UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00230

DELIVERED : Friday, 21 April 2023

FILE NO. : U 53 OF 2022

Applicant

AND

South Metropolitan Tafe

Respondent

CatchWords : Industrial Law (WA) – Unfair dismissal application – Whether respondent conducted a full and extensive investigation into the alleged misconduct – Procedural fairness – Failure of employee to comply with Employer Direction to be vaccinated against COVID-19 – Dismissal not harsh, oppressive or unfair

Legislation : Industrial Relations Act 1979 (WA) s 23A, s 29(1)(c)

Result : Application dismissed

Representation:

Counsel:

Applicant : Mr A Gill (of counsel)

Respondent : Mr R Andretich (of counsel)

Solicitors:

Applicant : Andrew Gill Barrister and Solicitor

Respondent : State Solicitor’s Office

Case(s) referred to in reasons:

Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224

Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 3635

Bogunovich v Bayside Western Australia Pty Ltd No.2 (1998) 79 WAIG 8

CFMEU v BHP Coal Pty Ltd (2022) 311 IR 304

CFMEU v Mt Arthur Coal Pty Ltd [2021] FWCB 6059

Falconer v Chief Health Officer [2022] WASC 270

Falconer v Commissioner of Police [2022] WASC 271

Finlay v Commissioner of Police [2022] WASC 272

Gee v WA Country Health Services [2022] WAIRC 00224; (2022) 102 WAIG 400

Heller-Bhatt v Director General, Department of Communities [2022] WAIRC 00719; (2022) 102 WAIG 1457

Kazantzis and Ors v Patrick Stevedores Holdings Pty Limited [2022] FWC 1576

Kimber v Sapphire Coast Community Aged Care Ltd (2021) 310 IR 21

Miles v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385

Minister for Health v Drake-Brockman [2012] WAIRC 00150; (2012) 92 WAIG 203

Newmont Australia Ltd v The Australian Workers Union, Western Australian Branch, Industrial Union of Workers (1988) 68 WAIG 677

Sangwin v Imogen Pty Ltd [1996] IRCA 100

Shire of Esperance v Mouritz (1991) 71 WAIG 891

Stevens v Epworth Foundation [2022] FWC 593

Wilkinson v Eastern Health [2022] FWC 260

Reasons for Decision

The Application

1         On 6 April 2022, the applicant (Mr Mills) filed a Form 2 – Unfair Dismissal Application (Application) alleging his dismissal from the position of Fabrication Lecturer at the respondent’s (TAFE’s) Naval Base campus on 10 March 2022 was unfair. 

2         The dismissal resulted from his failure to comply with the EMPLOYER DIRECTION: REQUIREMENT TO BE VACCINATED AGAINST COVID-19 AND PROVIDE EVIDENCE OF VACCINATION dated 7 December 2021 (Employer Direction).

3         Mr Mills originally stated in the Application that he did not seek reinstatement.

4         In his submissions filed 18 July 2022, Mr Mills seeks reinstatement, continuity of employment and backpay. Alternatively, he seeks 6 months’ pay as compensation.

5         Mr Mills does not argue against the lawfulness of the Public Health Direction or the Employer Direction. He acknowledges that his failure to comply with the Employer Direction constituted a disciplinary breach.

6         He contends that the procedure followed in relation to the Employer Direction was unfair, such that his dismissal was unfair.

7         He submits that his requests for leave and to work from home on compassionate grounds based on ill‑health, were inadequately considered, contrary to the principles of fairness or the COVID‑19 Mandatory Vaccination – Employee Restrictions on Access to South Metropolitan TAFE Facilities – Guidelines dated 21 December 2021 (Guidelines).

8         Additionally, Mr Mills contends that being required to present proof of COVID‑19 vaccination or exemption when requesting leave or remote work constituted procedural unfairness.

9         Mr Mills asserts that TAFE predetermined dismissal as the only possible outcome without considering alternatives, resulting in procedural unfairness.

Evidence given by Mr Mills’ witnesses

10      Mr Mills gave evidence that:

(a) On 1 June 2008, he commenced employment as a full-time Fabrication Lecturer at TAFE’s Thornlie campus.

(b) He has always been an asthmatic, and in 2010 through TAFE’s evaluation, it was identified that he has a deficiency in literacy.

(c) In 2018, he transferred to TAFE’s Naval Base campus.

(d) He found working at Naval Base stressful and found his health deteriorating. He was getting headaches and taking more of his asthma medication.

(e) In about the middle of 2020, he spoke with Wal Bastiani (Head of Programs) and Brenton Thom (his manager) in Mr Thom’s office where he let them know that his health was deteriorating, he was concerned about it, and he might look at reducing his hours to see if that would help with his health.

(f) Approximately one month later, he spoke with Mr Thom again regarding his health. During this discussion he mentioned he was concerned about how much of his asthma medication he was taking.

(g) On or around 17 February 2021 and on returning to work for 2021, he submitted a Variation to Hours Form to Human Resources to reduce his hours to a Fraction of 0.70667 from 22 February 2021. Reducing his hours to 0.71 of a full-time equivalent (FTE) would reduce his teaching hours from 21 hours to 15 hours a week.

(h) Mr Bastiani and Mr Thom informed him that his application for reduced hours would not be accepted due to programming.

(i) In March or April 2021, Mr Thom advised him that he could work reduced hours from Semester 2.

(j) On 3 June 2021, Mr Thom approved a Variation to Hours Form reducing his hours to a Substantive FTE of 0.71 from 2 August 2021. The form states the ‘Reason for variation’ as ‘Needing to reduce time due to health and personal reasons’. The form notes Mr Thom’s comments that, ‘I have spoken with David Mills and this has my approval and has been taken into consideration for Semester 2 scheduling’.

(k) After his hours reduced to 0.71 of a FTE, he was doing two hours’ night class a week in overtime.

(l) ‘That was the worst time for my asthma, during that period. That was the utmost worst time.’

(m) On or around 20 November 2021, he put in a request to Mr Thom to take time off without pay for six months.

(n) On 22 November 2021, he obtained a medical certificate certifying him as unfit for work from 22 November 2021 to 13 December 2021 inclusive.

(o) On 22 November 2022, an email was sent to ‘Staff – All’ from the Office of the Managing Director on the following terms:

Dear Colleagues,

I would like to thank those staff that have already provided evidence of their vaccination status, should that be the case for you please disregard this email.

On 20 October 2021, the Premier announced the COVID-19 mandatory vaccination policy for WA workforces, on advice of the Chief Health Officer.

A Direction under the Public Health Act 2016 will be published in line with the policy and will affect all South Metropolitan TAFE employees.

As a result, South Metropolitan TAFE proposes to separately direct employees who are affected by the Direction to require them to be:

o partially vaccinated against COVID‑19 before 31 December 2021

o fully vaccinated against COVID‑19 before 31 January 2022.

Employees are able to use reasonable work time to attend vaccination appointments. To book a COVID‑19 vaccination, visit Roll up for WA.

If an affected employee is not vaccinated by the relevant dates this may be addressed as a disciplinary matter. Disciplinary action can range from reprimand to dismissal.

Non-compliance with a Direction under the Public Health Act 2016 is punishable by a fine of up to $20,000.

Information about applying for an exemption is available from Services Australia and WA Department of Health.

Employees who have applied for an exemption from the requirement to be vaccinated through the Australian Immunisation Register may be eligible for a temporary exemption from the Chief Health Officer to cover the period before the application is determined.

Employees who provide evidence that they have applied for a temporary or permanent exemption for any reason that has not yet been granted may be provided with alternative work or allowed to work remotely while their application is determined, subject to the discretion of the employer. If alternative work or remote work is not provided, these employees may take an appropriate form of leave.

Employees who are temporarily or permanently exempt from the requirement to be vaccinated under a Public Health Act Direction may be required to use additional personal protective equipment, work at another location or remotely, or perform other duties consistent with their contract of employment depending on the employer's assessment of the workplace risk.

If you wish to provide any feedback or comment on the above, please email Alerts@smtafe.wa.edu.au

Warm regards

Terry Durant

Managing Director

(p) He does not remember this email but admitted in cross-examination that he knew people were getting vaccinated during this period.

(q) Mr Thom informed him that his request to take time off without pay for six months was declined. So, on or around 25 November 2021, he put in a request for his leave to be paid out at half-pay so that there would be around six months of time off with pay. This included annual leave for the period 25 January 2022 to 30 March 2022, and long service leave from 31 March 2022 to 27 April 2022.

(r) Nothing happened with his request for leave with pay because he ‘went on break and never returned back to work again.’

(s) From the letters he was receiving, information from the media, and from people he was talking to, he was aware that the way things were heading TAFE would issue a requirement for him to be vaccinated against COVID‑19.

(t) In December 2021, he received the Employer Direction from Terry Durrant, TAFE’s Managing Director.

(u) After receipt of the Employer Direction, he received a telephone call from Mr Thom during which he disclosed that he has not been vaccinated and was still looking at his options.

(v) Towards the end of January 2022, he and Mr Thom were trying to come up with a way that he could keep his position. He highlighted the duties of a lecturer he believed he could perform remotely in the document titled Appendix A: Role Description and Duty Statement For Lecturers and sent it to Mr Thom. This included:

(i) ‘Workplace training and workplace assessment’ – entails online learning. He sat in front of a computer for two weeks while the students were being trained on a computer. He believes this was the sort of work that could be done remotely.

(ii) ‘Recognition of Prior Learning’ – the evaluation of students of any units achieved prior to coming to TAFE that can be recognised so that students do not have to re-sit those units.

(iii) ‘Development and maintenance of educational/training programs and learning resources’ – one of his colleagues worked full-time on a computer trying to develop new resources.

(iv) ‘Implementation of new technologies and techniques’ – looking at the knowledge-based theory that could be delivered online, including assessing students prior to them going into the workshop, with students honing their skills on the virtual reality (augmented) welding machines.

(v) ‘Activities Related to Delivery’ – preparing or keeping up-to-date delivery and assessment plans for lecturers and marking knowledge-based tests.

(w) He also highlighted the units on an enrolment form of the units he believed could have been done remotely. This includes:

(i) ‘Apply principles of occupational health and safety in the work environment’ – which is done online;

(ii) ‘Work with others in a manufacturing, engineering or related environment’ – which is online;

(iii) ‘Interact with computing technology’ – which is online;

(iv) ‘Use hand tools’ – whilst it is important to have a lot of that in the workshop, there is underpinning knowledge-based assessment that could be done online;

(v) ‘Interpret technical drawing’ and ‘Perform manual heating and thermal cutting’ – sections of these units, the knowledge-based side of them, could be done online;

(vi) ‘Perform routine manual metal arc welding’ – involves getting used to the safety of the machine, so there’s a lot of underpinning knowledge and a little bit of welding, which is something that could be practiced on the augmented machines prior to going into the workshop. 

(x) 60 percent, or perhaps more, of his duties could be performed remotely.

(y) When he was at the Thornlie campus and working an 8-hour day, some lecturers would just deliver in the classroom. They would spend 4-hours in the classroom. Another lecturer would then take over and spend 4-hours in the workshop.

(z) His wife brought to his attention paragraph 6 of the Guidelines, and on 24 January 2022, he sent Mr Thom an email officially requesting to work from home in accordance with paragraph 6 of the Guidelines:

Hi Brenton

In response to the email I received regarding the mandated Covid‑19 Vaccinations, I wish to advice that I have not had any vaccines for covid nor can I see myself having one in the near future.

As you are aware my asthma has been gradually worsening since I began working at Naval Base so i chose to drop down to 0.75 working hours to reduce my exposure to the toxic environment. I have spoken to other staff who have also advised they are having issues with their health working at Naval Base. Choosing to drop down to 0.75 was not an easy decision as I love my job training in fabrication and welding. My health was deteriorating which is why I finally made this decision.

Last April I pinched a nerve in my neck at work that required physio that helped with the pain but never fixed the problem 100% and I am still in constant pain and discomfort.

Due to my health issues which have arisen from working at Naval Base, I would like to be considered under compassionate grounds to be able to work remotely from home as per Paragraph 6 WORKFORCE MANAGEMENT OF THE HR29 Covid-19 Mandatory Vaccination – Employee Restrictions on Access to South Metropolitan TAFE Facilities – Guidelines. I would be available to assist with online classes, unit development to keep them current, validated and moderated and any other duties that can be performed remotely. I would also be happy to reduce my hours from 0.75 to 0.5.

Waiting your reply

Regards

David

(aa) On 8 February 2022, he received an email from Karen Ferraz, Senior Human Resources Consultant, which stated the following:

Hi David

Thank you for your email. Brenton has asked me to respond on his behalf.

As you are aware, you are required to provide evidence of your COVID-19 vaccination, or evidence of an exemption, prior to attending any SM TAFE campus.

This also applies when requesting additional leave or other alternate work arrangements which includes working from home.

Alternative arrangements can only be considered if a formal exemption has been granted in line with the PHA Direction.

If you wish to discuss this further please give me a call on […].

Regards

Karen Ferraz

Senior Human Resource Consultant

(bb) On 21 February 2022, his wife sent an email to Mr Thom, Ms Ferraz, Mark Taylor and Johanna Degraaf. Following this, Mr Taylor called him and offered four weeks’ pay if he resigned.

(cc) On 24 February 2022, he sent Mr Taylor an email which stated the following:

Hi Mark

As per our conversation on Tuesday can you please confirm that if I resign you would pay me an extra 4 weeks in lieu as severance pay that you offered? Can you please also confirm that I will get paid all of my entitlements including any pro rata long service leave that I may have due?

If I choose not to resign and am fired in a couple of weeks can you please also confirm that I will get paid all of my accrued leave including any pro rata long service leave.

Can you please send me a breakdown of the final pay for either my resignation or termination?

At the start of our conversation you advised that there was nothing you could do to help me other than advise me of the termination process. This left me feeling that there was no concern for my mental health at all and put me back into more depression.

I am still deciding whether to resign or be fired.

Thanks

David Mills

(dd) On 25 February 2022, he received an email from Mr Taylor which stated the following:

Hello David,

Yes we would pay the 4 weeks if you elected to resign. As for the leave - I've asked payroll to do an audit and hopefully we will get that answer soon.

Unfortunately as you are not over 55 - we are unable to pay out any pro-rata long service leave as per the TAFE Lecturers agreement.

I do absolutely empathise with your situation and I unreservedly apologise if my discussion caused you more angst - that was not the purpose of my call - it was in response to the concerns Cindy raised and my concern for you as an employee.

I will get back to you as soon as I hear back from payroll.

Regards

Mark.

(ee) On 25 February 2022, he received an email from Mr Taylor which provided calculation of the payout on termination of employment.

(ff) He received a letter from Mr Taylor dated 24 February 2022 with subject line ‘SUSPECTED BREACH OF DISCIPLINE – FINDING AND OPPORTUNITY TO RESPOND TO PROPOSED ACTION’, which he responded to via email on 3 March 2022 on the following terms:

Dear Mr Taylor, acting agents for WA Chief Medical Officer,

I am writing in response to you letter, titled Suspected Breach of Discipline – Finding and Opportunity to Respond to Proposed Action, whereby you are proposing to terminate my employment with South Metropolitan TAFE (TAFE), dated 24 February 2022.

I formally advise, as I have done consistently over the last few weeks that I have a medical condition which compromises my health and I am extremely concerned that any experimental poison, which has not been adequately trialled and has been mandated by our state and not federal government, would significantly impact my long-term health.

Due to my health issues which have arisen from working at Naval Base, I would like to be considered under compassionate grounds to be able to work remotely from home as per Paragraph 6 WORKFORCE MANAGEMENT OF THE HR29 Covid‑19 Mandatory Vaccination – Employee Restrictions on Access to South Metropolitan TAFE Facilities – Guidelines. I would be available to assist with online classes, unit development to keep them current, validated and moderated and any other duties that can be performed remotely. I would also be happy to reduce my hours from 0.75 to 0.5.

I understand that you had a predetermined outcome before you commenced the formal disciplinary proceedings against me and know that TAFE has already made a definite decision to terminate my employment.

I am extremely disappointed by your lack of duty of care demonstrated towards me throughout this process. On 21 February 2022, my wife, out of desperation emailed you and others at TAFE and advised that I was suicidal. Your response was no response, and three days later you ticked a box in your disciplinary process and sent the pre-written letter to me advising that my employment was going to be terminated if I could not justify why it should not be.

As a Managing Director, in accordance with the Workplace Health and Safety Act 2020, you have a primary duty of care to ensure, so far as reasonably practicable that you will provide me with and maintain a working environment that is safe and without risks to health. The new act specifically relates to both physical and psychological safety and your failure to even respond to my wife and her concern that I would kill myself is nothing short of negligence.

I also have a workplace injury from April 2021, whereby I pinched a nerve and advise that this is still causing me issues.

I disagree with your assertion that I have failed to comply with lawful instructions. I have complied with all lawful instructions, in accordance with the Public Health Act 2016 (PH Act) and have remained away from work, as per your instructions. Section 202 of the PH Act expressly states that it is an offence to discipline an employee for following these directions.

I request to see a copy of the risk assessment conducted by the TAFE. In reference to your duty of care requirements under the OHS/ WHS Acts relating to managing work, health and safety risks, I the undersigned am registering a NOTICE OF SERIOUS CONCERN REGARDING THE WA GOVERNMENT'S MANDATORY VACCINE POLICY.

Mandating an experimental medical treatment without any consultation or co-operation at my place of work contravenes the Risk Assessment process legislated under the OHS/WHS Act's. The Western Australian Chief Health Officer – Dr. Andrew Robertson has determined that the Poison (Sars‑Cov‑2‑Covid‑19) Vaccines are an appropriate control measure in significantly reducing the risk of serious illness and death from the Covid‑19 virus and helps reduce the rate of transmission.

This blanket statement and subsequent mandate to all Western Australian workplaces requires serious scrutiny and independent peer reviewed medical evidence to be justified. It is well documented the Covid‑19 Vaccines do not prevent transmission.

The premise that by vaccinating every worker in all Western Australian workplaces will protect the vulnerable is null and void. Under both the OHS & WHS Acts – all stakeholders have a duty of care to identify hazards, assess the risk and control the risks.

The most important step in managing the risks involves eliminating them so far is as reasonably practicable, or if that is not reasonably practicable minimizing the risks so far as reasonably practicable.

In deciding how to control risks, a person conducting a business or undertaking (PCBU), MUST CONSULT YOUR WORKERS AND THEIR REPRESENTATIVES WHO WILL BE DIRECTLY AFFECTED BY THIS DECISION. Inoculating all workers with a mandated vaccine which is classed as a Poison by the Chief Health Officer of WA to prevent transmission is not under any circumstance - providing a safe workplace.

Careful consideration must be placed on the fact that due to reported adverse reactions to these vaccines and no long-term safety data (experimental trials). It may be established that potential prosecutions will be incurred by the PCBU, and Officers of the business should they be deemed liable for any death, injury or harm at the workplace.

I also have concerns regarding the provision of my valid consent for my vaccine status. Valid consent is the voluntary agreement by an individual to a proposed procedure, which is given after sufficient, appropriate and reliable information about the procedure, including the potential risks and benefits, has been conveyed to that individual.

As part of the consent procedure, people receiving vaccines and/or their parents or carers should be given sufficient information (preferably written) about the risks and benefits of each vaccine.

This includes:

• what adverse events are possible?

• how common they are?

• what they should do about them?

For consent to be legally valid, the following elements must be present:

1. It must be given by a person with legal capacity, and of sufficient intellectual capacity to understand the implications of receiving a vaccine.

2. It must be given voluntarily in the absence of undue pressure, coercion, or manipulation.

3. It must cover the specific procedure that is to be performed.

4. It can only be given after the potential risks and benefits of the relevant vaccine, the risks of not having it, and any alternative options have been explained to the person. The person must have the opportunity to seek more details or explanations about the vaccine or its administration.

Legislation as written in the Immunisation Handbook clearly states you cannot coerce people into taking a vaccine. SECTION 51 23A of the Constitution states that you cannot conscript people into giving the vaccine especially regarding medical procedures, this was put in the constitution as a result of the referendum.

I do not believe that the TAFE have satisfied the above conditions and therefore do not believe there is sufficient grounds to force this vaccine on me.

Before rendering a decision, regarding my on-going employment, I request that you provide the following:

• A written response in relation to my request to work from home.

• Risk Assessment carried out by the TAFE in relation to the vaccinations.

• Respond to why you failed to demonstrate duty of care when advised that I was suicidal

• Will TAFE provide compensation for vaccine related injury or illness?

• Medical information which would satisfy the requirements of valid consent.

I do not believe that a decision should be made prior to TAFE genuinely considering the reasonable excuse/options as to why I have not provided details of my vaccination status and ask TAFE to respond to questions posed today. Failure to provide the information may deem this process to be procedurally unfair and result in legal action.

I trust that you will consider the details of my response thoroughly and support me to remain an employee of the TAFE. It would be a shame for the employment relationship to end on such a sour and unnecessary note.

Kind regards

David Mills

(gg) On or after 10 March 2022, he received the letter with subject line ‘BREACH OF DISCIPLINE – OUTCOME’ signed by Mr Durrant, which stated, ‘For this reason, I have determined to impose a penalty of dismissal pursuant to section 82A of the Public Sector Management Act 1994 effective from the date of receipt of this letter.’

11      Under cross-examination, Mr Mills’ evidence was that:

(a) He has always been employed as a Fabrication Lecturer.

(b) About 40 percent of his role involves lecturing.

(c) Lecturing is delivered in person, in a classroom on campus.

(d) Another component of the lecturing function was demonstration, in a workshop, and that was definitely performed in person.

(e) His prime function, and what he is employed to do, is to demonstrate and instruct students in person in a classroom.

(f) After his formal hours reduced to 0.71 of an FTE in August 2021, he agreed to working overtime to ‘help out’.

(g) By 22 November 2021, he knew that TAFE would be directing employees to be vaccinated against COVID-19.

(h) This concerned him as he was scared that the vaccine would impact his health.

(i) He decided to look at his options and hold off as long as he could.

(j) In November 2021, Mr Thom offered him a transfer to the Mandurah campus. He asked for some time off to see if he can better his health before taking that position.

(k) On 29 November 2021, Mr Thom signed a Leave Without Pay Request Form, with a Leave Without Pay Start Date of 1 February 2022, Leave Without Pay End Date of 1 July 2022, and Reason for Requesting Leave Without Pay ‘Illness – Chronic asthma playing up’.

(l) The top of the form states:

All Leave Without Pay requests must be approved by the employees Manager, Executive/Director, General Manager and Managing Director. Please refer to the college’s delegation of authority policy.

(m) He made a formal request for leave with pay, but only a verbal request to Mr Thom for leave without pay and was unaware that Mr Thom has completed and signed the form.

(n) He does not agree that the words ‘Illness – Chronic asthma playing up’ meant he had chronic asthma prior to the form being signed.

(o) He did not make a formal application to work remotely, just a request to do so, via email.

(p) He attempted to get an exemption from being vaccinated against COVID‑19 from a doctor but did not get one.

(q) He has not been vaccinated against COVID‑19.

(r) On termination of employment, he was paid just over $3,000 in accrued leave, comprising of two weeks of accrued long service leave.

(s) Whilst he was very angry at TAFE at the time, he does not think there would be a problem in returning to work for TAFE.

12      Peter John Andrews gave evidence that:

(a) He has been employed as a lecturer with TAFE since 2008. He commenced as a lecturer and moved into the Head of Programs position in 2014 to 2019.

(b) He has known Mr Mills since Mr Mills commenced with TAFE.

(c) He worked with Mr Mills at the Thornlie campus.

(d) In the Head of Programs position, he programmed Mr Mills’ classes.

(e) Mr Mills’ duties involved normal day classes, block release classes and evening classes.

(f) Mr Mills was an excellent lecturer.

(g) He transferred a couple of lecturers, which included Mr Mills, to the Naval Base campus because there was a need at the Naval Base campus for experienced lecturers with marine industry experience. The intention of the transfers was to upskill those people to take over from an ageing lecturer who was getting closer to retirement age.

(h) There are duties within Mr Mills’ portfolio which could be taken off campus. They include:

(i) ‘Recognition of Prior Learning’;

(ii) ‘Workplace training and workplace assessment’ – although workplace training requires the lecturer to potentially go to a workplace and actually assess, so it would depend on the workplace and their requirements;

(iii) ‘Development and maintenance of educational/training programs and learning resources’;

(iv) ‘Implementation of new technologies and techniques’ – may be required to be on campus, although computer technologies like Blackboard, which is web‑based, do not require the lecturer to be on campus to implement;

(v) ‘Identification of industry/community requirements in relation to delivery of programs’ – if it only involved communicating with people and not going on‑site;

(vi) ‘Activities Related to Delivery’ including ‘Planning’, ‘Preparation’, ‘Marking’, ‘Making professional decisions associated with the delivery and assessment of modules within the lecturer’s own teaching program’, and ‘Other activities related to the delivery of training’; and

(vii) ‘Undertake professional development, including return to industry’ – undertaking professional development can be done in the lecturer’s own time.

(i) Of the list of subjects delivered, parts of the duties could be delivered non-contact. They are:

(i) ‘Interact with computing technology’ – which is largely a theory-based unit of competency and is delivered via Blackboard;

(ii) ‘Apply principles of occupational health and safety in the work environment’ – portions of that, to the extent that it only relates to the theoretical part; and

(iii) The College is moving towards developing programs where Blackboard can be used to enable people remote from the College to be able to access the theoretical components of their course.

(j) He works alongside a lecturer who is unvaccinated.

13      Under cross-examination, Mr Andrew’s evidence was that:

(a) The unvaccinated lecturer he works alongside has a medical exemption from vaccination.

(b) Blackboard is in the process of development. TAFE started working on Blackboard 12 to 18 months ago.

(c) A lecturer is employed to do the full duties of a lecturer.

(d) He is not aware of any lecturer who is working 100 percent from home.

(e) A lecturer could only do 100 percent at home if management rearrange and change a person’s duties.

(f) A lecturer cannot lecture from home.

(g) In his portfolio of fabrication and mechanical fitting, no one does 100 percent of their lecturing from home via Blackboard.

14      Leslie Brindley gave evidence that:

(a) He is a lecturer at the Thornlie campus. He commenced as a lecturer in 2005.

(b) He has known Mr Mills since Mr Mills commenced employment with TAFE at the Thornlie campus.

(c) Mr Mills is an excellent lecturer.

(d) He sought and obtained a medical exemption from the requirement to get the COVID‑19 vaccine.

15      Darren Wellington gave evidence that:

(a) He is employed as a Storeman Technician at the Rockingham campus.

(b) He previously worked as a Storeman Technician at the Naval Base campus for two years.

(c) He knows Mr Mills through work.

(d) Whilst at the Naval Base campus, he applied for a position as a facilities officer at the Rockingham campus but was unsuccessful.

(e) Mr Thom asked him why he applied for the position at Rockingham. He told Mr Thom that he was struggling with his asthma at Naval Base.

(f) In or around March 2022, about four weeks after his conversation with Mr Thom, he was transferred from Naval Base to the Rockingham campus.

16      Under cross-examination, Mr Wellington’s evidence was that:

(a) When he sought a transfer, there was no difficulty from management.

(b) Once he informed Mr Thom he wanted a transfer, Mr Thom transferred him within about four weeks.

TAFE’s contentions

17      TAFE argues that Mr Mills is seeking exemption from compliance with the Employer Direction through leave or remote work due to health reasons, despite being aware of the impending or already issued Employer Direction when making his requests.

18      TAFE submits that Mr Mills was requesting six months of leave when at the time he had an accrual of approximately two and a half weeks of paid leave. This means the leave that he was seeking was in effect Personal Leave Without Pay under clause 48.4 of the Western Australian TAFE Lecturers’ General Agreement 2019 (Agreement), and he was seeking this type of leave without medical evidence.

19      Clause 48.4.a) of the Agreement states:

Employees who have exhausted all of their personal leave entitlements and are ill or injured may apply for personal leave without pay. Employees are required to complete the necessary application and produce medical evidence to the satisfaction of the Managing Director.

20      The Guidelines stipulate that upon receiving the Employer Direction, Mr Mills would have a 14-day period starting from his first scheduled day back at work to decide whether to undergo vaccination. Should he opt not to be vaccinated, the disciplinary process would then commence.

21      TAFE maintains that paragraph 6 of the Guidelines allows unvaccinated employees to work remotely only under exceptional circumstances. TAFE alleges that Mr Mills' true motive for applying for leave was to avoid vaccination by distancing himself from the workplace.

22      Paragraph 6 of the Guidelines state:

Given the context of the College training delivery, other workforce management approaches would only arise in exceptional circumstances.  In these limited situations, the Managing Director may consider temporary arrangements for unvaccinated employees.  These options may include working remotely or access to accrued leave or leave without pay.

The Managing Director will consider the workload and other implications for the vaccinated workforce when deciding whether it is reasonable to facilitate temporary arrangements for unvaccinated employees.  The SM TAFE is not expected to incur extra costs in managing unvaccinated employees.

There may be situations where compassionate or other exceptional circumstances lead the Managing Director to consider temporary alternative arrangements for unvaccinated employees, such as those outlined above.

23      TAFE contends that Mr Mills seeks to invoke the ’exceptional circumstances’ accommodation in paragraph 6 of the Guidelines, which applies to unvaccinated employees rather than employees with health issues. Furthermore, TAFE asserts that Mr Mills has not provided evidence supporting the existence of exceptional circumstances to justify the accommodation.

24      TAFE argues that Mr Mills’ role as a trades lecturer requires direct instruction on the Naval Base campus. Although some aspects of his job could potentially be performed remotely, the primary function of demonstrating and instructing TAFE students cannot be performed from a remote setting.

25      TAFE asserts that Mr Mills’ breach of the Employer Direction, which rendered him unable to discharge the duties of his job, constitutes a serious breach of discipline warranting dismissal.

26      TAFE relies upon paragraphs 1 ‘Purpose’ and 5.1 ‘Principles’ of the Working from Home policy dated 27 June 2018 (Policy) in submitting that no-one can work completely at home and working from home is not suitable for jobs that require face‑to‑face contact with students.

27      Paragraph 1 of the Policy states:

1. Purpose

The Working from Home Policy (this Policy) establishes guidelines for an employment arrangement in which employees work from home on a short- or long-term basis under a formal arrangement with their manager and respective general manager. Home-based work must be divided between the 'normal' office environment and the home-based work site. This is designed to prevent disadvantages that can be experienced with working from home including isolation from the worksite, team participation and access to training opportunities and career development.

Working from home is not a right or entitlement and is entered into only on a voluntary basis, and only after formal agreement between SM TAFE and the employee. Any consideration to work from home needs to demonstrate that the operational and efficiency requirements of the business area can be met and sustained.

For the purpose of this policy, the term home-based work does not include ad-hoc or occasional arrangements in which an employee works from home to complete a specific project or task to meet a deadline.

28      Paragraph 5.1 of the Policy states:

5.1 When is Working from Home Appropriate?

Each application for working from home shall be considered on a case-by-case basis. Managers assessing the request for home-based work will need to consider whether the position is suited for home-based work. Generally, work that involves a high degree of individual autonomy and independence is most suitable. For example:

•          project work

•          research

•          report writing

•          policy development and analysis

•          systems design and development

Home-based employment is not suitable for jobs that:

•          require a high degree of supervision or close scrutiny

•          require direct face to face contact with other staff or students

•          do not lend themselves to objective performance monitoring

•          require the employee to be a member of a team with regular face to face contact on a daily basis with other team members

•          require the employee to service SM TAFE facilities and/or assets

•          have other characteristics which SM TAFE deems unsuitable for home-based work

29      TAFE relies upon Kazantzis v Patrick Stevedores Holdings Pty Limited [2022] FWC 1576 (Kazantzis) and Stevens v Epworth Foundation [2022] FWC 593 (Stevens) as authority that an employer is not obliged to allow an employee to work from home, or to run out their leave, in a wait and see situation when there is a government direction regarding the COVID‑19 vaccine. Kazantzis [86] states:

A number of Applicant’s contended that they should have been allowed to take approved leave (presumedly until attendance vaccine mandates were lifted). I have considered this contention and I find that it was not unreasonable to deny the Applicants’ leave requests. The “can we wait it out?” approach that some of the Applicants urged upon Patrick was not a workable option. It was not viable to grant leave to unvaccinated employees and then wait until they could legally return to the workplace (whenever that might be). Patrick (like other employers) needed to be able to manage challenging operational circumstances with staff absent due to COVID infections and/ or COVID exposure. Permitting unvaccinated employees to take paid or unpaid leave would have impeded the ability of Patrick to recruit into roles where staff were on indefinite leave. There would also have been a cost to Patrick in continuing to accrue leave for staff while they were on approved leave for an indefinite period.

30      Stevens  [34] states:

Ms Stevens submitted that her dismissal was unfair because she was dismissed at a time when she could have taken her remaining long service leave. I disagree. Epworth had already granted her a period of several weeks of long service leave. She was advised by Mr Benedict in his letter of 29 October 2021 that it was not a suitable time to take leave for a longer period. Ms Connors gave evidence that granting further long service leave would have continued to leave the position unfilled, with an impact on services to patients. In my opinion, Epworth had reasonable business grounds to refuse Ms Stevens’ request to take further long service leave. But in any event, as Epworth rightly contended, even if Ms Stevens had been allowed to take the rest of her long service leave, it would not have made any difference, because her leave would have concluded at the end of February 2022, at which time the Directions remained in force in relation to healthcare workers. Indeed they remain in force to the present day. Further, Ms Stevens said in her evidence that it remains her view that she should not be required to provide Epworth with sensitive medical information such as her vaccination status. From this I infer that, had Ms Stevens returned from leave in February 2022, she would have continued to refuse to provide the relevant vaccination information to Epworth, with the consequence that Epworth would still have been prohibited from allowing her to attend its premises for work.

31      TAFE maintains that operational factors prevent Mr Mills from performing only part of his role remotely and requiring TAFE to employ a substitute when he is absent. TAFE cites clauses 38.3 and 38.4 of the Agreement, which distinguish between 'traditional' lecturing in a classroom setting and remote 'non-traditional' methods. These clauses indicate that non‑traditional lecturing is only used alongside traditional lecturing within the scope of a flexible hours arrangement (FHA).

32      Clause 38.3.a) of the Agreement states:

38.3.  Traditional Lecturing Delivery Hour

a)  Traditional lecturing’ duties are the delivery of VET to groups of students in a classroom, workshop, seminar room, lecture theatre, or similar form of teaching delivery, either on, or off, campus.

33      Clause 38.4.a) and b) of the Agreement states:

38.4.  ‘Non-Traditional’ Delivery

a)  Hours worked under a FHA agreement will incorporate a combination of VET delivery and other duties, except that a lecturer will not be required to deliver more than 840 hours of ‘traditional’ lecturing duties in a calendar year.

b)  Lecturers engaged in non-traditional VET delivery will undertake a combination of delivery and other duties.

34      TAFE submits that Mr Mills did not apply for a FHA, but even if he did, it would not have released him from having to carry a load of traditional lecturing.

Evidence given by TAFE’s witness

35      Brenton Geoffrey Thom gave evidence that:

(a) Since March 2019, he has been TAFE’s portfolio manager for defence, mechanical and fabrication.

(b) In this role, he is in charge of all the lecturers and technician staff, in addition to administration support across compliance, OSH and finance, across all campuses which include Thornlie, Naval Base, Rockingham and Mandurah.

(c) He is the first port of call for matters related to a lecturer’s leave and illness.

(d) He was Mr Mills’ direct line manager.

(e) He first heard Mr Mills has asthma in or around late 2020, when he saw Mr Mills walking down the hall not wearing a mask. It was part of his directive as a manager to request all his staff to wear a mask. At this time, Mr Mills said he found it difficult to breathe in a mask due to asthma.

(f) In or around April 2021, he sat down with Mr Mills to discuss his reduced fractions application, to commence in Semester 2 of 2021, from 2 August 2021.

(g) In November 2021, Mr Mills filled in and emailed to him a Leave Without Pay Request Form, seeking leave without pay for the period 1 February to 1 July 2022 inclusive, with the reason for the leave stated as ‘Illness – Chronic asthma playing up’.

(h) In or around November 2021, he offered Mr Mills a transfer to Mandurah as an alternative to leave without pay.

(i) He signed the form on 29 November 2021 and forwarded the form to his Executive Director (ED), who sent it to the General Manager to be approved, so it could ultimately go to the Managing Director for approval. 

(j) One or two days after signing and sending on the form, the General Manager asked him to call Mr Mills to enquire if he was vaccinated.

(k) He called Mr Mills and asked if he was vaccinated, and Mr Mills disclosed that he was not. Mr Mills said he was worried about getting the vaccine due to his asthma and what that does to people with shortness of breath.

(l) His understanding is that Mr Mills’ application for leave without pay was stopped at the General Manager level because Mr Mills was not vaccinated.

(m) He contacted Mr Mills to initiate a discussion as to whether he would be interested in working remotely, as if he was, he would put this to the ED and General Manager. He requested Mr Mills to provide him with evidence of previous documents that he had written to support the request.

(n) When he was exploring with Mr Mills the possibility of working from home, the discussion was around curriculum development. However, he was not able to advance the discussions because there were stops and starts to the new training package and curriculum development did not commence until May 2022 when the TAFE WA collaboration project kicked off. 

(o) During the COVID‑19 period, none of the lecturers in his department were given permission to work from home.

(p) During his time as the line manager of lecturers, no one had been given dispensation to work full-time in a lecturing position from home.

(q) A full-time lecturer would spend 21 hours a week lecturing, which is over 50 percent.

(r) The lectures are not delivered remotely.

(s) The lectures are delivered in a classroom, face-to-face and onsite assessments are held at a company’s premises.

(t) Of the 36 units within the qualification, about 12 of them are theory units. The majority of units contain a practical component.

(u) The practical units are delivered face-to-face in the workshop on campus.

(v) Depending on the unit, the practical component could comprise 30 to 70 percent of the unit.

(w) If Mr Mills was permitted to work from home, he could not complete the lecturing and practical components of the job, and someone else would have to be brought in to cover those components.

36      Under cross-examination, Mr Thom’s evidence was that:

(a) It is up to the lecturer to decide if they are going to be doing any overtime or not, as the working of overtime is completely optional. If a lecturer indicates that they are not prepared to work overtime, they are not scheduled to work any overtime hours. If a lecturer indicates they are willing to work overtime, TAFE will put on extra classes. If not, TAFE will not schedule extra classes.

(b) Overtime is paid at penalty rates.

(c) No lecturers work remotely. Some out of campus staff work off campus to do their administration and marketing.

(d) Following COVID‑19 and the restrictions imposed, there is some movement within TAFE for some areas, such as administration, human resources, and business development, to encourage remote working. This is not the case with lecturing and face-to-face delivery.

(e) TAFE does not have the capability for remote lecturing. TAFE trialled remote learning with Blackboard and discovered that they 100 percent needed the lecturer in front of the students.

Considerations

37      Mr Mills submits that in determining the Application, the Commission is to make an objective assessment as to whether TAFE exercised its legal right to terminate so harshly or oppressively as to amount to an abuse of that right: Miles v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385 (Undercliffe).

38      This involves a consideration as to whether Mr Mills received ‘less than a fair deal’ and whether there has been ‘a fair go all around’. Mr Mills accepts that he bears the onus of establishing that the dismissal was, in all the circumstances, unfair within the principles set out in Undercliffe.

39      Mr Mills submits that as he was summarily dismissed for misconduct, TAFE bears the evidential onus of proving that the alleged incident or conduct occurred and that the conduct was a valid basis for dismissal: Newmont Australia Ltd v The Australian Workers Union, Western Australian Branch, Industrial Union of Workers (1988) 68 WAIG 677 (Newmont).

40      Mr Mills relies upon the cases of Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 3635 (Bogunovich) at 3645 and Shire of Esperance v Mouritz (1991) 71 WAIG 891 as authorities for the submission that the failure by TAFE to adopt a fair procedure renders his dismissal unfair.

41      Mr Mills also relies upon Minister for Health v Drake-Brockman [2012] WAIRC 00150; (2012) 92 WAIG 203 (Drake-Brockman) at 224, citing the principles enunciated in Sangwin v Imogen Pty Ltd [1996] IRCA 100 (Sangwin) and Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224 (Bi-Lo), that in cases of misconduct a full and extensive investigation by an employer is to be conducted.

42      It is not in dispute that the Education Worker (Restrictions on Access) Directions issued under the Public Health Act 2016 (WA) (Public Health Direction) were the genesis of the Employer Direction.

43      The Public Health Direction was issued on 29 November 2021 at 16.05 hours. The Employer Direction which issued on 7 December 2021 cites Public Health Direction (No 2), which issued on 2 December 2021 at 14.17 hours.

44      Both Public Health Direction and Public Health Direction (No 2) restrict an education worker from entering or remaining at an education facility if the education worker has not been partially vaccinated against COVID‑19 by 1 January 2022 and fully vaccinated against COVID‑19 by 31 January 2022, unless the worker has an exemption from being vaccinated against COVID‑19.   

45      The penalties for failing, without reasonable excuse, to comply with the Public Health Direction is a fine of up to $20,000 for individuals and $100,000 for bodies corporate.

46      Mr Mills accepts the Employer Direction was lawful, and that by not complying with the Employer Direction, he committed a disciplinary breach.

47      Mr Mills maintains that, notwithstanding his disciplinary breach, dismissal was unnecessary as TAFE could have approved either his request for leave or his request for remote work.

48      It is undisputed that Mr Mills first mentioned his asthma to Mr Thom in 2020, and in February 2021, he unsuccessfully applied to reduce work hours to 0.70 FTE. However, Mr Thom approved a 0.71 FTE reduction starting 2 August 2021.

49      Despite this reduction, Mr Mills says he worked two hours of overtime each week. Whilst he conceded that working overtime was voluntary, the inference is that his hours of work impacted his health and he requested six months leave without pay, and six months leave with pay, because of his asthma. Mr Mills contends that TAFE should have granted his leave requests.

50      TAFE argues that Mr Mills’ case represents an employee’s refusal to receive the COVID‑19 vaccine, violating a lawful and reasonable employer direction on vaccination. TAFE posits that Mr Mills’ claims about asthma as the reason for seeking leave further complicates the matter, asserting that he sought leave to avoid vaccination by distancing himself from the workplace. TAFE maintains that if asthma were the true reason, Mr Mills failed to provide sufficient evidence supporting his requests.

51      Mr Mills refutes the claim that he sought leave to avoid receiving the COVID‑19 vaccine. Instead, he reiterates that his requests for leave and subsequent remote work request were driven by health concerns related to his asthma. 

52      Having reviewed the evidence and observed the witnesses, I make the following findings:

(a) Mr Mills submitted requests for leave and remote work in order to avoid the workplace, as being present would have necessitated COVID‑19 vaccination, which he had no intention of receiving.

(b) Where there are differences between the evidence given by Mr Mills and Mr Thom, I prefer the evidence of Mr Thom.

(c) I accept in full the evidence of Mr Andrews, Mr Brindley and Mr Wellington. However, nothing turns on Mr Brindley's evidence as he acquired a medical exemption from the COVID‑19 vaccine and, therefore, did not breach the Employer Direction. Similarly, nothing turns on Mr Andrews’ evidence regarding working alongside an unvaccinated lecturer with a medical exemption from the COVID‑19 vaccine.

53      Despite Mr Mills denying during cross-examination that his request for leave and remote work was to avoid the COVID‑19 vaccine, I do not find his denial substantiated by the additional evidence provided or consistent with the correspondence for the following reasons.

54      Mr Mills gave evidence that, based on the correspondence he received, media information, and conversations with others, he knew TAFE would mandate COVID‑19 vaccination.

55      Evidence indicates that Mr Mills would have been aware of the forthcoming Employer Direction no later than 22 November 2021, when TAFE emailed all staff mentioning the Premier's announcement of the ‘COVID‑19 mandatory vaccination policy for WA workforces' on 20 October 2021. The email also underscored that the Public Direction would be published and apply to all TAFE employees, stipulating that affected staff should be partially vaccinated by 31 December 2021 and fully vaccinated by 31 January 2022. The email emphasised that non-compliance may lead to disciplinary action, ranging from reprimand to dismissal.

56      Mr Mills’ evidence was that he was concerned about getting the COVID‑19 vaccination. He thought the vaccine would affect his underlying asthmatic condition. He thought that he would ‘get a lot sicker’. He was ‘scared that [he] would get a lot sick[er]’. His evidence was that he decided to ‘look at options’ and ‘hold off as long as I could’, which I understood to mean he would hold off from getting the vaccine for as long as he could.

57      Mr Mills gave evidence that, as of the date of the hearing, he remained unvaccinated against COVID‑19.

58      Mr Mills did not provide any evidence, either in support of his requests to TAFE for leave of absence and remote work or in support of the Application, to corroborate his stated reason, namely his asthma.

59      Mr Mills gave evidence that he attempted to obtain a medical exemption from the COVID‑19 vaccine but failed to secure one. He submitted a medical certificate dated 22 November 2021, declaring him unfit for work from 22 November 2021 to 13 December 2021. This certificate, however, did not cover the remaining work period, although the subsequent week involved no student contact. Mr Mills did not provide any medical certificates, reports, or other evidence to support his need for a 6-month absence in 2022 or working from home due to asthma.

60      On 24 January 2022, Mr Mills emailed Mr Thom requesting to work remotely from home as per paragraph 6 of the Guidelines. By that time, he had been notified that his request for six months of leave without pay had been rejected, while he received no response regarding his request for paid leave. There is no evidence that TAFE replied to this request, nor did Mr Mills provide any evidence of pursuing the matter after 2021.

61      From 24 January 2022, evidence suggests that Mr Mills ceased pursuing his leave requests, but opted for a different approach, conveyed through the email to Mr Thom, to work from home. However, aside from sending the email, Mr Mills did not submit a formal application to work remotely, request an FHA according to the Agreement, or provide medical or other evidence to substantiate his reasons for the work from home request.

62      Mr Mills’ assertion that his requests for leave and remote work were due to his asthma rather than avoiding COVID‑19 vaccination is also inconsistent with the statements presented in the correspondence.

63      The email from Mr Mills’ wife sent on 21 February 2022 states:

I am writing to you all to express me utter disgust at your treatment of not just by husband David Mills but all of your staff who have chosen not to follow your unlawful vaccination mandate.

64      Whilst the email refers to TAFE placing Mr Mills under stress ‘in the last few weeks’, the email does not reference asthma. Rather, the email states that Mr Mills has ‘chosen’ not to get the COVID‑19 vaccine.

65      The email Mr Mills sent on 3 March 2022 states:

I formally advise, as I have done consistently over the last few weeks that I have a medical condition which compromises my health and I am extremely concerned that any experimental poison, which has not been adequately trialled and has been mandated by our state and not federal government, would significantly impact my long-term health.

66      In the email, Mr Mills reiterates the request made to Mr Thom on 24 January 2022, stating, ‘Due to my health issues which have arisen from working at Naval Base, I would like to be considered under compassionate grounds to be able to work remotely from home as per Paragraph 6’ of the Guidelines. The email states, ‘I would be available to assist with online classes, unit development to keep them current, validated and moderated and any other duties that can be performed remotely. I would also be happy to reduce my hours from 0.75 to 0.5.’

67      Although Mr Mills mentions a ‘medical condition’, the primary focus of his statement is concern about the potential long-term health impact of the COVID‑19 vaccine. This evidence supports TAFE's argument that Mr Mills’ request to work remotely was not grounded in his asthma but instead sought to avoid the requirement to receive the COVID‑19 vaccine.

68      The remainder of the email, spanning over one-and-a-half pages, concentrates on the effectiveness of the COVID‑19 vaccine, raises questions about Mr Mills’ valid consent for vaccination, and disputes TAFE's authority to mandate COVID‑19 vaccination. The email states, ‘I do not believe that the TAFE have satisfied the above conditions and therefore do not believe there is sufficient ground to force this vaccine on me.’ 

69      The primary focus of the email's remainder is Mr Mills’ reluctance to receive the COVID‑19 vaccine and his challenge to TAFE's capacity to ‘force’ the vaccine on him.

70      Absent an approved Personal Leave Without Pay arrangement under clause 48.4 of the Agreement, Mr Mills has no entitlement to take extended leave in the circumstances. Absent an approved FHA under the Agreement, or an approved working from home arrangement under the Policy initiated through the Working from Home OSH & Security Assessment Form, he has no entitlement to work from home.

71      In the absence of an entitlement, the issue to be resolved is whether TAFE's denial of Mr Mills’ request for leave or remote work was unreasonable under the circumstances.

72      I am satisfied that TAFE’s refusal was not unreasonable for the following reasons.

73      Regarding the request for six months of leave, Mr Mills failed to provide any medical evidence supporting his asthma claim that might warrant his request. The evidence indicates he pursued a medical exemption from the COVID‑19 vaccine but was unsuccessful, implying that his condition does not satisfy the criteria for a valid medical exemption.

74      Regarding the request to work from home, an employer has a right to decide where its work is performed. So long as an employer’s decisions are not unlawfully discriminatory, whilst an employer should give consideration to requests to work from home, it does not have to accede to them: Kazantzis [87].

75      In Gee v WA Country Health Services [2022] WAIRC 00224; (2022) 102 WAIG 400 (Gee) [96], the Public Service Appeal Board found the WA Country Health Services’ COVID-19 Mandatory Vaccination - Employee restrictions on Access to Health Care Facilities – Guidelines (WACHS Guidelines) provided WA Country Health Services (WACHS) with a discretion to facilitate remote working on an interim basis where operationally viable.

76      The Board found the WACHS Guidelines are not mandatory but are for the purpose of supporting the implementation of the Department of Health’s COVID‑19 Mandatory Vaccination and Vaccination Program Policy (Departmental Policy) which mandated the requirement for all employees of WA health system entities to be vaccinated against COVID‑19, including being administered a booster vaccination, unless the employee is an exempt person: Gee [96].

77      The Board found the Departmental Policy made it mandatory for employees to be vaccinated, regardless of whether they worked from home or not: Gee [95]. The Board found the WACHS Guidelines do not establish a right on Mr Gee’s part to be permitted to work remotely and not be vaccinated.

78      The Board found that Mr Gee’s submission, that he could continue to work from home, was either a best case scenario or it was based on Mr Gee’s interests alone without balancing the needs of WACHS’ business and Mr Gee’s co-workers: Gee [94]. The Board found that for WACHS to have done what Mr Gee expected it to do, namely to allow Mr Gee to continue to work from home, would likely require WACHS to contravene Part 6 of the WACHS Guidelines which requires the WACHS to take into consideration operational requirements, leave liability and fairness and equity for employees.

79      Mr Mills acknowledges that the Guidelines serve as guidance only, however he argues that TAFE should have considered them when evaluating whether he could work remotely. He submits that TAFE disregarded the Guidelines, asserting that the matter of his dismissal was predetermined.

80      Paragraph 6 of the Guidelines sets out that the Managing Director has the discretion to consider temporary arrangements for unvaccinated employees in ‘exceptional circumstances’ and that the temporary arrangements may include ‘working remotely or access to accrued leave or leave without pay.’

81      TAFE contends that Mr Mills failed to present exceptional circumstances warranting approval for remote work under the Guidelines. Similar to his six-month leave request, Mr Mills did not provide any medical evidence supporting his asthma claim, which could justify his request for remote work and prompt the Managing Director to exercise discretion in granting a temporary work from home arrangement.

82      Paragraph 6 of the Guidelines sets out that in exercising the discretion, the ‘Managing Director will consider the workload and other implications for the vaccinated workforce when deciding whether it is reasonable to facilitate temporary arrangements for unvaccinated employees.’

83      Paragraph 6 of the Guidelines sets out that TAFE ‘is not expected to incur extra costs in managing unvaccinated employees.’

84      The evidence of Mr Thom indicates that no lecturers work remotely, and Mr Mills would be unable to perform the lecturing and practical aspects of his role from home. Consequently, TAFE would need to hire another individual to cover the lecturing and practical components of Mr Mills’ position.

85      This means the granting of a temporary arrangement to Mr Mills would result in extra costs to TAFE, and therefore the Guidelines make clear that this is a situation where a request may be denied.

86      Further, TAFE relies upon the Policy, which expressly states, ‘Working from home is not a right or entitlement’ and ‘Any consideration to work from home needs to demonstrate that the operational and efficiency requirements of the business area can be met and sustained’. The Policy states, ‘Home-based employment is not suitable for jobs that: require direct face to face contact with other staff or students.’

87      Similar to Kazantzis [90], the evidence does not support a finding that Mr Mills could have continued effectively in his role working exclusively from home.

88      I accept the evidence of Mr Mills and Mr Andrews that some of Mr Mills’ duties could be performed from home, including ‘Recognition of Prior Learning’ and ‘Development and maintenance of educational/training programs and learning resources’. I also accept the unchallenged evidence of Mr Thom, that Mr Mills could not complete the lecturing and practical components of his job from home, and that the practical component of a unit could comprise 30 to 70 percent of the unit.

89      The evidence of Mr Andrews and Mr Thom is that no lecturer has been permitted to work from home 100 percent of the time.

90      According to Mr Mills’ evidence, a lecturer working an 8-hour day would spend 4 hours in the classroom and 4 hours in the workshop, both of which are located on campus.

91      Mr Mills’ evidence was that 40 percent of his role involves lecturing, which is delivered on campus. Mr Thom’s evidence was that a full-time lecturer would spend 21 hours a week lecturing, which is over 50 percent of the time.

92      Mr Andrews’ evidence was that a lecturer is employed to do the full duties of a lecturer, which requires attendance on campus, as a lecturer cannot lecture from home.

93      Based on the evidence, I find that an inherent requirement of Mr Mills’ responsibilities as a trade lecturer involves in-person instruction and demonstration, requiring his presence on campus.

94      TAFE maintains that Mr Mills’ non-compliance with the Employer Direction, given that it prevents him from fulfilling the essential core duties of his role, constitutes a serious disciplinary breach justifying dismissal.

95      TAFE submits that the breach is serious because, like the employees in Kazantzis and Stevens, Mr Mills made a choice to not get vaccinated, which meant he was unable to perform the inherent requirements of his role.

96      I find that Mr Mills’ failure to comply with the Employer Direction meant Mr Mills was unable to perform the inherent requirements of the role he was employed to perform. His conduct in failing to comply with the Employer Direction was inconsistent with the continuation of his employment: Heller-Bhatt v Director General, Department of Communities [2022] WAIRC 00719; (2022) 102 WAIG 1457 [108]. Therefore, I find that TAFE have satisfied the onus of establishing Mr Mills’ non-compliance with the Employer Direction, which he accepts constituted a disciplinary breach, was a valid basis for dismissal: Drake-Brockman [66].

97      Mr Mills contends that TAFE did not conduct a full and extensive investigation such as to render his dismissal unfair.

98      I find the dismissal occurred in the following circumstances:

(a) TAFE notified Mr Mills via email to all employees on 22 November 2022 that the Public Health Direction was imminent and therefore TAFE proposes, separately to the Public Health Direction, to direct employees to be partially vaccinated against COVID‑19 before 31 December 2021 and fully vaccinated against COVID‑19 before 31 January 2022. The email states, ‘If an affected employee is not vaccinated by the relevant dates this may be addressed as a disciplinary matter. Disciplinary action can range from reprimand to dismissal.’

(b) TAFE issued the Employer Direction on 7 December 2021. The Employer Direction states, ‘Failure to comply with this employer direction is a breach of discipline which may result in disciplinary action. The outcome of such disciplinary action may vary from a reprimand to dismissal.’

(c) TAFE wrote to Mr Mills on 25 January 2022 to advise that he was identified as a person who is not partly vaccinated and/or has not provided evidence of their vaccination status in accordance with the Employer Direction.

(d) TAFE wrote to Mr Mills on 9 February 2022 to advise that records indicate that he has not met the requirements of the Employer Direction, and has decided to commence a disciplinary process pursuant to section 81(1)(a) of the Public Sector Management Act 1994 (PSM Act). The letter states, ‘If the allegation against you is substantiated, it may constitute a breach of discipline under section 80 of the PSM Act in that you disobeyed or disregarded a lawful order (section 80(a)).’ The letter also states, ‘You are encouraged to provide an email response to the allegation within 10 days of the date of this letter.’

(e) Further to the letter dated 9 February 2022, TAFE wrote to Mr Mills on 24 February 2022. The letter thanked Mr Mills for his response dated 21 February 2022, and notified him that:

I have considered your response and determined that you have failed to provide South Metropolitan TAFE (the College) evidence that you have either been vaccinated against COVID-19 or have an exemption under the Education Worker (Restrictions on Access) Directions (No 4) (the Directions). The College has provided information, support and a reasonable opportunity for you to rectify the situation. Accordingly, I find you have committed a breach of discipline as described in section 80 of the PSM Act by:

• disobeying or disregarding the Managing Director’s lawful order of 7 December 2021 

(f) The letter states:

On the above basis, you have failed to comply with a lawful and reasonable direction that fundamentally prevents the College from continuing to employ you. I therefore consider this is a serious breach of discipline and I propose to recommend to the Managing Director that you are dismissed.

Pursuant to the Public Sector Commissioner’s Instruction No. 3 – Discipline – General, I am now affording you the opportunity to provide a response to my proposed penalty of dismissal for committing the breach of discipline. Providing a response is not compulsory and is entirely at your discretion.

(g) The letter also states, ‘I respect that the decision to be vaccinated or not is personal to you. I also understand that in considering the current Government requirements and the employment consequences of this decision, your choice may be difficult.’

(h) Mr Mills’ response dated 3 March 2022 is set out in full above.

(i) TAFE notified Mr Mills of his dismissal by letter dated 10 March 2022. The letter states:

I have carefully considered the response you have provided to the aforementioned letter which proposed the penalty of dismissal. An array of comprehensive and informative communications from the College has sought to assist and support you in complying with the Directions. I do not accept the arguments you have put forward concerning your vaccination status.

Vaccinations have been identified as being highly effective in reducing the risk of serious illness, hospitalisation and death from COVID‑19 whilst also reducing the rate of transmission between people.

If unvaccinated employees, not subject to an approved exemption, were allowed to enter the workplace, both you and I would be in breach of the legally enforceable Directions and my obligation to provide a safe workplace.

It is necessary for you to meet the vaccination requirements contained in the Directions to discharge the duties of your position. Therefore, the requirement that you provide evidence that you are vaccinated (or an exempt person) is not unreasonable.

Your failure to comply with my lawful and reasonable order prevents South Metropolitan TAFE from continuing to employ you.

For this reason, I have determined to impose a penalty of dismissal pursuant to section 82A of the Public Sector Management Act 1994 effective from the date of receipt of this letter.

99      In the circumstances identified in the preceding paragraph, I do not consider it can be said that TAFE did not carry out the task ‘to obtain credible relevant and significant evidence that addressed whether the respondent had committed an act or acts or [sic] misconduct’, nor can it be said that Mr Mills was not ‘given an adequate opportunity to answer all adverse information that was relevant to the allegations of misconduct’: Drake-Brockman [115].

100   It cannot be said that Mr Mills was not ‘given as detailed particulars of the allegations as against him/her as is possible, an opportunity to be heard in respect of such allegations, and a chance to bring forward any witnesses he/she may wish to answer those allegations’: Bi-Lo at 230.

101   Unlike Sangwin at 30 I do not find that the approach adopted by TAFE to be ‘confrontational’ and to have ‘moved rapidly from the accusation to the announcement that the applicant was dismissed’, such that Mr Mills was not given ‘time to reflect on the allegation, to seek advice’, or as may have been availed in this matter, for him to seek supporting statements or other evidence, medical or otherwise, to support his reason for non-compliance with the Employer Direction.

102   In circumstances where Mr Mills did not provide any medical or other evidence to support his reason for non-compliance with the Employer Direction, I find that TAFE acted fairly and reasonably in the circumstances and gathered relevant information that is critical to the issue whether the alleged conduct occurred; TAFE were ‘not bound to investigate every avenue’ that may have been suggested by Mr Mills: Drake-Brockman [109].

103   Unlike the employer in Sangwin, I find no basis for a conclusion that TAFE prejudged the issue and failed to conduct a proper investigation and inquiry.

104   On the contrary, I find that Mr Mills was given an adequate opportunity to answer adverse information that was credible, relevant and significant to the issues whether he committed misconduct and whether he should be dismissed. I find Mr Mills was provided with procedural fairness, as part of the obligation, when TAFE instituted disciplinary action, to give him a fair go: Drake-Brockman [113].

105   For the preceding reasons, I find Mr Mills was given fair and specific warning that he risked dismissal and was given an opportunity to respond: Bogunavich at 3645.

106   I find Mr Mills to have been afforded both substantive and procedural fairness in relation to the dismissal: Bi‑Lo at 229.

107   The parties agreed that the Employer Direction was revoked on 10 June 2022. TAFE submitted that this meant that any order for reinstatement, or compensation, would need to take into account that Mr Mills, who had remained unvaccinated as at the date of the hearing, could not have rendered service to TAFE in the period before 10 June 2022.

108   The evidence was that Mr Mills had worked for TAFE for 13 to 14 years, and TAFE submitted he was ‘a good worker, great lecturer, there’s no criticism about his work.’ TAFE submitted that ‘this is not about performance, he's a good performer’.

109   Mr Mills’ failure to comply with the Employer Direction meant he was unable to perform the inherent requirements of his position. His inability to perform his position would have persisted until the Employer Direction was revoked, which the parties agreed occurred three months after the dismissal. Therefore, despite the mitigating factors, I find that dismissal was a proportionate response in all the circumstances.

110   For the proceeding reasons, I am satisfied that TAFE did not exercise its legal right to dismiss so harshly or oppressively as to amount to an abuse of that right: Undercliffe.

111   I am therefore satisfied that Mr Mills has not discharged the onus upon him to establish that his dismissal was harsh, oppressive or unfair. 

Conclusion

112   For the preceding reasons, I am not persuaded that Mr Mills has established his claim that he was unfairly dismissed.

113   Accordingly, application U 53 of 2021 will be dismissed.