APPEAL AGAINST THE DECISION OF THE EMPLOYER TAKEN ON 28 OCTOBER 2022

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00155

DELIVERED : Monday, 27 March 2023

FILE NO. : PSAB 67 OF 2022

Appellant

AND

East Metropolitan Health Service

Respondent

CatchWords : Industrial Law (WA) – Public Service Appeal Board – Application for extension of time – Factors to consider – Appeal prospects of success – Delay in commencing appeal – Reasons for delay – Unfair dismissal application filed in Fair Work Commission – Justice of the case – Appeal dismissed

Legislation : Industrial Relations Commission Regulations 2005 (WA)

Industrial Relations Act 1979 (WA)

Fair Work Act 2009 (Cth)

Result : Appeal dismissed

Representation:

Appellant : Mrs K Speciale on her own behalf

Respondent : Ms A Carter and Ms K Beebe

Case(s) referred to in reasons:

Chan v The Nurses Board of Western Australia [2007] WASCA 123

Cinque v Jetstar Airways Pty Ltd [2022] FWC 2235

City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120; (2009) 169 LGERA 15

Construction, Forestry, Maritime, Mining and Energy Union & Ors v BHP Coal Pty Ltd T/A BHP Billiton Mitsubishi Alliance / BMA & Ors [2022] FWC 81; (2022) 311 IR 304

Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059; (2021) 310 IR 399

D & M Amonini Pty Ltd v Neirin Pty Ltd [2016] WASC 157

Dehnel v Dr Neale Fong, Director General, Department of Health & Ors [2006] WAIRC 05677; (2006) 86 WAIG 3310

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196

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

Jovcic & Anor v Coopers Brewery Limited [2022] FWC 1931; (2022) 316 IR 133

Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320; (2021) 362 FLR 113

Kelly v Director General, Department of Justice [2003] WAIRC 08164; (2003) 83 WAIG 1283

Nicholas v Department of Education and Training [2008] WAIRC 01645; (2009) 89 WAIG 817

Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1

Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479

Simonsen v Legge [2010] WASCA 238

Sydney Trains v Taylor & Ors [2023] FWCFB 49

Taylor & Ors v Sydney Trains [2022] FWC 2758

Reasons for Decision

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

2         The appellant, Mrs Katica (Kathleen) Speciale was employed by the East Metropolitan Health Service (EMHS) as an Administrative Assistant in Royal Perth Hospital’s Neurology Department until 28 October 2022 when her employment was terminated. The reason for the termination was that Mrs Speciale had failed to comply with a direction to provide her employer with evidence that she had been vaccinated against COVID‑19 or had a current exemption. Mrs Speciale was notified of the termination decision on 3 October 2022, 25 days before the termination took effect.

3         Mrs Speciale filed an appeal to the Board against the termination decision on 25 November 2022. The appeal is out of time. The time within which an appeal to the Board can be lodged under reg 107(2) of the Industrial Relations Commission Regulations 2005 (WA) is within 21 days after the date of the decision appealed against. The time therefore expired on 25 October 2022.

4         Mrs Speciale has applied for an extension of the time within which she is permitted to appeal. Her application was listed for hearing to decide whether an extension of time should be granted.

5         The Board has power pursuant to s 27(1)(n) of the Industrial Relations Act 1979 (WA) (IR Act) to extend the prescribed time in which to institute an appeal: see Dehnel v Dr Neale Fong, Director General, Department of Health & Ors [2006] WAIRC 05677; (2006) 86 WAIG 3310 at [71]‑[73].

6         The principles that apply in relation to the exercise of the discretion to extend time within which to appeal under s 80I of the IR Act were considered by the Board in Nicholas v Department of Education and Training [2008] WAIRC 01645; (2009) 89 WAIG 817. In that case, the Board applied the principles articulated by the Full Court of the Supreme Court of Western Australia and the Court of Appeal respectively in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 and Chan v The Nurses Board of Western Australia [2007] WASCA 123. See also Simonsen v Legge [2010] WASCA 238 at [8].

7         These authorities emphasise four (main, but not necessarily exhaustive) factors in considering whether an appeal should be accepted out of time. They are:

(a) the length of the delay;

(b) the reasons for the delay;

(c) the prospects of the applicant succeeding in the appeal; and

(d) the extent of any prejudice to the respondent.

8         In Kelly v Director General, Department of Justice [2003] WAIRC 08164; (2003) 83 WAIG 1283 at [69], the following observations were made relevant to the determination of the present matter (citations omitted):

Until the application for extension is granted, there ought be no assumption made that the extension will be granted as a matter of right. The question is whether the circumstances meet the tests for an extension of time…They are as follows (citations omitted):

(a) Prima facie time limits imposed by the Act are to be complied with and it is for to the applicant to establish the circumstances such that the discretion to extend time should be exercised in his or her favour;

(b) an extension of time is not automatic and the discretion residing with the Commission to extend time is for the purpose of enabling the Commission to do justice between the parties;

(c) it is for an applicant to demonstrate that strict compliance with the legislation will work an injustice and be unfair in all of the circumstances;

…

9         The time for appealing must not be extended unless the proposed appeal has some prospect of success. However, even if an appeal has prospects of success, this does not mean an extension of time must be granted. Rather, it is a factor that is to be taken into account.

Appeal’s prospects of success

10      Mrs Speciale relies on four grounds for establishing the termination was harsh, unjust or unreasonable.

Ground 1

11      The first ground is that EMHS’s policy and direction requiring her to be vaccinated against COVID‑19 or to provide evidence of an exemption were unreasonable because they were an intrusion on her right to bodily integrity. She quotes comments made by Cross DP in Taylor & Ors v Sydney Trains [2022] FWC 2758:

[46] …the Policy intrudes on one’s right to bodily integrity if it is complied with. The practical effect of the Policy is to place pressure on an employee to give up this fundamental right, given that noncompliance is accompanied by potential disciplinary consequences that include termination of employment. This weighs against the Policy being assessed as reasonable.

[47] I am not prepared, in the absence of appropriate evidence, to simply conclude that the Policy is reasonable and/or lawful or proportionate to workplace health and safety response to the risks presented by Covid‑19...

12      Taylor v Sydney Trains is one of many decisions of courts and tribunals which have dealt with the complaint of COVID‑19 vaccination mandates being an intrusion of the right to bodily integrity. We are not aware of any decision which has found a direction to be vaccinated to be either unlawful or unreasonable on this basis. In the frequently cited decision of the Full Bench of the Fair Work Commission in Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059; (2021) 310 IR 399, it was held that the right of employees to bodily integrity was not violated by the terms of a ‘Site Access Requirement’ to be vaccinated, although the practical effect of the requirement was to apply pressure to employees to surrender their bodily integrity. This was relevant to an assessment of the reasonableness of the requirement, but not determinative.

13      Even in Taylor v Sydney Trains, Cross DP did not ultimately decide, nor was he required to decide, whether Sydney Trains’ policy was reasonable or lawful. He noted that reasonableness of the Policy could not be determined on the evidence before him: [44].

14      Deputy President Cross’ decision in Taylor v Sydney Trains was overturned on appeal: Sydney Trains v Taylor & Ors [2023] FWCFB 49. The Full Bench did not deal specifically with the question of the lawfulness or reasonableness of Sydney Trains’ vaccination policy. However, in any event:

(a) Sydney Trains’ vaccination policy was imposed in circumstances where there was no legislative or government imposed mandate. Here there was a relevant government imposed mandate; and

(b) Finlay v Commissioner of Police as the Chief Executive Officer of the Department known as The Police Service (Department of Police) [2022] WASC 272 has determined that the Commissioner of Police’s direction requiring all police to be vaccinated against COVID‑19 was both reasonable and lawful: [24]. In doing so, His Honour Allanson J rejected the argument that the direction directly infringed the right of bodily integrity because it did not purport to authorise involuntary vaccination or any act that interfered with employees’ bodies without their consent: [31]. At [36] His Honour said:

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

15      Mrs Speciale has not persuaded us that there is any reason not to follow His Honour’s reasoning. Accordingly, we see no prospect of the first ground of appeal succeeding.

Ground 2

16      The second ground of appeal is that the direction to be vaccinated or provide evidence of an exemption was unreasonable because it involved mandating a medical procedure which was potentially dangerous with unknown health consequences. Mrs Speciale says the available COVID‑19 vaccinations are experimental, toxic, inherently dangerous and ineffective as protection for the recipient or others against COVID‑19.

17      Mrs Speciale’s case in this regard is based on assertions that are not substantiated by any admissible evidence. She has referred to her understanding and summary of the views of various individuals whose qualifications and expertise are not established. Of course, anyone can search the internet for theories and opinions about the approved COVID‑19 vaccinations and such searches will no doubt locate content that might align with Mrs Speciale’s assertions. Indeed, we would expect there to be respectable contradicting views in the scientific community about the safety and effectiveness of the approved COVID‑19 vaccines.

18      However, none of that changes the fact that COVID‑19 vaccines had been approved for use by the Australian Technical Advisory Group on Immunisation (ATAGI). As Coleman DP stated in Jovcic & Anor v Coopers Brewery Limited [2022] FWC 1931; (2022) 316 IR 133 at [39]‑[41]:

…it is a matter of public record and a notorious fact that ATAGI is an expert body whose role is to provide evidence‑based advice on the administration of vaccines to the Commonwealth, and also to the general public. ATAGI’s fifteen members hold senior positions at major universities, hospitals and research institutions around the country. ATAGI’s status as an expert body that provides advice to government and the public cannot seriously be doubted and indeed the applicants did not seek to impugn that status.

Secondly, ATAGI has been continuously evaluating the epidemiological state of the country in respect of COVID‑19 at its weekly meetings and updating the advice that it provides to the public on its website. Its advice has therefore remained current. I note that the formulation of ATAGI’s advice about the effect of vaccines on transmission of the virus changed over the relevant period. In updates from September to December 2021 ATAGI stated that vaccination was an intervention to ‘prevent infection, transmission and severe disease’. A statement on 24 December 2021 said that booster doses were ‘likely to increase protection against infection with the Omicron variant’. Then on 17 January 2022, an ATAGI update stated that vaccination ‘prevents serious disease and death, and reduces disease transmission’. One would expect of an expert advisory body that the content, formulation and emphasis of its advice would change in response to its ongoing assessment of the available evidence.

The fact that there may be views in the scientific community that differ from those of ATAGI about the effect of vaccines on transmission of the virus is neither surprising nor a reason to doubt the reliability of ATAGI’s advice. Because its objective is to discover truth about the physical world, science invites scrutiny and welcomes both confirmation and contradiction, an outlook exemplified by the reputed instruction of Niels Bohr to his students that every sentence he uttered should be understood not as an affirmation but as a question. Of course there will be different opinions, particularly in respect of subject matter that is relatively new. Until recently, there were no COVID‑19 vaccines, nor had there ever been a vaccine against a coronavirus. One obvious benefit of an expert advisory body such as ATAGI is that it may evaluate all of the available evidence and competing hypotheses, draw evidentiary conclusions, and formulate sound and pragmatic advice so that society is not left in policy limbo when difficult scientific problems require practical responses.

19      So, the first, very significant hurdle that Mrs Speciale faces is establishing that ATAGI’s advice is wrong. To do so, she would need to adduce expert evidence, and such evidence would need to be tested in the context of ATAGI’s advice, where ATAGI is an expert advisory body comprised of numerous experts from eminent scientific and medical institutions.

20      But even if Mrs Speciale was able to overcome this significant hurdle, her case would still not be advanced because it was ‘plainly reasonable’ for EMHS to rely on ATAGI’s advice in developing and implementing its policy: Jovcic at [63].

21      This ground is therefore not fairly arguable.

Ground 3

22      This ground is that Mrs Speciale was unable to comply with the policy/direction because she could not give informed consent to being vaccinated.

23      Mrs Speciale said she attended a Pharmacy on 27 October 2022 for the purpose of being vaccinated, but told the injecting practitioner that she was there only ‘under a sacking threat’. The injecting practitioner refused to administer the injection in those circumstances on the basis Mrs Speciale had not provided informed consent.

24      We note that:

(a) Mrs Speciale’s appointment with the pharmacist was made after the date of the termination decision; and

(b) In correspondence to the employer dated 23 September 2022, Mrs Speciale precisely foreshadowed the outcome of her appointment when she said:

PS I will be putting in to practice the test of law which I have stated above, I have been unwell this week but I intend making an appointment of the vaccine, I will be giving informed consent to the injecting practitioner and then informing them of my sacking threat and I will then request that the injecting practitioner provide an affidavit to state that they were unable to administer the injection because of the sacking threat and thereby proving that you, the employer has caused a barrier to your own directive, therefore making the directive unlawful.

25      Mrs Speciale’s reliance upon her inability to give informed consent is obviously a contrivance.

26      The reasoning of the Full Bench of the Fair Work Commission in Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal is to the effect that consent to be vaccinated is not vitiated because an employee faces termination of employment for non‑compliance with a direction to provide evidence of vaccination or exemption. The social and economic pressure on employees is not coercion vitiating consent. The choice remains a choice of the employee. The Full Bench referred to the following passage of Beech‑Jones CJ in Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320; (2021) 362 FLR 113 at [63]:

It can be accepted that there is room for debate at the boundaries of what external factors might vitiate a consent to medical treatment so as to render the treatment a battery and a violation of a person’s right to bodily integrity…People may choose to be vaccinated or undertake some other form of medical procedure in response to various forms of societal pressure including a law or a rule, an employment condition or to avoid familial or social resentment, even scorn. However, if they do so, that does not mean their consent is vitiated or make the doctor who performed the vaccination liable for assault. So far as this case is concerned, a consent to a vaccination is not vitiated and a person’s right to bodily integrity is not violated just because a person agrees to be vaccinated to avoid a general prohibition on movement or to obtain entry onto a construction site. Clauses 4.3 and 5.8 of [Public Health (COVID‑19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW)] do not violate any person’s right to bodily integrity any more than a provision requiring a person undergo a medical examination before commencing employment does.

27      As Asbury DP observed in Construction, Forestry, Maritime, Mining and Energy Union & Ors v BHP Coal Pty Ltd T/A BHP Billiton Mitsubishi Alliance / BMA & Ors [2022] FWC 81; (2022) 311 IR 304 at [175], a difficult choice does not mean no choice.

28      In Cinque v Jetstar Airways Pty Ltd [2022] FWC 2235, O’Neill C found that a pharmacist’s refusal to vaccinate an employee who had signed a consent form, but had proceeded to tell the pharmacist that she was doing so under the ‘…[d]raconian threat of sacking…if [she] was not [vaccinated]’ did not render Jetstar’s vaccination policy unreasonable, but rather evidenced the applicant’s refusal to consent to have the vaccine: [64]. The same reasoning applies in this case, and there is no reason for us to depart from it.

29      Mrs Speciale referred the Board to the High Court decision in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479, as setting out the test for what is valid consent to a medical procedure. The decision does not stand for the principle Mrs Speciale seems to think it does. The Court in that case was concerned with when the quality of information about the risks of a medical procedure is in breach of the duty of disclosure in the law of negligence. The High Court accepted that a patient’s consent to medical treatment may be valid if the patient is informed ‘in broad terms of the nature of the procedure which is intended’.

30      This ground is also without the necessary prospects of success.

Ground 4

31      Finally, Mrs Speciale says the mandates were going to be rescinded and the decision to dismiss was made with the knowledge that mandates would be revoked from 4 November 2022.

32      Mrs Speciale relies on an email from EMHS’s Executive Director, People and Culture and Capability, Mr Steve Gregory, to her dated 9 November 2022 as evidence that EMHS knew about the revocation of the mandates before the decision to dismiss her.

33      The relevant sentence of the email states:

While the Government has announced that it is no longer mandatory for health care workers to be COVID‑19 vaccinated, this decision came into effect prior to your cessation of employment.

34      Mr Gregory did not give evidence. However, we infer that the email contains an obvious error and that Mr Gregory intended to say ‘after’ rather than ‘prior’. It is uncontroversial that the revocation of the vaccination mandates came into effect on 4 November 2022, which was after the cessation of Mrs Speciale’s employment.

35      The context of Mr Gregory’s email also reveals his mistake: he was responding to Mrs Speciale’s email of 2 November 2022 in which she informs him of the ‘announcement from the Department of Health’ that as of Friday, 4 November 2022, ‘unvaccinated health staff will be able to return to work’. She then asserts her right to be reinstated.

36      Referring to the decision to enable unvaccinated staff to return to work as being a decision that was made before Mrs Speciale was terminated is simply illogical in this context. Mrs Speciale’s employment had already been terminated.

37      Accordingly, Mrs Speciale is unable to identify any proper basis for a conclusion that EMHS knew about the revocation of vaccination mandates, before the termination decision was made, or before the decision took effect.

38      This ground has no prospects of success.

39      Because we do not consider the appeal is fairly arguable, that is the end of the present application. An extension of time cannot be granted. It is strictly unnecessary for us to consider any other factors. However, given the parties addressed the other factors, we will record our views about them.

Length of the delay

40      In the scheme of the time limit of 21 days imposed by the Regulations, the delay of 1 month is significant. It took more than twice the time allowed for Mrs Speciale to commence the appeal. This factor cannot be determinative on its own. However, the significance of the delay weighs against the grant of an extension of time. The other relevant factors may involve counterbalancing considerations which displace the effect of this factor being against the grant of an extension of time: Simonsen at [8].

Reasons for the delay

41      Mrs Speciale gave evidence about the circumstances which led to the delay in filing her appeal.

42      She said that before lodging her appeal she contacted both the Fair Work Commission and the Western Australian Industrial Relations Commission (WAIRC), but no one gave her any ‘real definitive information’ on the basis that they could not provide her with legal advice. She does not say when such contact was made. She suggested she was under a misapprehension that the WAIRC was part of EMHS.

43      She said that she originally lodged an application with the Fair Work Commission on 18 November 2022 via email at 5.41 pm. She notes that this was within the 21‑day period from the date of termination and therefore within the time for making an unfair dismissal claim under the Fair Work Act 2009 (Cth), had it applied.

44      However, even by this date, Mrs Speciale was already out of time for filing an appeal.

45      On 21 November 2022, someone from the Fair Work Commission telephoned Mrs Speciale and told her that she had lodged her application in the wrong jurisdiction and would need to contact the WAIRC to discuss her matter. In written correspondence to Mrs Speciale the Fair Work Commission recommended she urgently seek legal advice about whether she was eligible to apply to the WAIRC.

46      Mrs Speciale did contact the WAIRC, fairly promptly, on 23 November 2022. The WAIRC sent an email to Mrs Speciale on 23 November 2022 at 1.36 pm noting that the 21 days from the date of the decision the subject of the appeal had passed, so Mrs Speciale should provide reasons for her delay in the Form 8B – Notice of Appeal.

47      Mrs Speciale did not explain the delay between receipt of this information from the WAIRC on 23 November 2022 and the ultimate date of filing 25 November 2022 at 5.19 pm.

48      EMHS points out that its 3 October 2022 letter notifying her of the decision to terminate states:

If you are aggrieved with this decision, you may be able to appeal this decision in an external tribunal such as the Western Australian Industrial Relations Commission. You may wish to seek legal or industrial advice in this regard.

49      This same advice was provided to Mrs Speciale on 1 November 2022 in an email to her from Mr Gregory.

50      This information might reasonably have flagged to Mrs Speciale the possibility that she could appeal and that the WAIRC would be the appropriate forum to do so. It is regrettable that the information was not clearer. The letter could have simply stated that any appeal from the decision should be made to the Board within 21 days of the date of the letter.

51      Nevertheless, Mrs Speciale acknowledges the reference to the WAIRC, but says the correct forum was not clear to her at the time because she was focusing on how to articulate and formulate her reply to the correspondence. Indeed, in the period during which she could have appealed as of right, she formulated lengthy emails to EMHS, which she said she researched thoroughly via the internet and ‘burnt the midnight oil’ to complete.

52      She also says that the last two years have been difficult for her, economically, emotionally and socially and that these hardships generally explain why she lodged her application in the wrong jurisdiction. Beyond this vague assertion, she did not point to any particular circumstances which prevented her from lodging the appeal within time, particularly given her efforts at writing why she objects to the decision.

53      Mrs Speciale has not established that there were good reasons for her not making an appeal within the time specified in the legislation. She recorded her intention to litigate any decision to terminate her employment as early as 23 September 2022: see email from Mrs Speciale to Chief Executive, EMHS, Liz MacLeod dated 23 September 2022. She has explained her delay between the time she lodged an application with the Fair Work Commission on 19 November 2022 and when she lodged with the Board on 25 November 2022. That accounts for less than a week in the 2‑month period between the time she was notified of the decision and the date of filing the appeal.

54      Mrs Speciale has said nothing about why she was precluded from filing within the 21‑day time limit, given her intent to challenge the decision even predated the decision. She was not incapacitated, or out of the country, or without the means to lodge an appeal within time. It is perfectly understandable that she might not have known which process to utilise to challenge the decision, where to challenge the decision or what time limits. However, a lack of applied knowledge of unfair dismissal laws and time limits is not an acceptable explanation for delay: Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1 at [14]. Mrs Speciale should have obtained reliable advice on the matters where her knowledge was lacking. It was not up to the Fair Work Commission or the WAIRC to do that for her. She did not take reasonable steps to fill the gaps in her knowledge in a timely way.

55      There is nothing compelling in Mrs Speciale’s reasons for the delay which would sway the balance in favour of granting an extension of time.

Prejudice to the EMHS

56      Prejudice can be inferred from the length of the delay: see D & M Amonini Pty Ltd v Neirin Pty Ltd [2016] WASC 157 per Martin CJ at [16]. The absence of prejudice to the EMHS is, again, not determinative of whether an extension of time should be granted: see City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120; (2009) 169 LGERA 15. This factor is neutral.

Conclusion

57      On balance, we do not consider the reasons for the delay are adequately explained. We accept that Mrs Speciale did not know the correct jurisdiction or time limit. Her uncertainty about these matters does not provide an explanation for not doing anything in a timely way to protect her own rights, until it was already too late.

58      But in any event, the appeal’s lack of prospects of success means an extension of time cannot be granted. The requirements of justice in this case are not such as to require that the extension of time be granted.

59      The appeal will be dismissed.