The NT Public Sector Appeals Board has found a fire fighter who was sacked because he refused COVID-19 vaccinations should be reinstated writes Laine Jolly, and she says it should be applied to all Northern Territory public servants sacked over vaccinations.

Dear Editor,

Some weeks ago, I wrote an open letter to the Northern Territory Fire and Rescue Service chief fire officer Mark Spain, regarding his treatment of several of his employees who were dismissed as a result of the NT Government COVID-19 vaccine mandate, in late 2021.

One of these employees was my husband, Matt. New information has come to light which adds further absurdity to an already inappropriate decision to terminate these fire fighters, not to mention other terminated Northern Territory public service employees.

In late 2021, Matt and I navigated the challenging process of responding to Mr Spain’s notification that Matt was facing dismissal due to an “inability to perform duties”. This is despite being on pre-approved leave and not in contravention of any public health orders.

Matt’s letter of termination arrived in the days before Christmas. Although Matt had tried to engage in good-faith dialogue with Mr Spain regarding this issue, his attempts were met with hostility. As a result of the treatment NTFRS inflicted on Matt, and his ultimate termination, we relied on early advice from union staff and decided to file an unfair dismissal claim with the Fair Work Commission.

After several months, Matt received the finding of his unfair dismissal case. Despite failing to clarify whether Mr Spain possessed the claimed power to recall staff from any type of leave, at any time, for any ‘emergency’ he deems worthy, Commissioner Bernie Riordan found that Matt’s dismissal, and several other NTFRS FWC cases, was not unfair, and upheld the decision of the NTFRS.

This was an issue which was in question for seven NTFRS fire fighter dismissals and was the sole argument relied upon by the NTFRS to justify their conduct.

Commissioner Riordan handed down these findings in Matt’s case on July 20, despite the cessation of the NT government’s COVID-19 vaccine mandate on June 15.

Out of seven dismissed NTFRS fire fighting staff, one opted for a hearing by the NT Public Sector Appeals Board, and received a finding which will see them reinstated to their previous position and back-paid for lost earnings.

While the Board also failed to clarify whether or not Mr Spain possessed the power to recall staff from leave, stating that it was “outside the Board’s jurisdiction”, they too concluded that the original decision made by Mr Spain and the NTFRS to dismiss this fire fighter was “reasonable and appropriate and the only action available capable of remedying the inability grounds”.

However, the Board acknowledged the revocation of the COVID-19 vaccine mandate, and the consequent resolution of any inability grounds which previously applied to the appellant.

The Board claimed that after consultation with both the terminated employee and the NTFRS, agreement was reached such that “despite finding the respondent’s initial decision to be appropriate and reasonable at the time, the Board cannot affirm the respondent’s decision to terminate the appellant’s employment under section 59E(2)(a) of the Public Sector Employment and Management Act.

As a result it said it “sets aside the decision of the respondent to terminate the appellant’s employment on December 13, 2021 and returns the matter to the CFO for reconsideration pursuant to section 59E(2)(d)”.

Among their instructions to the CFO, the Board made the following directives:

That the appellant be reinstated to their previous position, effective from their termination date of December 13, 2021.

That the appellant be considered to be on leave without pay from their termination date to the date the mandate was rescinded June 15.

That while the period between these two dates would not count as service, nor would it break the appellant’s continuity of service.

That the appellant receive back-pay between June 15, and the date of the Board’s finding on September 27, based on their role’s regular hours.

I want to be very clear here, Matt and I – and undoubtedly other current and former members of the NTFRS – are extremely happy for this individual and applaud the fact that some semblance of common sense seems to be returning to the NT public sector in the form of this decision.

However, the inconsistency between the findings in this staff member’s case and the other six terminated fire fighters, who were all on some type of leave at the time of dismissal and whose circumstances of “inability to perform duties” are now presumably resolved, is utterly nonsensical and completely unacceptable.

Why Commissioner Riordan of the FWC did not exercise the same reconsideration after the revocation of the mandate is a mystery and has led to a grossly unfair situation for the other six terminated employees, one which simply must be re-examined.

Interestingly, the most recent of Commissioner Riordan’s NTFRS FWC hearings in October, 2022, resulted in a successful finding of unfair dismissal for the appellant.

Within this finding, the Commissioner also ordered that this employee be reinstated, although without back-pay.

When asked about her position, NT Commissioner for Public Employment, Vicki Telfer, had this to say: “From 11.59pm on 15 June 2022 the direction requiring mandatory vaccination, including CHO Direction 55/2021 and subsequent Directions, ceased to have effect.

“Following the 15 June 2022 decision, I advised agency CEOs that employees who separated from NTPS as a result of their un-vaccinated status were welcome to re-apply for vacancies within the NTPS. It is NOT my position that employees should be automatically reinstated”.

Frankly, it is offensive to expect highly experienced staff members who were inappropriately terminated to reapply for existing vacancies. It is also an incredible waste of taxpayer funds to advertise, recruit and train new staff, rather than reinstate those who already possess the necessary knowledge, skills, and many years of experience.

I am not alone in my desire to see staff terminated as a result of the now rescinded COVID-19 vaccine mandate, be reinstated.

There is currently a petition circulating within the ranks of current NTFRS employees, which calls for the prompt reinstatement of all mandate-related terminated staff.

The petition states: “We don’t support mass termination under temporary health laws”.

In relation to the view that terminated staff can simply reapply for existing vacancies, the petition asks, “….why aren’t experienced fully qualified members being asked to return? One member has three decades of service….”.

This is one public service department. I imagine the collective experience of all terminated public service workers stretches into the hundreds of years, if not thousands.

To deny them reinstatement not only hurts these individual staff members and their families, it also risks harm to the broader NT community who rely on public service services.

Whatever outcomes may result from the emergence of these latest findings, members of the public service and the general public should be under no illusion of just how farcical the NT government’s position has become.

While there was significant evidence of this at the time of these dismissals, it is positively irrefutable now: COVID-19 vaccination does not stop infection or transmission of the Sars-CoV2 virus, and there is absolutely no rational or scientific argument supporting COVID-19 vaccine mandates, which the NT government and associated departments presumably now accept given the mandate’s revocation.

If the Public Sector Appeals Board finding detailed here applies to one terminated fire fighter, it applies to all terminated Northern Territory public service workers. These employees should be immediately reinstated, and compensated for lost earnings; anything less is unacceptable.

Yours sincerely,

Laine Jolly, Atherton Tablelands

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