On March 11^th 2022, the Department of Communities and Justice was ordered by Commissioner John Murphy in NSW Industrial Commission to compensate Vanessa Lichi, the applicant, for 12 weeks’ pay for a dismissal that was too harsh considering her personal circumstances.

The Department terminated the applicant on September 6^th 2021, based on the facts that by attending the “World Freedom Rally”, she had breached ‘stay at home orders’ that were in place in NSW at the time and that her Facebook posts were derogatory towards NSW Government officials. The applicant was said to have breached the Department’s Code of Ethical Conduct and failed to uphold Government Sector Core Values and principles written in Section 7 of the Government Sector Employment Act 2013.

Lichi was represented by Banga Legal as her counsel. Samir Banga and his law firm have been successful in many cases challenging vaccination policies and mandates over different jurisdictions around Australia.

The Applicant had a young daughter and partner who were dependent on her, as her partners work hours had been significantly affected by the pandemic, and a mother and step-father for whom she also provided financial support.

When questioned about her purposely rebelling the public health orders, the Applicant provided that:

“I thought that I had a right to protest, even with when there is a directive… 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 [the implied constitutional right to Political Communication, to peacefully protest and assemble] would override the directive.”

She further stated that she did not attend the rally to represent the department but rather to demonstrate her concerns in relation to the efficacy of vaccines and the impact that the restrictions were going to have for the younger generation and her family circumstances. The Counsel for the Applicant noted that this was especially aggravated by the experience that the she had had with a general practitioner involving her baby.

“In June 2021… the doctor swabbed her daughter for COVID-19 without first obtaining the consent of the applicant. She considered, but ultimately did not proceed with, a formal complaint against the doctor. However, the applicant did raise this issue with her Clinical Psychologist. She also raised her increasing levels of anxiety and fear about what was happening around the world and in Australia regarding the idea of forced COVID-19 vaccinations.”

Lichi’s psychologist certified that the applicant had been “influenced by long term contributing factors including perinatal mood disorder and significant disorders” at the time when she attended the rally and shared the controversial Facebook posts.

During the cross examination of the Respondent’s employee, Lichi’s Counsel argued:

“The determination of whether or not [the rally] was lawful or unlawful had come from the respondent and not from a charge, a police officer or an authorised health officer.”

The decision that the rally attended by the Applicant was unlawful was made by the Department of Communities and Justice and not by an authorised body. As a result, it was discovered that the department made their own decision about whether or not the Applicant had breached public health order.

The Applicant’s representative found that:

“There had been no determination at all from anyone to say that [the Applicant had] breached any of the public health orders… that’s pursuant to s 69 of the Government Sector Employment Act [that] a police officer, an authorised health officer or a judge had determined whether or not a public health order was breached by the Applicant.”

Commissioner Murphy concluded:

“On that basis, it is my determination that the applicant’s dismissal was neither unjust nor unreasonable. However, given the applicant’s personal circumstances, I have formed the view that her dismissal was, nevertheless, harsh.”

The applicants personal and economic situation, past good conduct and remorse were taken into consideration when the Commissioner decided that the respondent would be obliged to compensate the applicant for 12 weeks’ pay.

Upon the victory of the client, Mr Banga stated his objective when representing cases of such nature:

“We are hoping this sets a standard for other matters of a similar nature. These cases are about choice, personal situations and not merely anti-vax cases as promoted by some media outlets. This was a deserved win for our client, who has suffered a lot of trauma and stress at the hands of the Department“.

Samir Banga @samir.banga

Banga Legal @bangalegal

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