Western Australian Industrial Relations Commission

Forced sick leave not what the doctor ordered

The Full Bench unanimously upheld an appeal by the Civil Service Association of Western Australia Incorporated against a decision of the Public Service Arbitrator that an employer was entitled to direct that an employee to take unpaid sick leave. 

The employee had a history of complex illness and had used up all of her sick leave.  On 22 December 2018, her employer, the Commissioner of Police, directed her to take sick leave and remain away from work.  As she had no sick leave left, this leave was to be unpaid.  The Arbitrator held that Administrative Instruction 601 (AI 601) and the relevant clause of the Public Service and Government Officers CSA General Agreement 2017 (PSGOGA) should be read together, and give rise to the employer's right to direct an employee to remain away from work and that such period be regarded as sick leave where an employee is in such a state of ill health as to constitute a danger to themselves, other employees or the public. 

AI 601 was made under the Public Service Act 1978 (repealed).  The Hon. J H Smith, Acting President, delivering her last decision as a member of the Commission, noted that AI 601 is a transitional instrument and should be read 'with such modifications as are necessary'.  That means, it must be read as if it were made under the current Public Sector Management Act 1994 (PSM Act).  Among other provisions, AI 601 is modified by s 64 of the PSM Act, which requires that public service officers be appointed in accordance with binding awards and industrial agreements.  There are no award provisions related to sick leave binding on the employee's employment because they have been displaced by PSGOGA during the life of that agreement.  That means, the instruments affecting the employee's employment related to sick leave are AI 601 and PSGOGA.  The former is not modified by the latter as modifications are only made to make AI 601 fit in the 1994 PSM Act scheme.  There is no provision in PSGOGA allowing the employer to direct an employee to take sick leave.  Clause 6 of AI 601 allows an employer to direct an employee to take sick leave only when the employee's state of health is a danger to colleagues or members of the public (not themselves).  When the employer directed the employee to take unpaid sick leave on 22 December 2017, he had no evidence that the employee would be a danger to colleagues or members of the public.  The employer's power to direct the employee to take sick leave was therefore not enlivened. 

The Full Bench also rejected the employer's argument that its Ill Health Retirement Policy allowed it to withhold payment because a formal dispute about her medical fitness was not raised.  Acting President Smith, with whom Chief Commissioner Scott and Commissioner Matthews agreed, held that at the material time the employee had raised a dispute with the employer's assertion that she should be medically retired by providing medical reports to substantiate her continued employment from two medical practitioners, in rebuttal of the employer's medical report. 

Her Honour also noted that the principle of 'no work, no pay' does not necessarily apply to public servants because there is a distinction between payment as a consequence of holding office and payment for work performed. 

The decision can be read here.

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