The hearing will reconvene at 2:15 PM (AWST) on Thursday, 6 June 2024. Watch below or click here.

The Public Service Appeal Board has upheld the dismissal of an engineering associate, finding that the respondent lawfully dismissed the appellant due to her refusal to comply with a direction to be vaccinated against COVID‑19 and to provide evidence of her vaccination status.

The respondent contended that the appellant’s duties included both office-based tasks and onsite construction work, necessitating vaccination under the Building and Construction Industry Worker (Restrictions on Access) Directions (No 2).

The appellant, whose job occasionally required site visits contended that the dismissal was premature as the role did not necessitate immediate site visits, therefore the vaccination direction did not apply to her role. 

The Appeal Board found that the directive was reasonable, lawful, and necessary for complying with public health mandates and operational needs because the appellant’s role inherently required flexibility to visit sites as needed.  The Appeal Board found that the appellant was given adequate notice and opportunity to comply with the vaccination policy.

The appeal was dismissed. 

The decision can be read here.

The hearing will commence at 10:30 AM (AWST) on Wednesday, 22 May 2024. Watch below or click here.

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The Full Bench has dismissed an appeal in relation the interpretation and application of clause 138 of the Department of Justice Prison Officers Industrial Agreement 2020, specifically regarding the entitlement of prison officers to purchase additional leave. 

At first instance, the appellant alleged that four officers were denied their entitlement to purchased leave by the Minister for Corrective Services, claiming that relevant factors were not considered during the assessment of their applications. Industrial Magistrate O’Donnell found that the officers had indeed entered into purchased leave salary arrangements under clause 138.1 of the Agreement and that the prisons had complied with the requirements of clause 138.7, such as developing a leave roster and giving officers the opportunity to nominate preferred leave blocks. Despite these findings, O’Donnell IM determined that the prisons did not offer the officers access to the purchased leave blocks due to operational reasons, as they were experiencing resource constraints. Her Honour emphasised the pressure on human resources within the prisons and the inability to afford additional leave on top of the usual quota of annual leave. As a result, her Honour concluded that no contravention of clause 138 of the Agreement had been established, as it would have been pointless to engage in consultation with the officers when no leave blocks were being offered. 

The appeal raised various grounds, including errors in law and fact, alleging misapplication of consultation requirements and misinterpretation of the industrial agreement's clauses. The appellant's departure from the original statement of claim was questioned, as further alleged contraventions were introduced during the hearing at first instance beyond those outlined initially. The Full Bench emphasised the need for specificity and consistency in application grounds, written submissions and oral submissions at hearing. Given the initial statement of claim before the O’Donnell IM, the Full Bench found that it would not have been open for the her Honour to conclude that the respondent contravened cl 138 by failing to allow the relevant officers to take purchased leave as this was not the alleged contravention set out in the claim. To the extent that any of the grounds of appeal go beyond the alleged contravention in the claim before the her Honour, the Full Bench found that they are also not able to be dealt with by the Full Bench. However, in the event that they were incorrect in their assessment, the Full Bench proceeded to consider the grounds of appeal as advanced. 

The appeal primarily challenged the interpretation of clause 138, particularly regarding consultation obligations and leave accommodation. The Full Bench upheld O’Donnel IM’s decision, reasoning that consultation obligations do not arise when leave cannot be granted due to operational constraints. The Full Bench also rejected the appellant's contention that once officers entered into a Purchased Leave Scheme Agreement, they must be granted leave, emphasising the need to consider operational requirements outlined in the Agreement. Ultimately, the Full Bench dismissed the appeal, affirming her Honour’s decision on consultation obligations, leave accommodation, and operational consideration.

The decision can be read here.