In Michelle Jenkins v Home@Scope Pty Ltd [2022] FWCFB 207 the Fair Work Commission has considered yet another pseudo legal claim regarding dismissal in relation to vaccination.
[4] For the reasons that follow, permission to appeal is refused.
Decision Under Appeal
[5] The Commissioner began by considering s.396 of the Act and was satisfied by all the initial matters. The Commissioner then had regard to s.385, noting subsections (a), (c) and (d) were satisfied, leaving her to determine whether the dismissal was harsh, unjust or unreasonable pursuant to s.385(b) and considering the factors in s.387.
Valid reason for dismissal – s.387(a)
...
[9] The Respondent submitted that the Appellant was terminated because she could no longer meet the inherent requirements of her role. The Appellant submitted that there was no valid reason for her dismissal related to capacity or conduct and made assertions as to the validity of the Directions and Orders. The Appellant also submitted that she was able to perform the administrative part of her role remotely and therefore she should not have been dismissed. Further, the Appellant submitted:
a) her contract of employment falls under federal law and cannot be overridden by a pandemic declaration;
b) the vaccination mandate is unconstitutional;
c) under the Nuremberg Code, it is a criminal act to pressure or coerce someone into having a vaccination; and
d) her vaccination status is protected by the Privacy Act 1988 (Cth).
[10] The Commissioner rejected the Appellant’s submissions, finding that they could not be sustained. Further, the Commissioner observed that the Directions and Orders were valid at the time of the Decision. The Commissioner noted there is no contest that the Appellant did not provide vaccination information to the Respondent and has at no stage claimed to be an excepted person to the Directions or Orders.
[11] The Commissioner was therefore satisfied that the effect of the Direction prohibited the Respondent from allowing the Appellant to provide direct care to clients in their homes. The Respondent would have been in breach of its legal obligations if it allowed the Appellant to work outside of her primary residence from 15 October 2021. Further, the Commissioner was satisfied that the direction given by the Respondent was reasonable. ...
[17] In conclusion, the Commissioner was satisfied that the Appellant’s dismissal was not harsh, unjust or unreasonable and therefore not unfair. The Commissioner dismissed the Appellant’s application.
Grounds of Appeal
[18] The Appellant provided lengthy submissions on her sovereignty and the COVID-19 vaccination mandate. While we have not set out these submissions we have read and considered them for this appeal. The Appellant’s grounds of appeal as set out in her F7 – Notice of Appeal are as follows:
Legislated reason I was dismissed for still has not been given to me by either Home@Scope or in the response to my application.
As per (50) of the decision, you state I did not respond after the 13th when quiet clearly YOU have an email sent to Home@Scope dated after the 13th in which they did NOT respond.
Evidence in a new case shows that YOU are unlawfully acting under a false coat of arms.
You have NOT taken into any account the evidence I have provided nor have you provided me with any evidence of the authority of the CHO, PHO or State Premier.
“Vaccination” there is NO authorised “vaccine” there is an experimental gene therapy that Greg Hunt spoke of, and as for that reason I will be seeking legal advice for an attempt on my life.”
[19] In terms of why the appeal is in the public interest the Appellant submitted:
I was dismissed because I followed a Constitutional Act and Act of the 1900 Constitution. This is in the Interest of the public as this is the constitution we the people follow and is lawful. The seal of the crown being removed in 1953 makes any laws altered without a referendum UNLAWFUL.
Section 51 xxiii9(A) medical and dental services – as to not authorise civil conscription. Clause 5 of the constitution states “operation of the constitution, shall be binding on the courts, judges and the people of every state and of every part of the Commonwealth.” I believe you have breached this in your decision as I was adhering to my rights of my privacy under the Biosecurity Act 2015 and the Privacy Act. Every Law whether Federal or state is SUBJECT to the Constitution, and if a law is inconsistant (sic) with the Constitution it is INVALID.
INFORMED CONSENT was NOT given to any living person on this earth.
It is now being made public that this gene therapy is a form of genocide in which Home@scope are being complicit and not only my decision under a LAWFUL act of not disclosing my medical information which falls under the Nuremberg Code as this is an International LAW. It is now my understanding that millions have died from this experiment hence the reason I believe this to be in the best interest of everyone in the public.
So I was dismissed for trying to stay alive. How is that not UNFAIR?”
In Ms Michelle Jenkins v Home@Scope Pty Ltd [2022] FWC 2003 the Commission had noted Jenkin's statement
“... Take note:
I protest the interference of a medical service upon me of unknown consequences, and I protest the inspection that violates my medical privacy.
I request production of the written law that requires of me to undergo a forced vaccination as a prerequisite of my employment.
I request the production of the written data that proves the vaccine has undergone the clinical trials required of vaccines to prove its safety.
I request that the law for mandated vaccinations be made pursuant to the constitutional guarantee.
I request that the health directions and mandates be proved, for enforcement, that it has been made in the fulfilment of the law that governs this Commonwealth, for which unites and protects us.
Failure to produce the written law mandating this forced vaccination, within three days of this notice, shall be taken to be unwarranted coercion and workplace harassment for which substantial compensation may be due...”
Unlike the recent Miroch dispute Jenkins does not appear to have sought compensation in the form of bars of silver.
