Sacked over a Hitler meme of the Premier, but still compensated

What happened

Vanessa Lichi was a child protection caseworker with the NSW Department of Communities and Justice. She started in January 2019, had her daughter in June 2020 and returned from maternity leave on 22 March 2021. Her performance reviews had been positive.

Ms Lichi said she had become increasingly anxious about lockdowns and talk of compulsory vaccination. On 24 July 2021 she went to a “World Freedom Rally” in Sydney. A public health order in force that day banned anyone from taking part in an outdoor public gathering in Greater Sydney of more than two people. The day before, her manager had emailed staff asking them to keep following the public health orders.

She posted pictures of the rally on her personal social media. Two other posts became the heart of the case. One, which she had shared from someone else, showed the then Premier’s face with a Hitler moustache beside a photograph of Adolf Hitler, under the words “IF IT FITS WEAR IT”. The other said the military would soon be knocking on doors and would “take your kids off you” if people had not had the jab.

The investigation and dismissal

She soon learned she had been reported to Crime Stoppers and the Department’s conduct unit. The Department alleged that she had breached the public health order, that her Facebook posts were derogatory of the government’s COVID-19 decisions and of senior officials, and that she had failed to uphold the government sector core values and the Department’s code of conduct.

Ms Lichi answered the allegations in writing, with a letter from her psychologist, and attended two meetings with a union representative. A deputy secretary decided to dismiss her, and her employment ended on 6 September 2021. She had not been charged with any offence.

The claim

Ms Lichi applied to the Industrial Relations Commission of New South Wales under s 84 of the Industrial Relations Act 1996 (NSW), which covers NSW public servants. It lets the Commission give a remedy where a dismissal was “harsh, unreasonable or unjust”.

Her lawyers argued that she had not breached the order at all, and that serious misconduct required a criminal conviction. By the hearing she had found a new job as a social worker in the private sector, starting on 1 December 2021, at a lower rate of pay. She asked for 12 weeks’ pay plus the difference in pay for a further 14 weeks.

What the Commission decided

Commissioner Murphy found that the Department had a valid reason. Attending the rally broke the public health order and the code of conduct, which requires staff to obey the law even when off duty. The argument that only a police officer, a health officer or a judge could decide she had broken the order was “plainly wrong”, and the conviction argument was “misconceived”: employers regularly make misconduct findings about unlawful conduct where no one has been charged.

The Commissioner agreed with the Department that the posts were the more serious misconduct. The Hitler image was “an appalling act of disrespectfulness and unfairness to the then Premier”. The military post was “always likely to cause significant upset and resentment amongst other Child Protection Caseworkers”, whose work sometimes involves removing children from their families. He accepted that she had shown genuine remorse for the posts, but held that the misconduct still warranted dismissal. The process was fair, and the dismissal was neither unjust nor unreasonable.

But the Commissioner found the dismissal harsh. At the end of the hearing on 10 February 2022 he ordered the Department to pay Ms Lichi 12 weeks’ pay and refused the extra 14 weeks she had claimed. His reasons followed on 10 March 2022.

Why: the legal test

The three words mean different things. In Byrne v Australian Airlines Ltd (1995) 185 CLR 410 the High Court explained that a dismissal may be harsh but not unjust or unreasonable. A dismissal can be harsh “in its consequences for the personal and economic situation of the employee” or because it is “disproportionate to the gravity of the misconduct”. So a valid reason and fair process are not the end.

Here, the Commissioner weighed mitigating factors. Ms Lichi’s past conduct and performance were good. She had developed post-natal depression, which was not disputed, while her partner’s work had been cut and she could no longer properly care for her mother and stepfather, who have disabilities. Information about vaccines and the orders was confusing at the time.

None of this excused the misconduct, but it bore on harshness. After the dismissal she was virtually without income for about three months. Reinstatement was impracticable, so compensation was the remedy. The cap was six months’ pay, and her relatively short service did not support anything near the maximum.

What this means for you

Conduct outside work, including a shared meme on a private Facebook page, can be a valid reason for dismissal where it is connected to your job. That connection is especially strong for public servants and anyone whose role depends on public trust. An employer can act on unlawful conduct without a conviction.

Even so, a valid reason does not always mean the dismissal was fair. If you are dismissed for misconduct, your personal circumstances, your record and how severe the penalty was can still matter. It is worth raising them in writing during the process and getting advice early. Time limits are short: 21 days for a Fair Work unfair dismissal claim and 28 days in the WA state system.