The Public Service Appeal Board dismissed the appeal of the respondent’s decision to dismiss the appellant based on the substantiated allegations of excessive use of resources and use of out of service equipment.

While the Board allowed the appeal out of time because the delay was caused by representative error and the appellant presented an arguable case, it found that the appellant's lack of insight into the seriousness of his actions and his refusal to acknowledge the validity of the out of service tag supported the decision for dismissal.

Background

The appellant was employed by the TAFE respondent as a Technical Support Officer – Fabrication, at its Midland campus from 1 September 2007 to 13 April 2022.

On 9 March 2022, the respondent notified the appellant that it was terminating his employment, providing five weeks’ notice, for:

1. contravening the respondent’s Staff Code of Conduct, the Public Sector Code of Ethics, and the respondent’s Information Services Acceptable Use Policy for Staff by using excessive work time and resources on non-work-related matters; and
2. breaching the Code of Conduct, the PS Code, the Occupational Safety and Health Act 1984 (WA), and the respondent’s Occupational Health and Safety Policy by removing an out of service tag from a forklift without authorisation and using the forklift.

The forklift, which was the subject of point 2 above, had been experiencing mechanical issues, including problems with the brakes, emitting a squeaking noise, and other wear and tear. On August 25, 2021, a technician serviced the forklift, identified brake issues, and tagged the forklift as "out of service" due to metal-on-metal brakes and other necessary repairs.

On September 15, 2021, the Senior Supervising Technician observed the appellant driving the tagged-out forklift. The technician informed the appellant that the forklift was tagged out due to brake issues and instructed him to park it. The appellant reportedly dismissed the issue, claiming there was nothing wrong with the brakes and continued to operate the forklift.

The Technician immediately reported the incident to his superior detailing the appellant’s actions and comments. The Technician noted that the appellant claimed the issues with the brakes were "rubbish" and ignored the screeching noise from the brakes during the demonstration. The forklift was retagged and secured to prevent further use.

The Technician also received guidance from a safety consultant regarding the proper procedures for tagging out equipment. The consultant emphasized that tagged-out equipment must not be operated until authorised personnel have removed the tag and ensured safety.

Contentions

The appellant contested his dismissal and appealed to the Board, arguing that he should not have been dismissed.

The appellant's appeal was filed late, on 30 March 2022, approximately four months after it was due on 27 July 2022. He claimed that this delay was due to confusion and representative error. He had sought legal advice but had difficulty securing representation due to financial constraints.

The respondent acknowledged that the appellant's appeal presented an arguable case and did not object to his out-of-time application. They also stated that, aside from defending the appeal, they would not face any specific prejudice if an extension was granted.

 The appellant concedes that he used his work email for personal matters, including sending and receiving personal emails concerning his daughter's legal issue, tenancy matters, the Speedway Commission, movie streaming, cryptocurrency trading, and contesting an infringement. He admits that these emails were not endorsed or approved by the respondent and he should not have utilised his work email for personal matters, instead, he should have refrained from working on personal tasks during work hours.

 The respondent argued that the appellant's use of work hours for personal matters and sending personal emails from his work account were serious actions. The respondent described the allegation against the appellant as "using excessive work time and resources on non-work-related matters," which they equated to time theft, a serious allegation.

 The respondent contended that these actions could undermine the public's confidence in the respondent's responsible use of taxpayer-funded resources and might give the impression that such actions were. It was argued that the appellant's use of the respondent's resources, including his work email, for personal purposes could potentially tarnish the respondent's reputation. External parties might interpret these actions as being carried out on behalf of the respondent, which could negatively affect its image.

 However, the appellant contends that his extensive work conducted from home over 14 years far outweighed the time he spent on personal matters while at work during six months of unauthorised email use. His arguments centre on his belief that his extensive work dedication and personal situation mitigated the alleged misuse of resources.

 Regarding the forklift incident, the appellant contended that he had a deep mechanical understanding and could accurately determine the safety of the forklift. He alleged that the decision to tag out the forklift was influenced by others within the organization, and he claims that the reported issues with the brakes were exaggerated or manipulated to justify servicing. He disputes the notion that the forklift was unsafe and argues that the whole incident was a charade to validate the service of the forklift.

 The respondent contended that the appellant's lack of understanding about the seriousness of his actions demonstrated an absence of insight. It was suggested that this lack of insight was relevant when determining the appropriate penalty for his actions. The appellant argues that he had valid reasons for his behaviour, particularly related to his daughter's situation and that his actions were not as detrimental as portrayed.

 Finding

The Board held that the appellant was blameless for the delay in filing the appeal and found the  representative error was a sufficient reason to extend the time to file the appeal. Further, the Board acknowledged that the appellant had an arguable case in the circumstances. Thus, the appeal was allowed out of time.

The Board found that the appellant did indeed remove an "out of service" tag from a forklift and operated it while knowing it had been tagged out. This conduct was against the respondent's guidelines and procedures. While The appellant contended that the tagging was a façade, the Board did not accept this explanation. It concluded that the tagging was due to genuine concerns about the forklift's safety.

The Board noted that the appellant lacked insight into the seriousness of his conduct. He failed to acknowledge the validity of the out-of-service tag and the potential risks associated with operating a tagged-out forklift. The Board considered this lack of insight as relevant when determining an appropriate penalty.

Despite mitigating factors such as the appellant's age, length of service, and financial situation, the Board found that these factors did not warrant altering the respondent's decision to dismiss him. The Board concluded that the appellant's conduct in both the excessive use of the respondent resources and the out-of-service incident justified his dismissal. The Board ordered that the appeal be dismissed, thereby upholding the respondent's decision to terminate the appellant's employment.

The decision can be read here.

The Commission, under s 40B of the Industrial Relations Act 1979 (WA), implemented several variations to the Farm Employees Award 1985 to align it with contemporary standards, improve clarity, and ensure fairness for farm employees in Western Australia.

 Key changes included adjustments to wages, leave entitlements, and definitions, as well as the inclusion of provisions related to parental leave and domestic violence leave.

Background

The Commission provided notice of its intention to vary the Award to Unions WA, the Chamber of Commerce and Industry, the Australian Resources and Energy Employer Association, the Minister for Industrial Relations, the Western Australian Farmers’ Federation (Inc) and each of the parties to the Award being the Australian Workers’ Union and all named individual employers.

 The commission subsequently convened a conference to seek input from interested parties about the issues with the Award, and the appropriate drafting revisions to address them. Representatives for the Minister and AWU attended the conference.

 The Commission then published notice of the proposed variations to the Award, pursuant to s 40B(2). The Commission also gave notice to the parties named in s 40B(2) and to the Pastoralists and Graziers Association of Western Australia of a hearing to afford them an opportunity to be heard in relation to the proposed variations.

WA Farmers and PGA applied for and were granted permission to intervene on the basis they each had a sufficient interest in the matter.

Contentions

PGA raised concerns about some of the new requirements in the proposed clause 5 'Hours of Work,' particularly the impact on employers, especially concerning minimum hours for part-time workers and written agreements to vary part-time hours. PGA requested a 12-month transitional period to educate its members and allow employers to make necessary changes.

 WA Farmers, representing the Dairy Council, acknowledged that the Award did not currently cover the dairy farming industry. However, they raised concerns about the potential future coverage of dairy farms and the suitability of the proposed 'Hours of Work' provisions for dairy farming activities like milking and calf rearing.

Findings

The Commission implemented several variations to the Award.

 The Award had not been reviewed or substantively varied in over 25 years, with the most recent substantial variation occurring in 1998. Several clauses of the Award referred to laws and industrial instruments that have since been repealed, superseded or have become obsolete. The Award also referred to persons and organisations no longer in existence and contained gendered language. The variations rectified these issues.

 The Commission made the following specific variations to modernise and align the Award with current legislation and industrial practices while ensuring clarity and consistency in its provisions.

1. Title of the Award: The title of the Award was updated to remove the year of the Award, following current naming practices for awards. Additionally, the reference to the Award replacing a 1946 Award was removed for brevity since it no longer served a useful purpose.
2. Term Clause: The term clause, which defined the duration of the Award, was deleted as it was no longer relevant.
3. Definitions Clause: A new definitions clause was inserted, and definitions from other parts of the Award were moved here for clarity.
4. September 1989 State Wage Principles: Clause 2A of the Award, which dealt with the application of the September 1989 State Wage Principles, was deleted because these principles are no longer in effect.
5. Employment Relationship: Clause 5, previously titled 'Contract of Service,' was renamed 'Employment Relationship.' It was modified to align with the provisions of the Pastoral Industry Award 2020 and includes information about types of employment, employment status, and employment conditions.
6. Wages Records (Clause 10): Clause 10, which dealt with wages records, was modified to align with the requirements of the Act. Additionally, Clause 10(2) was made consistent with the provisions of s 49J of the Act concerning entry to investigate breaches.
7. Farm Tradesman Definition: The definition of 'farm tradesman' has been updated to refer more generally to a person who holds a qualification under the Vocational Education and Training Act 1996 (Cth) since there are no specific prescribed vocational education training qualifications for 'farming' under this Act.
8. Trainee Rates of Pay: A new clause was inserted to include trainee rates of pay and conditions of employment derived from the AWU National Training Wage (Agriculture) Award 1994, consolidating conditions for trainees in one place.
9. Parental Leave: The parental leave provisions of the Award were updated to align with the National Employment Standards under the Fair Work Act 2009 (Cth), which apply to all employers and employees in Australia.
10. Long Service Leave: The Long Service Leave Provisions were varied to refer to the provisions of the Long Service Leave Act 1958 (WA).
11. Superannuation (Clause 19): Clause 19, which dealt with superannuation, was updated to remove references to defunct and deregistered superannuation schemes and to address potentially discriminatory clauses. The variations aim to align the superannuation provisions of the Award with the requirements of the Act.
12. Arrangement of the Award: The arrangement of the Award was updated for clarity, logic, and consistency with contemporary industrial instruments.
13. Other Variations: Various substitutions and variations have been made throughout the Award to improve clarity without altering the substantive operation of the clauses.

The Commission made the further variations to ensure compliance with the Minimum Conditions of Employment Act 1993 (WA).

1. Family and Domestic Violence Leave: A new clause was added to address Family and Domestic Violence Leave.
2. Hours of Work (Clause 7): The existing Clause 7 of the Award dealt with hours of work and required that working hours be agreed upon between the employer and the employee, with the condition that all employees should be allowed one full day off each week while also ensuring necessary attention to stock. However, this provision was considered potentially less favourable than s 9A of the MCEA, which restricts employees from being required or requested to work more than 38 hours per week, with reasonable additional hours determined under s 9B. As a result, Clause 7 was modified to align with s 9A of the MCEA.
3. Holidays and Annual Leave (Clause 8): The original Clause 8 of the Award covered both public holidays and annual leave. It had omitted Easter Sunday as a public holiday and referred to Foundation Day instead of Western Australia Day as a public holiday. The clause has been split into two separate sections: one dealing with public holidays and the other with annual leave. The public holiday provisions were updated to reflect current gazetted public holidays, and special public holidays proclaimed under the Public and Bank Holidays Act 1972 (WA) are recognized as public holidays for Award purposes. Additionally, Clause 8(3)(a) was removed because it was found to be inconsistent with the MCEA.
4. Annual Leave (Clause 8 Continued): The provisions regarding annual leave were updated to align with the MCEA. Under the original Award, annual leave accrued after 12 months of continuous service, whereas the MCEA allows for weekly accrual. The Award did not provide for the payment of annual leave in advance, unlike the MCEA, which allows for such payments under s 44. The Award also did not permit annual leave to be taken in one or two periods unless there were special circumstances and mutual consent from the employer, employee, and relevant union. A new clause was inserted to address these differences while preserving other conditions associated with annual leave, including leave loading.
5. Personal Leave (Clause 9): Clause 9, previously titled "Sick Pay," was updated to refer to personal leave rather than sick pay. The changes aligned this clause with the MCEA. Personal leave under the Award was limited to reasons related to personal health or injury, whereas the MCEA allows for personal leave to be taken for illness or injuries affecting a household member of the employee as well as for unexpected emergencies. The Award also accrued personal leave monthly, unlike the MCEA's weekly accrual. Additionally, the Award provided only five days of sick leave in the first year of service, whereas the MCEA allows for two weeks of leave or 76 hours in the first year of service. The Award had restrictions on taking periods exceeding 10 weeks in a year of service as sick leave and did not provide for unpaid personal leave. The modifications aimed to align the Award with the MCEA while retaining more favourable conditions from the Award.
6. Bereavement Leave (Clause 11): Clause 11, which pertained to bereavement leave, was found to be less favourable than s 27 of the MCEA. The changes incorporated the provisions of the MCEA related to bereavement leave.
7. Junior Rates of Pay: The rates of pay for junior employees aged 19 years, 18 years, and 17 years as specified in the Award were found to be 5% less than the junior rates of pay outlined in s 13 of the MCEA. As a result, the junior rates of pay in the Award were increased to align with the legislated minimum rates of pay in the MCEA.

The decision can be read here.

The Commission dismissed the applicant union’s claim that an employee’s dismissal was harsh oppressive or unfair because two serious allegations of misconduct were found to be substantiated and justified dismissal.

The Commission found that the basis for the dismissal, the findings resulting from the allegation investigations, was consistent with the evidence, offered a largely accurate summary of the witness evidence, and the analysis and conclusions could reasonably be drawn from the entirety of the evidence. Further, the employee was not prejudiced by delay, provided with a fair opportunity to respond and received procedural fairness.

Background

The employee was a Design and Technology Teacher at Harvey Agricultural College from July 2006 to 10 May 2016, when he was dismissed for making physical contact with a student on 13 August 2015. Such dismissal followed an investigation by the respondent’s Standards and Integrity Directorate.

On 29 May 2018, the Commission found that the dismissal was unfair and ordered the employee’s reinstatement, which occurred in June 2018.

From 30 January 2020 until his dismissal on 7 October 2021, the employee taught at Ellenbrook Secondary College. This dismissal was the result of serious misconduct under clause 11(4) of the Teachers (Public Sector Primary and Secondary Education) Award 1993 for:

1. negligence or carelessness amounting to a breach of discipline pursuant to s 80(d) of the Public Sector Management Act 1994 (WA) for an incident on 24 June 2020 involving a Year 10 student injuring his thumb and requiring reconstructive surgery (Allegation 1); and
2. misconduct amounting to a breach of discipline pursuant to s 80(c) of the PSM Act for an incident on 25 September 2020 involving physical contact with a Year 11 student in breach of Regulation 38 of the School Education Regulations 2000 (WA) (Allegation 2).

Contentions

The applicant union applied to the Commission under s 44 of the Industrial Relations Act 1979 (WA).

The Commission was required to decide whether, on the evidence, following a proper inquiry, the respondent had reasonable grounds for holding a genuine belief that the misconduct occurred, and whether the dismissal was harsh, oppressive or unfair in the circumstances.

Allegation 1

On 24 June 2020, the employee showed a Year 10 Student how to measure and cut wood using a cut off saw during class. The employee subsequently left the student unsupervised, in contravention of Ellenbrook Secondary College’s 2019 Power Tool & Machine Usage Document. The student’s thumb was injured and required reconstructive surgery.

By letter dated 22 February 2021, the employer informed the employee of Allegation 1. On 15 March 2021, the employee responded to the allegation, stating what he alleged to have occurred, denying the student was left unsupervised, and stating that the student failed to follow his instruction ‘and without my knowledge continued working.’ Further, he stated he was not aware of any documentation and was never informed about the requirements surrounding machinery and the workshops.

On 6 August 2021, the respondent informed the employee that Allegation 1 was substantiated and the proposed action was dismissal. Following the employee’s further response on 20 August 2021, the respondent informed the employee on or about 7 October 2021 that:

• he had committed a breach of discipline;
• it no longer had trust or confidence in him to perform his teaching duties to the required standard;
• his actions are inconsistent with the Department of Education’s values and standards; and
• accordingly, he will be summarily dismissed for serious misconduct pursuant to clause 11(4) of the Award.

Contentions

The applicant stated that the employee was not guilty of Allegation 1. However, if he was, it did not justify dismissal in the circumstances.

The applicant stated that the Document referred to in the allegation applied to cut off saws and did not apply to the machinery involved in the incident, a compound mitre saw. Thus, the basis for the Allegation 1 investigation is misconceived and there could be no proper basis for a finding of negligence or carelessness. As such, the result was an accident caused by the student using machinery, despite being told not to.

The applicant also contended that the Investigation Report dated 30 July 2021

Further, dismissal is unjustifiable because the employee continued teaching at the school for almost a year and a half, while the disciplinary process was completed, without further incident.

 The respondent contended that:

• there is no material difference between a cut off saw and a compound mitre saw;
• even without the existence of the Document, it is reasonable to expect the employee to know to supervise year 10 students when using such machinery;
• there was sufficient evidence for the finding that the employee did not properly supervise the student;
• the employee’s claim that he told the student not to use the machinery is implausible given his evidence that he was unaware of the requirement for supervision of such machinery; and
• the employee continued teaching during the disciplinary process because the alternative was to suspend him without pay.

Finding

The Commission found that the Document applies to the saw in use at the time of the incident and to Allegation 1 and it was reasonable for the respondent to proceed on this basis. Further, the Commission found that the employee’s contentions, that he was not aware of the Document and he instructed the student to stop cutting, were unsustainable.

These findings were based on consistent evidence from the investigation given by the student, other students, school officers and other teachers, including another Design and Technology teacher, and contemporaneous documents from the time of the incident. The employee’s evidence was inconsistent with such evidence and contemporaneous documents.

While there were delays during the disciplinary process, these did not prejudice the employee and the respondent discharged its onus of establishing that the employee was guilty of Allegation 1 and the misconduct justified dismissal. The quantity and seriousness of allegations warranted a thorough investigation and the employee was given reasonable time to respond.

Allegation 2

On 25 September 2020, the employee was demonstrating brick paving to a class. The employee bent over to work on the paving, when a Year 11 Student put a small rock down the back of his pants. The employee grabbed the shoulder of the student’s clothing, tugged him forward and shouted words to the effect “if you were at a work site it would be more than a pull by a teacher, you could possibly get hit”.

This conduct contravened the School Education Regulations 2000 and the Department’s Code of Conduct. In his first response letter, the employee admitted to making physical conduct with the student but that it was ‘minimal’ and ‘appropriate’. In this letter, the employee stated that the student ran away after putting the putting the rock in his pants, he got up to stop the student and put his hand on the student’s shoulder to calm him.

The Proposed Outcome Letter notified the employee that the investigation was completed, Allegation 2 was substantiated, and the proposed action was dismissal.

Contentions

The applicant stated that the employee was not guilty of Allegation 2. However, if he was, it did not justify dismissal in the circumstances.

In support of this claim, the applicant contended:

• the conduct did not contravene the Regulations or the Code of Conduct;
• the conduct was reasonable and excused by the Regulations;
• the conduct should be considered within context (ie that the employee was frustrated and alleged safety concerns and that the incident occurred quickly);
• the employee acted with reasonable restraint;
• the employee continued teaching at the school for over a year without further incident;
• the investigation needed to objectively evaluate if a potential risk to the student’s safety existed, which was justifiable under the Regulations, and no such investigation was conducted;
• there was a conflict in the evidence regarding whether the student walked or ran away from the employee after putting the rock in his pants, the investigation report failed to resolve this conflict and there should be a finding in favour of the employee, that the student ran away; and
• the employee was not afforded procedural fairness because the investigation was marred by apprehended bias because a person involved in the investigation of Allegation 1 was also involved in this investigation and the employee was denied the opportunity to address two investigation outcome briefing notes.

The respondent contended:

• there is no credible evidence that the employee made contact with the student to manage him or in the interests of safety;
• the decision to dismiss the employee was fair on a finding that Allegation 2 was made out;
• a single loss of control due to student behaviour is sufficient to warrant the dismissal of a teacher;
• where there are reasonable grounds for the respondent to suspect that a loss of control may occur again, dismissal in the interests of student safety should be inevitable; and
• the rules concerning apprehended bias do not apply to investigations unless the perceived bias reaches a certain level.

Finding

The Commission found that it was more likely that the student walked away, based on consistencies between witness evidence and the student’s evidence, despite evidence from the employee and another witness to the contrary. Thus, the employee’s claim that he made physical contact with the student because there was a possibility of danger is unsustainable. Absent a valid reason for making physical contact with a student, physically moving a student by grabbing their clothing is not considered to be minimal or restrained contact.

It was inferred from the report that the investigation did consider the Regulations but ultimately found that the conduct was in contravention. Further, it was reasonable for the report to conclude that, consistent with the Guidelines, the employee should have initially attempted a non-physical intervention, which he did not do. Thus, the report’s conclusions were reasonable in light of all the circumstances.

As with Allegation 1, a disciplinary period of 7 – 8 months between the Allegations Letter and the Dismissal Letter was not prejudicial to the employee. The Commission found that the respondent discharged its onus of establishing that the employee was guilty of Allegation 2 and the misconduct justified dismissal.

Further, the Commission found that the report offered a largely accurate summary of the witness evidence, and the analysis and conclusions could reasonably be drawn from the entirety of the evidence. There were no grounds to suggest that a fair-minded lay observer might reasonably apprehend that the persons involved might not approach the investigation of Allegation 1 and Allegation 2 with an impartial mind.

Finally, the employee was provided with a fair opportunity to respond, including time to reflect and obtain legal advice. The employee was provided with procedural fairness, as part of the obligation on the respondent on instituting disciplinary action, to ensure he received a fair go. Thus, he was afforded substantive and procedural fairness in relation to the dismissal.

Conclusion

The Commission dismissed the applicant union’s application based on the above findings. The Commission was satisfied that the applicant had not discharged the onus to establish that the employee’s dismissal was harsh, oppressive or unfair.

The decision can be read here.

The Commission dismissed the claim that the respondent employer’s dismissal of the applicant employee for failing to comply with a COVID-19 vaccination direction was not harsh, oppressive or unfair.

The Commission found that the applicant sought leave without pay to circumvent compliance with the COVID-19 direction, making the employer’s refusal to grant such leave not unreasonable.  His failure to comply meant he was unable to perform the inherent requirements of the role he was employed to perform which was inconsistent with the continuation of his employment.

Background

The applicant commenced employment as a Fabrication Lecturer at the respondent employer’s Naval Base campus in 2018.

In mid-2020, the applicant told the respondent that his health was deteriorating, he was concerned about it, and he might look at reducing his hours to see if that would help with his health. From 2 August 2021, he reduced his hours to 0.71 of a full-time equivalent.

On or around 20 November 2021, the applicant requested time off without pay for six months. The applicant then applied for leave without pay for six months. Both requests were denied.

In November 2021, the respondent emailed its employees stating that it proposed to direct employees to be partially vaccinated against COVID‑19 before 31 December 2021 and fully vaccinated against COVID‑19 before 31 January 2022.

The applicant did not make a formal application to work remotely, just a request to do so, via email. He attempted to get an exemption from being vaccinated against COVID‑19 from a doctor but was unsuccessful.

The respondent issued the Employee Direction on 7 December 2021, stating failure to comply may result in disciplinary action, ranging from reprimand to dismissal.

The respondent wrote to the applicant on 25 January 2022, stating that he had not complied with the Direction. On 9 February 2022, the respondent informed the applicant that it was commencing disciplinary action and he had 10 days to respond. Following the applicant’s response, the respondent notified him that it found that he committed a breach of discipline, and the proposed outcome was dismissal. The applicant responded to such correspondence on 3 March 2022.

On 10 March 2022, the respondent notified the applicant by letter that he was dismissed for failure to comply with the Direction.

Contentions

 The applicant filed an unfair dismissal application on 6 April 2022. He sought reinstatement, continuity of employment and back pay or 6 months’ pay as compensation.

The applicant submitted that his requests for leave and to work from home on compassionate grounds based on ill health, were inadequately considered, contrary to the principles of fairness or the Employer Guidelines dated 21 December 2021.

Despite his acknowledgement that the Directions were lawful and his failure to comply with them constituted a disciplinary breach, the applicant contended that the procedure followed regarding the Direction was unfair, such that his dismissal was unfair. The applicant contends that being required to present proof of COVID‑19 vaccination or exemption when requesting leave or remote work constituted procedural unfairness. Finally, he asserts that the respondent predetermined dismissal as the only possible outcome without considering alternatives, resulting in procedural unfairness.

The respondent submitted that the applicant’s role as a trades lecturer requires direct instruction on the Naval Base campus. Although some aspects of his job could potentially be performed remotely, the primary function of demonstrating and instructing students cannot be performed from a remote setting. Thus, operational factors prevent the applicant from performing part of his role remotely and require the respondent to employ a substitute when he is absent.

Further, the respondent contended that the applicant sought an exemption from compliance with the direction through leave or remote work due to health reasons, despite being aware of the impending or already issued direction when making his requests. Further, the applicant sought six months of leave when, at the time, he had an accrual of approximately two and a half weeks of paid leave. Thus, he was effectively seeking Personal Leave Without Pay, without providing medical evidence.

The respondent submitted that, as per the Guidelines, the applicant had 14 days from his first scheduled day back at work to provide proof of vaccination or an exemption, upon which a disciplinary process would commence. The Guidelines allow unvaccinated employees to work remotely under exceptional circumstances only. The applicant did not provide evidence supporting the existence of exceptional circumstances to justify the accommodation, instead attempted to invoke the exception to distance himself from the workplace. Thus, the applicant breached the Direction, rendering him unable to discharge the duties of his job, constituting a serious breach of discipline, warranting dismissal.

The applicant refuted the claim that he sought leave to avoid receiving the COVID‑19 vaccine, reiterating that his requests for leave and subsequent remote work request were driven by health concerns related to his asthma. According to the applicant, the dismissal was unnecessary because the respondent could have approved either his request for leave or his request for remote work, notwithstanding his disciplinary breach.

Finding

The Commission dismissed the application because the applicant had not discharged the onus upon him to establish that his dismissal was harsh, oppressive or unfair.

The Commission found that the applicant submitted requests for leave and remote work to avoid the workplace, as being present would have necessitated COVID‑19 vaccination, which he had no intention of receiving. His denial of such is not substantiated by the evidence or the contemporaneous correspondence between him and the respondent.

This finding was supported by the applicant’s failure to provide any medical evidence supporting his asthma claim that might warrant his request. The evidence indicates he pursued a medical exemption from the COVID‑19 vaccine but was unsuccessful, implying that his condition does not satisfy the criteria for a valid medical exemption.

The Commission accepted evidence that no lecturers work remotely, and the applicant would be unable to perform the lecturing and practical aspects of his role from home. Consequently, the respondent would need to hire another individual to cover the lecturing and practical components of the applicant’s position, resulting in extra costs. The Guidelines make clear that this is a situation where a request may be denied.

The applicant’s failure to comply with the Direction meant he was unable to perform the inherent requirements of the role he was employed to perform and was inconsistent with the continuation of his employment.

Thus, the respondent’s refusal to grant the leave request was not unreasonable and the respondent did not exercise its legal right to dismiss so harshly or oppressively as to amount to an abuse of that right.

The decision can be read here.

The Full Bench found that the Australian Nursing Federation had contravened the Commission’s orders made on 18 and 23 November 2022 by holding a member ballot, taking industrial action, encouraging its members to take industrial action and making public statements regarding such action.

 The Australia Nursing Federation received a penalty of $350,000 for organising a State-wide strike of 1,808 members on 25 November 2022, providing transportation to strike events and paying 939 members a strike pay subsidy, which was in contravention of the Commission’s orders and had a major impact on the State health system.

Background

In mid-July 2022, negotiations began between the Australian Nursing Federation (ANF) and the West Australian Department of Health (Department) for a new industrial agreement covering ANF members in public hospitals in the state.

In mid-October 2022, ANF members authorised potential industrial action, including a strike between 24 and 30 November 2022.

In early November 2022, the Department requested a compulsory conference to assist negotiations under s 44 of the Industrial Relations Act 1979 (WA).

On 15 November 2022, the Department made a conditional offer with a three percent wage increase, contingent on the ANF stopping planned rolling stoppages. After agreeing 'in principle' to the offer, ANF members were to vote on it.

On 17 November 2022, ANF Secretary, Ms Reah, expressed dissatisfaction with the offer, suggesting a State-wide strike if members voted 'no.' An online poll opened on 18 November 2022, and remained open until 22 November 2022, for ANF members to vote on the offer.

On 18 November 2022, the Senior Commissioner convened another compulsory conference between the ANF and Department representatives. Following the conference, the Senior Commissioner issued orders to postpone the ballot for ANF members to vote on the employer's offer and prohibited the ANF from making any public statements or commentary regarding voting for or against the offer or requesting a better offer.

Relevantly, the Senior Commissioner made the following order:

1. THAT the ANF, by its officers, employees and members, must defer the conduct of any ballot, poll or survey of members to gauge the level of support for acceptance of the Offer until 9:00 a.m. on 28 November 2022;
2. THAT from the time of issue of this Order and the conclusion of any ballot conducted in compliance with this Order, the ANF, by its officers and employees, are not to make any public statements, commentary or media statements, whether in writing or verbally, which:

(a) portray the ANF, its officers or employees as maintaining a claim for a replacement agreement with terms that are better than the Offer;

(b) direct or encourage in any way its members to vote for or against acceptance of the Offer.

…

Between 18 and 23 November 2022, the ANF violated orders by keeping the ballot open beyond the specified date and making public statements against the orders, including plans for a State-wide strike on 25 November 2022.

On 22 November 2022, Ms Reah announced the rejection of the offer in the ballot and declared a State-wide strike on 25 November 2022. Preparations for the strike continued. These included the creation of a 'Strike Guide,' an offer to provide a 'strike pay subsidy' of $150 to members who might incur pay deductions due to their participation in the industrial action, and the publication of information regarding bus services to facilitate member transportation to the Parliament House rally.

On 23 November 2022, the resumed compulsory conference before the Senior Commissioner occurred. The Department sought interim orders to halt the planned strike, citing the ANF's short notice, its demand for a five percent wage increase, and the potentially severe impact on the state's health system.

The Senior Commissioner was not persuaded that the risks of the planned industrial action could be adequately managed or mitigated. She noted that there was a serious and significant risk to the health and safety of the public and employees, the Department’s authority to manage the health system and the community’s interest in having access to safe, high-quality health services.

The Senior Commissioner made the following relevant orders:

1. THAT the respondent, by its officers, employees and members, must refrain from taking and cease the specified industrial action.

Specified industrial action means industrial action on and from 25 November 2022 comprising work stoppages, being absent from duty, walking off the job or closing hospital beds.

But excludes:

(a)     attendance at a rally organised by the ANF where the attendance is outside rostered work hours.

(b)     absences due to genuine illness or injury, or for carer’s leave or on approved leave; and

(c)     work stoppages by an employee based on the employee’s reasonable concern about an imminent risk to their health or safety; where the employee did not unreasonably fail to comply with a direction of the Employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

Employer means any employer party to the WA Health System ‑ Australian Nursing Federation ‑ Registered Nurses, Midwives, Enrolled (Mental Health) and Enrolled (Mothercraft) Nurses ‑ Industrial Agreement 2020.

(No Strike Order)

2. THAT by no later than 10.00 am on 24 November 2022, the respondent is to inform its members employed by an Employer of the terms of this Order and direct its members to comply with this Order* by:

(a)     email transmission to such members;

(b)     publication of the Order on the respondent’s website;

(c)     publication of the Order on the respondent’s Facebook page; and

(d)     placing a copy of this Order on the notice boards usually used by any Employer for the purposes of communicating with the Employees.

*Note that the respondent may be liable for a failure by its members to comply with this Order in accordance with the principles in Ducasse v Transport Workers’ Union of Australia, Industrial Union of Workers, Western Australian Branch (1995) 76 WAIG 330 at 333.

(Notice Order)

3. THAT the respondent, by its officers, employees, agents and members are not to direct, encourage, in any way, employees working for any Employer to engage in any specified industrial action, including by paying or offering to pay employees who are absent from duty without authorisation or walk off the job.

(No Encouragement Order)

4. THAT the respondent by its officers, employees, agents and members are not to engage in public commentary or media statements which incite, promote, encourage, or notify of any specified industrial action.

(No Public Comment Order)

…

After the conference, Ms Reah told the media, in effect, that the strike would still occur on 25 November 2022. Ms Reah also sent a letter to the Senior Commissioner stating, in effect, that the ANF does not intend to comply with the 23 November 2022 orders.

On the evening of 23 November 2022, Ms Reah emailed ANF members, sharing a document titled 'ANF Strike Guide 2022,' providing strike details and mentioning a $150 strike pay subsidy.

On 24 November 2022, the Senior Commissioner’s Associate summoned Ms Reah to attend a compulsory conference on 25 November 2022.

On the morning of 25 November 2022, Ms Reah publicly refused to respond to the summons and emphasised her prioritisation of ANF members. She did not attend the compulsory conference.

On 25 November 2022, approximately 1,758 ANF members working in the public health system engaged in industrial action, violating the No Strike Order. The actions involved walking off the job or not reporting for duty. These activities included rallies held at multiple locations across the State, such as Parliament House and Dumas House in Perth, as well as in Albany, Broome, Bunbury, Geraldton, and Karratha. The ANF arranged and financed bus services through Horizons West to transport members to the Parliament House rally, with around 1,470 members registering for this service. Additionally, the ANF provided various materials to participants in preparation for the rallies, and speeches were delivered by Ms Reah and others representing the ANF at these gatherings.

On 28 November 2022, the Senior Commissioner directed the Registrar to initiate proceedings before the Full Bench to enforce her orders of 18 and 23 November 2022, and for Ms Reah’s failure to comply with the summons. Additionally, the Senior Commissioner consulted with the ANF regarding the possibility of directing the Registrar to issue a summons to the ANF to appear before the Commission in Court Session, to show cause why its registration should not be cancelled or suspended due to non-compliance with her orders of 18 and 23 November 2022.

On 3 December 2022, during an urgent meeting of the ANF Council, resolutions were passed, including the commitment to pay fines resulting from alleged breaches of orders on behalf of the ANF, the Secretary, employees, and members. The ANF also agreed to reimburse members for wage deductions of up to $150 for participating in the 25 November 2022 strike.

During these events, the ANF received extensive media coverage, during which the organisation publicly and repeatedly expressed its defiance of the Senior Commissioner's orders of 18 and 23 November 2022 and criticized the Commission for issuing them.

Contentions

The Registrar commenced these proceedings under s 84A of the Act in response to the failure of Ms Reah to respond to the summons to attend the compulsory conference on 25 November 2022, and the ANF’s failure to comply with the Senior Commissioner’s orders. Ms Reah and the ANF largely admitted the alleged conduct.

At the outset of the proceedings on 12 April 2023, the Registrar's counsel informed the Full Bench that the conferral of the parties had led to an agreed position regarding a proposed penalty for consideration. The agreed penalty against the ANF amounted to $350,000, with the Registrar’s allocation of the proposed penalties for each contravention as follows:

Counsel for the Registrar contended that the agreed penalty amount and the table should be considered in light of the course of conduct principle and the totality principle.

Senior counsel for Ms Reah and the ANF confirmed that the agreed total penalty of $350,000 for the ANF and a maximum penalty of $10,000 for Ms Reah. They suggested that the total sum should be apportioned among the 39 categories of contraventions, resulting in a penalty of approximately $8,974.35 per category, close to the maximum $10,000 penalty per contravention as prescribed by the Act.

Initially, senior counsel for Ms Reah stated that she proposed to give an undertaking that all further orders of the Commission would be complied with in the usual form and manner. The Registrar responded that such an undertaking fell far short of what could be regarded by the Full Bench as a mitigating circumstance under s 84A(4)(a) of the Act. Further, the Registrar submitted that, given the conduct and behaviour of Ms Reah and the ANF, there was no contrition or remorse expressed as a part of the undertaking and that it ought to be given little weight. The following day, 13 April 2023, Ms Reah and the ANF filed documents entitled ‘Undertaking As To Future Conduct’, which acknowledged the gravity of the conduct, assured compliance with future orders and

…reassure[d] the Full Bench that its' future conduct in relation to matters within the jurisdiction of the Western Australian Industrial Relations Commission (‘WAIRC’) will be unqualifiedly according to the provisions of the IR Act

Findings

 The Full Bench ordered and declared that:

1. Ms Reah failed to comply with a summons issued under s 44(3) of the Act on 24 November 2022, and she personally pay a penalty of $10,000 to the State, within 21 days; and
2. the ANF contravened, or failed to comply with, the orders of the Senior Commissioner of 18 November 2022 and 23 November 2022, and that it pay a penalty of $350,000 to the State, within 21 days

Kenner CC

On balance, the Chief Commissioner was satisfied that the State-wide strike by the ANF had a major impact on the State health system. Further, the total number of employees taking industrial action on 25 November 2022, by walking off the job or failing to report for duty, was 1,808. Those 1,808 employees were members of the ANF.

It was an agreed fact that 1,470 ANF members registered for the buses on the ANF iFolio system. Offering free bus transport to members to enable them to walk off the job or to be absent from duty, so they can attend a rally as a key part of an act of industrial action, and the taking up of that offer by a process of registration of intent, was an act of encouragement by the ANF to take part in the strike on 25 November 2022.

 The Registrar submitted, and the ANF did not contest, that a comparison of the lists of staff recorded as having taken unpaid strike leave on 25 November 2022 and those members of the ANF registering for bus transport to the rally, at Parliament House, contained 808 names common to both lists.  On balance, the Chief Commissioner was satisfied that 808 members of the ANF contravened or failed to comply with the No Encouragement Order in this respect. 

 Finally, as submitted by the Registrar, and seemingly accepted by the ANF, the Chief Commissioner found that 939 ANF members were paid a strike pay subsidy.

 The Chief Commissioner accepted the Registrar’s approach to agreed penalties. This approach enabled the Full Bench to determine the outer limits of the maximum penalties that may be applicable, before weighing in the balance both the course of conduct and totality principles, to establish an appropriate, final penalty amount.

 It was appropriate that Ms Reah pay the maximum penalty of $10,000 because she was the leader of the ANF and its principal spokesperson during the dispute leading to the State-wide strike and was, at all material times, the public face of the ANF campaign. Further, Ms Reah’s deliberate non-compliance with the summons to the s 44 conference before the Senior Commissioner on 25 November 2022 required a significantly high specific and general deterrent to make clear that such acts of non-compliance will not be tolerated by the Commission. Ms Reah’s undertaking as to future conduct was also taken into account.

 The Chief Commissioner found that the agreed penalty of $350,000 is a just and appropriate outcome because it reflects the serious nature of the ANF’s conduct, which occurred over a considerable period. The ANF’s conduct was contumacious and was at the most extreme end of the seriousness criterion. The ANF's most serious conduct was its public defiance of the Commission's orders and its outspoken criticism of those orders, which was exacerbated by its deliberate and highly publicised actions conveyed through the media. The tone of the ANF’s communications was belligerent non-compliance.

 The ANF Council unanimously resolved to ignore the Senior Commissioner’s Defer Ballot Order and affirmed on multiple occasions to proceed with the unlawful industrial action, contravening the Senior Commissioner’s No Strike Order.

 The ANF Council’s deliberate and open resolution to pay any fines resulting from the breach of the Senior Commissioner's orders and, in clear defiance of the No Encouragement Order, provide the strike pay subsidy to members affected by the strike, was most contumacious and highlighted the need for specific and general deterrence.

 Such actions by the ANF Council were aggravating factors.

However, the mitigating circumstances included the ANF’s undertaking and that the ANF largely admitted the allegations in the Registrar’s particulars of claim. Further, the ANF was not the subject of any prior s 84A enforcement action by the Full Bench.

Kucera C

Commissioner Kucera agreed with the Chief Commissioner’s reasons, including the assessment of the number of breaches and how those breaches are characterised. Commissioner Kucera considered that the Chief Commissioner’s conclusion that the 3,590 individual contraventions that the Registrar particularised, each capable of constituting a single contravention for which the ANF was potentially liable, was unavoidable.

 Further agreeing with the Chief Commissioner, Commissioner Kucera stated that the ANF repeatedly breached the No Encouragement Order when it determined a member's eligibility for and made strike payments. This non-compliance persisted over an extended period, indicating a pattern of intentional violations for each payment made. Despite being a part of a continuing course of conduct, the conduct is not a single contravention. This attracts a higher overall penalty.

 Commissioner Kucera outlined the background facts before finding that the ANF made no effort to comply with the Defer Ballot and No Further Claims orders. But instead, it actively and deliberately, resolved to and did defy such orders publicly.

 The ANF endorsed and supported the conduct outlined in Ms Reah’s letter to the Senior Commissioner by passing resolutions regarding the State-wide strike. The ANF breached the No Encouragement Order by arranging buses for strike participants and paying $140,000 in strike payments to 939 members. Commissioner Kucera considered that the ANF knowingly accepted the risk of potential consequences for violating the Commission's orders, essentially viewing any potential penalties as a cost of doing business.

 The State-wide strike’s impact on the public health system, including the cancellation of elective surgeries and outpatient appointments, was significant.

 In absence of the ANF’s undertaking, the penalty imposed would have been more than $350,000 because the ANF had not expressed remorse for the conduct.

Emmanuel C

Commissioner Emmanuel considered a penalty of $350,000 insufficient to meet the requirements of specific and general deterrence in this matter. The outcome proposed by the parties reflects one ‘that the contravening party may simply see as an acceptable cost of doing business’. Such a quantum would not be a just and appropriate outcome.

Considering the seriousness and overall contumacy of the ANF’s conduct and the ANF’s repeated public statements that it would defy the orders, Commissioner Emmanual would order that the ANF pay a penalty of $480,000.

The decision can be read here.