REFERENCE OF DISPUTE - PAY ETC - S.28(2) - OSH ACT 1984

THE WORK HEALTH AND SAFETY TRIBUNAL

CITATION : 2022 WAIRC 00298

DELIVERED : WEDNEsday, 13 July 2022

FILE NO. : OSHT 3 OF 2022

Applicant

AND

DIRECTOR GENERAL, DEPARTMENT OF Education

CatchWords : Work Health and Safety Tribunal – Applications for discovery – Orders issued

Legislation : Industrial Relations Act 1979 (WA): s 27

  Occupational Safety and Health Act 1984 (WA): s 23I, s 25, s 26 & s 28

Occupational Safety and Health Regulations 1996 (WA): reg 2.4(1)

   Work Health and Safety Act 2020 (WA): Schedule 1 (cl 29)     

Result : Orders issued

Representation:

Applicant : On his own behalf

Respondent : Mr M McIlwaine (of counsel)

Cases referred to in reasons:

Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v Burswood Resort (Management) Ltd (1995) 75 WAIG 1801

Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Company (1882) 11 QBD 55

Reasons for Decision

1         Mr Cosentino was a Participation Coordinator at Woodlupine Primary School.

2         On 1 January 2022, the WA Chief Health Officer’s Education Worker (Restrictions on Access) Directions (No. 4) (Public Health Direction) came into effect. On 9 December 2021, the Director General, Department of Education (Director General) issued the CEO Instruction: Entry Restrictions No. 1 to an Education Facility COVID-19 Vaccination Requirement (CEO Instruction).

3         Mr Cosentino says that he refused to work under s 26(1) of the Occupational Safety and Health Act 1984 (WA) (OSH Act) because he believed that to continue to work would expose him to a risk of imminent and serious injury or imminent and serious harm to his health. At the heart of his application is a question about the reasonableness of the CEO Instruction and a complaint that the Director General did not do a risk assessment of the COVID-19 vaccinations.

4         Mr Cosentino has applied to the Tribunal under s 28 of the OSH Act for the pay and benefits to which he would have been entitled had he not refused to work under s 26(1) of the OSH Act.

5         The Director General says that on 4 January 2022, she informed Mr Cosentino that he would be stood down without pay that day because he was not vaccinated and therefore unable to work because he could not enter an education facility. The Director General argues that Mr Cosentino did not refuse to work under s 26(1) of the OSH Act. He was unable to access Woodlupine Primary School because of the operation of public health directions and was therefore unable to work. He was not entitled to pay or benefits.

6         The parties have each filed a discovery application in relation to this matter. These reasons deal with both discovery applications.

7         In summary, the Director General’s discovery application seeks an order that Mr Cosentino discover all correspondence between him and WorkSafe Western Australia (WorkSafe WA) relating to the application that Mr Cosentino made to WorkSafe WA under s 25 of the OSH Act. Mr Cosentino’s discovery application seeks on order that the Director General discover 45  categories of documents including advice from the WA Chief Health Officer and the Department of Health relating to the requirements for COVID-19 vaccinations.

Relevant principles

8         Under s 27(1)(o) of the Industrial Relations Act 1979 (WA) (IR Act), the Commission has the power to ‘make such orders as may be just’ within respect to the discovery, inspection or production of documents.’ Section 27 of the IR Act applies to the exercise of the jurisdiction of this Tribunal: cl 29 of Schedule 1 of the Work Health and Safety Act 2020 (WA).

9         Discovery is not available as of right. The party seeking discovery must establish that it is just for the order to be made and necessary for the fair disposal of the case. ‘Just’ means ‘right and fair, having reasonable and adequate grounds to support it, well-founded and conformable to a standard of what is proper and right’: Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v Burswood Resort (Management) Ltd (1995) 75 WAIG 1801, 1805.

10      At common law a document will be discoverable if it relates to a matter in question, as set out in Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Company (1882) 11 QBD 55 at 63:

It seems to me that every document relates to matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put the words “either directly or indirectly,” because, as it seems to me, a document can properly be said to contain information which may enable to the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences…

11      The Tribunal must consider:

1. do the documents relate to the matter in question, and if so;

2. would it be just to order discovery?

Substantive application before the Tribunal

12      Mr Cosentino’s substantive application is made under s 28 of the OSH Act. That type of application is narrow.

13      The first question for the Tribunal to answer is whether Mr Cosentino refused to work in accordance with s 26(1) of the OSH Act.

14      If the Tribunal finds that Mr Cosentino did refuse to work, it must then consider whether:

1. Mr Cosentino’s refusal to work was because he believed that to continue to work would expose him or another person to a risk of imminent and serious injury or imminent and serious harm to his, her or their health;

2. if he held such a belief, was that belief based on reasonable grounds;

3. he notified the Director General of his refusal to work in accordance with s 26(2) of the OSH Act; and

4. Mr Cosentino left the workplace without authorisation.

15      If all of those issues are found in Mr Cosentino’s favour, the Tribunal must then consider what pay or other benefits, if any, Mr Cosentino would have been entitled to if he did not refuse to work.

The Director General’s discovery application

16      The Director General asks the Tribunal to order that Mr Cosentino discover all correspondence between Mr Cosentino and WorkSafe WA relating to Mr Cosentino’s application to WorkSafe WA under s 25 of the OSH Act in late 2021/early 2022 (WorkSafe WA Application).

17      The Director General relies on a letter dated 13 April 2022 from a WorkSafe WA Inspector to Mr Cosentino. That letter refers to Mr Cosentino’s previous correspondence to WorkSafe WA between 11 January and 6 April 2022, and the WorkSafe WA Application.

18      The Director General says the documents it seeks are relevant because the WorkSafe WA Application was made in relation to the Director General’s mandatory vaccination policy, which is the subject of Mr Cosentino’s substantive application. The correspondence sought may be relevant to the substantive hearing because it will likely demonstrate Mr Cosentino’s belief of the ‘risk of imminent and serious injury’ with respect to mandatory vaccination at the material time. The correspondence sought may also inform the reasonableness of any belief(s) that Mr Cosentino held, including pursuant to s 26(1a)(c) of the OSH Act, which provides:

(1a) In determining whether an employee has reasonable grounds for the belief referred to in subsection (1) it is relevant to consider whether an inspector has attended to the workplace upon being notified under section 25(1) of the risk and whether –

…

(c) the inspector has determined that no action is required to be taken under this Act.

19      Accordingly, the Director General says that it would be just for the Tribunal to make the order for discovery as requested, and Mr Cosentino should discover the documents sought within 14 days of the order issuing.

20      Mr Cosentino objects to the Director General’s discovery application. He says that the WorkSafe WA Application was made on 2 April 2022, being some months after he says he refused to work on 21 December 2021.

21      Mr Cosentino argues that if the Director General is allowed to access the correspondence with WorkSafe WA, ‘it may inherently trigger concession by the respondent that the pre-qualifying requirements that give rise to any action by an Inspector under s 25(2) of the OSH Act were satisfied.’

22      Mr Cosentino says that if the Tribunal upholds the Director General’s discovery application, and if the documents ‘contain a record of the instigation of any s 25(2) action by the WorkSafe Inspector’, the Tribunal should order the parties to file a statement of agreed facts that removes any argument about whether the elements that instigate any s 25(2) action were met by Mr Cosentino.

23      Mr Cosentino says that a disclaimer in WorkSafe WA’s email correspondence may have limited his ability to provide voluntary discovery.

Consideration

24      I consider that the documents sought by the Director General are necessary to resolve the matters in dispute.

25      They may be relevant to the issue of Mr Cosentino’s belief about the risk of imminent and serious injury or harm as a result of the mandatory vaccination at the time he formed the belief and purported to refuse to work because of his belief. I accept that they may also be relevant to the reasonableness of Mr Cosentino’s belief. Accordingly, I consider that the documents sought are relevant to the issues set out in points one and two above at [14]. They are necessary for the fair disposal of the case and I consider that it would be just to order discovery in the circumstances.

26      The Director General’s discovery application is upheld.

27      The orders programming this matter were amended on 14 June 2022 and I consider that the matter has been programmed appropriately in the circumstances. It would not assist this matter for the parties to file a statement of agreed facts.

Mr Cosentino’s discovery application

28      Initially Mr Cosentino asked the Tribunal to order that the Director General discover documents numbered 1 – 51, as set out in detail in his Form 1A, with the exception of documents 4, 5, 26, 29, 47 and 48 which Mr Cosentino said have already been discovered. The documents sought include documents such as the advice from the WA Chief Health Officer, correspondence between specialist advisors and Mr Cosentino’s line manager about his residence being an alternative work location, correspondence about his vaccination status and request for alternative work arrangements, the Department of Education’s statistics about employees who have accessed COVID leave and were absent from work due to adverse reactions to vaccination, redacted medical certificates of other employees, notifications of injury under s 23I of the OSH Act and reg 2.4(1) of the Occupational Safety and Health Regulations 1996 (WA) redacted and showing details of adverse reaction to vaccination, notifications to WorkSafe WA about injury related to adverse reaction to vaccination, statistics on alternative work arrangements, correspondence between the Department of Education and Department of Health/relevant Minister seeking an exemption from the Public Health Direction internal and external correspondence about the impact of the Public Health Direction, meeting notes from Mr Cosentino’s supervision meetings in late 2021, notes made by Mr Cosentino’s line manager about their discussion on 10 June 2022, notes or correspondence from Ms Hillbrick about Mr Cosentino’s discussion with his line manager on 10 June 2022, correspondence about the ‘Lawful Order’ document given to Mr Cosentino on 10 June 2022, Mr Cosentino’s print history at the school for November and December 2021, a document recording the Department’s intent to allocate Mr Cosentino’s inherent work duties after 22 December 2021, correspondence between the Department and WorkSafe WA and/or the Commissioner of WorkSafe WA, documents about the CEO Instruction ending, various documents from the Director General, documents relating to the employer’s leave management system, various documents related to work from home arrangements, versions of a business continuity plan, a medical certificate for Mr Cosentino, statistics about client waitlists from November 2021 – June 2022, a participation training spreadsheet and versions of the WA Public Schools Operating Guidelines.

29      Broadly, Mr Cosentino says the documents he seeks are relevant because they relate to:

a. establishing a temporary work condition or contract variation;

b. mitigation of damages;

c. his line manager’s commitments to gather documents;

d. performing usual work from alternate locations;

e. the Director General’s knowledge of serious and imminent harm;

f. ‘scheduling of access’;

g. context for the application of s 26 and s 28 of the OSH Act;

h. authorisation and publication of the revocation of the CEO’s instruction;

i. establishing his claim period;

j. showing that accessing the educational facility is not relevant to carrying out duties that are external to the office;

k. establishing who is responsible for allocating alternate work arrangements;

l. the reasonableness of the Director General’s decision to refuse alternate work arrangements;

m. arguments he may make about what ‘usual work’ means and whether he was refused alternate work arrangements as a result of his vaccination status or the Public Health Direction; and

n. arguments he may make in relation to ‘contract law obligation of the Respondent to mitigate negative impact of third party influence’ and estoppel.

30      At the hearing Mr Cosentino handed up a document intended to be his written submissions in reply to the Director General’s submissions about his discovery application.

31      During the hearing Mr Cosentino confirmed that he no longer seeks the documents in categories 1, 2, 10 – 14, 17, 18, 19, 23, 30, 31, 41, 42, 43, 44, 45 and 49.

32      The Director General objects to Mr Cosentino’s discovery application. She says that whether a document relates to a matter in issue will in part depend on when the document was created. The documents Mr Cosentino seeks that were created after Mr Cosentino purportedly refused to work (a date not particularised in his application) will unlikely be relevant to Mr Cosentino’s belief at the material time.

33      The Director General says that generally Mr Cosentino has provided insufficient detail to explain why each category of documents requested is discoverable.

34      In relation to categories 1 and 2, the Director General says that any advice received by her, whether external or internal, about implementing the employer direction to be vaccinated is not relevant to the primary or subsidiary issues in question, as set out in [13] – [15].

35      In relation to categories 3, 7, 8, 9, 15, 16, 24, 35 – 46 and 49 – 51, the Director General says whether Mr Cosentino had previously been approved to work from home or could have worked from home during any purported period of refusal is not relevant to the primary or subsidiary issues. This is because the remedy in s 28(1) of the OSH Act focusses on the performance of ‘usual work’ and not the performance of modified or alternative duties (such as working from home).

36      In relation to category 6, the Director General says correspondence about Mr Cosentino’s vaccination status is not relevant to the primary or subsidiary issues.

37      In relation to categories 10 – 14, Director General says any statistics she may have about adverse effects or the taking of sick leave after vaccination are not relevant to a matter in issue. If Mr Cosentino had a belief regarding an imminent and serious risk, and he refused to work due to that belief, then the reasonableness of the belief is to be judged on the basis of information that could have reasonably been known to Mr Cosentino, or could have reasonably been obtained by Mr Cosentino, at the time of such refusal. Any statistics the Director General may have do not fall into that category.

38      In relation to categories 17 and 18, the Director General says any application by her to the Department of Health seeking exemptions from application  of the public health directions is not relevant to any matter in issue. In the same way, neither is the impact of public health directions and correspondence relating to such impact.

39      In relation to categories 20, 21, 22, 27 and 28, the Director General says events that happened after Mr Cosentino’s purported refusal to work are not relevant to the primary or subsidiary issues.

40      In relation to categories 23, 32 and 33, the Director General says Mr Cosentino has not sufficiently detailed why these categories of documents relate to a matter in issue and it is not apparent to the Director General how these documents could be relevant.

41      In relation to categories 19 and 25, the Director General says the framing of these categories of documents is too broad. Further, Mr Cosentino has not sufficiently detailed why these categories of documents relate to a matter in issue.

42      Accordingly, the Director General argues that the documents sought are not discoverable and it would not be just to make an order for their discovery.

Consideration

43      In summary, almost all of the documents sought by Mr Cosentino are not relevant to what is in issue in these proceedings. Fundamental to Mr Cosentino’s substantive application is what he did and what he believed, as set out at [13] - [14]. It is unlikely there would be any documents relevant to those matters that Mr Cosentino would not have.

44      Although Mr Cosentino confirmed at the hearing that he no longer seeks categories 1, 2, 10 – 14, 17, 18, 19, 23, 30, 31, 41, 42, 43, 44, 45 and 49, I include my consideration in relation to all categories originally sought because Mr Cosentino has foreshadowed that he intends to make further discovery applications in relation to a large number of documents.

45      Categories 1 and 2 are not relevant. Advice received by the Director General, whether external or internal, about implementing the employer direction to be vaccinated is not relevant to the primary or subsidiary issues in question.

46      Categories 3, 7, 8, 9, 15, 16, 24, 35 – 46 and 49 – 51 are not relevant to what is in issue, because whether Mr Cosentino had previously been approved to work from home or could have worked from home during any purported period of refusal is not relevant to the primary or subsidiary issues. The remedy in s 28(1) of the OSH Act focusses on the performance of ‘usual work’ and not the performance of modified or alternative duties (such as working from home).

47      Category 6 is not relevant. Correspondence about Mr Cosentino’s vaccination status is not relevant to the primary or subsidiary issues.

48      Categories 10 – 14 are not relevant. If Mr Cosentino had a belief regarding an imminent and serious risk, and he refused to work due to that belief, then the reasonableness of the belief must be judged on the basis of information that could have reasonably been known to Mr Cosentino, or could have reasonably been obtained by Mr Cosentino, at the time of such refusal. Any statistics the Director General may have about adverse effects or the taking of sick leave after vaccination are not relevant to a matter in issue.

49      Categories 17 and 18 are not relevant. Any application made by the Director General to the Department of Health seeking exemptions from the application of public health directions is not relevant to any matter in issue. In the same way, neither is the impact of public health directions and correspondence relating to such impact.

50      Categories 20, 21, 22, 27 and 28 are not relevant to matters set out at [13] - [14] because they relate to events that happened after Mr Cosentino’s purported refusal to work. Taking a generous view of Mr Cosentino’s discovery application and the fact that he is unrepresented in these proceedings, perhaps it could be argued that categories 20, 21, 22, 27 and 28 may relate to remedy, as set out in [15]. At this stage of proceedings, I consider that it would be premature to order discovery of those categories of documents. If Mr Cosentino establishes the matters set out in [13] - [14], the Tribunal will hear from the parties about whether categories 20, 21, 22, 27 and 28 should be discovered before hearing and determining the issue of any remedy, as set out at [15].

51      I consider that categories 23, 30, 31 32, 33 and 34 are not sufficiently detailed and it is not apparent why these categories of documents relate to a matter in issue and could be relevant. I consider that categories 19 and 25 are too broadly framed and not sufficiently detailed. It is not apparent why those categories of documents relate to a matter in issue and could be relevant.

52      For these reasons, I consider that the documents sought by Mr Cosentino (except as set out at [50], which will be dealt with at a later time if necessary) do not relate to the matter in question. They are not necessary for the fair disposal of the case and it would not be just for the order sought to be made.

53      An order will issue:

a. dismissing Mr Cosentino’s discovery application; and

b. requiring Mr Cosentino within 14 days to discover all correspondence between him/his representative on his behalf and WorkSafe WA relating to the concerns raised in the application Mr Cosentino made to WorkSafe WA under s 25 of the OSH Act.