Work Health Safety Tribunal dismisses applicant’s discovery application and upholds respondent’s discovery application

The Work Health Safety Tribunal has dismissed an applicant’s application for discovery of documents in a dispute but has required the applicant to discover documents requested by the respondent, finding that the documents sought by the respondent were necessary and relevant, while the documents sought by the applicant were not.


The applicant was employed by the respondent when the  WA Chief Health Officer’s Education Worker (Restrictions on Access) Directions (No. 4), and the Entry Restrictions No. 1 to an Education Facility COVID-19 Vaccination Requirement came into effect. The respondent informed the applicant that he would be stood down without pay as the applicant was not vaccinated and therefore unable to work as he could not enter the workplace.

The applicant made an application under s 26(1) of the Occupational Safety and Health Act 1984 (WA) (OSH Act) for pay and benefits to which they would have been entitled to had he not refused to work under s 26(1) of the OSH Act, on the grounds that as he believed that to continue work would expose him to a risk of imminent and serious injury or imminent and serious harm to their health.

The parties each filed a discovery in relation to the matter. 


The applicant’s discovery application sought 45 categories of documents that the applicant contended were relevant for 13 broad reasons.  The respondent’s discovery application sought an order that the applicant discover all correspondence between the applicant and WorkSafe Western Australia (WorkSafe WA) relating to the application made by the applicant under s 25 of the OSH Act. The respondent contended these were relevant due to the WorkSafe WA Application being in relation to the respondent’s mandatory vaccination policy


The Tribunal noted that under s 27(1)(o) of the Industrial Relations Act 1979 (WA) (IR Act) the Commission has the power to ‘make such orders as may be just’ within respect to the discovery, inspection or production of documents. Further, the Tribunal noted that s 27 of the IR Act applies to the exercise of the jurisdiction of the Tribunal per cl 29 of Schedule 1 of the Work Health and Safety Act 2020 (WA).

The Tribunal considered the legal principles and authorities relating to discovery, including that the party seeking discovery must establish that it is just for the order to be made and necessary for the fair disposal of the case. The Tribunal noted that under common law it must consider whether the documents relate to the matter in question, and if so, would it be just to order discovery.

The Tribunal noted that the documents sought by the respondent were necessary to resolve the matters in dispute. The Tribunal further noted these documents may be relevant to the applicant’s belief about the risk of imminent and serious injury or harm due to mandatory vaccination at the time the applicant formed the belief and purported to refuse to work because of the belief. It was noted by the Tribunal that this may be relevant to the reasonableness of the applicant’s belief. The Tribunal found that the respondent’s requested documents were discoverable.

The Tribunal found that almost all the documents sought by the applicant were not relevant to the main issues in these proceedings, being what the applicant did, and what he believed.. The Tribunal noted that some categories of documents were premature to order discovery of, and that if the applicant later establishes certain matters, then the Tribunal will hear from the parties about whether these categories should be discovered. The Tribunal noted the document’s sought by the applicant did not relate to the matter in question, were not necessary for the fair disposal of the case and it would not be just for the order sought to be made.

The Tribunal issued an order to dismiss the applicant’s discovery application and to require the applicant  within 14 days, to discover the correspondence sought in the respondent’s application.

The decision can be read here.