‘Largely Incomprehensible’: Fair Work Commission Continues to Grapple with Vaccine Mandate Dismissals

The Fair Work Commission (FWC) continues to work through the influx of unfair dismissal claims stemming from state vaccine mandates. 

With some rare exceptions, unvaccinated workers dismissed in the aftermath of public health directions requiring vaccination in certain workplaces, have not fared well in the FWC.  Some applicants have veered into curious arguments involving the Nuremberg Code, the Constitution, and other things that would not normally be mentioned in dismissal matters in the FWC.  The following case is just one example. 

Dismissal

The case involved an applicant who was employed by VicRoads until her employment ended on 13 December 2021.  The applicant was employed in a position subject to the COVID-19 Mandatory Vaccination (Workers) Directions issued by the Victorian Chief Health Officer.  The applicant did not comply with the vaccination requirements in the Chief Health Officer’s directive and that ultimately resulted in VicRoads deciding she could not carry out the inherent requirements of her position. 

In the FWC

Deputy President Gostencnik determined the applicant’s unfair dismissal claim in the FWC.  The paragraph from the Deputy President’s decision below gives an indication of the flavour of the arguments put forward by the applicant:

During the hearing [the applicant] made a submission which, though largely incoherent, was to the effect that the CHO Directions made under PHW Act were invalid because there was “no government” as the Premier of Victoria and others were the subject of charges brought by an individual in which it is alleged, inter alia, that the Premier was guilty of “Misprison of treason at common law” and “fraud at common law”. Putting to one side the absurdity underpinning the charges, the Commission is not the place to mount an attack on the validity of the CHO Directions. As an administrative tribunal the Commission will proceed on the basis that the CHO Directions made pursuant to the exercise of statutory power were validly made. But in any event, the arguments advanced by [the applicant] in support of her contention were largely incomprehensible, they lacked merit and are rejected.

The situation did not improve from there with the Deputy President observing:

[8] As part of the submission, [the applicant] also contended that I should deliver “the criminal charges to the Commissioner of Victoria Police under the state and federal criminal laws” , that there “will be no pleas given today and no plea taken until” this occurs and that until “the Commission has responded to [her] request, [she] will not permit any crime in this hearing today and the Fair Work Commission cannot make any lawful determination than to make the document for [her] reinstatement”. [The applicant] also contended that “an unlawful determination or adjournment of these matters will be deemed as a further concealment of the serious criminal offence exposed in the file documentation” and that the “only orders that can be issued today is the Herman v Andrews case, M12539558, to be transferred to the Full Court of Appeal, Supreme Court of Victoria, to the attention of the President of Supreme Court of Victoria, Chris Maxwell QC.”

[9] The contentions are self-evidently without merit and the application underpinning them was denied.

[10] [The applicant] further contended that the “Commission or tribunal is not in our legal system, and the Commission is not an authority under the constitution” and has no authority to conduct a hearing and to determine her application. This nonsensical contention was also rejected, and the hearing continued.

The Deputy President went on to explain that during the cross-examination of one of the employer’s witnesses, the applicant again argued the FWC did not have the authority to continue the hearing.  The applicant was recorded on the transcript as submitting:

“Right. So, Deputy President Gostencnik, this matter cannot be proceed any longer because – yes, it need to be adjourned because I’ll need to make sure this matter’s going to – well, this matter cannot be proceed any more because I will have to report it to the public prosecution of this about a criminal charge, and then we clearly have the crime against – you know, big crime against a lot of people here. So I will request this meeting to be adjourned.”

The applicant then left the hearing after being warned it would continue in her absence. 

The Deputy President ultimately found that the dismissal of the applicant was not unfair.  There was a valid reason for her dismissal which related to her capacity to carry out her position.  There was a fair process leading up to the dismissal, in the view of the Deputy President.  The application for unfair dismissal remedy was dismissed.