The Public Service Appeal Board dismissed the appellant’s application to extend the time to appeal against the decision to terminate her employment, for not being vaccinated against COVID-19 or having a current exemption.

The Public Service Appeal Board found that the appellant had not adequately explained the reasons for the delay, which was significant, and the appeal, if it was granted, lacked any prospect of success because the appeal grounds were not supported by precedent or substantiated by any admissible evidence.

Background

The appellant was employed by the East Metropolitan Health Service as an Administrative Assistant in Royal Perth Hospital’s Neurology Department. On 3 October 2022, she was notified her employment was terminated, effective 28 October 2022. The termination reason stated that she had failed to comply with a direction to provide her employer with evidence that she had been vaccinated against COVID‑19 or had a current exemption.

The appellant filed an appeal to the Appeal Board against the termination decision on 25 November 2022. Under reg 107(2) of the Industrial Relations Commission Regulations 2005 (WA), an appeal must be filed within 21 days after the date of the decision appealed against, which in this case was 25 October 2022. Therefore, the appeal was out of time.

Contention

The appellant applied for an extension of the time to appeal, under s 27(1)(n) of the Industrial Relations Act 1979 (WA).

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 applicant succeeding in the appeal; and
4. the extent of any prejudice to the respondent.

The reasons for the delay

The appellant gave evidence about the circumstances which led to the delay in filing her appeal. The appellant originally filed her appeal with the Fair Work Commission on 18 November 2022. After communication with the Fair Work Commission and the Commission, she filed her appeal in the latter. She stated that the last two years have been difficult for her, economically, emotionally and socially and that these hardships generally explain why she lodged her application in the wrong jurisdiction.

The prospect of the applicant succeeding in the appeal

Regarding her prospects of succeeding, the appellant stated the following grounds for establishing the termination was harsh, unjust or unreasonable:

1. that the employer’s policy and direction requiring her to be vaccinated against COVID‑19 or to provide evidence of an exemption were unreasonable because they were an intrusion on her right to bodily integrity;
2. that the direction to be vaccinated or provide evidence of an exemption was unreasonable because it involved mandating a medical procedure that was potentially dangerous with unknown health consequences from experimental, toxic, inherently dangerous and ineffective vaccinations;
3. that she was unable to comply with the policy/direction because she could not give informed consent to being vaccinated; she attended a pharmacy on 27 October 2022 for the purpose of being vaccinated, but told the injecting practitioner that she was there only “under a sacking threat”; the practitioner refused to administer the injection because, in such circumstances, the appellant had not provided informed consent; and
4. that the mandates were going to be rescinded on 4 November 2022 and the termination decision was made with such knowledge, alleged to be supported by an email from the respondent’s Executive Director, People and Culture and Capability on 9 November 2022.

Findings

The Appeal Board dismissed the appeal because, on balance, the reasons for the delay were not adequately explained. However, in any event, the appeal’s lack of prospects of success meant an extension of time should not be granted.

The length of the delay

The filing of the appellant’s appeal was delayed by one month, which was significant and weighed against the grant of an extension of time.

The reasons for the delay

Noting that the appellant recorded her intention to litigate any decision to terminate her employment as early as 23 September 2022, the Appeal Board held that the appellant had not established that there were good reasons for her not appealing within the time specified in the legislation.

Although the appellant originally filed in the wrong jurisdiction on 18 November 2022, she was already out of time to file an appeal in the Commission. Further, while the appellant vaguely referred to hardships, she did not point to any particular circumstances which prevented her from lodging the appeal within time. Further, the Appeal Board found that she did not take reasonable steps to ascertain her appeal rights in a timely way.

The prospect of the applicant succeeding in the appeal

Regarding the first ground, that the policy was an intrusion on bodily autonomy, the Appeal Board found that it had no prospect of succeeding. Such a finding was made in accordance with precedent, that an employer’s direction requiring employees to be vaccinated against COVID‑19 did not directly infringe the right of bodily integrity because it did not purport to authorise involuntary vaccination or any act that interfered with employees’ body without their consent.

The second ground was not fairly arguable because it was based on assertions that were not substantiated by any admissible evidence. The appellant referred to her understanding and summary of the views of various individuals whose qualifications and expertise are not established.

The third ground was also without any prospect of success. The social and economic pressure on employees is not coercion, vitiating consent. The choice remains the choice of the employee.

Finally, ground four had no prospect of success because the appellant was unable to identify any proper basis for a conclusion that the respondent knew about the revocation of vaccination mandates, before the termination decision was made, or before the decision took effect.

The extent of any prejudice to the respondent

The Appeal Board was able to infer prejudice for the respondent from the length of delay.

The appeal was dismissed.  The decision can be read here.