APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 21 JUNE 2022

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00176

DELIVERED : MONDAY, 3 APRIL 2023

FILE NO. : PSAB 63 OF 2022

Appellant

AND

DIRECTOR GENERAL, DEPARTMENT OF JUSTICE

Respondent

CatchWords : Public Service Appeal Board – No good reason for delay – Time to appeal not extended

Legislation : Industrial Relations Act 1979 (WA) s 27(1)(n)

  Industrial Relations Commissions Regulations 2005 (WA) r 107(2)

  Public Sector Management Act 1994 (WA) s 82A(3)(b)     

Result : Appeal dismissed

Representation:

Appellant : In person

Respondent : Mr J Carroll (of counsel)

Case(s) referred to in reasons:

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

Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516

Reasons for Decision

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

2         Ms Purser worked as a Level 2 Support Officer for the Department of Justice (Director General) until she was dismissed on 21 June 2022. The Director General found that Ms Purser had committed two breaches of discipline by not being at least partially vaccinated against COVID-19, or providing evidence of a medical exemption, by 5 February 2022. The Director General considered that these two breaches of discipline warranted dismissal, pursuant to s 82A(3)(b) of the Public Sector Management Act 1994 (WA) (PSM Act).

3         Ms Purser appeals the Director General’s decision to dismiss her.

4         Appeals to the Board must be made within 21 days of the decision to dismiss. Ms Purser’s appeal was filed 36 days late.

5         Ms Purser asks the Board to extend the time for her to appeal. She says that the Director General did not provide her with information relating to her disciplinary proceedings until 9 June 2022, and she did not know that she had been dismissed until 26 July 2022.

6         The Director General argues that the Board should not extend the time for Ms Purser to appeal. He says there is no good reason for Ms Purser’s delay in circumstances where the Director General made several attempts to contact Ms Purser about the outcome of the disciplinary proceedings.

What the Board must decide

7         The Board must decide whether to extend the time for Ms Purser to appeal.

Relevant principles

8         The Board has power under s 27(1)(n) of the Industrial Relations Act 1979 (WA) to extend the prescribed time in which to institute an appeal.

9         The principles the Board must consider are set out in Michael Christian Nicholas v Department of Education and Training [2008] WAIRC 01645; (2009) 89 WAIG 817 from paragraphs [10]-[14].

10      They include the length of the delay, the reasons for the delay, whether the appellant has an arguable case and whether there would be any prejudice to the respondent if the appeal is accepted out of time.

Background

11       The following background is not in dispute.

12      On 31 January 2022 the Chief Health Officer made directions under the Public Health Act 2016 (WA) including the Court and Tribunal Worker (Restrictions on Access) Directions (Directions).

13       On 31 January 2022 the Director General required all employees who had to access court and tribunal sites to be vaccinated against COVID-19 and provide evidence of vaccination or exemption in accordance with the dates set out in the Directions (Employer Direction).

14       A disciplinary process was started in relation to Ms Purser, alleging two breaches of discipline:

a. a failure to follow the Employer Direction; and

2. a failure to provide evidence of vaccination or exemption.

15      On 18 May 2022 Ms Purser emailed the Director General a temporary medical exemption. She did not respond to the allegations of breach of discipline.

16      On 26 May 2022 the Director General sent Ms Purser a letter of finding and proposed action, setting out that he was satisfied the breach of discipline allegations were substantiated. He proposed disciplinary action in the form of dismissal.

17      At 1.03pm on 9 June 2022 Ms Purser emailed the Director General:

Proposed Finding and Action Letter - CF220310

Leah Purser <leah.h.purser@gmail.com> Thu, Jun 9, 2022 at 1 :03 PM

To: "Lake, Amanda" <Amanda.Lake@justice.wa.gov.au>

Hello Amanda,

I am being represented by Hotchkin Hanly Lawyers. Any correspondence is to go through them please.

Please note that I never received any documentation that is referred to in the attached letter.

Please also advise my return to work arrangement as per Hotchkin Hanly correspondence.

Thank you

Leah Purser

18      An entry added at 1.53pm on that same day to the Director General’s online reporting system (Running Sheet) shows the Director General responding to Ms Purser’s email as follows:

Good Afternoon Ms Purser,

We have not received any correspondence from Hotchkin Hanly advising us that you are a client of theirs.

Hotchkin Hanly will need to advise Professional Standards in writing that they are representing you and who to address the correspondence to.

Previous correspondence has been posted to your home address of [Edgewater address]. If this is not your current home address, please provide us with your postal address.

…

19      The Director General decided to take disciplinary action against Ms Purser in the form of dismissal. He wrote a letter to Ms Purser dated 21 June 2022 confirming that she was dismissed with immediate effect (Dismissal Letter). The Dismissal Letter was sent to Ms Purser by express post to the address in Edgewater and emailed to leah.h.purser@gmail.com on 24 June 2022.

20      Hotchkin Hanly wrote to the State Solicitor’s Office (SSO) on 23 June 2022 in relation to disciplinary action being taken by the Director General in respect of 39 employees for whom Hotchkin Hanly was acting. The firm told SSO that it had been instructed to act for a further five employees of the Director General, including Ms Purser. Hotchkin Hanly requested that the Director General pause any current disciplinary proceedings against the firm’s additional clients. Five days later, SSO replied to Hotchkin Hanly, saying that the Director General was not willing to agree to pause disciplinary proceedings in relation to any of the additional clients.

21      Sometime after her dismissal, the Director General paid Ms Purser an amount of money. After Ms Purser received the payment, she emailed the Director General on 25 July 2022 to query the payment and her return to work date. The next day, the Manager of Employee Relations emailed Ms Purser:

Good Afternoon Leah

Given that you are no longer an employee of the Department I am usure (sic) as to your query regarding a return to work date.

I would presume that the monies you received would have been your final payout of any entitlements due to you.

…

22      Later on 26 July 2023, the Acting Assistant Director of Professional Standards emailed Ms Purser:

Final Disciplinary Outcome

From: Headley, Danielle (danielle.headley@justice.wa.gov.a u)

To: leahpurser@y7mail.com; leah.h.purser@gmail.com

Cc: James.August@justice.wa.gov.au; Amanda.Lake@justice.wa.gov.au

Date: Tuesday, 26 July 2022 at 02:11 pm AWST

Good Afternoon Ms Purser

I have just attempted to contact you on your mobile phone [number provided] and left a voice message for you to contact me as a priority.

Please find attached your Final Outcome Letter.

You are no longer employed by the Department.

We have attempted to contact you for a number of months concerning this matter, I can confirm a copy of this letter was posted to your last known residential address on 24 June 2021 and is awaiting collection at Joondalup Post Officer (sic), your tracking number is RPP2105700053002332093603.

The Department also emailed you a copy of this letter on 24 June 2020 to leah.h.purser@gmail.com

Please call me should you wish to discuss the matter further.

23      It is not in dispute that the references to 2020 and 2021 in the above email are typographical errors and were intended to refer to 2022.

Length of the delay

24       The decision to take disciplinary action was made on 21 June 2022.

25       Regulation 107(2) of the Industrial Relations Commission Regulations 2005 (WA) provides the time limit for filing an appeal to the Board.  It states:

An appeal may be commenced within 21 days after the date of the decision, finding, determination or recommendation in respect of which the appeal is made or where that decision, finding, determination or recommendation is published in the Government Gazette within one month of the date of that publication.

26       Ms Purser had until 12 July 2022 to appeal. Her notice of appeal was filed on 17 August 2022, which was 57 days after the Director General dismissed her. The delay is 36 days.

27       The Director General argues that delay is significant where the appeal period is 21 days.

28       The Board considers that, in the context of a 21 day time limit, the delay is significant.

Reasons for the delay

29      Ms Purser’s evidence is she did not know that she had been dismissed until she received the emails on 26 July 2023 set out from [21] - [22] above. Ms Purser then sought advice and appealed her dismissal to the Board 19 days later.

30      The effect of Ms Purser’s evidence was that she did not know about the disciplinary proceedings that led to her dismissal until 27 May 2022. By then, she had an exemption so ‘there was honestly no way that I would’ve thought I would’ve been dismissed, especially because [the final dismissal letter]… was dated 11 days after when the mandates were actually dropped.’ She said that she was not aware she ‘would actually be terminated’ because there were options other than dismissal, and because of her temporary medical exemption dated 18 May 2022, ‘the proposed finding of dismissal from employment doesn’t actually fit.’

31      The effect of Ms Purser’s evidence was that because she had told the Director General on 9 June 2022 that she was represented by Hotchkin Hanly, and the Director General had not told Hotchkin Hanly that Ms Purser was dismissed, ‘there is no way I could have known that there was anything being sent to me in relation to a termination.’

32      Ms Purser denied in cross-examination that she received telephone calls or voicemail messages from the Director General asking her to return the telephone calls or update her address (or at all).

33      The effect of Ms Purser’s evidence was that because she was not working, it was hard to pay rent. That meant that she had to move out of her usual residence in Edgewater and she did not live there in June and July 2022. She had no fixed address at that time. When pressed by the Board, Ms Purser said that she told the Director General by email that she had no fixed address. She could not say when she sent that email and she did not tender a copy of the email, although she agreed in cross-examination that the email was critical to her case.

34      Ms Purser agreed in cross-examination that she sent emails to the Director General from her leah.h.purser@gmail.com email address on 18 May, 27 May and 9 June 2022, including an email that attached her temporary medical exemption. Ms Purser denied that it was implausible or contrived that she would not have checked her email for nearly a month, given the context of that correspondence. Ms Purser denied receiving the voice messages recorded on the Running Sheet.

35      Ms Purser agreed that she had spoken to her mother about the incident referred to on the Running Sheet, where the Director General tried to leave a letter for Ms Purser. Ms Purser was very reluctant to give evidence about what her mother told her about that incident. Eventually Ms Purser conceded that she was aware in around late May or early June 2022 that an investigator was trying to serve a letter from the Director General that was addressed to her.  Ms Purser denied that she was trying to evade being served with a letter to dismiss her.

36      In response to a question put to her by the Board, in effect Ms Purser said that after she had sent the email set out at [17], the Director General should have contacted her through Hotchkin Hanly. She would not agree that an employer would need to tell an employee (and not their lawyer) that the employee was dismissed.

37      Ms Purser says the suggestion that she was evading service or avoiding receiving the dismissal letter is insulting.

38      Ms Patricia Henderson gave evidence for the Director General. She is a Senior Investigator with Professional Standards. She has been employed by the Director General for more than five years and before that she was employed by WA Police for 23 years, where she was a Senior Constable.

39      Ms Henderson gave evidence about the Director General’s online misconduct reporting portal, which creates a ‘Running Sheet’ system used by investigator officers employed by the Director General to report breach of discipline matters. She said anything relating to an investigation is recorded on the Running Sheet that relates to the disciplinary matter. When an entry is made onto the Running Sheet, the system automatically records the entry maker’s name, the time and the date. Entries are made almost immediately after the event being entered, for example when a phone call is made or a text is sent. The Running Sheet entries cannot be amended.

40      Ms Henderson gave evidence about the Running Sheet in Ms Purser’s disciplinary matter, which relates to the period from 6 April to 28 July 2022. Ms Henderson explained how entries are made, confirming that she had recorded an entry showing that she had tried to call Ms Purser on 27 May 2022 and then sent Ms Purser a text message that day, telling Ms Purser that a finding and proposed outcome letter had been posted and emailed to her.

41      Ms Henderson gave evidence that the Running Sheet showed that the Director General wrote to Ms Purser on 9 June 2023, saying that the Director General had not received any correspondence from Hotchkin Hanly to say that it acted for Ms Purser, and that Hotchkin Hanly would need to tell the Director General if it acted for her. Further, that previous correspondence had been posted to Ms Purser at the Edgewater address and asking her to update her contact details if that was no longer her address.

42      The Director General submits that in the circumstances, it is implausible and contrived that Ms Purser would not look at her email for a month, unless she were attempting to avoid receiving a dismissal letter. Further, the Director General says that Ms Purser’s mother’s actions in refusing to accept a letter addressed to Ms Purser support a finding that Ms Purser was trying to evade service. The Director General submits that the Board can find that Ms Purser is either dishonest or was attempting to evade service, and the reason that she did not look at her email is because she wanted to avoid correspondence from the Director General. That is not a good reason for delay.

43      The Director General says that at most, Ms Purser would have reasonably become aware of the decision to dismiss within 6 days. There is no reasonable explanation for a delay beyond that period.

44      The Director General argues that the Board should accept the Running Sheet as reliable evidence, because it shows contemporaneous notes and no reason was put by Ms Purser about why the investigators making entries in the Running Sheet would be dishonest. On that basis, the Director General submits that the Board should accept that the telephone calls were made to Ms Purser.

45      The Director General argues that equity and good conscience require that no extension be granted.

Consideration

46      Other than as set out from [29] – [36] above, Ms Purser did not give evidence about, or explain, why she did not check her mail or her email address for over a month during a period where she was not on approved leave and she was aware that the Director General had started disciplinary proceedings against her.

47      Ms Henderson’s evidence was not undermined in anyway and the Board accepts her evidence. The Running Sheet shows multiple entries by different employees of the Director General to the effect that they had attempted to telephone Ms Purser, left voice messages for her, sent her text messages and asked her to provide updated contact details. Ms Purser did not attempt to undermine the Running Sheet, nor did she give an explanation about why the Board should prefer her evidence to the extent that it conflicts with the Running Sheet.

48      It is clear that the Director General attempted to ensure Ms Purser was aware of and received his communications. From the evidence before us, we are satisfied that the Director General did everything that was reasonably necessary to communicate with Ms Purser, including when he sent her the Dismissal Letter.

49      It is not in dispute that Ms Purser was aware in May 2022 that she was the subject of disciplinary proceedings and that the Director General was considering dismissing her. In those circumstances, we consider that Ms Purser’s evidence about not checking her email was unpersuasive and implausible. We are satisfied that Ms Purser was trying to avoid communication from the Director General.

50      Ultimately, in circumstances where the Board is satisfied on the evidence before it that:

a. by 27 May 2022, Ms Purser was aware that the Director General had found that she engaged in two breaches of discipline and proposed to dismiss her;

b. the Director General asked Ms Purser on 9 June 2022 – by replying that afternoon to the email address that she had used to write to the Director General – to update him about her postal address if the address in Edgewater was not her current home address;

c. the Director General left voicemail messages between 6 April – 12 July 2022 asking Ms Purser to contact him/update her contact details;

d. the Dismissal Letter was sent to Ms Purser to:

i. the address Ms Purser knew the Director General was using as her postal address; and

ii. the email address that Ms Purser had regularly and recently used to write to the Director General, including only 14 days earlier;

e. Ms Purser was aware that she was subject to disciplinary proceedings and that dismissal was a possible outcome of those proceedings,

the Board considers that Ms Purser did not provide a reasonable explanation for the delay. We find that there are no good reasons for the delay. This weighs against extending the time to appeal.

Whether Ms Purser has an arguable case

51      Ms Purser says that she has an arguable case because she held a valid medical exemption before and at the time of dismissal, which means that her dismissal was unlawful. In her Notice of Appeal, Ms Purser says that uploading her valid exemption on 18 May 2022 ‘immediately deemed [her] compliant with the Director General’s direction.’ Although in her Notice of Appeal Ms Purser does not say that the dismissal was harsh or disproportionate, Ms Purser made submissions to that effect at the hearing.

52      The Director General says it is not in dispute that Ms Purser failed to comply with the Employer Direction. According to her Notice of Appeal, Ms Purser first sent a medical exemption to the Director General on 18 May 2022, more than three months after she was required to produce evidence of vaccination or exempt status.

53      The Director General says that from Ms Purser’s Notice of Appeal and submissions, there are poor prospects of success, because at its highest Ms Purser does not:

1. challenge the fact that she did not comply with a lawful order;
2. claim she was unfairly dismissed for any reason other than the allegation that the dismissal was unlawful because at the time of her dismissal she held an exemption.

54      The Board accepts the Director General’s argument that Ms Purser’s Notice of Appeal does not expressly contend that the dismissal was harsh or disproportionate.

55      However, at this preliminary stage, the Board’s assessment of the merits is ‘fairly rough and ready’: Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 [9] (Brennan CJ & McHugh J).  The Notice of Appeal refers to ‘alternative disciplinary outcomes’ available, including transfer to another work location or position. Given Ms Purser is unrepresented, the Board is inclined to consider Ms Purser’s arguments at the hearing (that dismissal was harsh and disproportionate because there were other disciplinary outcomes) as an extension of the complaint in the Notice of Appeal that there were alternative disciplinary outcomes. In those circumstances, the Board is not prepared to take a narrow view of the merits. We consider that the case may be arguable.

Whether there would be any prejudice to the Director General

56      The Director General concedes that there would not be any particular prejudice to him, beyond that experienced by any respondent to proceedings.

57      The Board considers that this is a neutral factor.

Conclusion

58      The Board has considered the length of the delay, Ms Purser’s reasons for the delay, that the case may be arguable and that there would not be any particular prejudice to the Director General.

59      Where there is no good reason for the delay, and the delay is significant (at least relative to the 21 day time limit), the Board does not consider that it would be in accordance with equity and good conscience to extend the time for this appeal. We are not persuaded that we should extend the time for Ms Purser to appeal.

60      This appeal must be dismissed.