A child protection case worker had been working full-time for a community service centre since January 2019. She had received positive performance reviews and had been commended for the quality of her work. She went on maternity leave in June 2020 but returned to work on 22 March 2021.
Case worker, distressed by Covid-19 lockdowns and policies
In June 2021, the general practitioner swabbed the case worker’s infant daughter for Covid-19 without obtaining the case worker’s consent. The test result was negative. The case worker considered making a formal complaint against the GP but decided not to. The experience left the case worker distressed especially about mandatory vaccinations. She spoke about her anxieties with her psychologist.
Attended a rally in breach of public health order
On 24 July 2021, the case worker attended a World Freedom Rally in Victoria Park in Sydney. She joined the rally as an exercise of her right to peacefully protest and assemble as well as to voice her concerns about the fear campaign of the government, and the government’s harsh lockdowns and forced vaccinations.
The case worker wore a mask whilst at the rally and socially distanced herself, but she removed her mask a few times. She uploaded pictures and videos of herself whilst at the rally. She had also previously posted about adverse reactions to Covid-19 vaccines that resulted in death as these events seriously impacted her emotional and psychological health.
Offensive social media posts
She had also posted pictures of the premier of NSW with a Hitler moustache next to an image of Adolf Hitler with the caption: “If it fits wear it.” She also uploaded a post that said, “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!”
Allegation of misconduct
After the rally, when she reported for work, she was informed that she had been reported to Crime Stoppers for having attended a rally in breach of a public health order. She was also being investigated by the Health Department’s Conduct and Professional Standards Unit.
Allegations of misconduct were made against her: by attending the rally, she breached public health orders of the government of NSW; she posted on her Facebook page highly derogatory words against the decisions of the NSW government as well as the senior government officials; by her actions, she had not treated others with dignity and respect and failed to uphold the core values of her employer, and breached the Department’s Code of Ethical Conduct.
Employer’s reasons for her dismissal
The case worker was allowed to submit her response to the allegations against her. On 6 September 2021, the case worker was summarily dismissed from her employment.
Her employer reasoned that whilst the case worker was off-duty at the time that she attended the rally and made those derogatory posts, as an employee in the public sector, she had the obligation to act in accordance with the law and with the code of conduct for public servants even when she was off-duty. She had the obligation to model exemplary behaviour and act as a positive influence in the community. She should have known that any unprofessional conduct even in her private life may damage the reputation of the department and impact her department’s ability to perform their role.
Also, as a public employee, she was under obligation not to make any comment where it could be inferred that her public comment, event when made in a private capacity, was an official comment of the government or the department. She was wrong to have made comments on social media that could bring the department into disrepute. More importantly, during the investigation, the case worker did not show any remorse for her actions or show insight as to the impact her misconduct might have had on her co-workers, her employer, the government, and the government officers she had disrespected in her posts.
Application for unfair dismissal
She filed an application for unjust dismissal on 24 September 2021 seeking reinstatement or re-employment to another position in the public sector with an equivalent salary.
She eventually applied for and obtained a position as a social worker in the private sector with a pay that was $500 per week less than her former position. She amended her application and sought to be paid the difference between her pay in the public sector and the pay she received at her new job in the private sector.
Duty to obey public health orders as government employee
The New South Wales Industrial Relations Commission (NSWIRC) found that, indeed, the case worker’s conduct was completely at odds with her obligations as a public servant. As a public sector employee, she was free to disagree with government policy but she was still under obligation to comply with public orders even when she did not agree with them and could not pick and choose which orders or policies to comply with.
As a case worker for children, as part of the duties of her job, she was to lead by example as the “parents” to children in their care. She was required to get vaccinated so that she will not put at risk the children she cared for.
Dismissal not unreasonable or unfair but harsh
However, while the case worker’s dismissal from employment was neither unjust nor unreasonable, given her personal circumstances, however, the dismissal was harsh.
Case worker, suffering from anxiety disorder triggered by pregnancy, childbirth
At the time when the 2020 lockdowns occurred, the case worker had been pregnant. She was understandably anxious about her future and her ability to provide for her child since her partner’s work hours had been reduced from a full-time job to a part-time job. She returned from her maternity leave earlier than she had hoped to ease the financial burden on their family.
Intergenerational trauma from persecution by the state
More importantly, the case worker had family history of traumatic experiences of government persecution as her mother was a Polish Jew who fled Argentina. The case worker’s parents had serious medical conditions, and relied on the case worker for their support while living in Australia, but the case worker had not seen her parents for months at a time.
Actions were out-of-character
She realised she had done wrong and expressed no further desire to attend future protests or rallies. She has stopped commenting on social media and has stopped uploading posts. Her disrespectful posts on social media were a “one-off” and was an act that was “out of character” for her.
First act of defiance of a lawful order
The case worker’s refusal to be vaccinated and her attendance at the rally were her first and only acts of defiance of legal orders and for which she had not been charged criminally. At work, she had complied with all the instructions of her employer about social distancing, weaking a mask and with the lockdowns and restrictions.
The dismissal’s impact on her present and future financial wellbeing
If she lost her employment, she would need to take her infant daughter out of childcare because she will not longer be able to afford childcare. She would not be able to afford the rent on the apartment they are occupying. She will not be able to make payments on her consolidated credit card debt which she had incurred while studying at university. Losing her employment would mean becoming bankrupt and this will mean that she will be unable to purchase a house or obtain a loan in the future.
Her anxiety disorder was well-documented
The case worker also provided a letter from her psychologist attesting to her treatment of the case worker for Perinatal Mood Disorder since November 2020. In the psychologist’s opinion, the case worker’s actions and behaviour were driven by a genuine fear and anxiety about perceived threats to the wellbeing of her family. She worried about the loss of her public freedom and could not bear to have it go unchallenged.
Offensive Facebook posts
As for the derogatory posts and pictures she had uploaded on her Facebook page, even if she had not created them but merely shared them from another person’s post, it cannot be denied that she posted them.
Case workers’ work often required them to take children away from parents
Her post about the military taking away children from their parents offended her co-workers because as child protection case workers, they often had to take children away from their parents when the children’s safety and wellbeing were threatened. Even if she had not intended to offend or disrespect her employer and her work colleagues, it is clear that she had not considered the impact of her post on others and voiced her fear and insecurity.
Posting a picture of Hitler was offensive
The case worker did not consider that merely posting a picture of Hitler on Facebook would cause offense. She had not stopped to consider that it would have caused more offense to the premier of New South Wales as she was of Armenian descent and the Armenian people had been historically oppressed and had suffered genocide.
Orders
None of these personal circumstances excuse the misconduct of the case worker but they are factors that impacted her personal circumstances which the Commission may take into account in deciding the issue of harshness. Her reinstatement or re-employment with the Department is impracticable While her dismissal for serious misconduct was not unfair or unreasonable, she need not have been summarily dismissed for it. The summary dismissal was harsh considering that among the possible penalties that could have been meted out to her for her serious misconduct was to allow her to resign. The Commission ordered the NSW government to pay the case worker an equivalent of 12 weeks’ pay to compensate her for the harsh impact of her dismissal.
Source:
Lichi v Industrial Relations Secretary on behalf of Department of Communities and Justice NSWIRComm 1011 (10 March 2022)
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWIRComm//2022/1011.html
Read More
Misconduct at a work-related social event is a valid reason for dismissal
Excessive personal texting for a private side business whilst at work a valid ground for dismissal
Sexually harassing conduct weighs against harshness of dismissal
Insubordination caused by disagreeing with employer’s actions is a valid reason for dismissal
Evidence of mild autism is insufficient to excuse sexually harassing conduct
Dismissal for carrying on a consensual romantic affair with student, unfair and unreasonable
Dismissal for posting Hitler moustache on Facebook, not unfair or unreasonable but harsh
In investigating sexual harassment, employers cannot focus only on the applicant’s feelings to the exclusion of the factual context of the allegations
He said, she said: Marital breakdown—not a valid cause for redundancy or dismissal for cause
Finding potential external employment for staff is not an acceptable alternative to reducing redundancy pay
