Fair Work Act 2009

s.394 - Unfair dismissal

The Gladstone Aboriginal and Islanders Co-Operative Society Limited

Application for relief from unfair dismissal - dismissal consistent with Small Business Fair Dismissal Code - application dismissed.

[1] The Gladstone Aboriginal and Islanders Co-Operative Society Limited (GAICS) was established more than 50 years ago to provide housing, accommodation, and other support to Australian Aboriginal and Torres Strait Islander people in the Gladstone area. Neville Johnson commenced part-time employment with GAICS as Managing Director in around June 2021. Mr Johnson's relationship with GAICS' board of directors deteriorated in late 2024. Mr Johnson dismissed GAICS' Housing Officer, Aunty Marilyn Smith, on 25 November 2024 without seeking approval from the board. On the same date, Mr Johnson sent a letter purporting to remove the GAICS Secretary, Aunty Neola Savage, from her position on the GAICS board, again without seeking board approval. On 1 December 2024, the GAICS board met and unanimously carried a vote of no confidence in respect of Mr Johnson's position as Managing Director. Mr Johnson was subsequently summarily dismissed via a termination letter dated 6 December 2024. This decision concerns whether Mr Johnson was unfairly dismissed by GAICS.

[2] A schedule identifying the evidence and submissions relied upon by the parties is attached at the end of this decision. I granted GAICS permission to be represented by a lawyer on the basis that representation would enable the matter to be dealt with more efficiently. A hearing was held via video on 19 May 2025. Aunty Marilyn Smith and Aunty Neola Savage were cross-examined on their evidence during the hearing. The other witnesses were not required for cross-examination. I have considered all the evidence and submissions.

[3] Under s.396 of the Fair Work Act 2009 (FW Act), the Commission is obliged to decide the following matters before considering the merits of an unfair dismissal application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code (SBFDC);

(d) whether the dismissal was a case of genuine redundancy.

[4] Mr Johnson's unfair dismissal application was filed on 19 December 2024, which was within 21 days of his dismissal taking effect on 6 December 2024.

Was Mr Johnson a person protected from unfair dismissal?

[5] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high-income threshold.

[6] There is no dispute that GAICS had only three employees when Mr Johnson was dismissed on 6 December 2024. Mr Johnson was employed by GAICS for over three years, which means he had completed the minimum employment period of 12 months for a small business.

[7] GAICS accepted in its Form F3 that the Social, Community, Home Care and Disability Services Industry Award 2010 covered Mr Johnson's employment with GAICS. Mr Johnson's annual rate of earnings was also below the high-income threshold.

[8] I find Mr Johnson was a person protected from unfair dismissal.

[9] Mr Johnson was dismissed for alleged serious misconduct. GAICS did not argue that the dismissal was a case of genuine redundancy. I find Mr Johnson's dismissal was not a case of genuine redundancy.

Was Mr Johnson's dismissal consistent with the Small Business Fair Dismissal Code?

[10] GAICS summarily dismissed Mr Johnson for alleged serious misconduct on 6 December 2024. Mr Johnson's termination letter identified the following issues:

1. Not providing financial reports to the GAICS board as directed.

2. Not providing budgets and other necessary documents to the GAICS board as directed.

3. Failing to inform the GAICS board about important financial issues.

4. Failing to source insurance for GAICS' properties as directed.

5. Failing to provide a waiting list for house allocations as directed.

6. Allocating GAICS' houses to family members without board approval.

7. Failing to provide reports to GAICS board meetings as directed.

[11] In Pinawin v Domingo[1], a Full Bench of then Fair Work Australia stated the following concerning the test to be applied for summary dismissal under the SBFDC at [29]:

"There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee's conduct was sufficiently serious to justify immediate dismissal.

Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held."

[12] The five GAICS board members that unanimously moved a no confidence motion against Mr Johnson on 1 December 2024 all provided evidence to explain their decision in these proceedings. None of this evidence was undermined in cross-examination. It is clear the GAICS board members held a belief that Mr Johnson's conduct was sufficiently serious to justify immediate dismissal. The first step in determining whether Mr Johnson's summary dismissal was consistent with the SBFDC is satisfied.

[13] I consider the GAICS board members' concerns about Mr Johnson's conduct were based on reasonable grounds and based on a reasonable investigation. It is clear the board members' concerns about Mr Johnson's conduct had been escalating in late 2024. Mr Johnson then acted without board approval in dismissing Aunty Marilyn and purported to remove Aunty Neola as Secretary of the GAICS board. These actions brought the issues with Mr Johnson's conduct to a head. The GAICS board members discussed their concerns about Mr Johnson's conduct during the board meeting on 1 December 2024 and all members approved a no confidence motion concerning Mr Johnson in his role as Managing Director. The GAICS board members then sought legal advice and proceeded to summarily dismiss Mr Johnson on 6 December 2024. I consider these actions constituted a reasonable investigation in the circumstances, given the extensive evidence that was before the board about Mr Johnson's conduct. Mr Johnson has not provided evidence to establish that any of the allegations against him could not be substantiated during these proceedings. I also note the GAICS Constitution expressly states that a Managing Director can be removed at any time by the board and the Managing Director is not entitled to attend a meeting about their removal.[2] The second step in determining whether Mr Johnson's summary dismissal was consistent with the SBFDC is satisfied.

[14] I find that Mr Johnson's summary dismissal was consistent with the SBFDC. That finding means Mr Johnson has not been unfairly dismissed as defined in s.385 of the FW Act. I am not able to proceed to consider the merits of Mr Johnson's unfair dismissal application.

[15] I consider this is an unfortunate case. Mr Johnson has clearly devoted considerable time and effort towards trying to help Aboriginal and Torres Strait Islander people in Gladstone, and other parts of Australia. I consider Mr Johnson meant well overall in relation to his role with GAICS. However, Mr Johnson failed to recognise the paramount role of the GAICS board in determining important operational matters for GAICS. The GAICS board needs to have relevant information brought before it by the Managing Director to enable it to properly undertake its important obligations. It does not appear that Mr Johnson was well suited to performing that role for GAICS.

[16] GAICS' jurisdictional objection is upheld. Mr Johnson's unfair dismissal application is dismissed. An order dismissing the application will be issued in conjunction with this decision.[3]

Mr Field from Irwell Law Pty Ltd on behalf of GAICS.

A1 Mr Johnson provided evidence in a statement of facts dated 19 December 2024.

A2 Mr Johnson's termination letter dated 6 December 2024.

A3 Kadesh Johnson (GAICS Administration Officer from June 2023 to March 2025 - Mr Johnson's granddaughter) provided a statement in support of Mr Johnson dated 12 March 2025.

A4 Minnie Johnson (GAICS Director January 2022 to November 2024 - Mr Johnson's wife) provided an affidavit in support of Mr Johnson dated 11 April 2025.

A5 A copy of the minutes for the GAICS board meeting on 1 December 2024.

R1 Witness statement of Duane Johnson (GAICS Director) dated 5 May 2025 and annexures.

R2 Witness statement of Elaine Daylight (GAICS Director) dated 5 May 2025 and annexures.

R3 Witness statement of Jacob Tranby (GAICS Director) dated 5 May 2025 and annexures.

R4 Witness statement of Naomi Jackson (GAICS Director) dated 28 April 2025.

R5 Witness statement of Aunty Marilyn Smith (GAICS Acting Manager) dated 5 May 2025 and annexures.

R6 Witness statement of Aunty Neola Savage (GAICS Secretary) dated 5 May 2025 and annexures.

Mr Johnson provided oral submissions during the hearing on 19 May 2025.

Mr Field provided oral submissions during the hearing on 19 May 2025.

[1] (2012) 219 IR 128; [2012] FWAFB 1359.

[3] PR787570.

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