The Work Health and Safety Tribunal has dismissed an Engineer's application under s 26(1) for want of jurisdiction, finding that she did not refuse to work due to risk of serious injury, but that she was instead  excluded from the workplace after a failure to provide proof of vaccination. 

Background

The applicant was employed as an Engineering Associate. After public health directions were issued by the Chief Health Officer requiring construction industry workers to be vaccinated against COVID-19 to enter building and construction sites, the applicant’s employer required affected employees to provide evidence of vaccination or an exemption by 31 December 2021.

The applicant refused to be vaccinated and did not provide evidence of an exemption, and did not work from 6 January to 25 March 2022. The applicant was dismissed from her employment.

Contentions

The applicant contended that she refused to work under s 26(1) of the Occupational Safety and Health Act 1984 (WA) (‘OSH Act’). The applicant believed that vaccination would expose her to a risk of imminent and serious injury or harm to her health, and that the direction to be vaccinated was not a reasonable, and lawful order and complained that the respondent did not do a risk assessment of the COVID-19 vaccinations.

The respondent contended the Tribunal did not have jurisdiction to deal with the matters referred by the applicant or the power to make the declarations and orders she sought. The respondent contended that the applicant did not refuse to work, rather, she was excluded from the workplace because of the Chief Health Officer’s directions as she was unable to work, and therefore was not entitled to the pay and benefits she claimed.

The respondent added that because the applicant also had an appeal before the Public Service Appeal Board in relation to the same matters, the Tribunal should dismiss the current application.

Findings

The Tribunal noted that the key question in dispute was whether the direction of the employer was a reasonable and lawful order, and that this was outside the Tribunal’s jurisdiction.

The Tribunal noted that most of the remedies sought by the applicant were outside the power of the Tribunal, in an application brought under s 28. The Tribunal noted that it did not have the power to:

• make a declaration about the obligation of the respondent to comply with the safety and health legislation;
• investigate alleged breaches of the OSH Act or refer those to the regulator for prosecution;
• determine whether the respondent was required to do a risk assessment, or to direct the respondent to do a risk assessment; or
• make an order for damages.

The Tribunal noted that while one of the applicant’s remedies was within the power of the Tribunal, that the matter should be dismissed as the applicant’s claim had no merit or prospect of success. The Tribunal found that the operative reason for the applicant’s absence from the workplace was because Main Roads excluded her from the workplace, and not because she refused to work. The Tribunal dismissed the application. 

The decision can be read here.