The Public Service Appeal Board dismissed an employee’s application for an extension of time to appeal against her employer’s decision to terminate her because she had committed two breaches of discipline by not being vaccinated against COVID-19 or having a medical exemption.

The Public Service Appeal Board dismissed an application to accept the appeal out of time because the employer took all reasonable steps to inform the appellant of the termination decision, despite the appellant denying that she knew of the decision. Thus, there was no adequate explanation for the significant delay of 36 days.

Background

The appellant was dismissed as a Level 2 Support Office for the Department of Justice on 21 June 2022, after the Director General found that she had committed two breaches of discipline by not being at least partially vaccinated against COVID-19, or providing evidence of a medical exemption, by 5 February 2022.

The respondent notified the appellant of the disciplinary process before 18 May 2022. On 18 May 2022, the appellant emailed a temporary medical exemption to the respondent but did not respond to the allegations of breach of discipline.

On 26 May 2022, the respondent sent the appellant a letter stating that the breach of discipline allegations were substantiated and dismissal was the proposed disciplinary action. On 21 June 2022, the respondent confirmed, by letter to the appellant, that she was dismissed with immediate effect. Such emails also stated that the respondent left the appellant voice messages on her phone.

On 25 July 2022, the appellant wrote to the respondent querying her return-to-work date. On 26 July 2022, the respondent emailed the appellant stating once again, in effect, that she had been dismissed.

The time to file an appeal expired on 12 July 2022 (21 days after the decision to dismiss). Thus, the appellant filed her appeal 57 days after the respondent dismissed her, which was a delay of 36 days.

Contention

The appellant sought an extension of time to file her appeal on the ground that the Director General did not provide her with information relating to her disciplinary proceedings until 9 June 2022, and she did not know that she had been dismissed until 26 July 2022.

The respondent opposed the extension of time, particularly as the Director General made several attempts to contact the appellant about the outcome of the disciplinary proceedings.

The factors considered when determining whether an appeal should be accepted out of time include:

1. the length of the delay;
2. the reasons for the delay;
3. the prospect of the appellant succeeding in the appeal; and
4. the extent of any prejudice to the respondent.

The respondent submitted that a 36-day delay is significant where the appeal period is 21 days.

 The reasons for the delay

The appellant stated that she did not know that she had been dismissed until the respondent’s email on 26 July 2023. She stated that she had not checked her emails for a month before 25 July 2022 and had not received any letters or voice messages. 

The respondent contended that there was no reasonable explanation for the delay, on the basis that it is implausible that the appellant had not checked her emails for a month unless she was attempting to avoid receiving a dismissal letter. Further, the respondent had taken contemporaneous notes regarding the attempted phone calls and voice messages left for the appellant. Thus, the Appeal Board should accept that the telephone calls were made.

Whether the appellant has an arguable case

The appellant maintained she had an arguable case because she held a valid medical exemption before and at the time of dismissal, which meant that her dismissal was unlawful and that it was harsh or disproportionate.

The respondent submitted that the appellant did not comply with the Employee Direction, only submitting a medical exemption three months after she was required to do so, on 18 May 2022.

The extent of any prejudice to the respondent

The respondent conceded that an extension would not create any particular prejudice, beyond that experienced by any respondent.

Findings

The Appeal Board dismissed the appeal because the appellant had no good reason for the delay and the delay was significant. Thus, it was not in accordance with equity and good conscience to extend the time for appeal.

The length of the delay

The Appeal Board considered the delay significant.

The reasons for the delay

The appellant did not provide a reasonable explanation for the delay.

The respondent attempted to ensure that the appellant was aware of and received the communication. The Appeal Board found that the respondent did everything reasonably necessary to communicate with the appellant. Further, the appellant was trying to avoid communication from the respondent.

Whether the appellant has an arguable case

Although the appellant’s Notice of Appeal did not expressly contend that the dismissal was harsh or disproportionate, taking the case at its highest, the Appeal Board considered that the case may be arguable.

The decision can be read here.

An employee was entitled to two months’ notice under the employment contract, having only received one week’s notice, and the equivalent monetary value of seven weeks’ notice was awarded.

The Commission ordered an employer to pay $22,884.62 to a former employee, after finding that the employee was entitled to seven weeks’ notice under their employment contract because the termination provision did not distinguish between a trial or probation period and ongoing employment and there was no ambiguity in the contract.

Background

The applicant commenced work with the respondent on 1 November 2021 as the General Manager. On 27 October 2021, the respondent sent the applicant a letter titled ‘Contract of Employment’, by which the respondent offered the applicant employment and set out the terms of the employment contract. Relevantly, the contract stated that the employment may be terminated by the applicant or the respondent by “providing a minimum of 2 months [sic] notice”. In a different part of the letter, it also stated that the applicant’s employment contract was “subject to a trial period of 6 months”. The respondent terminated the employment contract on 8 April 2022, providing the applicant with the equivalent of one week’s notice.

Contentions

The applicant sought an order for the respondent to pay him the equivalent of a two months’ notice period, less the one week’s notice he received, being $22,884.62. The applicant contended he was entitled to such amount under the employment contract.

The respondent opposed the application, stating that the applicant was only entitled to one week’s notice, in accordance with the Fair Work Act 2009 (Cth), because the applicant’s employment was terminated during the probation period and he was on a probationary agreement.

Findings

The Commission found that the term of the employment contract concerning notice of termination provided for a minimum notice period of two months and did not distinguish between the trial or probation period and ongoing employment. There was no ambiguity surrounding the notice of termination term and therefore, the provisions of the FW Act concerning minimum notice periods were not implied into the employment contract.

As such, the applicant was entitled to the benefit of the contractual term requiring two months’ notice of termination of his employment contract.  Having already received the equivalent of one week’s pay at the time of termination, the Commission awarded the applicant the equivalent of seven weeks’ notice, being $22,884.62.

The decision can be read here.

An application for the administration of interrogatories was dismissed because of the tight timetable in the substantive proceedings and the nature of the questions posed in the proposed interrogatories made such an application unreasonable and oppressive.

On 17 March 2023, in proceedings for enforcement of orders of the Senior Commissioner, following an application by the applicant, the Full Bench made orders requiring the respondent to give discovery on affidavit of various categories of documents and for substituted service of a summons. However, an order for the administration of interrogatories was refused. The following is a summary of the reasons for such refusal.

Background

On 15 February 2023, the Full Bench ordered the respondent to give discovery on affidavit of various categories of documents by 27 February 2023. The subsequent discovery that the respondent filed on 27 February 2023 was manifestly inadequate and failed to comply with the 15 February 2023 order. In direct contravention, and a contemptuous failure to comply with the order of the Full Bench, the respondent simply refused to provide the documents required.

Contentions

The applicant’s interlocutory application posed 40 questions that it sought the respondent to answer. The applicant submitted that the proposed interrogatories sought to be answered were for the purpose of identifying potential contraventions of the orders made by the Senior Commissioner the subject of these proceedings and disclosing factual material relevant to those alleged contraventions. The proposed interrogatories included questions regarding communications to members, public statements and decisions made by the respondent. The applicant further submitted that answers to the questions posed would aid in the Full Bench having before it in the substantive proceedings all the relevant material, to enable it to determine the respondent’s conduct and the seriousness of any contraventions.

The respondent opposed the application for interrogatories, on grounds that granting the application would be oppressive and likely to lead to a significant delay in the respondent’s preparation for the substantive proceedings. The respondent also submitted that many of the questions were vague and objectionable.

Findings

The Full Bench dismissed the application because, given the tight timetable agreed to by the parties and the nature of the questions posed in the proposed interrogatories, an order to require the respondent to answer the questions in the available time would be unreasonable and oppressive.

Further supporting the application’s dismissal was the existing direction requiring the parties to put on written evidence‑in‑chief approximately one week from the date of this decision’s delivery.

The decision can be read here.

A constable’s dismissal from the Western Australian Police Force was the result of disciplinary procedures under Part II of the Police Act 1892 (WA), under which no appeal to the Western Australian Industrial Relations Commission lies.

The Commission found that it did not have jurisdiction to hear an appeal arising from the Police Appeal Board’s decision to uphold the dismissal of a First Class Constable in the Western Australian Police Force, which resulted from a disciplinary offence conviction.

Background

The appellant was a First Class Constable in the Western Australian Police Force from approximately 2014 to September 2022.

In September 2022, the appellant was charged with and subsequently convicted of a disciplinary offence for his unwillingness to become vaccinated against COVID‑19 in accordance with the Police Force Regulations 1979 (WA). As a result, he was dismissed for disobeying the Commissioner of Police’s direction requiring him to have at least one COVID‑19 vaccination by 1 December 2021, unless a medical exemption applied.

The appellant appealed the dismissal decision to the Police Appeal Board. The Board heard his appeal on 1 November 2022, dismissed the appeal and confirmed the dismissal.

Contentions

The appellant sought to appeal the Board’s decision to the Commission under s 33 of the Police Act. He stated that the dismissal was unjust and unfair and he felt that he had not had a proper opportunity to voice his concerns, including his religious objections to vaccination.

The respondent contended that the Police Act gives the Commission jurisdiction to determine appeals by police officers against removal action under Part IIB Division 3 of the Police Act. Removal action procedures are distinct from the disciplinary procedures set out under Part II of the Police Act. The respondent contended that the appellant’s dismissal was the result of disciplinary procedures.

Findings

The Commission dismissed the appeal for want of jurisdiction because there was no appealable decision.

The appellant appealed the ‘disciplinary offences’ (i.e. the circumstances resulting in his dismissal in September 2022) to the Board under s 33E of the Police Act. The Board’s decision was final, in accordance with s 33H, with no further appeal available. The appellant’s dismissal was not ‘removal action’ under s 33L, to which an appeal to the Commission lies under s 33P(1).  

The decision can be read here.

Industrial Magistrate dismisses the claim by two employees that the employer breached clause 36A of the Public Service Award 1992 during disciplinary processes.

The Industrial Magistrate dismissed the employee’s claim because the Industrial Magistrate found employer clearly conveyed to each employee that they were permitted to have a union representative, the representative advocated on behalf of the employee and there is no requirement for direct correspondence with an employee’s representative.

Background

On 22 May 2020, the respondent commenced separate disciplinary processes for two employees under Part 5 of the Public Sector Management Act 1994 (WA).

By letter dated 15 June 2020, Ms Arntzen (Industrial Officer, Civil Service Association) notified the respondent that the claimant represented one of the employees and responded to the disciplinary allegation. By letter dated 12 June 2020, Mr Tebbutt (Industrial Officer, CSA) notified the respondent that the claimant represented the other employee and responded to the allegation.

On 21 January 2021, the respondent emailed the employees separately, inviting them to meetings to be held the following day, 22 January 2021. The emails explained the purpose of the meeting was to discuss the outcomes of their respective disciplinary processes. However, such emails were not sent to Ms Arntzen or Mr Tebbutt.

Contentions

The claimant alleged the employer contravened clause 36A of the Public Service Award 1992 by:

1. not directly informing the claimant or the employee’s representatives (Ms Arntzen and Mr Tebbutt) about the meeting on 22 January 2021 (contravening cl 36A(4));
2. not allowing Ms Arntzen to advocate on behalf of the employee which she represented at the meeting (contravening cl 36A(6));
3. not providing the letter of outcome to Mr Tebbutt prior to the meeting (contravening cl 36A(4); and
4. refusing to reschedule the meeting when requested by Mr Tebbutt (contravening cl 36A(5).

Findings

The Industrial Magistrate dismissed the claim.

Contention 1

The representative’s letters constituted notification in writing of representation as contemplated. Thus, clause 36A(4) was engaged, requiring the employer to recognise the “person’s” representational capacity in all future dealings on that matter.

The employer clearly conveyed to each employee that they were permitted to have a union representative with them at the 22 January 2021 meeting. This constituted recognition of the claimant’s representational capacity in the disciplinary matters.

Although the employer dealt directly with each employee, an employer subject to the Award is at liberty to correspond directly with its employees, while at the same time recognising the representational capacity of a nominated representative in the manner contemplated by cl 36A of the Award.

Contention 2

Ms Arntzen gave evidence, corroborated by contemporaneous documentation created by the employee, that the employer’s director spoke over her at the 22 January 2021 meeting. On the basis of this evidence, the Industrial Magistrate accepted that the employer’s director had spoken over Ms Arntzen and effectively shut her down.

However, the evidence also showed that Ms Arntzen had made comments on the disciplinary process during the meeting, including noting that the meeting had been arranged at very short notice and that this had caused considerable stress for the employee. By making such statements, Ms Arntzen was advocating for the employee.

Thus, the claim that the employer breached cl 36A(6) of the Award by not allowing Ms Arntzen to advocate on behalf of the employee fails.

Contention 3

As to this claim, the employer must recognise the “person’s” representational capacity in all future dealings on that matter. There is nothing in the Award which justifies interpreting the word “recognise” as including a requirement of service of documents upon an employee’s representative.

Contention 4

Following the employer’s refusal to reschedule the meeting at Mr Tebbutt’s request, the meeting went ahead at the scheduled time, and Mr Abrahamson of the CSA attended as the employee’s representative.

Thus, there was no breach of cl 36A(5) of the Award because the respondent permitted the representative, i.e. the CSA, to attend, in the form of Mr Abrahamson.

The decision can be read here.