The recent unfair dismissal decision of the Fair Work Commission, Shaun Turner v Darebin City Council [2025] FWC 1763, in which Deputy President Clancy held that the dismissal of an employee for, among other things, alleged comments in response to an Acknowledgment of Country before a ‘toolbox’ meeting, was unfair, has garnered significant media attention and turned the Applicant (Mr Turner) into a cause célèbre in some circles.
While the merits of the arguments advanced by Mr Turner against an Acknowledgment of Country at the commencement of toolbox meetings (which was a new practice the Council had adopted) are beyond the scope of this article, the decision of the FWC as to whether his statements warranted termination is worth exploration, especially as it offers a guide as to the extent to which employees can “dissent” from the employer on matters that are the subject of political or social debate.
Background
The Applicant was a Sweeper Driver in the City Works department of the Respondent, Darebin City Council (Council).
The Council alleged, in an Allegations Letter, that the Applicant, among other things:
“Interrupted an Acknowledgment of Country by making the following statements in a tone that was perceived as disrespectful, sarcastic and aggressive, by stating:
- ‘The Acknowledgment of Country is not necessary’ and
- Aboriginal and Torrens Strait Islanders ‘do not deserve an acknowledgment at the start of meetings’ ”.
The Council initially held a meeting as part of the investigation process at which the Applicant was able to provide a response to the allegations (Investigation Meeting). A Show Cause Letter was then issued by the Council setting out the allegations relating to the Acknowledgment of Country, to which the Applicant responded as follows:
“Mr Turner denied the context the Respondent had attached to the allegations regarding the Acknowledgement of Country, countering with:
- 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 did not make the comment ‘they do not deserve an acknowledgement to country’ and instead had 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.’
- He did not adopt a tone that was disrespectful, sarcastic, or aggressive.”
On 3 June 2024, the Applicant received a letter with the heading “Notification of Termination” (Termination Letter) which notified Mr Turner that the Council had decided to terminate his employment with immediate effect for serious misconduct under its disciplinary procedure.
There was a significant error in the Termination Letter, specifically that Mr Turner had confirmed during the investigation process that he had made the comments outlined in the Allegations Letter when, in fact, he had disagreed with that version and provided a differing account.
The Termination Letter did accurately record that the Applicant said, during an investigation meeting in relation to the Acknowledgment of Country, that:
“It is getting out of hand and people are losing it, it is now being done at the opening of a postage stamp. I don’t need to be welcomed into my own country.”
In the Termination Letter, the Council noted it had determined that the Applicant had breached its Code of Conduct (Code) and Equal Employment Opportunity Policy (EEOP). It also asserted that the Applicant had previously received a Final Warning for the same breaches of the Code and EEOP and that was a factor in deciding to terminate his employment summarily for misconduct.
A key broader question under consideration in this case is the extent to which an employee might dissent on an issue such as Acknowledgment of Country in the workplace without giving the employer a valid reason to terminate employment for holding and openly expressing that alternative view.
The Decision
Going to the crux of the issue of whether there was a valid reason for termination of employment, and offering a guide to employers on the broader question of employee dissent, Deputy President Clancy noted (at paragraph 89):
“The Respondent’s case against Mr Turner on the issue of valid reason effectively rested on the premise that its employees must, without question, both subscribe and adhere to its views when it comes to Acknowledgements of Country. The proposition underlying the Respondent’s case appears to be that there will be a valid reason for dismissal if an employee fails to act in complete deference to their employer’s views and, moreover, does not adopt them. I do not accept this proposition.”
Deputy President Clancy provided further analysis by reference to findings of fact in the matter (at paragraph 90):
“In the absence of a single witness to his actions attesting to having felt disrespect, Mr Turner was dismissed because he did not embrace the delivery of an Acknowledgement of Country at a toolbox meeting and instead employed sarcasm when expressing his opinion that Acknowledgements of Country are at risk of being overused. Mr Turner declared both at the Toolbox Meeting and when under investigation, that Acknowledgements of Country are warranted on special occasions. Mr Turner did not state that they should not be delivered at the Respondent’s workplaces, making the request that in such circumstances, he be given the option of not being present when they are taking place. Mr Turner also gave a commitment that he would not disrupt Acknowledgements of Country going forward. Mr Turner’s choice of words when seeking to explain his position offended the two employees who were conducting the investigation and disciplinary process on behalf of the Respondent, but not, it would seem, the Indigenous man present as Mr Turner’s support person. Offence was taken because Mr Turner held a contrary view.”
Deputy President Clancy concluded (at paragraph 91):
“For the reasons outlined above, I have not been persuaded that any of Mr Turner’s conduct constitutes a valid reason for the termination of his employment or that the Respondent can rely upon the final warning it issued on 31 October 2023 to advance its case. The absence of a valid reason for dismissal weighs in favour of a conclusion that the dismissal of Mr Turner was unfair.”
Delving into the specifics of this case for a moment, there were some aspects of the process adopted by the Council that resulted in the conclusion of the FWC the dismissal was unfair. These included:
- Conclusions reached by the Council about the attitude displayed by the Applicant towards indigenous people could not be supported either by his responses in the investigation process or evidence he gave in the hearing of the case before the FWC.
- The Council contended the Applicant had received training relevant to the conduct in which he engaged. The FWC concluded that he had either not received the training as asserted by the Council or any training that did occur was either perfunctory or not robust enough to rely upon for a termination in the circumstances.
- The Council sought to rely on a previous “final warning” to terminate employment, to which the FWC found that there was no direct evidence before it that supported a conclusion that the final warning was soundly based and validly issued.
Some Observations
There are some general observations that arise from the case for employers to consider:
- Beware knee jerk reactions to a dissenting view from an employee. The employer should not instantly regard an expression of opinion that does not accord with that of the employer as an act of insubordination warranting termination of employment. The possible nuances of the situation need to be identified and explored.
- That said, this decision does not give employees carte blanche to express personal views at any time in the workplace with impunity — much will depend on the substance of the opinion expressed, the terms used to express the opinion and the nature of the expression (such as it being done respectfully or in a disdainful or contemptuous tone or manner). The decision is not a licence to be a workplace bigot.
- Where an employee is expressing what might be regarded as a “political opinion”, the recent (very interesting) case of Lattouf v Australian Broadcasting Corporation (No 2) [2025] FCA 669, in which the ABC was found to have breached the unlawful termination provisions of the Fair Work Act for terminating the employment of Ms Lattouf because she held a political opinion, should be carefully considered. (For the avoidance of doubt Lattouf was an unlawful termination case, not an unfair dismissal case.)
- During the investigation process Mr Turner raised the prospect of being excused from being present during future Acknowledgments of Country as part of toolbox meetings. In my view, if he had remained employed by the Council, it is likely Mr Tuner could have been required to attend the Acknowledgment of Country part of the toolbox meeting and be directed to remain silent during it. Just because the initial expression of his opinion did not warrant termination of employment does not mean a subsequent direction to attend and remain silent during an acknowledgment would have been unreasonable. The fact an employee requests to be excused from an event or ceremony with which they do not agree does not necessarily mean the employer must accede to that request. The employee would likely need to demonstrate a genuinely held conscientious objection to insist on being able to abstain from it.