The Work Health and Safety Tribunal has dismissed an Engineer's application under s 26(1) for want of jurisdiction, finding that she did not refuse to work due to risk of serious injury, but that she was instead  excluded from the workplace after a failure to provide proof of vaccination. 

Background

The applicant was employed as an Engineering Associate. After public health directions were issued by the Chief Health Officer requiring construction industry workers to be vaccinated against COVID-19 to enter building and construction sites, the applicant’s employer required affected employees to provide evidence of vaccination or an exemption by 31 December 2021.

The applicant refused to be vaccinated and did not provide evidence of an exemption, and did not work from 6 January to 25 March 2022. The applicant was dismissed from her employment.

Contentions

The applicant contended that she refused to work under s 26(1) of the Occupational Safety and Health Act 1984 (WA) (‘OSH Act’). The applicant believed that vaccination would expose her to a risk of imminent and serious injury or harm to her 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 the Tribunal did not have jurisdiction to deal with the matters referred by the applicant or the power to make the declarations and orders she sought. The respondent contended that the applicant did not refuse to work, rather, she was excluded from the workplace because of the Chief Health Officer’s directions as she was unable to work, and therefore was not entitled to the pay and benefits she claimed.

The respondent added that because the applicant also had an appeal before the Public Service Appeal Board in relation to the same matters, the Tribunal should dismiss the current application.

Findings

The Tribunal noted that the key question in dispute was whether the direction of the employer was a reasonable and lawful order, and that this was outside the Tribunal’s jurisdiction.

The Tribunal noted that most of the remedies sought by the applicant were outside the power of the Tribunal, in an application brought under s 28. The Tribunal noted that it did not have the power to:

• make a declaration about the obligation of the respondent to comply with the safety and health legislation;
• investigate alleged breaches of the OSH Act or refer those to the regulator for prosecution;
• determine whether the respondent was required to do a risk assessment, or to direct the respondent to do a risk assessment; or
• make an order for damages.

The Tribunal noted that while one of the applicant’s remedies was within the power of the Tribunal, that the matter should be dismissed as the applicant’s claim had no merit or prospect of success. The Tribunal found that the operative reason for the applicant’s absence from the workplace was because Main Roads excluded her from the workplace, and not because she refused to work. The Tribunal dismissed the application. 

The decision can be read here.

The Public Service Appeal Board has upheld the decision of North Metropolitan Health Service to dismiss an Oncologist, finding that he engaged in serious misconduct after approving substantial overtime payments of over $244,000 to a worker who was not entitled to overtime; and that he breached his duty of fidelity and good faith when he engaged the same worker on a contract that was detrimental to the employer.

Background

The applicant was a Consultant Medical Oncologist, and was engaged by the respondent since 2003, and was for a period, the Head of the Department between 2007-2013.

In 2019, Corruption and Crime Commission proceedings concluded that another employee of the Department engaged in serious misconduct for unsubstantiated overtime payments. The employee was primarily employed by the Department as a Clinical Trials Manager, and was later engaged at the initiative of the appellant under an independent contractor arrangement (‘Worker’)

Between 2019-2020, the respondent conducted investigations into the appellant’s role in relation to the payment of these overtime payments and contract. Broadly, the two allegations that were found to be substantiated by the respondent were:

Allegation 1. That the appellant had failed to exercise an appropriate level of oversight and scrutiny in relation to the payment of the overtime payments to the Worker, constituting a breach of discipline contrary to s 161 (d) of the Health Services Act 2016 (WA) (‘HS Act’) as the appellant was negligent or careless in the performance of his functions; and

Allegation 3:  That the appellant breached his duty of fidelity and good faith to his employer when he approved the engagement of the Worker on a contract which was detrimental to the respondent, constituting a breach of discipline contrary to s 161(c) of the HS Act as the appellant committed an act of misconduct (allegation 3).

The appellant appealed against his dismissal to the Appeal Board.

Contentions     

The parties agreed that the period in question was between November 2014 and November 2017.

In relation to Allegation 1, the appellant denied that he had oversight of the Worker, and if he did, contended that he was not negligent or careless.  The appellant submitted that he was only the Worker’s manager at the time that he was Head of Department, and denied that the approval of the overtime was not his role or responsibility; and that he did not have any training or an understanding of the approval of overtime.

The respondent submitted that evidence before the Appeal Board supported that the appellant was the Worker’s manager, and that the appellant admitted this before the CCC. The respondent contended that any reasonable, sensible, intelligent person reviewing the overtime forms would have seen the hours worked were significant.

In relation to Allegation 3, the appellant contended that he believed he had the authority to approve the contract, and that the engagement was vital to the function of the Clinical Trials Unit.

The respondent contended that the appellant engaged the Worker under the contract to allow the achievement of higher earnings than she would have been entitled to as an employee, to the detriment of the respondent.

The appellant contended that where the allegations were made out, that no penalty beyond a reprimand was appropriate.

Findings

The Appeal Board found Allegation 1 was substantiated. The Appeal Board considered that the appellant was in a supervisory position to the Worker, and that he was approving payment of overtime in circumstances where he had not properly reviewed the amount of overtime claimed, the reasons for the overtime or whether the overtime had been worked at all, and this amounted to negligence and carelessness in the performance of his functions.

The Appeal Board found Allegation 3 was substantiated.  The Appeal Board found that appellant negotiated the terms of the contract despite knowing he lacked the authority to do so. The Appeal Board found that the appellant approved overtime while being aware he did not have authority to do so, and knowing that the Worker was not entitled to overtime.

The Appeal Board noted that the appellant failed to take responsibility for his actions, and considered that termination of employment was a fair penalty in the circumstances, and dismissed the application.

The decision can be read here.

The Commission has dismissed an appeal brought by the owners of a massage business, finding that it was open to the Senior Commissioner at first instance to determine that the employee had been dismissed, and did not resign.

Background

The appellant ran a massage business, at which the respondent was employed as a massage therapist. Following a dispute, the respondent left the workplace. The respondent did not return to work the following day on medical grounds, and provided the appellant with a medical certificate.

In subsequent text messages between the appellant and respondent, the respondent understood that she had been dismissed. The respondent made an unfair dismissal application to the Commission.

The learned Senior Commissioner found that the respondent had been unfairly dismissed, and ordered the appellant to pay compensation.

The reasons for decision at first instance were corrected by corrigendum soon after issuing, mainly correcting various dates and times.

Contentions

The appellant brought an appeal against the first instance decision, and listed 18 grounds of appeal. Broadly, the grounds of appeal contended that the Senior Commissioner mistook the facts at first instance; that translations of text messages used as evidence were not accurate; and that it should have been concluded that the respondent resigned. The appellant further contended that the assessment of compensation was arbitrary.

Findings

The Full Bench noted that the grounds of appeal did not set out the particulars that were relied upon by the appellant to show how the Senior Commissioner’s decision was against the evidence and did not set out specific reasons why the Senior Commissioner erred in law.

The Full Bench noted that the errors in the reasons for decision that were later corrected by corrigendum referred to by the appellant in ground one, mainly related to dates and times. The Full Bench found that the corrections did not materially affect the Commission’s decision.

The Full Bench found that the Senior Commissioner was alert to the nuance of language in considering text messages that had been translated, and further noted that at no time in the first instance, did the appellant raise issues with the translations.

The Full Bench considered that the Senior Commissioner did not err in considering the behaviour of the respondent, including the provision of a medical certificate, when finding that the respondent did not intend to resign.

The Full Bench considered that the Senior Commissioned had properly applied the principles relating to the award of compensation to the facts and that no error was demonstrated in her award of $1,500 compensation for injury.

The Full Bench found no appeal grounds were made out and dismissed the appeal.

The decision can be read here.

The Commission has varied and updated the Electrical Contracting Industry Award R 22 of 1978, to remove various respondents.

The applicant, the Electrical Trades Union WA, applied to vary the Electrical Contracting Industry Award R 22 of 1978, seeking to increase the meal, car, travel, distant work, and Western Power allowances in the Award, update the names and addresses of some of the respondents listed in one of its schedules, and remove some respondents who were no longer trading or no longer in existence.

The Electrical and Communications Association of WA (ECAWA), listed in the Award as a respondent, filed a response to the application to vary the respondents listed in the Award.  It opposed being listed in the Award as it was not a successor entity of a listed entity, a union of employers or registered organisation under the State system, or a National System employer.

The Commission noted that the application to vary the allowances was unopposed, and that the last variations updated the allowances to include increases based on the 2020 and 2021 State Wage Case decisions, and CPI increases to June 2021. The Commission found that the calculations provided by the applicant for the variations were consistent with the State Wage Case Statement of Principles, and that it was appropriate to make the variations sought.

The Commission noted that apart from the ECAWA’s response, the application in relation to substituting the Award’ respondents was otherwise unopposed. The Commission noted that there was no good reason for retaining the respondents  listed in the Award who had ceased to exist, ceased to trade, or ceased to be covered by the Award, and considered that it was appropriate to update the Second Schedule to the Award accordingly.

The decision can be read here.

The Full Bench has dismissed an appeal brought out of time, finding that the appellant failed to progress his appeal with proper expediency, and that the appeal had no prospects of success.

Background

The appellant was employed at a Catholic college under a written contract of employment that the appellant maintained was for a fixed term.  The appellant’s position was abolished, and after the appellant did not accept an alternative teaching position, the respondent informed the appellant that he was regarded as having repudiated his contract of employment and his employment was at an end. The appellant commenced proceedings in the Commission for a denied contract benefit, which were subsequently dismissed.

The appellant brought an appeal against a procedural decision of the learned Commissioner to set aside his summons to call the Roman Catholic Bishop as a witness, which was made prior to the substantive hearing in his first instance unfair dismissal application. The appellant lodged the appeal against this decision approximately one year out of time and sought an extension of time to bring the appeal.

Contentions

The appellant contended there were three reasons for the delay in lodging his appeal.  They were pressure and preoccupation with the substantive hearing as a self-represented litigant; confusion with specific sections of legislation and regulations; and challenges with his attempts to seek pro bono legal advice.

Findings

The Full Bench noted that not only was the extension of time brought around one year out of time, but that it was also lodged after the hearing of his substantive claim; after the decision dismissing his substantive claim; after he appealed the decision dismissing his substantive claim; after filing four interlocutory applications in the earlier appeal; after a decision dismissing all of his interlocutory applications in the earlier appeal; after he commenced a further appeal in the Industrial Appeal Court against the decision in his interlocutory applications in his earlier appeal; and after his earlier appeal was heard and the decision reserved.

 The Full Bench noted that the four main factors to be considered in the exercise of its discretion were the length of delay, the reasons for the delay, the prospects of success of the appeal, and the extent of any prejudice to the respondent, noting however that these were not exhaustive, and that other factors may be relevant.

The Full Bench considered that the appellant’s appeal had no prospects of success and that this was fatal for his case for an extension of time. The Full Bench found that even if the appeal had some merit, all the other relevant factors sided against the appellant.

The Full Bench noted that the length of the appellant’s delay of 12 months was extreme and to overcome this required the appellant to show that the other relevant factors were in his favour. The Full Bench found that the appellant had not shown any reason for the delay from the conclusion of the substantive hearing to the date he eventually filed the appeal, and that the delay had caused real detriment to the respondent that was incurable.

The Full Bench considered that the appellant’s dilatory conduct was a further reason to refuse to extend the time to appeal, and found that the appellant had not prosecuted his appeal with proper expediency.

The appeal was dismissed.

The decision can be read here.