Ms Julia Elana Miroch v Powercor Australia Ltd - [2022] FWC 1880

[2022] FWC 1880

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Julia Elana Miroch
v

Powercor Australia Ltd

(U2022/4126)

DEPUTY PRESIDENT BELL

MELBOURNE, 21 OCTOBER 2022

Application for an unfair dismissal remedy – COVID-19 public health orders – inherent requirements - application dismissed.

Julia Elana Miroch (Applicant) has made an application (Application) to the Fair Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (Cth) (FW Act). The Applicant alleges she was unfairly dismissed by Powercor Australia Ltd (Respondent) on 17 March 2022. The Respondent agrees the Applicant was dismissed but denies the dismissal was unfair.

The circumstances concerning the Applicant’s dismissal related to a requirement under various Victorian public health orders concerning certain requirements for vaccination against COVID-19. The Applicant was not dismissed, by contrast, for poor performance. Rather, the basis of the dismissal was due to the vaccination requirements of relevant Victorian public health directives and (on the Respondent’s position), the Applicant’s inability to perform an inherent requirement of her role, namely the performance of at least some of her work on-site.

The Applicant was represented by Trevor Alexander at the hearing, although he preferred to describe himself as “‘Trevor John’, of the family Alexander”, and similarly the Applicant described herself as “‘Julia Elana’ of the family Miroch”. (I note briefly that these designations appeared to have some significance to the Applicant’s contention that the Respondent had committed unlawful “personage”, as well as the lawfulness of contracts between natural persons and other entities who are not natural persons, such as the Respondent.) While Mr Alexander described himself as ‘Attorney in Fact’ for the Applicant and some correspondence indicated he represented “The Moot Court of Terra Australis Incognito”, he confirmed, and I am satisfied, he was not a paid lawyer or agent for whom permission needed to be obtained to represent the Applicant.

The Respondent was represented by the law firm Landers & Rogers, with permission to be represented having previously been granted.

Preliminary matters

There were a number of preliminary matters that arose prior to the substantive hearing of the matter. While I have previously ruled upon them, such as I was required to do so, I would briefly note them here for completeness.

The first was that I ought to have refused the Respondent’s request for permission to be represented by its solicitors, Landers and Rogers. While I will not repeat the cut and thrust of that application, I record that I was satisfied that, having regard to the factual complexity of the matter, it would enable the matter to proceed more efficiently if the Respondent were represented.

The second matter was a request for me to recuse myself on the grounds of bias or apprehended bias. Various grounds were advanced. One ground was that my associate, in correspondence with the parties, described the Applicant’s representative as ‘Mr Alexander’. By…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ms Julia Elana Miroch v Powercor Australia Ltd

Details

AGLC: Ms Julia Elana Miroch v Powercor Australia Ltd [2022] FWC 1880
Case: [2022] FWC 1880
Decision Date: 21 OCTOBER 2022

CaseChat Overview and Summary

The applicant, Ms Julia Elana Miroch, sought a remedy for unfair dismissal against the respondent, Powercor Australia Ltd. The respondent dismissed the applicant on 17 March 2022 due to her inability to perform her job on-site, which was an inherent requirement of her role, and due to the respondent's obligation to comply with the Victorian public health orders. The applicant claimed that the dismissal was unfair, harsh or unreasonable, and the court had to determine if the dismissal was justified.

The court considered the relevant criteria in section 387 of the Fair Work Act 2009 (FW Act) to determine if the dismissal was harsh, unjust or unreasonable. The court found that there was a valid reason for the dismissal related to the applicant's capacity or conduct, and the applicant was notified of that reason. The applicant was also given an opportunity to respond to the reason related to her capacity or conduct. The court concluded that the dismissal was not harsh, unjust or unreasonable, and therefore dismissed the applicant's application for an unfair dismissal remedy.

The court's decision was based on the inherent requirement of the applicant's role to perform at least some of her work on-site, which she was unable to do due to her inability to be vaccinated against COVID-19. The court also found that the respondent had a valid reason to dismiss the applicant based on the Victorian public health orders, which the respondent was required to comply with. The court considered the various factors set out in section 387 of the FW Act and concluded that the dismissal was not harsh, unjust or unreasonable. The applicant's application for an unfair dismissal remedy was dismissed, and an order to this effect will be issued separately.

Orders