The Public Service Appeal Board dismissed an employee’s appeal against the decision of her employer to dismiss her because she continued to refuse to wear a mask at work, in breach of two lawful directions, and was absent from work without authorisation.

The only available outcome of the disciplinary action was dismissal, which was proportionate to the appellant’s ongoing conduct of attending work without a mask, breaching a Public Health Order, and refusing to return to work despite not having a medical certificate.

Background

The appellant commenced employment with the Department on 4 August 2008. She performed various roles on a permanent full-time basis.

From 13 March 2018 until her dismissal, the appellant worked as a "Group 3 Governance Assurance Officer" and had been absent from work since 22 February 2022. Her initial absence was due to her refusal to wear a face mask at work, which was a requirement of the 29 January 2022 Public Health Order (PHO).

Several PHOs were issued in preparation for reopening Western Australia's borders after COVID-19-related closures. The mask directions applied to all Department employees. An exemption from wearing a mask could only be provided by a doctor.

The appellant had issues with the face mask requirement, as well as the requirement to provide evidence of vaccination status. On 28 January 2022 and 15 February 2022, she emailed the respondent, requesting information about the mask directions and placed a series of conditions on her compliance with the directions. On 17 February 2022, the respondent, in a letter from the Acting Executive Director of People and Culture, responded to the appellant’s letters. The response explained that the respondent did not have a discretion to ignore or make exceptions to the mask directions or any other PHOs, including those relating to mandatory vaccinations.

The appellant attempted to return to work without wearing a mask on 4 and 22 February 2022, both times she was told to leave the workplace.

The appellant obtained and submitted a medical certificate which declared her unfit to work due to a “medical condition”, for the period 4 to 18 March 2022. This period was taken as personal leave. The appellant did not return to work on 21 March 2022, as required. The respondent sent multiple emails to the appellant, inquiring why she was absent from work and when she would return and putting her on notice regarding her ongoing absence from work and the requirement for her to wear a mask at work despite her opposition. Following this, the respondent issued a Return to Work letter on 22 April 2022. The appellant replied on 27 April 2022, demanding that her return was dependent upon her previous conditions being met.

Despite the PHO related to face masks being lifted on 28 April 2022, the appellant did not return to work, request annual leave, or provide any medical certificate or justification for her continued absence.

On 27 May 2022, the respondent sent a letter to the appellant which warned her of impending disciplinary action. On 3 June 2022, the appellant responded, asserting the directions she had received were unlawful and demanding compensation for the loss she claimed to have suffered due to the “unlawful actions”. On 3 August 2022, the respondent terminated the appellant's employment due to her unauthorised absence. Although dismissed for misconduct, the letter of dismissal confirmed the respondent would pay the appellant four weeks’ wages in lieu of notice, along with any leave entitlements owing to her on termination.

Contentions

On 24 August 2022, the appellant filed an appeal against her dismissal. The appellant sought reinstatement and an order for back pay for wages and other entitlements on and from 22 February 2022 to the date of her reinstatement.

The appellant challenged the dismissal decision on two bases; that she was denied procedural fairness and there were alternatives to dismissal the respondent should have imposed instead of dismissing her. Regarding the second ground, the appellant takes issue with the severity of the disciplinary action. During the hearing, the appellant conceded that the Board was only permitted to consider the dismissal decision and whether that decision should be adjusted by re-instating her.

Findings

The Board dismissed the appeal.

The evidence established that from as early as 4 February 2022, the appellant refused to comply with the mask directions. She directly breached the mask direction on two occasions by refusing to wear a mask in the workplace, on 4 and 22 February 2022.

The evidence also showed the appellant was insistent. She would not return to the workplace wearing a mask unless the respondent met the conditions set out in her letters of 28 January and 17 February 2022.

From 21 March until 29 April, the appellant was in breach of two lawful directions for which the respondent could have commenced disciplinary action. One was her continued refusal to wear a mask at work, the other being absent from work without authorisation. The Department’s response on both matters did not waiver.

There was little doubt the appellant’s ongoing conduct by refusing to comply with the Department’s directions to return to work after 3 May 2022 was inconsistent with the continuation of her employment.

The Board did not accept the appellant was denied procedural fairness. There was a very long period to the dismissal decision. The appellant should have been under no illusion that she had embarked upon a course that placed her employment in jeopardy. The process the respondent followed was procedurally fair, which gave the appellant an opportunity to respond to matters for which there were potential adverse consequences.

The Board found there were no alternatives to dismissal. The appellant’s dismissal was in the circumstances of this case, a proportionate response to the conduct for which she was dismissed. This finding was based on the opportunities the respondent gave the appellant to comply with the respondent’s reasonable and lawful directions; the payment of notice on termination; the length of time she spent off work; the appellant’s ongoing refusal to return to work despite not having a medical certificate; as well as a factor favourable to the appellant, her lack of a prior disciplinary history.

The decision can be read here.

The Tribunal granted the stay application, which was unopposed, regarding an Improvement Notice issued by a WorkSafe Inspector because the applicant had at least an arguable case and there was a serious question to be tried.

The stay was necessary to preserve the subject matter or integrity of the litigation, as compliance with the Improvement Notice before the hearing of the substantive application could create practical difficulties.

Background

In February 2023, a WorkSafe Inspector issued an Improvement Notice to the applicant, requiring it to take practical measures to ensure its employees are not exposed to hazards arising from a lack of fresh air ventilation when working at the workplace by 24 March 2023. WorkSafe later extended the time for compliance with the Improvement Notice to 31 May 2023.

Contentions

The applicant applied to the Tribunal for an external review. The applicant argued that the Improvement Notice was invalidly issued and the Work Health and Safety Act 2020 (WA) does not require it to implement the measures in the Improvement Notice. The applicant sought a stay of the Improvement Notice, which WorkSafe did not oppose.

In summary, the applicant submitted that the balance of convenience favoured a stay, because:

1. the imposition of the disputed measures was at the heart of the substantive application;
2. without a stay, the applicant would be susceptible to prosecution if it did not comply with the Improvement Notice, in circumstances where the applicant argued that the Improvement Notice was invalidly issued and required the applicant to take measures that the WHS Act does not require it to take;
3. there is public interest in not allowing statutory compliance and enforcement tools to be used by the regulator to extend the nature and operation of the duties that Parliament has imposed;
4. the public has an interest in workplace safety, but this is not a case where there is no safety management in place;
5. there would be no disadvantage to WorkSafe if the stay was granted; and
6. WorkSafe did not oppose the stay.

WorkSafe contended that:

1. the WHS Act does not prescribe the matters to be taken into account by the Tribunal when deciding whether to grant a stay;
2. the Tribunal should infer that the public interest is also a relevant consideration of a stay application under the WHS Act; and
3. this was a matter where time can be allowed for the implementation of the improvement measures.

Further, WorkSafe acknowledged that the applicant was entitled to an external review of the relevant decision with the opportunity to present evidence and submissions contrary to the WorkSafe Inspector’s view.

Findings

The Tribunal granted the application because it was satisfied that the balance of convenience favoured the grant of the stay.

The stay was necessary to preserve the subject matter or integrity of the litigation.  If a stay was not granted, the applicant would be required to implement the measures in the Improvement Notice by 31 May 2023 or risk prosecution. This created practical difficulties regarding the relief that could be granted by the Tribunal if the applicant were to comply with the Improvement Notice and then be successful in its substantive application. As WorkSafe rightly conceded, once the improvement measures are implemented, from a practical perspective, the appeal would be rendered nugatory.

Considering the grounds of appeal there was at least an arguable case and there was a serious question to be tried regarding the reasonableness of the decision the subject of external review.

The public interest was relevant to the Tribunal’s consideration of the application.  It was apparent from WorkSafe’s response to the application that it did not consider that a stay would create unacceptable risks for workers and others in the workplace.

The decision can be read here.

The Commission made a General Order under s 50 of the Industrial Relations Act 1979 (WA), ensuring that employees required to work on special public holidays, made under the Public and Bank Holidays Act 1972 (WA), were entitled to higher rates of pay.

 The order ensures that all industrial instruments made under the Act treat special public holidays and public holidays consistently.

Background

This application sought a General Order under s 50 of the Industrial Relations Act 1979 (WA) to apply to all awards, industrial agreements, enterprise orders and employer-employee agreements made under the Act. The General Order sought was in relation to special public holidays appointed by proclamation under s 7 of the Public and Bank Holidays Act 1972 (WA).

The application arose from the proclamation made by the Governor of Western Australia under the PBH Act that 22 September 2022 would be a special public and bank holiday in this State, following the declaration of a National Day of Mourning on the passing of Her Majesty Queen Elizabeth II.  The application sought to remedy a gap in awards of the Commission, which prescribe higher rates of pay for working on a public holiday set out in the award, but makes no provision for payments for working on a special public holiday, applying throughout the State.

The application was unopposed.

Contentions

UnionsWA

UnionsWA identified discrepancies in public holiday and overtime clauses in awards issued by the Commission that do not provide higher pay rates for employees working on special public holidays.

It argued that:

1. granting the General Order would align with the objectives of the Act, promote equity and good conscience, and be in the best interests of affected employees and the community;
2. evidence was unnecessary since there were no objections, and the gap in existing awards was self-evident; and
3. granting the application would not create new entitlements but rather extend existing obligations to pay higher rates of pay for working on special public holidays.

The Minister

The Minister supported the application with some amendments and pointed out that the Farm Employees Award 1985 did not contain a clause for penalty rates on public holidays and, thus, would not be affected by the General Order.

WALGA

WALGA disseminated the application widely among its members and allowed individual submissions. None of WALGA’s members opposed the application, with some local governments already paying penalty rates for employees working on special public holidays.

Further, WALGA outlined provisions in three local government awards regarding public holidays and public holiday entitlements, highlighting inconsistencies.

Findings

The Commission was satisfied that a General Order ought to be made because such order would be consistent with the objects of the Act and with the equity, good conscience and substantial merits of the case. Further, given the relative rarity of the proclamation of special holidays under the PBH Act, the cost impact of granting the application would not be of significant magnitude to outweigh the substantial merits of the case.

The order extended the same entitlement to higher rates of pay for working on a public holiday under current terms of industrial instruments made under the Act, to those employees who are required to work on a special public holiday.

The decision can be read here.

The Commission found that it has jurisdiction to hear an employee’s denied contractual benefits claim against an employer, which is a national system employer.

 Sections 26(2)(e) and 27(2)(o) of the Fair Work Act 2009 (Cth) did not prevent a national system employee from bringing a contractual benefits claim against a national system employee under ss 23(1) and 29(1)(b)(ii) of the Industrial Relations Act 1979 (WA).

Background

The applicant is a casual bus driver employed by the respondent, a private bus company in Southwest Western Australia. His hourly rate is $34.61 under a written contract.

The respondent holds contracts with the Public Transport Authority (PTA), including an "Evergreen Contract" for the Bunbury Stratham Capel Route (BSC Route). Under this contract, the PTA pays service fees to ensure bus drivers receive a specified "grossed up" hourly rate.

The PTA's bulletin sets the pass-through rate at $43.31 per hour for the MR Burnside Route.

To guarantee drivers receive this higher rate, the Evergreen contract (Clause 9.12) prevents contractors from profiting excessively from the additional service fees paid by the PTA.

The applicant started driving school buses on the BSC Route around July 2018. After discovering the pay rate discrepancy between his contract and the pass-through rate contained in the PTA’s Evergreen Contract Model Payments Elements, he filed a denied contractual benefits claim.

Contentions

The parties agreed that the applicant is a national system employee and the respondent is a constitutional corporation, which is a national system employer as defined in section 14 of the FW Act.  Further, they agreed that the applicant was not a party to the Evergreen contract.

The respondent contended that the applicant's claim did not pertain to a breach of existing entitlements within his employment contract. Instead, the applicant sought to alter his contract to include the higher rates from the PTA and the respondent’s contract, to which he was not a party. The respondent argued that this would necessitate the Commission making determinations regarding the fairness or legality of the applicant's contract, resembling an "unfair contracts" claim excluded by s 26(2)(e) of the FW Act.

Alternatively, the respondent claimed that the applicant aimed to enforce higher pay entitlements originating from the Evergreen contract, which was neither an employment contract nor an instrument to which the applicant was a party. The respondent contended that pursuing the enforcement of the Evergreen contract did not fall within the Commission's jurisdiction because it did not constitute a claim for the enforcement of an employment contract as defined by s 27(2)(o) of the FW Act.

The respondent argued that because the “source” of the applicant’s rights is not the applicant’s employment contract, but something outside it, the Commission did not have the jurisdiction to deal with the matter. According to the respondent, this would require the applicant to demonstrate that his claim fell under an exception to the privity rule, enabling him to enforce the Evergreen contract against the respondent to his benefit. The respondent maintained that both cases would involve claims excluded by ss 26(2)(e) and 27(2)(o) of the FW Act.

The applicant contended that under settled law, a denied contractual benefits claim under the Industrial Relations Act 1979 (WA) (IR Act) is in practicality, a claim for the enforcement of an employment contract, for which an order for damages to remedy the denial of the contractual benefit may be made.

Moreover, the applicant argued that his claim falls under a State or Territory law concerning "claims for the enforcement of contracts of employment," thereby not being excluded from the Commission's jurisdiction by the exception in s 26(2)(e) of the FW Act because of the application of ss 27(1)(d)(iii) and 27(2)(o).

The applicant asserted that the respondent's jurisdictional objection is not a novel issue and has been consistently rejected in previous cases. Contrary to the respondent's characterisation, the applicant clarified that his claim does not involve seeking to challenge the fairness of the employment contract, nor is it an attempt to enforce the Evergreen contract between the respondent and the PTA. Instead, the issue was whether he was entitled to a contractual benefit within his employment contract, specifically the minimum rates outlined in the Evergreen contract when operating buses on the BSC Route. The applicant argued that the Commission possessed jurisdiction to adjudicate and resolve this issue in a denied contractual benefit claim.

Findings

The Commission found that it does have jurisdiction to hear the claim.

This matter is not excluded by operation s 26(2)(e) of the FW Act because there is no unfair contracts law or jurisdiction in WA of the type that s 26(2)(e) is intended to exclude.

The Commission's jurisdiction to deal with industrial matters, including compelling the fulfilment of employment contract benefits, is found in common law principles, not the IR Act. The Commission's role is to identify the terms of the contract, whether explicitly stated, incorporated, or implied.

Section 27(2)(o) of the FW Act does not exclude the applicant’s claim. The applicant has made it clear that he is not seeking to enforce the Evergreen contract. Furthermore, s 27(2)(o) of the FW Act is directed at whether the law under which the claim is being made is excluded, not the content of the claim itself.  The identification of the contract upon which the applicant relies is one of the elements the applicant will have to establish at a substantive hearing of his claim.

The decision can be read here.

The Public Service Appeal Board dismissed an employee’s claim for the payment of salary during a period in which the employee was not attending work because it did not have jurisdiction.

The Public Service Appeal Board found that the employer’s decision not to grant the employee’s work from home request and subsequently not pay the employee during the period he did not attend work, but wished to work from home, was not a decision to suspend him without pay under s 82 of the Public Sector Management Act 1994 (WA).

Background

On 24 December 2021, the Chief Health Officer issued the Booster Vaccination (Restrictions on Access) Directions (No 2), which, subject to certain exceptions, restricted ‘vaccination directed persons’ from entering and remaining at certain sites if they had not complied with booster vaccination requirements on and from 12.01 am on 5 February 2022.

On 20 January 2022, the Director‑General, Department of Health issued a further direction to Department employees, requiring that they receive a booster vaccination against COVID‑19, unless they have an exemption under the Booster Directions and provide evidence.

The respondent incorporated the directions into its policies.

On 1 March 2022, the applicant received a letter referring to the 20 January 2022 direction. The applicant received a further letter on 15 March 2022 in similar terms.

On 23 March 2022, the respondent formally confirmed that the applicant was prohibited from accessing facilities in connection with his employment from 29 March 2022, on the basis that he had not complied with the directions.

In response, the applicant requested to work from home temporarily, which the respondent denied on 29 March 2022.

On 13 April 2022, the applicant was advised by letter that he had allegedly committed a breach of discipline by failing to comply with the 20 January 2022 direction to receive a booster vaccination. The letter gave him the opportunity to respond by 27 April 2022, but made no mention of the applicant’s working arrangements, suspension or payment during the disciplinary process.

On 28 April 2022, the respondent informed the applicant by letter that the discipline process will cease because the applicant contracted COVID-19 on 16 April 2022 and qualified for an exemption.

On 3 June 2022, the respondent stated in an email to the applicant that from 13 April 2022 to 28 April 2022 he had been “placed on an Access Restriction Period (ARP) and during this period, be legally unable to attend your workplace and not paid”. Further, the respondent confirmed that disciplinary proceedings commenced at the conclusion of the Access Restriction Period in accordance with their guidelines (‘no work as directed, no pay’ principle).

Contention

The applicant contends his pay was wrongly withheld from 13 April 2022 to 28 April 2022.

The applicant’s Form 8B ‑ Notice of Appeal describes the decision he is appealing as being dated 3 June 2022. He refers to an email chain concerning ‘…my request to have my leave without pay reversed as per s82(5) of the PSMA 1994’. In the section about remedies, the applicant stated that he is seeking a “reversal of the withholding of salary. Reversal of automated leave without pay”.

The respondent submitted that none of the correspondence expresses that a decision was made to suspend the applicant without pay as part of the disciplinary process or under the PSMA.

The applicant disputed the respondent’s right to withhold pay under the ‘no work as directed, no pay’ principle. Essentially, he says that it was the respondent that precluded him from working and because he was able to work remotely, he remained willing and able to work. He says the principle does not apply when an employee tenders service but is prevented by the employer from working. He says the respondent’s refusal to permit him to work remotely had this effect because its guidelines allow approval to be given for employees to work from home. He had been working from home until that point. The respondent chose to withdraw further approval.

Findings

The Appeal Board dismissed the appeal because it found that it had no jurisdiction in this matter.

The applicant did not persuade the Appeal Board that, as a matter of fact, a decision was made by the respondent to suspend him without pay under s 82 of the PSMA. This is because the applicant’s exclusion from the workplace commenced before the disciplinary process started and independently of the disciplinary process.

The applicant’s grievance, in substance, concerns the respondent’s policies and guidelines and the refusal to permit him to work remotely. However, no appeal lies under s 78 of the PSMA from any of these kinds of decisions.

The Appeal Board found that it did not need to make any findings about whether or not the respondent was legally entitled to withhold the applicant’s pay.

The decision can be read here.