The Public Service Appeal Board has dismissed an Electorate Officer’s appeal against a decision terminating her employment for misconduct.

Background

The Electorate Officer was a long-standing employee of the Speaker of the Legislative Assembly, employed as an Electorate Officer in the Kwinana Electorate Officer of MLA Roger Cook. Over about 4 years, she travelled overseas with her family to Europe, Bali and Vietnam, whilst being paid wages. She was also away from the workplace for 8 work-days while she was in hospital.

Findings

The Board found that the Electorate Officer was not entitled to be paid when not at work, unless she was exercising a right to take annual leave or personal leave, in accordance with the applicable industrial award or industrial agreement. The Electorate Officer had not applied for annual leave for her overseas travel. Instead, she either did not apply for leave at all, or applied for personal leave. When the Electorate Officer applied for personal leave for her time in hospital, she only applied for 2 days’ leave, not 8.

The Board found that the Electorate Officer’s overseas trips were holidays, and the circumstances in which they were taken did not entitle her to personal leave. She ought to have applied for annual leave, but did not do so. As a result she was paid wages while she was not at work, without any deduction from her annual leave accrual. That conduct amounted to the dishonest receipt of benefits which the Electorate Officer was not entitled to receive. It was therefore misconduct, justifying dismissal.

Similarly, by applying for only 2 days’ personal leave when the Electorate Officer was actually in hospital for 8 working days, the Electorate Officer was again paid for days she was not at work or working, without deduction from her leave accruals. This was also an abuse of leave entitlements, which amounted to misconduct.

The Electorate Officer alleged that the MLA for whom she worked knew where she was at all times, and approved her absences. She said her access to leave was consistent with informal procedures.  The Board said that whether or not misconduct occurred does not depend on proof of a contravention of a policy or procedure, whether it be formal or informal. The real question is whether the employee acted knowingly and dishonestly by claiming benefits that she was not entitled to receive. An employee’s duty of fidelity and good faith is fundamental to employment. Dishonestly receiving unearned benefits is inimical to this duty.

The Board also noted that the MLA’s approval of an absence from work was not the same as authorising the payment of benefits that the Electorate Officer was not entitled to receive, nor did it authorise the lack of a deduction from the appropriate leave accrual.

The Board found that the employee knew that by not submitting the correct leave application forms, she would receive payment of salary as if she was working, and that she knew she improperly benefited from her conduct.  The purpose of personal leave and the need for submitting correct and accurate application forms had been explained to her by Human Resources in the past, including when past overpayments were recouped from her.

Accordingly, the Board concluded the Electorate Officer had engaged in deliberate misconduct justifying her dismissal. It referred to previous cases establishing that misuse of sick leave constitutes misconduct sufficient to justify termination of employment. It dismissed the Electorate Officer’s appeal.

The decision can be read here.

The Commission has issued orders establishing an Interim Branch Executive for The Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union Of Workers - Western Australian Branch (respondent).

The applicant, a member of the respondent, brought an application seeking an order for the establishment of an Interim Branch Executive, to  to exercise all the powers of the various governing bodies which exist in the respondent so that it can continue to function whilst the respondent’s Rules are amended; to effect alterations to the Rules of the respondent to ensure that they align as far as necessary with the federal WA Branch Rules; and to make an application to the Commission for a new s 71 certificate.

In November 1999, the Full Bench of the Commission made a declaration that prescribed offices of the respondent and the respondent’s counterpart federal body, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, were the same, as were the rules for eligibility for membership.  The declaration led to the grant of a certificate under s 71

The applicant contended that due to changes in the federal WA Branch, including changes to the  federal WA Branch Rules, divisional structure and constitution,  the applicant determined that the s 71 certificate issued in 1999 would likely to be no longer effective.

The Chief Commissioner was satisfied that orders should be made under s 66 of the Industrial Relations Act 1979 to establish an Interim Branch Executive enabling the respondent to take steps to amend its rules to ensure they align with the federal WA Branch Rules, and to provide a basis for a fresh s 71 certificate to be sought in due course.

The decision can be read here.

NOTICE is given that an application has been made to the Commission in Court Session by UnionsWA under section 50 of the Industrial Relations Act 1979 (WA). The application by UnionsWA is for a General Order to provide that all employees covered by an award, an industrial agreement, an enterprise order, or an employer-employee agreement under the Industrial Relations Act 1979 (WA) that provides for a higher rate of pay for working on a defined public holiday specified in that industrial instrument shall also be paid that higher rate of pay when working on any recognised public holiday pursuant to the Minimum Conditions of Employment Act 1993 (WA) or the Public and Bank Holidays Act 1972 (WA).

To view the notice, please click here.

This Practice Note 1 of 2023 replaces Practice Note 6 of 2021, issued on 23 March 2021.

Practice Note 1 of 2023 is issued by The Western Australian Industrial Relations Commission (the Commission). This Practice Note has application in proceedings before the Commission which are constituted by a Full Bench and its presiding Commissioner; the Commission in Court Session; the Commission constituted to hear and determine appeals under s 106 of the Prisons Act 1981; s 11CH of the Young Offenders Act 1994; and s 33P and s 33ZI of the Police Act 1892; or the Chief Commissioner sitting alone, where the parties are represented by legal practitioners or agents.

 In accordance with s 113(1) of the Industrial Relations Act 1979 (the IR Act) and reg 39(3) of the Industrial Relations Commission Regulations 2005 (the Regulations), Practice Note 1 of 2023 is effective 14 days after the date of its publication in the Western Australian Industrial Gazette, being 22 February 2023, and remains in force until such time as it is replaced.

Please click here to view the Practice Note.

All the Commission's Practice Notes can be found here.

The Work Health and Safety Tribunal has dismissed the claim of an education employee after determining that a direction to receive a vaccination did not constitute ‘work’, and that refusing to receive the vaccination did not constitute a refusal to work.

Background

The applicant was employed at a primary school. In December 2021, the Chief Health Officer of Western Australia and Director General, Department of Education made directions and issued instructions respectively, regarding the vaccination requirements for education workers who were working in an education facility. The applicant refused to be vaccinated and did not seek an exemption, and did not work from 23 December 2021 until 10 June 2022, when the public health directions were lifted. The applicant applied to the Tribunal for pay and benefits for the period that he did not work.

Contentions

The applicant contended that the direction to receive a vaccination constitutes ‘work’, and contended that a refusal to be vaccinated constitutes a refusal to work under s 26(1) of the Occupational Safety and Health Act 1984 (WA) (‘OSH Act’).

The applicant believed the vaccination would expose him to a risk of imminent and serious injury or harm to his health, and that the direction to be vaccinated was not a reasonable and lawful order and complained that the respondent did not do a risk assessment of the COVID-19 vaccinations. 

The respondent contended that the applicant did not refuse to work, and instead was unable to access the school because of the operation of public health directions, and as such was unable to work. The respondent contended that refusal to be vaccinated does not amount to a refusal to work, and that the requirement to be vaccinated was a direction given in order to ensure the applicant complied with the CHO directions, and that the applicant could lawfully work.

The respondent indicated that from 4 January 2022, the applicant was stood down without pay, and not entitled to the benefits claimed.

Findings

The Tribunal noted that the remedies sought by the applicant were outside of the Tribunal’s powers, and that it was also not within the jurisdiction of the Tribunal to consider whether the respondent could have been more accommodating, in agreeing to alternative work arrangements.

The Tribunal found that that the condition to receive a vaccination was not ‘work’ for the purposes of s 26 of the OSH Act, and that the applicant’s refusal to be vaccinated was not a refusal to work, and that the application would be dismissed.

The Tribunal considered that even if the applicant’s absence from work was because the applicant believed that it would expose him to a risk of imminent and serious injury or harm to his health, that this belief was not based on reasonable grounds. The Tribunal noted the expert evidence accepted  in Falconer v Chief Health Officer (No 3) [2022] WASC 270, and the Chief Health Officer’s statements to the effect that COVID-19 vaccinations were safe and effective; were an important measure in reducing the spread of COVID-19; and vaccination was necessary to protect workers and the community. In coming to this conclusion, the Tribunal further noted the TGA approval of the vaccination and the decision of a WorkSafeWA investigator, determining that no further investigation was required in response to a report by the applicant.

The Tribunal further noted that the applicant would have been unable to lawfully perform his work during that period because of the directions of the CHO and CEO of the school, and would not have been entitled to pay and other benefits during the claim period. The Tribunal dismissed the application.

The decision can be read here.