'In-house cultural training could have been provided,' argues worker
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a small non-profit organisation in the Northern Territory and a worker who was terminated from her position as a redress officer.
This case highlighted the complexities surrounding cultural sensitivity in the workplace, especially when dealing with vulnerable communities.
It also underscored the importance of proper communication and documentation in employment relationships, particularly in small businesses without dedicated HR resources.
Background of the case
The employer, a not-for-profit enterprise established by “survivors of the stolen generation,” hired the worker in September 2022 as a redress officer.
The organisation's primary purpose was to advocate for the rights and well-being of all stolen generations in the Northern Territory. At the time of the worker's dismissal, the employer had nine employees.
The worker's role involved providing information about the Redress Scheme and supporting them with their applications. This scheme, which the employer had been facilitating since 2021, aimed to compensate subjects of the stolen generation.
From the outset, the importance of cultural sensitivity was emphasised. During the worker's interview, the acting chief executive officer explicitly stated:
"We work with vulnerable people and we have to make sure we work in a culturally appropriate manner at all times. We travel to communities and at times, when communities shut down during sorry business, we have to be mindful of that. We have to make sure that we make contact before we travel and if sorry business is on, we can't attend."
Clients’ complaints against worker
In the months following the worker's employment, several issues arose. In May 2023, the employer received a complaint that the worker had spoken over an aboriginal leader and her daughter during cultural training.
“[The employer] submitted that between 3 and 5 May 2023, the [worker] was directed to attend cultural training facilitated by indigenous elders. [The employer] was informed that the [worker] proceeded to talk over these indigenous elders during these sessions,” the FWC said.
“Further, in June 2023, indigenous elders complained that the [worker] lacked sensitivity when canvassing their experiences, and asked ‘too many questions’ in an ‘abrupt’ manner. [The employer] submitted that as a result, these indigenous elders indicated a reluctance to work with the [worker],” the FWC added.
“[The employer] submitted that after the above incidents were brought to [the employer]'s attention, the latter warned the [worker], and others, that when dealing with indigenous elders it was important to exercise restraint and discretion, as ‘they don't want to go into things’.”
“[The employer] submitted that its enterprise is wholly dependent on maintaining strong and effective relationships with the indigenous community. [The employer] submitted that as a result of the [worker]'s conduct, this was placed in jeopardy. This, consequently, impacted [the employer]'s legitimacy and its capacity to properly engage with its stakeholders,” the FWC said.
The given feedback was formally recorded by the employer in file notes. Despite these complaints, it appears that the worker was not formally notified of these issues until much later in her employment. This lack of communication became a significant point of contention in the case.
The stand down and termination
On 8 November 2023, the employer stood down the worker on full pay. When the worker sought clarification, the Acting CEO responded:
"The Board is meeting on Friday afternoon and I will be able to let you know more then. I am working with HR at the moment and we will send you a letter tomorrow. Please do not come to work until I have let you know as this is a process that I have to do and go through to protect the organisation."
It wasn't until 20 November 2023 that the employer provided a reason for the stand down, stating:
"The allegations for you being stood down are that your behaviour towards staff and clients are culturally inappropriate. I have been dealing with our HR and have been advised to stand you down on full pay. This is a process and I will have further advise (sic) and then I will let you know."
The worker's employment was ultimately terminated on 17 January 2024. The termination letter cited several reasons, including staff refusal to work with the worker, client complaints, and the worker's refusal to sign a new contract.
‘No opportunity to respond’
The worker said that “she made numerous requests by email for [employer] to inform her of the reasons she was being stood down and details of the alleged 'culturally inappropriate behaviour’.”
“Further, [the worker] submitted that on 21 November 2023, she made a request for [employer] to provide her with copies of any complaints made against her and all staff grievance reports, and for [employer] to provide her with a reasonable opportunity to respond and bring forward any witnesses before the investigation process was concluded. [The worker] submitted that this request "was met by dead silence from [employer]", the FWC said.
The worker said that on 17 January 2024, “she received a 'please contact me asap' email from [employer], which was quickly followed by another email informing that she had been terminated. A letter of termination was attached.”
The worker submitted that “where the matters related to overall job performance and attitude, rather than misconduct, an opportunity to demonstrate improvement would normally be expected. [The worker] submitted that she was given no opportunity to demonstrate improvement. [The worker] submitted that, firstly, she was not informed by [employer] or made aware of any capacity, conduct or other concerns; and secondly, she was abruptly stood down by [employer] on 3 November 2023 and prevented from engaging in her employment again.”
The worker said that “she was not given any opportunity to demonstrate improvement as she was continuously directed by employer not to attend the workplace and was then summarily terminated, with no prior warnings,” the FWC said.
The worker also argued “that in-house cultural training could have readily been provided to her by [employer], but this was not forthcoming.”
Legal considerations and outcome
The case raised several important legal considerations, including whether the dismissal was consistent with the Small Business Fair Dismissal Code, and whether it was harsh, unjust, or unreasonable under the Fair Work Act.
The employer argued that it had complied with the Small Business Fair Dismissal Code, which provides some protection for small businesses in unfair dismissal cases. The Code states:
"In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job. The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement."
However, the lack of clear documentation and communication of the issues to the worker prior to termination raised questions about this compliance.
The FWC had to consider several factors outlined in Section 387 of the Fair Work Act, including whether there was a valid reason for the dismissal, whether the worker was notified of that reason, and whether she was given an opportunity to respond.
As the FWC stated in its decision:
"The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a 'fair go all round' is accorded to both the employer and employee concerned."
This principle of a "fair go all round" underpins the FWC's approach to unfair dismissal cases, balancing the needs of both employers and employees.
The case also highlighted the specific challenges faced by organisations working with vulnerable communities, as reflected in the termination letter:
"To work with our vulnerable people we have to uphold the organisation's integrity for the clientele that we service. We have to work with clients that have already been traumatised and must ensure that delivery of our service is in a culturally appropriate manner."
No ‘concise’ warnings given
However, the FWC noted the lack of procedural fairness of the worker’s dismissal:
“If [the worker]'s conduct when dealing with clients in the community was disrespectful or insensitive, then such behaviour would provide [employer] with a valid reason to terminate [the worker], but only after a concise warning had been given, appropriate training had been provided and [the worker] had been given an opportunity to improve her performance. This did not occur,” the FWC said.
“I am satisfied and find that [employer] did not have a valid reason to terminate [the worker]. Further, I am satisfied and find that [the worker] was not afforded her statutory entitlement to procedural fairness. [The worker] did not receive a "fair go".”
“For the reasons identified above, I find that [the worker]'s termination was harsh and unreasonable,” the FWC said. It then ordered the employer to pay compensation.
Ultimately, this case serves as a reminder of the importance of proper HR processes, clear communication, and cultural sensitivity in all workplaces, but especially in those dealing with vulnerable populations.
