REFERENCE OF DISPUTE - S 28(2) - OSH ACT 1984

THE OCCUPATIONAL SAFETY AND HEALTH TRIBUNAL

CITATION : 2021 WAIRC 00490

DELIVERED : wednesday, 1 september 2021

FILE NO. : OSHT 2 OF 2020

Applicant

AND

Department of Education

Respondent

CatchWords : Occupational Safety and Health Tribunal - Refusal to work - Entitlements - Remedy limited to pay or benefit - Leave to discontinue or withdraw granted - Application to dismiss for want of prosecution

Legislation : Industrial Relations Act 1979 (WA)

  Industrial Relations Commission Regulations 2005 (WA)

   Occupational Safety and Health Act 1984 (WA)

Result : Applicant granted leave to discontinue

Representation:

Applicant : Mr J Carroll (of counsel)

Respondent : No appearance

Case(s) referred to in reasons:

The Australian Workers’ Union, West Australian Branch, Industrial Union of Workers v Barminco Pty Ltd – Plutonic Project (2000) 80 WAIG 3162

Nathan Maher v Director General of Health as a delegate of the Minister of Health in his incorporated capacity under section 7 of the Hospitals Health Services Act 1972 for the Metropolitan Health Services Board (2012) 92 WAIG 386

Reasons for Decision

1         The applicant seeks orders for:

(a) the payment of salary and entitlements for the period 31 October 2019 to 19 December 2019;

(b) an external investigation or audit of the workplace;

(c) reinstatement of her employment at an alternative workplace within the Department of Education;

(d) damages;

(e) aggravated damages; and

(f) compensation.

2         The respondent opposes the orders sought and contends that the Occupational Safety and Health Tribunal (Tribunal) is limited to ordering payment of salary and entitlements for the period 31 October 2019 to 19 December 2019 and lacks the requisite authority to make any of the other orders sought.  The respondent submits that the Tribunal ought not make an order for payment of salary and entitlements for the period of 31 October 2019 to 19 December 2019, pursuant to s 28(2) of the Occupational Safety and Health Act 1984 (WA) (OSH Act), because the applicant’s actions were not in accordance with the requirements of s 26(2a) of the OSH Act and the applicant was not exposed to a risk of imminent and serious injury, or imminent and serious harm to her health (s 26(2b) of the OSH Act)).

3         The respondent has sought an order that the referral be dismissed pursuant to s 27(1) of the Industrial Relations Act 1979 (WA) (IR Act) because of the applicant’s failure to prosecute her application.

Background

4         On 31 October 2019 the applicant reported a purported breach of the OSH Act to the Occupational Health and Safety Representative at the school in which she worked.  The report concerned claims that the applicant’s employer had failed to act on disclosures of workplace bullying and failed to remove and investigate a student the applicant believed was using drugs on the school site.  In addition, the applicant notified that her request for flexible work was denied and a request for alternate duties was denied.  In the incident report form the applicant stated that all reasonable requests to minimise injury were denied and as a result she has not been able to enter the workplace.

5         The applicant did not attend at the workplace from 31 October 2019.

6         On 11 November 2019 the respondent advised the applicant that she had not provided sufficient detail to enable an investigation of the matters in the incident report.

7         On 15 November 2019 the applicant submitted a completed Accident Incident Investigation Report Form, in which she states she formed the view that one of her students was under the influence of drugs and/or alcohol.

8         On 26 November 2019 the Occupational Health and Safety Representative submitted a report of her investigation into the issues raised by the applicant.

9         On 28 November 2019 the applicant was requested to attend a meeting the following day with the school principal to discuss the outcome of the Accident Incident Investigation Report Form among other matters.  The applicant declined the invitation and did not attend the meeting.

10      On 24 February 2020 the applicant referred the matter to the Tribunal seeking payment of entitlements from 31 October 2019 to 19 December 2019, an order for an external investigation or audit of the workplace and reinstatement of her employment at an alternative workplace within the Department of Education.

11      The respondent opposes the remedies sought and contends that s 28(1) of the OSH Act does not apply as the applicant left the school from at least 31 October 2019 onwards without authorisation from the respondent as required under s 26(2a) of the OSH Act.  The respondent submits that with the exception to the notification and authorisation requirements in s 26(2a) of the OSH Act it was not enlivened as the incident was localised to the applicant's year 7 classroom.  The respondent disputes that there were reasonable grounds for any belief that to remain at any location on the school’s premises during the claim period would expose the applicant to a risk of imminent and serious injury, or imminent and serious harm to her health (s 26(2b) of the OSH Act)).  The respondent submits that the applicant’s concerns were confined to work in the applicant’s year 7 classroom and not the entire school site.

12      On 16 June 2020 the applicant was requested to provide an update to the Tribunal.

13      On 18 June 2020 the applicant made a request to amend her application:

(a) Expressing concern that the respondent’s counsel had in inappropriately written to the Chief Commissioner seeking that the applicant’s application for unfair dismissal be joined with the referral to the Tribunal;

(b) Expressing concern that the respondent’s representatives did not have the necessary authority to conduct conciliation causing the conciliation conference to an excessive length;

(c) Expressing concern that the respondent’s representative had presented an irrelevant sensitive document during the conciliation conference.

(d) Had obtained documents by a freedom of information application that she believed established the hazardous nature of her workplace;

(e) Observed that the applicant had yet to receive a copy of the final investigation report; and

(f) Extended the remedies sought to a claim for damages, aggravated damages and compensation.

14      The respondent filed and served a response to the application to amend denying assertions made by the applicant, opposing the application to amend and inclusion of orders seeking to extend the remedies sought.

15      On 26 June 2020 the applicant was advised that the Tribunal had directed that a directions hearing be held on 28 August 2020 to consider and determine her application to amend her claim.  The date of the direction hearing was scheduled at a date convenient to the parties.

16      On 27 August 2020 the applicant requested that she appear by video conference and that in the event her offer to settle was rejected by the respondent she would propose that the matter be heard on the papers.  The applicant was granted her request to appear by video link.

17      On 27 August 2020 the applicant emailed a copy of an offer to settle the matter to the respondent and the Tribunal.  The terms of settlement proposed included the ‘redaction’ of a complaint lodged with the Legal Profession Complaints Committee.

18      On 28 August 2020, fifteen minutes prior to the commencement of the direction hearing the applicant emailed that she was unwell and would not attend.  The email was received as the hearing commenced.

19      At the directions hearing the respondent applied to the Tribunal to dismiss the matter and submitted that it would file an application and submissions in support of this application.

20      On 10 September 2020 the applicant emailed a copy of a purported medical certificate dated 28 August 2020 for the period 28 August 2020 to 8 September 2020 inclusive, stating she was medically unfit for work or study and included a handwritten annotation of ‘or attending court’.  The applicant also advised that she wished to engage legal representation.

21      On 4 November 2020 the respondent was requested to inform the Tribunal if it maintained its application to dismiss the matter.

22      The following day the applicant emailed the Tribunal expressing concern that she did not know of the change in the respondent’s representative and that she had not been informed of the respondent’s intention to apply to the Tribunal to have her matter dismissed.  The applicant advised that she had searched the Gazette to ascertain if she had missed an outcome of the directions hearing and the transcript, and did not understand what had ensued since her last communication.  The applicant advised that she had submitted an offer to the respondent and had not yet had a response.

23      The respondent’s representative informed the applicant that ‘the respondent’s legal representative is the State Solicitor’s Office and changes to the individual solicitor does not require a Form 11 – Notification of Representative Commencing or Ceasing to Act, to be filed and served.  The respondent further advised that it indicated to the Tribunal that the respondent would cause a letter to issue on the topic of whether to join the related applications if they were not already joined and that the respondent would exercise its right to apply in time for the proceedings to be dismissed.

24      In response to the applicant’s enquiry concerning the lack of expected action by the respondent to date, the respondent advised that this was a result of the applicant’s recent request to be provided with an opportunity to seek and obtain legal advice through the public scheme.  The respondent confirmed that there was no settlement offer pending given that the applicant had concluded that her settlement had been rejected by the respondent.  The respondent’s representative advised that he did not have instructions to pursue settlement discussions further at this time.

25      On 5 November 2020 the applicant was informed that the Tribunal had not issued any directions and that the respondent had informed the Tribunal that they would make an application for the matter to be dismissed and would file submissions in support of this application.

26      On 7 December 2020 parties were notified of a hearing for 29 January 2021, by email and post.  The applicant did not respond to an invitation to advise of her unavailable days.

27      On the day of the hearing the applicant advised that she would not attend the hearing because she had carer responsibilities and had been unsuccessful in engaging a professional carer.  The applicant advised that the ‘The Commission is aware of my Carer responsibilities’.  The applicant stated that she wished to have the matter determined on the papers.  The applicant did not attend the directions hearing on 29 January 2021.  At the hearing the respondent applied to the Tribunal for the matter to be dismissed pursuant to s 27(1)(a) of the IR Act.

28      On 29 January 2021 the Tribunal notified the parties that a hearing would be listed for the applicant to show cause why her application ought not be dismissed.  The Tribunal issued an order for the respondent to file and serve written submissions fourteen days before the date of the hearing.  The party’s availability was sought for the hearing.

29      On 5 February 2021 the parties were notified that the hearing was listed for 12 March 2021.

30      On 22 February 2021 the respondent filed and served upon the applicant written submissions in support of its application to dismiss for want of prosecution.

31      On the evening of 11 March 2021, the applicant filed a Form 1A – Multipurpose Form indicating that she was ‘withdrawing or discontinuing an application’ and/or ‘requesting to amend an application’ by which she:

(a) Objected to the respondent being represented by solicitors;

(b) Complaining of the failure to notify of a change in solicitors;

(c) Complained on the conduct of the respondent’s representative;

(d) Advised of her inability to leave her house or interact with others;

(e) Advised of her need to engage professional representation and her inability to do so to date; and

(f) Regrets that she must withdraw her claim if her application is rejected.

32      The applicant did not appear at the hearing on 12 March 2021.  The hearing proceeded in the absence of the applicant.

Hearing on the Papers

33      Regulation 32A(2) of the Industrial Relations Commission Regulations 2005 (WA) (IR Regs) provides that the Tribunal may determine any proceedings by conducting a hearing on the papers unless the proceedings require oral evidence to be given or a party of the proceedings objects to having the proceedings determined on the papers.

34      The applicant has requested that the referral be determined on the papers.

35      The respondent objects and contends that the nature of the claim would require at the least the cross examination of evidence concerning events on the day the applicant left the workplace.

36      Given the respondent’s objections it is not open to determine these proceedings on the papers.

37      In any event I agree that there may be a need for oral evidence and at a minimum the capacity to cross examine witness evidence.  I would exercise my discretion authorised by reg 32A(1)(c) of the IR Regs to decide that it is not appropriate for these proceedings to be determined on the papers.

Consent for a Legal Practitioner

38      The applicant contends that the respondent has mistakenly assumed her consent for the respondent to be represented by a legal practitioner.  The applicant objects to the respondent being represented by a legal practitioner and refers to s 31 of the IR Act in support of her contentions.

39      In applications made pursuant to the OSH Act, the provisions of the IR Act and the OSH Act must be read together.  The provisions of s 31(1) of the IR Act are modified by s 51I of the OSH Act.  This results in the legislation granting the right for any party or intervenor in proceedings before the Tribunal to be represented by a legal practitioner. 

40      The applicant’s consent for the respondent to be represented by a legal practitioner is not required.

Conciliation

41      In the heading to the schedule of the applicant’s Form 1A – Multipurpose Form filed on 12 March 2021, there is a reference to ‘and order to convene a Conciliation Conference’.  In the submissions set out in the Form 1A the applicant contends that the respondent misled the Tribunal in its submissions that a conciliation conference had been conducted.

42      Section 51J of the OSH Act authorises the Tribunal to assist the parties to reach an agreement if the Tribunal considers the issued involved may be resolved by conciliation.

43      Offers to settle the matter have been exchanged between the applicant and respondent.  This has not resulted in a settlement of the matter.

44      I do not consider the resolution of the issues between the parties subject to the application under s 28(2) of the OSH Act would be assisted by conciliation.

Application to Dismiss the Matter under s 27(1)(a) of the IR Act

45      The Tribunal can dismiss a matter under s 27(1)(a) of the IR Act:

(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it —

 (a) at any stage of the proceedings dismiss the matter or any part thereof or refrain from further hearing or determining the matter or part if it is satisfied —

  (i) that the matter or part thereof is trivial; or

  (ii) that further proceedings are not necessary or desirable in the public interest; or

  …

  (iv) that for any other reason the matter or part should be dismissed or the hearing thereof discontinued, as the case may be;

46      In The Australian Workers’ Union, West Australian Branch, Industrial Union of Workers v Barminco Pty Ltd – Plutonic Project (2000) 80 WAIG 3162, the Full Bench set out the principles to consider when deciding whether to dismiss an application for want of prosecution.  They include the length of the delay, the explanation for the delay, the hardship to the applicant if the application is dismissed, the prejudice to the respondent if the action is allowed to proceed, and the conduct of the respondent in the litigation.

Length of delay and reasons for delay

47      After lodging the referral to the Tribunal in February 2020 the applicant has not sought to progress the matter.  The Tribunal has listed direction hearings however the applicant has not attended these proceedings either in person or by video when this has been granted.  The applicant’s contact with the Tribunal has consisted of requests for information in response to the Tribunal notifying of hearing dates and her advice of her inability to attend hearings.

48      The applicant’s explanation for not attending the direction hearing on 29 January 2021 because of her caring responsibilities was not adequate.  Seven weeks’ notice of the directions hearing was provided, the applicant did not provide any explanation of the attempts to arrange alternate care and did not make a request for an adjournment nor appearance by video or telephone link.

49      The applicant failed to attend a hearing to show cause as to why her application ought not be dismissed.  The applicant notified the Tribunal of her inability to attend with little or no notice and lodged a Form 1A seeking to both withdraw her application and amend her application.  The applicant states that she regrets she must withdraw her claim if her application is rejected.

50      Rejection of her application to amend, in circumstances where the application is opposed, requires the Tribunal hear and determine the application.  The applicant has failed to attend direction hearings to progress the matter to be heard and determined.  Alternately, the applicant may have been referring to rejection by the respondent of her proposal to settle the matter.

51      It may be inferred from the applicant’s Form 1A that she is unable to attend a hearing because of an injury that has caused a relapse of a disability.  The applicant mistakenly submits that the Commission is aware of the nature of her disability.  The effect of the injury or disability on the process for hearing this matter has not been explained.  The applicant has not provided any evidence to support her contentions relating to an injury or disability.

52      The applicant has advised that she is not able to leave her home however she has not requested that the hearing be conducted by telephone or video link.  The applicant sought that the matter be determined on the papers.  I have set out the reasons for not granting this request earlier in these reasons.

53      The applicant has not adequately explained the reasons for her inability to attend hearings.  The applicant has failed to adequately explain the reasons for the delay in progressing her referral.

Hardship to Applicant

54      The hardship to the applicant which would result from the Tribunal dismissing the matter in accordance with s 27(1) of the IR Act must be considered.  In Nathan Maher v Director General of Health as a delegate of the Minister of Health in his incorporated capacity under section 7 of the Hospitals Health Services Act 1972 for the Metropolitan Health Services Board (2012) 92 WAIG 386 [23] the question of hardship was considered, and it was observed that hardship requires more than an applicant being deprived of an opportunity to have their day in court and there must be hardship which flows from that deprivation.

55      The applicant has sought to amend her application to include remedies of damages, aggravated damages and compensation.

56      Section 28(2) of the OSH Act limits the Tribunal’s consideration of an entitlement to the applicant to any pay or benefit for the period of time that an employee refuses to work in accordance with s 26(1) of the OSH Act.  The Tribunal does not have the necessary authority to consider damages, aggravated damages nor compensation.  The applicant does not provide any submissions that refer the Tribunal to a source of authority to make an award beyond that of s 26(1) of the OSH Act.

57      The applicant has not provided any submissions or evidence of hardship that flows from the denial of her referral.

Prejudice to Respondent and Conduct of Respondent

58      The respondent submits that as a consequence of the effluxion of time the memories of witnesses will have faded.

59      The respondent has appeared through counsel at the conciliation conference and each of the direction hearings listed in this matter and submits that there is nothing in the conduct of the respondent which would count against the proceedings being dismissed.

60      I find nothing in the conduct of the respondent and its representative to have contributed to the delay.

Dismiss the Referral or Grant Leave to Discontinue

61      On 12 March 2021 the applicant submitted a Form 1A seeking to both amend her application and withdraw/discontinue her application.  In her submissions the applicant states that ‘should the Commission reject my application I regrettably must advise the withdrawal of my claim’.

62      By the words ‘my application’ the applicant may be referring to the Form 1A seeking to amend her application to include additional remedies.  Alternately the applicant may be referring to the entire claim.  The additional remedies sought in the amendment application are not available for the Tribunal and therefore the application to amend the remedies cannot succeed and must be refused.  It should also be noted that only one of the three remedies sought in the originating application are available to the Tribunal.

63      Granting leave to discontinue an application will have a different outcome to that of a decision to dismiss.  Should leave to discontinue be granted the applicant may make a fresh referral.  For referrals to the Tribunal concerning reviews of decisions there is a time limit from the event that is the cause of the application.  The OSH Act does not prescribe a time limit for matters concerning the entitlements of employees who refuse to work where he or she has reasonable grounds to believe that to continue to work would expose him or her to a risk of imminent and serious injury to his or her health. 

64      The absence of a specified time limit possibly reflects the purpose of the provisions being applied in the context of a resolution of workplace issues.  In the Second Reading Speech for the Occupational Health, Safety and Welfare Amendment Bill 1987 (WA) the Minister for Labour, Productivity and Employment indicated that sections 26, 27 and 28 of the Bill were designed to protect an employee’s common law right to a safe working environment in situations where there was an immediate and serious threat to health and safety; ‘[I]n addition, and only upon the adherence of strict procedures as detailed, the Bill will enable a health and safety representative to direct that work shall cease.’; Western Australia, Parliamentary Debates, Legislative Assembly, 9 April 1987, 547 (Mr Peter Dowding, Minister for Labour).

The Bill provides that where work is halted as a result of a direction from a health and safety representative or by the employee exercising his common law right the employer is able to assign the employees involved to reasonable alternative work with the same pay and benefits applying as if he or she had continued in their normal work; Western Australia, Parliamentary Debates, Legislative Assembly, 9 April 1987, 547 (Mr Peter Dowding, Minister for Labour).

65      The purpose of these provisions is to enable employees who believe that to undertake a task or remain in a location will be a serious risk to their health or risk of injury to remove themselves from the risk and engage in a process to remediate the risk.  It is necessary for the employee wishing to enforce an entitlement to pay and benefits to demonstrate that they refused to work or remain at the workplace and notified the employer of their belief of the risk to their safety and health at that time with the matter subsequently deemed an issue under s 24(1) of the OSH Act.  An employee is required to demonstrate that s 24 and s 25 of the OSH Act have already been engaged or that continuing work would risk imminent and serious injury or imminent and serious harm to his or her health.

66      I infer from the applicant’s submissions that should her application to amend the remedies sought be refused and/or her application for the matter to be heard on the papers be refused she seeks to discontinue her referral.  The respondent submitted that the Tribunal may allow the applicant to discontinue her referral because the preconditions for continuing cannot be met.  The respondent observed that in these circumstances this may be the best course for the applicant.

67      The application to withdraw or wholly discontinue the referral is made after the respondent has filed a counterproposal or answer and after the Tribunal has set down the matter for hearing.   The Tribunal may grant leave to discontinue the application or order that the application be discontinued or dismissed.

68      If I have misconstrued the applicant’s written submissions of 12 March 2021 granting leave to discontinue the referral provides the applicant an opportunity to consider her situation.

69      The respondent’s submissions concerning its application to dismiss the referral is not without merit, however in consideration of the balance of injustice to the parties in these circumstances, I will grant the applicant leave to discontinue.  

Conclusions

70      The applicant is granted leave to discontinue.