The appellant, who had been employed as a prison officer by the respondent, appealed the decision of the Full Bench to the Industrial Appeal Court, seeking reinstatement after her dismissal for failure to comply with a direction to be vaccinated against COVID-19 and provide evidence of her vaccination.

In her original claim before the Commission, the appellant contended that she had been unfairly dismissed by the respondent for failure to comply with the vaccination direction. Having found that another employee had been reprimanded but not dismissed for non-compliance with the direction to be vaccinated, Senior Commissioner Cosentino found that while there was valid reason for the appellant’s dismissal, when compared to the other employee, the respondent’s treatment of the appellant was unfair, and ordered that the appellant be reinstated to her position.

The respondent appealed this decision to the Full Bench of the Commission, contending that the matter of the other employee’s reprimand was not a relevant comparator. Finding that the disciplinary outcome for the other employee occurred several months after the appellant’s dismissal, and that each employee was employed in a materially different roles requiring different working circumstances and subject to different statutory frameworks, the Full Bench determined that the respondent’s claim had been made out and overturned the decision of the Senior Commissioner.

The appellant’s appeal to the Industrial Appeal Court was on the grounds that the Full Bench erred in law by finding that the other employee’s disciplinary outcome was not a suitable comparator to her case, raising the issue of the proper construction of s 26(1)(a) and s 26(1)(b) of the Industrial Relations Act 1979 (IR Act). The Court found that in this matter, the proper construction and application of s 26(1) of the IR Act was not in issue before the Full Bench. The Court determined that the Full Bench applied the well-established legal test for ascertaining if an employee’s dismissal was harsh, oppressive, or unfair, and applied well-established legal principle in determining the relevant facts in relation to the alleged disparity between the treatment of the appellant and other disciplined employee. Finding that the Full Bench had not erred in law, the Industrial Appeal Court dismissed the appeal and upheld the decision of the Full Bench.

The decision can be read here.