Another antivax litigant with a dash of soivereign citizenship in Mr Michael Anthony Mullins v The Commissioner for Public Employment [2022] FWC 1903.
Mullins filed an application with the Fair Work Commission seeking a remedy for an alleged unfair dismissal - by the NT Commissioner for Public Employment (the Respondent) - pursuant to section 394 of the Fair Work Act 2009 (Cth). The dismissal was due to his inability to perform the inherent requirements of his duties as a School Based Engagement Officer in the Northern Territory.
[3] 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.
[4] 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.
[5] 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”.
[6] 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. ...
[8] Having read all of the tendered submissions and witness statements, I am satisfied that the Applicant’s Application has no reasonable prospect of success.
[9] 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.
[10] 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. ...
[12] 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.
[13] 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.
[14] 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”
[15] 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.
Shades of Cummins v Bond (1927) 1 Ch. 167
In Mullins the FWC continues
[16] In Kassam v Hazzard, 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.” ...
[18] 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.
In Darryl Kubica v InvoCare Australia Pty Ltd [2022] FWC 1439 the dismissal of Kubica reflected his failure to meet an inherent requirement of his role, namely, to be fully vaccinated against Covid-19, or have a valid medical contraindication, in accordance with the InvoCare's Covid-19 Policy (Covid-19 Policy).
[14] On 13 January 2022, the Applicant wrote to Ms Amanda Tober of the Respondent, copying in other personnel of the Respondent (including Mr Lincoln and Ms Bayliss) and requested further particulars regarding the Covid-19 Policy which the Applicant described as a “directive to mandate a medical procedure”. Amongst other concerns, the Applicant noted the following:
“1. I protest the interference of a medical service on to me of unknown consequences, and I protest the inspection that violates my medical privacy.
2. I request production of the written Law that requires of me to undergo a forced medical procedure as a prerequisite of my employment.
3. I request that the Law for mandated vaccinations be made pursuant to the constitutional guarantee.
4. I request your absolute guarantee that any substance/agent administered within the COVID-19/SARS-CoV-2 vaccine designed to cause alterations in my body will be removable at the conclusion of each and every work period and or work shift and also and again at the completion of my contractual obligations with Invacare Australia Pty Limited.”
[15] Further, the Applicant said that the Respondent’s
“Failure to produce the written Law mandating this forced medical procedure, within three days of receiving this letter, shall be taken to be unwarranted coercion and workplace harassment for which substantial compensation may be due. Undertaking the medical procedure as a condition to avoid work termination will not release, or absolve, you of the above numbered points and may be deemed a trespass without a written coram judice warrant.”
...
[21] On 2 February 2022, the Applicant replied to the Show Cause Letter, referring to various statutes and decisions, and submitting that the Covid-19 Policy is “unlawful and unreasonable”, and that his current employment contract does not require him “to undertake a medical procedure or provide [his] personal and private medical information”.
[21] Notably, the Applicant claimed that the Respondent’s Covid-19 Policy and
“current polices introduced and the assumption of authority to enforce such unlawful and unreasonable polices are in breach of the following laws and High Court Case precedents, and my inalienable rights, carrying serious liability for [InvoCare] which may result in civil and or criminal penalties for [InvoCare] as well as further claims for unfair dismissal, including but not limited to:
a) NSW Public Health Act 2010 Section 62 in relation to no public health order issued in the appropriate form and or format pursuant to the above cited section. Please note that proof of receipt of service or an affidavit of service will be required to provide proof of claim of a correctly issued public health order to both myself and InvoCare Australia Pty Ltd.
b) Pursuant to the Privacy Act 1988(Cth) that the request for access to and or the storing and or acquisition of my personal and private medical information is a breach of the Privacy Act 1988 (Cth):
c) That the act of discriminating against me is a breach of the Disability and Discrimination Act 1992 (Cth)
d) That the ICCPR’s ( International Covenant on Civil and Political Rights) articles 5(1), 6(1), 7 8(3a), 17(1) and 26 are being breached pertaining to my rights as recognised at international law
e) UN Universal Declaration of Human Rights 1948
f) The Constitution of the Commonwealth Australia 1900, 1901, Sections 51, 51xx, 51xxiii(a), 109, and 116 if religious exemptions apply
g) Bio Securities Act 2015 (Cth) including but not limited to: sections 8, 60,61,89,90,91,92,93,94,95,580-585
h) Criminal code act 1995 (Cth) Rome Statute 1998 and the United Nations Liber code Art. 10, 13, 26
j) Crimes Act 1914 (Cth) Sections 3ZZIA, 4C, 15”.
The FWC was unpersuaded.
