Dismissal a proportionate response for employee's conduct
The Public Service Appeal Board dismissed an employee’s appeal against the decision of her employer to dismiss her because she continued to refuse to wear a mask at work, in breach of two lawful directions, and was absent from work without authorisation.
The only available outcome of the disciplinary action was dismissal, which was proportionate to the appellant’s ongoing conduct of attending work without a mask, breaching a Public Health Order, and refusing to return to work despite not having a medical certificate.
The appellant commenced employment with the Department on 4 August 2008. She performed various roles on a permanent full-time basis.
From 13 March 2018 until her dismissal, the appellant worked as a "Group 3 Governance Assurance Officer" and had been absent from work since 22 February 2022. Her initial absence was due to her refusal to wear a face mask at work, which was a requirement of the 29 January 2022 Public Health Order (PHO).
Several PHOs were issued in preparation for reopening Western Australia's borders after COVID-19-related closures. The mask directions applied to all Department employees. An exemption from wearing a mask could only be provided by a doctor.
The appellant had issues with the face mask requirement, as well as the requirement to provide evidence of vaccination status. On 28 January 2022 and 15 February 2022, she emailed the respondent, requesting information about the mask directions and placed a series of conditions on her compliance with the directions. On 17 February 2022, the respondent, in a letter from the Acting Executive Director of People and Culture, responded to the appellant’s letters. The response explained that the respondent did not have a discretion to ignore or make exceptions to the mask directions or any other PHOs, including those relating to mandatory vaccinations.
The appellant attempted to return to work without wearing a mask on 4 and 22 February 2022, both times she was told to leave the workplace.
The appellant obtained and submitted a medical certificate which declared her unfit to work due to a “medical condition”, for the period 4 to 18 March 2022. This period was taken as personal leave. The appellant did not return to work on 21 March 2022, as required. The respondent sent multiple emails to the appellant, inquiring why she was absent from work and when she would return and putting her on notice regarding her ongoing absence from work and the requirement for her to wear a mask at work despite her opposition. Following this, the respondent issued a Return to Work letter on 22 April 2022. The appellant replied on 27 April 2022, demanding that her return was dependent upon her previous conditions being met.
Despite the PHO related to face masks being lifted on 28 April 2022, the appellant did not return to work, request annual leave, or provide any medical certificate or justification for her continued absence.
On 27 May 2022, the respondent sent a letter to the appellant which warned her of impending disciplinary action. On 3 June 2022, the appellant responded, asserting the directions she had received were unlawful and demanding compensation for the loss she claimed to have suffered due to the “unlawful actions”. On 3 August 2022, the respondent terminated the appellant's employment due to her unauthorised absence. Although dismissed for misconduct, the letter of dismissal confirmed the respondent would pay the appellant four weeks’ wages in lieu of notice, along with any leave entitlements owing to her on termination.
On 24 August 2022, the appellant filed an appeal against her dismissal. The appellant sought reinstatement and an order for back pay for wages and other entitlements on and from 22 February 2022 to the date of her reinstatement.
The appellant challenged the dismissal decision on two bases; that she was denied procedural fairness and there were alternatives to dismissal the respondent should have imposed instead of dismissing her. Regarding the second ground, the appellant takes issue with the severity of the disciplinary action. During the hearing, the appellant conceded that the Board was only permitted to consider the dismissal decision and whether that decision should be adjusted by re-instating her.
The Board dismissed the appeal.
The evidence established that from as early as 4 February 2022, the appellant refused to comply with the mask directions. She directly breached the mask direction on two occasions by refusing to wear a mask in the workplace, on 4 and 22 February 2022.
The evidence also showed the appellant was insistent. She would not return to the workplace wearing a mask unless the respondent met the conditions set out in her letters of 28 January and 17 February 2022.
From 21 March until 29 April, the appellant was in breach of two lawful directions for which the respondent could have commenced disciplinary action. One was her continued refusal to wear a mask at work, the other being absent from work without authorisation. The Department’s response on both matters did not waiver.
There was little doubt the appellant’s ongoing conduct by refusing to comply with the Department’s directions to return to work after 3 May 2022 was inconsistent with the continuation of her employment.
The Board did not accept the appellant was denied procedural fairness. There was a very long period to the dismissal decision. The appellant should have been under no illusion that she had embarked upon a course that placed her employment in jeopardy. The process the respondent followed was procedurally fair, which gave the appellant an opportunity to respond to matters for which there were potential adverse consequences.
The Board found there were no alternatives to dismissal. The appellant’s dismissal was in the circumstances of this case, a proportionate response to the conduct for which she was dismissed. This finding was based on the opportunities the respondent gave the appellant to comply with the respondent’s reasonable and lawful directions; the payment of notice on termination; the length of time she spent off work; the appellant’s ongoing refusal to return to work despite not having a medical certificate; as well as a factor favourable to the appellant, her lack of a prior disciplinary history.
The decision can be read here.