Authors: Amy Zhang & Justin Pen

The New South Wales Industrial Relations Commission has found that a public sector worker had been unfairly dismissed, holding that such dismissal was ‘harsh’ having regard to the personal circumstances of the worker. The dismissal, which was found to have been based on a valid reason and found to have been procedurally fair to the worker, followed revelations that the worker had attended a ‘world freedom rally’, and posted ‘highly derogatory’ content to social media, in protest of state and federal governments’ handling of the COVID-19 pandemic.

In Lichi v Industrial Relations Secretary on behalf of Department of Communities and Justice [2022] NSWIRComm 1011, the Commission was tasked with determining if the dismissal of a childcare protection worker was “unfair”, in the sense that it was any of “unjust, unreasonable or harsh”, for the purposes of the Industrial Relation Act 1996 (NSW).

The worker, who commenced employment with the Department of Communities and Justice in January 2019, attended a “World Freedom Rally” at Victoria Park in Sydney in July 2021. The worker, the Commission found, was motivated to attend the rally to voice concerns about the “forced COVID-19 vaccinations against the Australian people” and “the government’s harsh imposed lockdowns and restriction, which has significant impacts on small businesses, the livelihood and mental health of the Australian people”.

In the weeks following the rally, in late July 2021, the worker received a letter that alleged the worker had:

• breached public health orders in attending the World Freedom Rally;
• posted content to Facebook that was ‘highly derogatory’ to the New South Wales Government;
• failed to uphold the Government Sector Core Values and principles of Integrity, Trust, Service and Accountability of the Government Sector Employment Act 2013; and
• contravened the Department of Communities and Justice’s Code of Ethical Conduct,

and that such actions constituted misconduct.

Relevantly, the Facebook posts to which the letter referred included a picture of Gladys Berejiklian, the then Premier of New South Wales, which had “been defaced by super imposing a “Hitler moustache” on Ms Berejiklian’s face”, and a post that stated “By the end of August the military will be knocking on your door if you haven’t had a jab or they will take your kids off you! Wake the fk up Australia!”.

Over the next month and a half, the worker was provided with opportunities to respond to the allegations put against her.

In early September 2021, the worker was dismissed.

Following hearing of the worker’s unfair dismissal application, the Commission found that, although there existed a “valid reason” to dismiss the worker, and that procedural fairness was afforded to the worker, the dismissal of the worker was “unfair”, because it was “harsh” taking into account the personal circumstances of the worker.

The Commission observed that a finding of harshness could stand alone from the fact that the dismissal was not “unjust” nor “unreasonable”. It considered the following factors when concluding the dismissal was “harsh” and, thus, “unfair”:

• the worker had given birth in June 2020 amid the initial period of the COVID-19 pandemic and during which the restrictions were imposed on the worker’s personal freedoms;
• the worker’s partner’s employment was severely impacted and the worker’s family income had been significantly reduced over the period;
• the worker stated that she developed post-natal depression (which was not disputed in the proceeding);
• the worker’s psychologist described the worker as having been “influenced by longer-term contributing factors including perinatal mood disorder and significant stressors”;
• the worker’s ability to provide care and assistance to her mother and stepfather had been severely affected;
• the period leading up to the rally was a “time of confusing and conflicting information circulating in society about the efficacy of vaccines that had been developed and the legality of public health orders”; and
• for a period of approximately three months after the worker’s dismissal, the worker was virtually without income.

“None of these matters excuses the misconduct of the applicant which led to her dismissal,” the Commission stated, “but these are factors which impacted on the personal circumstances of the applicant and which, in the exercise of its discretion in relation to the issue of relief, the Commission may take into account on the issue of harshness.”

Finding that the dismissal was “unfair”, the Commission ordered that the worker be compensated in the amount of 12 weeks’ pay.

This decision demonstrates that fundamental principles of employment law and unfair dismissal will continue to be applied despite these novel and extraordinary times.

As is clear from this case, even if an employer had a valid reason to dismiss a worker and afforded procedural fairness to them, a decision to dismiss that worker can still be unfair because such decision was “harsh” taking into account the personal circumstances of the affected worker.

Accordingly, care should always be taken before proceeding with a termination of employment.

For more information or if you require advice and assistance regarding the above, please contact our Harmers team on +61 2 9267 4322.