; and

(b) the parties notify the FWC that they agree to the FWC arbitrating the dispute; and

(c) the notification:

• (i) is given to the FWC within 14 days after the day the certificate is issued, or within such period as the FWC allows on an application made during or after those 14 days; and
• (ii) complies with any requirements prescribed by the procedural rules; and

(d) sections 726, 728, 729, 730, 731 and 732 do not apply.

Note: Sections 726, 728, 729, 730, 731 and 732 prevent multiple applications or complaints of a kind referred to in those sections from being made in relation to the same dispute. A notification can only be made under this section where there is no such other application or complaint in relation to the dispute at the time the notification is made. Generally, once a notification is made no such application or complaint can be made in relation to the dispute (see section 727).

(2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:

(a) an order for reinstatement of the person;

(b) an order for the payment of compensation to the person;

(d) an order for payment of an amount to the person for remuneration lost;

• (c) an order to maintain the continuity of the person's employment;

(e) an order to maintain the period of the person's continuous service with the

(3) A person to whom an order under subsection (2) applies must not contravene a term of the order.

Note: This subsection is a civil remedy provision (see Part 4-1)."

[3] The Applicants made submissions that they were not anticipating the scope of Winnaa's submissions, and suggest that they go further than directed by my Chambers.

[4] Winnaa submitted that it relies on submissions already made on the balance of compensation issues, namely:

• (a) the correct approach to assessing compensation - there must be a causal link between the loss and the contravention;

• (b) the absence in this case of any evidence upon which the Commission could safely base a finding that these are special categories of hurt and humiliation beyond the distress associated with any dismissal;

• (c) following the removal of the Kitchener Brown lineage from membership of the Barada Barna Aboriginal Corporation (BBAC), none of the applicants could have been engaged to perform cultural heritage work;

• (d) substantial discounts ought to be applied to any figure of compensation having regard to:

  • (i) the Applicants' positions being casual;

  • (ii) the failure of the Applicants to mitigate their loss;

  • (iii) the fact that Ms Roos, when dismissed, was about to receive a first and final warning for conduct relating to her use of a company motor vehicle; and

  • (iv) discounts for contingencies should be applied when making any award for future economic loss somewhere in the order of 25%.

[5] Winnaa submitted that all three Applicants were employed on 22 February 2016 by Windbrake Pty Ltd, which later changed its name to Winnaa Pty Ltd, and were dismissed on 12 August 2016.

[6] It submitted that the total period of employment was 24 weeks and 4 days, equalling 24.57 weeks. In accordance with their individual earnings, Winnaa submitted:

• Ms Roos earned a total of $30,590.00 gross over 24.57 weeks, with a gross average weekly wage of $1,245.01.

• Mr Roos earned a total of $30,480.00 gross over 24.57 weeks, with a gross average weekly wage of $1,240.54.

• Ms Dargan earned a total of $24,930.00 gross over 24.57 weeks, with a gross average weekly wage of $1,014.65.

[7] Winnaa made submissions that from the Applicants' dismissals to 29 April 2017 when BBAC determined to exclude the Kitchener Brown line from membership was 37 weeks. It submitted that for that period, a maximum of 21.5 weeks of work would have been offered, and when calculated using the above average weekly earnings would have made them eligible to the following:

• Ms Roos - $26,767.71.

• Mr Roos - $26,671.61.

• Ms Dargan - $21,814.97.

[8] Winnaa relied on the case of Masson-Forbes v Gaetjens Real Estate Pty Ltd [2015] FWC 4329 for the proposition that a deduction in compensation for future economic loss should be made for contingencies. In that case, a deduction of 15% was made for the contingency that the Applicant may not have served the whole of the remaining period of employment for reasons such as ill health or other related factors, or matters relating to the Respondent's business conditions.

[9] Winnaa submitted that a deduction of at least 25% was more appropriate in this case given the casual nature of Mr and Ms Roos' employment.

[10] Taking into account the contingencies by the nominal figure of 25%, the following sums are submitted:

• Ms Roos - $20,075.85.

• Mr Roos - $20,003.66.

• Ms Dargan - $16,361.26.

[11] Winnaa then submitted that giving consideration to the first and final warning which it stated was to be given to Ms Roos, a discount of much greater than 25% should be applied. Due to the uncertainty of her employment, Winnaa submitted that her sum should be given a discount in the order of 50%, which would bring the above figure of compensation for economic loss to $13,383.85.

[12] Further, it submitted that in accordance with her statement of 23 November 2017, Ms Roos states she has received Centrelink payments since her dismissal. No sum is provided in relation to these payments.

[13] Mr Roos also provides in his statement of 23 November 2017 that he is on a Centrelink Newstart Allowance, at $480 a fortnight but does not confirm the period he has been receiving such payments.

[14] Winnaa submitted that Ms Dargan did not put evidence about how much she has earned since dismissal.

[15] Winnaa submitted that further discounts should be applied "to cover the absence of any evidence of the actual income over the relevant periods of time for each applicant."

[16] Regarding mitigation of loss, Winnaa submitted that Mr Roos put no evidence of attempts to mitigate for which the Commission should apply a further discount to compensation. It submitted that on the evidence, Mr Roos did nothing to mitigate his loss and therefore any award of compensation for economic loss should be discounted by at least 70% of the above noted figure, bringing the total to $8,001.48 in compensation for economic loss.

[17] On Ms Dargan's evidence, Winnaa submitted that it was around six months after her dismissal that Ms Dargan enrolled in a construction trade start program. She obtained employment in the construction field in June 2017. Winnaa notes her experience in hospitality, and states that she does not appear to have made attempts to mitigate loss prior to enrolling in the program, nor has she provided evidence of her earnings over the relevant period. For these reasons, Winnaa submitted that any award of compensation for economic loss should be discounted by at least 50%, which would bring her abovementioned total to $10,907.48.

[18] Winnaa submitted that, on the evidence, there is nothing to suggest the Applicants experienced "anything more than the distress associated with any dismissal."

[19] It submitted that Ms Roos invites error by seeking "an enormous award of general damages." It submitted that the Applicants point to hurt and humiliation arising from the dismissals as it had the effect of excluding them from the Barada Barna people. Winnaa submitted that this argument is flawed as "it confuses the effect of the dismissals with that of the BBAC deciding to exclude the Kitchener Brown line from membership."

[20] Winnaa submitted that there is nothing to suggest the Applicants experienced hurt as a result of a contravention of s.351(1) of the Act, above the usual distress associated with a dismissal. Alternatively, Winnaa submitted that there is "an abundance of evidence" proving the hurt suffered came from a source, or sources, other than a contravention of the Act and therefore there should be no order for general damages.

[21] Ms Roos and Mr Roos provided joint submissions as to remedy.

[22] Regarding Winnaa's submissions, Ms Roos and Mr Roos argued that submissions were made by Winnaa which they were not entitled to make. Notably, they submitted that Winnaa argued a 50% reduction should be made because Ms Roos would have received a final written warning. They submitted that no evidence was lead that the warning would have been issued, and further that there is evidence that Mr and Ms Roos were considered the "base crew", which is an indication their employment would have continued. They submitted that as this suggestion was not put to Ms Roos for response, raising it now offends the rule in Browne v Dunn[1] and hence should not be accepted by the Commission.

[23] Similarly, as to mitigation, they made submissions that matters relating to mitigation were not raised in cross-examination, and therefore the evidence in chief of Mr and Ms Roos must be accepted on this point. They made reference here to Precision Plastics Pty Ltd v Demir[2] where Gibbs J made comments that uncontradicted and unchallenged evidence on damages should be accepted.

[24] Ms Roos submitted that there is "plenty of evidence" before the Commission regarding her attempts to mitigate, including inquiries in relation to drawing on her superannuation.

[25] Mr Roos submitted that he has set out the difficulties he has experienced due to the dismissal, and how this has impacted his ability to find work.

[26] Mr and Ms Roos stated that the difficulties they face as indigenous Australians living in Central Queensland must be given consideration. They submit that Winnaa conceded in closing submissions the lower rates of employment for such individuals. They submitted that their ability to find work was further hindered by Winnaa not providing in writing, despite requests, the reasons for their dismissal. Not being able to inform prospective employers why their previous employment came to an abrupt end is, in their submission, a barrier to securing employment.

[27] Ms Roos gave unchallenged evidence that her home town, Innisfail, is an area of high unemployment. Further, she submitted that the Commission should have regard to the fact that she left school at the age of 16 with few qualifications, and is a single mother who cares for a large family which greatly impacts her ability to find "suitable long-term comparable employment."

[28] Mr and Ms Roos had remained unemployed until Ms Roos was contacted by Ms Carmel Dargan offering cultural heritage work in September 2015, following which they transferred to Woora.[3] They submit that they were fortunate to have secured this work.

[29] In further mitigation, it was submitted that Ms Roos commenced new employment on 9 January 2018. Mr Roos, however, has not been able to secure new employment since his employment with Winnaa ended.[4]

[30] Mr and Mrs Roos submitted the following:

• They initially worked for Woora, and were transferred to Windbrake/Winnaa. The BBAC Board could have dismissed them when it insourced the cultural heritage work to Windbrake but it chose not to;

• The meeting on 29 April 2017 is a red herring. The only issue decided on this date was Mr and Ms Roos' continued memberships of the BBAC; their status as Barada Barna people remains intact;

• Being Barada Barna and a BBAC member are two different things, and having their BBAC membership cancelled on 29 April 2017 would not necessarily have resulted in termination, nor was any evidence led by the Respondent to this effect;

• Ms Roos was being trained to be a Team Leader, which supports the Respondent had an intention to continue her employment; and

• Mr and Ms Roos were part of the "core crew" of CHOs.

[31] They submitted that Winnaa's submissions regarding any failure to adduce evidence as to economic losses cannot be accepted by the Commission. Winnaa did not cross-examine Mr and Ms Roos on such matters; they submitted that therefore their evidence is unchallenged and must stand.

[32] Mr and Ms Roos further submitted that Winnaa has not provided any formulae to support the significant reductions sought in the compensation; no authority is cited for a reduction of 70% for Mr Roos.

[33] Despite submissions of Winnaa that the Applicants have not "experienced anything more than the distress associated with any dismissal", Ms Roos submitted that the impact of the dismissal on herself and Mr Roos goes "far beyond the 'distress associated with any dismissal.'"

[34] Mr Roos points to his Reply Statement, where he submitted "Losing the job has been affecting my mental health negatively" and "I have a lot more to say about my dismissal but I am just not up to it at the moment." His mother gave evidence in support of his affected mental state, and its cause being the dismissal and loss of his brother.

[35] It was further submitted for Ms Roos that "heinous" racial discrimination should be given consideration and reflected in the award of compensation. Mr and Ms Roos submitted jointly that the principles for calculating compensation should be analogous to those regarding actions under the Racial Discrimination Act 1975 (Cth).[5]

[36] Further to provision of the employee records, Mr and Ms Roos submitted the following in relation to weekly earnings:

• Ms Roos: the total period of employment with Windbrake and Winnaa was 24 weeks and 2 days, of which she worked 21 weeks which equates to 86% of the period of her employment. A reduction of 14% for contingencies to economic loss is appropriate.

Her average earnings were $1,456.67 gross, $1,106.57 net per week.

• Mr Roos: the total period of employment with Windbrake and Winnaa was 24 weeks and 2 days, of which he worked 21 weeks which equates to 86% of the period of his employment. A reduction of 14% for contingencies for economic loss is appropriate.

His average earnings were $1,451.43 gross, $1,102.90 net per week.

[37] In Ms Dargan's submissions dated 25 January 2018, she sets out calculations for past economic loss. These calculations are based on the amount Ms Dargan would have been paid if she had continued work with Winnaa, less the amount she has earned from other work since, noting that her last paid work ended on 10 November 2017. Ms Dargan states she has reasonably mitigated her loss in this regard.

[38] Ms Dargan also states she should be entitled to future economic loss for a period of 12 weeks, which she said is the projected time for her to find new employment. Ms Dargan has calculated her total economic loss as $61,019.07.[6]

[39] Ms Dargan submitted further that she should be entitled to $20,000 as a reasonable amount by way of general damages. Ms Dargan refers to several cases of the Federal Circuit and Federal Magistrates Court dealing with awards of general damages for hurt, humiliation, distress and mental anguish caused by discrimination in the context of the Disability Discrimination Act 1992 (Cth).[7]

[40] By way of reply, Winnaa submitted that the authorities referred to by Ms Dargan could be distinguished factually from the circumstances of the case. Winnaa submitted that the case of Masson-Forbes v Gaetjens Real Estate Pty Ltd [2015] FWC 4329 is a more recent analysis providing more relevant comparators and statements of principles to the current case.[8]

[41] In closing submissions, Winnaa further submitted that Ms Dargan's submissions on loss included a calculation error. Ms Dargan does not concede this error, submitting that the calculation reflected an average of the payslips in her possession.[9]

[42] Ms Dargan submitted that in accordance with Winnaa's pay records, Winnaa's figure of $1014.65 accurately reflects Ms Dargan's weekly gross wage if averaged across her 24.56 weeks of employment. She submitted that this amount is appropriate for calculating both her current and future economic loss, provided there is no further adjustment to account for the casual nature of her employment. She further submitted that this figure is appropriate as it is an average, based on weeks worked and not worked, and so "already accounts for the unpaid absences which may occur from time to time".

[43] Ms Dargan notes that Winnaa submitted Ms Dargan failed to take reasonable steps in mitigation of loss. She urged that this submission be disregarded, primarily due to it not being a submission directed to correct figures.

[44] She submitted that Winnaa's submissions on mitigation are misleading, and rely on two assertions "which are plainly false". She submitted that Winnaa seems to have "innocently yet mistakenly" overlooked her evidence. Ms Dargan provided the following:

"a. The respondent asserts that Ms Dargan put on "no evidence whatsoever" of mitigation prior to her enrolment in a construction trade start program in February 2017. In fact, Ms Dargan put on evidence that after her dismissal she looked for work with other Aboriginal groups including the Turrbal people.

b. The respondent asserts that Ms Dargan did not put on any evidence of her earnings since dismissal. Ms Dargan's evidence was that she remained unemployed following her dismissal until she was employed by WorkPac in June 2017. Her final payslips for both the 2017 and 2018 financial year have been admitted into evidence. Based on that evidence Ms Dargan earned $31,708.93 following her dismissal as identified in previous submissions".

[45] Ms Dargan submitted that the respondent bears the onus of providing a failure to take reasonable steps in mitigation of loss. She submitted that she filed evidence on mitigation; Winnaa elected not to cross-examine her on that evidence. As evidence is closed, she submitted that Winnaa cannot in fairness make that submission now.

[46] It was said in Heraud v Roy Morgan Research Ltd (No 2) [2016] FCCA 1797 that the approach to calculation of economic compensation under the Fair Work Act should reflect the settled principles identified in Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60 regarding damages for actions in tort or contract.

[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).[10] It is for the employer to establish the facts going to the employee's alleged failure to mitigate his or her loss.[11]

[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.[12]

[49] A central issue to causation between the termination of employment and any compensation for the Applicants surrounds the effect of the determination made at a general meeting of the membership of the BBAC on 29 April 2017, that the Kitchener Brown line were no longer members of the BBAC.

[50] Winnaa submitted that, on 29 April 2017, the Applicants and all other descendants of Kitchener Brown were formally removed from BBAC membership such that the Applicants would have ceased to be engaged as Cultural Heritage Officers in any event.[13] This has the practical effect that no award for economic loss could be made after 29 April 2017, as there is no causal link to the termination, and therefore compensation, after that day.

[51] Accordingly, the Respondent submitted that the Applicants' compensation for economic loss should be limited to the 21.5 weeks work for that period between the termination on 12 August 2016 and the determination.

[52] The Applicants submitted they were part of the "core crew" of Cultural Heritage Officers. Ms Roos in particular submitted she was given extra training as a Team Leader above and beyond the requirements of the position. The Applicants submitted that this supports their contention that their work for Winnaa would have been ongoing despite the determination to remove the Kitchener Brown line membership.

[53] While it is understood that the question of whether the Kitchener Brown line was or was not Barada Barna remains unclear, in deciding the substantive dismissal applications I found that it was an inherent requirement of the position held by the Applicants to be Barada Barna.

[54] It was not, however, a requirement of the position that the Applicants be BBAC members. Although a person would necessarily qualify for membership if they could show they were a direct descendant of an apical ancestor, a person must first apply to be a member in order to become a member.[14] At no stage has it been argued by Winnaa that it was an inherent requirement of the Cultural Heritage Officer position that a prospective applicant be a member of the BBAC.

[55] Accordingly, the Applicants could have in a theoretical sense continued their employment as Cultural Heritage Officers with Winnaa despite the determination on 29 April 2017, as membership of the BBAC was not an inherent requirement of the position, and to that extent I accept the Applicants submission as being correct. However I also accept the Respondent's argument concerning the practical effect of the decision taken at the general meeting, and it would have been almost a certainty that in circumstances where the Applicants employment had remained on foot up until that time, the employment would have been brought to an end after the meeting of 29 April, and the employment would have been ended because of the outcome of that meeting. I am satisfied that would have had the effect of terminating the causal relationship between the contraventions found and the Applicants' loss.

[56] On that basis I have found compensation for economic loss is necessarily limited to no more than the 21.5 weeks work for that period between the termination on 12 August 2016 and the determination on 29 April 2017.

[57] On 12 July 2018, I directed Winnaa to provide to the Applicants any pay records it had for each of the three Applicants. On 16 July, the representatives for Winnaa confirmed that payslips and timesheets for each of the three Applicants covering the duration of their employment by Winnaa had been provided to the representatives for the Applicants.

[58] The parties were to confer and seek to reach agreement on matters concerning figures to be used for calculating the quantum of any compensation. The supplementary submissions on remedy from Ms Dargan helpfully agreed with the submission by Winnaa that she was paid $1,014.65 gross per week as averaged across 24.57 weeks of her employment with Winnaa.

[59] Mr and Ms Roos' situation is more complex. It was agreed that the issue of remedy would be dealt with on the papers however the further submissions did not clarifying the issue of Ms Roos' or Mr Roos' wages. Ms Roos and Mr Ross disputed the contention by Winnaa in earlier submissions that they worked at Winnaa for 24.57 weeks. They instead said that the employment period was 24 weeks but that they only worked and were paid for 21 weeks.

[60] There is a resulting factual disagreement regarding Ms Roos' and Mr Roos' average weekly earnings. Ms Roos said she was paid $1,456.67 gross per week, while Winnaa have submitted she was paid $1,245.01 gross per week. Similarly, Mr Roos said he was paid $1,451.43 gross per week, while Winnaa submitted he was paid $1,240.54 gross per week.

[61] The question to be considered prior to determining quantum is therefore whether the evidence discloses that Ms Roos and Mr Roos worked at Winnaa for 24.57 weeks, like Ms Dargan, or for 21 weeks as they said.

[62] It was agreed between the parties that the Applicants commenced employment on 22 February 2016, a Monday, and their employment was terminated on 12 August 2016, which was a Friday. This period is exactly 24.57 weeks which clearly accords with the submission by Winnaa regarding Mr and Ms Roos' employment period.

[63] I have had regard to the totality of the evidence - that being numerous statements, affidavits and other materials provided to the Commission in the course of this matter - and can find no justification for Ms Roos' and Mr Roos' contention that they only worked and were paid for 21 weeks as Cultural Heritage Officers with Winnaa. In the absence of evidence to the contrary, I accept Winnaa's submission that Mr and Ms Roos were employed and paid for 24.57 weeks.

[64] I also accept Winnaa's submission that the Applicants were each paid the following by way of a gross weekly wage. These figures accord with my own calculations averaging each Applicants' weekly wage across the relevant period of 24.57 weeks:

• Ms Roos - $1,245.01 per week, gross

• Mr Roos - $1,240.54 per week, gross

• Ms Dargan - $1,014.65 per week, gross

[65] The Applicants were entitled to superannuation contributions at the rate pf 9.5%. It is also appropriate that in assessing compensation lost superannuation contributions should be included in the assessment.

[66] In assessing compensation, it is necessary to take into account the totality of the evidence and all the circumstances of the case including how long the Applicants would have remained in employment. I have already concluded that the Applicants would not have been employed beyond 29 April 2017, a period of a further 21.5 weeks.

[67] Ms Roos' employment contract with Windbrake, as a Cultural Heritage Officer, provides that she was employed on a casual basis with no guarantee of ongoing or regular work.[15] The contract also provides an employee will generally work a 10 hour day, but this is on an as needed basis.

[68] Regarding termination of employment, the contract provides that employment may be terminated at any time without notice, but that one weeks' notice or one weeks' pay in lieu of notice may be provided at the employer's absolute discretion.

[69] There was no evidence or suggestion by Winnaa to the effect that there was dissatisfaction regarding the Applicants performance, with the exception of the matter of a potential warning being given to Ms Roos on a specific issue. The warning was never issued, and there was no detailed evidence about the matter. I have decided not to afford the matter any weight. However, Winnaa did submit that the demand for cultural heritage work fluctuated, being contingent upon the requirements of resource companies along with the weather, as most of the duties of the position were performed on Country. I am inclined to accept that the demand for cultural heritage work can be subject to fluctuation.

[70] It is also the case that the period of employment of each of the Applicants was relatively brief. I have found previously in this decision that each Applicant served a period of 24.57 weeks employment with Winnaa. That period is from the start date, as agreed between the parties, of 22 February 2016 to the termination of the Applicants on 12 August 2016. The length of service of each Applicant was not indicative of itself that the employment relationship was likely to be long lived.

[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)

[73] Regarding a deduction for contingencies, 15% was described as "the usual figure" in Sagona v R & C Piccoli Investments Pty Ltd & Ors [2014] FCCA 875 at [358]. A deduction of 15% was also applied in Masson-Forbes.[16] Both of those cases concerned applicants who were in salaried full-time positions, not casual positions.

[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 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).

[76] In the circumstances I have concluded it is appropriate to make a deduction of 25% on the basis of contingencies. That reduces the amount of compensation for economic loss as follows:

• Ms Roos - $24,900.20 - 25% = $18,675.15

• Mr Roos - $24,810.80 - 25% = $18,608.10

• Ms Dargan - $20,293.00 - 25% = $15,219.75

[77] The Applicants submitted that the Commission should take notice of the difficulties facing Aboriginal people in securing employment, particularly in regional Queensland. I accept that submission and have had regard to it. Each of the Applicants provided brief evidence relevant to this issue and was not subjected to cross examination on the matter.

[78] Ms Roos submitted that she commenced new employment on 9 January 2018. I will not make deductions on the basis of this employment as it did not involve monies earned during the period from termination until the end of the anticipated period of employment. Ms Roos also made the submission that she applied for and received NewStart allowance at some point when she was unemployed.

[79] Mr Roos submitted that he has not been able to find alternative employment since the dismissal, but did lead evidence that he applied for and received NewStart allowance through Centrelink.

[80] Ms Dargan submitted that she had looked for work with other Aboriginal groups including the Turrbal people since her dismissal. Ms Dargan said she secured employment with WorkPac in June 2017. For the same reasons as set out above concerning Ms Roos, I make no deduction on the basis of this income.

[81] There was some limited evidence of Ms Roos and Mr Roos applying for and receiving a Centrelink benefit while looking for alternative employment. Little evidence regarding the period or amounts have been submitted. I do not regard Centrelink benefits as remuneration or earnings and make no deduction on account of Centrelink benefits.

[82] I find that each Applicant has made reasonable efforts to mitigate their loss and there is no basis for any further deduction for this reason.

[83] It is appropriate in all the circumstances of the case that the following amounts of compensation are awarded to each Applicant.

[84] Ms Roos is entitled to an award of compensation of $18,675.15 plus 9.5% superannuation for economic loss, less deduction of any tax as required by law.

[85] Mr Roos is entitled to an award of compensation of $18,608.10 plus 9.5% superannuation for economic loss, less deduction of any tax as required by law.

[86] Ms Dargan is entitled to an award of compensation of $15,219.75 plus 9.5% superannuation for economic loss, less deduction of any tax as required by law.

[87] The task of assessing general damages, in the context of the Fair Work Act 2009, is a difficult one, given that the facts and circumstances of each case and the applicant concerned are necessarily idiosyncratic.[17] A compensatory order for distress, hurt and humiliation is available only if the applicant concerned has in fact suffered distress, hurt and humiliation, as a result of the contravention of the Fair Work Act.[18]

[88] As was noted in Masson-Forbes, an award of compensation under s.369 contains no prohibition of the type found in s.392(4) relating to disregarding components of compensation for shock, distress or humiliation caused by the manner of the dismissal.[19]

[89] An award of compensation for non-economic loss was considered in the context of a general protections matter in Ucchino v Acorp Pty limited [2012] FMCA 9 (Ucchino). In that case, Jarret FM, at [78], considered Greenwood J's remarks and summary of the relevant authorities in McIlwain v Ramsey Food Packaging Pty Ltd (No 4) [2006] FCA 1302; (2006) 158 IR 181 at [87] as instructive of the principles for the assessment of compensation for non-economic loss in such a case.

[90] Burazin v Blacktown City Guardian Pty Ltd [1996] IRCA 371 at 156 was referred to, where it was said there must be:

"unusual exacerbating circumstances that make it appropriate to include in the compensation an allowance for distress unnecessarily caused to [the Applicant]".

[91] Marshall J in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ACI Operations Pty Ltd [2006] FCA 122 at [11] concluded further that "something more than the usual element of distress which accompanies most terminations must be demonstrated."

[92] Regarding the level of distress "accompanying most terminations", it should be noted that Jarret FM in Ucchino declined to award compensation for non-economic loss where the applicant was merely embarrassed about her termination and by the questions asked of her by those living around her in a close community.[20]

[93] Courts have also taken into account the following factors in the context of non-economic loss for general protections matters:

• what an applicant has deposed to and what a reasonable person might feel on the basis of certain conduct directed at them;[21]

• the lack of probative evidence other than the applicant's "display of despondency, disappointment and anger" and the circumstances of their summary dismissal;[22] and

• the conduct of the Respondent, not only in how they treated the party to be compensated, but also that they may have subsequently provided an apology, or an undertaking about future conduct, or a recognition they may need to receive treatment.[23]

[94] Ms Roos and Mr Roos submitted that Winnaa humiliated and offended them among their peers when Winnaa insisted on DNA testing following termination of their employment. It was submitted that DNA testing is commonly seen as offensive and insulting to Aboriginal people, where it involves exhuming deceased ancestors. Ms Roos and Mr Roos further submitted that this humiliation should be viewed in the context of the close association they had with the Barada Barna Charitable Trust Board since 2015.[24]

[95] Prior to the events surrounding the dismissal, the Applicants had lived their lives under the belief that Kitchener Brown was their apical ancestor and that Kitchener Brown was a Barada Barna man. However, as Winnaa have submitted, the Applicants and all other descendants of Kitchener Brown were formally removed from Barada Barna membership on 29 April 2017. The dismissals occurred prior to this on 12 August 2016.

[96] Winnaa have submitted further that it is impossible to draw a distinction between the humiliation arising from being removed from Barada Barna membership and the dismissals that preceded the event. It was submitted that no psychiatric evidence has been provided apportioning a percentage of humiliation to the dismissal and a percentage to the Applicants' removal.[25] In any event, Winnaa say that the alleged humiliation and offence caused by the offer of DNA testing to the Applicants has no causal connection to the contravention of s.351, as it was offered after the dismissal and to all descendants of Kitchener Brown.[26]

[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.

[99] Mr and Ms Roos each claim $40,000 compensation for non-economic loss. Ms Dargan claims $20,000. The following cases are illustrative of what could be considered as the upper end of the scale regarding compensation for non-economic loss in an employment law context:

• Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 concerned an award of damages for non-economic loss for sexual harassment of an employee. The applicant suffered chronic adjustment disorder with mixed features of anxiety and depression as a result of the incident. It was found by the Full Court on appeal, that an award of $18,000 was adequate in the circumstances.

• In TWU v Atkins [2014] FCCA 1553, an award of $10,000 compensation for non-economic loss was made in circumstances where the respondent had continued to threaten the applicant with violence and harass the applicant outside of the work environment. In that case, the court was so concerned by the respondent's behaviour that he was ordered to undertake counselling in relation to his behaviour.

[100] Mortimer J in Dalfallah v Fair Work Commission [2014] FCA 328 found that while the Applicant had suffered "tangible emotional upset" both in regards to the dismissal and the warning processes that preceded, there was no evidence of psychological damage or treatment, and an award of $3,000 for non-economic loss was made.

[101] As was pointed out by Winnaa, none of the Applicants in this case have submitted medical evidence of psychological assessment, recognised injury or treatment resulting from the unfortunate circumstances surrounding the dismissal of the Applicants. Nor does it appear that there were aggravating circumstances personal to any of the Applicants, such as threats of violence or harassment, caused by the dismissal or occurring as a result of the dismissal.

[102] 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 Applicants 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 Applicants 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.

[103] For the reasons I also articulated in the substantive decision on these dismissal applications, 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.[27]

[104] I find that the emotional loss suffered by each Applicant, in being denied what they described as rewarding work on Country for an organisation, membership and community whose goals aligned with their own, went beyond the usual level of distress accompanying most terminations. In the circumstances, I find that an amount of $5,000 for non-economic loss should be awarded to each Applicant.

[105] Orders requiring Winnaa to make payments to the Applicants for economic and non-economic loss will be issued with this decision. The orders will require payment within 21 days of the date of this decision.

[2] [1975] HCA 27; (1975) 132 CLR 362.

[3] See Witness Statement of Loretta Roos dated 22 September 2017, at [40]-[42].

[4] Written Submissions for Loretta Roos & Andrew Roos dated 24 January 2018, Annexures A and B.

[5] Written Submissions for Loretta Roos & Andrew Roos dated 24 January 2018, at [86].

[6] Applicants' Closing Submissions dated 25 January 2018, Annexure A.

[7] Applicants' Closing Submissions dated 25 January 2018, Annexure B.

[8] Outline of Submissions for the Respondent dated 2 March 2018 at [97], [98].

[9] Applicant's Reply Submissions dated 23 March 2018.

[10] Heraud v Roy Morgan Research Ltd (No 2) [2016] FCCA 1797 at [4].

[11] Harding v Harding [1928] NSWStRp 103.

[12] Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333 at 423.

[13] Closing Submissions for the Respondent dated 2 March 2018 at [88].

[14] The rule book of Barada Barna Aboriginal Corporation RNTBC (ICN 8343), clause 5.1.

[15] Affidavit of Loretta Lynn Roos affirmed 22 August 2017, Annexure LR8.

[16] Masson-Forbes v Gaetjens Real Estate Pty Ltd [2015] FWC 4329.

[17] Hoskin v Tone Block Pty Ltd & Anor [2017] FCCA 2897 at [109].

[18] Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333.

[19] Masson-Forbes v Gaetjens Real Estate Pty Ltd [2015] FWC 4329 at [137].

[20] Ucchino v Acorp Pty limited [2012] FMCA 9 at [79].

[21] Hall v City Country Hotel Management Pty Ltd & Ors (No.2) [2014] FCCA 2317 at [36].

[22] Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27 at [316].

[23] Transport Workers' Union of Australia v Atkins [2014] FCCA 1553 14 at [22].

[24] Written Submissions for Loretta Roos & Andrew Roos dated 24 January 2018 at [84].

[25] Closing Submissions of the Respondent dated 2 March 2018 at [93].

[26] Closing Submissions of the Respondent dated 2 March 2018 at [95].

[27] [2018] FWC 3568 at [374].

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