The Commission dismissed the applicant union’s claim that an employee’s dismissal was harsh oppressive or unfair because two serious allegations of misconduct were found to be substantiated and justified dismissal.

The Commission found that the basis for the dismissal, the findings resulting from the allegation investigations, was consistent with the evidence, offered a largely accurate summary of the witness evidence, and the analysis and conclusions could reasonably be drawn from the entirety of the evidence. Further, the employee was not prejudiced by delay, provided with a fair opportunity to respond and received procedural fairness.

Background

The employee was a Design and Technology Teacher at Harvey Agricultural College from July 2006 to 10 May 2016, when he was dismissed for making physical contact with a student on 13 August 2015. Such dismissal followed an investigation by the respondent’s Standards and Integrity Directorate.

On 29 May 2018, the Commission found that the dismissal was unfair and ordered the employee’s reinstatement, which occurred in June 2018.

From 30 January 2020 until his dismissal on 7 October 2021, the employee taught at Ellenbrook Secondary College. This dismissal was the result of serious misconduct under clause 11(4) of the Teachers (Public Sector Primary and Secondary Education) Award 1993 for:

1. negligence or carelessness amounting to a breach of discipline pursuant to s 80(d) of the Public Sector Management Act 1994 (WA) for an incident on 24 June 2020 involving a Year 10 student injuring his thumb and requiring reconstructive surgery (Allegation 1); and
2. misconduct amounting to a breach of discipline pursuant to s 80(c) of the PSM Act for an incident on 25 September 2020 involving physical contact with a Year 11 student in breach of Regulation 38 of the School Education Regulations 2000 (WA) (Allegation 2).

Contentions

The applicant union applied to the Commission under s 44 of the Industrial Relations Act 1979 (WA).

The Commission was required to decide whether, on the evidence, following a proper inquiry, the respondent had reasonable grounds for holding a genuine belief that the misconduct occurred, and whether the dismissal was harsh, oppressive or unfair in the circumstances.

Allegation 1

On 24 June 2020, the employee showed a Year 10 Student how to measure and cut wood using a cut off saw during class. The employee subsequently left the student unsupervised, in contravention of Ellenbrook Secondary College’s 2019 Power Tool & Machine Usage Document. The student’s thumb was injured and required reconstructive surgery.

By letter dated 22 February 2021, the employer informed the employee of Allegation 1. On 15 March 2021, the employee responded to the allegation, stating what he alleged to have occurred, denying the student was left unsupervised, and stating that the student failed to follow his instruction ‘and without my knowledge continued working.’ Further, he stated he was not aware of any documentation and was never informed about the requirements surrounding machinery and the workshops.

On 6 August 2021, the respondent informed the employee that Allegation 1 was substantiated and the proposed action was dismissal. Following the employee’s further response on 20 August 2021, the respondent informed the employee on or about 7 October 2021 that:

• he had committed a breach of discipline;
• it no longer had trust or confidence in him to perform his teaching duties to the required standard;
• his actions are inconsistent with the Department of Education’s values and standards; and
• accordingly, he will be summarily dismissed for serious misconduct pursuant to clause 11(4) of the Award.

Contentions

The applicant stated that the employee was not guilty of Allegation 1. However, if he was, it did not justify dismissal in the circumstances.

The applicant stated that the Document referred to in the allegation applied to cut off saws and did not apply to the machinery involved in the incident, a compound mitre saw. Thus, the basis for the Allegation 1 investigation is misconceived and there could be no proper basis for a finding of negligence or carelessness. As such, the result was an accident caused by the student using machinery, despite being told not to.

The applicant also contended that the Investigation Report dated 30 July 2021

Further, dismissal is unjustifiable because the employee continued teaching at the school for almost a year and a half, while the disciplinary process was completed, without further incident.

 The respondent contended that:

• there is no material difference between a cut off saw and a compound mitre saw;
• even without the existence of the Document, it is reasonable to expect the employee to know to supervise year 10 students when using such machinery;
• there was sufficient evidence for the finding that the employee did not properly supervise the student;
• the employee’s claim that he told the student not to use the machinery is implausible given his evidence that he was unaware of the requirement for supervision of such machinery; and
• the employee continued teaching during the disciplinary process because the alternative was to suspend him without pay.

Finding

The Commission found that the Document applies to the saw in use at the time of the incident and to Allegation 1 and it was reasonable for the respondent to proceed on this basis. Further, the Commission found that the employee’s contentions, that he was not aware of the Document and he instructed the student to stop cutting, were unsustainable.

These findings were based on consistent evidence from the investigation given by the student, other students, school officers and other teachers, including another Design and Technology teacher, and contemporaneous documents from the time of the incident. The employee’s evidence was inconsistent with such evidence and contemporaneous documents.

While there were delays during the disciplinary process, these did not prejudice the employee and the respondent discharged its onus of establishing that the employee was guilty of Allegation 1 and the misconduct justified dismissal. The quantity and seriousness of allegations warranted a thorough investigation and the employee was given reasonable time to respond.

Allegation 2

On 25 September 2020, the employee was demonstrating brick paving to a class. The employee bent over to work on the paving, when a Year 11 Student put a small rock down the back of his pants. The employee grabbed the shoulder of the student’s clothing, tugged him forward and shouted words to the effect “if you were at a work site it would be more than a pull by a teacher, you could possibly get hit”.

This conduct contravened the School Education Regulations 2000 and the Department’s Code of Conduct. In his first response letter, the employee admitted to making physical conduct with the student but that it was ‘minimal’ and ‘appropriate’. In this letter, the employee stated that the student ran away after putting the putting the rock in his pants, he got up to stop the student and put his hand on the student’s shoulder to calm him.

The Proposed Outcome Letter notified the employee that the investigation was completed, Allegation 2 was substantiated, and the proposed action was dismissal.

Contentions

The applicant stated that the employee was not guilty of Allegation 2. However, if he was, it did not justify dismissal in the circumstances.

In support of this claim, the applicant contended:

• the conduct did not contravene the Regulations or the Code of Conduct;
• the conduct was reasonable and excused by the Regulations;
• the conduct should be considered within context (ie that the employee was frustrated and alleged safety concerns and that the incident occurred quickly);
• the employee acted with reasonable restraint;
• the employee continued teaching at the school for over a year without further incident;
• the investigation needed to objectively evaluate if a potential risk to the student’s safety existed, which was justifiable under the Regulations, and no such investigation was conducted;
• there was a conflict in the evidence regarding whether the student walked or ran away from the employee after putting the rock in his pants, the investigation report failed to resolve this conflict and there should be a finding in favour of the employee, that the student ran away; and
• the employee was not afforded procedural fairness because the investigation was marred by apprehended bias because a person involved in the investigation of Allegation 1 was also involved in this investigation and the employee was denied the opportunity to address two investigation outcome briefing notes.

The respondent contended:

• there is no credible evidence that the employee made contact with the student to manage him or in the interests of safety;
• the decision to dismiss the employee was fair on a finding that Allegation 2 was made out;
• a single loss of control due to student behaviour is sufficient to warrant the dismissal of a teacher;
• where there are reasonable grounds for the respondent to suspect that a loss of control may occur again, dismissal in the interests of student safety should be inevitable; and
• the rules concerning apprehended bias do not apply to investigations unless the perceived bias reaches a certain level.

Finding

The Commission found that it was more likely that the student walked away, based on consistencies between witness evidence and the student’s evidence, despite evidence from the employee and another witness to the contrary. Thus, the employee’s claim that he made physical contact with the student because there was a possibility of danger is unsustainable. Absent a valid reason for making physical contact with a student, physically moving a student by grabbing their clothing is not considered to be minimal or restrained contact.

It was inferred from the report that the investigation did consider the Regulations but ultimately found that the conduct was in contravention. Further, it was reasonable for the report to conclude that, consistent with the Guidelines, the employee should have initially attempted a non-physical intervention, which he did not do. Thus, the report’s conclusions were reasonable in light of all the circumstances.

As with Allegation 1, a disciplinary period of 7 – 8 months between the Allegations Letter and the Dismissal Letter was not prejudicial to the employee. The Commission found that the respondent discharged its onus of establishing that the employee was guilty of Allegation 2 and the misconduct justified dismissal.

Further, the Commission found that the report offered a largely accurate summary of the witness evidence, and the analysis and conclusions could reasonably be drawn from the entirety of the evidence. There were no grounds to suggest that a fair-minded lay observer might reasonably apprehend that the persons involved might not approach the investigation of Allegation 1 and Allegation 2 with an impartial mind.

Finally, the employee was provided with a fair opportunity to respond, including time to reflect and obtain legal advice. The employee was provided with procedural fairness, as part of the obligation on the respondent on instituting disciplinary action, to ensure he received a fair go. Thus, he was afforded substantive and procedural fairness in relation to the dismissal.

Conclusion

The Commission dismissed the applicant union’s application based on the above findings. The Commission was satisfied that the applicant had not discharged the onus to establish that the employee’s dismissal was harsh, oppressive or unfair.

The decision can be read here.

The Commission dismissed the claim that the respondent employer’s dismissal of the applicant employee for failing to comply with a COVID-19 vaccination direction was not harsh, oppressive or unfair.

The Commission found that the applicant sought leave without pay to circumvent compliance with the COVID-19 direction, making the employer’s refusal to grant such leave not unreasonable.  His failure to comply meant he was unable to perform the inherent requirements of the role he was employed to perform which was inconsistent with the continuation of his employment.

Background

The applicant commenced employment as a Fabrication Lecturer at the respondent employer’s Naval Base campus in 2018.

In mid-2020, the applicant told the respondent that his health was deteriorating, he was concerned about it, and he might look at reducing his hours to see if that would help with his health. From 2 August 2021, he reduced his hours to 0.71 of a full-time equivalent.

On or around 20 November 2021, the applicant requested time off without pay for six months. The applicant then applied for leave without pay for six months. Both requests were denied.

In November 2021, the respondent emailed its employees stating that it proposed to direct employees to be partially vaccinated against COVID‑19 before 31 December 2021 and fully vaccinated against COVID‑19 before 31 January 2022.

The applicant did not make a formal application to work remotely, just a request to do so, via email. He attempted to get an exemption from being vaccinated against COVID‑19 from a doctor but was unsuccessful.

The respondent issued the Employee Direction on 7 December 2021, stating failure to comply may result in disciplinary action, ranging from reprimand to dismissal.

The respondent wrote to the applicant on 25 January 2022, stating that he had not complied with the Direction. On 9 February 2022, the respondent informed the applicant that it was commencing disciplinary action and he had 10 days to respond. Following the applicant’s response, the respondent notified him that it found that he committed a breach of discipline, and the proposed outcome was dismissal. The applicant responded to such correspondence on 3 March 2022.

On 10 March 2022, the respondent notified the applicant by letter that he was dismissed for failure to comply with the Direction.

Contentions

 The applicant filed an unfair dismissal application on 6 April 2022. He sought reinstatement, continuity of employment and back pay or 6 months’ pay as compensation.

The applicant submitted that his requests for leave and to work from home on compassionate grounds based on ill health, were inadequately considered, contrary to the principles of fairness or the Employer Guidelines dated 21 December 2021.

Despite his acknowledgement that the Directions were lawful and his failure to comply with them constituted a disciplinary breach, the applicant contended that the procedure followed regarding the Direction was unfair, such that his dismissal was unfair. The applicant contends that being required to present proof of COVID‑19 vaccination or exemption when requesting leave or remote work constituted procedural unfairness. Finally, he asserts that the respondent predetermined dismissal as the only possible outcome without considering alternatives, resulting in procedural unfairness.

The respondent submitted that the applicant’s role as a trades lecturer requires direct instruction on the Naval Base campus. Although some aspects of his job could potentially be performed remotely, the primary function of demonstrating and instructing students cannot be performed from a remote setting. Thus, operational factors prevent the applicant from performing part of his role remotely and require the respondent to employ a substitute when he is absent.

Further, the respondent contended that the applicant sought an exemption from compliance with the direction through leave or remote work due to health reasons, despite being aware of the impending or already issued direction when making his requests. Further, the applicant sought six months of leave when, at the time, he had an accrual of approximately two and a half weeks of paid leave. Thus, he was effectively seeking Personal Leave Without Pay, without providing medical evidence.

The respondent submitted that, as per the Guidelines, the applicant had 14 days from his first scheduled day back at work to provide proof of vaccination or an exemption, upon which a disciplinary process would commence. The Guidelines allow unvaccinated employees to work remotely under exceptional circumstances only. The applicant did not provide evidence supporting the existence of exceptional circumstances to justify the accommodation, instead attempted to invoke the exception to distance himself from the workplace. Thus, the applicant breached the Direction, rendering him unable to discharge the duties of his job, constituting a serious breach of discipline, warranting dismissal.

The applicant refuted the claim that he sought leave to avoid receiving the COVID‑19 vaccine, reiterating that his requests for leave and subsequent remote work request were driven by health concerns related to his asthma. According to the applicant, the dismissal was unnecessary because the respondent could have approved either his request for leave or his request for remote work, notwithstanding his disciplinary breach.

Finding

The Commission dismissed the application because the applicant had not discharged the onus upon him to establish that his dismissal was harsh, oppressive or unfair.

The Commission found that the applicant submitted requests for leave and remote work to avoid the workplace, as being present would have necessitated COVID‑19 vaccination, which he had no intention of receiving. His denial of such is not substantiated by the evidence or the contemporaneous correspondence between him and the respondent.

This finding was supported by the applicant’s failure to provide any medical evidence supporting his asthma claim that might warrant his request. The evidence indicates he pursued a medical exemption from the COVID‑19 vaccine but was unsuccessful, implying that his condition does not satisfy the criteria for a valid medical exemption.

The Commission accepted evidence that no lecturers work remotely, and the applicant would be unable to perform the lecturing and practical aspects of his role from home. Consequently, the respondent would need to hire another individual to cover the lecturing and practical components of the applicant’s position, resulting in extra costs. The Guidelines make clear that this is a situation where a request may be denied.

The applicant’s failure to comply with the Direction meant he was unable to perform the inherent requirements of the role he was employed to perform and was inconsistent with the continuation of his employment.

Thus, the respondent’s refusal to grant the leave request was not unreasonable and the respondent did not exercise its legal right to dismiss so harshly or oppressively as to amount to an abuse of that right.

The decision can be read here.

The Full Bench found that the Australian Nursing Federation had contravened the Commission’s orders made on 18 and 23 November 2022 by holding a member ballot, taking industrial action, encouraging its members to take industrial action and making public statements regarding such action.

 The Australia Nursing Federation received a penalty of $350,000 for organising a State-wide strike of 1,808 members on 25 November 2022, providing transportation to strike events and paying 939 members a strike pay subsidy, which was in contravention of the Commission’s orders and had a major impact on the State health system.

Background

In mid-July 2022, negotiations began between the Australian Nursing Federation (ANF) and the West Australian Department of Health (Department) for a new industrial agreement covering ANF members in public hospitals in the state.

In mid-October 2022, ANF members authorised potential industrial action, including a strike between 24 and 30 November 2022.

In early November 2022, the Department requested a compulsory conference to assist negotiations under s 44 of the Industrial Relations Act 1979 (WA).

On 15 November 2022, the Department made a conditional offer with a three percent wage increase, contingent on the ANF stopping planned rolling stoppages. After agreeing 'in principle' to the offer, ANF members were to vote on it.

On 17 November 2022, ANF Secretary, Ms Reah, expressed dissatisfaction with the offer, suggesting a State-wide strike if members voted 'no.' An online poll opened on 18 November 2022, and remained open until 22 November 2022, for ANF members to vote on the offer.

On 18 November 2022, the Senior Commissioner convened another compulsory conference between the ANF and Department representatives. Following the conference, the Senior Commissioner issued orders to postpone the ballot for ANF members to vote on the employer's offer and prohibited the ANF from making any public statements or commentary regarding voting for or against the offer or requesting a better offer.

Relevantly, the Senior Commissioner made the following order:

1. THAT the ANF, by its officers, employees and members, must defer the conduct of any ballot, poll or survey of members to gauge the level of support for acceptance of the Offer until 9:00 a.m. on 28 November 2022;
2. THAT from the time of issue of this Order and the conclusion of any ballot conducted in compliance with this Order, the ANF, by its officers and employees, are not to make any public statements, commentary or media statements, whether in writing or verbally, which:

(a) portray the ANF, its officers or employees as maintaining a claim for a replacement agreement with terms that are better than the Offer;

(b) direct or encourage in any way its members to vote for or against acceptance of the Offer.

…

Between 18 and 23 November 2022, the ANF violated orders by keeping the ballot open beyond the specified date and making public statements against the orders, including plans for a State-wide strike on 25 November 2022.

On 22 November 2022, Ms Reah announced the rejection of the offer in the ballot and declared a State-wide strike on 25 November 2022. Preparations for the strike continued. These included the creation of a 'Strike Guide,' an offer to provide a 'strike pay subsidy' of $150 to members who might incur pay deductions due to their participation in the industrial action, and the publication of information regarding bus services to facilitate member transportation to the Parliament House rally.

On 23 November 2022, the resumed compulsory conference before the Senior Commissioner occurred. The Department sought interim orders to halt the planned strike, citing the ANF's short notice, its demand for a five percent wage increase, and the potentially severe impact on the state's health system.

The Senior Commissioner was not persuaded that the risks of the planned industrial action could be adequately managed or mitigated. She noted that there was a serious and significant risk to the health and safety of the public and employees, the Department’s authority to manage the health system and the community’s interest in having access to safe, high-quality health services.

The Senior Commissioner made the following relevant orders:

1. THAT the respondent, by its officers, employees and members, must refrain from taking and cease the specified industrial action.

Specified industrial action means industrial action on and from 25 November 2022 comprising work stoppages, being absent from duty, walking off the job or closing hospital beds.

But excludes:

(a)     attendance at a rally organised by the ANF where the attendance is outside rostered work hours.

(b)     absences due to genuine illness or injury, or for carer’s leave or on approved leave; and

(c)     work stoppages by an employee based on the employee’s reasonable concern about an imminent risk to their health or safety; where the employee did not unreasonably fail to comply with a direction of the Employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

Employer means any employer party to the WA Health System ‑ Australian Nursing Federation ‑ Registered Nurses, Midwives, Enrolled (Mental Health) and Enrolled (Mothercraft) Nurses ‑ Industrial Agreement 2020.

(No Strike Order)

2. THAT by no later than 10.00 am on 24 November 2022, the respondent is to inform its members employed by an Employer of the terms of this Order and direct its members to comply with this Order* by:

(a)     email transmission to such members;

(b)     publication of the Order on the respondent’s website;

(c)     publication of the Order on the respondent’s Facebook page; and

(d)     placing a copy of this Order on the notice boards usually used by any Employer for the purposes of communicating with the Employees.

*Note that the respondent may be liable for a failure by its members to comply with this Order in accordance with the principles in Ducasse v Transport Workers’ Union of Australia, Industrial Union of Workers, Western Australian Branch (1995) 76 WAIG 330 at 333.

(Notice Order)

3. THAT the respondent, by its officers, employees, agents and members are not to direct, encourage, in any way, employees working for any Employer to engage in any specified industrial action, including by paying or offering to pay employees who are absent from duty without authorisation or walk off the job.

(No Encouragement Order)

4. THAT the respondent by its officers, employees, agents and members are not to engage in public commentary or media statements which incite, promote, encourage, or notify of any specified industrial action.

(No Public Comment Order)

…

After the conference, Ms Reah told the media, in effect, that the strike would still occur on 25 November 2022. Ms Reah also sent a letter to the Senior Commissioner stating, in effect, that the ANF does not intend to comply with the 23 November 2022 orders.

On the evening of 23 November 2022, Ms Reah emailed ANF members, sharing a document titled 'ANF Strike Guide 2022,' providing strike details and mentioning a $150 strike pay subsidy.

On 24 November 2022, the Senior Commissioner’s Associate summoned Ms Reah to attend a compulsory conference on 25 November 2022.

On the morning of 25 November 2022, Ms Reah publicly refused to respond to the summons and emphasised her prioritisation of ANF members. She did not attend the compulsory conference.

On 25 November 2022, approximately 1,758 ANF members working in the public health system engaged in industrial action, violating the No Strike Order. The actions involved walking off the job or not reporting for duty. These activities included rallies held at multiple locations across the State, such as Parliament House and Dumas House in Perth, as well as in Albany, Broome, Bunbury, Geraldton, and Karratha. The ANF arranged and financed bus services through Horizons West to transport members to the Parliament House rally, with around 1,470 members registering for this service. Additionally, the ANF provided various materials to participants in preparation for the rallies, and speeches were delivered by Ms Reah and others representing the ANF at these gatherings.

On 28 November 2022, the Senior Commissioner directed the Registrar to initiate proceedings before the Full Bench to enforce her orders of 18 and 23 November 2022, and for Ms Reah’s failure to comply with the summons. Additionally, the Senior Commissioner consulted with the ANF regarding the possibility of directing the Registrar to issue a summons to the ANF to appear before the Commission in Court Session, to show cause why its registration should not be cancelled or suspended due to non-compliance with her orders of 18 and 23 November 2022.

On 3 December 2022, during an urgent meeting of the ANF Council, resolutions were passed, including the commitment to pay fines resulting from alleged breaches of orders on behalf of the ANF, the Secretary, employees, and members. The ANF also agreed to reimburse members for wage deductions of up to $150 for participating in the 25 November 2022 strike.

During these events, the ANF received extensive media coverage, during which the organisation publicly and repeatedly expressed its defiance of the Senior Commissioner's orders of 18 and 23 November 2022 and criticized the Commission for issuing them.

Contentions

The Registrar commenced these proceedings under s 84A of the Act in response to the failure of Ms Reah to respond to the summons to attend the compulsory conference on 25 November 2022, and the ANF’s failure to comply with the Senior Commissioner’s orders. Ms Reah and the ANF largely admitted the alleged conduct.

At the outset of the proceedings on 12 April 2023, the Registrar's counsel informed the Full Bench that the conferral of the parties had led to an agreed position regarding a proposed penalty for consideration. The agreed penalty against the ANF amounted to $350,000, with the Registrar’s allocation of the proposed penalties for each contravention as follows:

Counsel for the Registrar contended that the agreed penalty amount and the table should be considered in light of the course of conduct principle and the totality principle.

Senior counsel for Ms Reah and the ANF confirmed that the agreed total penalty of $350,000 for the ANF and a maximum penalty of $10,000 for Ms Reah. They suggested that the total sum should be apportioned among the 39 categories of contraventions, resulting in a penalty of approximately $8,974.35 per category, close to the maximum $10,000 penalty per contravention as prescribed by the Act.

Initially, senior counsel for Ms Reah stated that she proposed to give an undertaking that all further orders of the Commission would be complied with in the usual form and manner. The Registrar responded that such an undertaking fell far short of what could be regarded by the Full Bench as a mitigating circumstance under s 84A(4)(a) of the Act. Further, the Registrar submitted that, given the conduct and behaviour of Ms Reah and the ANF, there was no contrition or remorse expressed as a part of the undertaking and that it ought to be given little weight. The following day, 13 April 2023, Ms Reah and the ANF filed documents entitled ‘Undertaking As To Future Conduct’, which acknowledged the gravity of the conduct, assured compliance with future orders and

…reassure[d] the Full Bench that its' future conduct in relation to matters within the jurisdiction of the Western Australian Industrial Relations Commission (‘WAIRC’) will be unqualifiedly according to the provisions of the IR Act

Findings

 The Full Bench ordered and declared that:

1. Ms Reah failed to comply with a summons issued under s 44(3) of the Act on 24 November 2022, and she personally pay a penalty of $10,000 to the State, within 21 days; and
2. the ANF contravened, or failed to comply with, the orders of the Senior Commissioner of 18 November 2022 and 23 November 2022, and that it pay a penalty of $350,000 to the State, within 21 days

Kenner CC

On balance, the Chief Commissioner was satisfied that the State-wide strike by the ANF had a major impact on the State health system. Further, the total number of employees taking industrial action on 25 November 2022, by walking off the job or failing to report for duty, was 1,808. Those 1,808 employees were members of the ANF.

It was an agreed fact that 1,470 ANF members registered for the buses on the ANF iFolio system. Offering free bus transport to members to enable them to walk off the job or to be absent from duty, so they can attend a rally as a key part of an act of industrial action, and the taking up of that offer by a process of registration of intent, was an act of encouragement by the ANF to take part in the strike on 25 November 2022.

 The Registrar submitted, and the ANF did not contest, that a comparison of the lists of staff recorded as having taken unpaid strike leave on 25 November 2022 and those members of the ANF registering for bus transport to the rally, at Parliament House, contained 808 names common to both lists.  On balance, the Chief Commissioner was satisfied that 808 members of the ANF contravened or failed to comply with the No Encouragement Order in this respect. 

 Finally, as submitted by the Registrar, and seemingly accepted by the ANF, the Chief Commissioner found that 939 ANF members were paid a strike pay subsidy.

 The Chief Commissioner accepted the Registrar’s approach to agreed penalties. This approach enabled the Full Bench to determine the outer limits of the maximum penalties that may be applicable, before weighing in the balance both the course of conduct and totality principles, to establish an appropriate, final penalty amount.

 It was appropriate that Ms Reah pay the maximum penalty of $10,000 because she was the leader of the ANF and its principal spokesperson during the dispute leading to the State-wide strike and was, at all material times, the public face of the ANF campaign. Further, Ms Reah’s deliberate non-compliance with the summons to the s 44 conference before the Senior Commissioner on 25 November 2022 required a significantly high specific and general deterrent to make clear that such acts of non-compliance will not be tolerated by the Commission. Ms Reah’s undertaking as to future conduct was also taken into account.

 The Chief Commissioner found that the agreed penalty of $350,000 is a just and appropriate outcome because it reflects the serious nature of the ANF’s conduct, which occurred over a considerable period. The ANF’s conduct was contumacious and was at the most extreme end of the seriousness criterion. The ANF's most serious conduct was its public defiance of the Commission's orders and its outspoken criticism of those orders, which was exacerbated by its deliberate and highly publicised actions conveyed through the media. The tone of the ANF’s communications was belligerent non-compliance.

 The ANF Council unanimously resolved to ignore the Senior Commissioner’s Defer Ballot Order and affirmed on multiple occasions to proceed with the unlawful industrial action, contravening the Senior Commissioner’s No Strike Order.

 The ANF Council’s deliberate and open resolution to pay any fines resulting from the breach of the Senior Commissioner's orders and, in clear defiance of the No Encouragement Order, provide the strike pay subsidy to members affected by the strike, was most contumacious and highlighted the need for specific and general deterrence.

 Such actions by the ANF Council were aggravating factors.

However, the mitigating circumstances included the ANF’s undertaking and that the ANF largely admitted the allegations in the Registrar’s particulars of claim. Further, the ANF was not the subject of any prior s 84A enforcement action by the Full Bench.

Kucera C

Commissioner Kucera agreed with the Chief Commissioner’s reasons, including the assessment of the number of breaches and how those breaches are characterised. Commissioner Kucera considered that the Chief Commissioner’s conclusion that the 3,590 individual contraventions that the Registrar particularised, each capable of constituting a single contravention for which the ANF was potentially liable, was unavoidable.

 Further agreeing with the Chief Commissioner, Commissioner Kucera stated that the ANF repeatedly breached the No Encouragement Order when it determined a member's eligibility for and made strike payments. This non-compliance persisted over an extended period, indicating a pattern of intentional violations for each payment made. Despite being a part of a continuing course of conduct, the conduct is not a single contravention. This attracts a higher overall penalty.

 Commissioner Kucera outlined the background facts before finding that the ANF made no effort to comply with the Defer Ballot and No Further Claims orders. But instead, it actively and deliberately, resolved to and did defy such orders publicly.

 The ANF endorsed and supported the conduct outlined in Ms Reah’s letter to the Senior Commissioner by passing resolutions regarding the State-wide strike. The ANF breached the No Encouragement Order by arranging buses for strike participants and paying $140,000 in strike payments to 939 members. Commissioner Kucera considered that the ANF knowingly accepted the risk of potential consequences for violating the Commission's orders, essentially viewing any potential penalties as a cost of doing business.

 The State-wide strike’s impact on the public health system, including the cancellation of elective surgeries and outpatient appointments, was significant.

 In absence of the ANF’s undertaking, the penalty imposed would have been more than $350,000 because the ANF had not expressed remorse for the conduct.

Emmanuel C

Commissioner Emmanuel considered a penalty of $350,000 insufficient to meet the requirements of specific and general deterrence in this matter. The outcome proposed by the parties reflects one ‘that the contravening party may simply see as an acceptable cost of doing business’. Such a quantum would not be a just and appropriate outcome.

Considering the seriousness and overall contumacy of the ANF’s conduct and the ANF’s repeated public statements that it would defy the orders, Commissioner Emmanual would order that the ANF pay a penalty of $480,000.

The decision can be read here.

The Public Service Appeal Board dismissed an employee’s appeal against the decision of her employer to dismiss her because she continued to refuse to wear a mask at work, in breach of two lawful directions, and was absent from work without authorisation.

The only available outcome of the disciplinary action was dismissal, which was proportionate to the appellant’s ongoing conduct of attending work without a mask, breaching a Public Health Order, and refusing to return to work despite not having a medical certificate.

Background

The appellant commenced employment with the Department on 4 August 2008. She performed various roles on a permanent full-time basis.

From 13 March 2018 until her dismissal, the appellant worked as a "Group 3 Governance Assurance Officer" and had been absent from work since 22 February 2022. Her initial absence was due to her refusal to wear a face mask at work, which was a requirement of the 29 January 2022 Public Health Order (PHO).

Several PHOs were issued in preparation for reopening Western Australia's borders after COVID-19-related closures. The mask directions applied to all Department employees. An exemption from wearing a mask could only be provided by a doctor.

The appellant had issues with the face mask requirement, as well as the requirement to provide evidence of vaccination status. On 28 January 2022 and 15 February 2022, she emailed the respondent, requesting information about the mask directions and placed a series of conditions on her compliance with the directions. On 17 February 2022, the respondent, in a letter from the Acting Executive Director of People and Culture, responded to the appellant’s letters. The response explained that the respondent did not have a discretion to ignore or make exceptions to the mask directions or any other PHOs, including those relating to mandatory vaccinations.

The appellant attempted to return to work without wearing a mask on 4 and 22 February 2022, both times she was told to leave the workplace.

The appellant obtained and submitted a medical certificate which declared her unfit to work due to a “medical condition”, for the period 4 to 18 March 2022. This period was taken as personal leave. The appellant did not return to work on 21 March 2022, as required. The respondent sent multiple emails to the appellant, inquiring why she was absent from work and when she would return and putting her on notice regarding her ongoing absence from work and the requirement for her to wear a mask at work despite her opposition. Following this, the respondent issued a Return to Work letter on 22 April 2022. The appellant replied on 27 April 2022, demanding that her return was dependent upon her previous conditions being met.

Despite the PHO related to face masks being lifted on 28 April 2022, the appellant did not return to work, request annual leave, or provide any medical certificate or justification for her continued absence.

On 27 May 2022, the respondent sent a letter to the appellant which warned her of impending disciplinary action. On 3 June 2022, the appellant responded, asserting the directions she had received were unlawful and demanding compensation for the loss she claimed to have suffered due to the “unlawful actions”. On 3 August 2022, the respondent terminated the appellant's employment due to her unauthorised absence. Although dismissed for misconduct, the letter of dismissal confirmed the respondent would pay the appellant four weeks’ wages in lieu of notice, along with any leave entitlements owing to her on termination.

Contentions

On 24 August 2022, the appellant filed an appeal against her dismissal. The appellant sought reinstatement and an order for back pay for wages and other entitlements on and from 22 February 2022 to the date of her reinstatement.

The appellant challenged the dismissal decision on two bases; that she was denied procedural fairness and there were alternatives to dismissal the respondent should have imposed instead of dismissing her. Regarding the second ground, the appellant takes issue with the severity of the disciplinary action. During the hearing, the appellant conceded that the Board was only permitted to consider the dismissal decision and whether that decision should be adjusted by re-instating her.

Findings

The Board dismissed the appeal.

The evidence established that from as early as 4 February 2022, the appellant refused to comply with the mask directions. She directly breached the mask direction on two occasions by refusing to wear a mask in the workplace, on 4 and 22 February 2022.

The evidence also showed the appellant was insistent. She would not return to the workplace wearing a mask unless the respondent met the conditions set out in her letters of 28 January and 17 February 2022.

From 21 March until 29 April, the appellant was in breach of two lawful directions for which the respondent could have commenced disciplinary action. One was her continued refusal to wear a mask at work, the other being absent from work without authorisation. The Department’s response on both matters did not waiver.

There was little doubt the appellant’s ongoing conduct by refusing to comply with the Department’s directions to return to work after 3 May 2022 was inconsistent with the continuation of her employment.

The Board did not accept the appellant was denied procedural fairness. There was a very long period to the dismissal decision. The appellant should have been under no illusion that she had embarked upon a course that placed her employment in jeopardy. The process the respondent followed was procedurally fair, which gave the appellant an opportunity to respond to matters for which there were potential adverse consequences.

The Board found there were no alternatives to dismissal. The appellant’s dismissal was in the circumstances of this case, a proportionate response to the conduct for which she was dismissed. This finding was based on the opportunities the respondent gave the appellant to comply with the respondent’s reasonable and lawful directions; the payment of notice on termination; the length of time she spent off work; the appellant’s ongoing refusal to return to work despite not having a medical certificate; as well as a factor favourable to the appellant, her lack of a prior disciplinary history.

The decision can be read here.

The Tribunal granted the stay application, which was unopposed, regarding an Improvement Notice issued by a WorkSafe Inspector because the applicant had at least an arguable case and there was a serious question to be tried.

The stay was necessary to preserve the subject matter or integrity of the litigation, as compliance with the Improvement Notice before the hearing of the substantive application could create practical difficulties.

Background

In February 2023, a WorkSafe Inspector issued an Improvement Notice to the applicant, requiring it to take practical measures to ensure its employees are not exposed to hazards arising from a lack of fresh air ventilation when working at the workplace by 24 March 2023. WorkSafe later extended the time for compliance with the Improvement Notice to 31 May 2023.

Contentions

The applicant applied to the Tribunal for an external review. The applicant argued that the Improvement Notice was invalidly issued and the Work Health and Safety Act 2020 (WA) does not require it to implement the measures in the Improvement Notice. The applicant sought a stay of the Improvement Notice, which WorkSafe did not oppose.

In summary, the applicant submitted that the balance of convenience favoured a stay, because:

1. the imposition of the disputed measures was at the heart of the substantive application;
2. without a stay, the applicant would be susceptible to prosecution if it did not comply with the Improvement Notice, in circumstances where the applicant argued that the Improvement Notice was invalidly issued and required the applicant to take measures that the WHS Act does not require it to take;
3. there is public interest in not allowing statutory compliance and enforcement tools to be used by the regulator to extend the nature and operation of the duties that Parliament has imposed;
4. the public has an interest in workplace safety, but this is not a case where there is no safety management in place;
5. there would be no disadvantage to WorkSafe if the stay was granted; and
6. WorkSafe did not oppose the stay.

WorkSafe contended that:

1. the WHS Act does not prescribe the matters to be taken into account by the Tribunal when deciding whether to grant a stay;
2. the Tribunal should infer that the public interest is also a relevant consideration of a stay application under the WHS Act; and
3. this was a matter where time can be allowed for the implementation of the improvement measures.

Further, WorkSafe acknowledged that the applicant was entitled to an external review of the relevant decision with the opportunity to present evidence and submissions contrary to the WorkSafe Inspector’s view.

Findings

The Tribunal granted the application because it was satisfied that the balance of convenience favoured the grant of the stay.

The stay was necessary to preserve the subject matter or integrity of the litigation.  If a stay was not granted, the applicant would be required to implement the measures in the Improvement Notice by 31 May 2023 or risk prosecution. This created practical difficulties regarding the relief that could be granted by the Tribunal if the applicant were to comply with the Improvement Notice and then be successful in its substantive application. As WorkSafe rightly conceded, once the improvement measures are implemented, from a practical perspective, the appeal would be rendered nugatory.

Considering the grounds of appeal there was at least an arguable case and there was a serious question to be tried regarding the reasonableness of the decision the subject of external review.

The public interest was relevant to the Tribunal’s consideration of the application.  It was apparent from WorkSafe’s response to the application that it did not consider that a stay would create unacceptable risks for workers and others in the workplace.

The decision can be read here.