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

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00298

DELIVERED : Thursday, 18 May 2023

FILE NO. : PSAB 64 OF 2022

Appellant

AND

Director General, Department of Transport

Respondent

CatchWords : Public Service Appeal Board – Dismissal – Mandatory requirement to wear a face covering or mask and declare vaccination status – Lawful direction to return to work wearing a mask and to declare vaccination status – Employee absent from work without authorisation – Procedural fairness – Dismissal proportionate response to conduct – Decision to dismiss upheld

Legislation : Public Sector Management Act 1994 s 78, s 80(c), s 80A, s 82A

  Industrial Relations Act 1979 s 80I(1)(b)

Result : Application dismissed

Representation:

Appellant : Ms S Kos on her own behalf

Respondent : Mr M McIlwaine of counsel

Case(s) referred to in reasons:

Csomore v Public Service Board of New South Wales (1987) 10 NSWLR 587

Deborah Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728; (2017) 97 WAIG 1525

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

Jessica Heller-Bhatt v Director General, Department of Communities [2022] WAIRC 00719

T. Mollinger v National Jet Systems Pty Ltd Print R3130 (AIRCFB, Giudice J, Polites SDP, Gregor C, 18 March 1999); [1999] AIRC 285

Sanja Spasojevic v Speaker of the Legislative Assembly [2021] WAIRC 00641 (Spasojevic No 1)

Sanja Spasojevic v Speaker of the Legislative Assembly [2023] WAIRC 00001 (Spasojevic No 2)

Selvahandran v Peteron Plastics Pty Ltd (1995) 62 IR 371

Case(s) also cited:

Gary Mark Raxworthy v The Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266

Krishna Thavarasan v The Water Corporation [2006] WAIRC 04089; (2006) 86 WAIG 1434

Michael John Millward v Chief Executive, North Metropolitan Health Service [2021] WAIRC 00152

Reasons for Decision

1         This is the unanimous decision of the Public Service Appeal Board (Board).

2         In this appeal, Safeta Kos (appellant) has applied to the Public Service Appeal Board (Board) to adjust the decision the Director General, Department of Transport (Department), made to terminate her employment.

3         The appellant who was prior to her dismissal, employed by the Department as a “Group 3 Governance Assurance Officer” had not attended work since 22 February 2022. Her absence was initially because the appellant was not prepared to wear a face mask at work, which was a requirement of a Public Health Order (PHO) that applied to her workplace.

4         A number of PHOs were made in preparation for the opening of Western Australia’s borders after they were closed in response to the COVID 19 Pandemic. Although it appears the appellant also had some difficulty with the requirement to provide evidence of her vaccination status, the direction the appellant took particular exception to was the requirement to wear a face mask.

5         Whilst the appellant continued to be absent from work, the PHO which imposed the requirement to wear a face mask at work was lifted. Despite this change, the appellant did not return to work, make an application for annual leave, or provide a medical certificate or other evidence to justify her absence.

6         On 3 August 2022 the Department dismissed the appellant for being absent from work without authorisation (dismissal decision).

7         On 24 August 2022 the appellant filed an appeal against the dismissal decision (appeal). By way of relief, the appellant sought an order that would see her reinstated to her former position. 

8         In the paragraphs that follow, the Board provides its reasons as to why we have dismissed the appeal.

Principles to be applied in the appeal

9         The appeal is brought under s 78 of the Public Sector Management Act 1994 (WA) (PSM Act) and s 80I(1)(b) of the Industrial Relations Act 1979 (IR Act).

10      Part 5 of the PSM Act applies to public service officers and other prescribed employees (public sector employees) in relation to any suspected breaches of discipline, including acts of misconduct.

11      Under s 78 of the PSM Act, a public sector employee may appeal a decision to take disciplinary action to a Public Service Appeal Board. The Board is a constituent authority of the Commission and exercises jurisdiction under the IR Act when hearing and determining such appeals. Under s 80I of the IR Act, the Board may “adjust” the matters referred to in s 80I(1).

12      Under s 80 of the PSM Act, a public sector employee who commits an act of misconduct commits a breach of “discipline” and is liable to face disciplinary action. Section 80A provides that ‘disciplinary action’ includes a reprimand, fine, transfer, reduction in remuneration or classification and dismissal. Section 82A sets out how an employing authority deals with a disciplinary matter.

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

14      The Board is empowered to review the Department’s decision de novo: see Deborah Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728; (2017) 97 WAIG 1525.

15      This means the Board is able to decide the matter afresh, on the evidence before it, not merely on the basis of whether the Department made the right decision available to it at the time. It also means an appeal board has much greater scope to substitute its own view for that of the Department. In the case of disciplinary action for misconduct, it is for the employer to establish on the evidence that the misconduct occurred: see Harvey at [24]-[25] citing Gary Mark Raxworthy v The Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266; Krishna Thavarasan v The Water Corporation [2006] WAIRC 04089; (2006) 86 WAIG 1434. Also see Sanja Spasojevic v Speaker of the Legislative Assembly [2021] WAIRC 00641 (Spasojevic No 1) at [36] – [37].

16      When determining matters de novo, the Board makes its own decision as to whether the appellant engaged in the misconduct alleged: see Harvey at [31] and [65].

17      The Department’s decision is not to be totally disregarded by the Board. However, a hearing de novo does not necessarily mean the Board must re‑hear every aspect of the allegations afresh. The matters to be considered in the appeal will largely depend on the circumstances of the particular case: see Harvey at [29]-[30] and Spasojevic No 1 at [40]-[44].

Evidence and submissions

18      In the lead up to the hearing, the parties were directed to file any witness statements and outlines of submissions. Neither party filed any witness statements.

19      Although the appellant did not file an outline of submissions pursuant to the Board’s directions, she was given an opportunity to make oral submissions during the hearing.

20      The Department filed an outline of submissions which it adopted and relied upon at the hearing.

21      The evidence in this appeal was drawn from the following documentary sources:

(a) Attachments to the Appellant’s application;

(b) Attachments to the Department’s response;

(c) A Bundle of Agreed Documents;

(d) A bundle of documents the Department filed; and

(e) Document which the parties provided in response to specific requests from the Board.

22      The documents described were collated and assembled as an agreed Book of Documents. The appellant and the Department both confirmed they were content for the matter to be decided by reference to the evidence contained in the Book of Documents.

23      Relying on the Book of Documents, the Board was able to reach its factual findings about the events which culminated in the dismissal decision. A chronological summary of this evidence is set out below.

The appellant’s employment with the Department

24      The appellant commenced employment with the Department on 4 August 2008. She performed various roles on a permanent full-time basis. From 13 March 2018 until her dismissal, the appellant was employed as a Governance Assurance Officer, which is a Level 3 position.

25      The appellant was, for the period 1 February to 17 March 2022 scheduled to “act up” into a Level 4 Senior Business Analyst role. Upon completion of this work, the appellant was, on 21 March 2022, to return to her substantive Governance Assurance Officer role.

26      It is not in dispute the appellant had no disciplinary history with the Department. The appellant submitted and we accept, that she was committed to and loved her job.

Mask wearing directions

27      On 29 January 2022 the State Emergency Coordinator issued the COVID Transition Face Covering Directions (Mask directions) which required, in the absence of a medical exemption, the appellant to wear a face mask/covering (mask) while she worked in the Department’s offices.

28      The Mask directions applied to all of the Department’s employees. An exemption from wearing a mask could only be provided by a doctor with the issuance of a prescribed form.

Appellant’s response to the Mask directions

29      Perhaps expecting the Mask directions were about to issue, the appellant sent a letter to the Department the day before on 28 January 2022. The subject of the letter was:

RE: Conditional Acceptance of Offer for COVID Mask Mandate

30      By this letter, which was addressed to Iain Cameron – Managing Director, Department of Transport (Cameron), the appellant sought detailed information about the Mask directions. Some of the matters she raised included questions on the legal right of the Department to direct employees to wear masks and whether wearing a mask would cause respiratory conditions in the wearer.

31      The appellant sought guarantees from the Department and placed a series of conditions on her compliance with the directions as follows:

i. You, Iain Cameron as Managing Director of Department of Transport, confirm that I will suffer no harm;

ii. Following acceptance of this, the offer ‘must be signed by a fully qualified doctor who will take full legal and financial responsibility for any injuries occurring to me, and/or from any interactions by authorised personnel regarding the mandated mask requirements;

iii. If I should have to decline the offer cited above by Iain Cameron as Managing Director of the Department of Transport not fulfilling obligations herein, please confirm that it will not compromise my ability and right to attend work without a mask and that I will not suffer prejudice and discrimination as a result, and I would also advise that my inalienable rights are reserved.

Refusal to wear a mask

32      Despite the Mask directions, the appellant attended her workplace on 4 February 2022 without wearing a mask. Managers from the Department directed the appellant to leave the workplace. The appellant was told that if she was not prepared to wear a mask at work then she would have to stay at home and utilise leave entitlements or take leave without pay until she complied with the mask directions.

33      On 15 February 2022 the appellant sent a further letter to Cameron. In this letter, the appellant continued to press her requests for information about the Mask directions. She also repeated the conditions of her return to work outlined in her letter of 28 January.

34      On 17 February 2022 the Department in a letter from Isabeau Korpel – Acting Executive Director People and Culture (Korpel) responded to the appellant’s letters of 28 January and 15 February. In her response, Korpel explained the Department did not have a discretion to ignore or make exceptions to the Mask directions or any other PHOs, including those relating to mandatory vaccinations.

35      Despite Korpel making it clear the Department was required to follow the Mask directions, on 22 February 2022, the appellant attempted to return to work without wearing a mask. As happened on 4 February 2022, the appellant was told to leave the workplace.

36      Following this, the Department, in an email from Alan Bates - Process Support Co-ordinator, told the appellant she would, in the absence of a valid medical exemption, need to utilise her “existing leave entitlements”.

22 February letter from the appellant to the Department

37      On 22 February 2022, the appellant sent an email and a further letter to the Department. The letter confirmed the appellant was not prepared to accept the Mask directions, which she described as an offer from the Department to provide a “mandated medical prevention procedure” (22 February letter). The appellant also continued to press the conditions upon which she would return to work wearing a mask from her letters of 28 January and 15 February 2022.

38      The email which attached the 22 February letter, raised different matters. Firstly, the appellant characterised the direction she received to leave the workplace because she was not wearing a mask, as a request, which the appellant said she was prepared to accept if her absence was treated as “stress leave”.

39      Secondly, the appellant claimed the Department had breached various parts of its Code of Conduct (Code) by telling her to leave the workplace. Although she referred to various sections of the Code in her email, the appellant did not provide any details of her allegations.

Department’s response and personal leave granted

40      On 1 March 2022, Cameron sent a letter to the appellant in which he again confirmed the Department was required to follow the Mask directions. Whilst he stated he understood the appellant was “anxious” about the Mask directions, he urged her to raise any medical concerns, including a possible medical exemption from wearing a mask, with her doctor. He also re-stated the direction the appellant had to wear a mask at work.

41      Following Cameron’s letter, the appellant obtained and submitted a medical certificate which declared her unfit to work due to a “medical condition”, for the period 4 March to 18 March 2022. It is not in dispute the appellant was granted personal leave for this period.

42      On 17 March 2022, Kevin Davis – Manager Quality Assurance (Davis) sent an email to the appellant in which he made inquiries about her return to work, which at the time, was scheduled to happen on 21 March 2022. He also reminded the appellant she would have to wear a mask at work and to disclose whether she had been vaccinated.

43      The appellant responded to the email from Davis the same day. The appellant thanked him for advising her about her work requirements and indicated that she would keep him updated if the was any change to her current situation.

Initial communication between Ms Kos and Bruce Moore

44      The appellant did not return to work on 21 March 2022. In response to her absence, Bruce Moore – Director Governance and Intelligence (Moore) on Friday 25 March 2002 emailed the appellant. Moore confirmed that he would have preferred to speak to her directly, but was unable to do so because the appellant had asked for all contact to be in writing.

45      It is clear from Moore’s email that he was trying to find out why the appellant was still absent from work and to advise that her absence would be treated as leave without pay if she had not provided a medical certificate or received approval to take leave.

46      Moore invited the appellant to provide a response to his inquiry by 28 March 2022. Moore also confirmed he was open to supporting a leave request from the appellant, subject to available leave credits and understanding the reasons why she was not attending work.

47      On 26 March 2022 the appellant provided Moore with a statutory declaration dated 21 March 2022 (statutory declaration). In her statutory declaration, the appellant stated her doctor had been told “by the system”, that she was not allowed to issue any continuing medical certificates that were in any way related to COVID 19 and that her previous medical certificate was her final.

48      The appellant then stated her situation had not changed. She relied upon her statutory declaration in support of her claim for “stress leave”.

Further emails from Moore

49      In the period 30 March – 8 April 2022, Moore sent the appellant three emails in which he asked the appellant why she was absent from work and to outline any concerns regarding her return.

50      An email Moore sent to the appellant on 8 April 2022 was particularly detailed. It also put the appellant on notice regarding her ongoing absence from work and the requirement for her to wear a mask at work despite her opposition. On the issue of her absence from work, Moore stated:

As you know, an employee is to attend work or support their absence with approved leave. If an employee doesn’t do this they are away from work without authorisation and given leave without pay until they return to work. I have been trying to work with you to either facilitate your return to work or approve a leave request to ensure you that you meet your obligations as an employee and continue to be paid.

51      Regarding the requirement for the appellant to follow the Mask directions, Moore said:

All correspondence from the MD, ED P&C and Director WFM has communicated that the Directions made under the Public Health Act 2016 and Emergency Management Act 2005 require you as a Group 3 employee to declare your vaccination status (including not vaccinated) and to wear a face mask in the workplace. The correspondence sent to you confirmed the Directions which apply to you are legally binding and are not subject to your conditional acceptance. It confirmed the Directions could only not apply if you have provided a valid exemption from meeting this legal requirement.

52      In his email, Moore issued the following directions that are relevant to the dismissal decision:

I require that you by Monday 11 April 2022:

1.  Support your absence from work by sending a leave request to me to take your existing leave entitlements which include personal (9 hours) and annual leave (69 hours) to cover your absence from work from 21 March 2022 – 4 April 2022;

2. Support your absence from work and any further absences from work by sending a leave request to me for leave without pay from 4 April 2022 to your requested return to work date; and

3. Log in to myHRspace remotely and declare your vaccination status which includes partially vaccinated, fully vaccinated or not vaccinated.

53      Moore also foreshadowed the following outcome in the event of non-compliance with his directions the following would occur:

If you do not undertake the abovementioned actions by cob 11 April 2022 you will be on leave without pay from 12 April 2022.

• A lawful direction will be issued to you to return to work by a certain date wearing a face mask and to declare your vaccination status.

….

• If you do not return to work and/or declare your vaccination status the Department will be obliged to initiate a disciplinary process.

….

Response to Moore’s 8 April email

54      On 11 April 2022, the appellant sent a lengthy reply to Moore’s 8 April email. In her email, the appellant declared her 22 February 2022 letter clearly stated her position, which the Board understands to mean the appellant would not be returning to work until the conditions she had outlined in her previous letters were met.

Department’s direction to return to work

55      On 22 April 2022, Korpel sent a letter to the appellant headed:

Lawful direction to return to work wearing a face mask and declare your vaccination status.

56      With this letter, the Department put the appellant on notice that it was required by law, to follow PHOs including the Mask directions.

57      Korpel indicated the Department had responded to all correspondence the appellant had sent since February 2022. She advised that PHOs were not subject to conditional acceptance by staff and the only circumstance in which the directions would not apply, was when a staff member had a valid medical exemption.

58      Korpel then directed the appellant to return to work at 9am on Wednesday 27 April 2022 wearing a mask or to provide a valid medical exemption from wearing a mask, prior to returning to work on 27 April.

59      Korpel also directed the appellant to declare her vaccination status by close of business the same day and went on to warn the appellant that if she failed to comply with these directions, she could face disciplinary action, including dismissal.

Reply to the direction to return to work

60      On 27 April 2022, the appellant sent a reply to the Department’s direction to return to work. In short, the appellant continued to demand that her return was dependent upon her previous conditions being met.

61      The appellant’s letter of 27 April stated:

… I have advised that my mental health, which I am seeing multiple doctors and am now medicated, has been adversely affected as a result of the treatment I have received from my employer…

62      The appellant did not however provide a medical certificate to verify the reason for her absence and provide the relevant evidence required to access her entitlement to paid personal leave.

Mask directions revoked

63      On 28 April 2022, the State Emergency Co-ordinator revoked the Mask directions. On 3 May 2022 Korpel emailed Kos and advised:

Good afternoon Safeta

I wanted to check in with you now the indoor face mask mandate has been lifted.  This means that employees are no longer required to wear a face mask at work

I trust this will alleviate your concerns around wearing a face mask and you will return to work.

Could you please advise on whether you intend to return to work? If so do you intend on returning to work?

Please respond by close of business on Thursday 5 May 2022.

Kind regards

Isabeau

64      The appellant did not respond to Korpel’s 3 May 2022 email.

Warning of impending disciplinary action

65      On 27 May 2022, Korpel sent a letter to the appellant which warned her of impending disciplinary action. In her letter Korpel noted the appellant had been absent from the workplace since 21 March 2022 and the Department had not had any further contact from her since 27 April 2022.

66      Korpel referred to her email of 3 May and noted the appellant had not replied. She again confirmed the Mask directions no longer applied and suggested that any concerns the appellant may have had about wearing a mask should not have prevented her from returning to work since 29 April 2022.

67      Korpel then directed the appellant to contact her by close of business 3 June 2022 to explain her reason for being absent from work and to advise when she intended to return.

68      After reminding the appellant of her obligations under the Department’s Leave Management Policy and that her current absence from work was unauthorised, Korpel warned the appellant that if her absence from work continued, she could face disciplinary action that could result in her dismissal.

69      By her letter, Korpel put the appellant on notice that her employment was in jeopardy if she did not comply with the Department’s directions.

Response to the warning of disciplinary action

70      On 3 June 2022, the appellant provided a response to Korpel’s letter of 27 May. The appellant referred to her letter of 22 February and asserted the directions she had received, including the direction to return to work without wearing a mask, were unlawful.

71      The appellant also demanded compensation for loss she claimed to have suffered due to the Department’s “unlawful actions”. Her letter did not provide any reasons as to why she thought the directions from Korpel were unlawful.

Proposed disciplinary action

72      On 1 July 2022, Cameron sent the appellant a letter responding to her 3 June 2022 response in which he said:

….

I take from your most recent response that you have no intention of immediately returning to the workplace to undertake the duties of your position nor do you intend to apply for leave in relation to your ongoing unauthorised absence. In my last letter to you I confirmed that if your ongoing absence continued without proper explanation then this would likely amount to a breach of discipline.

….

73      Cameron went on to confirm that he viewed the appellant’s ongoing absence from the workplace, without authorisation, to be an act of misconduct warranting disciplinary action under s 80(c) of the PSM Act. 

74      The disciplinary action he proposed was dismissal. After foreshadowing dismissal, Cameron gave the appellant 14 days until 15 July 2022 to respond to his letter. 

75      It is not in dispute the appellant did not reply to Cameron’s 1 July 2022 letter.

Termination of Employment

76      On 3 August 2022, the Department by way of letter dated 3 August 2022 dismissed the appellant from her employment (letter of dismissal).

77      Although dismissed for misconduct, the letter of dismissal confirmed the Department would pay the appellant four weeks wages in lieu of notice, along with any leave entitlements owing to her on termination.

Decision under appeal and relief sought

78      In her Form 8B Notice of Appeal, the appellant sought orders for two things. The appellant asked the Board to adjust the dismissal decision by reinstating her. She also sought an order for backpay for wages and other entitlements on and from 22 February 2022 to the date of her reinstatement.

79      The appellant challenges the dismissal decision on two bases; that she was denied procedural fairness and there were alternatives to dismissal the Department should have imposed instead of dismissing her. In relation to the second ground, the appellant takes issue with the severity of the disciplinary action that was taken against her.

Dismissal decision is the only decision that may be considered

80      In this matter, the only decision the Board is permitted to consider afresh is the dismissal decision and whether that decision should be adjusted by re-instating her.

81      Although the appellant may be aggrieved by the various directions the Department issued to her on or from 4 February 2022 which resulted in a loss of wages, the Board does not have the power to deal with those matters. This is because the wages and entitlements the appellant says she has lost from 22 February 2022 to the date of her dismissal were not due to the decision that is under appeal.

82      During the hearing the appellant conceded the dismissal decision was the only decision the Board could reconsider in the appeal. Having said this, the Board acknowledges the dismissal decision did not happen in a vacuum.

83      The sequence of events which preceded the appellant’s dismissal, including her responses to the various directions the Department issued provides the explanatory context in which the dismissal decision must be considered.

An employee’s obligation to follow reasonable and lawful directions

84      The issue that first arises when considering the dismissal decision afresh is whether the appellant was required to comply with the Mask directions.

85      Of relevance is the recent decision of Public Service Appeal Board in Jessica Heller-Bhatt v Director General, Department of Communities [2022] WAIRC 00719 (Heller-Bhatt) which summarised the law on an employee’s obligation to follow the directions issued by a public sector employer that are mandated under PHOs.

86      The Board drew to the parties’ attention to the decision in Heller-Bhatt prior to the hearing of this appeal. The respondent was the only party that addressed the decision of Heller-Bhatt in its submissions.

87      The Board in Heller-Bhatt noted at [93]:

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

88      At [94] and [95] the Board in Heller-Bhatt observed this reasoning was adopted and accepted as applying in a public sector employment setting. The Board noted:

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

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

His honour held at [23]:

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

89      As in Heller-Bhatt, the Board has adopted Justice Allanson of the Supreme Court of Western Australia’s reasoning in Finlay v Commissioner of Police as the Chief Executive Officer of the Department known as the Police Service (Department of Police) [2022] WASC 272 (Finlay) and followed it in this matter.

90      In Finlay, Allanson J held employer directions requiring public sector employees to be vaccinated as result of the issuance of public health orders, were both reasonable and lawful.

91      Allanson J concluded the issuance of such directions by employers would be justified for the purposes of managing statutory responsibilities for health and safety and responding to the risks of the pandemic for the workforce and others who may be affected.

92      Although the case in Finlay centred on directions, mandated by PHOs, requiring employees to be vaccinated, the Board takes the view the Mask directions, which were also subject of a PHO, fall into the same category. In short, the Department’s direction the appellant wear a face mask at work was a reasonable and lawful direction which the appellant was required to follow.

Consequences for an employee who refuses to follow a lawful direction

93      There are two potential consequences for employees who do not follow their employer’s reasonable and lawful directions.

94      The first consequence is that an employee who refuses to follow a reasonable and lawful direction may face disciplinary action, which could include dismissal.

95      A second consequence is the application of the well-known industrial principle of “no work no pay”. This principle which applied to the appellant, means an employee who does not perform work as directed is not entitled to payment: Csomore v Public Service Board of New South Wales (1987) 10 NSWLR 587 (Csomore).

96      Under this principle, the appellant’s entitlement to the payment of wages required her to perform the full range of work assigned to her and to follow all reasonable and lawful directions: Csomore per Rogers J at 595.

97      The no work no pay principle may also apply even where (as in this case), an employee who refuses to follow a reasonable and lawful direction is told to stay away from the workplace until they comply with that direction.

98      In these circumstances, and as the Public Service Appeal Board held in; Sanja Spasojevic v Speaker of the Legislative Assembly 2023 WAIRC 00001 (Spasojevic No 2) an employee who does not perform work as directed, is not entitled to be paid unless the employer allows the employee to use any accumulated leave entitlements.

Direction to take leave entitlements

99      In a case where an employee is directed to stay home in response to their refusal to follow a reasonable and lawful direction (as in this case), an employee is not entitled to be paid unless an employer allows the employee to use any accumulated leave entitlements, subject to any requirements that apply under any relevant industrial instrument.

100   In Spasojevic, the Board at paragraphs [54] - [56] set out the general principles that apply to an employee’s leave entitlements, noting:

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.

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.

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].

101   The appellant’s obligations to provide an explanation for her absence from work and the process to be followed when applying for leave were set out in the Department’s Leave Management Policy.

102   The Department’s Leave Management Policy which restates the obligations which apply under the industrial agreement that applied to the appellant’s employment with the Department was included in the Book of Documents.

Failure to follow the Mask directions

103   The evidence establishes that from as early as 4 February 2022, the appellant refused to comply with the Mask directions. She directly breached the Mask direction on two occasions by refusing to wear a mask in the workplace, on 4 and 22 February 2022.

104   The evidence also shows the appellant was insistent, she would not return to the workplace wearing a mask unless the Department met the conditions set out in her letters of 28 January and 17 February 2022.

Department’s response to the refusal to wear a mask

105   Rather than moving straight to disciplinary action, the Department’s response to the appellant’s refusal to comply with the Mask directions was to direct her to remain at home and to utilise her leave entitlements.

106   For the period 4 - 17 March 2022, during which the appellant had a medical certificate the appellant was authorised to be absent from work.

107   From 21 March 2022, the situation for the appellant was much different. Despite claiming in her statutory declaration, she was not fit for work, the appellant did not provide any medical evidence to verify this. In addition, the appellant continued to press the Department to meet the conditions of her return.

108   From 21 March until 29 April, it is reasonable to conclude the appellant was in breach of two lawful directions for which the Department could have commenced disciplinary action. One was her continued refusal to wear a mask at work, the other being absent from work without authorisation. The Department’s response on both matters did not waiver.

109   On 3 May 2022, circumstances changed significantly for the appellant in that the Mask directions were lifted. Despite the appellant’s previous refusal to wear a mask at work, the Department asked her to return.

Department’s response to the appellant’s absence from work

110   From 3 May 2022, the issue for the appellant then evolved into the reason for which she was ultimately dismissed; her absence from work without authorisation and her non-compliance with the Department’s Leave Management Policy.

111   In addition to its requests for the appellant to provide an explanation for her absence from work in the period 30 March - 22 April 2022, the Department gave the appellant at least two further opportunities to return to work or to provide medical evidence to explain why she was absent from work before it commenced disciplinary action.

112   Although from the Applicant’s perspective, returning to work might have left any dispute over wages lost prior to her return unresolved, it is reasonable to conclude both from the evidence and the amount of the latitude the Department gave her, that her dismissal was not inevitable.

Was the dismissal decision valid?

113   When deciding whether to adjust the dismissal decision it is open to the Board to consider whether the Department had a valid reason for the appellant’s dismissal.

114   In an employment context, whether in the public sector or otherwise, a valid reason for dismissal is “sound, defensible or well founded” and one that is not “capricious, fanciful, spiteful or prejudiced”. In considering whether a reason is valid, it must be remembered that this requirement applies in the practical sphere of the relationship between an employer and an employee, where each has rights and privileges and duties and obligations, conferred, and imposed, on them. The provisions must be applied in a practical and common-sense way to ensure “the employer and employee are each treated fairly”: Selvahandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at (373).

115   Whether in the public or private sector, an employee’s ongoing refusal to provide an explanation for being absent from work, supported by medical evidence, would provide a valid reason for an employee’s dismissal. In a public sector setting it would similarly constitute a breach of discipline within the meaning of s 80(c) of the PSM Act.

116   There is little doubt the appellant’s ongoing conduct by refusing to comply with the Department’s directions to return to work after 3 May 2022 was inconsistent with the continuation of her employment: Heller-Bhatt at [108].

Consideration – Was the appellant denied procedural fairness?

117   Turning to the appellant’s first ground of appeal, the Board does not accept the appellant was denied procedural fairness.

118   In an employment context, the obligation to provide procedural fairness requires an employee be given an opportunity to respond to any allegations of unsatisfactory performance or conduct. It also requires an employee be notified of the reason for any proposed disciplinary action or dismissal before a final decision is made to take the proposed action. This is to give an employee an opportunity to provide a response to the proposed reason for the dismissal and to suggest alternative disciplinary outcomes: Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [73].

119   As the evidence in the Book of Documents shows, there was a very long runway to the dismissal decision. We have also concluded the appellant, in the period from 21 March 2022 until the date the dismissal decision was made, should have been under no illusion that she had embarked upon a course that placed her employment in jeopardy.

120   The process the Department followed was procedurally stepped out, which gave the appellant an opportunity to respond to matters for which there were potential adverse consequences. The opportunity the Department gave the appellant to respond to its conclusion she had committed a breach of discipline is but one example of the appellant being afforded procedural fairness during the lead up to her dismissal.

121   The appellant was afforded procedural fairness in that she was given 14 days to explain why she should not be dismissed. The appellant’s dismissal at that stage was “proposed” and she was given an opportunity to provide a response to the foreshadowed disciplinary action.

122   During the hearing, the appellant conceded that despite being afforded the opportunity to respond to her proposed dismissal, she declined to do so.

123   The appellant’s explanation as to why she did not try and return to work after the Mask direction was lifted, was provided in the following exchange:

KUCERA C: So from about 27 May right up until July, it was pretty clear that the Department has indicated that it was telling you that it was looking at terminating your employment.

Why didn’t you go back to work or try and go back to work at that stage?

KOS, MS: Because I believe that my situation was still the same as at 22 February. No one has followed up on my claims of the – the breaches against me. Um, I was being dismissed for all – anything I had said. Nothing was taken seriously from my side.

124   Whilst the appellant may have felt this way, it does not provide a basis to conclude she was denied procedural fairness. The provision of procedural fairness does not require the employer to ensure an opportunity to respond is actually taken up by the employee concerned: T Mollinger v National Jet Systems Pty Ltd Print R3130 (AIRCFB, Giudice J, Polites SDP, Gregor C, 18 March 1999); [1999] AIRC 285 (cited in Michael John Millward v Chief Executive, North Metropolitan Health Service [2021] WAIRC 00152 as Mollinger v National Jet Systems Pty Ltd (C no 5 of 1998, unreported, Dec 279/99 M Print R3130)).

125   From the evidence, there is no basis to conclude the appellant was denied procedural fairness. Moreover, it is reasonable to conclude the Department was more than tolerant and even accommodating, in circumstances where it could have taken disciplinary action much sooner.

Consideration – Was there an alternative to the appellant’s dismissal?

126   In relation to the appellant’s second ground of appeal, the Board does not accept there were alternatives to dismissal.

127   When reaching this conclusion, the Board considered several factors, which when viewed together, weighed against the relief the appellant sought. These include the appellant’s failure to attempt a return to work at any time after 3 May 2022; the opportunities the Department gave the appellant to comply with the Department’s reasonable and lawful directions; the payment of notice on termination; the length of time she spent off work; the appellant’s ongoing refusal to return to work despite not having a medical certificate; as well as a factor favourable to the appellant, her lack of a prior disciplinary history.

128   The Board is mindful the appellant had no prior or relevant disciplinary history and the reason for which she was dismissed did not involve dishonesty. We considered this for two reasons.

129   Firstly, it provides context as to why the Department did not immediately take disciplinary action following the appellant’s refusal to wear a mask at work.

130   Secondly, it also explains why the Department accommodated the appellant’s absence from work for so long, despite her failure to comply with its Leave Management Policy.

131   The Board had regard to the appellant’s disciplinary history because the Board’s view may have been different if the appellant had prior to 3 August 2022, attempted return to work but still faced dismissal.

132   This is because from 3 May 2022, after the Mask directions were revoked, there was no defensible reason why the appellant could not have returned to work. Even if the appellant was correct in her view the Mask directions were unlawful, notwithstanding the decision in Finlay, the situation had now changed and the requirement to wear a mask at work was no longer a barrier to the appellant’s return.

133   Despite this, the appellant remained steadfast in her belief that she was in the right. Regrettably, it was her inability to compromise that is the source of her down-fall. It would not have been fair to the Department if the Board had adjusted the dismissal decision and re-instated the appellant in circumstances where she was not prepared to follow reasonable and lawful directions.

134   We have therefore concluded the appellant’s dismissal was in the circumstances of this case, a proportionate response to the conduct for which she was dismissed.

Conclusion

135   For all of the reasons set out in the preceding paragraphs we have decided to dismiss the appeal.

136   Orders to follow.