Friday, 19 November 2010

Indigenous Ergon employee wins reinstatement in 'discrimination' case

In August I wrote about Tommy Sebasio, who was taking on Ergon Energy over what he saw as unfair dismissal and treatment that disadvantaged him, after serving the company for 20 years.

In a dispute that has raged on for a year, Ergon have been ordered to reinstate Sebasio immediately. They will not appeal the decision, in what has perceived as a publicly embarrassing indigenous discrimination case.

Tommy Sebasio was employed as an electrical fitter mechanic, and recently, was promoted to manager at the Bamaga power station. A year ago, Ergon fired Sebasio, after he failed to complete an improvement plan.

In a decision handed down from Fair Work Australia, has ordered Ergon Energy Corporation to reinstate Tommy Sebasio.

"This determination relates to an application made by Mr Tommy Sebasio for an unfair dismissal remedy on the grounds that the termination of his employment from Ergon Energy Corporation was harsh, unjust and/or unreasonable," Commissioner Paul Spencer ruled.

Ergon terminated Sebasio, predominantly related to his failure to perform administrative tasks. He will be re-instated to another position, on the same pay, however will not be paid for the year he has been out of work. Between 1989 and 1995 Sebasio was the sole employee at the Bamaga power station. In 1995 a second employee was added, and another in 2006, who was shared with Ergon's operation on Thursday Island.

Commissioner Spencer questioned why Mr Sebasio had not engaged in a performance improvement plan, called it "remarkable" and "raises questions as to why that had occurred."

"It may have been attributable in some way to [Sebasio’s] complaints of exclusion, resentment, communication and cultural issues that he alleged he was experiencing," Commissioner Spencer said. "It is more than odd that an employee with more than 20 years of service who is dedicated to all of his other duties would fail to engage at all in a process that he is aware may lead to his termination."

"It is further puzzling why there was not an early intervention into this process to identify the cause of his lack of engagement," Spencer said.

The Commissioner questioned Ergon's senior manager, and asked if they visited the Bamaga station "to assess his environment and to determine whether there was substance to the issues." Mr Farmer confirmed the time he spent at the Bamaga Power Station was extremely limited. When asked whether he had ever travelled to Bamaga, he responded:

“Not whilst I’ve been at Ergon – sorry, yes, I have. We done a careers expo in Bamaga," Mr Farmer said. When question when was that, he said: "I can’t remember off the top of my head. It was 2008, 2009. We done two expos up there."

Sebasio was promoted to the position of station manager, even though he was undertaking the duties of this position, but not fulfilling all of the administrative obligations. However, the Commissioner noted, the promotion was in title only, as he did not receive any increase in entitlements and was told he would not until he improved his administrative tasks.

The Fair Work commissioner ruled that Farmer’s management style was "abrasive and his concentration of calls did not work to resolve the issues that Sebasio said he was experiencing." The hearing suggested that to prevent the interplay of potential cultural issues, senior Ergon staff from Cairns, should immerse themselves in the environment.

"This is not a cultural response but would have assisted in assessing [Tommy Sebasio’s] circumstances," Commissioner Spencer said. "Neither Brand nor Farmer did this, their visits to Bamaga were fleeting and they were preoccupied with other issues and then they managed [Sebasio] remotely from Cairns. Mr Farmer in particular did not address the Bamaga operational and staffing issues."

Local Electrical Trades Union organiser, Stuey Traill, who campaigned against Sebasio's dismissal, was estatic about the decision.

"The bloke is a legend," Traill said. "It's the best outcome for so many reasons. This decision vindicates our campaign and our legal action through the Unfair Dismissal trial process, a process that has seen Tommy Sebasio without an income for 12 months.”

“Now we can negotiate the specific role that Tommy will perform for Ergon in his community for his people" Traill says. "Tommy can hold his head high and return to the job he is extremely good at, with the respect that he deserves."

Stuey Traill says this case proves that employees in remote and isolated areas need to be given the same amount of support that employees in major centers receive.

“I am proud to be associated with Tommy and congratulate him on his return to work and for the strength that he has shown through this whole process.”

Sebasio said that through his formal education and family upbringing in a remote community, he became acutely aware of the struggles of the indigenous race in Australia.

"I recognised parallels in other countries, oppressed races with their own struggles," Tommy Sebasio said. "Some of them were worse off than I, so I didn’t complain too much, I waited for change. Things did change for me. I starting working in the electrical industry.

Sebasio credits joining the Electrical Trades Union with the positive outcome.

"I joined the ETU as soon as I could, because I heard and believed that my rights at the workplace would be looked after by this mob," Tommy Sebasio said. "The Union felt like family. My workplace evolved with the union representing my rights. It became safer and I felt secure. Bargaining agreements were negotiated and I had a say through my vote as the member of the union. I liked this, it felt good, I felt equal."

"When tested the union stood up for me. They represented me and by that representing all the members and their family. I felt that this was bigger than just about me. To me the union is family. I am proud to belong to this mob," Sebasio said.

Tommy was born in Bamaga, and lived most of his life there. The residents of the communities are predominantly Torres Strait Islander or Aboriginal. He is a respected figure in the community and he spoke five languages including Torres Straits Creole; Western Torres Strait Islander; Eastern Torres Strait Islander; and Local Aboriginal English.

Talking from Bamaga this morning, Tommy Sebasio said the decision was surreal, and that large companies like Ergon, can't get away with actions like this.

"The first person I thanked was my mum. She was praying very hard for me," Sebasio said. "It was natural for me to stand up against Ergon, because of what has happened to my people in the past. Our elders that served in World War 2, weren't paid properly. Those issues came up. There was another mob, called DCS money, that were never paid to us, so when this sort of thing happens, you stand up."

"I see this as natural justice. I spoke to someone on Facebook, and he congratulated me, however I said to think about what happened to us in the past, and thank all the principles our elders have," Tommy Sebasio said.

Although Ergon will say this was never a dispute about cultural issues, the clashes the led to Sebasio's termination a year ago show that the company had little understanding in working with indigenous communities and the difficulties that are faced in remote Aboriginal towns throughout Cape York.

The case of Ergon and Tommy Sebasio is a perfect example of corporations not understanding how to work productively with indigenous employees.

In August, to assist the ETU's application at the Fair Work hearing CairnsBlog author Michael Moore travelled to Bamaga to talk with locals about Tommy Sebasio’s termination. You can see more on the CairnsBlog YouTube channel...


Janine Aitken said...

I was fortunate to spend some time watching this case when it was heard at FWA in Cairns earlier this year. I came away in awe of Tommy and the courage he had to stand up against so many suits so far from home, and it made me even prouder to be a member of a union, to see the support lent to Tommy by Stuart Traill and the ETU was brilliant. Great work by everyone involved, and great coverage Mike.

MG said...

Go Tommy well done. Long time but worth the wait. Glad you kept the faith

Stuey Traill said...

Thanks for help on this one, this is a another classic example of independent media having an influence in todays media circus. The original story did get right up Ergon's nose, resulting in that phone discussion you had with the irate Ergon media person.
Great work Mike.
This is a Great outcome for a decent man, Tommy Sebasio.