APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 26 APRIL 2022

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00291

DELIVERED : THURSDAY, 7 July 2022

FILE NO. : PSAB 33 OF 2022

Appellant

AND

North Metropolitan Health Services (WA Health)

Respondent

CatchWords : Industrial Law (WA) – Public Service Appeal Board – Appeal lodged out of time – Whether to grant an extension of time within which to appeal – Out of time application refused

Legislation : Industrial Relations Commission Regulations 2005 (WA)

Industrial Relations Act 1979 (WA) 

Result : Application and Appeal dismissed

Representation:

Appellant : Barton Consultancy and Dispute Resolution Pty Ltd

Respondent : State Solicitor’s Office

Case(s) referred to in reasons:

Chan v The Nurses Board of Western Australia [2007] WASCA 123

City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120

Cruz v Australia Post Corporation [2008] AIRCFB 452

D & M Amonini Pty Ltd v Neirin Pty Ltd [2016] WASC 157

Davison v Aboriginal & Islander Child Care Agency (1998) 105 IR 1

Dehnel v Dr Neale Fong, Director General, Department of Health [2006] WAIRC 05677; (2006) 86 WAIG 3310

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196

Howle v Best [2012] WASC 62

JR Marine Systems Pte Ltd v Wavemaster International Pty Ltd (in liq) [2011] WASCA

Kelly v Director General, Department of Justice [2003] WAIRC 08164; (2003) 83 WAIG 1283

Nicholas v Department of Education and Training [2008] WAIRC 01645; (2008) 89 WAIG 817

Simonsen v Legge [2010] WASCA 238

Reasons for Decision

1         These are the unanimous reasons of the Public Service Appeal Board (Board).

2         Ms Naomi Mackay was employed by the North Metropolitan Health Service (NMHS) as a Level 2 Clerical Officer until 26 April 2022, when her employment was terminated because she failed to provide her employer with evidence that she had been vaccinated against COVID‑19. That date, 26 April 2022, was the last day of a five week notice period given to her by NMHS of the termination of her employment. The decision to terminate the employment was communicated to Ms Mackay on 22 March 2022.

3         On 26 April 2022, an association or company which trades under the name ‘Independent Workers’ Union of Australia’ (IWUA) purported to file an appeal to the Public Service Appeal Board (Board) against the termination decision on Ms Mackay’s behalf. The appeal is out of time. The time within which an appeal to the Board can be lodged under reg 107(2) of the Industrial Relations Commission Regulations 2005 (WA) (IRC Regulations) is within 21 days after the date of the decision appealed against. The time, therefore, expired on 11 April 2022.

4         Ms Mackay has applied for an extension of the time within which she is permitted to appeal.

5         The Board ordered that the application be determined on the papers. Both parties filed written submissions, which the Board has considered.

6         The Board has the power pursuant to s 27(1)(n) of the Industrial Relations Act 1979 (WA) (IR Act) to extend the prescribed time in which to institute an appeal: see Dehnel v Dr Neale Fong, Director General, Department of Health [2006] WAIRC 05677; (2006) 86 WAIG 3310 at [71]‑[73].

7         The principles that apply in relation to the exercise of the discretion to extend time within which to appeal under s 80I of the IR Act were considered by the Board in Nicholas v Department of Education and Training [2008] WAIRC 01645; (2008) 89 WAIG 817. In that case, the Board applied the principles applied by the Full Court of the Supreme Court of Western Australia and the Court of Appeal, respectively, in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 and Chan v The Nurses Board of Western Australia [2007] WASCA 123. See also Simonsen v Legge [2010] WASCA 238 at [8], JR Marine Systems Pte Ltd v Wavemaster International Pty Ltd (in liq) [2011] WASCA 16 at [5] and Howle v Best [2012] WASC 62 at [31].

8         These authorities emphasise four (main, but not necessarily exhaustive) factors in considering whether an appeal should be accepted out of time. They are:

(a) the length of the delay;

(b) the reasons for the delay;

(c) the prospects of the applicant in succeeding in the appeal; and

(d) the extent of any prejudice to the NMHS.

9         In Kelly v Director General, Department of Justice [2003] WAIRC 08164; (2003) 83 WAIG 1283 at [69], the following observations were made (citations omitted, emphasis added) relevant to the determination of the present matter:

Until the application for extension is granted, there ought be no assumption made that the extension will be granted as a matter of right. The question is whether the circumstances meet the tests for an extension of time…

(a) Prima facie time limits imposed by the Act are to be complied with and it is for to the applicant to establish the circumstances such that the discretion to extend time should be exercised in his or her favour;

(b) an extension of time is not automatic and the discretion residing with the Commission to extend time is for the purpose of enabling the Commission to do justice between the parties;

(c) it is for an applicant to demonstrate that strict compliance with the legislation will work an injustice and be unfair in all of the circumstances;

…

10      Ms Mackay has made an affidavit in support of the application for an extension of time. The affidavit reveals that:

(a) Ms Mackay was notified of the decision to terminate her employment by letter dated 22 March 2022. Within two days of her being notified of the decision to terminate her employment, on 24 March 2022, Ms Mackay sent a copy of the termination letter to Mr Adam Collyer at IWUA.

(b) Mr Collyer apparently did nothing in the following 18 days. On the day after the period for appealing was due to expire, 12 April 2022, Mr Collyer advised Ms Mackay that she had until 14 April 2022 to lodge an appeal. It is not clear what form this advice took. Ms Mackay’s affidavit does not specify whether the advice was verbal or in writing, and she has produced no documentary evidence of the advice. Strictly speaking, the form of Ms Mackay’s evidence was inadmissible. However, no objection was taken to it being received. In any event, Mr Collyer’s advice was wrong.

11      A copy of the 22 March 2022 letter was provided to the Board by Ms Mackay’s agent, at the Board’s request. The Board notes that the letter states:

If you feel aggrieved by this decision, you have the option to appeal to the Western Australian Industrial Relations Commission.

12      It is regrettable that the letter did not set out Ms Mackay’s appeal rights, including relevant limitation periods, with greater precision.

13      Ms Mackay produced an email sent to her from Mr Collyer on 13 April 2022 at 3.20 pm. In it, Mr Collyer says:

Hi Naomi

I’ve just read your termination letter and you were given notice of dismissal on the 22/3/22. If you are over 45 and worked for more than 2 years that is a 5 week notice period. So technically you're still in your notice period and haven't been dismissed yet. We’ll still get the paperwork done sooner rather than later, but no need to rush this week as we have 21 days after dismissal, which would be 21 days after the end of your notice period.

…

14      He then goes on to request basic details from Ms Mackay for the purpose of completing a claim form.

15      It appears from this email that Mr Collyer had only read the termination letter for the first time on 13 April 2022, some three weeks after Ms Mackay provided it to him, and had otherwise done nothing in the period since 24 March 2022 to preserve Ms Mackay’s rights or advance her claim.

16      More seriously, the advice Mr Collyer gave Ms Mackay was wrong, and his email says nothing as to why his original advice about the limitation period had changed.

17      Ms Mackay provided Mr Collyer with the further information he had requested to complete the form on her behalf on 19 April 2022, but she received some unspecified form of a response indicating Mr Collyer was on leave until 24 April 2022. No explanation was given of the nature of Mr Collyer’s leave or when he had arranged it. It is not known whether he knew he was going to be on leave when he sent Ms Mackay the 13 April 2022 email.

18      On being notified that Mr Collyer was on leave at 10.48 am, Ms Mackay forwarded her email to an email address, ‘Red Union Support’, noting that the deadline for her to appeal was 21 April 2022 ‘…otherwise after that date, I will be unable to proceed further’.

19      Ms Mackay’s affidavit also contains an incomplete copy of an email she sent to an unknown recipient at 12.56 pm on 19 April 2022, which says, ‘Not sure if some will be of use to submit to WA IRC’.

20      Despite Ms Mackay’s expressed concerns about missing the deadline for her appeal, it seems the next she heard from anyone representing IWUA or from that company, was on 21 April 2022, when another person, Ms Renee Clarke, who Ms Mackay described as a ‘case manager’, told her that her appeal was not ‘due until next week’ and that Mr Collyer would attend to it on his return from leave. Ms Clarke’s email signature is styled ‘Red union member support’. It is unclear why Ms Mackay regarded Ms Clarke as a case manager, which implies responsibility for managing cases. Clearly, Ms Clarke took no responsibility and managed nothing other than perhaps an email inbox. Of course, whether she performed any member support, in this case, is also very debateable. The effect of her email was to, for a third time, provide incorrect advice to Ms Mackay.

21      Finally, on Tuesday, 26 April 2022, Mr Collyer emailed Ms Mackay confirming that ‘…we have 21 days to lodge from your termination date (which is today), so no need to panic. I have the paperwork ready to submit. I just wanted to confirm you are still happy to proceed?’.

22      This is the fourth instance of a representative of the IWUA providing Ms Mackay with incorrect advice.

Length Of The Delay

23      In the scheme of the time limit of 21 days imposed by the IRC Regulations, the delay of two weeks is significant but not very long. This factor cannot be determinative on its own. However, the significance of the delay weighs very slightly against the grant of an extension of time. The other relevant factors may involve counterbalancing considerations which displace the effect of this factor being against the grant of an extension of time.

Reasons For The Delay

24      Ms Mackay’s agent’s submissions in support of the application are brief. They point out that the reason for the delay is the errors of the IWUA and asserts that Ms Mackay acted on incorrect advice from IWUA.

25      As an aside, Ms Mackay’s submissions refer to IWUA as her union. We have not been provided with any details of the governance structure of IWUA, but a business names search reveals that the name is held by an incorporated association QEDUS Inc. We note that neither QEDUS Inc. nor IWUA are registered organisations of employees under the IR Act. Therefore, IWUA does not have standing or any right to represent Ms Mackay in this jurisdiction. It is of some concern to the Board that Ms Mackay’s agent’s submissions might have the effect of inaccurately representing to the Board and to Ms Mackay that she is represented in this appeal by a union or organisation of employees. She is not.

26      Ms Mackay states in her affidavit that she accepted Mr Collyer’s advice about the time for filing her appeal and acted in reliance upon it. It is clear enough that the representatives of IWUA whom Ms Mackay was dealing with gave her incorrect advice about the time for appealing. Indeed, they did so on four separate occasions. There is no challenge to Ms Mackay’s evidence that she relied upon that advice. However, we consider there may be an issue as to whether it was reasonable for Ms Mackay to have accepted and relied upon the advice of IWUA.

27      Ms Mackay has not explained or produced any evidence as to her understanding of IWUA’s or those individuals with whom she was dealing’s relevant qualifications or experience in industrial and employment matters, such that it was reasonable for her to place her trust in them, and accept their advice. As we have noted, IWUA is not a registered organisation of employees. Nor is there any suggestion that the individuals with whom Ms Mackay was dealing were legally qualified, or registered industrial agents. There is no evidence that establishes the IWUA representatives were any more skilled or knowledgeable than Ms Mackay. In these circumstances, it was arguably unreasonable for Ms Mackay to have relied upon their advice.

28      Representative error may be a sufficient reason to extend time, depending on the circumstances. The giving of wrong advice by a union has been recognised as a ‘species of representative error’: Cruz v Australia Post Corporation [2008] AIRCFB 452 at [35]. In Cruz, the Full Bench of the Australian Industrial Relations Commission was referring to a registered trade union, subject to the governance requirements and regulatory scheme of commonwealth industrial relations legislation. While the IWUA is not a union of the type referred to in Cruz, and despite the lack of any evidence of IWUA’s standing to provide advice or act in an advisory capacity, we are satisfied that Ms Mackay believed (whether reasonably or not) that IWUA was acting for her and advising her. Accordingly, the circumstances are sufficiently analogous to the cases of representative error, to approach the question of delay in the same way.

29      In assessing whether representative error is a sufficient reason, the Board must consider to what extent the delay might properly be apportioned between the ‘representative’ and the applicant. The Board must ask whether the applicant is blameless, or whether the applicant’s conduct has also contributed to the delay, that is, to distinguish the causes of the delay: Davison v Aboriginal & Islander Child Care Agency (1998) 105 IR 1.

30      After Ms Mackay received notice of the decision, she appealed against, she acted in a timely way to notify IWUA of the decision and to request assistance in appealing it. She also followed up with the IWUA to see what had been done to progress her appeal. Despite our misgivings as to whether it was reasonable for Ms Mackay to have relied upon IWUA, it is clear that Mr Collyer purported to give her authoritative advice about the time she had to lodge her appeal. He also clearly gave that advice with the expectation that Ms Mackay would believe him and rely upon it.

31      Ultimately, the primary reason for the delay in lodging is primarily the wrong advice and careless conduct of IWUA and its representatives. This is an adequate explanation for the entire period of the delay. However, because we consider there was no reasonable basis for Ms Mackay to have relied upon IWUA’s advice, this factor weighs only slightly in favour of the grant of leave.

Prospects Of Success In The Appeal

32      Ms Mackay’s agent’s submissions have made no attempt to address this factor. Her submissions say nothing as to how the merits of the appeal should inform the decision to grant an extension of time. Ms Mackay’s appeal, which it seems was prepared by Mr Collyer or others at the IWUA, did not adequately particularise the grounds of appeal. The Board ordered that particulars of Ms Mackay’s grounds of appeal be filed, in part in order that the merits of the out of time application could be assessed by reference to the merits of the grounds of appeal.

33      At a directions hearing held on 13 June 2022, the chairperson of the Board referred Ms Mackay’s agent to the need to address the strengths of the grounds of appeal:

COSENTINO SC: And when it comes to determining whether an extension of time should be granted, one of the factors, which ‑ as you would be aware, one of the factors that the Board is required to consider, following the authority of Nicholas v The Department of Education and Training, is the strengths of the appeal grounds.

…

COSENTINO SC: So ‑ and it seems to me that, for the Board to consider the reasons for delay, it might be necessary for some evidence as to those matters, rather than your statements from the Bar table.

…

COSENTINO SC: And I did flag that one of the considerations for the Board is the merits of the grounds of appeal, the Board will make orders for particulars of grounds of appeal to be filed, because I think that’s an essential step before we come to the out of time application.

34      It is therefore surprising that there is no attempt in Ms Mackay’s submissions or evidence to address this factor. Ms Mackay’s prospects in this application have again been put in jeopardy, this time by the industrial agent representing her, Barton Consultancy and Dispute Resolution Pty Ltd.

35      Had Ms Mackay’s agent given some attention to this factor, it might be that there would be better evidence and information before the Board on which it could have assessed the merits of Ms Mackay’s appeal with greater confidence. The best we can do, however, is make some generalised observations based on the Particulars of the Grounds of Appeal.

36      The Particulars of the Grounds of Appeal filed by the agent on 24 June 2022 narrate the history of Ms Mackay’s employment and termination and then refer to Supreme Court proceedings, Falconer v Chief Health Officer CIV 2286/2021 and Coe v Chief Health Officer CIV 1139/2022, which are described as ‘challenging the lawfulness of the direction for WA Health workers to be directed to be vaccinated’. The grounds assert that the outcome of the Supreme Court proceedings ‘may result in all directions issued by the Chief Health Officer and Another to be deemed unlawful’. The particulars assert that ‘WA Health is a respondent’ to the Coe matter.

37      This leads to a sole paragraph which might be described as a ground of appeal (emphasis added):

9. If Ms Mackay is terminated based on not following a lawful direction, and that direction is eventually deemed unlawful by the WA Supreme Court, then Ms Mackay’s termination may be deemed to be harsh and unfair and she may have the opportunity for reinstatement. We will not be able to know this until the WA Supreme Court has made the determination.

38      This is, in effect, an admission that the merits of Ms Mackay’s appeal are currently unknown to Ms Mackay and depend entirely on the outcome of challenges in the Supreme Court and in particular, dependent on a successful plaintiff challenging the lawfulness of the direction, which was given to Ms Mackay, the breach of which formed the basis for the breach of discipline allegation against her.

39      Yet the Particulars of the Grounds of Appeal are entirely silent as to which direction Ms Mackay is alleged to have breached and which it is alleged was unlawful. This is despite the Board having raised this deficiency in the Notice of Appeal at the directions hearing on 13 June 2022:

COSENTINO SC: So part of the difficulty is that the grounds of appeal don’t clearly express what you’ve just expressed today. In fact, I don't think the grounds of appeal even identify a direction, whether it be a direction of the Chief Health Officer or a direction of the Director‑General. It seems to allude to a direction of the Director‑General rather than the Chief Health Officer, and I think it refers to WA education directions, which clearly don't apply ‑ ‑ ‑

40      In other words, the connection between the ‘direction’ under challenge in the Supreme Court, and the reasons for the termination of Ms Mackay’s employment, is not spelled out. To point out an obvious disconnect, the Notice of Appeal refers to the ‘lawfulness of the employer direction’. The employer in these proceedings is NMHS. There has been no suggestion that NMHS is a party to the Supreme Court proceedings referred to or that any NMHS direction is the subject of judicial review.

41      Further, Ms Mackay’s agent has put no evidence or submissions to us as to the merits of the Supreme Court proceedings relied upon.

42      The Board is aware from media and court reporting that the Falconer proceedings were commended in November 2021. In those proceedings, the applicant seeks judicial review challenging the validity of directions issued by the Chief Health Officer known as the WA Police Force Worker (Restrictions on Access) Directions. The Board is also aware that the Coe proceedings challenge the legality of the Health Worker (Restrictions on Access) Directions and the Director‑General Department of Health’s Vaccination Policy on the same grounds as corresponding Directions and Policies are challenged in the Falconer proceedings. The Coe proceedings were commenced in 2022, but nothing is known of the current status. The Falconer proceedings are listed for hearing in July 2022.

43      It seems that there is a possibility that if the Supreme Court were to determine in the Coe proceedings that the Director‑General Department of Health’s Vaccination Policy was unlawful and that the NMHS’s direction to Ms Mackay was aligned with and based on the lawfulness of the Director‑General Department of Health’s Vaccination Policy, that the NMHS’s direction was also unlawful. We note that there are steps in between: it is not the case, as Ms Mackay’s agent seems to suggest, that a declaration in favour of the Coe plaintiff will automatically mean that NMHS’s direction was unlawful.

44      Ms Mackay applied to stay her appeal pending the outcome of the Falconer proceedings. That application was dismissed. Her appeal will therefore proceed and be determined on the basis of the law as it stands at the time the appeal is heard. There is nothing to indicate to us that the law when this appeal is heard will be that the Director‑General Department of Health’s Vaccination Policy was unlawful, let alone that the NMHS’s direction to Ms Mackay was unlawful.

45      The authorities are clear that the applicant, in this case Ms Mackay, bears the onus of demonstrating that to refuse an extension of time would result in an injustice. It is therefore for Ms Mackay to demonstrate that her appeal has some prospect of success. At this time, it cannot be said that the appeal might succeed. Indeed, Ms Mackay’s submissions effectively conceded that the appeal is currently inarguable.

46      Even if we were to approach this factor by assessing the merits on the basis that there is a possibility of a future declaration that the Director‑General Department of Health’s Vaccination Policy was unlawful, Ms Mackay has not either by her Particulars of the Grounds of Appeal, evidence filed in support of this application or her submissions, shown how such a declaration will aid her appeal.

47      It has not been demonstrated that the merits of the appeal should weigh in favour of a grant of an extension of time.

Prejudice To The NMHS

48      Prejudice can be inferred from the length of the delay: see D & M Amonini Pty Ltd v Neirin Pty Ltd [2016] WASC 157 per Martin CJ at [16]. However, as the delay is not lengthy, any prejudice is limited. The absence of prejudice to the NMHS is, again, not determinative of whether an extension of time should be granted: see City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120. This factor is neutral.

Conclusion

49      On balance, while we consider there is an explanation for the delay, which is not lengthy, Ms Mackay has not shown that the interests of justice require that an extension of time to appeal be granted. All other facts are neutral or slight either way, but ultimately do not detract from our sense that the requirements of justice in this situation do not warrant that the extension of time be granted. The application will be dismissed.