The Public Service Appeal Board (Board) has upheld an application to dismiss the appeal of pharmacist seeking reinstatement to a pharmacy role but who undertook not to work in such a role.

Background

The appellant was employed as a pharmacist by the respondent and previously worked for the respondent in a different role. The respondent suspended the appellant without pay as the appellant had been charged with a serious offence, and several years later the appellant was dismissed. The appellant appealed their dismissal to the Board. The respondent applied to the Board under s 27(1)(a) of the Industrial Relations Act 1979 (WA) (IR Act) for an order dismissing the application.

Contentions

The appellant contended in his appeal that the respondent did not have the authority to dismiss him under s 150 of the Health Services Act 2016 (WA) (HS Act) as, although he pleaded guilty to the criminal charges, he was not convicted of a serious offence.  In the alternative, the appellant contended that he was denied procedural fairness. The appellant sought reinstatement or for the respondent to consider viable alternative roles.

The respondent contended that if successful, the only remedy available to the appellant would be for the Board under s 80I(1) of the IR Act to adjust the decision to dismiss him. The respondent argued that quashing a decision to dismiss results in the reinstatement of an employee. The appellant, however, had given the Australian Health Practitioner Regulation Agency (AHPRA) an undertaking that meant the appellant could not lawfully perform his original position. The respondent contended that the undertaking prevented the appellant from performing all or at least the core duties of his role for an indefinite period. The respondent contended that reinstating the appellant into a role he could not perform would not be consistent with the Board’s obligations under s 26(1)(a) of the IR Act.

In opposing the respondent’s application, the appellant contended that his appeal should be allowed to proceed but be stayed until the resolution of the criminal matters. The appellant contended that the undertaking only prevented him from working as a pharmacist and not in other roles or performing non-pharmacist duties while employed in the pharmacist role. The appellant contended that dismissing the appeal would set an unfair precedent allowing employers to dismiss AHPRA registered practitioners who had made an undertaking not to practice before AHPRA’s investigations conclude, and such practitioners would have no right of appeal. The appellant contended that it was open to the Board to quash the decision to dismiss, as the respondent had demonstrated it considered it reasonable to maintain a suspended employee in their role for an extended duration of time.

The parties agreed that it was not open for the Board to adjust the decision in a way to require the appellant to be employed in another position or provide him with other duties.

Findings

The Board accepted the respondent’s submissions and partially accepted the appellants submissions, noting that some of the appellant’s submissions were not relevant or did not support his case.

The Board noted that the undertaking prevented the appellant from performing the pharmacist role and there was no evidence or argument to suggest that it would be removed. The Board noted it was common ground that the Board had the power to adjust an employer’s decision to dismiss.

The Board noted that although the appellant seeks reinstatement and asks the Board to quash the respondent’s decision to dismiss, the question of whether the Board has the power to adjust the decision to dismiss in some other way did not arise in this case.

The Board noted that quashing the respondent’s decision to dismiss the appellant would be impracticable because it would result in the appellant being reinstated to a role he could not perform due to the undertaking. The Board noted that the appellant accepted that the Board could not order the respondent to employ him in a different role or to do other duties, but that the appellant’s argument was premised on the respondent voluntarily offering to do so. The Board considered that it should not make an order quashing the decision to dismiss and to reinstate the appellant to a position he cannot perform, in the hope of that voluntary offer.

The Board considered that hearing the matter in the circumstances would be contrary to the Board’s obligation under s 26(1)(a) of the IR Act. The Board upheld the respondent’s application and ordered that the appeal be dismissed.

The decision can be read here.