PSAB finds no dismissal following withdrawal of contract where conditional terms are not met and no work performed
The Public Service Appeal Board (Board) has dismissed an application by an employee, finding that the decision of the employer to withdraw their offer of employment where conditional terms of the contract were not met and the contract was not accepted did not constitute a dismissal, and that the Board did not have jurisdiction .
The appellant was employed as an ICT Help Desk Officer under a series of fixed term contracts to 30 November 2021.
The respondent offered the appellant a further three‑month fixed term contract after 30 November 2021. Pursuant to government mandates in place at that time, the contract of employment was conditional to the employee providing evidence of vaccination against COVID-19.l The appellant did not sign and return the contract, and did not provide evidence of his vaccination against COVID-19 or status as an exempt person. On 16 December 2021, before the appellant had performed any work under the new contract, the respondent withdrew the offer by email.
The appellant commenced an appeal under s 80I(1)(d) of the Industrial Relations Act 1979 (WA) (IR Act) on the basis that the communication of 16 December 2021 was a decision to dismiss him from their employment with the respondent and that such a decision was harsh, oppressive or unfair.
Both parties acknowledged that for the Board to have jurisdiction, the decision to withdraw the offer of employment must be a decision to dismiss the employee.
The appellant contended that there was a subsisting employment relationship, such that the withdrawal of the offer should be characterised as a dismissal. The appellant contended that an email sent on 13 December 2021 to the respondent effected their acceptance of the contract because it was in similar terms to a previous offer and acceptance.
The appellant further contended that the vaccination clause was ambiguous, and on a correct construction, only required vaccination to the extent that the Directions require vaccination.
The respondent contended that the appellant was in furious disagreement with the contract’s conditions that he be vaccinated, and that there was no express or implied acceptance The respondent contended the clause is a clear and unambiguous condition that the appellant be vaccinated against COVID-19 as a condition of employment.
The Board found that the contract terms were clear and unambiguous, and that the contract terms had an ordinary, natural and definite meaning that the employee is required to provide evidence of vaccination against COVID‑19 or status as an exempt person.
The Board agreed with the respondent’s contention that the appellant remained in furious disagreement with the terms and that the email sent by the appellant on 13 December 2021 email was in fact evidence of continued dispute, disagreement and indecision.
The Board found that the appellant was not dismissed. The employment relationship ended by the expiration of a contract for a fixed term. The appellant did not accept ongoing employment before the respondent withdrew its offer, which it was entitled to do, and that the decision to withdraw the offer was not within the jurisdiction of the Board to consider.
The appeal was dismissed.
The decision can be read here.