Lichi v Industrial Relations Secretary on behalf of Department of Communities and Justice

Case for the applicant

1. In her written response of 10 August 2021 to Ms Foster, the applicant provided, as context to her responses to the misconduct allegations, information concerning her personal circumstances. She stated that, at the time of the 2020 lockdowns, she was pregnant and, with her partner, anxious about their future and their ability to afford bringing a child into the world. Her partner's job as a Graphic Designer had been adversely affected and his hours of work had been reduced from full-time to part-time, four days per fortnight. As a consequence, the applicant had to return to work earlier than she had hoped from maternity leave, to reduce some of the financial burden on the family. The applicant also outlined her mother's traumatic experiences as a Polish Jew fleeing Argentina due to government corruption and the circumstances in which her parents currently found themselves, cut off from the applicant's help and support because of public health orders. The applicant's mother and stepfather suffer from a range of disabilities and rely upon the applicant's financial and other support to help out with their basic living needs.
2. The applicant herself became distressed as a result of receiving information on social media about adverse reactions caused by COVID-19 vaccines. She stated: Over the last couple of months in particular, I have felt increasingly anxious about what is happening in the world politically. It's not something I have discussed with people at work, because I am conscious of not causing other people distress. I have attended psychology appointments on a fortnightly basis, after my daughter's birth in June 2020. In those appointments, I have discussed my concerns about the impact of COVID-19 on my family and my daughter's future. I have been very quiet about my political and individual views both in my personal life and in the workplace. Personally, I have never engaged in a great deal of political discussions, even in the past. I do not speak to staff about my views in the office and I do not tell anyone not to get a vaccine. People, including people at work, have contacted me privately through social media and I have had to delete or block them due to their abusive personal attacks on me. I have been told I am a bad mother for having a different point of view. One person wished my family and I would get COVID-19 and die. Someone questioned me and asked what makes me think my life is worth anything and that I should just get "the jab because we all have to be guinea pigs". The conflicting information and mixed messages are what I find distressing. The families I work with have made comments to me about their confusion around the restrictions as they change so regularly.
3. In relation to her attendance at the rally on 24 July 2021, the applicant stated that she did not intend to be defiant against the government or to break any law, but attended as a peaceful protest for very personal reasons based on first-hand experience of the impacts of the lockdowns and restrictions and, in particular, to voice her fears about the possibility of mandatory COVID-19 vaccination. She further stated: … I have seen different and confusing statements on social media, including statements from elected officials like my local MP, Craig Kelly, about whether public health orders are lawful and whether it is lawful to not comply with them. I have not been charged with any offence and I have not attended any court appearances in relation to a serious offence. For the avoidance of doubt, I did not attend the rally to represent the department and I didn't tell anyone at the rally that I was employed by DCJ and I did not speak to anyone other than my partner. I was respectful towards police. At one point, police at Town Hall directed people to move on and we complied with that direction. I was not asked by police to give my details and I have not, as yet, received any infringement notice.
4. With respect to the allegation concerning her use of social media, the applicant requested details of any specific posts that had given rise to this allegation. The applicant stated that she had "never made any comments about the Department of Communities and Justice in a negative or derogatory manner". She claimed that she took a lot of pride in her employer and the work that she did for families on her caseload.
5. The applicant claimed that, in the past, she had refrained from engaging in political debate at work or on social media. This has only occurred recently due to the impacts of the COVID-19 pandemic. The applicant then stated: I have been emotional during this time and I have said and done things that I would not have done in the past. I have felt emotional in the past about the impacts of government policies and I have demonstrated my ability to be impartial during these times. I have respected my managers and employees views at all times, even when these views are different to mine. I have never had a manager speak to me about being disrespectful towards others and I have not received a warning ever from any of my previous employers. I speak very little to the staff about the struggles in my life and I have always been like this. Staff have said when I come into work I "go into a zone" and spend very little time talking about private or workplace issues. I feel it is important to share very little about my personal life in a workplace situation and therefore I feel I have demonstrated my ability to manage work and personal relationships so that professional boundaries are always maintained.
6. The applicant claimed that, other than her attendance at the rally, she had complied with the Department's instructions around social distancing, wearing a mask, stay at home orders and restrictions and lockdowns. She did, however, acknowledge that she "may have not followed the Public Health Order whilst off duty, and that an infringement could likely result from my actions".
7. The applicant's response continued by reference to the various provisions of the Code which had been raised in the misconduct allegations against her. Her response concluded as follows: As a result of this situation, I have been severely emotionally and psychologically impacted. I have received harmful messages from people who disagree with my views. I have not been able to clean, cook and sometimes take care of my daughter, and am lucky my partner is at home picking up the pieces and there to support me. I have missed meals as I have lost my appetite and sometimes, I have needed to force myself to eat. I am trying to comprehend the potential impact of all of this on my family's future during a difficult time in society, where people are struggling to put food on the table and pay their bills. I have been feeling numb. I have never had to worry about things like this in the past and therefore the impact of this shame has been detrimental to my mental health. I ask that you consider my situation as being rare and out of character. I ask that you consider giving me a warning without penalty since it is out of character for me. I have stopped commenting on social media and I have stopped uploading posts. I have removed posts from the last month. I have no intentions of attending any future protests whether it is acceptable or not. I am happy to provide further information, where it has been unclear in the letter I have received from the department and my response. If I was to lose my employment as a result of attending the rally, I would likely have to take my one­year old daughter out of childcare as I simply would not be able to afford this anymore. By the time I find another job, I will not have any childcare options, including family nearby able to help and especially through COVID-19 restrictions. She has adapted so well and loves going to day care. It would break my heart to see her miss out on this opportunity because of my fears I have for her future. As we are currently renting, we would not be able to afford rental payments without my income. I also have a debt arising from the consolidation of credit card bills I incurred while I was studying for 6 years. To date I am still studying a Masters degree and have a large HECS debt to pay off. I also provide financial assistance to my mother on a fortnightly basis. My partner, as I have said above, has limited work at the moment and this is likely to continue in the future and past the Christmas period. Termination of employment would have a serious impact on me and my family.
8. Attached to the applicant's written response was a letter dated 1 August 2021 from Gabrielle Meadley, the applicant's Clinical Psychologist who had been treating the applicant for Perinatal Mood Disorder since November 2020. Ms Meadley traversed the applicant's family background and her recent presentations prior to her attendance at the rally on 24 July 2021. Ms Meadley then stated: It is my understanding that Mrs Lichi's performance of her job role or her conduct in her place of work is not under question, and I have had no reason to doubt her capacity to perform her job requirements. My records indicate that Mrs Lichi has been commended recently upon the quality of her work and her respectful approach to her clients and colleagues. I am aware Mrs Lichi's views differ from many about this highly contentious and emotive topic, and that her decision to demonstrate peaceably in unsanctioned protest was a breach of public orders. It is my clinical opinion that Mrs Lichi's actions were driven by genuine fear and anxiety about perceived threats to the wellbeing of people in her society and worry around what unchallenged losses of public freedom could mean for the next generation. It is likely that her sense of threat and lapse of judgement around the implications of her attendance at the protest has been influenced by longer term contributing factors including perinatal mood disorder and significant stressors. The loss of her job and, in-turn, of the financial security for this young family would be, in my opinion, very harsh, unfair, and unreasonable. Would you please take this into consideration in determining the outcome of this matter
9. Following the provision to her of certain images which had appeared on her Facebook page (referred to at [10] above), the applicant, on 12 August 2021, provided a further written response to Ms Foster which contained the following: Since the rally, I have looked on Facebook feeds occasionally to avoid further deterioration of my mental health. I am conscious how posts made by the mainstream media and posts from people with political views have had an impact on my mental health and therefore I have chosen to disengage from all social media. COVID-19 related stories have exacerbated my symptoms of post-natal depression. I understand that people who are not walking my shoes, might find it difficult to understand the extent a lockdown or mandatory vaccination can have on a person. I have always considered myself as someone who is reflective and considerate of others feelings and I hope with your discussions with my manager you will find consistency in my statement. My experiences and feelings are genuine and I have raised this during the month before my attendance to the rally with my psychologist and I have been working through this on a fortnightly basis.
10. With respect to the image of the then NSW Premier juxtaposed with an image of Adolf Hitler, the applicant stated: I refer to the picture of the Premier of NSW depicted in a likeness to Hitler which has been viewed as derogatory. I want to offer an explanation without downplaying the allegations or the investigation. I want to clarify that the picture/meme was not created by me, I shared the existing image on Facebook from someone else's post. I understand I had a choice to not post this at the time, but my judgement has been impaired since June 2021. I was not referring to the NSW Premier specifically, although clearly is a photo of her, instead I was referring to my experiences and interpretation of what is happening in a personal way. I have had many life experiences that could have led me to write posts for different issues, but I have always been able to manage my emotions away from the workplace and have never used Facebook previously as a way to express my feelings, except feelings of happiness. The post was not meant in humour but as an expression of how I was feeling imprisoned at the time due to announcements for increased restrictions and lockdown extensions, which meant I would not be able to see my mother and stepfather for an indefinite period. I understand everyone is going through the same issue. But my mother and step father are very disadvantaged in many ways and rely on me heavily. I acknowledge that others, including my colleagues, may not have agreed with me, understood me, nor felt the same as me, and have taken offence to having seen this image posted. These feelings may have been triggered by a period where I was not able to get in touch with my mum nor received a response from her for 3 days. My mum has multiple health issues with 8 operations and some days she can stand for longer than 30 minutes but for the most part she is in bed. She also takes multiple medications and one in particular is for blood clotting and lungs. She recently had the vaccine which made me think there was a possibility that she may have had a bad reaction like my step father, such as blood clotting or had passed away, which elevated my feelings of anxiety and fear for their safety but I felt hopeless, unable to drive to see them to make sure they are ok. In the end she told me she was not able to get her phone repaired and for extensive periods she was sleeping due to increasing her medication for pain, which was why I could not get in contact with her. While my post appears to show that I do not have respect for the NSW Premier, and I can understand why, it is far from a personal attack, it is a wider context for me. … Every day there was a new condition or mandate that included many fearful and contradictory statements, for example; "do not speak to your neighbour'', "this is not a time to be around family", "if you see someone at the supermarket you know, do not speak to them", "the military deployment will assist with vaccinations", "extra police patrolling the streets" and asking people for identification when walking the streets. I recently saw a video of a grandmother, mother and young child at Roselands shopping centre. They were stopped by police and questioned. The police grabbed the mother and the child was trying his best to move the police officers away, however the grandmother was trying her best to hold him back. I understand to someone this might not affect them, however I was disturbed, more so about seeing that child try to fight off police to protect his mother. The videos I was seeing on my newsfeed and different group chat further fuelled my feeling of insecurity. I have provided you with some context around my families and grandparents experiences of living through genocide and political corruption in the past in my original response. My grandfather had lived through medical experiments and military occupied zones during World War 2. The picture of the NSW Premier is about the intergenerational trauma my family has experienced and has triggered my own personal feelings and actions. I never intended to knowingly to disrespect, offend or cause concern to others or my colleagues. I understand that my judgement was impaired at the time and I have continued seeking psychological support to address the intergenerational trauma. I understand that this has breached the code of conduct regardless of my reasons and explanation. I understand that if I saw a photo of myself depicted as Hitler, I would feel hurt and upset. This image did not uphold the rights of dignity of the NSW Premier.
11. With respect to the image that contained the words "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!", the applicant stated: I meant no disrespect to my colleagues and the work they do nor was the comment directed at the department. I can understand now that you have provided some context on how this has been interpreted by the colleague and I can confirm I was not referring to child protection officers. I am trying to process my lack of judgement and how being a reflective person that I am, missed how this could be interpreted to my colleagues. I am also a part of a system that unfortunately, at times, removes children when it is unsafe for them to live with their parents or carers. My comment was certainly not made in reference to the work that I myself and colleagues am involved in. It was certainly not made to mock the work that I do, nor that of my colleagues or the department. I say this again, I have defended the department on many occasions and I am not someone to work in a place where I disagree with the values and principles that are not aligned with my own. I understand now from your clarification of this allegation how my comment has been misinterpreted by my colleagues and understand clearly how they might be feeling. Now that I have clarity, it saddens me to think that a comment that I did not think through has made any of my colleagues doubt my appreciation for what they do for their families. To clarify, my comment was made about the military, it was based on my feelings of fear and insecurity at the time. This was brought about due to increased police and military presence on the streets of Western Sydney where my family live, and having viewed posts and videos by political analysts, former Australian defence force personnel and medical experts in media discussing the possible measures a government and/or military could take to increase or eventually enforce vaccinations. I have already seen mandates for certain sectors like aged care and construction, and the Prime Minister encouraging employers to also consider making the vaccine mandatory for their employees, and the confusion and uncertainty around freedom of choice. My concerns are that if the vaccine is made mandatory that the military could eventually be utilised to administer the vaccines door-to-door on families and children as has been discussed as a possibility in the United States. I have also read there was a possibility in the United States of the removal of children due to the refusal of the vaccine. The possible ramifications for refusal to take the vaccine by a military person attending my door or for any person in Australia is distressing. I understand my interpretation of reading and watching videos about this and my post was based on my own personal fears and thoughts. I can understand how this has caused my colleague to feel disrespected or attacked by the work we do. … I wish to reiterate that I acknowledge that I acted without considering the impact that a post based on my own personal feelings or views has had on others and how easy it was to misunderstand someone, not having access to information about why someone might post something like that under rare circumstances. I can understand how my colleagues would have taken offence to this image. Even though my reference to this image was not related to my colleagues, I can see why my colleague was offended and hurt by my post. I understand the difficult nature of the work my colleague and myself do, to ensure the safety of children. I know removing children is not something child protection caseworkers take lightly in the heart. I know remarks like the post I have uploaded are said to caseworker sometimes in reality and these remarks can certainly be upsetting for a caseworker to receive. I know in the past I have received comments like this and I was hurt by this comment. I understand that regardless of my explanation and poor judgement, not thinking how someone might interpret the remark on the post, I have breached the code of conduct on that basis.
12. In relation to her attendance at the rally on 24 July 2021, the applicant provided the following further information: ,,, I understand now that my attendance of the rally breeched the public health order as I know now the rally was not approved and the constitution does not triumph a public health order. I understand the public health order as to my best knowledge means following the mandates I have followed at work and in my private life. I understand my ignorance about the process of how rally's are approved has gotten me to a point where I am today. As I have mentioned, I have never attended a rally before. I have always been a law abiding citizen. I understand that I have breeched the code of conduct regardless of my ignorance. I do not intend to ever attend a rally again, even a lawful one. I can understand why my colleagues would be upset with me for attending. I know my colleagues have been reaching out to check on my wellbeing. I feel that there is space for healing and with time, I hope my life and theirs can go back to how they were. I know it sounds very convenient to say now since there are investigations occurring, however I do want to say that I love the work I do as a caseworker and I enjoy working for the department. This process has been difficult to say the least and I am sorry for my actions in the last month.
13. In response to the letter from Mr Vevers of 30 August 2021, in which he stated that the most severe penalty that he would conceivably impose on the applicant was termination of her employment, the applicant wrote a letter to Mr Vevers which contained the following: Dear Paul, Thank you for providing me with an opportunity for another submission and speaking with you in person. I understand your proposed penalty and I am writing to request some compassion and leniency of the proposed actions and penalties imposed on me. I have mentioned briefly the financial hardship I will find myself in should I receive termination of my employment. The impact of this decision of these possible actions put upon me will significantly affect my family's future. As you are aware from previous submissions, my partner's employment has been impacted by COVID-19 since the beginning of 2020. He has been reduced from full time to working 4 days a fortnight since the latest lockdowns began earlier this year and is relying on crisis payments to supplement his reduced weekly income which is less than what he would otherwise be earning. However his team was informed last week there may be further changes and he may possibly be stood down as there is not enough work coming through. In the next few weeks he will find out if he has lost his employment and if he does he will need to apply for Newstart allowance. Should we both lose our employment, the fortnightly amount we will receive from Centrelink will barely cover the cost of our fortnightly rent and our basic needs. There is also a possibility of becoming homeless as a family, as there is no other accommodation option for us. There is also a possibility of me becoming bankrupt. I am currently paying a debt that I accumulated when I was a student for 6 years at TAFE and university. I was living in a studio apartment and trying to make ends meet working in hospitality. I did not ask for help from family as I did not want to worry them. I used credit cards to pay for bills, necessities and food that accumulated excessive interest fees. If I do not pay my consolidated debt as per the fortnightly agreement, I will be declared bankrupt immediately and I will no longer have the opportunity to buy a house or get a loan in the future. This will have an indefinite and detrimental impact on my family's future. … I am hoping you can find something in my statement that reassures you that I understand what impacts my behaviour has had on others and the risk towards the department's reputation. I never intentionally wanted to upset anyone and certainly never disregard the work myself or others do for the department. We assess risks and work with families and we provide opportunities and learn how to see truth in families statements, as those who come into contact with DCJ have to learn how to trust the work we do with them. I am hoping this is a situation where trust can be built and you can rest assured that there will not be any issues or concern of my behaviour in the future. I am regretful about my attendance and comments made to the NSW Premier and I have showed ongoing remorse during this process.
14. The applicant's affidavit filed in these proceedings contained the following: Effect and consequences of termination 150 I have been unemployed since my termination, up until recently I have secured a Social Work role in the private sector. … 156 I have experienced physical, emotional, and psychological impacts from the course of the investigation and termination. I see my psychologist on a fortnightly basis and I often spend time crying, sometimes I am silent or stuttering trying to find the words to explain how this has impacted me. I often refer to myself as a 'loser' because of the termination. I am currently trying to work on 'shame' and what this experience has done to make me feel shame. I had suspected that the reporter would have been speaking about me and therefore while I was allowed to return to work and in the office, I felt shame to enter the building. 157 I have also been physical sick from the anxiety this has caused and took days off work during the investigations as I was barely functioning and struggled with normal duties. My partner has often had to take of the parenting and household responsibilities because I have been so unwell that I do not want my daughter to pick up on any feelings of sadness from me. There have been lots of moments where I have felt an enormous amount of guilt for my daughter. Sometimes I apologise to her even though she cannot understand. I feel guilty because I was able to meet her needs, buy her toys and other things and because of my fear about her future and attending the rally I was terminated. 158 Mid of October 2021, my partner has recently secured a full-time job. He pays for rent and the groceries. I pay $360 of childcare from my parenting payment, which leaves me with approximately $340 a fortnight. I try to buy my daughter a toy with the little money I get. I cannot take my daughter out of her out of childcare while I wait for my first wage as this would cause me prejudice. The waiting list on childcare is one or more years and this means I will potentially not be able to return to work in December 2021. 159 I often speak about how I felt like I was a criminal and this was very unsettling for me and difficult to digest and comprehend. The department has convinced me that I had committed a crime by attending the rally. 160 I did not tell my family or close friends about my termination up until the last week in October 2021, as a result of the shame that has been embedded. I did not want my mother to worry about me or my family I dissociated from my 3 best friends since the beginning of the investigations. I have hesitantly contacted them recently, at the end of October 2021, due to my level of shame, but trying to move forward.
15. In addition, counsel for the applicant relied upon written and oral submissions in which it was put that the applicant had not misconducted herself as alleged and that the allegations of misconduct were "misconceived, misguided, bias, unproven, unsupported and derogate from the implied constitutional right of freedom of political communication".

Case for the Department

1. It was the decision of Mr Vevers to terminate the applicant's employment which gave rise to these proceedings. Mr Vevers was the only witness called to give evidence for the Department.
2. Exhibited to Mr Vevers' witness statement was a copy of the Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021 which was in force on 24 July 2021, the day the applicant attended the protest rally (Public Health Order). Relevantly, the Public Health Order provided as follows: Division 3 Outdoor public gatherings 23 Direction of Minister concerning outdoor public gatherings (1) The Minister directs that a person must not participate in an outdoor public gathering in Greater Sydney of more than 2 persons. …
3. Also exhibited to Mr Vevers' witness statement was a copy of an email distributed to staff of the Lakemba Community Service Centre by Craig Pinchbeck, Acting Manager Client Services, Inner West Assessment and Family Preservations Hub, which was in the following terms: Hi all, I hope you're all keeping safe and managing with the changes in work from home and other Health orders. If you are having challenges with working from home, please reach out to your manager so we can explore other options or supports. l also wanted to send out a reminder around our responsibility to be wearing masks while in the office and also on visits. Please continue to follow the Public Health orders. Some more info on the orders can be found here https://intranet.dcj.nsw.gov.au/_data/assets/pdf_file/0011/498143/Safety-AIert-masks-wea ring-in-DCJ-workplaces.pdf The above also has some more information around exemptions and circumstances when a mask may be removed. If someone is not wearing a mask in our workplace then be assured a medical certificate has been sought by their manager. Please respect that person's privacy and don't ask for an explanation.
4. Also exhibited to the witness statement of Mr Vevers was a copy of the Code, relevant extracts from which are set out below: 7 Treating people with dignity and respect All employees have the right to be treated with dignity and respect. It is the responsibility of each employee to ensure this occurs. Employees are to treat colleagues, clients, their families and members of the public with equal respect and fairness. Discrimination, bullying or harassment and/or other inappropriate behaviour will not be tolerated by the department in any form, and may constitute misconduct. Inmates, offenders and detainees are clients of the Department. Employees must remain fair and impartial at all times and must demonstrate respect and courtesy towards inmates, offenders and detainees, even in difficult and challenging circumstances. Acts of intimidation, harassment, insults or abuse towards any Departmental client is a serious breach of this Code which may result in misconduct action. When interacting with others, employees must: - act with impartiality, courtesy, promptness and fairness - respect the rights and dignity of others - use courteous, respectful and appropriate language at all times - be responsive in dealing with all individuals - not discriminate against, bully or harass any person in their dealings with them - maintain confidentiality and privacy - manage work and personal relationships so that professional boundaries are maintained - declare to their manager, or another appropriate person, any potential, perceived or actual conflicts of interest between their professional and personal interests … 8.10 Conduct while off duty All employees must, even when off duty, act in accordance with the law and this code. Employees must ensure that they do not bring discredit to themselves as private citizens or to the department, and that they model exemplary behaviour and act as a positive influence in the community. Employees should be aware that unlawful or unprofessional conduct, even in a private capacity, may damage, or have potential to damage, the reputation of the department and impact their ability to perform their role, therefore, may constitute misconduct and attract action by the department in accordance with section 69(4) of the Government Sector Employment Act 2013. Section 69(1) of the Government Sector Employment Act 2013 provides that action can be taken for misconduct which occurs when an employee is off duty or before his or her employment. … 9.1 Public comment In participating in any political, community, personal or online activity, employees must not: - make any comment where it could be inferred the public comment, although made in a private capacity, is in some way an official comment of the government or of the department - make any comment that, even though unrelated to their normal duties, conveys the impression that they are not prepared to implement or administer the policies, procedures and guidelines of the department, or the government - make any comment that could bring the department into disrepute - participate in private political activities in the work environment - use the department's resources to assist political, community or personal activities - use or disclose information obtained through their work at the department to assist their political, community or personal activities - misrepresent the position of the department on any issue. Comments made on matters relating to union business by members of unions in their capacity as a local delegate within the department, or by union office holders employed by the department, are permitted under this code, provided that the employee makes clear the comments are about the industrial matters that involve union business and are made in a union capacity, not as an employee, nor on behalf of the department. Please refer to the department's social media policies and procedures for additional information. 9.2 Political and community participation Employees are free to take part in lawful political activity outside of working hours, provided it does not conflict with their duties. Employees must be mindful that, in their public life, they are required to serve the government of the day in an impartial manner. Where any political activity may create, or has created, a potential, perceived or actual conflict of interest, employees must discuss this with their supervisor/manager immediately. Special arrangements apply to public sector employees who have been pre-selected as candidates for, or who propose to contest, state or federal elections. Details of these arrangements are issued by the Department of Premier and Cabinet prior to an election.
5. It was also part of the Department's case that the conduct of the applicant, which led to the misconduct findings against her, was inconsistent with s 7 of the Government Sector Employment Act 2013 (GSE Act), which is in the following terms: 7 Government sector core values The core values for the government sector and the principles that guide their implementation are as follows - Integrity (a) Consider people equally without prejudice or favour. (b) Act professionally with honesty, consistency and impartiality. (c) Take responsibility for situations, showing leadership and courage. (d) Place the public interest over personal interest. Trust (a) Appreciate difference and welcome learning from others. (b) Build relationships based on mutual respect. (c) Uphold the law, institutions of government and democratic principles. (d) Communicate intentions clearly and invite teamwork and collaboration. (e) Provide apolitical and non-partisan advice. Service (a) Provide services fairly with a focus on customer needs. (b) Be flexible, innovative and reliable in service delivery. (c) Engage with the not-for-profit and business sectors to develop and implement service solutions. (d) Focus on quality while maximising service delivery. Accountability (a) Recruit and promote employees on merit. (b) Take responsibility for decisions and actions. (c) Provide transparency to enable public scrutiny. (d) Observe standards for safety. (e) Be fiscally responsible and focus on efficient, effective and prudent use of resources.
6. Mr Vevers' witness statement contained the following: The role of the Department in the protection of children from a risk of significant harm and the role of Caseworkers 4. The Department works with vulnerable children, young persons, adults, families and communities to improve lives and help people realise their potential. 5. The Department has statutory responsibility for protecting children and young people from risk of significant harm in NSW. For the community to have confidence in the Department, the statutory powers must be exercised openly, respectfully, transparently and properly. 6. For example, under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care and Protection Act), the Minister is responsible for the care of any child or young person for whom the Minister has sole parental responsibility. The Minister may delegate to the Secretary of the Department or any other person the Minister's functions. In accordance with section 43 of the Care and Protection Act, if the Secretary is satisfied on reasonable grounds that a child or young person is at immediate risk of serious harm, the Secretary or his delegate may remove the child or young person from the place of risk. 7. At the level where the Department interfaces with the community, the two very important roles within a Community Service Centre (CSC) are Manager Casework and Caseworkers. A Manager Casework is responsible for leading and managing a team of Caseworkers through group supervision and individual casework coaching and feedback, with the aim of ensuring the delivery of accountable services. A Manager Casework is also responsible for effective case allocation among the team of Caseworkers that she or he supervises, and for facilitating collaborative local and interagency practices. The manager holds decision-making and oversight responsibility for the team's casework. As the practice leader for a team, the manager is required to ensure that the Caseworkers supervised are supported to develop their casework knowledge and practice expertise. 8. A Caseworker is responsible for managing a caseload of allocated families. This involves conducting assessments and coordinating case plans with families and multiagency partners. Additionally, when children cannot live safely at home, Caseworkers are responsible for organising for them to be transferred into out of home care, preparing supporting documentation and ensuring a child's needs are met while in out of home care. Caseworkers at Lakemba CSC were responsible for the case management of active child protection matters. 9. Employees of the Department who are working in this environment must be able to work on their own but also collaboratively in a team environment. It is critical that Caseworkers adhere to acceptable standards, Department Policy and conduct themselves in a manner consistent with their important role in safeguarding vulnerable children. … 24. I took the view that the Applicant's conduct was completely at odds with her obligations as an employee of the Department, including .taking into account the Code of Ethical Conduct and Government Sector core values as outlined in section 7 of the Government Sector Employment Act 2013 (the 2013 Act). 25. On the question of compliance with Public Health Orders, this is simply a non­negotiable requirement of Government employees. Our staff are free to disagree with Government policy and can belong to political parties and the like but they must comply with Government statutes, public orders and policies as they relate to the conduct of employees even if they don't agree with them. If Government employees are allowed to choose which Government statutes, public orders and policies they comply then it becomes problematic to expect the general population to comply. 26. For staff employed by the Department, there is the added expectation because we work with children and young people for whom the Minister is effectively their 'Parent' (being in loco parentis), so Department staff are obliged to lead by example. This is quite apart from the public health risks (including to children and young people that a Caseworker would routinely come into contact with) of attending an event with large numbers of people at close quarters, some of whom were unvaccinated and some of whom were not wearing masks-including I note the Applicant for part of the time she was present at the rally. 27. I add that there was the requirement for all staff to get vaccinated in due course and a requirement that the PHO would be complied with. 28. In relation to the two social media posts referred to above, I thought they were quite appalling and amounted to serious misconduct. 29. The post depicting Adolf Hitler was offensive even without the reference to (then) Premier Berejiklian. The Applicant may not have known the Premier was of Armenian family background but the history of oppression suffered by the Armenian people including the genocide suffered by Armenians during the first half of the twentieth century made that post incredibly offensive, particularly with the suggested link to Adolf Hiller. 30. The second post about the Army removing children struck at the heart of her role as a child protection Caseworker. As a statement it was both false and reckless. It was completely contrary to the very essence of the Code of Ethical Conduct and the core values set out in section 7 of the 2013 Act, and the duties and obligations of a Caseworker. What makes this particularly offensive, is that it is part of the duties of a Caseworker to remove children and young persons from their families where those children or young persons are deemed to be at immediate risk of serious harm. … 32. I note that in her defence, the Applicant had said something to the effect that this was a private Facebook page and that she was not identified as a Departmental person. Unfortunately this was not correct because someone had identified her as such. I recall making the point to her that neither she nor I could know where her posts might travel to or be reposted etc. She put it in the public domain which then created the possibility for it to be disseminated further by other people… My decision 33. At the time of making my decision in relation to the Applicant's employment I believe I had all of the relevant information necessary to make a final decision in relation to the Applicant's employment, subject to any representations she made in the meeting on 6 September 2021, I had the following information: (i) The Code of Ethical Conduct… (ii) The Public Health Order… (iii) The social media posts put up by the Applicant… (iv) The letter setting out the allegations of misconduct… (v) The letters written by the Applicant to Briony Foster… (vi) The letter written by the Applicant to me… (vii) A letter from the Applicant's psychologist (viii) Email exchanges between the Applicant and our professional conduct group (ix) An email from her supervisor relating to her work performance 34. I had already seen most of these documents by 30 August 2021 when I had written to the Applicant indicating my preliminary view that termination of employment was the correct decision. 35. I was aware by the time of the meeting on 6 September that termination of employment would cause her some interim hardship. l was also aware of the fact that whilst she had initially stated that she happened upon the march on 24 July 2021 by chance, that she was a willing participant in that protest 36. In the meeting on 6 September nothing new was presented to me apart from the fact that the Applicant acknowledged that she could not control the information she posted on social media once it was out there, anyone could pick it up and disseminate it further. Other than that, neither she nor the PSA representative said anything new or different from what had already been presented before that meeting. 37. Following the meeting I came to the final conclusion, having considered all of the information before me, that the Applicant's employment should be terminated. Either later that day or the following morning, I signed the termination letter which was then emailed to the Applicant on 7 September 2021… 38. I note the Applicant contends in her submissions that her conduct was not serious enough to justify summary dismissal. I disagree with this. 39. This was most definitely conduct serious enough to justify summary dismissal. The Applicant had engaged in a flagrant breach of a Public Health Order. The Applicant acknowledged to me that the march she attended was unauthorised although I understand at the time of attendance she was not sure about this. 40. Further, and perhaps more seriously, she had also posted offensive material on social media that she knew to be untruthful. Both of those posts, placed on social media by the Applicant, were completely at odds with her obligations as a Department employee. 41. I did consider lesser punishment be it a warning, a demotion, a fine or termination with an option to resign. I decided however that the Applicant's conduct was so serious a breach of her obligations to the Department that she should not be given an option to resign. My view was that the Applicant, by her actions and her lack of insight into why her actions were so reprehensible, could not be trusted to represent the Department with integrity where she had responsibility to act on behalf of the Minster who stands in loco parentis for vulnerable children and young persons in the State. 42. I was also concerned that if she was given the opportunity to resign she could get a job with an organisation or Non-Government Organisation that the Department may fund that cares for children and young persons, but we might then not have the ability to explain the circumstances to that prospective employer how her employment came to an end with the Department. 43. … I totally reject the suggestion that this was an attempt to intimidate the Applicant. There are lots of Government policies that people disagree with but they implement those policies. Our staff are free to disagree with government policy and can belong to political parties or movements but they have to abide by and implement those policies, orders and laws even if they don't agree with them. Furthermore, employees are not allowed to, even in a private capacity, disseminate hateful and recklessly inaccurate information that is completely at odds to their obligations under the Code of Ethical Conduct. 44. I further note that, at the time of the Applicant's dismissal, I was aware of her work performance. I don't know that I could agree that her work performance was 'exemplary'. I was aware that she had some initial difficulties with a supervisor but that she had then been satisfactory. Her work performance was not a factor in the decision to dismiss her from employment. 45. … I believe I took into account all relevant matters including the clients we serve and that the integrity of our staff is a significant consideration. 46. I further note that I don't think the Applicant has ever accepted that what she did was wrong. Her lack of understanding of the gravity of her conduct was both telling and disappointing.
7. The Department also relied upon written and oral submissions. Counsel for the Department maintained that the applicant's misconduct rendered the termination of her employment neither harsh, unreasonable nor unjust. It was submitted that there was a valid reason for her dismissal being her attendance at the protest rally in breach of the Public Health Order and her social media postings which were admitted by her. According to the Department's submission, the applicant was afforded procedural fairness. It follows that the Application should be dismissed.

Determination

1. As I stated in my ex tempore Statement and Orders on 10 February 2022, I had determined that the dismissal of the applicant was neither unjust nor unreasonable. I made this determination on the basis of the applicant's attendance at the protest rally on 24 July 2021 in breach of the Public Health Order and the two Facebook posts referred to at [10] above.
2. Contrary to the submission put on behalf of the applicant, her attendance at the rally was a clear breach of the Public Health Order banning participation in an outdoor public gathering in Greater Sydney of more than two persons (see [38] above). Staff at the Lakemba Community Service Centre had, on the day before the rally, 23 July 2021, been requested by their manager to continue to follow public health orders and were directed to the Department's website where they could obtain some "more info on the orders" (see [39]). The Code, at Clause 8.10, makes it clear that employees are required, even when off duty, to act in accordance with the law (see [40]).
3. It was put by counsel for the applicant to Mr Vevers in cross-examination that the applicant's attendance at the rally on 24 July 2021 was not a breach of the Public Health Order. It was further put that, for an employee to be dismissed for serious misconduct, there had to have been a conviction or a finding of guilt. Reliance was placed on s 69 of the GSE Act which is in the following terms: 69 Misconduct - Public Service and other prescribed government sector employees (1) In this section - government sector agency means - (a) a Public Service agency, and (a1) that part of the NSW Police Force comprising administrative employees under the Police Act 1990, and (b) any other government sector agency prescribed by the regulations for the purposes of this section. misconduct extends to the following - (a) a contravention of this Act or an instrument made under this Act, (b) taking any detrimental action (within the meaning of the Public Interest Disclosures Act 1994) against a person that is substantially in reprisal for the person making a public interest disclosure within the meaning of that Act, (c) taking any action against another employee of a government sector agency that is substantially in reprisal for a disclosure made by that employee of the alleged misconduct of the employee taking that action, (d) a conviction or finding of guilt for a serious offence. The subject matter of any misconduct by an employee may relate to an incident or conduct that happened while the employee was not on duty or before his or her employment. serious offence means an offence punishable by imprisonment for life or for 12 months or more (including an offence committed outside New South Wales that would be an offence so punishable if committed in New South Wales). (2) The person who exercises employer functions in relation to an employee of a government sector agency is responsible for dealing with any misconduct by that employee in accordance with this section. (3) The government sector employment rules may deal with the following - (a) misconduct by employees of government sector agencies, (b) the procedural requirements for dealing with allegations of misconduct by employees of government sector agencies (consistently with procedural fairness). (4) If, in accordance with those rules, there is a finding of misconduct by an employee of a government sector agency, the person who exercises employer functions in relation to the employee may take any of the following actions - (a) terminate the employment of the employee (without giving the employee an opportunity to resign), (b) terminate the employment of the employee (after giving the employee an opportunity to resign), (c) impose a fine on the employee (which may be deducted from the remuneration payable to the employee), (d) reduce the remuneration payable to the employee, (e) reduce the classification or grade of the employee, (f) assign the employee to a different role, (g) caution or reprimand the employee. (5) Proceedings and actions under this section may be taken or continued despite the employee resigning or otherwise ceasing to be an employee of the agency concerned. Any such action may be expressed to be a termination of employment even if the person has ceased to be an employee. (6) This section does not apply to that part of the NSW Police Force comprising police officers or to any employees of a government sector agency excluded from this section by the regulations.
4. During the cross-examination of Mr Vevers, the following exchanges occurred: Q. Mr Vevers, I'm just going to ask you a few questions now and, just to clarify, you're a deputy secretary? Regardless of what department you're in, you're classified as the deputy secretary, that's correct? A. Yes, that's correct. Q. And your background and qualifications is as a social worker? A. I started as a social worker and then I have a qualification in management. Q. And it'd be fair to say, Mr Vevers, you're not a police officer, are you? A. No. Q. And it's fair to say that you have no legal training? A. No. Sorry, it is fair to say that. Q. And if I can ..(fault in audio visual link).. referring to the document, you do recall that one of the breaches that the respondent asserts to is a breach of the public health order, is that correct? A. Yes. Q. And if I was to suggest that it wasn't a breach of the public health order, would that change the department's view of the conduct? A. In part but the breach of the public health order was only part of my considerations and probably the lesser part. … Q. …If the conduct was not a breach of the public health orders, would it have been considered as part of the applicant's termination? A. The termination arose from public health - from a breach of the public health orders and the social media posts. In my mind, the latter carried more weight than the former. Q. Certainly. What I'm asking you is that if the former was no longer a breach, would it have still formed part of your consideration for termination? A. Well, I don't think it could have because if it wasn't a breach there wouldn't have been - that bit of it wouldn't have broken the code of conduct. If it was lawful - if I can be clear, if it was lawful to attend the rally, then that wouldn't have constituted a breach of the code of conduct. Q. Certainly, and is it correct to say that in your understanding the applicant hasn't been charged or convicted with any offence in relation to that rally? A. As far as I understand. Q. And in saying that, would it be fair to say that the determination of whether or not it was lawful or unlawful has come from the respondent and not from a charge, a police officer or an authorised health officer? A. So it's come from advice or it's come to me on advice from within the Department of Communities and Justice. Q. But that person is not a judge, a police officer or an authorised health officer, are they? A. No. Q. So it's correct to say, isn't it, that the department made their own determination about whether or not the applicant had breached the public health orders? A. Yes, although in my conversation with - may I call her Vanessa? In my conversation with Vanessa, she didn't disagree with that. … Q. The decision to determine that there was a breach and that rally was unlawful is a decision that's made by the department? A. It's - yes, I think that would be true, that the department investigated whether there was a public health order in place, determined that there was, and Vanessa herself said that she attended the rally. Q. Yes, and only on that basis have you made the decision that she's breached the public health order? A. Yes. Q. And if I was to suggest to you, sir, that she wasn't in breach of the public health order, would you agree or disagree with that? A. That wouldn't make sense to me because we checked that there was a public health order in existence and she's made no secret to me that she, in a premeditated way, attended that rally. Q. But you would agree, wouldn't you, that you have no legal training and your training is as a social worker and in management, correct? A. Yes, that is correct. Q. And even if you received advice within the department, you haven't received advice from a police officer, an authorised health officer or a judge, have you? A. No. … Q. And with this question, you don't necessarily have to tell me if there were - what the advice was and I don't wish to touch on any sort of privilege but you didn't receive any legal advice, did you? A. I personally received advice from our human resources department. I'm not aware of what legal advice they took. Q. And, sir, if I was to suggest to you that similar rallies have gone to the Supreme Court and been deemed lawful, would that surprise you? JOSEPH: I'm sorry, I'm going to object. I'm going to object, Commissioner. COMMISSIONER: Yes. JOSEPH: It's misleading. It's irrelevant. In light of the evidence that's already been given today, I'm not entirely sure, particularly given we're short of time, how far any of these questions can assist you or the answers-- COMMISSIONER: Where is this going, Mr Polese? What are you saying, that this was not an unlawful rally? POLESE: Yes, that's correct. There's been no determination at all, Commissioner. COMMISSIONER: Whether there's been a determination or not, that's not the test. You're-- POLESE: Under the Public Health Act and the orders, that's definitely the test, but I'll move on. COMMISSIONER: I just want to know where you're going with this because it's troubling me. Mr Joseph took Ms Lichi to cl 23 of the public health order which is fairly clear. "The minister directs that a person must not participate in an outdoor public gathering in greater Sydney of more than two persons." Now, are you going to say that this was not a gathering caught by that clause? POLESE: Yes, certainly, and there's been no determination at all from anyone to say that she's breached any of the public health orders. COMMISSIONER: Whether there's been a determination or not, she participated in an outdoor public gathering of more than two persons. That's conceded. So are you going to say because some judge somewhere hasn't said that was an unlawful gathering, therefore there's no breach? POLESE: Well, Commissioner, respectfully, to be serious misconduct there has to be a conviction or a finding of guilt. COMMISSIONER: Where did you get that from? JOSEPH: No, that's not - sorry, that's just not correct, Commissioner. COMMISSIONER: Mr Joseph, I don't think I need your assistance right now. JOSEPH: Sorry. POLESE: That's pursuant to s 69 of the Government Sector Employment Act. COMMISSIONER: I'm afraid that doesn't define the limits of what can be regarded as misconduct, Mr Polese.
5. I note that there was nothing put on behalf of the applicant that would support a finding that those who participated in the protest rally on 24 July 2021, including the applicant, were not acting in breach of the Public Health Order which banned participation in an outdoor public gathering in Greater Sydney of more than two persons (see [38]).
6. There is provision in Clause 23 of the Public Health Order for a gathering to be "an exempted gathering" (Clause 23(3)(a)). A list of the types of gathering which fell within the definition of "exempted gathering" in Clause 3(1) is set out in Schedule 2 to the Public Health Order. It was not put on behalf of the applicant that the protest rally which she attended on 24 July 2021 was a gathering of the sort listed in Schedule 2. Further to this, nothing was put before the Commission to support a submission that the protest rally was, in some other way, not caught by Clause 23 and, as a consequence, was not unlawful.
7. The proposition that determination as to whether the applicant had breached the Public Health Order can only be made by "a police officer, an authorised health officer or a judge" for the purpose of supporting a finding of misconduct is plainly wrong. The Department, as do employers generally, regularly makes findings of misconduct by employees based on unlawful activity without the necessity for such findings to be confirmed by a police officer, an authorised health officer, a judge or any other external agency. The further proposition that, for there "to be serious misconduct there has to be a conviction or a finding of guilt", is also misconceived. Section 69 of the GSE Act does not support such a proposition. Whilst s 69(1)(d) "extends" the concept of misconduct to "a conviction or finding of guilt for a serious offence", the section does not prohibit a finding of misconduct where there has been no such conviction or finding of guilt for a serious offence or, indeed, a finding with respect to any of the other matters listed in s 69(1) of the GSE Act.
8. Government sector agencies, such as the Department, regularly make findings of misconduct by employees in accordance with the procedures set out in Part 8 Misconduct - procedural requirements of the Government Sector Employment (General) Rules 2014, and proceed to implement disciplinary action pursuant to s 69(4) of the GSE Act, in circumstances where, for example, an employee has engaged in unlawful conduct, such as the assault of another employee, but where no criminal charge has been laid, let alone any conviction or finding of guilt made.
9. Whilst the applicant claimed that she was, to some extent, unsure as to the legality of her participation in the protest rally on 24 July 2021, her responses to questions in the following passage from the transcript of her cross-examination disclose that she was sufficiently aware that such participation would be unlawful, but she chose to participate anyway: Q. What I want to put to you was that as an employee of the department, you were obliged to uphold the law? A. Yes. Q. And that would include adhering to public health orders? A. Yes. Q. And prior to - and just to clarify your evidence from before, you were aware of the existence of public health orders prior to attending or the existence of a public health order restricting outdoor gatherings prior to attending on 24 July? A. Yes. Q. And were you aware - you knew before you attended the gathering that there would be quite a few people attending? A. I didn't-- Q. Or you expected there would be quite a few people attending? A. I didn't know how many people were attending. Q. Did you think that there would be nobody attending? A. I thought it could go either way. Q. So it was possible that there might be a gathering of hundreds or perhaps more people? A. I honestly didn't know how many people were going. I don't know if there was going to be ten people, I don't know if there was going to be 50,000 people. I didn't know. Q. And did it cross your-- A. I'd never been to a rally. Q. Yes, and did it cross your mind to consider whether or not attendance at that rally would be in breach of the existing public health order? A. At the time I thought that the rights to participate in a rally would outweigh that. Q. Sorry, so are you saying that you formed an opinion yourself that you had some right to attend the rally that would outweigh or overrule any require to comply with a public health order? Is that what you're saying? A. … I thought that the rights to attend a rally would outweigh the public health orders at the time. Q. On what basis did you form that view? A. Well, I had no basis. This is - I've never been to a rally. I don't know what the process is to have a rally approved. All that was very new to me at the time and my understanding was that it would outweigh that. … Q. On what basis did you form that view? … Q. Did you read something somewhere? A. I understand that I don't understand the law very well when it comes to constitution laws but at that time I thought that that would outweigh the directions. Q. Is it possible that you read this online from the same sources that we were - where you read about the military in the United States possibly, you know, taking children from their families and homes? Was it that sort of - did you read something in one of those sites? A. There was a lot of information. Whether that was in social media or whether that was in an article, there was a lot of information about that you have a right to protest and that, yeah, that's where I got it from. Q. And you took no steps - sorry, you were aware that there was a public health order in place at the time? A. Yes. Q. And you were aware that there were restrictions in place that had been placed by the New South Wales government in relation to outdoor gatherings? A. Yeah. Q. And you chose to ignore those requirements? … Q. You chose to ignore - you knew that there were health orders in place. You knew that there were health orders that restricted outdoor gatherings and you chose to ignore those orders? A. I didn't - I don't think I purposely tried to ignore them. I thought that I had a right to protest, even with when there is a directive. So I didn't ignore it. I'm not sure if I'm explaining myself properly. Q. Well, you took no steps, put another way, you took no steps to establish that this opinion that you had had a basis in fact or law, about a right to attend? A. I was trying to read up on different laws. They don't always make sense but I was trying to read about the constitution and what this means in Australia and about our, you know, right to protest. So my understanding was that at the time I thought that that would override a directive. Q. So with respect Ms Lichi, you agree that you'd received emails through work? A. Mm hm. Q. Referring to public health orders? A. Yes. Q. And we've got on here from - that's back at page 79, from Mr Pinchbeck, the Acting Manager, Client Services at Lakemba? A. Mm hm. Q. Sent on 23 July, "Please continue to follow the public health orders"? A. Yeah. Q. There was no doubt what your employer required you to do, is there? A. Sorry, what was the question? Q. There is no doubt that your employer required you to follow the public health orders? A. Correct. Q. And you chose not to? A. (No verbal reply) Q. You chose not to? A. I chose to participate in the rally to uphold my rights. Q. Well - and put another way, you chose not to - you chose to - you chose not to follow the public health order, as you'd been requested to do by your employer? A. Sure, yes.
10. I find that, by participating in the protest rally on 24 July 2021, the applicant was acting contrary to Clause 23 of the Public Health Order and also in breach of Clause 8.10 of the Code (see [38]-[40]). I agree with Mr Vevers' finding that this conduct by the applicant constituted misconduct such as to warrant disciplinary action being taken against the applicant pursuant to s 69(4) of the GSE Act. Whether this act of misconduct of itself was sufficiently serious to warrant the termination of the applicant's employment is a moot point. As Mr Vevers made clear in his evidence, he regarded the postings on the applicant's Facebook page, which are referred to at [10] above, as constituting the more serious misconduct by the applicant (see paragraph 40 of Mr Vevers' witness statement at [42]). I agree with Mr Vevers in this respect.
11. The reposting of an image of the then Premier's face, defaced to make her resemble Adolf Hitler, juxtaposed next to an actual image of the man who is the personification of pure evil, was an appalling act of disrespectfulness and unfairness to the then Premier, and a clear breach of Clause 7 of the Code (at [40]).
12. A submission was put on behalf of the applicant to the effect that the "government as a whole and NSW government officials", presumably including the Premier, "are not 'colleagues, clients, their families and members of the public' nor are they 'Inmates, offenders and detainees'. Thus clearly any alleged misconduct has not been against or affected any person within the clause specifically identifies. There has been no breach under this rule". I regard this submission as a mere quibble. The logical extension of this argument is that the Code only requires that employees treat the classes of persons identified in Clause 7 of the Code with respect and fairness, and everyone else, including the Premier, is fair game for disrespectful and unfair vilification by employees of the Department such as the applicant. Such a proposition is patently absurd and I soundly reject it.
13. The Facebook post which contained the words "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!" constitutes a further act of misconduct by the applicant (at [10]). The spreading of fear mongering rubbish about the prospect of children being removed from non-vaccinated parents was always likely to cause significant upset and resentment amongst other Child Protection Caseworkers given the highly sensitive nature of the work that they do with vulnerable children and families. In this respect, I agree with the sentiments expressed by Mr Veevers at paragraph 30 of his witness statement (at [42]).
14. To the applicant's credit, she did express what I regard to be genuine remorse for her misconduct with regard to her social media postings (at [31]-[34]). Nevertheless, it is my determination that, when considered together with the applicant's participation in the protest rally on 24 July 2021 in breach of the Public Health Order which was in place at that time, the applicant's misconduct was serious enough and sufficiently connected to her employment with the Department such as to warrant her dismissal from that employment (see Hansen v Secretary of the Department of Transport - as head of the Transport Service and exercising the employer function of staff of Roads and Maritime Services [2016] NSWIRComm 1011 and the authorities cited at [28]-[72]).
15. The disciplinary process which led to the dismissal of the applicant was procedurally fair to her. She was given ample opportunity to respond to the allegations against her, which she did.
16. The applicant disclosed her personal and financial circumstances and the impact that the loss of her job would have on herself and her family (at [35]). I am satisfied that, in coming to his decision to dismiss the applicant, Mr Vevers took into account all of the mitigating factors put to the Department by the applicant and I reject the proposition that he did not, which proposition was repeatedly put to him in cross-examination.
17. Based on all of the material that was put before the Commission in this matter, I determined that the dismissal of the applicant was neither unreasonable nor unjust. This determination, however, leaves open the question as to whether the dismissal was, nevertheless, harsh.
18. In Byrne v Australian Airlines Ltd (1995) 185 CLR 410, the High Court stated (per McHugh and Gummow JJ at 465): It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may 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 in respect of which the employer acted.
19. The issue of harshness in the context of a dismissal from employment was considered by a Full Bench of the Commission (Walton J Vice-President; Haylen J; Bishop C) in Department of Health v Perihan Kaplan [2010] NSWIRComm 65. In that matter the Full Bench stated: 25 The appellant sought leave to appeal upon the basis of certain errors which were said to attend upon a finding by Ritchie C that the dismissal of the respondent was harsh. That finding was made pursuant to s 84(1) of the Act and involved mixed questions of fact and law: Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at [4] ('Burge') (also applying Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151 at [181 - 182] and Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 at [59]. 26 One ground relied upon for this challenge was predicated upon a legal proposition that a dismissal which was based upon conduct by an employee, which constituted a breach of a fundamental and essential term of the contract of employment, "would necessarily not be harsh". No authority was given in support of that proposition except for an authority which was said to demonstrate that, in the contemporary common law of employment, an implied term may be found in every employment contract that the employee owes the employer a duty not to act in a manner likely to destroy or seriously damage the relationship of trust and confidence between them: Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2007) 69 NSWLR 198. The appellant's contention would appear to be that a finding of harshness under s 84(1) could not be made in circumstances where an employee had been lawfully dismissed for breach of such a term. It was also suggested that that approach was mandated because the employee's conduct in that context would be a repudiation of the contract. 27 The difficulty with this approach, as opposed to one which would have the nature of an employee's misconduct weighed against mitigating factors to determine, inter alia, whether a dismissal was harsh, is that it stands in the face of the statutory scheme which requires the Commission to consider whether the dismissal was harsh, unreasonable or unjust. There is a long established authority in this Commission and its predecessors, extending at least from the decision of Sheldon J in Re Loty & Holloway v Australian Workers' Union [1971] AR (NSW) 95 at [99] ('Loty'), that the exercise of the Commission's powers in relation to unfair dismissals (now found in Part 6 of Ch 2 of the Act) requires a determination as to whether a dismissal was harsh, unreasonable or unjust, even though "it was perfectly legal" (Loty at 99). In Beahan v Bush Boake Allen Australia Pty Ltd (1999) 47 NSWLR 648 at [26], a Full Bench identified that "as Loty makes clear, the power of the Commission to order reinstatement or the other remedies in the case of an unfair dismissal is exercised regardless of the legal right of an employer to dismiss an employee". To similar effect, a Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [71] ('Little') stated: The mere conclusion that a dismissal has been effected in accordance with common law or statutory requirements, or has adequate "justification" in the sense of there being proper grounds given for dismissal, does not remove from account in such proceedings a consideration of the severity of punishment and mitigating circumstances where those matters properly arise for consideration upon the material before the Commission. No different approach is to be applied in review proceedings under the Police Service Act. 28 This conclusion must also follow from the very meaning of the concept of "harshness" within s 84(1). The words "harsh, unreasonable or unjust" in s 84(1) are "ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated": Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at [467] ("Byrne"), per McHugh and Gummow JJ, (applying Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439 at [28]). The appellant's acceptance that the expression 'harsh' would bear the meaning "disproportionate to the gravity of the misconduct" (see Byrne at [465]), necessarily brings with it the conclusion that a breach of an employment contract or even a repudiation of it will not be determinative of a finding under s 84(1) of the Act as to whether the dismissal was harsh. So, too, does an acceptance (see Byrne at 465) that the personal circumstances of a dismissed employee may be also brought into account. 29 We would add to the discussion of the meaning of the expression 'harsh' (for the purposes of s 84(1)), our agreement with the Full Bench in Little [at 70] that, in order to illuminate the meaning of the concept of "harshness" it is unnecessary to go beyond the statement of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at [233] where his Honour stated as follows: In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence.
20. Reinstatement or re-employment of the applicant to a position with the Department does not arise as an issue to be considered in this case. As stated previously, originally the applicant, in the Application as filed, was seeking re-employment to another position with the Department and monetary compensation (at [17]). However, since her dismissal the applicant has gained alternative employment commencing on 1 December 2021, albeit on a lower rate of pay than she received as an employee with the Department.
21. In the written submissions filed on her behalf, it was stated that the applicant was seeking monetary compensation in a total amount equivalent to 26 weeks pay (at [18]). However, in opening her case on 10 February 2022, counsel for the applicant put the following: In light of those submissions, the applicant respectfully submits that termination was harsh, unjust or unreasonable. The conduct was not serious misconduct and it did not warrant dismissal and, therefore, the applicant is entitled to compensation and the applicant also submits that, if the applicant is successful and the applicant would like an opportunity to resign, put a letter of resignation and the termination be set aside or withdrawn. If there's any questions from the Commission, those are my opening submissions.
22. Director General, New South Wales Department of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47 was a case in which the employer, the Director General, New South Wales Department of Health, challenged an order made by a Full Bench of the Commission to the effect that a dismissed employee, Carlos Casari, be re-employed but then immediately resign.
23. The Court of Appeal (Spigelman CJ; Tobias JA; Handley AJA) held as follows (per Spigelman CJ at [11]-[23]): 11 The order of the Full Bench which is challenged in this Court was: "(4) The appellant is re-employed in his former position effective from the date of this decision on the following terms and conditions: (i) the appellant will not return to work and he shall resign in writing effective from the day immediately following the date of this decision; (ii) for the period from 30 July 2007 to the day immediately following the date of this decision the respondent shall pay to the appellant within 14 days the wages he would have received if he had not been summarily dismissed, together with any benefits, such as annual leave, long service leave and superannuation, that would have accrued to the appellant from 30 July 2007 if he had not been summarily dismissed." … 16 The focus of the submissions is upon the order made by the Full Bench that Mr Casari is re-employed in his former position on the condition that he would not return to work, but resign immediately. The practical effect of this order was that Mr Casari would receive his full pay for the period from 30 July 2007 to 3 July 2009 being the day after the decision of the Full Bench. As a matter of substance this gave him compensation for a period of just under two years which, notably, is substantially more than an order for compensation that could have been made under s 89(5) of the Act. 17 The focus of the submissions on the part of the applicant in this Court is on the fundamental inconsistency between the power which the Full Bench purported to exercise and the condition which it imposed requiring immediate resignation by Mr Casari. This is a manifestation of the express finding of fact in [74] of the Full Bench judgment set out at [10] above, which, to repeat, was: "We consider that reinstatement for the purpose of future employment with the employer is impracticable." 18 This finding reflects the introductory words of s 89(2), to repeat: "If the Commission considers that it would be impracticable to reinstate the applicant …" 19 Section 89(2) authorises the Commission to make an order for re-employment. This is what the order set out at [11] above purports to do. However, s 89(2), to repeat, authorises the Commission to make an order of re-employment "in another position that the employer has available". The actual order made by the Commission was that "the appellant is re-employed in his former position …". Section 89(2) provides no statutory basis for an order of this character. This is an order of 'reinstatement' which requires the exercise of the power in s 89(1), a power which the Commission expressly abjured. 20 Furthermore, the Full Bench made no findings of the character required by s 89(2). It did not identify "another position" which the employer had "available" and about which the Commission had formed the opinion that it was "suitable". Indeed, the finding that Mr Casari could not be reinstated "for the purpose of future employment" is, in substance, a finding that no other "position" would be "suitable". The power to order re-employment cannot be exercised unless such findings are made. 21 Finally, the condition imposed by the Full Bench's order to the effect that "the appellant will not return to work and he shall resign" is also on its face inconsistent with the concept of an order to "re-employ the applicant" within the meaning of s 89(2). The idea of 're-employment' necessarily requires a return to work. There is no power to order 're-employment' which involves no return to work at all. (Cf Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 esp at [13]-[15], [33]-[34], [43]-[44], [65], [69].) 22 This is, in my opinion, both jurisdictional error and error of law on the face of the record (even if confined to the order itself) for each of three alternative reasons. First, the power which the Commission purported to exercise did not authorise an order that Mr Casari be re-employed "in his former position". Secondly, the Full Bench failed to make findings which were an essential precondition to the exercise of the statutory power. Thirdly, a condition requiring a person to resign and not return to work is outside the permissible sphere of any order capable of answering the description of an order "to re-employ". 23 Pursuant to s 89(8) of the Act, the Commission can impose "terms and conditions" on "an order under this section". The conditions able to be imposed pursuant to this power must be attached to something capable of constituting an "order" within s 89(1)-(5). There was no such order. Section 89(8) is not a power enabling the Commission to do whatever it thinks is fair and/or reasonable. The "conditions" identified as 4(i) and (ii) are not conditions within s 89(8).
24. This authority disposes of the proposition that, if I were minded to order that the applicant be reinstated or re-employed in another position with the Department, which I am not, I could do so on the condition that she then resign.
25. On the question as to whether the dismissal of the applicant was harsh, the authorities cited above direct the Commission to a consideration of mitigating factors such as the "consequences for the personal and economic situation of the employee" and past good conduct (Byrne at 464; Perihan Kaplan at [28]-[29]).
26. Nothing adverse about the applicant's past conduct was raised by the Department in the proceedings. Mr Vevers positively stated that the applicant's work performance was not a factor in the decision to dismiss her from employment (paragraph 44 at [42]). I infer from this that the applicant's past conduct and performance as an employee with the Department was good.
27. I have also taken into account the personal circumstances of the applicant during the period leading up to her dismissal.
28. In June 2020, the applicant gave birth to her daughter (at [23]). This was during the initial period of the COVID-19 pandemic and the restrictions that were imposed on personal freedoms at that time. Her partner's work was severely impacted and the family income significantly reduced (at [22]). The applicant stated that she developed post-natal depression and this was not disputed in the proceedings (at [30]). Her psychologist described the applicant as having been "influenced by longer term contributing factors including factors including perinatal mood disorder and significant stressors" (at [29]). The applicant's ability to provide care and assistance to her mother and stepfather had been severely affected (at [22]). The period leading up to 24 July 2021 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 (at [24]).
29. None of these matters excuses the misconduct of the applicant which led to her dismissal, 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.
30. At the time of, and immediately following, her dismissal, the applicant and her family were facing dire financial circumstances which would not generally have been the case in pre-pandemic times. For a period of approximately three months after her dismissal, the applicant was virtually without income (at [34]-[35]).
31. As previously stated, I have determined that the dismissal of the applicant was neither unreasonable nor unjust. However, in all the circumstances of this case, I determined that her dismissal was harsh.
32. For the reasons set out above, an order for reinstatement or re-employment of the applicant to a position with the Department is impracticable. I determined, in the exercise of my discretion pursuant to s 89(5) of the Act, to order payment to the applicant of an amount of compensation.
33. The maximum amount of compensation that may be ordered pursuant to s 89(5) is an amount equivalent to six months' pay. The applicant's relatively short period of employment with the Department would not support an order for payment to her of the maximum amount permissible, or any amount approaching that maximum. Taking into account all of the matters which support the finding that her dismissal was harsh, in particular the applicant's personal circumstances, I determined that a fair amount of compensation that the applicant should receive is 12 weeks' pay.
34. I confirm the order that I made in these proceedings on 10 February 2022 (at [20]). I reserve the question of costs but refer the parties to the remarks that I made on this issue when I made the order.
35. The file for this matter will remain open for a period of 14 days from the date of publication of these reasons for decision after which, if no application is made to the Commission on the matter of costs, the file will be closed administratively. John Murphy Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 March 2022