A Fair Work commissioner has said an NT man’s justification for defying the COVID-19 vaccination because it violated his inalienable human rights, his rights as a child of god, and his rights as a sovereign man of tribal heritage, could be right but decided the Commission lacked jurisdiction to determine their validity, and the validity of the vaccination mandate.

Commissioner Bernie Riordan presided over the application for an unfair dismissal remedy brought by Michael Anthony Mullins against the NT Commissioner for Public Employment, which was due to be heard on July 20. However, Mr Mullins and his support person refused to wear masks so it was adjourned, and Mr Riordan considered the matter from submissions.

The Commission paid to hire a room in the Oaks Darwin Elan Hotel in Darwin city to conduct the hearing because people are required to be vaccinated to enter the Commission building where parties would normally appear.

In his summary, Mr Riordan said Mr Mullins was sacked from his job as a school-based engagement officer on December 21, with the Commissioner for Public Employment stating he was unable to “perform the inherent requirements of his duties” because he refused to be vaccinated against COVID-19.

He said Mr Mullins had been sent numerous “global” emails from a variety of senior staff from the Department of Chief Minister and Cabinet, the Commissioner for Public Employment, and the Education Department about the requirement to be vaccinated, and the Education Department chief executive officer wrote personally to him on December 8, 10, and 16.

“In response, the applicant referred to his belief that the actions of the CHO and CEO were unlawful and immoral,” Mr Riordan wrote in his summary.

“At no stage did the applicant contemplate receiving the vaccination or identify a contraindication.

“The applicant also cited that he was dismissed illegally on the basis that he was on sick leave under the care of a psychologist when he was terminated on 21 December 2021. However, the applicant was not dismissed because he was on sick leave, but for being unable to perform the inherent requirements of his job.”

“In his submissions, the applicant continued with the theme that CHO Direction No. 55 was unlawful, contrary to his inalienable human rights, his rights as a child of god and as a sovereign man of tribal heritage.

“The applicant referenced a number of passages from the New Testament to justify his position: ‘…Romans 13:1…There is no authority except from God, and those that exist have been instituted by God, Proverbs 29:2, When the righteous increase, the people rejoice, but when the wicked rule, the people groan, 9and) Romans 13:5 … rulers are servants of God’.

“The applicant may be right in every other facet of his submission, but the simple fact is that all of these issues, apart from section 352 [that he could not be sacked while on sick leave], are outside the jurisdiction of the Commission.”

Mr Riordan cited Kassam v Hazzard, where the NSW Supreme Court chief justice said the function of determining the validity of the NSW Public Health Act 2010 was for the court to determine, and the function of determining whether it should have been made was for the political process, and that the Fair Work Commission had neither function.

He said Section 587(1)(a) of the Fair Work Act empowered the Commission to dismiss an application where it has not been made in accordance with the act, and similarly empowered dismissal where an application has no reasonable prospects of success.

“The legality of CHO Direction No. 55, the applicant’s inalienable human rights, his rights as a child of God or his rights as a sovereign man of tribal heritage are all matters which fall outside the jurisdiction of the Commission and are matters for the courts,” Mr Riordan wrote.

“As a result, the application has no reasonable prospect of success”