Mr Michael Anthony Mullins v The Commissioner for Public Employment
[2022] FWC 1903
•28 JULY 2022
| [2022] FWC 1903 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Michael Anthony Mullins
v
The Commissioner for Public Employment
(U2022/560)
| COMMISSIONER RIORDAN | SYDNEY, 28 JULY 2022 |
Application for an unfair dismissal remedy
On 10 January 2022, Mr Michael Mullins (the Applicant) filed an application (the Application) with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the FW Act). The Applicant was dismissed by the Commissioner for Public Employment (the Respondent) on 21 December 2021 due to his inability to perform the inherent requirements of his duties.
The Applicant began employment with the Respondent on 10 April 2017. At the time of his dismissal, the Applicant was employed by the Department of Education in the role of School Based Engagement Officer. The Applicant’s employment was covered by the Northern Territory Public Sector 2017-2021 Enterprise Agreement (the Agreement).
The matter was listed for Hearing on 20 July 2022 in Darwin. Due to a decision and the policy of the Fair Work Commission (the Commission) at the time, all attendees at the Commission premises were required to be vaccinated. On the understanding that the Applicant was unvaccinated, the Hearing was to be conducted at the Oaks Darwin Elan Hotel.
The parties were notified on 11 July 2022 of this venue change and also the requirement that “Masks are required to be worn by all parties when not speaking throughout the Hearing”, in accordance with the Commission’s current WH&S Policy on wearing masks.
Further, a Digital Court Book was sent to the parties by email on 19 July 2022. This email contained the following advice:-
“A reminder that masks are required to be worn by all parties when not speaking throughout the Hearing”.
Despite being provided with masks by me before they entered the Conference Room, the Applicant and his support person refused to wear the provided masks. As a result, the Hearing was adjourned. Had the Applicant advised the Commission of his opposition to wearing masks prior to the Hearing, the matter would have been conducted by Microsoft Teams, in the same manners as U2021/479 the following day.
Section 587 of the Fair Work Act 2009 (the Act) states:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
Having read all of the tendered submissions and witness statements, I am satisfied that the Applicant’s Application has no reasonable prospect of success.
The Applicant was an employee of the Department of Education as a School Based Engagement Officer. It would appear that the Applicant was very good at this role and advised me, in an earlier conference, of his ongoing success in relation to reducing truancy of Indigenous school children. His contract was due to expire in December 2022.
On 13 October 2021, the Chief Health Officer of the Northern Territory (CHO) issued CHO Direction No. 55, which required relevant employees to receive a COVID-19 vaccination by 12 November 2021 or provide a doctor’s certificate identifying a contraindication to all Australian Technical Advisory Group on Immunisation (ATAGI) approved COVID-19 vaccinations.
It is not in dispute that the Applicant was working with, or could come into contact with, Indigenous Australians and children under 12 years of age. Despite the Chief Executive Officer (CEO) declaring that CHO Direction No. 55 applied to all employees of the Department of Education, even if this was not the case, the Direction would have applied to the Applicant due to his role. Relevantly, CHO Direction No. 55 provides:
“3 A person is considered to be vulnerable to infection with COVID-19 if:
(a) The person is under 12 years of age; or
(b) The person cannot be vaccinated with an approved COVID-19 vaccine due to a contraindication to all approved COVID-19 vaccines; or
(c) The person is an Aboriginal person; or
(d) The person is at risk of severe illness from COVID-19 for medical reasons, such as being on immune suppressive therapy after an organ transplant or having chronic kidney, heart, liver or lunch disease.
These Directions apply to the following workers:
(a) A worker who, during the course of work, is likely to come into contact with a vulnerable person;
(b) A worker who is at risk of infection with COVID-19 because the worker, during the course of work, is likely to come into contact with a person or thing that poses a risk of infection;
(c) A worker whose workplace poses a high risk of infection with COVID-19;
(d) A worker who performs work that is necessary for the operation or maintenance of essential infrastructure or essential logistics in the Territory.
…
Schedule
1For direction 4(a), workers who, during the course of work, are likely to come into contact with a vulnerable person include the following:
(a) Workers who work with children, such as teachers, child care workers, tutors, gym coaches and swimming instructors; …”
It is not in dispute that the Applicant received numerous “global” emails from a variety of senior officers from the Department of the Chief Minister, the Commissioner for Public Employment and the Department of Education in relation to the need to be vaccinated in accordance with CHO Direction No. 55. Further, the CEO wrote personally to the Applicant on 8 December 2021, 10 December 2021 and 16 December 2021 in relation to the Applicant’s inability to perform his role due to his vaccination status.
In response, the Applicant referred to his belief that the actions of the CHO and CEO were unlawful and immoral. At no stage did the Applicant contemplate receiving the vaccination or identify a contraindication. The Applicant also cited that he was dismissed illegally on the basis that he was on sick leave under the care of a psychologist when he was terminated on 21 December 2021. Section 352 of the FW Act states:
“352 Temporary absence--illness or injury
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.”
However, the Applicant was not dismissed because he was on sick leave, but for being unable to perform the inherent requirements of his job.
In his submissions, the Applicant continued with the theme that CHO Direction No. 55 was unlawful, contrary to his inalienable human rights, his rights as a child of God and as a sovereign man of Tribal heritage. The Applicant referenced a number of passages from the New Testament to justify his position:
“Charles Finney
Romans 13:1 “…there is no authority except from God, and those that exist have been instituted by God.”
Proverbs 29:2 “When the righteous increase, the people rejoice, but when the wicked rule, the people groan.”
Romans 13:5 … rulers are servants of God”
The Applicant may be right in every other facet of his submission, but the simple fact is that all of these issues, apart from section 352, are outside the jurisdiction of the Commission.
In Kassam v Hazzard,[1] the Chief Justice of the Supreme Court of New South Wales said:-
“[68] Third, elsewhere in her reasons, the Deputy President considered it necessary to opine on matters affecting either the validity or the appropriateness of making the Aged Care Order under the PHA (at [147] to [173]). The function of determining its validity is for this Court to discharge and the function of determining whether it should have been made is for the political process. The Fair Work Commission has neither function.”
(My emphasis)
In Qantas Airways Limited v Mathew Mazzitelli,[2] a Full Bench of the Commission stated:
“[32] Qantas’ jurisdictional objection at first instance was, in substance although not expressly described as such, an application for the summary termination of the proceedings. The Commission has power to summarily dismiss an application under s 587(1) of the FW Act where the application is not made in accordance with the FW Act, or is frivolous or vexatious or has no reasonable prospects of success. However, as was stated in the Full Bench decision in Bibawi v Stepping Stone Clubhouse Inc:
“[17] … Section 587(1)(a) of the FW Act empowers the Commission to dismiss an application where it has not been made in accordance with this Act, and s 587(1)(c) similarly empowers dismissal where an application has no reasonable prospects of success. This power may be exercised summarily - that is, an application may be dismissed pursuant to s 587(1) prior to a full hearing being conducted. Full Bench decisions such as Townsley v State of Victoria (Department of Education & Early Childhood Development) ([2013] FWCFB 5834 at [17]-[19]) and Toma v Workforce Variable Pty Ltd ([2018] FWCFB 5811 at [15]) have emphasised that the power to dismiss applications summarily should be exercised cautiously and sparingly, consistent with the principle stated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) ([1964] HCA 69, 112 CLR 125 at 128-129):
... the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion... the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action ... is clearly demonstrated.”
Adopting the obiter in Kassam v Hazzard, I am satisfied and find that the Commission cannot deal with the issues raised by the Applicant for lack of jurisdiction. The legality of CHO Direction No. 55, the Applicant’s inalienable human rights, his rights as a child of God or his rights as a sovereign man of Tribal heritage are all matters which fall outside the jurisdiction of the Commission and are matters for the Courts. As a result, the Application has no reasonable prospect of success.
For the above reasons, the Application is dismissed.
I so Order.
COMMISSIONER
[1] [2021] NSWSC 1320 at [68].
[2] [2020] FWCFB 2628.
Printed by authority of the Commonwealth Government Printer
<PR743972>
0
0
0