APPEAL AGAINST THE DECISION OF THE EMPLOYER TAKEN ON 3 JUNE 2022

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00206

DELIVERED : FRIDay, 14 APRIL 2023

FILE NO. : PSAB 48 OF 2022

Appellant

AND

Department of Health

Respondent

CatchWords : Industrial Law (WA) – Public Service Appeal Board – Jurisdiction – Whether appealable decision – Whether decision to suspend under s 82 Public Sector Management Act 1994 (WA) – Access Restriction Period – Exclusion from workplace coinciding with disciplinary process – Whether exclusion from workplace was part of the disciplinary process – No decision to suspend under s 82 – Appeal dismissed

Legislation : Industrial Relations Act 1979 (WA)

Public Health Act 2016 (WA)

Public Sector Management Act 1994 (WA) 

Result : Appeal dismissed

Representation:

Counsel:

Appellant : Mr Z Alach on his own behalf

Respondent : Mr J Carroll of counsel

Case(s) referred to in reasons:

Director General, Department of Justice v The Civil Service Association of Western Australia Incorporated [2003] WAIRC 07994; (2003) 83 WAIG 908 (Bowles)

Mann v Employing Authority, Government Employees Superannuation Board [2007] WAIRC 01324; (2007) 88 WAIG 66

The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404

Walker v Director General, Department of Justice [2003] WAIRC 08495; (2003) 83 WAIG 1879

Reasons for Decision

1         Under s 82 of the Public Sector Management Act 1994 (WA) (PSMA), an employing authority may suspend an employee without pay if the employing authority has decided to deal with a disciplinary matter under s 81(1)(a) of the PSMA. A decision to suspend an employee under that section can be appealed to the Board under s 78 of the PSMA. The key question for the Board to decide in this case is whether or not the Department of Health made a decision to suspend the appellant, Mr Zackary Alach.

2         The Department gave Mr Alach notice of a suspected breach of discipline on 13 April 2022. It discontinued the discipline process on 28 April 2022. In the meantime, Mr Alach did not work. He was not paid during this period either. The Department treated this time as a period of leave without pay, on the basis that Mr Alach was not ready, willing and able to work. Mr Alach says he did not apply for or agree to take leave without pay. He says he was ready, willing and able to work, and that the Department removed his right to work. Therefore, the non‑payment for this period must be the result of a decision to suspend.

3         On that basis, Mr Alach lodged an appeal to the Board.

4         The Department concedes that if there was a suspension decision under s 82, then Mr Alach is entitled to have any pay he was entitled to restored under s 82(5) of the PSMA. Whether the appeal succeeds or fails depends entirely on the answer to the question of whether there was suspension decision.

5         Mr Alach bears the onus of establishing the facts that enliven the Board’s jurisdiction: The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404 at 426. That is, Mr Alach must establish on the balance of probabilities that he was suspended under s 82 of the PSMA as a matter of fact.

Mr Alach’s employment during the COVID‑19 Pandemic

6         The factual background is uncontroversial.

7         The Department employed Mr Alach as a Senior Policy Officer.

8         In about September 2021, the Department updated its COVID‑19 Mandatory Vaccination and Vaccination Program Policy to require that all Department employees be vaccinated against COVID‑19 or provide evidence of an exemption from the requirement to be vaccinated (2021 Policy). The 2021 Policy was issued as a means to ensure compliance with the Chief Health Officer’s Health Worker (Restrictions on Access) Directions made under the Public Health Act 2016 (WA), and to protect employee health and safety.

9         Mr Alach complied with the 2021 Policy, while expressing his objections to providing the Department with evidence of his vaccination status, and his objection to ‘government processes’ which he saw as having the effect of excluding unvaccinated people from accessing ‘essential aspects of society’ including employment. Nevertheless, until the end of December 2021, Mr Alach was fully vaccinated.

10      On 24 December 2021, the Chief Health Officer issued the Booster Vaccination (Restrictions on Access) Directions (No 2) (Booster Directions), which, subject to certain exceptions, restricted ‘vaccination directed persons’ from entering and remaining at certain sites if they had not complied with booster vaccination requirements on and from 12.01 am on 5 February 2022.

11      As of 13 January 2022, the Department’s further updated COVID‑19 Mandatory Vaccination and Vaccination Program Policy mandated a requirement for all employees of Western Australia’s health system entities, including the Department, to be administered a booster vaccination, or produce evidence of an exemption, in order to access and remain at a health care facility.

12      On 20 January 2022, the Director‑General, Department of Health issued a further direction to Department employees, requiring that they:

(a) receive a booster vaccination against COVID‑19, unless they have an exemption under the Booster Directions; and

(b) provide evidence of their booster vaccination status or evidence of their status as an exempt person,

by 4 February 2022.

13      Mr Alach received a letter headed ‘Request to Provide Evidence of Booster Vaccination Against COVID‑19’ referring to this order, on 1 March 2022. The letter also stated:

…

Election to not receive a Booster Vaccination

If you elect not to have a COVID‑19 booster vaccination, and/or you do not provide evidence of your booster vaccination or an approved exemption by 28 March 2022, an Access Restriction Period (ARP) described in the COVID‑19 Mandatory Booster Vaccination – Guidelines will apply from 12:01am on 29 March 2022.

During the ARP you are legally unable to attend your workplace and you will not be paid. The ARP will continue while you remain non‑compliant with the requirement to receive a booster vaccination.

If you remain non‑compliant with the booster vaccination direction, disciplinary proceedings may be commenced against you.

14      The Department sent a second letter; this time headed ‘Notice ‑ Requirement to Receive a Booster Vaccination Against COVD‑19’ to Mr Alach on 15 March 2022. It contained much the same content as the 1 March 2022 letter. It relevantly stated:

If you elect not to have a COVID‑19 booster vaccination, and/or you do not provide evidence of your booster vaccination or an approved exemption by 28 March 2022 an Access Restriction Period (ARP) described in the COVID‑19 Mandatory Booster Vaccination – Guidelines will apply from 12:01am on 29 March 2022, unless alternative arrangements have been made.

During the ARP you are legally unable to attend your workplace and you will not be paid. The ARP will continue while you remain non‑compliant with the requirement to receive a booster vaccination.

If you remain non‑compliant with the booster vaccination direction, disciplinary proceedings may be commenced against you.

15      Western Australia’s hard border was lifted on 3 March 2022. At about that same time, the Western Australian Government moved to ‘very high caseload’ settings in its strategy for dealing with the COVID‑19 pandemic, as COVID‑19 transmissions in the State started to steadily increase.

16      On 23 March 2022, the Department formally confirmed that Mr Alach was prohibited from accessing healthcare facilities in connection with his employment from 29 March 2022, on the basis that he had not complied with the Policy by providing evidence of having had a booster vaccination or of being an exempt person.

17      The letter again said:

During this access restriction period (ARP), you are not entitled to be paid for the period of time that you are legally unable to attend work due to not having received a booster vaccination. You may apply to your line manager for an appropriate form of leave (e.g. annual leave or long service leave) during the ARP. Applications for leave will be considered on a case by case basis.

18      The Department’s COVID‑19 Mandatory Booster Vaccination ‑ Guidelines as referred to in the letters of 1 and 15 March 2022 were provided to the Board. The Guidelines current as at 13 January 2022 relevantly provide:

…

4. Non‑compliance with the requirement to be administered a Booster vaccination

4.1 Access Restriction Period

An Employee who has not been administered a Booster vaccination by the Booster deadline set out in section 3.1 of these Guidelines must not access their workplace, unless they are an Exempt person.

An Employee unable to attend work due to not having been administered a Booster vaccination is not entitled to be paid for the period of time they remain having not received a Booster vaccination, consistent with the No work ‑ No pay Principle.

This Access Restriction Period (ARP) will remain in place while the Employee remains non‑compliant with the Booster vaccination requirements. This may mean an Employee can no longer perform their role, potentially putting their employment at risk.

For the first two weeks of the ARP the Employer will not commence a discipline process. If at the conclusion of the two week period the Employee has not been administered a Booster vaccination, the ARP continues and the Employer may commence a disciplinary process. An Employee may apply for an appropriate form of leave (e.g. accrued annual leave or long service leave) during the ARP in accordance with their Industrial Instrument. Leave applications will be considered on a case by case basis, taking into consideration operational and workforce requirements. Leave approvals should not exceed two weeks.

An Employee may also apply for a Temporary exemption as outlined at section 11 of these Guidelines. If the exemption is approved, the Employee can access the Health care facility and/or Residential aged care facility subject to the terms and conditions of the Temporary exemption.

If an Employee is administered a Booster vaccination after the ARP commences, and provides evidence of their Booster vaccination, they may be required to return to the workplace immediately.

In the event the Employer has approved leave during the ARP, the leave may be cancelled and the Employee required to return to work, subject to the terms of the relevant Industrial Instrument and consideration of the Employee’s circumstances.

…

4.2 Discipline

After the first two weeks of the ARP has passed, the Employer may initiate disciplinary proceedings in accordance with the Discipline Policy and Procedures.

Any decision to initiate disciplinary proceedings, and subsequent disciplinary outcomes, will be considered on a case by case basis and compliant with the Discipline Policy and Procedures. Given the access restrictions provided for by the Booster Directions, termination of employment is a potential outcome for instances of non‑compliance.

The No work ‑ No pay Principle will continue to apply during the course of any disciplinary process therefore a decision to suspend with or without pay during the disciplinary process is not required.

Employees who have not been administered a Booster vaccination will remain unable to access the Health care facility and/or Residential aged care facility, unless they attend that facility solely as a patient or visitor.

If an Employer approves a period(s) of leave during a disciplinary process, each approval should be limited to a period of two weeks, subject to the provisions of the relevant Industrial Instrument.

Nothing in sections 4.1 and 4.2 of these Guidelines prevents an Employer deferring initiation of disciplinary proceedings.

The process map at section 5 of these Guidelines sets out the processes and timeframes for managing Employees who refuse or are yet to comply with the mandatory Booster vaccination requirement.

…

6. Additional temporary considerations

The maintenance of safe staffing levels and other workforce needs may require the Employer to consider temporary arrangements for Employees who have not been administered a Booster vaccination, in lieu of triggering the ARP and/or disciplinary proceedings. Given the duration of the Public Health State of Emergency as declared under the Public Health Act 2016 (WA) is currently unknown, the following alternatives may be considered for implementation on a temporary basis only.

Employers should take the following into account when making decisions around the management of Employees who have not been administered a Booster vaccination. These considerations include, but are not limited to:

• skill and experience mix of the workforce;

• operational requirements;

• safe staffing levels and patient safety;

• workload;

• workforce shortages and ability to attract Employees;

• leave liability; and

• fairness and equity for Employees.

Decisions regarding the below are to occur on a case by case basis.

6.1 Working remotely

Employers may use their discretion to facilitate remote working arrangements on an interim basis and where operationally viable. This option will only be available for Employees who have access to the required technology and/or appropriate equipment and can perform their duties remotely. Decisions should be consistent with applicable Employer policies.

…

19      In response, Mr Alach wrote to the Department, pointing out that as a Tier 3 employee he had negligible interaction with the public and vulnerable populations. He suggested that he be permitted to work from home temporarily in order to achieve the protection of employees said to be the Policy’s justification. He told the Board that he had been working from home up until 29 March 2022 with his manager’s approval.

20      Mr Alach’s request to work from home was refused on 29 March 2022.

21      On 30 March 2022, Mr Alach asked to use 10 days of long service leave. His manager approved this request. His last day of approved long service leave was 12 April 2022.

Disciplinary process against Mr Alach

22      On 13 April 2022, Mr Alach was advised that it was alleged that he had committed a breach of discipline by failing to comply with the 20 January 2022 order to receive a booster vaccination. The Department’s letter informing him of the allegations gave him the opportunity to respond by 27 April 2022.

23      The Department’s letter makes no mention of Mr Alach’s working arrangements, suspension or payment during the disciplinary process.

Disciplinary process against Mr Alach ends

24      In the week following 13 April 2022, Mr Alach contracted COVID‑19. He registered this status with the Department on 16 April 2022.

25      Because Mr Alach contracted COVID‑19 he was eligible for an exemption from the requirement for a booster vaccination. On 27 April 2022, Mr Alach provided the Department with a medical exemption from the Booster Directions effective from 26 April 2022 to 16 August 2022.

26      On 28 April 2022, the Department wrote to Mr Alach advising that the exemption permitted him to work the following day, and that the discipline process will cease. The email does not mention anything about pay.

Mr Alach’s dispute about pay and June 2022 emails

27      Mr Alach’s Form 8B ‑ Notice of Appeal describes the decision he is appealing as being dated 3 June 2022. He refers to an email chain concerning ‘…my request to have my leave without pay reversed as per s82(5) of the PSMA 1994’. In the section about remedies, Mr Alach says he is seeking ‘reversal of the withholding of salary. Reversal of automated leave without pay’.

28      The correspondence Mr Alach refers to are emails between him and the Department dated 1 June 2022 and 3 June 2022.

29      In a 1 June 2022 email to the Department, Mr Alach referred to ‘…my having been placed on leave without pay…’ which he asked to be reversed.

30      He notes that his pay was withheld from 13 April 2022 to 28 April 2022 and ‘…it appears that during this time my employer automatically placed me on Leave Without Pay…’. He says:

…

As I am a full time employee, having been automatically placed into leave without pay by my employer – directly equates to a financial sanction imposed upon me by my employer. I assume that this financial sanction has been imposed as a disciplinary action, however given that the title of the correspondence sent to me on the 14 April 2022 is “Suspected breach of discipline – Allegation and Opportunity to respond”, I do not recall the process under the Public Sector Management Act 1994 that enacted this financial sanction and imposed it upon me. I had made it clear to the DOH that I was willing and able to work during this time period, and as I indicated in my original correspondence to the DOH that I would continue to work from home, I was able to maintain my full time hours during the period of the 13 April 2022 to the 28 April 2022 working on my home computer.

I am not aware of the provisions of the Public Sector Management Act 1994 that permits a government department to (automatically and without an upper limit) financially sanction an employee for a suspected breach of discipline. I would be grateful if someone could direct me to the specific provision that has been used in this case so that I can review it in more detail.

…

31      The 3 June 2022 email response advised Mr Alach that he had been:

…placed on an Access Restriction Period (ARP) and during this period, be legally unable to attend your workplace and not paid…

…

For the period of your ARP, you applied for ten days of Long Service Leave (LSL) which was subsequently was approved by your Line Manager, Matt Lester.

32      The Department confirmed that disciplinary proceedings commenced at the conclusion of the Access Restriction Period in accordance with the Guidelines:

…which states that the “no work – no pay” principle would continue to apply during the course of any disciplinary process.

33      The Department points out that none of this correspondence expresses that a decision was made to suspend Mr Alach without pay as part of the disciplinary process, or under the PSMA. Indeed, Mr Alach himself indicates his understanding that such a step had not been taken. Instead, the correspondence and Notice of Appeal show Mr Alach’s understanding was that he had ‘been placed on’ leave without pay.

34      The Department’s point is fairly taken. The simplicity of its approach is appealing. However, the Board is required to act according to the substantial merits of the case without regard to technicalities or legal form: s 26(1)(a) of the IR Act. This requires that we approach the issue with a view to finding the true substance of the events when they occurred, rather than simply accepting the labels that the parties gave the events after the events occurred. In particular, we do not consider Mr Alach’s characterisation of the situation as ‘automated leave without pay’ means that the true characterisation cannot be, or also be, a suspension without pay.

35      We therefore propose to look beyond the June 2022 correspondence and Mr Alach’s articulation of his grounds of appeal to determine whether or not there was an appealable suspension decision.

PSMA provisions about suspension

36      At the outset, we observe that the provisions of the PSMA are not necessarily the only or exclusive source of an entitlement to direct an employee not to attend work or to withhold an employee’s pay. Common law principles, the employment contract and industrial instruments may also apply, to the extent that they are not inconsistent with the PSMA: Director General, Department of Justice v The Civil Service Association of Western Australia Incorporated [2003] WAIRC 07994; (2003) 83 WAIG 908 (Bowles).

37      To determine whether there was a suspension decision under s 82 of the PSMA requires us to consider the proper construction of s 82 and its application to the present circumstances.

38      Section 78 of the PSMA relevantly provides:

78. Appeals etc. against some decisions under s. 79, 82A, 82, 87, 88 or 92

(1) Subject to subsection (3) and to section 52, an employee or former employee who —

(a) is, or was, a Government officer within the meaning of section 80C of the Industrial Relations Act 1979; and

(b) is aggrieved by —

…

(iii) a decision made under section 82 to suspend the Government officer on partial pay or without pay; or

…

may appeal against that decision or finding to the Industrial Commission constituted by a Public Service Appeal Board appointed under Division 2 of Part IIA of the Industrial Relations Act 1979, and that Public Service Appeal Board has jurisdiction to hear and determine that appeal under and subject to that Division.

…

39      Section 81(1)(a) of the PSMA provides:

(1) If an employing authority of an employee is made aware, or becomes aware, by any means that the employee may have committed a breach of discipline, the employing authority may —

(a) decide to deal with the matter as a disciplinary matter under this Division in accordance with the Commissioner’s instructions;…

40      Section 82 of the PSMA provides:

82. Suspending employee pending decision on breach of discipline or criminal charge

(1) If —

(a) an employing authority has decided to act under section 81(1)(a) in relation to an employee; or

(b) an employee is charged with having committed a serious offence,

the employing authority may, in accordance with the Commissioner’s instructions, suspend the employee on full pay, partial pay or without pay.

(2) Subject to subsection (3) —

(a) a suspension arising from a decision referred to in subsection (1)(a) has effect until a decision is made under section 82A(2) or (3) or 88 in respect of the suspected breach; or

(b) a suspension arising from a charge referred to in subsection (1)(b) has effect until the criminal charge or any action that the employing authority is considering taking under section 92 has been finalised.

(3) The employing authority may at any time remove, or vary the terms of, the suspension.

(4) Unless the employing authority otherwise directs, any pay withheld under subsection (1) is forfeited to the State if —

(a) it is decided to take disciplinary action with respect to the employee for the breach of discipline; or

(b) the employee is convicted or found guilty of the offence concerned or another serious offence.

(5) An employee is entitled to have any pay of the employee that is withheld under subsection (1) and not forfeited under subsection (4) restored to the employee.

41      The Commissioner’s Instruction referred to in s 82(1) is Commissioner’s Instruction 3 Discipline – General (CI 3). In relation to suspension under s 82 of the PSMA it provides:

2. Suspension (section 82 PSM Act)

2.1 Subject to 2.2, before any proposed suspension may take effect, the employee must be provided with a reasonable opportunity to respond in relation to the proposed suspension and this response must be genuinely considered by the employing authority.

2.2 Prior opportunity to respond in relation to a proposed suspension is not required where the employing authority holds a belief based on reasonable grounds that the employee’s presence on workplace premises poses a serious risk to:

a. employee/public safety; or

b. the integrity of evidence relevant to the disciplinary matter; or

c. the operations of the organisation; or

d. the investigation of the disciplinary matter.

2.3 In instances where the employee has been suspended without a prior opportunity to respond, that suspension may only be suspension on pay and the employing authority is to provide the employee with the opportunity to respond and genuinely consider that response, to any proposal to continue the suspension.

2.4 In each case of suspension where forfeiture of pay is applicable, the employing authority is required to give consideration to whether forfeiture is, or is not, to occur, and require supporting rationale for the decision.

42      The first observation we make about the power to suspend in s 82 is that, by using the word ‘may’, it confers a discretion on the employing authority whether to suspend an employee and in what form suspension should take: Walker v Director General, Department of Justice [2003] WAIRC 08495; (2003) 83 WAIG 1879 at [15]. Suspension is not an automatic or inevitable consequence of a matter being dealt with as a disciplinary matter.

43      Second, suspension cannot occur before, relevantly, a decision to act under s 81(1)(a) is made: Mann v Employing Authority, Government Employees Superannuation Board [2007] WAIRC 01324; (2007) 88 WAIG 66. As His Honour Industrial Magistrate Cicchini said at [25]:

…The [s 82] power to suspend commences immediately the disciplinary process starts and continues throughout the process until the proceedings are concluded…

44      Third, a suspension under s 82 is closely linked to the disciplinary process and its outcomes. Under s 82(2), suspension has effect until a decision is made in relation to the disciplinary matter. The forfeiture or restoration of pay for the period of the suspension also depends on the outcome of the disciplinary matter.

45      Fourth, s 78 describes the power exercised under s 82 as a ‘decision made under section 82’ indicating that a suspension which can be the subject of an appeal must involve a decision maker exercising the power under s 82, not just a practical consequence of events, circumstances or decisions occurring outside the exercise of that power.

46      Fifth, s 82 provides that suspension can be with full pay, partial pay or without pay. Suspension is first concerned with exclusion from the workplace. The financial consequences accompanying exclusion from the workplace are a separate element of the decision to suspend.

47      Finally, the power to suspend an employee is constrained by a requirement that the power be exercised ‘in accordance with the Commissioner’s instructions’. CI 3 is expressed to contain ‘the minimal procedural requirements’ to be followed by employing authorities when dealing with disciplinary matters. It clearly requires that ‘before any proposed suspension without pay may take effect’ the employee must be provided with a reasonable opportunity to respond in relation to the proposed suspension.

48      All of these features of the relevant parts of the PSMA point to a decision made under s 82 being something that goes hand in hand with a disciplinary matter. A s 82 suspension decision is a step that may be taken in the course of a process under s 81(1)(a). To put it another way, a s 82 decision is dependent on there being a s 81(1)(a) process. It is not something that can occur independently of such a process.

Was withholding Mr Alach’s pay part of a disciplinary process?

49      We will now apply our conclusions about the meaning of s 82 to the facts of this case.

50      Since at least 13 January 2022, the Guidelines set out how the Access Restriction Period applied: employees who had not provided evidence of receiving a booster vaccination or evidence of an exemption were unable to attend work from a notified date.

51      Mr Alach was first warned that he would be excluded from the workplace if he was not booster vaccinated or exempt on 23 March 2022, when the Department wrote that an Access Restriction Period as described in the Guidelines would apply to him from 29 March 2022.

52      On 29 March 2022, the Department informed Mr Alach that ‘your access restriction period has formally commenced’.

53      Clause 4.1 of the Guidelines prohibited a disciplinary process from starting before 13 April 2022, being 2 weeks after the Access Restriction Period started. The Guidelines did not compel a disciplinary process to start after that time, or at all.

54      While the withholding of pay coincided with the date of the commencement of the disciplinary process:

(a) exclusion from the workplace started on 29 March 2022; and

(b) Mr Alach was only paid up to 12 April 2022 because the Access Restriction Period that would otherwise have started on 29 March 2022 was substituted with approved leave in accordance with Part 5 – Step 3 of the Guidelines.

55      The disciplinary process started on 13 April 2022 when the notice of that date was issued. It could not have started earlier.

56      Mr Alach’s exclusion from the workplace, however it is characterised, commenced before the disciplinary process started and independently of the disciplinary process. Had Mr Alach received a booster vaccination or an exemption before 13 April 2022, the disciplinary process might not have commenced at all, yet he would still have been excluded from the workplace until that point.

57      Further, it would be contrived to treat the financial sanction associated with the exclusion from the workplace as only commencing on 13 April 2022. Mr Alach received pay in the meantime, but that pay was associated with a reduction in his long service leave balance. The reduction in his long service leave balance could also be characterised as a financial sanction, which occurred from 29 March 2022. Not only did Mr Alach’s exclusion from the workplace commence before the disciplinary process, a financial consequence did too.

58      These matters lead us to conclude that there was no decision made under s 82. Mr Alach’s exclusion from the workplace and non‑payment was not the consequence either of a disciplinary process or a decision to suspend under s 82.

59      Mr Alach argued that the ‘initial decision’ disallowing him from working ‘equates’ to suspension. Mr Alach appears to accept that the relevant decision was made when he was directed not to attend work, following the process set out in the Guidelines, which was clearly a point in time before the disciplinary process commenced.

60      Indeed, Mr Alach initially submitted that the decision to take disciplinary action was a continuum that started before 13 April 2022. He said the Policy and Guidelines which contemplated disciplinary action in certain circumstances were part of the decision to take disciplinary action, setting up the conditions for application of the ‘no work as directed, no pay’ position taken in the Guidelines.

61      The main difficulty with this submission is that the Guidelines themselves expressly preclude disciplinary action being taken until 2 weeks after the Access Restriction Period has started. Further, the Guidelines do not require that any disciplinary action be taken after the Access Restriction Period. Rather, there remains a discretion whether to take disciplinary action or not.

62      Mr Alach characterised the circumstances as the Department ‘enabling suspension to happen without suspension happening’. In other words, he says that the situation was manufactured to create what was in reality, a suspension circumventing the PSMA provisions.

63      To the extent that Mr Alach’s submission is that the effect of the direction not to attend work is the same as the effect of a suspension, he is clearly correct. But that does not get him over the line. The appealable decision is the exercise of the power in s 82, not the effects of the employer’s actions, regardless of the source of power.

64      Mr Alach disputes the Department’s right to withhold pay under the ‘no work as directed, no pay’ principle. Essentially, he says that it was the Department that precluded him from working and because he was able to work remotely, he remained willing and able to work. He says the principle does not apply when an employee tenders service but is prevented by the employer from working. He says the Department’s refusal to permit him to work remotely had this effect, because its own Guidelines allows approval to be given for employees to work from home. He had been working from home until that point. The Department chose to withdraw further approval.

65      Mr Alach raises serious and respectable issues concerning the application of the law concerning ‘no work as directed, no pay’ in his circumstances. The Guidelines appear to implicitly accept that the principle only applies if an employee is ‘…unable to attend work due to not having been administered a Booster vaccination…’ (emphasis added). There does not appear to have been any consideration given to what this meant, or how it applied in Mr Alach’s particular circumstances. We can easily sympathise with Mr Alach’s sense of grievance.

66      One incidental issue that complicates the application of the ‘no work as directed, no pay’ principle in this case is that Mr Alach contracted COVID‑19 during the period 13 April 2022 to 28 April 2022. No medical evidence was before us to establish whether Mr Alach was able to perform his work while infected and infectious. We were told that Mr Alach applied for and was granted one day of paid COVID‑19 leave for 28 or 29 April 2022, indicating that he was at least unfit for work 12 or so days after first contracting COVID‑19, and therefore not ready, willing and able to work at that time.

67      Ultimately, we do not consider we need to make any findings about whether or not the Department was legally entitled to withhold Mr Alach’s pay. In Bowles, the Full Bench of the Western Australian Industrial Relations Commission confirmed that the ‘no work no pay’ principle was the law in Western Australia even where the failure to render service by an employee was caused by the unlawful act of an employer: per Sharkey P at [48]‑[53].

68      Further, even if the Department was wrong in its application of the common law principle, the Access Restriction Period commenced on 29 March 2022. It was from that time, some 2 weeks before the disciplinary process commenced, that Mr Alach was prevented from working, whether that was as a result of his inability to work or because the Department prevented him from doing so. The point is, it was disconnected from the disciplinary process.

69      Of course, if Mr Alach is right, and Department had no right to withhold his pay, then he can seek recourse for any underpayment elsewhere. That is not a matter for the Board. Rather, it concerns Mr Alach’s right to payment of salary under his employment contract and/or applicable industrial instruments. These reasons should not be read as an indication of whether or not Mr Alach could be ‘placed on’ leave without pay or whether or not the Department complied with the Government Officers Salaries, Allowances and Conditions Award 1989 and Mr Alach’s employment contract.

Mr Alach’s other submissions

70      Mr Alach filed written submissions which considered the advice from the Chief Health Officer to the Premier of Western Australia, and whether the Department’s booster vaccination related policy was reasonable in light of that advice, particularly as it applied to Tier 3 employees. These submissions are purely academic. They go to the merits of the allegations against Mr Alach in the disciplinary process, but that process was discontinued with no findings against Mr Alach.

71      Mr Alach also submitted that the Department’s actions were punitive, made under a coercive policy and did not follow WorkSafe or public health principles. Again, these submissions go to the reasonableness of the Department’s Policy and Guidelines, not whether there was a s 82 suspension. They imply that what aggrieves Mr Alach is the Policy and Guidelines themselves, not a suspension decision connected with a disciplinary process.

Outcome and Orders

72      Mr Alach has not persuaded us that, as a matter of fact, a decision was made by the Department to suspend him without pay under s 82 of the PSMA. Mr Alach’s grievance, in substance, concerns the Policy and Guidelines and the refusal to permit him to work remotely. In particular, he takes issue with the Guideline’s reliance on the no‑work as directed, no pay principle to justify not paying employees who are directed not to attend work whilst uncompliant with the Policy’s requirements. However, no appeal lies under s 78 of the PSMA from any of these kinds of decisions.

73      Accordingly, the Board has no jurisdiction in this matter. The appeal will be dismissed.