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.

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.