Julia Elana Miroch v Powercor Australia Ltd
[2023] FWCFB 3
•12 JANUARY 2023
| [2023] FWCFB 3 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Julia Elana Miroch
v
Powercor Australia Ltd
(C2022/7464)
| VICE PRESIDENT CATANZARITI | SYDNEY, 12 JANUARY 2023 |
Appeal against decision [2022] FWC 1880 of Deputy President Bell at Melbourne on 21 October 2022 in matter number U2022/4126 – permission to appeal refused.
Background
Julia Elana Miroch (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) against a decision[1] (the Decision) of Deputy President Bell issued on 21 October 2022, for which permission to appeal is required. The Decision concerned an application, brought by the Appellant, for an unfair dismissal remedy against Powercor Australia Ltd (the Respondent) pursuant to s.394 of the Act. The Appellant’s dismissal concerned her failure to comply with the Respondent’s direction to become vaccinated against COVID-19. The Deputy President dismissed the application finding that the Appellant was not unfairly dismissed in accordance with the Act.
Directions were set for the filing of material by the Appellant. As this matter was listed for permission to appeal only, the Respondent was not required to file any material. The Appellant filed written submissions and made further oral submissions at the hearing on 6 December 2022. The Respondent filed written submissions seeking permission to be legally represented at the hearing in accordance with s.596 of the Act. At the hearing, the Full Bench refused permission for the Respondent to be legally represented.
We will first deal with some preliminary matters. At the hearing, the Appellant’s representative submitted there was a “potential conflict of interest” and asked the Full Bench to declare their COVID-19 vaccination status. The Full Bench declined to answer this question and as a result the Appellant’s representative proceeded to request an adjournment so that he could refer the issue to the President for further determination. The Full Bench refused to grant the adjournment request on the basis that the Full Bench’s vaccination status was irrelevant to the appeal and an adjournment was therefore unnecessary, inefficient and would only delay the appeal. The Vice President informed the Appellant’s representative that despite his adjournment request being refused he was still able to make a complaint to the President. In response, the Appellant’s representative submitted that a potential conflict of interest remained and alleged the Full Bench could not make an unbiased decision. We reject this submission and find there is no legitimate basis to assert a conflict which would impact the Full Bench’s ability to make an unbiased decision.
For the reasons that follow, permission to appeal is refused.
Decision Under Appeal
The Appellant commenced employment with the Respondent in 2005 in a temporary role. Over the following years, the Appellant remained employed by the Respondent in different capacities. From April 2016, the Appellant worked as a part-time Case Officer. Prior to March 2020, the Appellant performed all of her duties from the Respondent’s office, however from March 2020 she worked from home due to the COVID-19 pandemic. The Appellant’s role was primarily customer-oriented as she would manage and resolve customer inquiries via phone, online portal, email and ad-hoc in-person inquiries.
On 7 October 2021, the Acting Chief Health Officer of Victoria signed the COVID-19 Mandatory Vaccination (Workers) Directions (the Directions) under s.200 of the Public Health and Wellbeing Act 2008 (Vic) (PHW Act). Clause 4 provided that if a worker “is, or may be”, scheduled to work outside their usual home, the employer must collect “vaccination information” about them. Further, clause 5 prohibited employers from allowing an “unvaccinated” employee to work outside their ordinary place of residence after 15 October 2021 unless the employee had a booking for a COVID-19 vaccine by 22 October 2021. The Deputy President was satisfied that the Directions applied to the Respondent in relation to the Appellant’s employment.
A summary of the events leading to the Appellant’s dismissal is set out below:
· 11 October 2021 – the Respondent sent an email to all staff advising them of the Directions and encouraging them to get vaccinated.
· 18 October 2021 – the Appellant swore a document titled “Statement of Declaration of Truth “Affidavit””. The document described the Appellant’s “Purpose (occupation)” as “Galactic emissary” and current address as “Planet known as Earth”. The document was apparently served on the Victorian Government as well as the Australian Government, neither of whom challenged it.
· 27 October 2021 – the Appellant met with her team leader about a potential return to the office. An email followed the meeting, indicating that all staff would be required to carry out a percentage of their work from the office.
· 17 December 2021 – the Respondent emailed all staff indicating they were considering implementing their own mandatory vaccination policy and that they would consult on the policy between 20 December 2021 and 17 January 2022.
· 22 December 2021 – the Respondent sent an email to the Appellant noting the Appellant had indicated she did not intend to become vaccinated and therefore could not lawfully return to work on site. The Deputy President found this assumption to be justified as there was no evidence the Appellant had been vaccinated and significant evidence that she opposed vaccination. The email gave the Appellant until 31 January 2022 to consider her options and arrange vaccination. It also advised that working from home indefinitely was not a sustainable long-term solution.
· 23 – 24 December 2021 – the Appellant obtained a medical certificate indicating she was unfit to work over these dates.
· 6 January 2022 – the Respondent had a meeting to discuss the return to the office. The Respondent submitted that a return to the office was required for conducting staff training and to foster a strong work culture. At first instance, the Appellant rejected this contention claiming that training could be done online. Further, an email was sent to all staff indicating that from 10 January 2022, flexible work arrangements would come into effect requiring most employees to work 5 days a fortnight in the office.
· 18 – 21 January 2022 – the Appellant obtained a medical certificate indicating she was unfit to work over these dates.
· 21 January 2022 – the Appellant emailed her team leader indicating she would not become vaccinated and requesting to work from home until the pandemic ended.
· 25 January 2022 – the Appellant requested to work from home until 7 February 2022 and the request was approved the same day.
· 7 February 2022 – the Appellant requested to continue working from home. Her team leader advised that her request was approved for the short term, but they would come back to her with further advice.
· 24 February 2022 – a meeting between the Appellant, Respondent and the Appellant’s representative took place “to discuss the Victorian Government Vaccination Mandate and how this impacts your employment.”. Shortly after the meeting, a show cause letter was sent to the Appellant requesting a response by 3 March 2022.
· 25 February – 3 March 2022 – the Appellant obtained a medical certificate indicating she was unfit to work over these dates.
· The Appellant’s representative sent several voluminous ‘legal’ notices, invoices and demands to the Respondent. The Deputy President considered them to be legally nonsensical and of no effect.
· 4 – 11 March 2022 – the Appellant obtained a medical certificate indicating she was unfit to work over these dates.
· 7 March 2022 – the team leader invited the Appellant to meet again on 10 March 2022. The Appellant’s representative advised the Respondent that the Appellant was still on sick leave at that time and that the Respondent had “breached” the “Notice of Liability” and committed a “further act of workplace violence”.
· 10 March 2022 – the Respondent and Appellant’s representative had a telephone call about the scheduled meeting. The Appellant’s representative shortly thereafter provided his ‘proof of attorney’ status and other material. The meeting did not proceed.
· 11 March 2022 – the Respondent emailed the Appellant offering a final opportunity to meet to discuss her employment on 17 March 2022.
· 14 March 2022 – the Appellant obtained a medical certificate indicating she was unfit for work from 14 – 18 March, however as with the other medical certificates, these were not provided to the Respondent and the Respondent never requested the certificates.
· 16 March 2022 – the Respondent received letters from the Appellant titled “Notice of Acceptance by Tacit Acquiescence” and “Notice to Agent is Notice to Principal”.
· 17 March 2022 – the meeting did not proceed and neither the Appellant nor her representative sought to attend. Later that day, the Respondent sent the Appellant a notice of termination of her employment. The Appellant was paid 4 weeks pay in lieu of notice.
The Deputy President then turned to consider the factors in s.387 of the Act, to decide whether the dismissal was harsh, unjust or unreasonable. The Respondent advanced two contentions for a valid reason: first that the Directions were in application at the time of the Appellant’s dismissal; and second because an inherent requirement of the Appellant’s employment required her to perform at least some of her role on site. The Appellant provided several reasons as to why the decision to terminate her employment was unlawful, however the Deputy President did not accept these contentions as set out at [103] – [112] of the Decision. The Deputy President found that the Directions provided a valid reason to prohibit the Appellant from being on site and that the Respondent was required to comply with the Directions. Further, the Deputy President was satisfied that an inherent requirement of the Appellant’s role required her to work on site and as the Appellant was unvaccinated, she could not meet this inherent requirement. Therefore, the Deputy President found there was a valid reason for the Appellant’s dismissal.
Having regard to s.387(b), the Deputy President was satisfied the Appellant was notified of the reason for her dismissal. The Deputy President was also satisfied that the Appellant was given an opportunity to respond (s.387(c)) and that her representative did respond by providing voluminous material.
Considering whether the Respondent unreasonably refused to allow the Appellant to have a support person present (s.387(d)), the Deputy President found that the Respondent invited the Appellant to have a support person and was satisfised there was no “refusal”, let alone an “unreasonable refusal” for her to have a support person at discussions, even in circumstances where her representative was largely acting as an advocate. The Deputy President also noted that the Appellant complained about the Respondent corresponding directly with her rather than through her representative. However, the Deputy President did not consider direct correspondence with the Appellant to be improper, as while the Appellant was entitled to share her communications with her representative, that did not alter the position that it was appropriate for the Respondent to communicate directly with her.
The Deputy President considered s.387(e) to be irrelevant. Further, he was found that the size of the Respondent’s enterprise had no impact on the procedures followed in effecting the dismissal (s.387(f)) and that it was not submitted that the Respondent’s enterprise lacked a dedicated human resource management (s.387(g)). In terms of the other relevant matters (s.387(h)), the Deputy President found the Appellant’s length of service and the economic impact of the dismissal were in the Appellant’s favour.
In conclusion, the Deputy President found that the Appellant was not unfairly dismissed within the meaning of s.385 of the Act and he dismissed the Application.
Grounds of Appeal and Submissions
The Appellant’s grounds of appeal as set out in her F7 – Notice of Appeal are as follows:
“1. The Fair Work Commission (FWC) created personage by conversion, turning the living
woman ‘Julia Elana’, as named in the unfair dismissal application, into the fiction “Julia Elana Miroch”, thus, from the outset, the FWC turned the “Applicant” into a fiction, which has no rights. and/or
2.“Deputy President” Andrew Bell showed disrespect, and a clear bias on numerous occasions, commencing at the Mention Hearing, by repeatedly not acknowledging, and thereby dismissing, the lawful status of living men and women, and, by failing to acknowledge ‘Julia Elana’ as a living woman, “Deputy President” Andrew Bell dismissed all of her rights, and/or
3.The Fair Work Commission (FWC) created personage by conversion; the fictional names “Julia Miroch” and “Julia Elana Miroch” were repeatedly used by FWC employees on all correspondence issued from the FWC despite the application being made by the living woman, and/or
4.The “Applicant’s” representative, the living man ‘Trevor John’, was repeatedly disrespectfully addressed as “Mr Alexander” by “Deputy President” Andrew Bell, despite the living man ‘Trevor John’, clearly stating that he was the living man ‘Trevor John’ and wished to be respectfully addressed that way, and/or
5.“Deputy President” Andrew Bell, refused to provide his current vaccination status when requested, an issue which clearly was pertinent to the application, and which shows a clear bias in his determination of the application, and/or
6.“Deputy President” Andrew Bell only considered matters from a “legal” perspective, and not a lawful one, and/or
7.“Deputy President” Andrew Bell admitted he was a “barrister”, and thus was not educated to understand the difference between law and “legislation”, and as such had a bias, and/or
8.“Deputy President” Andrew Bell permitted the respondent to be represented by “lawyers”, before the “Applicant” was given the right to challenge, and, when requested by the "Applicant’s" representative to produce evidence of them being “lawyers”, “Deputy President” Andrew Bell failed to investigate the matter and admitted them regardless, and/or
9.“Deputy President” Andrew Bell completely disregarded the "Applicant’s" “Statement of Declaration of Truth Affidavit” dismissing it as not being “legal”, and/or
10.“Deputy President” Andrew Bell gave no reason as to why the Affidavit was not legal, and/or
11.“Deputy President” Andrew Bell is not a judge, and has no authority to determine the nature of what is “legal” and what is not “legal”, and/or
12.“Deputy President” Andrew Bell dismissed the “Applicant’s” affidavit, despite it satisfying the legal definition of an affidavit, that being: “a written declaration made under oath; a written statement sworn to be true before someone legally authorized to administer an oath”, and/or Fair Work Commission Approved Forms – approved with effect from 21 May 2021
13.On similar bias, “Deputy President” Andrew Bell dismissed the “Applicant’s” “Notice of Conditional Acceptance” & “Request for Better & Further Particulars” and/or
14.The “Applicant’s” inalienable rights as a living woman were clearly ignored and dismissed by “Deputy President” Andrew Bell, and only viewed by “Deputy President” Andrew Bell from a “legal” not lawful perspective, and/or
15.“Deputy President” Andrew Bell failed to fully, separately and lawfully address each of the "Applicant’s" submissions, grouping them together and dismissing them as a whole, and/or
16.“Deputy President” Andrew Bell dismissed the Notice of Legal Liability, a lawful and legal document, by not addressing in submissions, only viewing the matter from his own “legal” perspective, and/or
17.The criteria for “harshness” was incorrectly viewed by “Deputy President” Andrew Bell from the perspective of the respondent (the perpetrator) and not, as it should have been, from the effect it had on “Applicant’s” (victim’s), and/or
18.The issue of workplace violence, and/or work-related violence, were not properly and fairly addressed, clearly showing that the workplace violence and bullying were only taken into account from the perspective of the perpetrator and not the victim, and/or
19.The “Deputy President” Andrew Bell imposed a page limit of five, and then four, pages for submissions, curtailing and limiting the "Applicant’s" ability to properly put their case forward, and/or
20.“Deputy President” Andrew Bell blocked the Form 51 requesting Lola North, Charmaine Volpe, Victoria Nichol, Victorian Chief Health Officer, Health Minister and state Premier from appearing as witnesses, which denied cross examination of key witnesses and key elements pertaining to the elements that formed major arguments for the dismissal, despite the fact Lola North was in the room instructing Powercor’s lawyer, and “gagged” the ventilation of key issues that were clearly in the public’s interest, and/or.”
The Appellant also filed written submissions, in the form of a three page document with links to videos, podcasts and articles which in summary attempt to challenge the efficacy and effectiveness of COVID-19 vaccinations. At the hearing, the Appellant’s representative sought to expand upon these submissions by providing a brief synopsis of content of the videos, articles and podcasts referred to and providing the number of views each one has.
Additionally, the Appellant provided a number of reasons in her F7 – Notice of Appeal which address why her appeal is in the public interest:
“1. The truth of the existence of “Covid-19” has been challenged around the globe, and
2.The transmissibility of the supposed “Covid-19” has been challenged around the globe, and
3.The justification of a calling of a “Pandemic” due to “Covid-19” has been challenged around the globe, and
4.The legal and lawful standing of the “Covid-19” mandate has been challenged by numerous members of the public within the “State” of “Victoria” and around the globe, and
5.The efficacy of the “Covid-19” vaccines has been challenged by numerous members of the public within the “State” of “Victoria” and around the globe, and
6.The safety and adverse reactions of the “Covid-19” vaccines has been challenged by numerous members of the public within the “State” of “Victoria” and around the globe, and
7.The lawful standing of the dismissal of employees based on the “Covid-19” mandate versus the unalienable rights of the living man has been challenged by numerous members of the public within the “State” of “Victoria” and around the globe, and.”
Principles on Appeal
An appeal against a decision to dismiss an unfair dismissal remedy application under s.604 of the Act is one to which s.400(1) of the FW Act applies.[2] Section 400(1) requires that permission to appeal must not be granted unless the Commission considers it is in the public interest to do so. This test is a stringent one.[3] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[4] Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[5] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[6] However, the fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[7]
Consideration
In this case, we are not persuaded that it would be in the public interest to grant permission to appeal. We do not consider that any reasonably arguable case has been advanced that the Decision of the Deputy President was attended by appealable error. The majority of the Appellant’s grounds of appeal are misconceived, have no basis in law and have already been addressed by the Deputy President at first instance. Nonetheless, we will briefly address each of the Appellant’s grounds of appeal for completeness.
Grounds 1, 2, 3, 4 and 14 can be dealt with together as they all take issue with the Deputy President “creating personage by conversion” and disrespecting the Appellant and her representative by calling them “fictional names” such as ‘Julia Miroch’ and ‘Mr Alexander’. These arguments were dealt with by the Deputy President at [7] of the Decision. The Deputy President found the claim of “personage” has no coherent legal basis. Further, the Deputy President considered it courteous and common to address the Appellant and her representative in this manner. We agree with the Deputy President and find that these grounds of appeal are misconceived and disclose no reasonably arguable case of error.
Ground 5 alleges error in that the Deputy President refused to provide his vaccination status. We find no error in the Deputy President refusing to disclose his vaccination status and as discussed above, with reference to the Full Bench, the vaccination status of the decision-maker has no relevance or impact on the decision.
Grounds 6, 7 and 11 take issue with the Deputy President, namely that he was a barrister, “only considered matters from a “legal” perspective, and not a lawful one” and that he is “not a judge”. These grounds of appeal are misconceived and have no substance.
Ground 8 alleges error in allowing the Respondent to be legally represented at first instance. The issue appears to be with the fact that the Deputy President did not produce evidence of the representatives being lawyers. It is not the role of the Deputy President to produce such evidence and we note that if a party wishes to challenge whether a person is legal qualified such inquiries should be made to the regulatory authority not the Commission. Accordingly, we consider this ground has no substance.
Grounds 9, 10, 12, 13, 15, 16, 17 and 18 concern the Deputy President’s consideration of the Appellant’s material at first instance and allege that he did not properly consider certain material or give adequate reasons for his findings. We reject these submissions and note that the Deputy President considered all of the Appellant’s material thoroughly and appropriately. The Deputy President applied the correct legal principles, considered, and dealt with the evidence that was before him, and made findings of fact based on that evidence. We are satisfied that the Deputy President’s conclusions were reasonably open on the evidence before him and find no error in his findings or approach. Accordingly, we dismiss these grounds of appeal.
Ground 19 alleges that by imposing a page limit on submissions, the Deputy President impeded the Appellant’s ability to put forward their case. We note that page limits on submissions are common and standard practice within the Commission. Such limits allow matters to be dealt with more efficiently by focusing on the seminal issues in contention. We find no error in the imposition of page limits and note that in any event the Appellant was given the opportunity to supplement her written submissions with oral submissions at the hearing.
Ground 20 alleges error in that the Deputy President refused to allow certain witnesses requested by the Appellant to give evidence at the hearing. We find no error in the Deputy President refusing to allow these witnesses to give evidence, we agree their evidence was irrelevant to the issues in contention and would not have impacted the Deputy President’s findings. We dismiss this ground of appeal.
The Appellant’s other primary contentions relate to the efficacy and effectiveness of COVID-19 vaccinations. We note that the Appellant relies on these submissions to advance why her appeal is in the public interest. We consider that the Appellant has fundamentally misunderstood the public interest criterion, evidence of a Youtube video having a large number of views does not make her appeal in the public interest, nor does an article discussing vaccine safety demonstrate why the Appellant’s appeal is in the public interest. To that end, we have considered whether this appeal attracts the public interest, and we are not satisfied that:
· there is a diversity of decisions at first instance so that guidance from an appellate body is required;
· the appeal raises issues of importance and/or general application;
· the Decision at first instance manifests an injustice, or the result is counter intuitive; or
· the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
For the reasons set out above, we are not satisfied that it would be in the public interest to grant permission to appeal pursuant to s.400(1) of the Act.
Accordingly, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr T Alexander, for the Appellant.
Mr A Mollison, for the Respondent.
Hearing details:
2022.
Microsoft Teams (Video).
6 December.
[1] [2022] FWC 1880 (‘the Decision’).
[2] Australian Postal Corporation v Gorman [2011] FCA 975, 196 FCR 126 at [37].
[3] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed).
[4] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46].
[5] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [27].
[6] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
[7] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
Printed by authority of the Commonwealth Government Printer
<PR749571>
0
7
0