The Public Service Appeal Board dismissed the appeals of two Communications Technicians, dismissed from the WA Police Force for failing to comply with a COVID-19 vaccination direction.

Both employees accepted that the relevant vaccination direction was lawful and reasonable and their failure to comply with it was a breach of discipline. However, both said that their circumstances were “unique” because of their particular medical histories and that the employer’s failure to give sufficient weight to their medical histories meant that the decision to dismiss them was harsh.

The employees relayed their worries about the possible adverse and serious side effects of the approved COVID-19 vaccinations to the Appeal Board. The Appeal Board stated that there was no doubt the employees were genuinely worried about adverse side effects. However, for those worries to have lessened the seriousness of their conduct, they must show that their beliefs and concerns were objectively reasonable.

The Appeal Board was not persuaded that the employees’ reasons for not complying with the direction were reasonable. In one case, the employee did not seek out medical advice from his own treating medical practitioners about whether he should be vaccinated, or which vaccination was best for him. The other employee was strongly advised by his specialist to get vaccinated. Neither produced any evidence that their medical conditions placed them at higher risk of adverse side effects from the available vaccines.

The Appeal Board concluded that the employees’ reasons for not following the vaccination direction were not unique. Their reasons were simply ideological beliefs that meant they were opposed to being vaccinated with the approved COVID-19 vaccines.

The decision can be read here.

The applicant, a casual bus driver, sought a higher pay rate based on the “Evergreen Contract” between the South West Transit Group Pty Ltd as trustee for the South West Transit Group Unit Trust, trading as South West Coach Lines (SWCL) and the Public Transport Authority (PTA), which stipulated a specific hourly rate for bus drivers. The applicant argued that legal principles implied a higher pay rate, either through contract modification or as an implied term. However, it was later discovered that SWCL, her presumed employer, was not a party to the Evergreen contract, which was instead with a related entity, the Australian Transit Group Pty Ltd. Upon realising this, the applicant decided to withdraw her claim.

The applicant contended that she had the authority to withdraw her claim without SWCL’s consent due to SWCL’s failure to fulfill the obligation outlined in sub-regulation 16(4) of the Industrial Relations Commission Regulations 2005. Commissioner Kucera found that the Commission became functus officio after the Notice of Discontinuance was served on SWCL, as it had completed all judicial functions. Regulation 16(4) did not apply since SWCL did not file a counter-proposal. The applicant’s discontinuance did not require SWCL’s consent.

Commissioner Kucera also noted that costs were not awarded because it was functus officio, and a costs order was not justified. The findings emphasised that the respondent's foreshadowed application for costs was not a counter-claim and did not warrant an exception from the Commission’s customary ‘no costs’ approach.

The decision can be read here.

The applicant sought a contractual benefit of $7,093.80 for alleged non-payment related to overcycle work under his employment contract with the respondent. The dispute centred on the Employment Schedule’s interpretation, specifically clauses 5 and 7 concerning Hours of Work and Overcycle payments. The respondent contended that the applicant was not entitled to the overcycle benefit due to a change in the roster, which was within the contractual rights outlined in the Flexible Working Hours clause.

The crucial question for resolution was whether the respondent denied the applicant a due benefit. Commissioner Tsang found that the contract allowed the respondent to vary the applicant’s roster, supported by the language of the ‘initial roster’ in the Hours of Work Clause and flexibility provisions in the Flexible Working Hours clause. Commissioner Tsang determined that a reasonable person would understand the contract to permit roster changes, including those arising from external factors like COVID-19 flight restrictions.

Addressing the applicant’s argument that changes should be consistent with the Overcycle Clause, Commissioner Tsang held that the contract did not need to specify the mechanism for roster variation. However, this did not negate the respondent’s right to vary the roster and the applicant’s obligation to remain flexible. Commissioner Tsang dismissed the applicant’s claim, emphasising that the varied roster of 28 days on/28 days off meant he was not working ‘over’ the cycle, thus disentitling him from the overcycle rate. Further, the applicant’s subsequent R&R period justified the denial of the overcycle rate. Consequently, Commissioner Tsang concluded that the applicant failed to establish his claim for a denied contractual benefit, leading to the dismissal of the application.

Top of Form

The decision can be read here.

The applicant claimed unfair dismissal against the respondent, her former employer. The respondent contested the jurisdiction of the Commission, arguing that it is a national system employer under the Fair Work Act 2009 (Cth). The central issue was whether the respondent, as a corporation, engaged in trading activities, thus determining the Commission’s jurisdiction.

The respondent submitted evidence, including a statutory declaration by its CEO, outlining its income sources, which included government service agreements, grants, and trading activities such as the sale of goods and rental income. The CEO’s declaration also highlighted the respondent’s strategic plan, emphasising a profit-for-purpose approach and a diversified income generation strategy.

Commissioner Walkington evaluated whether the respondent was a corporation engaging in trading activities. Commissioner Walkington found that the Constitution described the respondent as an association, and there was no evidence of its incorporation. Consequently, the Commission could not conclude that the respondent is a corporation. Regarding trading activities, the Commission considered sources of revenue, emphasising that income from government grants and services did not exhibit the character of trading. While the respondent engaged in some trading activities like the sale of goods and rent, these were deemed limited and incidental, not substantial or significant.

As a result, Commissioner Walkington concluded that the respondent is not a trading corporation, establishing the Commission’s jurisdiction to conciliate and potentially hear and determine the unfair dismissal claim.

The decision can be read here.

The applicant sought unpaid salary, a profit share arrangement, and accrued annual leave from the respondent, her employer. Despite notifications and opportunities for the respondent to respond, the employer did not participate in the proceedings. Commissioner Walkington, satisfied with a reasonable opportunity had been given, proceeded in the absence of Wild Squeeze.

The applicant, initially a barista, was promoted to Café Manager with an agreed-upon increase in pay. Disputes arose over unpaid wages, accrued leave, and expenses. The evidence, including email exchanges, supported the applicant’s claim for unpaid wages, with Commissioner Walkington finding her to be a full-time employee. Although a payment was made by the employer, a balance for unpaid wages remained, and Commissioner Walkington ordered the outstanding amount.

Regarding the profit share claim, Commissioner Walkington determined that the Christmas card from the respondent to the applicant, in which the respondent referred to a 10% profit share, did not meet the criteria for a binding contract variation. The terms of the profit share arrangement were deemed uncertain, and the lack of evidence on the Café's profit further hindered finding for the applicant. Consequently, Commissioner Walkington did not find a contractual benefit or entitlement denied in the profit share claim.

In conclusion, Commissioner Walkington ordered the respondent to pay the balance of unpaid wages to the applicant but dismissed the profit share claim due to insufficient evidence of a binding contract variation.

The decision can be read here.