The Case

Lichi v Industrial Relations Secretary on behalf of Department of Communities and Justice (2022)

In July 2021, Ms Lichi, who was employed by the Department of Communities and Justice (DCJ), attended the World Freedom Rally as a protest against compulsory COVID-19 vaccinations and lockdown restrictions.

DCJ alleged Ms Lichi engaged in misconduct:

• by attending the rally, because this breached public health orders;
• for being ‘highly derogatory’ of her employer on social media;
• by failing to uphold its core values and principles of integrity, trust, service and accountability; and
• by breaching its Code of Conduct.

After providing Ms Lichi with an opportunity to respond, DCJ terminated Ms Lichi’s employment. Ms Lichi commenced unfair dismissal proceedings in the NSW Industrial Relations Commission (NSWIRC).

The Verdict

The NSWIRC found the dismissal was harsh, despite not being unjust or unreasonable, for the following reasons:

• Ms Lichi had given birth during the COVID-19 pandemic, and been exposed to severe restrictions caused by the pandemic;
• Ms Lichi was suffering post-natal depression at the time of the rally;
• Ms Lichi’s household income was significantly reduced due to the COVID-19 restrictions, placing financial pressures on the family;
• at the time of the rally, there had been conflicting information about the efficacy of the vaccines and the legality of the public health orders; and
• Ms Lichi was without income for 3 months following her dismissal.

The NSWIRC ordered DCJ to pay Ms Lichi 12 weeks’ pay as compensation.

The Lessons

This case demonstrates the importance of:

• having a valid reason for a dismissal;
• following a procedurally fair process; and
• considering whether the decision to terminate employment is harsh given the personal circumstances of the employee and facts of the case.

As this case demonstrates, an employment termination can still be considered unfair despite not being unjust or unreasonable.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.