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Public Service Appeal Board dismisses appeal seeking reinstatement of a pharmacist under investigation who made an undertaking not to practise as a pharmacist

The Public Service Appeal Board (Board) has upheld an application to dismiss the appeal of pharmacist seeking reinstatement to a pharmacy role but who undertook not to work in such a role.

Background

The appellant was employed as a pharmacist by the respondent and previously worked for the respondent in a different role. The respondent suspended the appellant without pay as the appellant had been charged with a serious offence, and several years later the appellant was dismissed. The appellant appealed their dismissal to the Board. The respondent applied to the Board under s 27(1)(a) of the Industrial Relations Act 1979 (WA) (IR Act) for an order dismissing the application.

Contentions

The appellant contended in his appeal that the respondent did not have the authority to dismiss him under s 150 of the Health Services Act 2016 (WA) (HS Act) as, although he pleaded guilty to the criminal charges, he was not convicted of a serious offence.  In the alternative, the appellant contended that he was denied procedural fairness. The appellant sought reinstatement or for the respondent to consider viable alternative roles.

The respondent contended that if successful, the only remedy available to the appellant would be for the Board under s 80I(1) of the IR Act to adjust the decision to dismiss him. The respondent argued that quashing a decision to dismiss results in the reinstatement of an employee. The appellant, however, had given the Australian Health Practitioner Regulation Agency (AHPRA) an undertaking that meant the appellant could not lawfully perform his original position. The respondent contended that the undertaking prevented the appellant from performing all or at least the core duties of his role for an indefinite period. The respondent contended that reinstating the appellant into a role he could not perform would not be consistent with the Board’s obligations under s 26(1)(a) of the IR Act.

In opposing the respondent’s application, the appellant contended that his appeal should be allowed to proceed but be stayed until the resolution of the criminal matters. The appellant contended that the undertaking only prevented him from working as a pharmacist and not in other roles or performing non-pharmacist duties while employed in the pharmacist role. The appellant contended that dismissing the appeal would set an unfair precedent allowing employers to dismiss AHPRA registered practitioners who had made an undertaking not to practice before AHPRA’s investigations conclude, and such practitioners would have no right of appeal. The appellant contended that it was open to the Board to quash the decision to dismiss, as the respondent had demonstrated it considered it reasonable to maintain a suspended employee in their role for an extended duration of time.

The parties agreed that it was not open for the Board to adjust the decision in a way to require the appellant to be employed in another position or provide him with other duties.

Findings

The Board accepted the respondent’s submissions and partially accepted the appellants submissions, noting that some of the appellant’s submissions were not relevant or did not support his case.

The Board noted that the undertaking prevented the appellant from performing the pharmacist role and there was no evidence or argument to suggest that it would be removed. The Board noted it was common ground that the Board had the power to adjust an employer’s decision to dismiss.

The Board noted that although the appellant seeks reinstatement and asks the Board to quash the respondent’s decision to dismiss, the question of whether the Board has the power to adjust the decision to dismiss in some other way did not arise in this case.

The Board noted that quashing the respondent’s decision to dismiss the appellant would be impracticable because it would result in the appellant being reinstated to a role he could not perform due to the undertaking. The Board noted that the appellant accepted that the Board could not order the respondent to employ him in a different role or to do other duties, but that the appellant’s argument was premised on the respondent voluntarily offering to do so. The Board considered that it should not make an order quashing the decision to dismiss and to reinstate the appellant to a position he cannot perform, in the hope of that voluntary offer.

The Board considered that hearing the matter in the circumstances would be contrary to the Board’s obligation under s 26(1)(a) of the IR Act. The Board upheld the respondent’s application and ordered that the appeal be dismissed.

The decision can be read here.

Public Service Appeal Board refuses to grant extension to out of time application for an appeal

The Public Service Appeal Board (Appeal Board) has dismissed an appellant’s application to grant an extension of time within which to appeal in relation to an appeal that was out of time.

Background

The appellant was employed by the respondent until being terminated because of a failure to provide evidence of COVID-19 vaccination. An association or company trading under the name ‘Independent Workers’ Union of Australia’ (IWUA) purported to file an appeal to the Appeal Board against the termination decision on the appellant’s behalf. The appeal was out of time, as it was outside the period of 21 days after the date of the decision appealed against, in accordance with reg 107(2) of the Industrial Relations Commission Regulations 2005 (WA) (IRC Regulations). The appellant applied for an extension of time.

Contentions

The appellant contended the reason for the delay was the errors of the IWUA and that they acted on the IWUA’s incorrect advice. The appellant’s submissions referred to the IWUA as their union. The appellant submitted that two cases relating to vaccination requirements under way in the Supreme Court of Western Australia were of relevance to the merits of the appeal.

Findings

The Appeal Board noted, with supporting case law, that it has the power pursuant to 27(1)(n) of the Industrial Relations Act 1979 (WA) (IR Act) to extend the prescribed time in which to institute an appeal.

The Board considered Nicholas v Department of Education and Training [2008] WAIRC 01645; (2008) 89 WAIG 817, which applied principles from various other authorities. The Appeal Board noted that these authorities set out four main but not necessarily exhaustive factors; the length of the delay; the reasons for the delay; the prospects of the applicant in succeeding in the appeal; and the extent of any prejudice to the respondent. The Appeal Board noted it was for the appellant to demonstrate that strict compliance with the legislation will work an injustice and be unfair in all the circumstances.

The Appeal Board noted that IWUA representatives provided incorrect advice to the appellant regarding the appeal on four occasions. The Appeal Board noted that neither the IWUA nor the incorporated association that held IWUA, were registered organisations of employees under the IR Act. The Appeal Board accordingly found that the IWUA did not have standing or any right to represent the appellant in this jurisdiction. The Appeal Board accepted that the appellant relied on the incorrect advice of the IWUA, considered the principles relating to representative error and noted that this was not an adequate explanation of the delay. However, it noted that in the circumstances, it was unreasonable to accept and rely on the IWUA’s advice.

The Appeal Board considered prejudice to the respondent and the appeal’s prospects of success and noted that the appellant’s submissions did not demonstrate that the merits of the appeal should weigh in favour of a grant of extension. The Appeal Board considered that while there was an explanation for the delay, which was not lengthy, the appellant had not shown that the interests of justice require an extension of time to appeal be granted. The Appeal Board noted that all other facts were neutral or slight either away and ultimately, did not detract from the Appeal Board’s sense that the requirements of justice in the situation did not warrant an extension. The application was dismissed.

The decision can be read here.

Work Health Safety Tribunal dismisses applicant’s discovery application and upholds respondent’s discovery application

The Work Health Safety Tribunal has dismissed an applicant’s application for discovery of documents in a dispute but has required the applicant to discover documents requested by the respondent, finding that the documents sought by the respondent were necessary and relevant, while the documents sought by the applicant were not.

Background

The applicant was employed by the respondent when the  WA Chief Health Officer’s Education Worker (Restrictions on Access) Directions (No. 4), and the Entry Restrictions No. 1 to an Education Facility COVID-19 Vaccination Requirement came into effect. The respondent informed the applicant that he would be stood down without pay as the applicant was not vaccinated and therefore unable to work as he could not enter the workplace.

The applicant made an application under s 26(1) of the Occupational Safety and Health Act 1984 (WA) (OSH Act) for pay and benefits to which they would have been entitled to had he not refused to work under s 26(1) of the OSH Act, on the grounds that as he believed that to continue work would expose him to a risk of imminent and serious injury or imminent and serious harm to their health.

The parties each filed a discovery in relation to the matter. 

Contentions

The applicant’s discovery application sought 45 categories of documents that the applicant contended were relevant for 13 broad reasons.  The respondent’s discovery application sought an order that the applicant discover all correspondence between the applicant and WorkSafe Western Australia (WorkSafe WA) relating to the application made by the applicant under s 25 of the OSH Act. The respondent contended these were relevant due to the WorkSafe WA Application being in relation to the respondent’s mandatory vaccination policy

Findings

The Tribunal noted that 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. Further, the Tribunal noted that s 27 of the IR Act applies to the exercise of the jurisdiction of the Tribunal per cl 29 of Schedule 1 of the Work Health and Safety Act 2020 (WA).

The Tribunal considered the legal principles and authorities relating to discovery, including that 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. The Tribunal noted that under common law it must consider whether the documents relate to the matter in question, and if so, would it be just to order discovery.

The Tribunal noted that the documents sought by the respondent were necessary to resolve the matters in dispute. The Tribunal further noted these documents may be relevant to the applicant’s belief about the risk of imminent and serious injury or harm due to mandatory vaccination at the time the applicant formed the belief and purported to refuse to work because of the belief. It was noted by the Tribunal that this may be relevant to the reasonableness of the applicant’s belief. The Tribunal found that the respondent’s requested documents were discoverable.

The Tribunal found that almost all the documents sought by the applicant were not relevant to the main issues in these proceedings, being what the applicant did, and what he believed.. The Tribunal noted that some categories of documents were premature to order discovery of, and that if the applicant later establishes certain matters, then the Tribunal will hear from the parties about whether these categories should be discovered. The Tribunal noted the document’s sought by the applicant did not relate to the matter in question, were not necessary for the fair disposal of the case and it would not be just for the order sought to be made.

The Tribunal issued an order to dismiss the applicant’s discovery application and to require the applicant  within 14 days, to discover the correspondence sought in the respondent’s application.

The decision can be read here.

Public Service Appeal Board grants application for witness examination before appeal hearing

The Public Service Appeal Board (Board) has granted an application for examination of a witness before the hearing of an appeal, considering that this be in the interests of justice.

Background

The respondent sought an order for the examination of a witness prior to the commencement of an appeal hearing. The listing dates for the appeal hearing had been vacated on two prior occasions. At an undetermined point in time, the witness requiring examination had booked a holiday and had leave approved for dates that included the new listing dates. The respondent was the employer of the witness, and the leave sought by the witness was approved.

Contentions

The respondent contended that the witness would be overseas on the hearing dates. The respondent’s application was supported by affidavits confirming that the witness was available for the earlier listing date but that the witness would be overseas on the new listing date.

The appellant contended that the witness and respondent were aware of the hearing dates before leave was approved and flights were booked; that the application inadequately explained events surrounding this; and that it was open to conclude the application was made to accommodate the witness’s desire not to be inconvenienced. Further, the appellant contended that the order would inconvenience the Board and the parties’ respective legal teams, could deprive them of preparation time, and result in the matter having to be part-heard. The appellant contended that the travel arrangements were made without securing permission to be absent from duty.

Findings

The Board noted s 80L and s 27(1)(o) of the Industrial Relations Act 1979 (WA) empowers the Board to make an order for the examination of a witness, and that the purpose of the discretion do so is to enable the just and expeditious hearing and determination of an appeal. The Board noted it was not required to investigate whether more could be done by the respondent to secure attendance of the witness or the choices the witness made about their involvement in proceedings, and reiterated that the exercise of its discretion was not for the purpose of punishing parties or witnesses for their conduct in the proceedings.

The Board noted that the primary question is whether the interests of justice will be served by granting the order sought. The Board considered the legal authorities and principles relating to the discretion to examine witnesses to show it is conventional and uncontroversial to use where witnesses are going ‘abroad’ and extends to all cases necessary for the purposes of justice. The Board further considered s 120 and 121 of the Evidence Act 1906 (WA) and weighed giving evidence by audio-video link against considerations such as a satisfactory connection and whether evidence ought to be given in person.

The Board noted that ordinarily it was enough for a party to show to the satisfaction of the tribunal that a witness is out of the jurisdiction; that their evidence is material; and that the party cannot procure it for the order to be made. The Board was satisfied this was the case and that the interests of justice would be served by granting the order. The application was upheld, and orders issued for the early examination to occur and for video and audio recording to take place.

The decision can be read here.

Commission orders the payment of unpaid invoices after worker found to be employee

The Commission has issued an order that an employer pay the balance of outstanding invoices, finding that the worker was an employee and not a contractor, and that the Commission had jurisdiction to hear the claim.

Background

The applicant was engaged as a truck driver from February 2021 to June 2021, working for the respondent across multiple locations. The applicant would be paid after providing the respondent with invoices.t. After the applicant contacted the respondent regarding invoices that were unpaid, the respondent asked the applicant to leave their work accommodation and stopped providing the applicant with work. The respondent did not reimburse the applicant for an invoice in relation to returning home from their work location.

The applicant commenced a denial of contractual benefit claim in the Commission to recover the amount unpaid on the invoices.

Contentions

The applicant contended that the respondent owed them an amount arising out of a contract of employment between the two parties, and that they were dismissed after contacting the respondent regarding these amounts. In relation to being an employee, the applicant contended that the facts of this case varied to the recent High Court decisions of Construction, Forestry, Maritime, Mining and Energy Union & Anor v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd & Anor v Martin Jamsek & Ors [2022] HCA 2  as there was no comprehensive written contract and provided evidence about the nature of the employment relationship.

The respondent contended that the applicant was a contractor and not an employee. Limited contact was made by the respondent with the Commission, and they did not make submissions or appear in proceedings.

Findings

The Commission noted that the contract between the parties was not comprehensive, and did not distinguish whether the applicant was an employee or contractor. The Commission considered the legal authorities and principles relating to characterisation of the work relationship and determined that the applicant was an employee and  was not carrying on a business of their own. The Commission noted particularly that the work undertaken by the applicant was integral to the respondent’s business and the respondent exercised a high degree of control over the applicant’s work.

The Commission determined that the benefits claimed by the applicant arose under the contract of employment. The Commission found that the applicant’s claim was an industrial matter under s 7 of the Industrial Relations Act 1979 (WA). The Commission issued a declaration and order requiring the respondent to pay the applicant the total unpaid amount of the invoices.

The decision can be read here.

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