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.