Michelle Jenkins v Home@Scope Pty Ltd

[2022] FWCFB 207

[2022] FWCFB 207

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Michelle Jenkins
v

Home@Scope Pty Ltd

(C2022/5960)

VICE PRESIDENT CATANZARITI
deputy president lake
commissioner simpson SYDNEY, 17 NOVEMBER 2022

Appeal against decision [[2022] FWC 2003] of Commissioner CIrkovic at Melbourne on 16 August 2022 in matter number U2022/2731 – permission to appeal refused.

Background

1. Ms Jenkins (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 Commissioner Cirkovic (Commissioner) issued on 16 August 2022, for which permission to appeal is required. The Decision concerned an application, brought by the Appellant, for an unfair dismissal remedy against Home@Scope Pty Ltd (the Respondent) pursuant to s.394 of the Act.

1. The Appellant commenced employment with the Department of Families, Fairness and Housing in October 2008 and transferred to employment with the Respondent on 1 January 2021. She was employed on a full-time basis in the role of Disability Support Worker until her dismissal took effect on 11 February 2022. The Commissioner ultimately found that the Appellant’s dismissal was not unfair and dismissed her application for an unfair dismissal remedy.

1. 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 and it did not do so. The Appellant filed written submissions and made further oral submissions at the hearing on 13 October 2022.

1. For the reasons that follow, permission to appeal is refused.

Decision Under Appeal

1. The Commissioner began by considering s.396 of the Act and was satisfied by all the initial matters. The Commissioner then had regard to s.385, noting subsections (a), (c) and (d) were satisfied, leaving her to determine whether the dismissal was harsh, unjust or unreasonable pursuant to s.385(b) and considering the factors in s.387.

Valid reason for dismissal – s.387(a)

1. By way of background, the Victorian Minister for Health issued a declaration pursuant to s.198(1) of the Public Health and Wellbeing Act 2008 (Vic) on 16 March 2020 that Victoria had entered a state of emergency because of the COVID-19 pandemic. Accordingly, pursuant to the Victorian Government’s COVID-19 Mandatory Vaccination (Workers) Directions (the Directions) ‘authorised workers’ were required to receive their first dose of the COVID-19 vaccine by 15 October 2021. There is no contest that the Appellant was an authorised worker for the purposes of the Directions.

1. Additionally, on 3 February 2021 the Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 3) (Orders) came into effect and provided:

a)   If a worker might be scheduled to work outside of their ordinary place of residence after the commencement of the order, their employer was required to collect, record and hold “vaccination information” about them;

b)   A “disability worker” was defined as someone who directly provides a disability service to a person with a disability; or supervises or manages another person who directly provides a disability service to a person with a disability;

c)   Employers of such workers, including disability workers, were not to permit their workers to work for them outside of their ordinary place of residence if they were “unvaccinated” or “partially vaccinated”.

1. The Commissioner then set out the correspondence between the parties that followed the Directions and Orders. This correspondence is summarised as follows:

·   4 October 2021 – the Respondent emailed all workers, including the Appellant alerting them to the Directions and the requirement to receive their first and second doses of COVID-19 vaccinations by the prescribed time frames.

·   26 October 2021 – the Respondent sent an email to the Appellant stating she had not provided proof of receiving her first dose of a COVID-19 vaccination by the required deadline and she had consequently been removed from any work rosters and shifts commencing 29 October 2021. The email indicated that if the Appellant failed to comply with the Directions, she would be stood down without pay. It said that for the standdown to change the Appellant should provide proof of her first vaccination.

·   29 November 2021 – the Respondent emailed the Appellant stating that they would provide any unvaccinated staff a final opportunity to provide proof of vaccination. They gave until 10 January 2022 to provide this evidence.

·   14 December 2021 – the Appellant emailed the Respondent providing, in summary, her objections to receiving the COVID-19 vaccination and the vaccination mandate.

·   17 December 2021 – the Respondent sent an email to the Appellant which outlined the previous correspondence and indicated they would not be engaging in a discussion around the merits of COVID-19 vaccination. They reminded the Appellant that they were legally required to comply with the Directions and indicated that she would remain on stand down until proof of vaccination was provided. Should proof not be provided by 10 January 2021, the Respondent would need to discuss her ongoing employment.

·   23 December 2021 – the Appellant sent a lengthy letter to the CEO of the Respondent outlining her objections to the COVID-19 vaccination which included that the Directions do not bind her and that they are unconstitutional.

·   5 January 2022 – the Respondent sent correspondence to the Appellant titled ‘Notification to show cause – Failure to comply with legal requirements under Victorian Government’s Public Health Directions’ stating that more than 2 months have passed since she was stood down and that the Respondent was considering terminating her employment.

·   15 January 2022 – the Appellant emailed the Chief People and Culture Officer of the Respondent stating “… I am writing to inform you that your letter dated 05/01/2022 was received on 13/01/2022. How can anyone respond by the 12/01/2022 when a letter is not received by this date?”

·   16 January 2022 – the Respondent emailed the Appellant acknowledging receipt of her letter and noting that their views and position have not changed.

·   17 January 2022 – the Appellant was notified in writing that her employment had been terminated by the Respondent.

1. The Respondent submitted that the Appellant was terminated because she could no longer meet the inherent requirements of her role. The Appellant submitted that there was no valid reason for her dismissal related to capacity or conduct and made assertions as to the validity of the Directions and Orders. The Appellant also submitted that she was able to perform the administrative part of her role remotely and therefore she should not have been dismissed. Further, the Appellant submitted:

a)   her contract of employment falls under federal law and cannot be overridden by a pandemic declaration;

b)   the vaccination mandate is unconstitutional;

c)   under the Nuremberg Code, it is a criminal act to pressure or coerce someone into having a vaccination; and

d)   her vaccination status is protected by the Privacy Act 1988 (Cth).

1. The Commissioner rejected the Appellant’s submissions, finding that they could not be sustained. Further, the Commissioner observed that the Directions and Orders were valid at the time of the Decision. The Commissioner noted there is no contest that the Appellant did not provide vaccination information to the Respondent and has at no stage claimed to be an excepted person to the Directions or Orders.

2. The Commissioner was therefore satisfied that the effect of the Direction prohibited the Respondent from allowing the Appellant to provide direct care to clients in their homes. The Respondent would have been in breach of its legal obligations if it allowed the Appellant to work outside of her primary residence from 15 October 2021. Further, the Commissioner was satisfied that the direction given by the Respondent was reasonable.

1. The Commissioner found that the Appellant’s contention that she was able to perform part of her role from home was misguided. The Commissioner was satisfied that for the Appellant to perform the job she was employed to do she had to be able to fulfil the requirement to work outside of her ordinary place of residence. Therefore, the Appellant’s decision to refuse to provide vaccination information had the inevitable consequence of rendering her unable to perform the job she was employed to do.

1. The Commissioner was therefore satisfied that the Respondent had a valid reason to dismiss the Appellant that was related to her capacity.

Notification of the valid reason and opportunity to respond – ss.387(b) and (c)

1. Having regard to the correspondence between the parties, the Commissioner was satisfied that the Respondent had notified the Appellant that they could not lawfully permit her to work unless she provided evidence of her vaccination status, that they may terminate her employment if she failed to provide evidence of vaccination or a medical exemption, and that the Appellant was given multiple opportunities to respond and provide evidence over the course of three months. Therefore, the Commissioner was satisfied that ss.387(b) and (c) were complied with.

Unreasonable refusal by the employer to allow a support person; warning regarding unsatisfactory performance; impact of the size of the employer on procedures followed; absence of dedicated human resources management specialist/expertise on procedures followed – ss.387(d)–(g)

1. The Commissioner found that these factors were not relevant considerations in this case.

Other relevant matters – s.387(h)

1. Here, the Commissioner considered that the Appellant worked for the Respondent and predecessors since 2008 and there were no performance issues during that time and that the dismissal resulted in significant financial hardship to the Appellant. Further, the Commissioner considered the Appellant’s objections to becoming vaccinated and her views on COVID-19 vaccination mandates. The Commissioner did not find that these factors were sufficient so as to render the Appellant’s dismissal harsh, unjust or unreasonable.

1. In conclusion, the Commissioner was satisfied that the Appellant’s dismissal was not harsh, unjust or unreasonable and therefore not unfair. The Commissioner dismissed the Appellant’s application.

Grounds of Appeal

1. The Appellant provided lengthy submissions on her sovereignty and the COVID-19 vaccination mandate. While we have not set out these submissions we have read and considered them for this appeal. The Appellant’s grounds of appeal as set out in her F7 – Notice of Appeal are as follows:

“Legislated reason I was dismissed for still has not been given to me by either Home@Scope or in the response to my application.

As per (50) of the decision, you state I did not respond after the 13th when quiet clearly YOU have an email sent to Home@Scope dated after the 13th in which they did NOT respond.
Evidence in a new case shows that YOU are unlawfully acting under a false coat of arms.
You have NOT taken into any account the evidence I have provided nor have you provided me with any evidence of the authority of the CHO, PHO or State Premier.
“Vaccination” there is NO authorised “vaccine” there is an experimental gene therapy that Greg Hunt spoke of, and as for that reason I will be seeking legal advice for an attempt on my life.”

1. In terms of why the appeal is in the public interest the Appellant submitted:

“I was dismissed because I followed a Constitutional Act and Act of the 1900 Constitution. This is in the Interest of the public as this is the constitution we the people follow and is lawful. The seal of the crown being removed in 1953 makes any laws altered without a referendum UNLAWFUL.

Section 51 xxiii9(A) medical and dental services – as to not authorise civil conscription. Clause 5 of the constitution states “operation of the constitution, shall be binding on the courts, judges and the people of every state and of every part of the Commonwealth.” I believe you have breached this in your decision as I was adhering to my rights of my privacy under the Biosecurity Act 2015 and the Privacy Act. Every Law whether Federal or state is SUBJECT to the Constitution, and if a law is inconsistant (sic) with the Constitution it is INVALID.
INFORMED CONSENT was NOT given to any living person on this earth.
It is now being made public that this gene therapy is a form of genocide in which Home@scope are being complicit and not only my decision under a LAWFUL act of not disclosing my medical information which falls under the Nuremberg Code as this is an International LAW. It is now my understanding that millions have died from this experiment hence the reason I believe this to be in the best interest of everyone in the public.
So I was dismissed for trying to stay alive. How is that not UNFAIR?”

Principles of Appeal

1. An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[2] There is no right to appeal. An appeal may only be made with the permission of the Commission.

2. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so.” The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[3] The public interest is not satisfied simply by the identification of error,[4] or a preference for a different result.[5] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

“... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”[6]

1. It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[7] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

1. An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[8] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.

Consideration

1. Having considered the Appellant’s submissions, we are not satisfied that there is an arguable case of error in the Decision. The Appellant’s submissions extensively discuss her sovereign rights and concerns regarding the vaccination mandate but fail to point to any evidence or parts of the Decision that may be infected by error. We consider that the Appellant is attempting to reagitate the merits of her case as put to the Commissioner at first instance, specifically in relation to the validity of the government Directions and Orders regarding the vaccination mandate. We note that the Commissioner dealt with these submissions at paragraphs [32] – [36] of the Decision. Here, the Commissioner considered the relevant authorities and was satisfied that the government Directions were valid and that the Respondent’s direction to provide vaccine information was lawful. Having regard to these facts, the Commissioner was satisfied that the Respondent had a valid reason for dismissing the Appellant.

1. It is clear that the basis on which the Commissioner reached her Decision discloses an orthodox approach to the determination of the Appellant’s application. The Commissioner applied the correct legal principles, considered, and dealt with the evidence that was before her, and made findings of fact based on that evidence. We are satisfied that the Commissioner’s conclusions were reasonably open on the evidence before her.

1. Further, 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 Commissioner were disharmonious when compared with other decisions dealing with similar matters.

Conclusion

1. Permission to appeal is refused.

VICE PRESIDENT

Appearances:

Ms M Jenkins, on her own behalf.
Mr G Tyrell, for the Respondent.

Hearing details:

2022.
Microsoft Teams (Video).
13 October.

[1] [2022] FWC 2003 (‘the Decision’).

[2] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ. (Coal and Allied Operations Pty Ltd).

[3] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 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) 192 FCR 78 at [44] – [46].

[4] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].

[5] Ibid at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].

[6] [2010] FWAFB 5343, 197 IR 266 at [24] – [27].

[7] Wan v AIRC (2001) 116 FCR 481 at [30].

[8] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].

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