2023 WAIRC 00001
APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 15 OCTOBER 2020
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00001

CORAM
: PUBLIC SERVICE APPEAL BOARD
SENIOR COMMISSIONER R COSENTINO - CHAIRPERSON
MR G SUTHERLAND - BOARD MEMBER
MS M BUTLER - BOARD MEMBER

HEARD
:
TUESDAY, 5 JULY 2022, WEDNESDAY, 6 JULY 2022, THURSDAY, 7 JULY 2022, FRIDAY, 8 JULY 2022, MONDAY, 5 DECEMBER 2022

DELIVERED : THURSDAY, 5 JANUARY 2023

FILE NO. : PSAB 31 OF 2020

BETWEEN
:
SANJA SPASOJEVIC
Appellant

AND

SPEAKER OF THE LEGISLATIVE ASSEMBLY
Respondent

CatchWords : Industrial Law (WA) – Public Service Appeal Board – Dismissal decision – Electorate Officer – Nature of leave entitlements – Abuse of personal leave entitlements – Abuse of annual leave entitlements – Whether misconduct established – Whether dismissal oppressive, harsh or unfair – Whether disparate treatment – Whether conduct condoned – Mitigating factors
Legislation : Industrial Relations Act 1979 (WA)
Parliamentatary and Electorate Staff (Employment) Act 1992 (WA)
Fair Work Act 2009 (Cth)
Result : Appeal dismissed
REPRESENTATION:
1
APPELLANT : MR S HEATHCOTE OF COUNSEL
RESPONDENT : MR M RITTER SC OF COUNSEL




Case(s) referred to in reasons:
Csomore v Public Service Board of New South Wales (1986) 10 NSWLR 587
Pantovic v Public Transport Authority of Western Australia [2011] WAIRC 00876; (2011) 91 WAIG 2094
Milentis v The Honourable Minister for Education (1987) 67 WAIG 1124
Mondelez v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union & Ors [2020] HCA 29; (2020) 271 CLR 495
Mondelez v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) [2019] FCAFC 138; (2019) 289 IR 29
O’Connor v State of Queensland (Dept of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships) [2021] QIRC 123
Spasojevic v Speaker of the Legislative Assembly [2022] WAIRC 00165; (2022) 102 WAIG 322
Walker v Bow Tie Removals and Storage Pty Ltd [2012] FWA 2851

Contents
Board’s jurisdiction and approach in appeals 5
Ms Spasojevic’s employment as an Electorate Officer 5
The dismissal decision 8
The purpose and nature of leave entitlements 9
Can Ms Spasojevic rely on an ‘informal system’ for approval of leave? 11
First Absence: Did Ms Spasojevic commit misconduct when taking personal leave to travel to Vietnam? 14
Second Absence: Did Ms Spasojevic commit misconduct by failing to apply for leave for dates when she was in Serbia in December 2018 and January 2019? 17
21 December 2018 20
7, 8, 911, 1416, and 18 January 2019 22
21-23 and 25 January 2019 24
Third Absence: Did Ms Spasojevic work on 46 June 2019? 25
Fourth Absence: Did Ms Spasojevic fail to apply for annual leave for her trip to Bali? 26
Fifth Absence: Did Ms Spasojevic work on 1 July 2019? 28
Sixth Absence: Did Ms Spasojevic commit misconduct by applying for only 2 days’ personal leave when she was in hospital for eight days? 28
Did Ms Spasojevic’s response to the ‘Leave Audit’ aggravate the misconduct? 30
Was dismissal too harsh a sanction? Mitigating factors 32
Was Ms Spasojevic’s conduct condoned or part of an accepted culture? 33
Was Ms Spasojevic treated harshly compared to other Electorate Officers? 34
Summary 37


Reasons for Decision

1 Whist working as an Electorate Officer employed by the Speaker of the Legislative Assembly Ms Sanja Spasojevic received salary for several periods when she was overseas on holidays, in hospital, or otherwise physically absent from her electorate office. Some payments were deducted from her accrued personal leave. Other payments were made without any deduction from her leave accruals.
2 Ms Spasojevic was dismissed from her employment for misconduct, following an investigation into allegations that she had ‘failed to apply for authorised leave’. In this appeal, she alleges that the dismissal was harsh, oppressive or unfair. She asks the Public Service Appeal Board to adjust the dismissal decision by reinstating her employment.
3 The Board must decide whether misconduct occurred or not. If misconduct occurred, the Board must also decide whether or not dismissal was a fair sanction for the misconduct.
4 The Speaker has the onus of establishing the misconduct occurred. To do so, the Speaker relied on the written policies and procedures that applied to Electorate Officers.
5 Ms Spasojevic focused on what she described as the ‘informal procedures’ which operated in the electorate office. She says she complied with those informal procedures, if not the formal ones. Her case is that, in reality, there were two systems for approving leave: one formal represented by the Speaker’s written procedures, and one informal, being the custom and practice in electorate offices. She maintains she was compliant with the informal procedures and so her leave was authorised. She also emphasised that the Member of Parliament (MP) with whom she worked always knew where she was, even when she was not at work. She says she always complied with the Member’s instructions.
6 Whether or not misconduct occurred does not depend on proof of a contravention of a policy or procedure, whether it be formal or informal. The real question is whether Ms Spasojevic acted knowingly and dishonestly by claiming benefits that she was not entitled to receive. An employee’s duty of fidelity and good faith is fundamental to employment. Dishonestly receiving unearned benefits is inimical to this duty. So, in determining whether Ms Spasojevic has committed misconduct or not, the purpose and nature of leave entitlements is paramount.
7 Four witnesses gave evidence to the Board. The Speaker relied on the evidence of Ms Spasojevic’s coworkers, Ms Slobadanka Goricanec and Ms Zoey McMillan. Both worked with Ms Spasojevic as Electorate Officers. Their evidence concerned the practices for applying for leave and recording leave taken.
8 The Speaker also called Ms Jane Meehan. At the relevant time, she was the Principal Human Resources Advisor within People and Governance Services, Department of the Premier and Cabinet. Her evidence was about what employees were told about leave and the systems for processing and recording employee leave. She also talked about the circumstances leading to the investigation of Ms Spasojevic’s leave history, the making of the allegations of misconduct, and the investigation into those allegations.
9 Ms Spasojevic gave evidence about the processes concerning taking leave as she understood them, and the circumstances relevant to each of the allegations against her.
10 Many documents were provided to the Board. In these reasons we do not make specific reference to all aspects of the witnesses’ evidence or all of the documents. We have, nonetheless, fully considered all of the documents and evidence relevant to the issues for determination in arriving at our ultimate conclusions.
Board’s jurisdiction and approach in appeals
11 The parties agree, and we find, that Ms Spasojevic was a ‘government officer’ for the purpose of Part IIA, Division 2 of the Industrial Relations Act 1979 (WA) (IR Act). Accordingly, Ms Spasojevic has standing to appeal the decision to dismiss her under to s 80I(1)(d) of the IR Act.
12 The principles that apply in determining appeals under s 80I are also agreed. We summarised those principles in Spasojevic v Speaker of the Legislative Assembly [2022] WAIRC 00165; (2022) 102 WAIG 322 at [16][20]. There is no need for us to repeat those principles here.
13 The Board must determine the appeal afresh from the start (de novo). The Speaker submits that in this process, the decision of the employer is not to be ignored: Pantovic v Public Transport Authority of Western Australia [2011] WAIRC 00876; (2011) 91 WAIG 2094 at [88] and the Board should be ‘slow to disagree’ with the employer’s decision: Milentis v The Honourable Minister for Education (1987) 67 WAIG 1124 at 1126. However, in this case, the Speaker did not express any reasoning for its decision in its written dismissal decision. Indeed, it is not clear what, if any findings the Speaker made to ultimately find the allegations against Ms Spasojevic substantiated.
14 In these circumstances, the Board is required to rehear every aspect of the allegations afresh. The Board is really required to decide for itself whether misconduct occurred, and substitute its own view for that of the employer.
Ms Spasojevic’s employment as an Electorate Officer
15 The following matters about Ms Spasojevic’s employment and the work of Electorate Officers were largely uncontentious.
16 Ms Spasojevic commenced employment as a parttime Research Officer in the electorate office of the Member for Kwinana, the Honourable Roger Cook MLA (Minister), on 11 March 2011. On 30 June 2017, her position was made redundant, and she ceased that employment.
17 Ms Spasojevic commenced a second period of employment, in the same electorate office, on 6 November 2017. The employment was parttime, four days a week, until 28 April 2019. She was paid at the highest salary increment of ER7 under the then operative Electorate and Research Employees General Agreement 2014.
18 Between 30 August 2018 and 7 March 2019, Ms Spasojevic worked a fifth day each week, Thursday, in a different electorate office for another MP.
19 From 28 April 2019, Ms Spasojevic worked fulltime, that is, five days a week, in the Kwinana electorate office.
20 Electorate Officers are employed under the Parliamentary and Electorate Staff (Employment) Act 1992 (WA). Under that Act, the Speaker is the employing authority of an Electorate Officer for Members of the Legislative Assembly.
21 According to the Job Description Form (JDF), an Electorate Officer’s primary role is to be the initial point of contact for all constituent enquiries. The position’s responsibilities include assisting constituents, providing advocacy, liaising with government agencies, Ministerial officers and other MPs. There are also a range of administrative functions relating to the operation of the electorate office and in support of the relevant MP.
22 The JDF for the position requires Electorate Officers to ‘Develop and maintain accurate and correct record keeping system for correspondences and documentations’.
23 Electorate officers report to the relevant MP as their line manager, who in turn reports to the Speaker as the employing authority.
24 Ordinarily, each MP is entitled to two fulltime equivalent Electorate Officers/Research Officers. Mainly for safety reasons, electorate offices are encouraged to have two staff present in the electorate office at any one time. This means that, if an electorate office has only two fulltime staff, and one staff member takes leave, relief cover is generally required to ensure at least two Electorate Officers are present in the office.
25 Each electorate office has a budget of 150 hours of relief cover to draw from, beyond which approval for additional hours is required. Ordinarily, this incentivised ‘judicious’ use of relief hours.
26 The Minister was approved for three fulltime equivalent Electorate Officers. This was because his role as Deputy Premier, Minister for Health and Mental Health, meant that his electorate office would deal with a broader range of issues and a more significant workload compared with other electorate offices.
27 As a consequence, when a staff member in the Kwinana electorate office was on leave, there would ordinarily remain two other staff present, so relief was often not required to maintain the minimum staffing levels.
28 Fulltime hours for Electorate Officers are 37.5 hours per week. An MP may approve flexible working arrangements: Parliamentary Electorate Office Handbook (PEO Handbook) paragraph 2.1.
29 As at the time of her engagement in November 2017, Ms Spasojevic suffered from several longstanding medical issues relating to her diagnosis of Type 1 Diabetes. She had to attend medical appointments from time to time for various reasons. She had regular medical appointments every Monday morning and Thursday morning.
30 Ms Spasojevic had an arrangement with the Minister whereby she was able to take time off work for medical appointments and other matters relating to her medical issues during normal working hours, and make up the time outside of normal working hours, without having to take time off as leave. Flexibility was afforded to her in order to accommodate her medical conditions. Because of this, she understood that she should make herself available to the Minister outside of normal business hours.
31 Three other Electorate Officers were employed to work at the Kwinana electorate office: Ms Goricanec, Ms Sherri Bothma and Ms McMillan. Each was employed parttime, to make up a total of three fulltime equivalence.
32 There was no time recording procedure implemented in the Kwinana electorate office. Electorate office staff were not required to clockon and off, nor to record their hours of work.
33 It was common practice for the Kwinana electorate office staff to ‘duck out’ of the office from time to time and make up that time outside of standard hours.
34 Ms McMillan said that Electorate Officers’ regular hours were 9.00 am to 5.00 pm, but staff could, for example, come in at 8.00 am and work until 4.00 pm. She said there was no formal arrangement for time off in lieu but:
…There was an understanding, we were all working with other caring roles that there  you know, there may have been times when you had to duck off for an appointment or things like that and there was an understanding around that.
35 Ms McMillan agreed that there were possibly around 20 occasions throughout the course of 12 months when she attended to personal matters during work time, without seeking formal approval or making a leave application. She said she would make up the time by working early or late, or working through her lunch break.
36 The Minister was physically present at the Kwinana electorate office only occasionally and for short periods. The witnesses disagreed as to precisely how often the Minister attended at the Kwinana electorate office. Ms Spasojevic maintained he attended every Friday throughout her employment. Ms McMillan suggested it was more likely monthly rather than weekly, although she agreed he would generally attend the office on Fridays.
37 It is unlikely that the Minister invariably attended the electorate office weekly. On 25 March 2019, Ms Spasojevic wrote an email to the other staff. The email said that it was impossible for the Minister to attend the office weekly. However, nothing really turns on this point. In any case, it is clear that the Electorate Officers were required to work autonomously, and largely without the Minister’s direct supervision.
38 There was no formal hierarchy amongst the four staff employed at the Kwinana electorate office. No one Electorate Officer had a formal direct reporting line to another Electorate Officer. But Ms Spasojevic was the most experienced of the four Electorate Officers and had worked with the Minister for the longest time cumulatively. We consider further the evidence as to, and consequences of, Ms Spasojevic’s ‘seniority’ in paragraphs [262] to [268] below.
39 Ms Spasojevic readily accepted that the position of Electorate Officer required a high degree of trust and confidence, is given a great degree of trust, with a fair degree of autonomy. The nature of the role of an Electorate Officer, arising both from its political context and its position within the public service, is such that Electorate Officers must have a high level of integrity.
40 The Human Resources Services Branch of the Department of Premier and Cabinet was responsible for administering employment entitlements for Electorate Officers on behalf of the Speaker. It processed leave applications, performed payroll functions and maintained the usual payroll records.
41 Ms Spasojevic’s counsel described Ms Spasojevic’s role as involving blurred lines between private and work time, and that Ms Spasojevic was expected to be available 24 hours a day. He did not specify who had this expectation. We accept Ms Spasojevic understood she was to be flexible in her availability as part of the ‘give and take’ of the flexibility afforded to her to accommodate her medical needs; she said: ‘…I believed that I owed [the Minister] to be available’. But we do not accept Ms Spasojevic’s was a 24 hour a day job, or that the Speaker or the Minister required her to be available around the clock.
42 Ms Spasojevic said that she received calls from the Minister sometimes at 2.00 am or 3.00 am. However, she did not say how these calls related to her work as an Electorate Officer, only that the Minister spoke to her about things that had happened.
43 The duties of an Electorate Officer can and should ordinarily be performed in a normal working day. An Electorate Officer is not an emergency service worker. The fact that until 28 April 2018, Ms Spasojevic worked parttime hours in the Kwinana electorate office and parttime hours for another Member also confirms the reality that the work/private divide was less ‘blurred’ than Ms Spasojevic sought to make out.
The dismissal decision
44 On 1 July 2020, Ms Sharon Basini, from Human Resources, contacted Ms Spasojevic by telephone whilst Ms Spasojevic was working in the electorate office. She told Ms Spasojevic that her employment was no longer required. According to Ms Spasojevic, Ms Basini referred to Ms Spasojevic as having committed fraud because she had not signed leave forms. Ms Basini told Ms Spasojevic that a settlement deed would be sent to her, and that she needed to leave the office immediately.
45 Despite what Ms Basini said in this conversation, Ms Spasojevic’s employment was not terminated. Rather, an investigation was commenced during which Ms Spasojevic continued to be employed.
46 The Speaker rightly concedes that what occurred on 1 July 2020, including Ms Basini’s conversation with Ms Spasojevic, was ‘messy and unfortunate’.
47 In a letter dated 27 July 2020, the Speaker advised Ms Spasojevic that two allegations of suspected misconduct had come to the Speaker’s attention. Ms Spasojevic was invited to respond to the allegations. The two allegations were:
Allegation 1
You have repeatedly absented yourself from work without prior approval, in breach of your employment duties.
Allegation 2
On 1 July 2020 you knowingly made false representations that you had worked for the Hon Roger Cook MLA on days that you had not, in breach of your employment duties.
48 The letter gave details of Allegation 1, by reference to four separate occasions when Ms Spasojevic was allegedly not at the electorate office. The details are described further below. Allegation 2 referred to Ms Spasojevic’s confirmation, by her signature, that her Leave Record was correct and up to date, even though her Leave Record allegedly did not accurately reflect her absences and the nature of them, as referred to in Allegation 1.
49 In September 2020, the Speaker added two more occasions in support of Allegation 1, making six occasions in total. The additional details related to April 2018 when Ms Spasojevic was in Vietnam, and March 2020, when she was in hospital.
50 The allegations are expressed poorly. What is meant by ‘prior approval’? Why is ‘prior approval’ necessary for the proper exercise of the right to be absent from work on annual leave or personal leave? Nevertheless, the details provided made it clear enough that Ms Spasojevic was suspected of abusing her leave entitlements and knowingly obtaining benefits to which she was not entitled, relating to those six absences from work.
51 On 15 October 2020, after Ms Spasojevic responded in writing to the allegations, she was summarily dismissed. The letter giving notice of the termination of the employment states:
…
I am satisfied that you repeatedly failed to apply for authorised leave prior to numerous periods of absence from the workplace, including extended periods of absence whilst overseas. The fact that you did not retrospectively apply for authorised leave is an aggravating circumstance. The salary payments made in respect of those periods of absence from the workplace is a financial benefit to which you were not entitled.
I note your explanation that the Hon Roger Cook has generally been aware of your whereabouts and that you answered emails, working remotely and flexibly during periods of absence from the workplace.
For the avoidance of doubt, it is not said that the Hon Roger Cook was unaware that you were periodically absent from the workplace, but rather that you were absent from the workplace without authorised leave…
52 Unfortunately, the termination letter does not reveal any reasoning process to get to the implicit finding of misconduct. It does not reveal what precise findings were made in relation to the details of the allegations against Ms Spasojevic. Greater clarity and transparency in reasoning may have helped narrow the dispute between the parties.
The purpose and nature of leave entitlements
53 The starting point in analysing the issues in this appeal is the wellestablished industrial principle of no work, no pay. Ms Spasojevic’s entitlement to payment of salary is derived from her contract of employment, which requires that she perform the full range of work assigned to her. Unless that requirement is waived or unless an applicable industrial instrument provides otherwise, payment of salary is conditional upon the performance of work: Csomore v Public Service Board of New South Wales (1987) 10 NSWLR 587, per Rogers J at 595.
54 Leave entitlements, whether contained in the contract, industrial instruments, or legislation, are exceptions to the primary obligation to perform work. A leave entitlement is an authorised absence from work: Mondelez v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union & Ors [2020] HCA 29; (2020) 271 CLR 495 per Gageler J at [47]. See also, Mondelez v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) [2019] FCAFC 138; (2019) 289 IR 29 at [195]. To state the obvious, paid leave entitlements create an exception to the general principle that work must be performed before there is a liability to pay wages or salary.
55 Generally, paid leave provisions in industrial instruments involve two components: the entitlement to be absent from work and the entitlement to be paid in respect of such absence despite not rendering any service: Mondelez v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) [2019] FCAFC 138; (2019) 289 IR 29 at [147]. There may also be leave entitlements that authorise an absence from work, but do not involve any liability for the employer to pay.
56 There is no at large entitlement to take leave. Leave can only be taken in the circumstances set out in the relevant clauses of the industrial instrument creating the leave entitlement: Mondelez v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) [2019] FCAFC 138; (2019) 289 IR 29 at [72].
57 This case is only about paid personal leave and annual leave. The authorisation for Ms Spasojevic to take personal leave was contained in the industrial agreements that applied to her. Between April 2018 and March 2022, the applicable industrial agreements were: Electorate and Research Employees General Agreement 2014, Electorate and Research Employees CSA General Agreement 2017 and Electorate and Research Employees CSA General Agreement 2019. Each industrial agreement dealt with personal leave in substantially the same terms: (2014 Agreement Clause 16, 2017 Agreement Clause 17, and 2019 Agreement Clause 22).
58 Clause 14 of the Electorate Officers Award 1986 applied throughout Ms Spasojevic’s employment. It authorised annual leave.
59 The purpose of personal leave is to protect employees against loss of earnings when unable to work due to illness, injury or unexpected emergency. Personal leave is not intended for the purpose of ‘recharging the batteries’. That is the role of annual leave.
60 Justice Gageler in Mondelez v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union & Ors [2020] HCA 29; (2020) 271 CLR 495 made other observations about the nature of personal leave entitlements. Although these observations are directed to the Fair Work Act 2009 (Cth), they apply equally to the entitlement under the above Agreements (citations omitted):
[77] By operation of s 97(a) of the Fair Work Act, paid personal/carer's leave can be taken “because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee”. In that respect, paid personal/carer's leave is the modern equivalent of what used to be known as “sick pay” or paid “sick leave”: “the right of an employee to receive [their] ordinary wages in respect of a period during which [they are] unable, by reason of sickness or accident, to perform [their] duties”. Sickness being “a misfortune to which all are subject”, sick leave protects employees against the hardship associated with the loss of earnings they would have expected to earn had they been well. By operation of s 97(b), paid personal/carer's leave can only otherwise be taken “to provide care or support to a member of the employee's immediate family, or a member of the employee's household, who requires care or support because of ... a personal illness, or personal injury ... or ... an unexpected emergency affecting the member”. In that respect, paid personal/carer’s leave is an extension of sick leave designed to assist employees in reconciling their employment and family responsibilities.
[78] Procedural rules safeguard against “sickies”. An employee taking paid personal/carer’s leave must give the employer notice of the period or the expected period of the leave and, if required by the employer, must give the employer evidence that would satisfy a reasonable person that the leave is taken for a reason specified in s 97(a) or (b).
[79] By operation of s 99, “the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work” during whatever period the employee takes paid personal/carer’s leave within the scope of the employee’s accrued entitlement.
[80] The nature of the entitlement that appears when s 96(1) is read in combination with ss 97(a) and (b) and 99 was wellstated by Bromberg and Rangiah JJ in the decision under appeal. They described paid personal/carer's leave as “a statutory form of income protection ... provided by authorising employees to be absent from work during periods of illness or injury and requiring employers to pay employees as if they had not been absent”. Illness and injury, it need hardly be said, tend to be random in their occurrence as, by definition, do unexpected emergencies. Effects of those contingencies on fitness for work tend in human experience to be felt more in days or parts of days than in hours or parts of hours. The entitlement to paid personal/carer’s leave ensures that, if, when, and for so long as, illness, injury or unexpected emergency results in unfitness of an employee for work, the employee continues to receive the base rate of pay that the employee would have received had the contingency not occurred.
61 When Gageler J observed that procedural rules safeguard against ‘sickies’, his Honour was averting to abuse of the entitlement by paid absence from work in circumstances that do not qualify for the entitlement. The procedural rules, however, do not condition the entitlement. The entitlement depends, relevantly, on an employee being unfit for work due to an illness or injury.
62 While there may be procedural rules, processes and procedures designed to prevent the abuse of leave entitlements, compliance with the procedure does not, in and of itself, give rise to an entitlement to the benefit. The preconditions for the benefit must always be met. The other side of the coin is that satisfying the procedural rules is not, in and of itself, conclusive as to whether there has been an abuse of the entitlement. Rules can be used dishonestly, just as they can be improperly evaded.
63 So, when speaking about whether leave is authorised or not, the authorisation is not to be sought in any process, form, or signature but rather in the terms of the applicable industrial instrument. The processes, forms, etc. are relevant only to the extent that the industrial instrument, the source of the entitlement and authorisation for the leave, requires them. To this extent, we agree with Ms Spasojevic’s counsel’s submission that the PEO Handbook is the wrong measure against which Ms Spasojevic’s conduct is to be assessed.
64 Further, the measure of whether Ms Spasojevic has engaged in misconduct is not answered by determining what process existed for employees seeking access to paid leave. Rather, the relevant questions are whether Ms Spasojevic was entitled to the leave benefits? If not, was she dishonest in her receipt of them?
Can Ms Spasojevic rely on an ‘informal system’ for approval of leave?
65 A large amount of evidence concerned the documented processes for applying to take leave, and the processes the Electorate Officers in the Kwinana electorate office followed in practice. Ms Spasojevic says there was an informal system pursuant to which her leave was authorised verbally, and it was not necessary to submit leave application forms.
66 As already indicated, the ultimate question is not which process Ms Spasojevic had to comply with, but whether she was entitled to the benefits she claimed. The processes are the vehicles used to claim the benefits.
67 For other reasons, Ms Spasojevic’s case about an informal system leads to a dead end. She asserts in a general way that her leave was approved verbally and that she was excused from making leave applications. But she did complete leave application forms for four of the six occasions. For the other two occasions, her reason for not submitting a leave application form was that she was working, that is, not on leave. In respect of those absences, the overarching case that her leave was approved verbally has no role to play.
68 Even if this theme in Ms Spasojevic’s case was relevant, we are not persuaded that it was okay for her to be absent from work without providing accurate leave application forms to Human Resources, except in the case of the Christmas shutdown, and instances of ‘ducking out’ of the office and making up the time out of ordinary hours. Nor are we persuaded that she believed that it was okay, either.
69 From time to time, Human Resources issued and updated the PEO Handbook. There are several versions of the PEO Handbook in evidence. Their content does not differ in any material way in relation to leave application processes. Ms Spasojevic had at least one version of the PEO Handbook and was aware of its provisions in relation to the taking of leave.
70 The PEO Handbook requires leave applications to ‘be submitted via completion of an Application for Leave form, which is available on [the intranet for Electorate Officers, known as] EO Net. The type of leave sought must be clearly indicated and signed by the Member and forwarded to [Human Resources]’.
71 At least two versions of leave application forms were available to and used by Electorate Officers. Each version contained a space where the type of leave being applied for could be inserted, as well as the dates of the leave and the number of hours or days. There was also a space for the signature of the employee applying for leave and a space for the MP to sign the application as ‘approved’.
72 On the face of the leave application form, the MP’s signature is expressed as ‘approval’ of an ‘application for leave’. The MP is not purporting to grant the leave, but only to approve of the employee applying for leave. Put another way, the approval confirms the MP has knowledge of, and agrees to, the absence from work. It does not go any further than that. Critically, it does not in and of itself entitle the staff member to be paid for the absence.
73 Obviously, the MP’s signature on a leave application form for a specified period of leave cannot be agreement, approval or authorisation for periods of leave not specified on the form. So, for example, if a staff member submits a form for three days’ leave, the MP’s signature on the form cannot be taken to be an agreement for leave to be taken beyond the three days specified. Nor does it amount to an agreement that the staff member need not make other applications for leave for absences that might extend beyond the three days referred to.
74 The forms do not suggest that the leave is ‘authorised’ by the MP’s signature in the sense of creating the right to the leave. This is consistent with the fact that neither personal nor annual leave require ‘authorisation’ beyond meeting the entitlement conditions. If the conditions for taking the leave are met, an employee is authorised to be absent from work and is entitled to be paid for the absence, subject to having accrued the entitlement. The nature of the entitlement is such that the presentation of a form cannot create or determine any rights or obligations. The form simply serves as an administrative tool for assessing and processing the leave entitlements.
75 Taking the example of annual leave, the conditions for exercising the entitlement are first, that the leave has accrued to the employee, and second, that the employer approves the time the leave is taken: Award, Clause 14(3)(b). The MP’s signature on a leave application form might establish the second condition, that is, approval of the time for leave to be taken. But the signature does not entitle the employee to payment for that period if the employee does not have an accrued annual leave entitlement to cover it. Approval of an absence of eight weeks, where there is an accrued entitlement of only four weeks, cannot have the effect that the employee is entitled to be paid for eight weeks of leave.
76 There is no evidence that the Minister had any involvement in maintaining Electorate Officer payroll or leave records. The Minister was not responsible for preparing or submitting leave forms to Human Resources. This was done by the Electorate Officers. There is no evidence that the Minister would or should have any knowledge of what leave entitlements Electorate Officers have used or accrued. Rather, Ms Meehan’s unchallenged evidence was that it was Human Resources’ responsibility to administer payroll and leave accruals, and to maintain records in relation to those matters.
77 So, when an MP ‘approves’ a ‘leave application’ they are not doing anything determinative of the Electorate Officer’s entitlement to be paid for the absence. Rather, the MP’s approval of the leave application is a step in the process required for Human Resources to then assess the application for leave, determine what entitlements are available and should be paid, process payment and make and keep the required records.
78 There was ample evidence showing that Electorate Officers in the Kwinana electorate office, including Ms Spasojevic, followed the procedure set out in the PEO Handbook. They completed the forms provided on EO Net before or after taking a period of leave, presented the form for signing by the Minister, and submitted the form to Human Resources once signed. The Electorate Officer making the leave application completed the forms and mostly submitted them to Human Resources. Sometimes they would leave the completed and signed application form for one of the other Electorate Officers to submit to Human Resources on their behalf (usually by email copied to the applying Electorate Officer).
79 Ms Spasojevic submits that, in practice, the Minister had virtually complete discretion and autonomy in relation to how the electorate office was run. However, even if the Minister’s discretions and instructions overrode documented procedures for the running of the electorate office, the Minister clearly had no involvement in or control over payroll. There was no evidence of the Minister ever giving instructions about payments to be made to Ms Spasojevic, or about deductions to leave accruals. It was not seriously suggested he had the right to. Ms Spasojevic submitted that it was the Minister’s instruction that she had to follow, not the PEO Handbook. But there is simply no instruction from the Minister to the effect that Ms Spasojevic be paid without deduction of annual leave accruals for the annual leave she took.
80 This shows that there is no scope for Ms Spasojevic’s theory that there was an informal process for approval of leave, or that her leave could be approved verbally by the Minister. That case is simply inconsistent with the nature of leave entitlements and how those entitlements can be used.
81 Part of Ms Spasojevic’s case about there being an informal system for approving leave was that in the Kwinana electorate office, there was a practice whereby no leave application form was required if relief staff was not required to cover the absence. Again, the factors we have discussed above leave no scope for such a system. In any event, we do not accept there was, in fact, such a system.
82 The Minister was not always willing to approve the use of relief staff to cover for Ms Spasojevic’s absences. We accept that there were occasions when the Minister told Ms Spasojevic that it was not necessary that she apply for relief cover for periods when she was absent from work. Naturally, the Minister could expect that between the three other permanent Electorate Officers, Ms Spasojevic’s absence did not require relief to ensure minimum staffing levels were maintained.
83 There is no evidence that waiving the requirement for leave forms unless relief was required was generally practiced, other than Ms Spasojevic’s assertion that this was so.
84 Ms Spasojevic asks the Board to equate the Minister’s desire not to engage relief staff with excusing her from applying for leave at all. It hardly needs to be stated that the issue of arranging relief and the entitlement to take and be paid for leave are entirely separate issues. The Minister’s indication of a preference not to arrange relief says nothing about Ms Spasojevic’s entitlement to be absent from work and her entitlement to payment for absences. Ms Spasojevic knew, or ought to have known, that relief and leave were separate issues, including because one form of leave application she herself filled out on many occasions prompted her to select ‘Relief required: Yes/No’.
85 When relief was required, Human Resources needed to be involved, and would be alerted to the fact of a permanent Electorate Officer’s absence. This would trigger a check on whether an application for leave had been made. Ms Spasojevic knew this. When no relief was required to cover Ms Spasojevic’s absences, this created an opportunity for Ms Spasojevic to not apply for leave and so preserve her leave accruals, without being caught.
86 Ms Spasojevic knew, or reasonably ought to have known, that there was no place for an informal arrangement excusing her from submitting leave application forms to Human Resources for periods when she was taking leave. She must also have known that she had a duty to ensure the accuracy of her own leave records because:
(a) In 2014, she had taken leave in excess of her leave credits, and was required to pay back a salary overpayment.
(b) In 2014, Human Resources told her that it had not received leave application forms for the entire period of an absence, and she agreed to complete the forms and submit them upon her return from leave. She then retrospectively completed leave application forms and submitted them. She included an application for leave without pay for 13 days because her absence exceeded her accrued entitlements.
(c) All queries and correspondence about Ms Spasojevic’s leave were between Ms Spasojevic and Human Resources without any involvement of the Minister. The Minister was not privy to such exchanges and had no input into them.
(d) Ms Spasojevic stated that she agreed that the Minister relied upon the Electorate Officers to give him leave forms to sign, and relied on the Electorate Officers to submit the signed forms to Human Resources.
First Absence: Did Ms Spasojevic commit misconduct when taking personal leave to travel to Vietnam?
87 In about March 2018, Ms Spasojevic’s husband bought a ‘Luxury Escape’ package for a trip to Vietnam. According to Ms Spasojevic, on or about 9 March 2018 she attended a staff meeting where she told the Minister about the Luxury Escape package, but that her doctor had not given her clearance to fly. She told the Minister, ‘I need the week off. Whether I get clearance to go to Vietnam or not, I need the week off’. According to Ms Spasojevic, the Minister responded, ‘That’s fine’. He also said that it would not be necessary to organise any relief staff, as Ms Goricanec and Ms McMillan could provide cover.
88 Ms Spasojevic booked flights to Vietnam for her and her family, arriving Saturday, 14 April 2018 and returning on 21 April 2018.
89 On 26 March 2018, Ms Spasojevic completed a leave application form for that period. The leave form indicated it was for personal leave for illness or injury from 16 April 2018 to 20 April 2018.
90 The Minister signed the form on 27 March 2018. On the same day, he also signed an application for a public service holiday in lieu which Ms Spasojevic submitted, for another unconnected date.
91 Ms Spasojevic then travelled to Vietnam with her family on the Luxury Escape package. Consequently, she did not attend work from Monday, 16 April 2018 to Friday, 20 April 2018. She was paid personal leave for this period.
92 Clearly, Ms Spasojevic made advance plans to travel to Vietnam to have a holiday with her family.
93 We accept Ms Spasojevic’s evidence that she discussed her plans to travel to Vietnam with the Minister. Accordingly, the Minister was aware that Ms Spasojevic planned to take a trip to Vietnam for a week at some point after 9 March 2018.
94 However, the discussion with the Minister occurred on 9 March 2018, more than a fortnight before the Minister signed the leave form. Further, there is no evidence that Ms Spasojevic told the Minister on 9 March 2018 the dates when she was planning to travel to Vietnam. What she told the Minister was that the Luxury Escape package had ‘no date attached to it’. She said to the Minister that she needed a week off, not which week. Nor did she alert the Minister to the fact that the personal leave application form he was signing two weeks later on 27 March 2018, was for the Vietnam trip they had discussed on 9 March 2018.
95 Notably, the evidence in relation to this allegation does not amount to a claim that the Minister directed, asked, permitted or instructed Ms Spasojevic not to make an accurate and true application for leave. It is merely evidence that the Minister knew of Ms Spasojevic’s plans to travel to Vietnam in the future.
96 Ms Spasojevic’s evidence was that she ‘needed a break’ and that she was justified in taking the period as personal leave. Ms Spasojevic said she needed the week off because ‘I was tired. I was tired and I was unwell’.
97 She obtained a medical certificate that said she was fit to travel. She produced no evidence that she was unfit for work.
98 We do not accept that Ms Spasojevic was unfit for work due to illness, qualifying for personal leave. The trip to Vietnam was planned to use the Luxury Escape package her husband had purchased. It was obviously to have a recreational holiday.
99 Somewhat at odds with her case that she was unwell and could legitimately claim personal leave for this trip, Ms Spasojevic also sought to defend herself because she did some work while in Vietnam. In this regard, she relied upon an entry in her personal diary for Monday, 16 April 2018:

100 For the balance of that week, the only diary entries are the word ‘Vietnam’ on each day (and a crossedout entry).
101 Ms Spasojevic was asked what the 16 April 2018 entry meant. Her response was vague:
…It just put in the work three hours emails messages. Vince  Vince is a constituent that I had to call. Um, I just put that in so not to forget and then arrived back home on Sunday, 22nd.
Ms Spasojevic provided no other detail of what she was doing on 16 April 2018 relating to this diary entry. Nor did she explain how she could do the job of an Electorate Officer for the Kwinana electorate office from Vietnam.
102 Ms Spasojevic also said that she set up meetings for the Minister while she was in Vietnam. In this regard, she relied upon a text message to the Minister at 4.10 pm on the Monday after she returned to Perth, which referred to two meetings scheduled for 18 May 2018.
103 We consider Ms Spasojevic’s evidence about this work to be contrived. The text message refers to some input from Ms McMillan, who was in the office in Perth. There is no reference to this work in Ms Spasojevic’s personal diary, even though she recorded work on 16 April 2018. The message was sent towards the end of a full working day, with no explanation as to why, if the meetings were set up the week earlier, the message was not sent sooner. Finally, given the meetings were not to occur for several weeks, and Ms Spasojevic’s evidence was that she needed a break from work, no explanation was given as to why she would do this work during the break she so badly needed.
104 On 23 April 2018, the Minister sent Ms Spasojevic a text message saying, ‘Welcome home!’. This shows that the Minister was, at that time, aware that Ms Spasojevic had returned from a trip. It is safe to infer the Minister knew she had travelled to Vietnam, given the evidence of their discussion some six weeks earlier. However, this does not demonstrate that the Minister had directed, condoned, encouraged or required Ms Spasojevic to use personal leave for the trip.
105 If Ms Spasojevic wanted to be paid for the time she spent in Vietnam, she ought to have completed an application for annual leave. Instead, she applied for personal leave, knowing that the purpose of the leave was not for illness or injury but rather for a holiday. The fact that she spent some time checking emails or made a call to a constituent during her absence does not detract from the misconduct involved in submitting an application for personal leave for this period.
106 By claiming paid personal leave for this period of travel, Ms Spasojevic dishonestly claimed and was paid an amount that she was clearly not entitled to receive. Her attempts to portray the leave as legitimate personal leave demonstrate that she was aware of the purpose of personal leave, and that she knowingly claimed it when not entitled to receive it.
107 Misconduct is established.
Second Absence: Did Ms Spasojevic commit misconduct by failing to apply for leave for dates when she was in Serbia in December 2018 and January 2019?
108 According to Ms Spasojevic, on Friday, 30 November 2018, she had a conversation with the Minister about electorate office staffing arrangements over Christmas and the New Year. In this conversation, the Minister confirmed the electorate office would be closed: ‘as per usual it would be the first week before Christmas’. She explained this was because there were often many functions in the week leading up to Christmas, although why this should mean the electorate office remains closed is not apparent.
109 Ms Spasojevic said that during this conversation, she told the Minister she was going to Serbia ‘In part in regards to a house we had bought over there, in part to receive medical treatment’. The Minister said ‘That’s fine’ and suggested she work out the staffing arrangements with the other staff.
110 Ms Spasojevic was asked what she discussed with the Minister about her travel:
Mr Heathcote: Did you tell Mr Cook when you were planning to leave?
Ms Spasojevic: Yes, I did.
Mr Heathcote: And what did you tell him? What day were you going to leave?
Ms Spasojevic: I believe I was going to be leaving 13 December 2018 and coming back 21 January 2019.
Mr Heathcote: And did you tell Mr Cook why you were going to Serbia?
Ms Spasojevic: Yes, I did.
Mr Heathcote: So what did you tell him?
Ms Spasojevic: I told him that we were going to Serbia to visit our family, all of my husband's family and all of my extended family in Serbia. I told him we were going because I was going to get medical treatment over there. And I told him we were going there to renovate or fix up our ski cabin we had purchased.
Mr Heathcote: And what did he say to that?
Ms Spasojevic: He said “Yes, sounds great”.
Mr Heathcote: Was there any discussion about the leave to be taken or the form of leave to be taken?
Ms Spasojevic: Yes, there was.
Mr Heathcote: What was the substance of that discussion?
Ms Spasojevic: The substance was do we need relief staff. And I said “I believe that I will need relief staff because I'm going a week before the office is officially closing”, which I believe at the time was 19 December.
Mr Heathcote: Did you discuss whether there was a need for you to make an application for leave?
Ms Spasojevic: Yes, I did.
Mr Heathcote: And what was the substance of that discussion?
Ms Spasojevic: The substance of the discussion was “Okay, get Barry Winmar in for the three or four days before office is closed”.
111 Notably, in this first version Ms Spasojevic gave of her discussion with the Minister, she made no suggestion that the Minister excused her from having to apply for leave.
112 On 3 December 2018, Ms Spasojevic submitted an application to her private health insurer seeking to suspend her insurance cover as she intended to travel overseas from 12 December 2018 to 13 February 2019.
113 On 7 December 2018, Ms Spasojevic completed an application to take leave over the period 14 December 2018 to 19 December 2018. She applied for three days of personal leave and one day of public service holiday in lieu, to cover the four days she would ordinarily have worked in that period.
114 The Minister signed the leave application form on 9 December 2018.
115 After the Minister signed the leave form, Ms Spasojevic submitted the leave application form to Human Resources, together with a medical certificate of Dr Zdenka PapakGutovic. The medical certificate is dated 10 December 2018, so it was created after the Minister signed the leave form. Ms Spasojevic’s diary contains an entry on 10 December 2018 at 9.30 am for an appointment with ‘Zdenka’.
116 This timing of the General Practitioner’s appointment is remarkable, because it shows Ms Spasojevic sought a medical certificate to support a personal leave application she had already completed and presented to the Minister. That is, she sought personal leave before she had medical certification regarding her fitness for work.
117 The medical certificate states:
This is to certify that Mrs Sanja Spasojevic is receiving medical treatment.
She will be unfit to continue her usual occupation for the period of 13/12/2018 to 19/12/2018 inclusive.
118 Inexplicably, the medical certificate says nothing of Ms Spasojevic’s fitness for work on the date of the appointment, 10 December 2018, nor why her fitness for work status had suddenly changed between 10 and 13 December 2018.
119 Ms Spasojevic described the circumstances in which she obtained the certificate:
…I was unwell and I was afraid that I would not be able to travel to Serbia, so I had to have treatment, which I believe were antibiotics.
120 This obtuse account emphasises how artificial the medical certificate was. If her evidence was accepted as true, the medical treatment presumably improved her health to enable her to travel to Serbia on 12 December 2018.
121 Around this time, Ms Spasojevic had also applied for personal leave from her employment in the other MP’s office. Her application in relation to the other MP included 20 December 2018, which fell outside the period covered by the medical certificate.
122 By an email to Ms Spasojevic of 11 December 2018, Human Resources queried the discrepancy in the dates between the medical certificate and the leave application forms. Ms Spasojevic responded that:
…I will not be taking leave for the whole time as some are just appointments and tests.
123 This was a lie. Ms Spasojevic knew she was going to be absent from work on all dates in that period, as she was going to be travelling and overseas. By this time, she had a confirmed travel itinerary for business class flights with Qatar Airways returning 21 January 2019. Even on her own account, the medical certificate had nothing to do with appointments and tests. She did not produce any evidence that she had scheduled appointments or tests, although she told the Board she intended to have hyperbaric chamber therapy in Serbia.
124 In any event, Ms Spasojevic’s email, in turn, prompted Human Resources to advise her that:
You can only use Personal leave if you are ill so I will process all the leave dates past 19/12/18 as Annual Leave…
125 There was only one date past 19 December 2018 included in the leave application, namely, 20 December 2018.
126 On 11 December 2018, Ms Spasojevic asked Human Resources:
…Can I use Cultural Leave in January as that is when I celebrate Serbian Orthodox Christmas, New Year and Saints Day…
127 This email confirms that Ms Spasojevic was aware of the need to apply for leave for the time she intended to be absent from work in January 2019 while she remained in Serbia. It also confirms that she did not believe the Minister’s approval of her personal leave application form on 9 December 2018, or any earlier conversation with him, amounted to authorisation for her intended January 2019 absence.
128 Human Resources responded to Ms Spasojevic:
Personal leave is to be taken if you are ill or looking after someone who is – like a sick child for example. It can be used for unanticipated matters of an urgent nature – like your hot water system stopped working or car broke down.
Cultural Leave is an entitlement under the Award but it is taken off your annual or long service leave credits.
Basically you need to take annual or LSL for this type of leave.
…
129 At this point, Ms Spasojevic should have applied for annual leave at least for the period in January when she planned to be overseas and not at work. She did not make any such application.
130 In reexamination, Ms Spasojevic suggested, for the first time, that she had spoken to another person in Human Resources, Ms Mei Wood, to ask her whether she needed to provide medical certificates while she was overseas. She said she was told:
“No, Sanja, that’s not necessary. Talk to your [M]ember. See what he wants to do but we have the medical certificate for the leave...”
131 We have reservations about the truth of Ms Spasojevic’s evidence about a discussion with Ms Wood. Ms Spasojevic’s email correspondence with Human Resources at that time was with two other people, not Ms Wood. Ms Wood was not copied in, or addressed. There was no explanation as to why either Ms Spasojevic or Ms Wood would instigate a separate and independent exchange about the leave.
132 Ms Spasojevic did not state when this conversation with Ms Wood occurred. If it occurred, it must have been after 10 December 2018 when she had submitted her medical certificate to Human Resources, given Ms Wood referred to having received it. There was no evidence that Ms Spasojevic did then speak to the Minister, as Ms Wood recommended, between 10 December 2018 and 12 December 2018 when she departed for Serbia. Nor did Ms Wood address the need for a leave application form for periods beyond that stated in the medical certificate. The evidence, therefore, does not assist Ms Spasojevic, even if it were accepted.
133 Whatever the situation concerning Ms Wood, the fact that Ms Spasojevic was communicating with Human Resources about her leave entitlements is severely at odds with her case that she was only required to follow the Minister’s instructions and guidelines, and not Human Resources’. It also seriously undermines her case that her conduct was not knowingly dishonest.
134 Ms Spasojevic’s diary indicates that she left the office at 2.30 pm on 12 December 2018 (not a day when leave was applied for), had her nails done that afternoon before flying out of Perth at 7.00 pm on the evening of 12 December 2018.
135 As things transpired, Ms Spasojevic became unwell while she was overseas and for that reason her return to Perth was delayed until 29 January 2019.
136 For reasons that were not explored in the hearing, but entirely properly, Ms Spasojevic was not paid for personal leave for any of the period she was overseas. She was paid a public service holiday in lieu for 14 December 2018, and annual leave for three days between 15 December 2018 and 20 December 2018. Her ordinary working days in that period would have been 17, 18 and 19 December 2018.
21 December 2018
137 Ms Spasojevic was overseas on 21 December 2018 and so not at work. She made no application for leave for this date.
138 Ms Spasojevic says the Minister was aware that she was in Serbia. We readily accept that to be the case. However, more relevantly, she knew well before this date that she would not be at work. The Minister being aware that she was not at work does not explain why she failed to make an application for annual leave.
139 Ms Spasojevic also suggested that 21 December 2018 was during the Kwinana electorate office’s shutdown period. This was at odds with Ms McMillan’s and Ms Goricanec’s evidence that the shutdown period was between Christmas and New Year.
140 By failing to complete and submit an application for leave, the practical effect was that Ms Spasojevic claimed salary for a day when she knew she had no intention of working and did not work. A leave application form was required to ensure that her annual leave accruals were correctly recorded, and she was not paid salary she was not entitled to receive. Further, for reasons set out above, Ms Spasojevic knew this was the effect of her failure, so that her conduct was knowing and deliberate.
141 Given that the Minister knew Ms Spasojevic was in Serbia at this time, does it assist Ms Spasojevic that the Minister:
(a) signed a leave application form that did not cover this date; and
(b) failed to insist on a further leave form being submitted for approval?
142 The Minister could have done more to ensure that Ms Spasojevic was fulfilling her obligations and responsibilities in relation to the processing of her leave applications. However, his failure to do so does not assist Ms Spasojevic. As she herself readily accepted, the Minister was a very busy individual. He relied upon her to submit leave application forms. Indeed, her job description expressly states that accurate record keeping in relation to the electorate office administration is the Electorate Officers’ responsibility, not the Minister’s.
143 In her first response to the allegations about this absence from work, Ms Spasojevic said:
I continued to answer emails for the Member and myself and worked remotely and flexibly throughout this time.
144 She also referred to a discussion between her and the Minister in the electorate office on 19 December 2018. However, as she was overseas 19 December 2018, it is not possible that such a discussion occurred. It may be that she was confusing December 2018 with an unrelated discussion in December 2019. That confusion on her part is enough to cast doubt generally over her evidence about what she was doing in this period.
145 There are other reasons to reject Ms Spasojevic’s suggestion that she did not have to apply for leave, and was entitled to be paid ordinary salary for this time, because she was working. The following text messages were exchanged between her and the Minister:

146 It is clear from the tone and content of this exchange that Ms Spasojevic’s travel was for recreation and a break from work. The references to a ‘break from everything’, ‘rest up’ ‘recharge’ and ‘exotic’ are all inconsistent with the suggestion that she and the Minister contemplated that she would continue to work as an Electorate Officer, or indeed that she would remain in contact with the Minister whilst overseas.
147 This text message exchange also casts doubt over the truthfulness of Ms Spasojevic’s evidence to the effect that she told the Minister in December 2018 that her travel was for the purpose of medical treatment. First, because there is no reference to medical treatment in her text message, which only refers to doing up the ski cabin. Second, if the Minister thought she was travelling for medical reasons, he would be unlikely to suggest the trip sounded ‘exotic’ or worthy of wishing her a ‘great time’.
148 Ms Spasojevic’s diary contains no records of any medical appointments until she unexpectedly became unwell. She produced no evidence of any prearranged medical treatment or appointments, such as medical reports, appointment reminders or receipts for payment for treatment.
149 During December 2018 and January 2019, Ms Spasojevic did send 13 work emails, which mainly involved onforwarding emails rather than composing anything substantive. This indicates Ms Spasojevic had access to and was monitoring work emails. This is not working in the sense of performing the duties of an Electorate Officer, entitling her to receive pay.
7, 8, 911, 1416, and 18 January 2019
150 The Kwinana electorate office was closed from Monday, 24 December 2018 to Friday, 4 January 2019. Staff in the Kwinana electorate office were permitted to take this time off in lieu of additional hours they had worked in the course of the year without making an application for leave.
151 The next day that Ms Spasojevic would ordinarily have worked was 7 January 2019.
152 Of course, Ms Spasojevic did not work, because she was overseas. She did not return to work until 30 January 2019. However, because Ms Spasojevic did not submit any leave forms for this period, she was paid salary for the entire period as if she was at work and working.
153 Ms Spasojevic submits that she committed no misconduct in failing to submit leave application forms because of a practice known as the ‘skeleton crew arrangement’.
154 At this time, there were four employees employed at the Kwinana electorate office, all of whom worked parttime. The electorate office was usually less busy in January compared with other times of the year. At the same time, there was a higher demand amongst staff to take leave, because it was school holidays. Accordingly, an arrangement evolved whereby each parttime Electorate Officer picked up extra hours to work fulltime for a week or two in January, and in return, take an entire week of January off work.
155 The arrangement was described in the most coherent terms by Ms McMillan:
…So because for the two weeks that we – the other two were in the office, you actually did more hours than what you would normally do, so you would normally do – we were all part–time so we would be doing four days a week, um, because you did the additional, you’d do a full week so you’d do five days and you’d done two weeks, you’d got – you’d worked an extra two days. So on the week that you had off, two days were already covered because you’d worked two days and the third day you were already parttime, so you got an additional two days.
156 Although this arrangement only accounted for taking three of five working days off work, Ms McMillan frankly stated that no leave application was submitted for the other two days. When asked why that was, she responded:
…we understood that the skeleton staff was something we were entitled to…Ms Spasojevic said that she’d spoken to the Member and she had also spoken to other Electorate Officers.
157 The Board can infer that the Minister knew about the skeleton crew arrangement, including that he knew Electorate Officers did not make leave applications for time off, because he referred to ‘skeleton crew’ in a text to Ms Spasojevic in January 2018.
158 The difficulty for Ms Spasojevic is that in 2018/2019, she did not participate in the skeleton crew arrangement, so it is not available to her as a justification for not applying for leave. Ms Spasojevic had not agreed to, and had no intention of, working additional hours in January as a quid pro quo for taking time off. Although Ms Spasojevic was originally planning to work the week following her planned return to Perth on 21 January 2019:
(a) According to the Flight Itinerary, the first day in that week, 21 January 2018, Ms Spasojevic would still be travelling, not being due to return until the evening.
(b) Ms Spasojevic would ordinarily have worked in the other MP’s electorate office on the Thursday of that week, 24 January 2019, and was therefore not available to work any additional hours in the week (She had only applied for leave from the other Member’s electorate office until 17 January 2019).
159 Rather than work additional hours to earn a week off, Ms Spasojevic would have worked fewer hours even in the week of January that she was planning to work.
160 After Ms Spasojevic gave the evidence referred to in paragraph [110] above, she revised her evidence about the 30 November 2018 conversation with the Minister. On this second occasion she said:
Mr Heathcote: Okay, so this other leave form related to the other side of the Christmas break?
Ms Spasojevic: That's right.
Mr Heathcote: - - - when you were supposed to be doing the skeleton. What about the period of time in the middle?
Ms Spasojevic: No.
Mr Heathcote: You didn’t make a leave application for that?
Ms Spasojevic: No.
Mr Heathcote: Why not?
Ms Spasojevic: Roger Cook did not want us to make an application.
Mr Heathcote: How do you know that?
Ms Spasojevic: He told me.
Mr Heathcote: So in a conversation?
Ms Spasojevic: Yes.
Mr Heathcote: When?
Ms Spasojevic: I believe it was during the Cockburn Civic Dinner.
Mr Heathcote: That’s the discussion in November?
Ms Spasojevic Yes.
This was quite different to the account of the conversation as set out in paragraph [110] above. Ms Spasojevic’s evidence did not answer the question put to her, which was about her own leave. Her answer was about ‘us’, meaning all Electorate Officers. The other Electorate Officers were working skeleton crew arrangements in January.
161 We accept the Minister did not expect the Electorate Officers to apply for leave if they were participating in the skeleton crew arrangement. The expectation does not cover Ms Spasojevic who did not participate in the skeleton crew arrangement.
162 We reject the suggestion that the skeleton crew arrangement justified Ms Spasojevic’s failure to apply for annual leave for her travel in January 2019. At best, the arrangement merely reflected a quieter period during which Ms Spasojevic was able to remain away from the workplace, without significant disruption to her coworkers.
21-23 and 25 January 2019
163 As things transpired, Ms Spasojevic became unwell whilst overseas, with an infection to her toe. This delayed her return to work, so she did not work the week commencing 21 January 2019 as planned. She advised the Minister that her return to Perth from overseas would be delayed.
164 These events may have entitled Ms Spasojevic to be absent from work because she was unfit due to illness or injury. She may have been entitled to be paid personal leave for this period, provided she had personal leave accrued to her, and she met the notice and evidentiary requirements.
165 Ms Spasojevic did not claim personal leave. She submitted no leave form for this period. She received her normal salary as if she was at work and working.
166 Originally, Ms Spasojevic explained she completed a leave form. When asked what happened to her leave application form, she said ‘Roger said that it wasn’t necessary, so Ms Pusaric did not get paid. He would not sign her leave form or mine. He said that Ms McMillan and Ms Goricanec could do it’. This evidence does not make sense. Ms Danijela Pusaric had not taken leave and had no reason to submit a leave form.
167 Later, returning to this topic, Ms Spasojevic said this discussion occurred on her return to work on Friday, 1 February 2019. She explained Ms Pusaric was the relief staffer who had relieved her in the last week of January. She gave a different account of the conversation:
…Roger told me that it was not necessary for me to submit a leave form and I told him that then Danijela wouldn’t be paid and he said it was fine because Boba and Zoey were okay, it’s the two of them. He seemed a little angry and said “They can handle it”. So I called Danijela and I said “I’m sorry, Roger will not be signing the form for you to be paid”…
168 This slightly more comprehensive evidence about the discussion shows it was not really about a leave form at all, but about relief arrangements.
169 We note that in Ms Spasojevic’s diary for this date, there is an entry: ‘Spoke to Roger about Dani P relief’.
170 There is no logical reason for the Minister to be ‘angry’ and seek to deprive a relief worker of entitlements, while at the same time apparently intending to give Ms Spasojevic the benefit of being paid, whilst not working and not having accrued leave deducted.
171 Finally, the Minister’s references to Boba and Zoey ‘handling it’ have no apparent relevance to the subject of Ms Spasojevic applying for leave. Rather, such comments would more naturally be directed at whether relief was required, consistent with the diary entry referring to a discussion about ‘relief’ not ‘leave’.
172 We accept that a discussion between the Minister and Ms Spasojevic did occur on 1 February 2019, but the discussion concerned the application for relief cover for the previous week, not whether Ms Spasojevic needed to make an application for leave for her absence. We also infer that based on that discussion, Ms Spasojevic decided for herself not to make an application for leave, and accordingly she did not do so, confident that the omission would not be discovered by Human Resources.
173 In crossexamination, it was put to Ms Spasojevic that she did not complete a leave form for annual leave for the period covering December 2018 to January 2019. Ms Spasojevic answered, ‘I submitted an annual leave form for the last week when I had a relief staffer’.
174 Ms Spasojevic appeared to be making her evidence up as she went. There was no reason for her to submit an annual leave application, as opposed to a personal leave application, for the last week in January. Also, no suggestion was ever made by Ms Spasojevic in her responses to the allegations or in her evidence in chief that she had completed an annual leave application.
175 Ms Spasojevic knew that in the absence of an application for leave being submitted, she would receive payment of salary as if she was working, and her personal leave accruals would not be deducted. Accordingly, she knew she improperly benefited from not making an application for leave.
Third Absence: Did Ms Spasojevic work on 46 June 2019?
176 The issue in relation to this absence is simply whether Ms Spasojevic was working on these dates, or not.
177 Monday, 3 June 2019, was a public holiday.
178 Ms Spasojevic’s said that she had a hospital appointment at 1.30 pm on 4 June 2019. It was a recurring sixweekly appointment. However, she believes she was at work before and after the appointment. This was despite the fact that she filed a Response to a Notice to Admit Facts, in which she admitted that she was not present at the Kwinana electorate office on 4 June 2019. In the Response, she said she was working from home that day.
179 The Speaker relied on this admission. The Speaker also relied upon Ms McMillan’s evidence that Ms Spasojevic was not at work on 4 June 2019. Ms McMillan states that she kept a note of Ms Spasojevic’s absences, and her note indicated that Ms Spasojevic was not working. Ms McMillan’s note was fairly rough. It appeared to be recorded on a mobile phone over a period of time. Although Ms McMillan was not crossexamined on the accuracy of the note, it contained some obvious inaccuracies, including duplicated entries for ‘6/6’ and reference to a date that fell on a weekend. Despite this, Ms McMillan confirmed the record was ‘correct’.
180 It is agreed that Ms Spasojevic was at work on the morning of 5 June 2019, but left at around midday. Ms Spasojevic says she was unwell on the afternoon of 5 June 2019 and the full day of 6 June 2019, and so worked from home on these dates.
181 Ms Spasojevic supplied a screen shot of a text message from her to Ms Goricanec and Ms McMillan in which she informs them she has a temperature and mild flu symptoms, and asks what they think about her working from home the following day, 6 June 2019.
182 Ms Spasojevic could not have performed the full range of her duties as an Electorate Officer from home. In particular, she could not deal with constituents who walk into the electorate office, or take telephone calls to the electorate office, as the number for the electorate office was not diverted to Ms Spasojevic’s home or mobile telephone.
183 However, we accept that Ms Spasojevic could perform some of the duties of an Electorate Officer from home on a shortterm basis. She could, for example, deal with emails from constituents, and liaise between the Minister and other parties. In this regard, Ms Spasojevic’s evidence was that in January 2018, the Minister approved a home office to be set up for the specific purpose of working from home. She said she had access to the same software and programs that she used when in the office.
184 Accordingly, it is not improbable that Ms Spasojevic was performing work from home on 5 and 6 June 2019.
185 For these days, the Speaker has not discharged the onus on it of establishing that Ms Spasojevic was not working, nor that these were days when she was obliged, but failed, to submit an application for leave.
Fourth Absence: Did Ms Spasojevic fail to apply for annual leave for her trip to Bali?
186 Ms Spasojevic travelled to Bali between 17 June 2019 and 21 June 2019. She was paid her normal wages for this period. No accrued leave was deducted in respect of it.
187 When the detail about this absence was first put to Ms Spasojevic, her response was simply that the Minister ‘…has always been aware of where I am and when’. She referred to the text message exchange reproduced at paragraph [197(c)] below.
188 At the time of the hearing, Ms Spasojevic’s evidenceinchief was that she spoke to the Minister about completing a leave form for the period she was to be away, and that he said, ‘I don’t think it’s necessary’. She then pointed out to him that relief was required, and asked for relief.
189 We find that the Minister was referring to relief as being unnecessary, rather than a leave application form. This is because Ms Spasojevic’s response to the Minister was about relief.
190 In any event, and regardless of what the Minister did or did not say, Ms Spasojevic told us that she submitted an application for leave. She also agreed that it would have been improper to claim personal leave for this period. Her case was, in effect, that she made the proper application for annual leave for this period. This is another instance where Ms Spasojevic’s case that she followed the Minister’s instructions gets her nowhere.
191 An application for leave for this period was produced. It was for four days’ personal leave for the period that coincided with Ms Spasojevic’s Bali travel dates. It is not signed by Ms Spasojevic, but it does appear to be completed in her handwriting. It is signed by the Minister, but has no date of signing by him.
192 Ms Spasojevic denied that she had ever previously seen this form and denied she had filled it in.
193 Ms McMillan told us that she was present at a meeting with the Kwinana electorate office staff and the Minister when the Minister signed this leave application form. Her evidence did not go so far as to verify that she saw Ms Spasojevic complete the form, nor that she saw Ms Spasojevic physically present it to the Minister. However, she did see that the form referred to personal leave, and she thought it was inappropriate for a Bali trip.
194 Because of her concerns, Ms McMillan took a photo of the leave application form once it had been scanned into the computer system, on 17 June 2019. She was familiar with Ms Spasojevic’s handwriting, and she believed it was Ms Spasojevic’s handwriting on the form.
195 Ms Meehan’s evidence was that no leave application form for this period could be located in Human Resources’ records.
196 The evidence as a whole in relation to this matter is troubling. Ms Spasojevic maintains that she submitted a leave application. Human Resources denies a leave application form could be located, but somehow a leave application form has been produced, which Ms Spasojevic denies she completed. None of it adds up.
197 It seems most probable that Ms Spasojevic did complete the application for personal leave for 17 June 2019 to 21 June 2019. It looks like her handwriting. However, it is not really necessary for the Board to make a positive finding about the personal leave application form. More significantly, we find Ms Spasojevic did not complete or submit an application for annual leave for this trip, despite knowing she ought to have done so. What leads to this conclusion is:
(a) The first occasion any mention is made by her of completing an application for annual leave was in crossexamination. No mention was made of completing an application for annual leave in any of her responses to the allegations, or in her evidenceinchief. This omission is inexplicable. The most obvious and best defence to the allegation would have been that a leave application form was properly and accurately completed and submitted.
(b) The effect of Ms Spasojevic’s evidenceinchief was that she submitted an application for leave to secure relief cover, despite being told by the Minister, ‘I don’t think it’s necessary’. In reexamination, she explained the reason she believed she submitted a leave form is because she recalled discussing matters with a relief staffer, and for a relief staffer to be working, some approval of relief was needed. This says nothing of the type of leave that was applied for, that is, annual or personal leave.
(c) Her recent case that an application for annual leave was submitted is inconsistent with what appeared to be the earlier substantive defence to the allegation, which was that Ms Spasojevic was working while she was in Bali. In this regard, she relied on a text message exchange with the Minister dated 25 June 2019 (after her return from leave) in which the Minister commends her for some work she had done. She replied with the following message:

Had Ms Spasojevic genuinely believed that she had applied for annual leave, there would be no reason for her to attempt to portray her holiday as working time in response to the allegations.
(d) Ms McMillan’s evidence that the application for personal leave was presented to the Minister for signing is cogent and supported by the photograph of the same leave form taken on 17 June 2019. If Ms Spasojevic completed an application for personal leave, it is unlikely she would submit an application for annual leave for the same period.
198 At the end of the day, the leave was not processed as personal leave or at all. We will not speculate as to why that was the case.
199 Less than six months before this date, Ms Spasojevic was advised by Human Resources that personal leave could not be used unless the usual requirements (illness, injury) had been met (see paragraph [128] above). She knew that her trip to Bali did not qualify for payment of personal leave. Had she submitted a personal leave application form, she would have been guilty of misconduct.
200 We are unable to find the personal leave application form was submitted, given Human Resources had no record of receiving it. At the end of the day, Ms Spasojevic’s misconduct is not the form of leave application made, but her receipt of salary, without deduction of any leave accrual. She knew she was not entitled to receive such benefits. It was her knowing conduct that created this situation.
Fifth Absence: Did Ms Spasojevic work on 1 July 2019?
201 Ms Spasojevic admits she was not present at the electorate office in the morning of 1 July 2019 because she was attending a hospital appointment.
202 Ms Spasojevic says she returned to the electorate office by 12.00 pm and continued to work until 8.00 pm, making up her hours. She referred to a diary entry she made. It records times that other electorate office staff went to lunch and left the office.
203 To prove this instance of misconduct, the Speaker relied upon Ms McMillan’s evidence. Ms McMillan, in turn, relied upon the note that she made that Ms Spasojevic was ‘not in’ on this date.
204 Again, the informal nature of Ms McMillan’s notes of Ms Spasojevic’s attendance in the electorate office means we are not confident of its accuracy. It is possible that the note was made in the morning, whilst Ms Spasojevic was attending a medical appointment. It is therefore plausible that Ms Spasojevic did attend the electorate office after the medical appointment and worked late, consistent with the records in Ms Spasojevic’s diary, or that Ms McMillan was out when Ms Spasojevic was in.
205 The Speaker has not proven misconduct in respect of this absence.
Sixth Absence: Did Ms Spasojevic commit misconduct by applying for only 2 days’ personal leave when she was in hospital for eight days?
206 Ms Spasojevic was very ill on 9 March 2020. She was admitted to hospital that day and was discharged on the afternoon of 18 March 2020. She was absent from work for eight days which she ordinarily would have worked.
207 Ms Spasojevic produced various text messages between herself, her husband and the Minister, which showed that the Minister knew she was not at work and was in hospital for this entire period.
208 When she returned to work on 24 March 2020, Ms Spasojevic signed a leave application form seeking approval of personal leave ‘for the period 10 March to 17 March’. In the box ‘total days’, she wrote ‘2’. Under ‘number of hours’, she wrote ‘15’. The form does not include 18 March 2020. The effect is that the application for leave form seeks leave for only two days in a period which involved eight working days.
209 The Minister signed the form on 26 March 2020.
210 The entries of two days and 15 hours appear to be in the same handwriting but a different pen to the other parts of the form. It is possible that these entries were inserted after the form was signed by the Minister, but this was not put to Ms Spasojevic in crossexamination. She said only that the form was entirely in her handwriting, that she filled it in and completed it to reflect the days that relief staff were needed. The Minister did not give evidence.
211 In answer to her own counsel’s question about whether she had discussions with the Minister about the need to apply for leave for this period, Ms Spasojevic said that while she was in hospital she contacted the Minister and told him that she would need to put in an application for relief staff, and he said ‘Why?’ This is another instance of Ms Spasojevic either conflating the separate issues of relief and leave in her own mind or attempting to sidestep the question of leave in the hope the Board would confuse relief with leave. A discussion with the Minister about the need for relief is not a discussion about the need to complete and submit a leave application form or to otherwise takes steps to ensure the period was properly paid for and recorded.
212 Another exchange highlights Ms Spasojevic’s fallacy. In reexamination, Ms Spasojevic’s counsel asked her why she had only applied for two days’ leave. Her response was that Ms Goricanec had contacted her and said that they needed a relief staffer for the two Tuesdays of the period, because Ms Goricanec was not at work on those days. It would follow, from this response, that if no relief was required, Ms Spasojevic would not have regarded herself as being required to submit any leave application form at all. It is untenable that she would believe no leave application form would be required for this significant absence simply because no one asked for relief to cover it.
213 Ms Spasojevic’s counsel submitted that Ms Spasojevic’s completion of the leave application form shows she turned her mind to relief staff being paid. But the topic of relief is only a small part of the leave application form. The balance of the form clearly, on its face, concerns an application for Ms Spasojevic to utilise her leave entitlements.
214 Nothing we have heard or seen establishes that Ms Spasojevic had a reasonable basis to believe she could or should apply for leave only for two days during her hospitalisation. There is no doubt that she was ill, and so entitled to be absent from work due to illness. However, she was not entitled to be paid ordinary salary without deduction of personal leave accruals. Her selectivity in applying for leave only for the two days when relief was required was deliberate conduct on her part to ensure she obtained the benefit of being paid for that time, whilst minimising the deduction from her personal leave accruals. She was also selective in applying only up to 17 March 2020, the second Tuesday when relief was required, rather than 18 March 2020, when she was discharged from hospital.
215 Ms Spasojevic deliberately engineered the leave application form to preserve her personal leave accruals. As a result, she received payments she was not entitled to receive and saved personal leave accruals she was not entitled to save.
Did Ms Spasojevic’s response to the ‘Leave Audit’ aggravate the misconduct?
216 The Speaker submits that Ms Spasojevic’s conduct constitutes gross misconduct, and that the misconduct is aggravated or added to by a ‘declaration’ that Ms Spasojevic made to Human Resources on 1 July 2020 to the effect that her leave record was correct.
217 By March 2020, the Minister’s Chief of Staff had noticed that the annual leave balances of the Kwinana electorate office staff ‘stood out’: presumably, that they appeared understated. In an email dated 2 March 2020 he asked the Minister if he should send a ‘…simple reminder for everyone to submit forms and an explicit request to submit forms for any periods of leave they may have overlooked’.
218 This email was sent just one week prior to Ms Spasojevic’s hospitalisation, which is the sixth absence.
219 The Board was not told what, if any, action followed from this email request.
220 It appears, on the evidence before the Board, that the issue of the Kwinana electorate office’s leave bookings was not revisited with Human Resources again until 22 June 2020. At about that time, apparently again at the request of the Minister’s Chief of Staff, Human Resources reviewed the leave records for all Kwinana electorate office staff.
221 Ms Meehan was provided with a record of Ms Spasojevic’s leave bookings as at June 2020. It showed that Ms Spasojevic had used only four days of annual leave in the three years she had been employed.
222 Ms Meehan suspected that Ms Spasojevic’s records were inaccurate because, in the course of dealing with Ms Spasojevic about her working from home arrangements, she had investigated Ms Spasojevic’s activities on social media. She was, therefore, aware that Ms Spasojevic had been overseas several times.
223 On 30 June 2020, Ms Meehan sent emails to all of the Kwinana electorate office staff asking them to verify the completeness of their leave records. Ms Meehan did not refer to her suspicions ‘that there was something that wasn’t right’. Rather, her email to Ms Spasojevic opaquely said:
Please find attached a record of your leave taken. Please can you confirm this is correct and you have no outstanding leave applications.
We are soon to be transferring to an online booking system when leave will be able to be booked online and want to make sure our records are correct.
224 Attached to the email was a document headed ‘Sanja Spasojevic – Recorded leave bookings as at 29/06/2020’.
225 Under ‘Annual Leave Bookings’ the document lists:
7.5 hours taken on 27 March 2019; and
22.5 hours between 15 December 2018 and 20 December 2018.
No other annual leave is recorded in the form.
226 Under ‘Personal Leave’ there are 17 entries, including:
30 hours for the period 16 April 2018 to 20 April 2018, when Ms Spasojevic was in Vietnam; and
Only two days in the period 10 March 2020 to 18 March 2020.
227 No leave is recorded in the period 21 December 2018 to 25 January 2019 when Ms Spasojevic was in or travelling from Europe.
228 No leave is recorded for the period 17 to 20 June 2019, when Ms Spasojevic was in Bali.
229 For completeness, Ms Spasojevic had not taken long service leave for these periods. She had not accrued a long service leave entitlement.
230 The bottom of the document says:
Please sign if the above leave record is correct and up to date. If it is incorrect and not up to date, please submit outstanding leave applications as a matter of urgency.
231 Ms Spasojevic signed the form ‘as correct’ and returned it to Ms Meehan.
232 Upon receipt, Ms Meehan asked Ms Spasojevic:
Thank you for the leave audit. Can you confirm you have no outstanding leave applications please
On the return to work we do require a fit to return to work from your Dr as currently we only have that you are not able to return until Aug. Please can you arrange this
233 Ms Spasojevic responded:
Dear Jane
Yes that is correct.
This is the report from Podiatrist from last night in which I discussed my return to the office…
234 The leave record was not correct, and Ms Spasojevic could not have reasonably considered that it was correct. An obvious omission was the Bali absence which Ms Spasojevic conceded ought to have been annual leave. The leave record did not record any leave for that trip.
235 Ms Spasojevic implicitly accepted that the leave record was incorrect because she went to lengths in her evidence to deny she read it or checked its accuracy. She said:
…I signed it, I thought it was a formality. I did not see  I didn’t even look at it…
…
I understood that everyone was going on an online system, that’s what was told to me. It wasn’t told to me that I should look into this leave, I was under investigation, and that I would need to check this leave. I didn’t even look at this form.
236 She strenuously denied that she confirmed its correctness a second time when she said ‘Yes that is correct’ in the later email to Ms Meehan. If the later email was confirmation, it would obviously aid a conclusion that her responses were considered, knowing and deliberate.
237 In relation to this email, Ms Spasojevic’s evidence was that she was responding only to the second part of Ms Meehan’s email relating to the request to arrange a fit to return to work certification:
…What I’m referring to as ‘that is correct’, is medical clearance or issues at  in my head at the time. I did not believe that this was being questioned.
…
…I was responding to the last sentence.
238 Ms Spasojevic’s explanations are implausible and contrived. To accept her version would be to find that:
(a) she did not respond at all to Ms Meehan’s first simple and straightforward request. That is, she completely ignored Ms Meehan’s question; and
(b) she responded nonsensically to Ms Meehan’s second simple and straightforward request. In effect, she agreed as being correct Ms Meehan’s request that Ms Spasojevic arrange for medical certification.
239 Ms Spasojevic does not have difficulty with written or oral communication. Her job as Electorate Officer required her to advocate for constituents and deal with government agencies and the media. In her response to the allegations, Ms Spasojevic produced several references attesting to her ‘strong’ verbal and written communication skills, describing her as a ‘brilliant and effective communicator’, and an ‘excellent communicator’. The answers in paragraph [237] above were just dishonest.
240 Accordingly, we find that Ms Spasojevic confirmed the leave record was correct twice. Even if she did not look at it closely, or appreciate the importance of its accuracy when she initially signed it as correct, when Ms Meehan asked her to confirm its accuracy a second time, she ought to have known that accuracy was important.
241 Ms Spasojevic kept personal diaries throughout the relevant period, in which she made records of her appointments, travel, time in the office and time working from home. It would have been easy for her to check the accuracy of the leave record and submit, or resubmit, applications for leave records not shown.
242 By failing to correct the accuracy of the leave record, and especially, by failing to identify the omission of any leave for her Bali holiday, Ms Spasojevic failed in her duty to her employer. By not then applying for missing leave, she also disobeyed the lawful and reasonable direction contained in the form itself to submit outstanding leave applications as a matter of urgency.
243 We are therefore satisfied that Ms Spasojevic committed further misconduct when she confirmed that the leave record was correct and complete. This instance of misconduct adds to the seriousness of the misconduct that was committed when Ms Spasojevic knowingly received benefits to which she was not entitled during her absences from work.
Was dismissal too harsh a sanction? Mitigating factors
244 The Board is satisfied that Ms Spasojevic committed misconduct when she:
(a) improperly claimed personal leave for her Vietnam holiday;
(b) failed to apply for leave for periods when she was on holiday in December 2018 and January 2019;
(c) failed to apply for annual leave for the Bali holiday, and failed to correct the leave record when she saw this period was not included; and
(d) failed to apply for personal leave for days when she was in hospital in March 2020.
245 The next question is whether the dismissal was too harsh in view of any relevant mitigating factors.
246 The particular mitigating factors which Ms Spasojevic relied upon are:
(a) that her conduct was condoned or encouraged by the ‘informal’ practices in the Kwinana electorate office, including by the Minister himself. In essence, she says her conduct was consistent with a culture that prevailed in the Kwinana electorate office of ‘rewarding’ employees by allowing them to take paid time off exceeding their legal entitlements; and
(b) disparate treatment. She says that her coworkers had similarly failed to apply for leave for periods they were not at work, but they remained in their employment. She says she was unfairly targeted for disciplinary action.
Was Ms Spasojevic’s conduct condoned or part of an accepted culture?
247 Ms Spasojevic told the Board that she did not apply for periods of leave because the Minister told her not to or that he suggested applications for leave were not necessary. We reject this explanation. As we have set out above, there was no evidence before the Board that the Minister directed, asked or suggested that Ms Spasojevic not submit a leave application form for periods she intended to be away from work in general. We accept that the Minister on occasion questioned the need for relief cover for Ms Spasojevic’s specific absences. That is an entirely different matter to whether a leave application form needed to be submitted.
248 Nor do we accept that there was a culture generally where it was acceptable not to submit leave application forms unless relief cover was required. There is ample evidence before the Board of instances where staff in the Kwinana electorate office submitted leave application forms either as an independent process to applying for relief cover, or when relief was unnecessary.
249 Rather, the clear pattern that emerged from the evidence was that Ms Spasojevic adapted her leave application practices to only apply for leave when forced to because relief was needed. This practice was acceptable in her mind only.
250 As for there being a culture of ‘informality’ generally such that it could be said that Electorate Officers were not held to account for their leave application forms’ accuracy, Ms Spasojevic was most likely the architect of that culture. We explain under the next heading why we say so. More importantly, the informality only extended to flexi time for individual instances of ‘ducking out’ of the office, the Christmas shutdown period and the January skeleton crew arrangement.
251 As detailed under paragraphs [72] to [77] above, the Minister was not responsible for preparing or submitting electorate office staff’s leave application forms. The Electorate Officers themselves had that responsibility. Any failure by the Minister to follow up leave application forms for periods of absence does not mitigate Ms Spasojevic’s conduct, nor does it indicate the conduct was condoned.
252 However, there were two times when the Minister’s acts or omissions enabled Ms Spasojevic’s conduct. That is not to say that the Minister condoned or encouraged Ms Spasojevic’s conduct. But the Minister did not do everything he could and should have done to ensure leave entitlements were not abused.
253 The first occasion was when the Minister signed Ms Spasojevic’s application for personal leave in June 2019. We infer that the Minister knew, or ought to have known, that Ms Spasojevic intended to use that leave to travel to Bali. In particular, Ms Spasojevic said that she spoke to the Minister about going to Bali before the Minister signed the leave application form. Ms McMillan’s evidence was that during the meeting at which the Minister signed the leave application form, he was speaking in jovial terms about all the travel that staff were planning.
254 The Minister did not give evidence at hearing, and so the Board is without any explanation as to why the Minister signed the form for personal leave, apparently without raising any query, question or concern about it.
255 As discussed above at paragraphs [72] to [77], the Minister’s signature on the form does not authorise the type of leave, nor does it override an Electorate Officer’s responsibility to submit an accurate and complete application for leave. For example, it is not the Minister’s role to check whether the evidentiary requirements for personal leave have been met. However, as Ms Spasojevic’s line manager, the Minister ought to have exercised greater diligence in supervising Ms Spasojevic’s conduct. The Minister should have questioned the leave type stated in the application form.
256 As it turned out, personal leave for this period was not processed. Therefore, the mitigating effect of the Minister’s involvement is minor. The Minister was not involved when Ms Spasojevic declared on 30 June 2020 that her leave record (which omitted any leave at all for this period) was correct, nor in her failure to then apply for the missing leave.
257 The second time was when the Minister signed the application for leave for Ms Spasojevic’s hospitalisation in March 2020. The Minister knew that Ms Spasojevic was not at work for the entire period from 10 March 2020 through 18 March 2020. Ms Spasojevic submitted a leave application form which referred to the dates 10 to 17 March 2020 and then only sought leave for two days in that period.
258 As we indicated earlier, the evidence before the Board did not fully explore what parts of the form were completed at the time it was presented to the Minister for signing. But it has not escaped our attention that as recently as 2 March 2020 the Minister’s Chief of Staff had alerted the Minister to a suspicion that the Kwinana electorate office staff had excessive amounts of leave accrued and may not have consistently applied for leave that was being taken. By this time, the Minister ought to have been onguard in relation to the management and administration of leave. Even if the form was incomplete, and dishonestly manipulated after the Minister had signed it:
(a) it was unwise for the Minister to have signed an incomplete form in the circumstances; and,
(b) the Minister did not ensure that the leave form included 18 March 2020 when he knew Ms Spasojevic was in hospital on that day.
259 The Minister, as Ms Spasojevic’s line manager, was in a position where he could have prevented Ms Spasojevic’s misconduct. He did not do so. To that extent, his involvement is a mitigating factor. Had the sixth absence been the only ground for the allegations against Ms Spasojevic, it would be harsh for Ms Spasojevic to be dismissed for it in these circumstances.
Was Ms Spasojevic treated harshly compared to other Electorate Officers?
260 The other Kwinana electorate office staff took days off work in January of each year, which were not always traded for additional days worked, and for which they did not make applications for leave. Ms Goricanec conceded that she had taken personal leave in February 2020, during which she travelled to Sydney for a child’s folk dancing event. She considered she was entitled to do so in respect of the Sydney trip because:
…I just needed some time off...there would be, maybe, reason for me just to go somewhere and relax my brain.
261 Therefore, it appears that the abuse of leave was not confined to Ms Spasojevic.
262 However, it was also apparent that Ms Spasojevic set the example that others followed.
263 For example, when asked why no one filled in applications for annual leave over the endofyear shutdown period, Ms Goricanec said:
…You see, I don’t know  personally, I don’t know. As I said, Sanja was the one who was the senior staffer, she knew how the system works. And I’m pretty sure the other offices were similar…we just took that over from Sanja…Instructed by Sanja.
264 In relation to her application for personal leave to travel to Canada in 2018, Ms Goricanec said that she signed an incomplete application for leave form and the dates and type of leave were entered by Ms Spasojevic:
…I trusted Sanja, She told me to leave that blank and she will fill that in.
265 Ms Goricanec also stated that Ms Spasojevic had encouraged her to see Ms Spasojevic’s own GP to obtain a medical certificate for the purpose of claiming personal leave ‘because she told me she did that once, and it worked for her’.
266 Ms Spasojevic’s counsel invited the Board to reject the suggestion that Ms Spasojevic was in a position to influence the other staff in this manner, because there was no formal hierarchy in the electorate office. But Ms Spasojevic’s own evidence was that her job title was ‘Executive Officer’. This was the title on her business card, and email signature. While she had no formal responsibility for supervising other Electorate Officers, and others were not obliged to follow her instructions, the practical reality was that she was in a position of influence.
267 This is most vividly demonstrated by Ms Spasojevic’s email communication to the other three Electorate Officers, Ms Bothma, Ms McMillan and Ms Goricanec dated 25 March 2019. In it, Ms Spasojevic states:
Dear Sherri and to the other staff members in the office
I appreciate you might have a different view and belief at how the running of the Electorate office should be organised. I have factored that in to my response, but currently I am the Office Manager Executive officer, unless Roger clearly states otherwise.
I am the senior staffer due to the years in this position (there is really no other reason), it is the experience. Staff in other EOs and in the SPLP contacts list have either used Exec officer or Office Manager. This has been discussed as a necessary introduction after the Election due to many experienced Eos moving on to other roles and a defined and clear hierarchy was needed in Electorate offices to identify the senior staffer, as so many Members were also new to their role, and the other Members like Roger had taken on immense responsibilities and very complex and demanding portfolios. Hence the senior staffer’s scope of responsibilities has changed dramatically.
…
Roger’s role as the Local Member has changed immensely with his Ministerial and Deputy Premier roles. Roger is not able to physically or mentally manage so much responsibilities, it is not humanly possible.
The reason titles such as Officer Manager and Exec officer have been introduced after the 2017 Election is to counteract the negative effects of an absent Local Member. One of these is to have a senior staffer manage the [electorate office] in the Member’s absence…
…
I feel my current role is to filter what I believe needs to be acted and decided upon prioritising the importance and complexity of issues and what Roger’s involvement should be.
…
...I would rather have Roger rested and able to perform at his best when he is here than have him here every Friday but a Zombie. To prevent Roger from being inundated from an overload of information I feel it is my role to filter what is important and what can be completed without his input.
…
My role currently is the senior staffer, EO, OM whatever you may like to call it and this is not set in stone. If someone feels they are more capable to fill this role and will do a better job of managing the [electorate office] they have every right to voice this opinion, but once it has been resolved it should not be brought up again and the directive by the Member should be followed without further questioning.
Unless stated otherwise I do not want my authority and experience being placed under the microscope anymore, as it is bloody exhausting.
…
268 Other indicators of Ms Spasojevic’s seniority and influence include:
(a) Ms Spasojevic was the only one of the four Electorate Officers who had an office.
(b) Leave forms were kept in Ms Spasojevic’s office.
(c) Ms McMillan said that Ms Spasojevic delegated work to the other Electorate Officers and there was a common expectation that the other Electorate Officers would do what Ms Spasojevic requested of them.
(d) Ms Spasojevic told the Board that she was contacted by Ms Goricanec ‘many times’ by text message and email for guidance on electorate office matters when at home and even whilst she was in hospital.
269 Finally, it appears that Ms Spasojevic’s abuse of the leave application process was far more extensive than her coworkers’. This is evident from a comparison of leave balances for Ms Spasojevic, Ms McMillan and Ms Goricanec.
270 All three employees had similar lengths of service: Ms Goricanec and Ms McMillan both commenced in 2017, around six months before Ms Spasojevic’s most recent period of service. For most of the relevant period, all three employees worked parttime. Yet, as at January 2020, Ms Spasojevic had an annual leave balance of 237.562 hours compared with Ms McMillan’s balance of 86.321 hours and Ms Goricanec’s balance of 103.15 hours. Compounding the difference, Ms Spasojevic’s leave balance excluded 53 additional hours of annual leave, which she had accrued, but transferred to her employment with another MP’s electorate office.
271 We accept that all Kwinana electorate office staff would, from time to time, be absent from the office during ordinary working hours to attend to personal matters. This flexibility was afforded to them in consideration of their availability to work outside of ordinary hours, which they frequently did. Ms Spasojevic took full advantage of this flexibility to manage her medical issues.
272 We reject the suggestion that this flexibility somehow mitigates Ms Spasojevic’s conduct concerning her failure to make leave applications or the proper leave applications. If anything, the flexibility emphasises the degree of autonomy, and with it, the level of trust placed in Electorate Officers to do the right thing. It therefore heightens the seriousness of Ms Spasojevic’s abuse of that trust.
273 We do not consider these matters mitigate Ms Spasojevic’s conduct.
Summary
274 The Speaker has proven that Ms Spasojevic committed misconduct as set out in paragraph [244] above.
275 The misconduct was deliberate. Ms Spasojevic was aware of the purpose of personal leave and annual leave, the need to apply for leave and the processes to do so. Her counsel submits she did not wilfully disobey any direction. That is not to the point. She was dishonest in her conduct. Her conduct was not disobedient (except for failing to submit outstanding applications as directed on 30 June 2020.) It was fraudulent.
276 Ms Spasojevic’s counsel submitted that her view was that if it was okay for her to be away, it was okay for her to be paid because of the blurred lines between personal and work time. That might justify Ms Spasojevic’s failure to seek leave for a few hours absence here and there, taking advantage of the privilege of flexibility. It cannot sensibly extend to prolonged absences overseas or in hospital. Ms Spasojevic was not that naive.
277 Ms Spasojevic engineered her applications for leave and the circumstances when she would be absent without making any application for leave, around the need for relief workers, in the knowledge that if no relief was needed, she could get away with not seeking leave.
278 Misuse of sick leave constitutes misconduct sufficient to justify termination of employment: Walker v Bow Tie Removals and Storage Pty Ltd [2012] FWA 2851; O’Connor v State of Queensland (Dept of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships) [2021] QIRC 123. The misconduct the subject of the first and second absences justify, on their own, a sanction of dismissal. Ms Spasojevic’s conduct was dishonest and amounts to an abuse of the privilege, trust and confidence enjoyed by a public servant. The Board has not found that Ms Spasojevic’s conduct on these occasions is mitigated by any factors or circumstances which would result in dismissal being too harsh a sanction.
279 The misconduct the subject of the third absence was aggravated because Ms Spasojevic did not correct her leave record concerning this period of absence when given the opportunity to, but is also mitigated by the fact that her manager signed the leave application form. The misconduct relating to the third absence also, on its own, justifies dismissal.
280 The sixth absence is mitigated because Ms Spasojevic’s manager signed either an incomplete or incorrect leave application form. The sixth absence would not, on its own, justify dismissal. However, the mitigating circumstance of this absence does not change the ultimate result, which is that the decision to dismiss Ms Spasojevic from her employment was not harsh, unjust or unreasonable.
281 Accordingly, we decline to adjust the Speaker’s decision. The appeal will be dismissed.