The Commission ruled in the applicant's favour, ordering the reinstatement of the applicant to her position, and compensation, citing inconsistent treatment based on timing as arbitrary and unfair in comparison to another non-compliant employee.

The applicant, a Drug Detection Officer at Bunbury Regional Prison, was summarily dismissed for refusing to comply with the vaccination directive issued during the COVID-19 pandemic. Despite conceding her failure to comply, she contested her dismissal on the grounds of perceived unlawfulness of the directive, her genuinely held but mistaken belief, and alleged unfair treatment compared to other non-compliant employees, particularly citing the case of Ms Beere, another employee.

Senior Commissioner Cosentino found in favour of the applicant, ordering the employer to pay the applicant for lost remuneration and to reinstate her to the position she held as of 26 May 2022. The Commission compared the applicant's case to that of Ms Beere, noting similar circumstances, understanding of the vaccination directive, breach, charges, and preliminary findings proposing dismissal. The key distinction leading to inconsistent treatment was the delay in recommencing the disciplinary process for Ms Beere, allowing her to return to work after the vaccination directive was lifted. The Commission deemed this timing-based inconsistency arbitrary and unfair, emphasising the need for fair and consistent treatment in disciplinary matters, irrespective of the ultimate outcomes for individual cases.

The decision can be read here.