A Melbourne street sweeper sacked by an inner-city council for objecting to an Acknowledgement of Country has won his unfair dismissal claim.

Shaun Turner was dismissed from his full-time position at Darebin City Council in June last year following a meeting of his team where the acknowledgment remarks were made.

How it unfolded

In a Notification of Investigation and Stand Down letter, the council alleged Mr Turner “interrupted” an Acknowledgment of Country by saying, “in a tone that was perceived as disrespectful, sarcastic and aggressive”:

“The Acknowledgment of Country is not necessary” and “Aboriginal and Torres Strait Islanders “do not deserve an acknowledgment at the start of meetings”.

In a written “show cause” response, Mr Turner conveyed to his employer that he had simply questioned why the Acknowledgement of Country was necessary because it was the first time it had been done at a toolbox meeting.

He denied making the comment about not deserving an acknowledgement and said he had instead stated:

“If we need to be thanking anyone it’s the people who have worn the uniform and fought for our country to keep us free.”

At a subsequent meeting with investigating council officers, the record of which Mr Turner agreed was accurate, he recalled:

“(The coordinator who conducted the toolbox meeting) went into Welcome of Country. I said, ‘Are you joking? This is meant for special occasions, next thing you know we will have it at an opening of a letter. This is meant for people who aren’t from this country, I don’t think there should be one every time we open a postage stamp’.”

When a senior officer replied that the council had “very strong expectations” that an Acknowledgment of Country was done before all formal meetings, Mr Turner retorted:

“Why didn’t we do it in this meeting then?”

He went on:

“It is getting out of hand and that is why people are losing it, it is now being done at a postage stamp. As far as I know half of us are born here, I don’t need to be welcomed to my own country. If people don’t want to be there, they can leave.”

Decision

Fair Work Commission deputy president Richard Clancy considered the Acknowledgement of Country would have caught the members of the street cleaning team “off guard” and that Mr Turner’s “Are you joking?”, together with his “opening of a letter” reference, were an “articulation of a reaction of surprise”.

“I regard Mr Turner’s various comments as having been a spontaneous expression of his opinion that Acknowledgements of Country are appropriate on special occasions but one was not necessary at the toolbox meeting, and that his comments were laced with his underlying frustration in relation to the various issues pertaining to his work.

“Considered in this context, and in the absence of evidence suggesting this was so, I have not been persuaded these particular comments of Mr Turner either rise to the level of having been disrespectful and aggressive in tone, or that they were perceived by anyone to be so.”

However, DP Clancy was satisfied Mr Turner commented to the effect that if anyone was to be acknowledged or thanked at a toolbox meeting, it should be service men and women.

“I do not consider that expressing such an opinion constitutes a valid reason for dismissal,” the Deputy President said.

Mr Turner’s testimony included that he believed he was “being made out to be a racist”:

“Well, I’ve got to say that I was brought up on Broadmeadows. I come from a family of eight. My best friends out at Broadmeadows happen to be Aboriginals – one of them marrying my sister. I have a niece and great niece and nephews who are all Aboriginals.”

In conclusion, DP Clancy was not persuaded any of Mr Turner’s comments were a valid reason for dismissal.

“Having considered each of the matters … I am satisfied that the dismissal of Mr Turner was unreasonable because there was no valid reason to dismiss him, and the matters under s.387(h) weigh in favour of a finding that Mr Turner’s dismissal was unfair.

“I reiterate that even if the reasons for the dismissal relating to the comments about Acknowledgements of Country … were  regarded as valid, the dismissal was harsh because it was disproportionate having regard to context within which his comments were made and Mr Turner’s circumstances.

“I am therefore satisfied that Mr Turner was unfairly dismissed within the meaning … of the Act.”

With Mr Turner seeking reinstatement, either further discussions between the parties or another hearing will ­determine the appropriate remedy.

AREEA comment 

AREEA’s members work closely with indigenous communities and employees and undertake a variety of appropriate acknowledgments.

Where safety has long been the first order of business at toolbox meetings, members – as part of sound management and people and culture practice – should be cognisant of where, when and how often Acknowledgments of Country are made.

Safety has physical, cultural and emotional elements.

Clear lines of employer/employee communication on all workplace polices should be firmly in place.

For further advice, [email protected].