APPEAL AGAINST THE DECISION OF THE EMPLOYER TAKEN ON 30 DECEMBER 2021

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00719

DELIVERED : FRIday, 14 October 2022

FILE NO. : PSAB 6 OF 2022

Appellant

AND

Director General, Department of Communities

Respondent

CatchWords : Public Service Appeal Board – Dismissal – Mandatory vaccination – Appellant unable to enter workplace because of vaccination status – Duties cannot be done entirely remotely – Appellant disobeyed a reasonable lawful order – Dismissal not unfair

Legislation : Industrial Relations Act 1979 (WA): s 26(1)(a), s 80I

  Public Sector Management Act 1994 (WA): s 78, s 80A, s 80 & s 82A     

Result : Application dismissed

Representation:

Appellant : On her own behalf

Respondent : Mr R Andretich (of counsel)

Cases referred to in reasons:

Adami v Maison de Luxe Limited (1924) 35 CLR 143

Director General, Department of Biodiversity, Conservation and Attractions v Cosentino [2022] WASC 306

Finlay v Commissioner of Police as the Chief Executive Officer of the Department known as the Police Service (Department of Police) [2022] WASC 272

Gee v WA Country Health Services [2022] WAIRC 00224

Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728

Kassam and Others v Hazzard and Others [2021] NSWSC 1320

Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015

McManus v Scott-Charlton (1996) 70 FCR 16

R v Darling Island Stevedoring and Lighterage Company Limited (1938) 60 CLR 601

Ronald David Miles & Ors t/a Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385

Reasons for Decision

1         These are the unanimous reasons of the Public Service Appeal Board (Board).

2         Ms Heller-Bhatt was employed as a District Child Protection Psychologist by the Director General, Department of Communities (Director General) from November 2016 until 30 December 2021 when she was dismissed.

3         The Director General took disciplinary action against Ms Heller-Bhatt, dismissing her by letter because Ms Heller‑Bhatt did not follow a lawful direction to be vaccinated and provide evidence of partial vaccination or a valid exemption by 1 December 2021 (Employer Direction).

4         Ms Heller-Bhatt appeals to the Board the Director General’s decision to take disciplinary action by dismissing her.

5         Ms Heller‑Bhatt says that she was unfairly dismissed because she conditionally accepted the COVID-19 vaccination and did not enter the workplace without being vaccinated. Ms Heller-Bhatt argues that she complied with the Chief Health Officer’s mandatory vaccination directions and she could have performed her role entirely remotely. In effect, she agrees that the Chief Health Officer’s mandatory vaccination directions were valid but says that the Employer Direction was not a lawful order because it was unreasonable. Ms Heller‑Bhatt asks the Board to reinstate her to her position (with backpay for lost wages), to be paid damages for the distress caused during the ordeal and to receive an apology.

6         The Director General says that Ms Heller-Bhatt was not unfairly dismissed. The Employer Direction was a reasonable lawful order. Ms Heller-Bhatt was required to be vaccinated in order to lawfully enter or remain at her place of work and perform her duties. The Director General says that any event, an order by the Board reinstating Ms Heller-Bhatt to work entirely remotely would be an order formulating new contractual terms and conditions. Such an order would fall outside of the scope of the Board’s powers under s 80I of the Industrial Relations Act 1979 (WA) (IR Act).

What the Board must decide

7         To determine this matter, the Board must decide whether:

a. the Employer Direction was a reasonable lawful order;

b. Ms Heller-Bhatt committed a breach of discipline by disobeying or disregarding a lawful order; and

c. the Board should adjust the decision to dismiss.

Legislative framework

8         Part 5 of the Public Sector Management Act 1994 (WA) (PSM Act) applies to public service officers and other prescribed employees in relation to any suspected breach of discipline for disobeying or disregarding a lawful order.

9         By s 80 of the PSM Act, an employee who disobeys or disregards a lawful order commits a breach of discipline and is liable to disciplinary action. Section 80A provides that ‘disciplinary action’ includes a reprimand, fine, transfer, reduction in remuneration or classification and dismissal. Section 82A sets out how an employing authority deals with a disciplinary matter.

10      Section 78 of the PSM Act enables an employee who is aggrieved by a decision to take disciplinary action to appeal against that decision to the Board. The Board is a constituent authority of the Commission and exercises jurisdiction under the IR Act in hearing and determining such appeals. Under s 80I of the IR Act, the Board may ‘adjust’ the matters referred to in s 80I(1).

11      Section 26(1)(a) of the IR Act applies to the Board’s exercise of its jurisdiction. It requires the Board to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms.

Background

12      The following background is not in dispute.

13      Ms Heller-Bhatt’s primary place of work was the Department of Communities’ (Department) office at 25 Duke St in Albany (Albany Office).

14      Ms Heller-Bhatt’s duties and responsibilities are described in her Job Description Form (JDF). Her duties included:

a. providing culturally appropriate assessment, therapy and consultation to children and carers of children in the care of the Department;

b. providing training and consultation to the Department’s staff; and

c. attending meetings with school staff and other stakeholders in relation to children in the Department’s care.

15      Certain therapy sessions can be conducted remotely, including via online therapy, depending on factors including the age of the child and any existing level of rapport. The Albany Office has a dedicated therapy room used for assessment, therapy and consultation of children in care,  carers and parents. Ms Heller-Bhatt’s office was next door to the therapy room.

16      Face to face and in person therapy and assessment can take place in therapy rooms, at community care services accommodation and at schools and education facilities.

17      Between September 2021 and 9 June 2022, under powers granted to him by the Public Health Act 2016 (WA), the Western Australian Chief Health Officer (CHO) issued various directions including (CHO Directions):

a. Health Worker (Restrictions on Access) Directions (No 3), given 22 September 2021;

b. Primary Health Care Worker (Restrictions on Access) Directions, given 22 October 2021;

c. Community Care Services Worker (Restrictions on Access) Directions, given 5 November 2021;

d. Education Worker (Restrictions on Access) Directions (No 4), given 22 December 2021;

e. Booster Vaccination (Restrictions on Access) Directions (No 2), given 24 December 2021;

f. Restrictions on Access (Revocation) Directions, given 7 June 2022;

g. Disability Support Accommodation Worker (Restrictions on Access) Directions, given 8 June 2022; and

h. Primary Health Care Worker (Restrictions on Access) Directions (No 3), given 9 June 2022.

18      The parties agree that Ms Heller-Bhatt was covered by at least the Community Care Services Worker (Restrictions on Access) Directions and perhaps the Primary Health Care Worker (Restrictions on Access) Directions up until 10 June 2022. From that date, she was covered by the Primary Health Care Worker (Restrictions on Access) Directions (No 3) dated 9 June 2022.

19      The effect of those CHO Directions is that:

a. after 1 December 2021, Ms Heller-Bhatt had to be partially vaccinated against COVID-19 to access the Albany Office, other offices of the Department and community care services accommodation within the meaning of the Direction at [17(c)] above;

b. after 1 January 2022, Ms Heller-Bhatt had to be fully vaccinated to access the Albany Office, other offices of the Department and community care services accommodation, and partially vaccinated to attend schools and education facilities more frequently than once a week;

c. after 31 January 2022, a person who participates in or facilitates activities at a school or education facility more than once a week had to be fully vaccinated; and

d. after 5 February 2022, a person subject to any of the restrictions in a. – c. had to be booster vaccinated for the mentioned activities.

20      The Director General directed Ms Heller-Bhatt to be vaccinated and provide evidence of partial vaccination or a valid exemption by 1 December 2021. Ms Heller-Bhatt did not comply with the Employer Direction. She remains unvaccinated.

Ms Heller-Bhatt’s case

21      Ms Heller‑Bhatt gave evidence. She also called Ms Cresdee and Ms Fox to give evidence.

Ms Heller-Bhatt’s evidence

22      Ms Heller-Bhatt gave evidence that she conditionally accepted the COVID-19 vaccine. She says she requested ‘crucial information regarding the vaccine’s safety and other pertinent aspects’ related to it to be able to make an informed decision. She explained that bodily autonomy is a core value belief for her and the employment contract she originally signed did not require her to be vaccinated.

Ms Heller‑Bhatt’s role

23      Ms Heller-Bhatt says: ‘My role as District Psychologist involved closely supporting case managers, team leaders, and other child protection workers in their work with some of the most vulnerable children and families in communities as well as foster carers and biological parents.’ Ms Heller-Bhatt says she could perform her work duties remotely by MS Teams and phone, as she did ‘throughout [her] employment’, including doing assessments, therapeutic support, consultations to staff members, liaising with external stakeholders and delivering staff training.

24      Ms Heller-Bhatt’s evidence is that if a child needs direct, face to face therapeutic support, that could be referred to her colleague or external services. The bulk of her work is consultations to team leaders and child protection workers. It is common practice to provide support to case managers, child protection workers, parents and foster carers by phone and MS Teams, even before the pandemic, because the Department has various district offices in the Great Southern area. Providing services remotely is convenient and efficient, enabling swift attendance to crises and last minute needs. Ms Heller-Bhatt’s evidence is that she would rarely go to school meetings. Instead she would meet with principals and teachers, and train district staff and associated professional agencies, by phone, MS Teams or Zoom.

25      Ms Heller-Bhatt gave evidence about the positive feedback she has received from District Directors, Assistant District Directors, team leaders, case managers and other staff about her performance in her role. She says that she has an excellent reputation.

Employer Direction

26      In response to a question from the Board about what she understood her employer to be directing her to do, Ms Heller-Bhatt said: ‘Yes, so my impression was, um, that the direction was that I had to upload my vaccination status and then also that I was directed by my employer to, um, to accept, yeah, the vaccine.’ Further:

EMMANUEL C: And a moment ago you said you understood it was to both upload your status and that you were directed to accept the vaccination?‑‑‑Yes.  Yes, absolutely, yep.  So are you saying that you do not have before you any evidence that my employer asked me to get vaccinated?

No, we're not saying that, we're trying to find out what you say you were directed to do and on what basis you understood the direction was given?‑‑‑Yes.

And I understand you're referring to perhaps a document that just happens to not be one that's in front of us?‑‑‑Right.

That's not necessarily problematic, if neither party - you know, not everything has to be reflected in documents but we're just trying to understand exactly what you understood the direction to be?‑‑‑Yes.

But I'm hearing you say that you understood it to be you needed to be vaccinated, is that what you mean by accept the vaccination?‑‑‑Correct, yes.

So to be vaccinated and upload evidence of your vaccination?‑‑‑Correct, yeah.

Okay.  And you're saying you think - and again, I don't want to put words in your mouth, I'm trying to paraphrase what I understand you've just said?‑‑‑Yeah.

Are you saying that you thought you were told to do that in a written communication sometime in October?‑‑‑Yes, and there were ongoing communications, yes ‑ ‑ ‑

All right?‑‑‑ ‑ ‑ ‑ to that effect, yeah.

All right, thank you.

27      In cross-examination Ms Heller-Bhatt said:

ANDRETICH, MR: Going back to what the Commissioner put to you, did you understand that document to require you to be vaccinated against COVID‑19?‑‑‑I understood the document or I - I understood the directions had asked me, um, to be vaccinated.

 and:

ANDRETICH, MR: But can I put it to you in this way?  The 19 November document that went to you of 2021 indicated to you that you were required to be vaccinated in order to continue at work, is that correct?‑‑‑Can you please repeat the question?

The document 19 November 2021 from the Director General you understood required you to be vaccinated against COVID-19 in order to continue at work?‑‑‑Yes.

Working from home

28      In effect, Ms Heller-Bhatt’s evidence is that she could perform her role entirely from home and the Director General did not need to dismiss her to comply with the CHO Directions.

29      Ms Heller‑Bhatt said she had been working from home ‘for quite a while’. She worked from home throughout the 2020 lockdown period. The effect of Ms Heller-Bhatt’s evidence was that she made two applications to work from home for six months which were approved by the Department. Her first application was approved by a former District Director and her second application was approved by Ms Collard. The first time Ms Heller-Bhatt was able to work from home one day per week. The second time Ms Heller-Bhatt was able to work from home two days per week. Ms Heller-Bhatt also worked from home on an ad hoc basis, which she would discuss with her District Director who would grant her requests to work from home. Ms Heller-Bhatt’s evidence is that she successfully worked from home via MS Teams and phone.

30      Ms Heller-Bhatt also gave evidence about having a different approach to her colleagues. She said: ‘As psychologists, we all work very differently, we all have very unique skill sets, we have different qualifications, we have different trainings. We have different area of expertise essentially.’ Ms Heller-Bhatt says her area of expertise is in what is needed by the family system, which focusses on how biological parents or foster carers can be supported so that they can effectively support young children. She explained that this means she does not usually treat or see children under the age of 10 individually. Rather she works with the family system. As this area of expertise is unique within the Department to Ms Heller-Bhatt, she supports and trains others.

31      Ms Heller-Bhatt’s evidence is that she conducts assessments with children, which does not involve looking at the child individually. Ms Heller-Bhatt organises for a case manager to make a video recording of young children with their biological parents or foster carers. Ms Heller-Bhatt then makes an evaluation based on the video recording. She says: ‘so therefore, um, it doesn’t really necessitate for me, um, to do face to face assessments with children at all, it works – I work quite differently.’ Ms Heller-Bhatt says that it is best practice for psychologists to work within their field of expertise and the area in which they feel most confident and competent. Ms Heller-Bhatt’s evidence is that the psychology team meetings involve a discussion about clients, the skill set within the team and who is most confident to take on a particular client. If no one has the confidence or competence to work with a particular client then that client is referred out to an external specialist.

32      Ms Heller-Bhatt confirmed in cross-examination that she had indicated that she had for some time been able to discharge all of her duties remotely. She agreed that she had not worked exclusively remotely during the whole of her employment and also that there are situations where remote assessment of in particular a child is not appropriate in her capacity as a psychologist.

33      Ms Heller-Bhatt agreed in cross-examination that her JDF did not indicate that her work was limited to the assessment of vulnerable people based on a video taken by someone else.

34      When it was put to Ms Heller-Bhatt in cross-examination that she did not have approval to work from home exclusively, Ms Heller-Bhatt said that she was unaware that was even a possibility. Ms Heller-Bhatt’s evidence was that she understood there were policy constraints in relation to working exclusively from home but she did not understand that from a logical perspective, because her services can be delivered remotely.

35      In cross-examination Ms Heller-Bhatt agreed that her place of work was the Albany Office, that she had not applied for that to change and that Ms Hobbs (the other psychologist in the Albany Office) was not her subordinate.

36      Ms Heller-Bhatt gave evidence that she last had face to face contact at work with a child a long time ago. She agreed that seeing a person face to face is direct contact but it was clear from her evidence that Ms Heller-Bhatt did not consider that direct contact had to be face to face. Her evidence was that she has direct contact with clients by MS Teams or Zoom. Ms Heller-Bhatt said that direct client contact accounted for around 25 to 30% of her duties and face to face work with children regardless of COVID-19 ‘was always a very, very small proportion.’

37      Ms Heller-Bhatt was asked about assessing a child where the child may be at risk from a biological parent or carer. It was put to Ms Heller-Bhatt that in those circumstances it would not be appropriate for the assessment to take place in the family or care environment. Ms Heller-Bhatt said such an assessment would be a five-minute procedure that could take place anywhere, in the home, office or park, and is usually done by a case manager.

38      The Director General put to Ms Heller-Bhatt that she would need to establish rapport with a child:

ANDRETICH, MR:   But surely where a child's involved or someone involved you need to establish a rapport with that child or that person in providing the type of service you do.  Is that not important to you?‑‑‑No, because the child doesn't even have to be aware that we're here.  I even do these assessments on Zoom where the parents just place me into the room, the - the child doesn't even know I'm there.  They, ah, do the five minute procedure and, ah, yeah, and it's filmed via Zoom.

39      Ms Heller-Bhatt would not agree in cross-examination that if the Senior Clinical Consultant said to her that she needs Ms Heller‑Bhatt to do a ‘face to face assessment on this person’ that Ms Heller-Bhatt would do it:

---Not necessarily.

You'd refuse to?‑‑‑Ah, as a psychologist first and foremost my duty is, um, ah, my duty is to abide by my ethical code of - of psychologists and we are supposed to be working within our field of expertise and competence.  Um, and that is very clear, that's always been very clear between Julia White and us psychologists, that we, ah, discuss any referral, ah, that, um, has been made to us.  Ah, anything where we don't feel confident, ah, or competent, um, will be referred to either a colleague within the department or, ah, to external psychologist services.

So you'd refuse if she said to you "I've assessed this case, I want you to go out and do it this way".  You would say "I'm not prepared to do it"?‑‑‑Ah, Julia would not even make such a, ah, request.  Ah, she would - she would, um, ask me if I were, um, willing to take on a client but she wouldn't - ah, she wouldn't request it the way you just ‑ ‑ ‑

But you could be.  You could be directed as part of your duties to do that?‑‑‑I don't know if that is even the case, Mr Andretich, I've never had a situation like that.

EMMANUEL C:   Well, I mean Mr Andretich is putting it to you that your employer could have directed you to provide services in accordance with your JDF face to face, that's the proposition he's putting to you.  I know you're saying, well, it wouldn't have happened.  He's saying, well, it could have happened, your employer is able to do that, isn't your employer?‑‑‑It's tricky to give you a yes or no answer because a psychologist first and foremost we have to abide by our code of ethics.  So I - I - according to my code of ethics I am only supposed to be engaging with clients within my field of expertise.

Just so that I understand are you saying that you're not competent and confident to interact with clients face to face?‑‑‑I am absolutely depending on the client presentation.  If they, for example, if - if it was a client presentation that I have no expertise around at all and it's really pertinent that (indistinct 12.29.58) this person (indistinct 12.30.01) psychologist, (indistinct 12.30.02), psychologist.  Sorry, with a specialised psychologist is what I'm going to say it would be against, ah, the benefit of my client, the best interests of my client for me to engage with them with that.

40      While Ms Heller-Bhatt would not agree that where it is necessary to see someone face to face then she is obligated to do so, she agreed that she had the skills and qualifications to see clients face to face. Ms Heller-Bhatt agreed that it would be an offence for her to come on to the premises of her workplace if she was not vaccinated. Ms Heller-Bhatt would not agree that she generally disagrees with vaccinations.

Impact of dismissal

41      Ms Heller-Bhatt spoke about the psychological, emotional and financial distress she experienced. A single mother with two children, her family has been adversely impacted by her dismissal. Further, Ms Heller-Bhatt says that when she was stood down without pay during the disciplinary process and the Director General prevented her from having paid employment on days she did not work for the Department.

Ms Fox’ evidence

42      Ms Fox gave evidence for Ms Heller-Bhatt. She is a clinical and counselling psychologist  with many years of experience. She qualified and practised in South Africa until 2009. Ms Fox has a small private telehealth practice. She does not work in child protection, see young children and has not practised child psychology in Australia. Ms Fox gave evidence about the benefits of using telehealth to deliver assessments and therapeutic interventions. Ms Fox said that the federal government and AHPRA have endorsed the use of telehealth. In cross-examination Ms Fox agreed that some practitioners would prefer to work with clients face to face.

Ms Cresdee’s evidence

43      Ms Cresdee gave evidence for Ms Heller-Bhatt. She started work for the Department as an Education Officer in the Great Southern District from April 2020. She used to consult with Ms Heller-Bhatt about educational issues for children in the Department’s care. Ms Cresdee gave evidence that she attended a meeting with Ms Collard as Ms Heller-Bhatt’s support person. She said Ms Heller-Bhatt was very respectful and professional in the meeting but did not get the answers she was seeking from Ms Collard, who ended the meeting after 15 minutes.

44      Ms Cresdee gave evidence that her dealings with Ms Heller-Bhatt at work were almost exclusively by MS Teams or phone. She said that liaising in that way did not impede their work. Ms Cresdee said she understood that Ms Heller-Bhatt worked remotely with the Katanning and Manjimup districts from April 2020.

45      In cross-examination Ms Cresdee confirmed that Ms Heller-Bhatt used the therapy room at the Albany Office but then said she was not in a position to observe what Ms Heller-Bhatt did. She agreed she was not in a position to say anything about what Ms Heller-Bhatt’s work other than as it related to Ms Cresdee’s role as education officer. Ms Cresdee agreed that the focus of her examination was about the convenience of communicating remotely with Ms Heller-Bhatt.

46      Ms Cresdee said she is quite new to the role at the Department. She said ‘I always heard that, um, if there was going to be therapy that there just wasn’t the capacity in the office for any of our psychologists to work – very rarely with children, that they – it was outsourced.’ She then said that she did not know whether Ms Heller-Bhatt did any direct therapy at the Department premises. In re-examination Ms Cresdee said that Ms Heller-Bhatt had never told her that it is never appropriate to therapeutically engage directly with children.

Department’s case

47      Ms Collard and Mr Cohen gave evidence for the Department.

Ms Collard’s evidence

48      Ms Collard has worked for the Department for 20 years and been in an executive role for the past two years. When Ms Collard was District Director of the Great Southern District from July 2021 until January 2022, Ms Heller-Bhatt reported to her. Ms Collard had overarching responsibility for casework, operational components and responsibility for all decisions for the district. Ms Julia White was responsible for Ms Heller-Bhatt’s clinical supervision and support. In the event of a difference of opinion between Ms White and Ms Collard, Ms Collard would prevail.

49      Ms Collard gave evidence that she had worked in child protection for 20 years and been involved in all the work psychologists would be involved in. She is aware of Ms Heller-Bhatt’s JDF and what was required of her. Ms Collard said:

And what did you see her role to be?‑‑‑Um, a psychologist in the district, um, as one, um, like Jessica, um, would be responsible for providing consultation to district staff.  Um, to support all of the, um, cases that might be open, so whether that's a child in care or a new investigation that might be open, intensive family support services.  Ah, so they could be consultation on a whole range of matters whether it was, um, trauma, um, that the child was exhibiting, care or support that the carer was, um, maybe challenged with the child's behaviours.  Um, consultation in relation to therapy, um, and/or additional support needs for the child, um, or family system.  Um, there is an assessment component to the psych role, so, um, part of that could be, um, assessing the child's um - the child's needs to see whether or not any additional supports are required externally to the department and - any referrals that may need to be made.  Um, doing some, um, attachment based type assessments.  Um, it might be, um, observing the dynamics between a parent and a child, um, observing the dynamics between a carer and a child.  Um, it could be providing, um, intervention to, um, children and families that, um, we have open in the department.  So that could be providing one on one therapy for the child.  Um, it could be providing one on one support to a carer.  Um, it, ah, could be a parenting capacity assessment, for example, psychologists can undertake parenting capacity assessments.

So there's a broad range of psychological support ‑ ‑ ‑?‑‑‑Yeah.

‑ ‑ for what the carers, parents and a child?‑‑‑Yes, that's correct.

50      The effect of Ms Collard’s evidence is that Ms Heller-Bhatt’s role extended to providing direct face to face therapeutic intervention for children. Ms Collard’s evidence was clear that the role of a psychologist is broader than just providing advice or consultation. If allocated, they are expected to provide therapy directly to children. In cross-examination Ms Collard said that the three main aspects to the psychologist role are consultation, assessment and intervention (including therapy). All three aspects are expected of any psychologist employed by the Department.

51      She confirmed that Ms Heller-Bhatt occasionally worked from home on an ad hoc basis. Ms Collard denied that Ms Heller-Bhatt had a formal work from home agreement. She said that if Ms Heller-Bhatt had made an application, she would have seen it, and she had not. Ms Collard would not agree in cross-examination that Ms Heller-Bhatt had made two successful applications to work from home on a regular basis. Ms Collard denied having approved Ms Heller-Bhatt’s application by email to work from home two days per week for six months and said she did not recall any emails to that effect. Ms Collard denied that Ms Heller-Bhatt worked from home two days per week on a regular basis while Ms Collard was Acting District Director. Ms Collard insisted that she approved occasional ad hoc work from home arrangements for Ms Heller‑Bhatt.

52      Ms Collard gave evidence about the Department’s flexible work options policy and guidelines. Under the policy, an employee must be in the workplace more than 50% of the time. This is because of operational needs, connection and team work. No employee had an open-ended or permanent work from home arrangement. Further, employees in regional child protection offices are considered frontline service delivery workers, because they are responsible to the community. Anyone can come in to the district office and request services. As a frontline worker, Ms Heller-Bhatt’s opportunity to work from home was limited.

53      Ms Collard gave evidence that an open-ended period to work from home, for example for as long as it might take for vaccination requirements to be relaxed, was not something that the Department could offer its employees. As frontline workers, psychologists need to be ‘right there’ to provide support to staff, children and clients. That cannot just be done on a ‘virtual mechanism.’ While Ms Collard agreed that some work is outsourced because of workload capacity, she said that it takes time to outsource and it may be necessary to provide face to face psychological services immediately. Outsourcing must be approved by the District Director and the Chief Psychologist. In cross-examination, Ms Collard would not agree that psychologists would determine whether matters were outsourced.

54      The effect of Ms Collard’s evidence was that psychologists are employed to provide direct (in person) assessments and therapeutic intervention, including with children. Ms Collard disagreed that it was unnecessary for Ms Heller-Bhatt to work directly with children because that could be done by Ms Hobbs instead.

55      Ms Collard gave evidence that the therapy room at the Albany Office is used by the psychologists to do therapy and support children in a safe space.

56      Ms Collard gave evidence that she met with Ms Heller-Bhatt (with Ms Cresdee in support) around 8 November 2021. She sent an email to Ms Heller-Bhatt dated 5 November 2021 that summarised the interactions with Ms Heller-Bhatt in that relevant period. The effect of Ms Collard’s evidence was that Ms Heller-Bhatt said her employer required her to be vaccinated, Ms Heller-Bhatt did not want to be vaccinated and she thought she could work entirely remotely.

57      In cross-examination Ms Collard agreed that she had not ever directed Ms Heller-Bhatt to engage therapeutically with a child but she said she had directed another psychologist to do so. Ms Collard denied in cross-examination that Ms Heller-Bhatt could perform all of her duties remotely by phone, Zoom or MS Teams. Her evidence was that there were many duties that Ms Heller-Bhatt could not perform remotely, including direct therapeutic interventions with children, in person parenting capacity assessments, face to face observations of parents or carers with children, attending the Albany Office, supporting carers one on one in their home or office and attending meetings outside the office at premises affected by mandates (for example schools and hospitals). The effect of Ms Collard’s evidence was to the extent that those duties might be able to be done remotely, they are best done in person.

58      Ms Collard also said that clients in child protection are very vulnerable. Many do not have video or phone access to do virtual meetings. It may not be culturally appropriate to do a virtual video recording of an Aboriginal family, for example. Ms Collard agreed that the Department had bought phones for clients before but video communications with a client is not best practice. Ms Collard agreed that it would depend on the particular client.

Mr Cohen’s evidence

59      Mr Cohen has been the Chief Psychologist at the Department of Communities for the past six years, working with at risk children and their family environments. Before that Mr Cohen worked for the Department for five years in residential and secure care, having worked for 27 years in private practice working with the Children’s Court and Family Court.

60      As Chief Psychologist, Mr Cohen says that he is effectively the arbiter of clinical matters and practice for the Department. His evidence is that all psychologists working for the Department must do assessment, consultation and therapy. That is driven by the requirement of a particular child. In the Great Southern District in particular, limited alternative practitioners mean that providing a child with a cognitive or neurological assessment is ‘a fairly basic requirement for a psychologist to have in their kit’, and requires a face to face assessment. Ms Heller-Bhatt put to Mr Cohen that she had not done a face to face assessment in five years. Mr Cohen said that the Department psychologists often have to do those assessments.

61      Mr Cohen gave evidence about the need for Department psychologists to have face to face contact with children:

ANDRETICH, MR: But are there some aspects of dealing with children in particular that direct face to face contact is the best and the only way to go?‑‑‑Um, I - I think there are.  Look, one of the difficulties is we need to realise that the child protection deals with a very difficult specific client group.  The children are often highly traumatised, um, ah, parents are often under a great deal of strain and particularly for those who've suffered significant trauma and intergenerational trauma there is a large amount of distrust about the department.  So to make any meaningful assessments or to achieve any level of therapeutic trust the biggest factor is - is often that initial meeting with the child.  Um, for a lot of our children it's quite difficult even just to get them into a therapy room, so often the initial meeting may occur in the waiting room.  Um, one of the difficulties that we've discovered, um, many years ago we had a group that was doing work for us in Kalgoorlie, ah, and a particular practitioner was extremely keen to do work, ah, just via iPads.  Um, um, at that - this is now I'm talking about four or five years ago and which probably wasn't as prevalent and as accepted as it is now as in the post‑COVID environment.  Um, and what we discovered was we actually separated the groups into two as a bit of a inhouse experiment in which the first person in the first case one group the person went and saw the children three times and then shifted to screen therapy.  And the other group he just went straight to screen therapy.  The screen therapy group barely lasted more than a couple of sessions and the other group lasted significantly longer.

The other aspect to it is, and depending upon the situation of the children, is for a lot of the actual computer in and of itself can be quite a novelty and so that just completely distracts from there being any therapeutic development.  So this is where the children are - we want them to actually actively participate with the psychologist obviously, yeah.

Are you saying that your preference is then face to face contact at least initially?‑‑‑There needs to be often in many cases initial face to face contact with the children that we deal with because they have an inherent distrust of the department and - and often given their backgrounds an inherent distrust in adults per se.

62      Further:

ANDRETICH, MR:   Look, I'll move on from that, Mr Cohen.  The question really at the heart of all of this is - and asking your opinion is it possible or desirable that a person employed in a position such as Ms Heller‑Bhatt has no contact other than remotely?‑‑‑Well, the answer to both is no.  And the answer - the reason for that is is because a psychologist like any other tradesman has - has a bag full of tools.  Um, just recording a child with a carer is one tool in the kit but given the difficulties and the challenges and the broad ranges of problems our children face we need a whole lot more than that and one of those is actually being in the room with the child.  Because remember you're not only assessing the child, you're assessing the carer.  Um, and so whilst the - I understand that the recording is very, very useful it is also very useful for the psychologist who's doing the assessing to be doing the recording because it's quite important that the person that's doing the recording minimises their effect on the situation in terms of the carer and the child because they're a 3rd party in the room that can make things even more complicated.  So the answer is no.  A psychologist who works at the Department of Communities needs to be able to spend time face to face with carers and to work actively with children as and when required in a room to, um, include - so to get them to participate in therapy.

Well, Ms Heller‑Bhatt says, "Well, that's all that I do and that's all that I'm prepared to do because that's what I feel, you know, I'm best at"?‑‑‑Mm.

As a Chief Psychologist so what's your view on that?‑‑‑Um, my - my view is that psychologists are employed by the department under the three pillars, they are expected to undertake a broad range of, um, assessments, um, therapy and - and consultations.  Um, I think one of the aspects of all three of those that we need to appreciate is that the role of the psychologist is not only doing those three things but at a broad extent is how they do those things.  And a lot of the people that we see are highly anxious, have a great deal of distrust et cetera.  Psychologists are very skilled at developing relationships and how you model, how you deal with people in these situations is important, not only for the client, not only for the child, but also for the broader Department of Communities staff.  And when you have case managers and staff in with you and you are working with these people you're actually modelling to them how they interact with the children, how they interact with the carers, and this is just as important in terms of getting our job done as a - as a broader child protection agency.

EMMANUEL C:   And is the implication of what you're saying that that couldn’t be done simply by remote means?‑‑‑I - it's much more difficult to do it remotely.  You know, I think - I think, you know, I mean one of the - one of the things that we all understand by the use of remote is what's lost.  What's lost is the gaining of, um, trust and introduction at the beginning of meeting.  When people walk into a room, ah, and they make eye contact and they - um, and what discussion may happen at the end that - that encourages people to, ah, feel as though they've made a relationship with the psychologist or indeed with the case manager and are willing to come back and - and have a more open discussion at some time in the future.  These things are lost when we have a 8.30 till 10.30 booking on Skype in which we all go down and everyone sits around the table, we rocket through what's occurred, and then everybody leaves and there's no, ah, opportunity for familiarity to be able to be, um, produced.  And one of the things about psychologists is their capacity to not only do that but also to model that for the staff as well.

63      Mr Cohen gave evidence about the importance of using the therapy room at the Albany Office in the context of the challenges of working with traumatised children. The effect of his evidence was that interacting remotely with vulnerable clients, particularly children, is often unsuitable.

64      Mr Cohen’s unequivocal evidence was that the role done by Ms Heller-Bhatt cannot be completely performed remotely. In cross-examination Mr Cohen said that the main part of a district psychologist’s work is a combination of consultation and therapy. He said that therapeutic interventions could be with a carer, a child or children. Mr Cohen explained that for reasons related to matters that go to court and conflicts of interest, ideally the Department tries to have external psychologists do the assessment and internal psychologists do the therapy. Sometimes both the assessment and therapy are done by internal psychologists.

65      In cross-examination Mr Cohen said that research about the efficacy of the use of telehealth by psychologists does not take into account the challenges of working with children, carers and parents with highly traumatised backgrounds in child protection, which is a very special set of circumstances.

66      Mr Cohen agreed in cross-examination that a psychologist should only provide services within the boundaries of their professional competence. He gave evidence that if a psychologist was regularly asked to do things they had no training in, the client would likely be referred to an external assessor who specialised in the area until the psychologist had received the necessary training. Mr Cohen maintained that there are core competencies for psychologists who work in child protection, including cognitive behavioural therapy with children. Psychologists employed by the public service are expected to be able to perform a broad range of duties to meet the needs of clients. Even if Ms Heller-Bhatt’s training and expertise in attachment-based framework would skew her approach toward those kinds of assessments, it would not mean that she can operate in that area all the time, or that those were the only clients she would ever see.

67      Mr Cohen gave evidence that a psychologist and registrar currently support the Great Southern district by working remotely until the end of the year.

68      In re-examination Mr Cohen said ‘So that ability for psychologists to work face to face with traumatised is still a core requirement for them to work for the department.’ He said that is an expectation he has of every psychologist who works within the Department. The effect of his evidence is that working face to face with clients is a requirement of Ms Heller-Bhatt’s role.

Ms Heller-Bhatt’s submissions

69      At the hearing Ms Heller-Bhatt confirmed that she does not challenge the validity of any of the CHO Directions. She argues that the Employer Direction was not a lawful order because it was unreasonable.

70      Ms Heller-Bhatt argues that she has conditionally accepted the COVID-19 vaccine. Her conditional acceptance is set out in three ‘conditional acceptance notices’ that she sent to the Director General, which set out 10 conditions including that she be given: proof that she is bound by law [to be vaccinated], proof the COVID-19 vaccine is ‘100% safe and effective’, evidence of the risk assessment done by the Director General, an agreement that the Department be liable for up to $100,000 for any adverse reactions she has to the vaccine and up to $20,000,000 for death or total and permanent disability caused by the vaccine, information about the Department’s right to ‘force civil conscription’ on her, written evidence that shows the Department ‘is not violating the Nuremberg Code’ and an affidavit from the Director General with evidence of each of these conditions.

71      Ms Heller-Bhatt says the Director General refused these conditions and her offer to do her job remotely by MS Teams and phone.

72      Ms Heller-Bhatt submits there was no requirement for any vaccinations in her employment contract. She says that for consent to be valid it must be given voluntarily in the absence of undue pressure, coercion or manipulation. She relies on Dean DP’s reasoning in Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015 (Kimber) and says that she understands the vaccines are experimental and until she is ‘provided with crucial information regarding the vaccines’ safety and other pertinent aspects related to the drugs [she does] not consent to have them’.

73      Ms Heller-Bhatt argues that the Director General’s decision to dismiss her was unfair. She says that she did not need to be vaccinated to perform her role, because she can perform most of her role remotely and has done at times throughout her employment with the Department. It is safe and productive for her to do so. While psychologists are generally expected to attend to all duties of their position, they do so within their scope of expertise. Where a District Psychologist lacks capacity or skills to attend to a request, Psychology Services in Perth are consulted and external referrals can be made. Ms Heller-Bhatt says ‘there is no need or actual circumstance in which a psychologist always attends to all work duties’ and if a child needs face-to-face contact with Psychology Services, this can be done by Ms Heller-Bhatt’s colleague, Ms Hobbs.

74      Ms Heller-Bhatt says that she did not feel supported by the Department during the disciplinary process despite her unblemished record. She experienced psychological, emotional and financial distress throughout the process and since she was dismissed. The Department did not act according to its purported values of respect, empathy and accountability. She asks the Board to reinstate her to her position, and allow her to work entirely from home. 

Director General’s submissions

75      The Director General says that Ms Heller-Bhatt accepts that the CHO Directions meant that she needed to be vaccinated from 1 December 2021 to enter her place of work.

76      In its amended Form 4 – Response (General),  the Director General said it conceded that a plain reading of its email dated 19 November 2021 to Ms Heller-Bhatt reveals that Ms Heller-Bhatt was not actually directed by that email to become vaccinated. However, Ms Heller-Bhatt has confirmed that she understood that she was directed to be vaccinated and provide proof of vaccination or a valid exemption. Ms Heller-Bhatt did not comply with the Employer Direction.

77      While Ms Heller-Bhatt argues that she could have worked all her hours from home for an open-ended period, the Director General says that he was not required to allow her to do so. No one else was allowed to do that. Ms Collard’s evidence, as Ms Heller‑Bhatt’s direct line manager,  is that at most an employee can be permitted to work from home for two days per week for six months. The Director General says that psychologists provide a full range of services and face to face meetings with vulnerable children are preferred. Ms Heller‑Bhatt’s duties were not limited to what she preferred to do. Her JDF does not limit Ms Heller-Bhatt to only working with parents or caregivers, or providing remote services. The Director General says that the evidence shows that Ms Heller-Bhatt’s role requires her direct contact where necessary and her presence in the workplace which is a community care facility. It is up to her employer, not Ms Heller-Bhatt, whether or not particular contact should be done remotely or in person.

78      The Director General argues that across the public sector, where employees were covered by public health orders that required them to be vaccinated in order to attend work, they were subject to the same direction as Ms Heller-Bhatt, and the same penalty for failing to obey that direction.

79      While the letter dated 19 November 2021 could have been clearer, Ms Heller‑Bhatt understood that her employer required her to be vaccinated if she wanted to work. The effect of the Employer Direction was not that an employee could be forcibly vaccinated, as suggested by Ms Heller-Bhatt. The legislation and the direction did not require Ms Heller-Bhatt to be vaccinated,  but if she wanted to work as a psychologist in the Albany Office then she needed to be vaccinated or exempt. She was neither.

80      The Director General says that Australian Privacy Principle 3.3A permits collection of personal information with consent and there was no coercion to rob Ms Heller‑Bhatt of the capacity to make a decision. When an employer insists on vaccination to comply with the law, it does not offend the notion of bodily integrity. An occupational safety and health risk assessment is not relevant in circumstances where the CHO has issued public health mandates of the type that apply in this matter.

81      The Director General says that the Employer Direction was reasonable and lawful because it reflected the law that applied to psychologists working for the Department: Kimber.

82      The Director General submits that the Board could not reinstate Ms Heller‑Bhatt if it is satisfied that Ms Heller‑Bhatt cannot work in a way required by the employer and within the confines of her JDF. To adjust the decision by ordering the Director General to employ Ms Heller-Bhatt and allow her to perform her duties remotely would be giving her a new contract: Gee v WA Country Health Services [2022] WAIRC 00224.

Consideration

83      An appeal of this type is heard de novo: Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728.

84      Given Ms Heller-Bhatt denies that she disobeyed or disregarded a lawful order, the Board must decide, based on the evidence and arguments before it, whether:

a. the Employer Direction was a reasonable lawful order;

b. Ms Heller-Bhatt committed a breach of discipline by disobeying or disregarding a lawful order; and

c. the Board should adjust the decision to dismiss.

Was the Employer Direction a reasonable lawful order?

85      It is not in dispute that CHO directions that are in force stand as valid law. The Board cannot ignore or overturn the effect of CHO directions.

86      The parties agree that at the time of her dismissal, the CHO Directions prevented Ms Heller-Bhatt from attending her workplace. Further, at the time of the hearing, the Primary Health Care Worker (Restrictions on Access) Directions (No 3) prevented Ms Heller-Bhatt from attending her workplace. The Primary Health Care Worker (Restrictions on Access) Directions (No 4) replaced those directions and are currently in force. In the Board’s view it is uncontroversial that they have the same effect.

87      The subject heading of the Department’s email dated 19 November 2021 was ‘Department of Communities: Direction to be vaccinated against COVID-19’.

88      Of particular relevance it said:

Dear Mrs Heller‑Bhatt

Employer Direction: Requirement to be vaccinated against COVID-19 and provide evidence of vaccination

You are receiving this lawful direction because your position, Psychologist, has as being affected by the Community Care Services Worker (Restrictions on Access) Directions (CCS Worker  Directions).

…

Direction to be vaccinated against COVID-19 and to provide vaccination status

You are directed:

• to declare whether you are unvaccinated, partially vaccinated, or fully vaccinated against COVID-19 in accordance with the Schedule to this direction on the COVID-19 Vaccination Status Portal before 1 December 2021
• if you are partially or fully vaccinated against COVID-19, to provide evidence of your vaccination status in accordance with the Schedule to this direction;
• if you are unvaccinated against COVID-19, to declare if you intend to be partially vaccinated against COVID-19 before 1 December 2021 and fully vaccinated against COVID-19 before 31 December 2021; and
• if you are exempt from a requirement to be vaccinated against COVID-19, to provide evidence of the exemption in accordance with the Schedule to this direction.

Failure to comply with this lawful direction is a breach of discipline which may result in disciplinary action. The outcomes of any disciplinary action can range from counselling to dismissal.

89      The Board notes the Director General’s concession set out at [76]. In the Board’s view, the Department’s email dated 19 November 2021 was poorly worded. But the Board is satisfied in the context of the extensive correspondence between the parties in this matter that Ms Heller-Bhatt was given the Employer Direction.

90      It is apparent from the two headings within the Department’s email dated 19 November 2021, earlier correspondence between the parties and Ms Heller-Bhatt’s central complaint, which is that she was dismissed because she is not vaccinated, that Ms Heller-Bhatt understood that her employer required her to be vaccinated or exempt in order to remain employed.

91      To her credit, Ms Heller-Bhatt did not argue that the Employer Direction was limited to a direction to declare whether she was unvaccinated, partially vaccinated or fully vaccinated. Her evidence was that she understood that she was directed to be vaccinated and provide evidence of vaccination or a valid exemption. That evidence is supported by at least five of Ms Heller-Bhatt’s letters and emails to the Director General dated 25 October 2021, 15 November 2021, 17 November 2021 and 22 November 2021 where she reiterates as much.

92      The Board finds that the Director General directed Ms Heller-Bhatt to be vaccinated and provide evidence of vaccination or an exemption by 1 December 2021. The Board is satisfied that Ms Heller-Bhatt understood that her employer required her to be vaccinated and provide evidence of vaccination or an exemption by 1 December 2021. Ms Heller-Bhatt’s purported ‘conditional acceptance’ of the vaccination does not assist her. The Board considers that the conditions Ms Heller-Bhatt put on her acceptance of the vaccine were not conditions any employer was likely to have been able to fulfil. In any event, we consider that the conditions were wholly unreasonable in the circumstances.

93      It is trite that an employee has a duty to obey an employer’s lawful and reasonable orders (see R v Darling Island Stevedoring and Lighterage Company Limited (1938) 60 CLR 601 at 621; Adami v Maison de Luxe Limited (1924) 35 CLR 143 at 151; McManus v Scott-Charlton (1996) 70 FCR 16 at 21AD (McManus)). Disobeying or disregarding a reasonable lawful order is a serious matter. Reasonableness is a question of fact and balance/degree: McManus at 30C.

94      In his recent decision of Finlay v Commissioner of Police as the Chief Executive Officer of the Department known as the Police Service (Department of Police) [2022] WASC 272 (Finlay), Justice Allanson set out the law in relation to lawful orders at [21]:

It is a fundamental term implied by law into all employment contracts that employees are contractually obliged to follow the lawful and reasonable directions of their employer. At common law, an employee's obligation of obedience is to lawful commands - commands which involve no illegality, which fall within the scope of the contract of service, and are reasonable: R v Darling Island Stevedoring and Lighterage Co; Ex parte Halliday v Sullivan (1938) 60 CLR 601, 621 - 622. Reasonableness is not a separate requirement, but is the standard or test by which the common law determines whether an order is lawful: One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) [2018] FCAFC 77; (2018) 262 FCR 527, 564; McManus v Scott-Charlton (1996) 70 FCR 16, 21. Reasonableness is not determined in a vacuum, but rather by reference to 'the nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship…': R v Darling Island Stevedoring and Lighterage, 622.

95      His Honour held at [23]:

The authority of the employing authority under the Public Sector Management Act to issue lawful orders should be understood as having the same content of the common law rule, and to authorise orders which involve no illegality, which fall within the scope of the contract of service, and are reasonable.

The Board respectfully adopts his Honour’s reasoning and applies it in this matter.

96      The Board must view Ms Heller-Bhatt’s conduct in the context of the employment relationship as a whole, considering matters including the employment contract, her JDF, the effect of the CHO Directions, the nature of the Department’s ‘business’ and the position held by Ms Heller-Bhatt.

97      The Board accepts the evidence given by the witnesses in this matter. While there were some differences in relation to matters such as whether Ms Heller-Bhatt had formal approval to work from home on a regular basis, those differences did not go to matters that determine the outcome in this case. Issues of credibility do not arise. The Board accepts that the witnesses gave evidence truthfully and to the best of their recollection.

98      On the basis of the evidence before us, we find:

a. the Department has a responsibility to provide psychological services and support to vulnerable children, family members and carers in the Great Southern District. In part the Department achieves this by engaging suitably qualified psychologists to provide the necessary services and support;

b. Ms Heller-Bhatt’s principal place of work was the Albany Office;

c. Ms Heller-Bhatt was a frontline worker employed to provide services to clients, including direct, face to face therapeutic intervention and engagement; and

d. face to face therapeutic intervention was provided at the Albany Office.

99      The Albany Office was covered by the Community Care Services Worker (Restrictions on Access) Directions. The effect of that CHO direction was that a psychologist could only attend the Albany Office if they were vaccinated.

100   Given that CHO direction, an employer direction requiring employees to be vaccinated or provide evidence of exemption was reasonably required in order for the Director General to recruit and maintain a workforce that could lawfully carry out the Department’s statutory obligations.

101   Taking into account Ms Heller-Bhatt’s employment contract, position, JDF, the nature of the Department’s ‘business’ and the effect of the CHO Directions, the Board finds that the Employer Direction involved no illegality, fell within the scope of the contract of service and was reasonable in the circumstances. The Employer Direction was a reasonable lawful order.

Did Ms Heller-Bhatt disobey or disregard a lawful order?

102   Ms Heller-Bhatt was aware that her employment was at risk if she did not comply with the Employer Direction.

103   Ms Heller-Bhatt did not comply with the Employer Direction because she was not vaccinated and did not provide evidence of vaccination or an exemption by 1 December 2021.

104   Accordingly, the Board finds that that Ms Heller-Bhatt disobeyed or disregarded a lawful order. She committed a breach of discipline.

Should the Board adjust the decision to dismiss?

105   Contrary to Ms Heller-Bhatt’s submission, the Employer Direction did not infringe Ms Heller-Bhatt’s right to bodily integrity. It did not authorise involuntary vaccination or any act that interfered with her body without consent. Ms Heller-Bhatt was not physically forced to receive the vaccination. She could choose not to receive it, which she did. That choice had consequences for her employment, but her bodily integrity was not violated. The Board agrees with the reasoning of Allanson J in Finlay at [36]:

An employer seeking to manage their statutory responsibilities for health and safety, and to implement a proper response to the risks of the pandemic for the workforce and others who may be affected,  may reasonably issue an order requiring vaccination for employees. While that may result in dismissal for those who choose not to comply, that is not itself an abrogation of the right of bodily integrity and is not itself reason to hold the order unlawful.

106   The dissenting judgment of Dean DP in Kimber does not assist Ms Heller-Bhatt. The Supreme Court of New South Wales dealt with that dissenting judgment in Kassam and Others v Hazzard and Others [2021] NSWSC 1320 from [65] – [69]:

[65] Given the very different jurisdictions being exercised by the Fair Work Commission and this Court, I would not ordinarily address the reasoning in their decisions (and I doubt they would address the reasoning in mine). However, as the Henry plaintiffs sought to rely on the reasoning it is necessary to record why that judgment is of no assistance.

[66] First, the relevant parts of the decision relied on by the Henry plaintiffs do not address the case law concerning consent to a medical treatment.

[67] Second, the passages relied on and passages to similar effect throughout the judgment appear to contain assertions about the efficacy and safety of COVID-19 vaccines and other aspects of the public health response to COVID-19 that were not reflected in the evidence that I found persuasive in this case and as far as I can ascertain were not the subject of evidence in that case.

[68] Third, elsewhere in her reasons, the Deputy President considered it necessary to opine on matters affecting either the validity or the appropriateness of making the Aged Care Order under the PHA (at [147] to [173]). The function of determining its validity is for this Court to discharge and the function of determining whether it should have been made is for the political process. The Fair Work Commission has neither function.

[69] Fourth, the Deputy President’s judgment concludes with a number of clarion calls imploring “all Australians” to do things such as “vigorously oppose the introduction of a system or (sic) medical apartheid and segregation” (at [182]) and “vigorously oppose the ongoing censorship of any views that question the current policies regarding COVID” (at [183]). Political pamphlets have their place but I doubt that the Fair Work Commission is one of them. They are not authorities for legal propositions.

107   Ms Heller-Bhatt argues that it was unfair for the Director General to dismiss her because she could have worked entirely from home. She was not able to produce any documentary evidence to support a finding that the Department had approved Ms Heller-Bhatt to work from home other than on an occasional ad hoc basis. But in any event, the Board does not accept Ms Heller-Bhatt’s argument that it was unfair for the Director General to dismiss her because she could have worked entirely from home.

108   Based on the agreed facts, documentary evidence and witness evidence, the Board finds that Ms Heller-Bhatt’s key duties involved consultation, assessment and intervention. We accept the evidence of Ms Collard and Mr Cohen, which was undisturbed, that Ms Heller-Bhatt’s duties included direct therapeutic interventions with children, in person parenting capacity assessments, face to face observations of parents or carers with children, attending the Albany Office, supporting carers one on one in their home or office and attending meetings outside the office at premises affected by mandates (for example schools and hospitals). In this case, failing to comply with the requirement to be vaccinated or provide a valid exemption meant that Ms Heller-Bhatt was unable to perform some of those key duties that she was engaged to perform. We find that because Ms Heller-Bhatt was not vaccinated or exempt, Ms Heller-Bhatt could not perform all of the duties of her role in accordance with her engagement. We consider that Ms Heller-Bhatt’s conduct in failing to comply with the Employer Direction was inconsistent with the continuation of her employment.

109   In the circumstances, the Board does not consider that the decision to dismiss Ms Heller-Bhatt on 30 December 2021 was harsh, oppressive or unjust. It was not an abuse of the employer’s right to dismiss in the sense discussed in Ronald David Miles & Ors t/a Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385.

110   Even if the Board came to a different view, and found that the dismissal was harsh, oppressive or unjust (for example, because Ms Heller-Bhatt did not disobey or disregard a lawful order), we do not consider that we should adjust the decision to dismiss because at the time of the dismissal:

a. Ms Heller-Bhatt was unable to provide service to the Director General in accordance with her contract of employment, for the reasons set out at [108];

b. at least three CHO directions were in force and the Board considers that their effect meant that Ms Heller-Bhatt could not perform all of her duties; and

c. it was unknown when (or if) those CHO directions would be lifted.

111   In this case, failing to comply with the Employer Direction was incompatible with Ms Heller-Bhatt’s obligation as an employee to provide service. It meant that she could not perform all of the duties she was engaged to perform.

112   While Ms Heller-Bhatt argues that she could have worked (and could still work) entirely from home, given Ms Heller-Bhatt cannot attend her workplace and cannot perform all of her duties, we are not persuaded that the Board could or should adjust an employer’s decision by, in effect, formulating new contractual terms.

113   The Board considers that an order reinstating Ms Heller-Bhatt to work entirely remotely and perform no face to face client services is outside of the scope of the Board’s power. As held in Director General, Department of Biodiversity, Conservation and Attractions v Cosentino [2022] WASC 306 by Allanson J at [37]:

On an appeal before the Board, it has the power to hear and determine the appeal and adjust ‘all such matters’ referred to in s 80I(1)(b); that is, any decision of (sic) finding referred to in s 78(1)(b) of the Public Sector Management Act.

Here the matters referred include the finding of a breach of discipline and the decision to take disciplinary action in the form of dismissal. Allowing Ms Heller-Bhatt to work entirely remotely and perform no face to face client services falls outside of those matters. It is not a matter referred to in s 80I(1)(b) of the IR Act. For the Board to make such an order would be beyond power and amount to jurisdictional error.

114   Further, the Board considers that even if an order reinstating Ms Heller-Bhatt to work entirely remotely and perform no face to face client services was within the Board’s power, such an order would be inconsistent with the Board’s obligations under s 26(1)(a) of the IR Act. Such an order would not be in accordance with equity, good conscience, and the substantial merits of the case in circumstances where Ms Heller-Bhatt cannot attend her workplace and cannot perform all of her duties.

Conclusion

115   This is not a case about substandard performance. Ms Heller-Bhatt presented as a passionate psychologist who is committed to performing the valuable work of assisting vulnerable families in need. However, for the above reasons, the Board must order that application PSAB 6 of 2022 be dismissed.