The Fair Work Commission has ordered that compensation be paid to three employees of an Indigenous Corporation for the distress caused by their employer asking that they prove their connection to the local traditional owner group.
The case concerned an application for adverse action under the Fair Work Act 2009 (Cth) (FWA) made by Mr and Ms Roos and Ms Dargan (the Employees) against their employer, Winnaa Pty Ltd (the Employer).
The Employees claimed that they were part of the Barada Barna People and were employed by the Employer in the role of cultural heritage field officers tasked with identifying sacred sites and artefacts for various projects.
On 12 August 2016, the Employer dismissed the Employees on the basis that they had failed to prove ancestral connection to the Barada Barna People, the local traditional owners, after being requested to do so by the Employer on a number of occasions. The Employer had requested that the Employees prove their lineage and offered to facilitate DNA testing to prove descent.
The Employees claimed to be descended from a Barada Barna person who was listed as an apical ancestor on a number of previous Barada Barna native title claims. However on 29 April 2017 (prior to the Employees' dismissal) the Barada Barna Aboriginal Corporation changed their membership criteria by removing the apical ancestor from whom the Employees claimed descent.
The Employees argued that the termination of their employment occurred because of their "national extraction or social origin" which was discriminatory and a breach of section 351 of the FWA. The Employer argued it was justified based on their failure to prove ancestral connection to the Barada Barna People, as that was an inherent requirement of their employed position and was an exception to discrimination under the FWA (refer to section 351(2)(b).
The Employees alleged that they had suffered distress, humiliation and offence as a result of being required to prove ancestral connection through DNA testing. They claimed that their emotional loss was greater than that caused by a "normal" dismissal, given the loss of cultural identity and removal from the community and group they believed they were a part of.
The application was referred to arbitration and the Fair Work Commission (FWC) found in favour of the Employees. FWC accepted that there was an implied inherent requirement that the cultural heritage role must be performed by Barada Baran People, and that the Employer had employed the Employees on the assumption they met that requirement.
However, the question for determination by the FWC was whether at the time the Employer dismissed the Employees, it held a positive belief that the Employees' ancestor was not a Barada Barna person.
The FWC was not persuaded that the majority of the decision makers within the Employer's organisation voting on the dismissal genuinely held this belief as opposed to it being merely a suspicion. The FWC therefore found that the Employer took unlawful adverse action by dismissing the Employees for failing to establish that they were Barada Barna People.
The FWC was then asked to consider the amount of compensation the Employees were entitled to for the economic loss and non-economic loss suffered as a result of their dismissal.
When assessing quantum of economic loss, Commissioner Simpson found it necessary to take into account the totality of evidence and all of the circumstances of the case, including how long the Employees would have remained in employment.
In relation to non-economic loss, the Commissioner said that compensation for distress involved "unusual exacerbating circumstances" and "something more than the usual element of distress".1 The Commissioner noted that DNA testing is commonly seen as "offensive and insulting" to Aboriginal people and recognised the stress and anxiety that would accompany being removed from a community with which they had been closely associated for the majority of their lives.
The level of distress was found to exceed that accompanying most terminations and the quantum of compensation for non-economic loss was increased accordingly.
The FWC awarded each of the Employees the following:
- Employee 1 - $18,675.15 plus 9.5 per cent super
- Employee 2 - $18,608.10 plus 9.5 per cent super
- Employee 3 - $15,219.75 plus 9.5 per cent super
for economic loss and $5000 to each of the three Employees for non-economic loss.
1 Burazin v Blacktown City Guardian Pty Ltd  IRCA 371, 156; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ACI Operations Pty Ltd  FCA 122, .
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