The Public Service Appeal Board has dismissed the appeal of a child protection psychologist, finding they were lawfully dismissed for disobeying or disregarding a lawful reasonable order.

Background

The appellant was a child protection psychologist employed by the respondent. The appellant appealed to the Board their dismissal for not following the respondent’s direction to be vaccinated against COVD-19 and to provide proof or an exemption.

Contentions

The appellant contended she was unfairly dismissed as she conditionally accepted vaccination. The appellant contended she had a core belief of bodily autonomy, her contract did not require vaccination, and she complied with the Chief Health Officer’s mandatory vaccination directions (‘CHO directions’) by not entering the workplace. The appellant contended her role could be performed entirely remotely and the respondent’s direction was not lawful as it was unreasonable.

The respondent contended the dismissal was not unfair, their direction was a reasonable lawful order, and the appellant was required to be vaccinated to lawfully enter or remain at their place of work and perform their duties. The respondent contended an order to reinstate the appellant to work entirely remotely would be forming new contractual terms and conditions and be outside the Board’s powers.

It was common ground that the CHO directions were valid and that two covered the applicant.

Findings

The Board considered Part 5 of the Public Sector Management Act 1994 (WA) covering breach of discipline as the appellant was a public service officer. The Board noted some of the appellant’s work could be conducted remotely via online therapy, depending on factors such as the child’s age and any rapport. The Board found the principal place of work was at the office where face to face therapeutic intervention was provided, and the effect of the CHO direction was that a psychologist could only attend the office if vaccinated. The Board noted it must decide whether the respondent’s direction was a reasonable lawful order, whether the appellant committed a breach of discipline by disobeying or disregarding it, and whether the Board should adjust the dismissal decision.

The Board found the respondent’s direction was a reasonable lawful order, taking into account the appellant’s employment contract, position, JDF, the nature of the respondent’s ‘business’ and the effect of the CHO Directions. The Board found the conditions in the ‘conditional acceptance’ were wholly unreasonable in the circumstances.  The Board found the appellant disobeyed or disregarded a lawful order and committed a breach of discipline as she was aware her employment was at risk and by not providing evidence of vaccination or an exemption, she did not comply with the respondent’s direction. 

The Board noted the respondent’s direction could not and did not on the facts infringe bodily integrity. The Board found it should not adjust the decision to dismiss, as an order reinstating the appellant to work entirely remotely and perform no face-to-face services was outside the scope of the Board’s power and was not a matter referred to it under s 80I(l)(b) of the Industrial Relations Act 1979 (WA) (‘IR Act’). The Board noted to make such an order would amount to a jurisdictional error, and not be in accordance with equity, good conscience, and the substantial merits of the case under s 26(1)(a) of the IR Act, given that the applicant could not attend her workplace and perform her duties.

The Board dismissed the application.

The decision can be read here.