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.

The Commission dismissed the applicant’s claim that she was entitled to payment for pro rata long service leave for the period following her first 10 years of service from her employer.

The claim was dismissed because the Commission found that there was no such entitlement in the applicant’s contract of employment and the entitlement to long service leave is only triggered, under the employer’s policy once an employee has completed a period of 10 years’ continuous service.

Background

The applicant worked as an early childhood educator with the respondent for a continuous period of 13 years and 264 days before resigning. The respondent satisfied the applicant’s entitlement to long service leave accrued for the first 10 years of her employment, by allowing her to take a portion of that long service leave and paying out the value of the balance of the accrued leave when she resigned. Regarding the final 3 years and 264 days of service, she had a pro‑rata balance of 4.84 weeks or 138.77 hours of long service leave with a monetary value of $4,658.47.

Contention

The applicant claimed she was entitled to payment for pro rata long service leave for the period following her first 10 years of service, being the period from 20 June 2017 to 10 March 2021.

The respondent contended that under its Long Service Leave Policy, and therefore the employment contract, long service leave for the second period is only paid out if the ‘subsequent period’ referred to in the policy has accrued in full. That is, the applicant only has an entitlement for the second period if she works for the respondent for another complete period of 10 years.

The respondent relied on the following paragraph from its Policy:

An employee who resigns or whose appointment is terminated for any reason shall be paid the monetary equivalent of any long service leave entitlement accrued.

The applicant submitted that the paragraph’s meaning was not immediately apparent or clear on its own. She maintained it was ambiguous, and capable of having more than one meaning.

Findings

The Commission dismissed the claim because the applicant had not been denied an entitlement under her contract of employment.

The applicant’s claimed entitlement to payment in lieu of taking leave must be found in the terms of her employment contract, via the Policy. Thus, resolving the claim involved determining the correct meaning of the Policy.

Considering the Policy structure and Policy as a whole, the Commission determined that the entitlement to take 13 weeks of long service leave on full pay (and pro rata for part‑time employees) under the Policy was triggered only after an employee had completed a period of 10 years’ continuous service. There was no entitlement to take long service leave before a 10‑year qualifying period of continuous service was completed. When the Policy used the word ‘accrued’ in these paragraphs, it was referring to an entitlement to take leave that has become due upon the completion of 10 years of continuous service but has not yet been received.

The applicant’s second period of service of 3 years and 264 days, being less than 10 years of continuous service, was insufficient to qualify her for an entitlement to take long service leave. She did not have a long service leave entitlement accrued.

The decision can be read here.

The Public Service Appeal Board dismissed the appellant’s application to extend the time to appeal against the decision to terminate her employment, for not being vaccinated against COVID-19 or having a current exemption.

The Public Service Appeal Board found that the appellant had not adequately explained the reasons for the delay, which was significant, and the appeal, if it was granted, lacked any prospect of success because the appeal grounds were not supported by precedent or substantiated by any admissible evidence.

Background

The appellant was employed by the East Metropolitan Health Service as an Administrative Assistant in Royal Perth Hospital’s Neurology Department. On 3 October 2022, she was notified her employment was terminated, effective 28 October 2022. The termination reason stated that she had failed to comply with a direction to provide her employer with evidence that she had been vaccinated against COVID‑19 or had a current exemption.

The appellant filed an appeal to the Appeal Board against the termination decision on 25 November 2022. Under reg 107(2) of the Industrial Relations Commission Regulations 2005 (WA), an appeal must be filed within 21 days after the date of the decision appealed against, which in this case was 25 October 2022. Therefore, the appeal was out of time.

Contention

The appellant applied for an extension of the time to appeal, under s 27(1)(n) of the Industrial Relations Act 1979 (WA).

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 applicant succeeding in the appeal; and
4. the extent of any prejudice to the respondent.

The reasons for the delay

The appellant gave evidence about the circumstances which led to the delay in filing her appeal. The appellant originally filed her appeal with the Fair Work Commission on 18 November 2022. After communication with the Fair Work Commission and the Commission, she filed her appeal in the latter. She stated that the last two years have been difficult for her, economically, emotionally and socially and that these hardships generally explain why she lodged her application in the wrong jurisdiction.

The prospect of the applicant succeeding in the appeal

Regarding her prospects of succeeding, the appellant stated the following grounds for establishing the termination was harsh, unjust or unreasonable:

1. that the employer’s policy and direction requiring her to be vaccinated against COVID‑19 or to provide evidence of an exemption were unreasonable because they were an intrusion on her right to bodily integrity;
2. that the direction to be vaccinated or provide evidence of an exemption was unreasonable because it involved mandating a medical procedure that was potentially dangerous with unknown health consequences from experimental, toxic, inherently dangerous and ineffective vaccinations;
3. that she was unable to comply with the policy/direction because she could not give informed consent to being vaccinated; she attended a pharmacy on 27 October 2022 for the purpose of being vaccinated, but told the injecting practitioner that she was there only “under a sacking threat”; the practitioner refused to administer the injection because, in such circumstances, the appellant had not provided informed consent; and
4. that the mandates were going to be rescinded on 4 November 2022 and the termination decision was made with such knowledge, alleged to be supported by an email from the respondent’s Executive Director, People and Culture and Capability on 9 November 2022.

Findings

The Appeal Board dismissed the appeal because, on balance, the reasons for the delay were not adequately explained. However, in any event, the appeal’s lack of prospects of success meant an extension of time should not be granted.

The length of the delay

The filing of the appellant’s appeal was delayed by one month, which was significant and weighed against the grant of an extension of time.

The reasons for the delay

Noting that the appellant recorded her intention to litigate any decision to terminate her employment as early as 23 September 2022, the Appeal Board held that the appellant had not established that there were good reasons for her not appealing within the time specified in the legislation.

Although the appellant originally filed in the wrong jurisdiction on 18 November 2022, she was already out of time to file an appeal in the Commission. Further, while the appellant vaguely referred to hardships, she did not point to any particular circumstances which prevented her from lodging the appeal within time. Further, the Appeal Board found that she did not take reasonable steps to ascertain her appeal rights in a timely way.

The prospect of the applicant succeeding in the appeal

Regarding the first ground, that the policy was an intrusion on bodily autonomy, the Appeal Board found that it had no prospect of succeeding. Such a finding was made in accordance with precedent, that an employer’s direction requiring employees to be vaccinated against COVID‑19 did not directly infringe the right of bodily integrity because it did not purport to authorise involuntary vaccination or any act that interfered with employees’ body without their consent.

The second ground was not fairly arguable because it was based on assertions that were not substantiated by any admissible evidence. The appellant referred to her understanding and summary of the views of various individuals whose qualifications and expertise are not established.

The third ground was also without any prospect of success. The social and economic pressure on employees is not coercion, vitiating consent. The choice remains the choice of the employee.

Finally, ground four had no prospect of success because the appellant was unable to identify any proper basis for a conclusion that the respondent knew about the revocation of vaccination mandates, before the termination decision was made, or before the decision took effect.

The extent of any prejudice to the respondent

The Appeal Board was able to infer prejudice for the respondent from the length of delay.

The appeal was dismissed.  The decision can be read here.