The former chief executive of one of Australia’s largest Aboriginal legal aid services has successfully sued the organisation for wrongful dismissal, with the Federal Court finding she was unlawfully sacked from her position.
Priscilla Atkins commenced legal action against the North Australian Aboriginal Justice Agency (NAAJA) after her role as chief executive was terminated in early 2023.
Ms Atkins, who had been in her role since 2007, was suspended, then sacked, after raising complaints of corruption against NAAJA’s chief financial officer, Madhur Evans, with the organisation’s board of directors.
A judge on Thursday found NAAJA was in contravention of the Fair Work Act when it terminated Ms Atkins’s employment because she was entitled to make a complaint and there was “insufficient evidence” to prove the agency’s allegations against her.
As part of its defence, NAAJA alleged Ms Atkins was dismissed based on a “bona fide” belief that a signature from chairperson Colleen Rosas on her five-year contract was forged.
Ms Atkins’s contract was extended by five years on June 29, 2020, on an annual salary of more than $350,000.
However the court on Thursday found the evidence relied on by NAAJA was “insufficient” to support any allegations of forgery.
The finding comes amid a period of significant instability within the organisation.
Atkins denied procedural fairness, court finds
Following Ms Atkins’s complaint in November 2022, NAAJA suspended her employment.
Three months later, in January 2023, the board passed a resolution to terminate her appointment as chief executive.
The next month, Ms Atkins received a letter notifying her she had been dismissed.
In her summary judgement, Justice Natalie Charlesworth described the letter as “purporting to afford her procedural fairness in connection with a decision that had in fact already been made”.
“The evidence does not support a conclusion that the few directors involved in that activity had a genuine desire to afford Ms Atkins procedural fairness,” Justice Charlesworth said.
Dismissal ‘not legally effective’
Through her lawyers, Ms Atkins argued the board’s resolution that allowed for her dismissal was invalid because it was not passed in line with NAAJA’s constitution.
She argued the resolution was not passed at a meeting with the required number of board members present, and did not have the support of 75 per cent of NAAJA’s directors.
The court accepted that argument, with the justice stating it meant Ms Atkins’s purported dismissal “could not be legally effective”.
Evidence against Atkins ‘vague and variable’
During the period of Ms Atkins’s suspension, the NAAJA board engaged an external consultant, BDO Australia, to conduct an independent audit based on concerns that Ms Atkins had engaged in misconduct.
Justice Charlesworth described the evidence about those concerns as “vague and variable”, as was evidence around who was responsible for identifying the scope of the audit.
She also found there was evidence that Ms Evans herself had “a substantial role” in engaging the BDO and that she “participated in communications relating to the future of Ms Atkins’ employment”.
The court also concluded that Ms Evans deliberately withheld information relevant to the investigation of Ms Atkins from BDO, and that conduct was “not consistent with a genuine desire to have BDO independently make fair and factual findings” about Ms Atkins’s conduct.
NAAJA ‘seeking legal advice’ following judgement
In a statement following the judgement, NAAJA backed its decision to terminate Ms Atkins’s employment and said it would review the decision.
“NAAJA maintains a strong view that the board was justified in its decision to seek to terminate the employment of the former CEO and, as a result, we are surprised and disappointed by today’s decision,” a spokesperson for the NAAJA Board said.
“We will review today’s judgement and seek legal advice regarding our next steps.”
The matter will now progress to a hearing in the Federal Court next week to determine what remedies Ms Atkins may be entitled to.