The Public Service Appeal Board dismissed an employee’s claim for the payment of salary during a period in which the employee was not attending work because it did not have jurisdiction.

The Public Service Appeal Board found that the employer’s decision not to grant the employee’s work from home request and subsequently not pay the employee during the period he did not attend work, but wished to work from home, was not a decision to suspend him without pay under s 82 of the Public Sector Management Act 1994 (WA).

Background

On 24 December 2021, the Chief Health Officer issued the Booster Vaccination (Restrictions on Access) Directions (No 2), which, subject to certain exceptions, restricted ‘vaccination directed persons’ from entering and remaining at certain sites if they had not complied with booster vaccination requirements on and from 12.01 am on 5 February 2022.

On 20 January 2022, the Director‑General, Department of Health issued a further direction to Department employees, requiring that they receive a booster vaccination against COVID‑19, unless they have an exemption under the Booster Directions and provide evidence.

The respondent incorporated the directions into its policies.

On 1 March 2022, the applicant received a letter referring to the 20 January 2022 direction. The applicant received a further letter on 15 March 2022 in similar terms.

On 23 March 2022, the respondent formally confirmed that the applicant was prohibited from accessing facilities in connection with his employment from 29 March 2022, on the basis that he had not complied with the directions.

In response, the applicant requested to work from home temporarily, which the respondent denied on 29 March 2022.

On 13 April 2022, the applicant was advised by letter that he had allegedly committed a breach of discipline by failing to comply with the 20 January 2022 direction to receive a booster vaccination. The letter gave him the opportunity to respond by 27 April 2022, but made no mention of the applicant’s working arrangements, suspension or payment during the disciplinary process.

On 28 April 2022, the respondent informed the applicant by letter that the discipline process will cease because the applicant contracted COVID-19 on 16 April 2022 and qualified for an exemption.

On 3 June 2022, the respondent stated in an email to the applicant that from 13 April 2022 to 28 April 2022 he had been “placed on an Access Restriction Period (ARP) and during this period, be legally unable to attend your workplace and not paid”. Further, the respondent confirmed that disciplinary proceedings commenced at the conclusion of the Access Restriction Period in accordance with their guidelines (‘no work as directed, no pay’ principle).

Contention

The applicant contends his pay was wrongly withheld from 13 April 2022 to 28 April 2022.

The applicant’s Form 8B ‑ Notice of Appeal describes the decision he is appealing as being dated 3 June 2022. He refers to an email chain concerning ‘…my request to have my leave without pay reversed as per s82(5) of the PSMA 1994’. In the section about remedies, the applicant stated that he is seeking a “reversal of the withholding of salary. Reversal of automated leave without pay”.

The respondent submitted that none of the correspondence expresses that a decision was made to suspend the applicant without pay as part of the disciplinary process or under the PSMA.

The applicant disputed the respondent’s right to withhold pay under the ‘no work as directed, no pay’ principle. Essentially, he says that it was the respondent that precluded him from working and because he was able to work remotely, he remained willing and able to work. He says the principle does not apply when an employee tenders service but is prevented by the employer from working. He says the respondent’s refusal to permit him to work remotely had this effect because its guidelines allow approval to be given for employees to work from home. He had been working from home until that point. The respondent chose to withdraw further approval.

Findings

The Appeal Board dismissed the appeal because it found that it had no jurisdiction in this matter.

The applicant did not persuade the Appeal Board that, as a matter of fact, a decision was made by the respondent to suspend him without pay under s 82 of the PSMA. This is because the applicant’s exclusion from the workplace commenced before the disciplinary process started and independently of the disciplinary process.

The applicant’s grievance, in substance, concerns the respondent’s policies and guidelines and the refusal to permit him to work remotely. However, no appeal lies under s 78 of the PSMA from any of these kinds of decisions.

The Appeal Board found that it did not need to make any findings about whether or not the respondent was legally entitled to withhold the applicant’s pay.

The decision can be read here.

The Public Service Appeal Board dismissed an employee’s application for an extension of time to appeal against her employer’s decision to terminate her because she had committed two breaches of discipline by not being vaccinated against COVID-19 or having a medical exemption.

The Public Service Appeal Board dismissed an application to accept the appeal out of time because the employer took all reasonable steps to inform the appellant of the termination decision, despite the appellant denying that she knew of the decision. Thus, there was no adequate explanation for the significant delay of 36 days.

Background

The appellant was dismissed as a Level 2 Support Office for the Department of Justice on 21 June 2022, after the Director General found that she had committed two breaches of discipline by not being at least partially vaccinated against COVID-19, or providing evidence of a medical exemption, by 5 February 2022.

The respondent notified the appellant of the disciplinary process before 18 May 2022. On 18 May 2022, the appellant emailed a temporary medical exemption to the respondent but did not respond to the allegations of breach of discipline.

On 26 May 2022, the respondent sent the appellant a letter stating that the breach of discipline allegations were substantiated and dismissal was the proposed disciplinary action. On 21 June 2022, the respondent confirmed, by letter to the appellant, that she was dismissed with immediate effect. Such emails also stated that the respondent left the appellant voice messages on her phone.

On 25 July 2022, the appellant wrote to the respondent querying her return-to-work date. On 26 July 2022, the respondent emailed the appellant stating once again, in effect, that she had been dismissed.

The time to file an appeal expired on 12 July 2022 (21 days after the decision to dismiss). Thus, the appellant filed her appeal 57 days after the respondent dismissed her, which was a delay of 36 days.

Contention

The appellant sought an extension of time to file her appeal on the ground that the Director General did not provide her with information relating to her disciplinary proceedings until 9 June 2022, and she did not know that she had been dismissed until 26 July 2022.

The respondent opposed the extension of time, particularly as the Director General made several attempts to contact the appellant about the outcome of the disciplinary proceedings.

The factors considered when determining whether an appeal should be accepted out of time include:

1. the length of the delay;
2. the reasons for the delay;
3. the prospect of the appellant succeeding in the appeal; and
4. the extent of any prejudice to the respondent.

The respondent submitted that a 36-day delay is significant where the appeal period is 21 days.

 The reasons for the delay

The appellant stated that she did not know that she had been dismissed until the respondent’s email on 26 July 2023. She stated that she had not checked her emails for a month before 25 July 2022 and had not received any letters or voice messages. 

The respondent contended that there was no reasonable explanation for the delay, on the basis that it is implausible that the appellant had not checked her emails for a month unless she was attempting to avoid receiving a dismissal letter. Further, the respondent had taken contemporaneous notes regarding the attempted phone calls and voice messages left for the appellant. Thus, the Appeal Board should accept that the telephone calls were made.

Whether the appellant has an arguable case

The appellant maintained she had an arguable case because she held a valid medical exemption before and at the time of dismissal, which meant that her dismissal was unlawful and that it was harsh or disproportionate.

The respondent submitted that the appellant did not comply with the Employee Direction, only submitting a medical exemption three months after she was required to do so, on 18 May 2022.

The extent of any prejudice to the respondent

The respondent conceded that an extension would not create any particular prejudice, beyond that experienced by any respondent.

Findings

The Appeal Board dismissed the appeal because the appellant had no good reason for the delay and the delay was significant. Thus, it was not in accordance with equity and good conscience to extend the time for appeal.

The length of the delay

The Appeal Board considered the delay significant.

The reasons for the delay

The appellant did not provide a reasonable explanation for the delay.

The respondent attempted to ensure that the appellant was aware of and received the communication. The Appeal Board found that the respondent did everything reasonably necessary to communicate with the appellant. Further, the appellant was trying to avoid communication from the respondent.

Whether the appellant has an arguable case

Although the appellant’s Notice of Appeal did not expressly contend that the dismissal was harsh or disproportionate, taking the case at its highest, the Appeal Board considered that the case may be arguable.

The decision can be read here.

An employee was entitled to two months’ notice under the employment contract, having only received one week’s notice, and the equivalent monetary value of seven weeks’ notice was awarded.

The Commission ordered an employer to pay $22,884.62 to a former employee, after finding that the employee was entitled to seven weeks’ notice under their employment contract because the termination provision did not distinguish between a trial or probation period and ongoing employment and there was no ambiguity in the contract.

Background

The applicant commenced work with the respondent on 1 November 2021 as the General Manager. On 27 October 2021, the respondent sent the applicant a letter titled ‘Contract of Employment’, by which the respondent offered the applicant employment and set out the terms of the employment contract. Relevantly, the contract stated that the employment may be terminated by the applicant or the respondent by “providing a minimum of 2 months [sic] notice”. In a different part of the letter, it also stated that the applicant’s employment contract was “subject to a trial period of 6 months”. The respondent terminated the employment contract on 8 April 2022, providing the applicant with the equivalent of one week’s notice.

Contentions

The applicant sought an order for the respondent to pay him the equivalent of a two months’ notice period, less the one week’s notice he received, being $22,884.62. The applicant contended he was entitled to such amount under the employment contract.

The respondent opposed the application, stating that the applicant was only entitled to one week’s notice, in accordance with the Fair Work Act 2009 (Cth), because the applicant’s employment was terminated during the probation period and he was on a probationary agreement.

Findings

The Commission found that the term of the employment contract concerning notice of termination provided for a minimum notice period of two months and did not distinguish between the trial or probation period and ongoing employment. There was no ambiguity surrounding the notice of termination term and therefore, the provisions of the FW Act concerning minimum notice periods were not implied into the employment contract.

As such, the applicant was entitled to the benefit of the contractual term requiring two months’ notice of termination of his employment contract.  Having already received the equivalent of one week’s pay at the time of termination, the Commission awarded the applicant the equivalent of seven weeks’ notice, being $22,884.62.

The decision can be read here.

An application for the administration of interrogatories was dismissed because of the tight timetable in the substantive proceedings and the nature of the questions posed in the proposed interrogatories made such an application unreasonable and oppressive.

On 17 March 2023, in proceedings for enforcement of orders of the Senior Commissioner, following an application by the applicant, the Full Bench made orders requiring the respondent to give discovery on affidavit of various categories of documents and for substituted service of a summons. However, an order for the administration of interrogatories was refused. The following is a summary of the reasons for such refusal.

Background

On 15 February 2023, the Full Bench ordered the respondent to give discovery on affidavit of various categories of documents by 27 February 2023. The subsequent discovery that the respondent filed on 27 February 2023 was manifestly inadequate and failed to comply with the 15 February 2023 order. In direct contravention, and a contemptuous failure to comply with the order of the Full Bench, the respondent simply refused to provide the documents required.

Contentions

The applicant’s interlocutory application posed 40 questions that it sought the respondent to answer. The applicant submitted that the proposed interrogatories sought to be answered were for the purpose of identifying potential contraventions of the orders made by the Senior Commissioner the subject of these proceedings and disclosing factual material relevant to those alleged contraventions. The proposed interrogatories included questions regarding communications to members, public statements and decisions made by the respondent. The applicant further submitted that answers to the questions posed would aid in the Full Bench having before it in the substantive proceedings all the relevant material, to enable it to determine the respondent’s conduct and the seriousness of any contraventions.

The respondent opposed the application for interrogatories, on grounds that granting the application would be oppressive and likely to lead to a significant delay in the respondent’s preparation for the substantive proceedings. The respondent also submitted that many of the questions were vague and objectionable.

Findings

The Full Bench dismissed the application because, given the tight timetable agreed to by the parties and the nature of the questions posed in the proposed interrogatories, an order to require the respondent to answer the questions in the available time would be unreasonable and oppressive.

Further supporting the application’s dismissal was the existing direction requiring the parties to put on written evidence‑in‑chief approximately one week from the date of this decision’s delivery.

The decision can be read here.

A constable’s dismissal from the Western Australian Police Force was the result of disciplinary procedures under Part II of the Police Act 1892 (WA), under which no appeal to the Western Australian Industrial Relations Commission lies.

The Commission found that it did not have jurisdiction to hear an appeal arising from the Police Appeal Board’s decision to uphold the dismissal of a First Class Constable in the Western Australian Police Force, which resulted from a disciplinary offence conviction.

Background

The appellant was a First Class Constable in the Western Australian Police Force from approximately 2014 to September 2022.

In September 2022, the appellant was charged with and subsequently convicted of a disciplinary offence for his unwillingness to become vaccinated against COVID‑19 in accordance with the Police Force Regulations 1979 (WA). As a result, he was dismissed for disobeying the Commissioner of Police’s direction requiring him to have at least one COVID‑19 vaccination by 1 December 2021, unless a medical exemption applied.

The appellant appealed the dismissal decision to the Police Appeal Board. The Board heard his appeal on 1 November 2022, dismissed the appeal and confirmed the dismissal.

Contentions

The appellant sought to appeal the Board’s decision to the Commission under s 33 of the Police Act. He stated that the dismissal was unjust and unfair and he felt that he had not had a proper opportunity to voice his concerns, including his religious objections to vaccination.

The respondent contended that the Police Act gives the Commission jurisdiction to determine appeals by police officers against removal action under Part IIB Division 3 of the Police Act. Removal action procedures are distinct from the disciplinary procedures set out under Part II of the Police Act. The respondent contended that the appellant’s dismissal was the result of disciplinary procedures.

Findings

The Commission dismissed the appeal for want of jurisdiction because there was no appealable decision.

The appellant appealed the ‘disciplinary offences’ (i.e. the circumstances resulting in his dismissal in September 2022) to the Board under s 33E of the Police Act. The Board’s decision was final, in accordance with s 33H, with no further appeal available. The appellant’s dismissal was not ‘removal action’ under s 33L, to which an appeal to the Commission lies under s 33P(1).  

The decision can be read here.