REFERRAL TO COMMISSION UNDER PUBLIC SECTOR MANAGEMENT ACT 1994

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00324

DELIVERED : Tuesday, 13 June 2023

FILE NO. : APPL 36 OF 2022

Applicant

AND

William (Bill) Johnston Minister for Corrective Services

Respondent

CatchWords : Industrial Law (WA) – Chief Health Officer WA Correctional Facility Entrant (Restrictions on Access) Directions – Employer Direction to be vaccinated against COVID-19 not complied with – Breach of discipline – Decision to dismiss made under s 82A(3)(b) of the Public Sector Management Act 1994 (WA) – Subjective reasons for not complying with the Employer Direction – Whether subjective belief lessens culpability – Seriousness/gravity of conduct – Breach of discipline warranted dismissal – Inconsistent treatment of employees – Applicant treated differently from comparable employee in similar circumstances – Dismissal harsh – Reinstatement ordered – Quantum of compensation for remuneration lost to be determined

Legislation : Industrial Relations Act 1979 (WA)

Prisons Act 1981 (WA)

Public Health Act 2016 (WA)

Public Sector Management Act 1994 (WA) 

Result : Application upheld

Representation:

Applicant : Mr C Fordham of counsel

Respondent : Mr J Carroll of counsel

Case(s) referred to in reasons:

Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2017] WASCA 86; (2017) 97 WAIG 431

Blyth Chemicals Ltd v Bushnell [1933] HCA 8; (1933) 49 CLR 66

Capral Aluminium Ltd v Sae (1997) 75 IR 65; BC9703967

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

Donaldson v NSW National Parks & Wildlife Service [1997] FCA 837

Electricity Commission of New South Wales t/a Pacific Power v Nieass (1995) 81 IR 46

Fagan v William (Bill) Johnston Minister for Corrective Services [2023] WAIRC 00017; (2023) 103 WAIG 159

Falconer v Chief Health Officer [No 3] [2022] WASC 270

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

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

Holman v Telstra Corporation Ltd [2006] SAIRC 16; (2006) 153 IR 445

Inwood v Baxter & Co Pty Ltd [2022] FWC 792

Jones v Dunkel [1959] HCA 8

McManus v Scott-Charlton [1996] FCA 1820; (1996) 70 FCR 16

National Jet Systems Pty Ltd v Mollinger AIRC R3130, 18 March 1999

North v Television Corporation Ltd (1976) 11 ALR 599

Portilla v BHP Billiton Iron Ore Pty Ltd [2005] WAIRC 02604; (2005) 85 WAIG 3441

Public Transport Authority of Western Australia v The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch [2016] WAIRC 00236; (2016) 96 WAIG 408

R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan [1938] HCA 44; (1938) 60 CLR 601

Roman v Mercy Hospitals Victoria Ltd [2022] FWC 711

SERCO Gas Services (Vic) Pty Ltd v Alkemade AIRC R6090, 21 June 1999

Sexton v Pacific National (ACT) Pty Ltd [2003] AIRC 506

The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385

Reasons for Decision

1         Ms Penelope Fagan was employed by the Minister for Corrective Services as Bunbury Regional Prison’s Drug Detection Officer. Her job was to detect and prevent drugs and other contraband entering into Bunbury Regional Prison. She did that by conducting searches of prisoners, visitors, the premises and property. She also trained, maintained and handled a drug detection dog.

2         Ms Fagan’s role is critical for the safety and security of the prison, and community safety. The control of drugs entering prisons also reduces offender involvement in the justice system.

3         Ms Fagan was committed to her important work and diligently served the community and her Employer from 2018.

4         During the COVID‑19 pandemic, Ms Fagan’s work took a turn down a now familiar path.

5         The Chief Health Officer made a direction under the Public Health Act 2016 (WA) to put in place measures to address the unique risks posed by COVID‑19 in Western Australian prisons and correctional facilities to limit the spread of COVID‑19 to the vulnerable population in those facilities: Chief Health Officer WA Correctional Facility Entrant (Restrictions on Access) Directions (CHO Directions). Relevantly, the CHO Directions prohibited people from entering or remaining at prisons unless they were partially vaccinated against COVID‑19 from 1 December 2021 and fully vaccinated from 1 January 2022. Failure to comply with the CHO Directions was an offence, which could attract fines of $20,000 for individuals and $100,000 for bodies corporate.

6         To comply with the CHO Directions, the Director‑General of the Department of Justice directed that its employees and the Minister’s employees, including Ms Fagan, be vaccinated against COVID‑19 and provide evidence of vaccination or of any exemption (Employer Direction).

7         Ms Fagan refused. After a disciplinary process, her employment was summarily terminated.

8         Ms Fagan disputes her dismissal. She seeks reinstatement to her position. She does not contend that the Employer Direction was unlawful or unreasonable. She concedes that she failed to comply with the Employer Direction, and that the failure to comply was a breach of discipline.

9         Ms Fagan relies on three grounds to show that termination was unfair and harsh.

10      First, she says that in deciding to dismiss her, the Employer wrongly attributed to her knowledge that the Employer Direction was lawful. Ms Fagan says this was wrong, because at all times she mistakenly, but ‘firmly’ believed that the Employer Direction was unlawful or unreasonable. She says she was not ‘knowingly disobedient’. If the decision is tainted by such an error, it is oppressive.

11      Second, Ms Fagan says her culpability or the severity of her disobedience needed to be assessed in light of her genuinely and reasonably held (but mistaken) belief that the Employer Direction was unlawful or unreasonable. This ground and the first ground are two sides of the same coin. Both are based Ms Fagan having a subjective belief that she did not need to comply with the Employer Direction. For this ground to succeed, I must also find that she had the belief, that her belief was objectively reasonable, and that it reflects on the gravity of her breach. If this ground is made out, the dismissal decision is harsh.

12      Third, Ms Fagan says the sanction of dismissal was harsh in circumstances where other employees who failed to comply with the Employer Direction did not lose their jobs and continue to work for the Employer. In other words, she was treated unfairly.

Legal Framework

13      The decision to dismiss Ms Fagan was made under s 82A(3)(b) of the Public Sector Management Act 1994 (WA) (PSMA). That section provides that if an employing authority finds that an employee has committed a breach of discipline, the employing authority can take disciplinary action, which, by s 80A(g) includes dismissal. Under s 80(a), an employee who disobeys or disregards a lawful order commits a breach of discipline.

14      Ms Fagan was appointed to her position under the Prisons Act 1981 (WA). She is not a Government Officer within the meaning of s 80C of the PSMA.

15      Accordingly, Ms Fagan is able to refer the decision by her Employer made under s 82A(3)(b) of the PSMA to the Commission as if the decision was an industrial matter: PSMA s 78(2). The Commission has jurisdiction to hear and determine Ms Fagan’s referral: Fagan v William (Bill) Johnston Minister for Corrective Services [2023] WAIRC 00017; (2023) 103 WAIG 159.

16      The industrial matter that has been referred is a claim by Ms Fagan that she has been harshly, oppressively or unfairly dismissed from her employment: Industrial Relations Act 1979 (WA) (IR Act) s 29(b)(c). In this kind of industrial matter, the test is whether the right of the employer to terminate the employment was exercised so harshly or oppressively as to constitute an abuse of that right: The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385 at 386.

17      At the time of the dismissal, Ms Fagan was neither employed for a probationary period nor employed in a private home. Accordingly, the IR Act s 23A(2) factors are not relevant to this matter.

What knowledge did the Employer attribute to Ms Fagan?

18      The facts in this matter were largely agreed. The parties filed a Statement of Agreed Facts, and a book of Agreed Documents. In combination, these represented the evidence about the process that led to the decision to terminate Ms Fagan’s employment as well as the reasons for termination. The Employer did not lead any other evidence.

19      The Employer Direction was issued on 15 November 2021. It directed employees to:

• be vaccinated against COVID‑19 in accordance with Part 1 of the Schedule to this direction unless you are exempt from the requirements of the Directions; and

• provide evidence of your vaccination or of any exemption applying to you in accordance with Part 2 of the Schedule to this direction.

20      Part 1 of the Schedule required employees to have a first dose of vaccination by 1 December 2021 and be fully vaccinated by 1 January 2022.

21      According to the Department’s letter to Ms Fagan dated 20 December 2021, she was given until 9.00 am on 15 December 2021 to attend to the requirements of the Employer Direction and provide the Department with evidence of her compliance.

22      The disciplinary process against Ms Fagan started in December 2021. On 20 December 2021, Ms Fagan was advised that she had not complied with the requirement to be vaccinated and she would be referred to the Professional Standards Division for Assessment. A day later, she received a letter notifying her that the Department had decided to deal with a disciplinary matter under s 81 of the PSMA on the basis that:

…Following a review of the available information, the Department is concerned that you may have acted in manner that could, if proven, constitute a breach of discipline pursuant to s.80 of the Act.

23      The allegations were set out:

Allegation One

On 1 December 2021 at the Drug Detection Unit, you committed a breach of discipline contrary to section 80(a) of the Public Sector Management Act 1994, in that you disobeyed or disregarded a lawful order when you failed to be partially vaccinated against COVID‑19, or provide an exemption, before this date.

…

Allegation Two

On 1 December 2021 at the Drug Detection Unit, you committed a breach of discipline contrary to section 80(a) of the Public Sector Management Act 1994, in that you disobeyed or disregarded a lawful order when you failed to provide evidence of your partial vaccination against COVID‑19, or provide an exemption, before this date.

(emphasis added)

24      On 1 February 2022, the Director‑General wrote to Ms Fagan advising her that the investigation into the two allegations had been completed and an investigation report submitted to him for consideration, along with her response to the allegations. The Director‑General advised Ms Fagan that he had formed a preliminary view that it was open on the evidence for him to find she had committed the alleged breaches of discipline, as set out in the letter of 21 December 2021. He also stated that he proposed to take dismissal action in respect of each allegation.

25      The 1 February 2022 letter contains the following remarks which reveal the Director‑General’s reasoning:

…

In proposing this discipline action, I have taken into account that your conduct clearly disobeyed or disregarded the lawful order I issued on 15 November 2021 with the effect that you can no longer lawfully access the workplace to perform the duties required of your position as a Drug Detection Officer with the Department.

I acknowledge your response to the allegations dated 4 January 2022. The Public Health Directions are made under the Public Health Act 2016 (WA). The Department does not have a discretion in complying with the Public Health Directions in so far as they apply to employees. An employee can apply for a medical or temporary exemption from the Chief Health Officer, but you have not done so. The Department cannot relieve employees of the application of the Public Health Directions, which is in essence the justification for the Direction.

I have considered alternative disciplinary outcomes available under the Act including the possibility of transferring you to another work location or position in the Department or another public sector body where you are not required to access a correctional facility to carry out the duties of your role. I have concluded that this is not a feasible option in your case given the specificity of your role in the Department and the inherent requirement that you attend custodial facilities in‑person to effectively perform your role. The Department is not required to, in effect, create a new role or substantially change the nature of your role in response to your failure to comply with a Direction that would enable you to continue to carry out your existing role.

…

26      The disciplinary process was paused from 29 March 2022 to 4 May 2022 because judicial review proceedings had been commenced by other individuals in the Supreme Court, challenging the legality of the CHO Directions and the Employer Direction.

27      The final disciplinary outcome of dismissal was communicated to Ms Fagan by letter dated 26 May 2022. After setting out the steps taken in the disciplinary process, the Director‑General stated:

I have considered your response dated 14 May 2022 and I maintain my position that you have committed breaches of discipline regarding your failure to comply with my Directions. Accordingly, I am dismissing you from your employment with the immediate effect.

28      In other words, the preliminary view he formed on 1 February 2022 had not changed. That view was formed regardless of Ms Fagan’s subjective reasons for not complying with the Employer Direction.

29      Nothing in the communicated reasons for dismissal expressly states that any particular knowledge about the legality or requirement to comply with the Employer Direction was attributed to Ms Fagan. The findings are uncontentious. They are that the Employer Direction was not complied with and that the effect of non‑compliance was that Ms Fagan was unable to perform her duties. It is of course implicit in the findings that Ms Fagan knew about the Employer Direction, but not that her non‑compliance was accompanied by any particular state of mind.

30      Ms Fagan argued that the Employer must have attributed to Ms Fagan knowledge that she ‘wilfully disregarded an order that she knew to be lawful’. She says this finding is implicit in the ultimate decision to dismiss her, because, in order to have decided that her conduct justified dismissal, that is, that it was of such severity to justify dismissal, the Employer must have ‘imputed a wilful intent’.

31      To support this argument, Ms Fagan relies upon North v Television Corporation Ltd (1976) 11 ALR 599. In that case, the High Court took into account the employee’s subjective motivations for his conduct, in deciding whether his conduct was a repudiation of the essential conditions of the contract.

32      North v Television Corporation is authority for the principle that employee misconduct may justify summary dismissal where the employee's conduct is so seriously in breach of the employment contract that by standards of fairness and justice, the employer should not be bound to continue it.

33      The corollary is that breaches of contract of a non‑serious nature are not grounds for termination, even if the breach is misconduct.

34      I do not understand North v Television Corporation requires consideration of the employee’s subjective state of mind in every instance of misconduct. But, leaving that question aside, the fundamental problem with Ms Fagan’s case is that it involves backwards reasoning. She seeks to establish facts from legal principles.

35      Whether the Employer found that Ms Fagan knew the direction was lawful and that she was obliged to comply is a question of fact. I cannot make that finding of fact from an assumption that particular legal principles have been applied in the Director‑General’s reasoning. The law operates on facts, not vice versa. Inferences can be drawn from proven facts, but not from legal rules (unless the rules involve a presumption, like Jones v Dunkel [1959] HCA 8).

36      Ms Fagan’s submissions turn the fact-finding process on its head.

37      Ms Fagan must prove the facts on which she relies on the balance of probabilities. I am not satisfied that the Employer’s decision implicitly imputes to Ms Fagan knowledge that the Direction was lawful and that she was required to comply.

38      I accept that there may be circumstances where the subjective intention of an employee when not complying with a direction may be relevant to a finding of misconduct. Inadvertent or unintentional non‑compliance may be insufficient to warrant dismissal. For example, if an employee arranged to be vaccinated against COVID‑19, but the vaccination provider had run out of vaccination stock by the time the employee arrived for the vaccination. Or if an employee believed they had been fully vaccinated, but it transpired that an insufficient dose was administered for evidence of vaccination to be provided.

39      This was not a case where Ms Fagan’s non‑compliance with the Employer Direction was inadvertent or unintentional.

40      She told the Commission she understood the Employer Direction.

41      She knew that the CHO Directions meant a person could not enter a prison without being vaccinated or having an exemption.

42      She knew that she could not perform her duties as a Drug Detection Officer while non‑compliant with the Employer Direction.

43      She understood that non‑compliance with the Employer Direction placed her employment at risk.

44      Ms Fagan determinedly chose not to comply with the Employer direction. In her response to the allegations of breach of discipline, she stated:

…

I value my role in the Department of Justice. I have always been a dedicated worker and have complied with all code of conduct policies that come with this job. Until now, I have not been outspoken in relation to this matter despite my concerns going back months…I do not wish to lose my position within the department, but my health and my human right to maintain control over my own body is more important to me that this job. I will not quit ‑ I am hoping there is some sort of resolution that we can come to that allows me to continue in my role as a valued member of the Drug Detection Unit and the Bunbury Regional Prison Security Team without getting the COVID‑19 ‘vaccine’.

…

45      Even if the Employer did find that Ms Fagan’s non‑compliance was deliberate and wilful, that finding was obviously open.

Does Ms Fagan’s subjective belief about the Employer Direction lessen her culpability?

46      Ms Fagan’s counsel opened on the basis that Ms Fagan did not comply with the Employer Direction because she was worried about the effects of the vaccination on her. That is consistent with the evidence, as summarised below. However, Ms Fagan’s case proceeded on the different basis that her reason for not complying with the Employer Direction was that she believed it was not a lawful direction. She bore the onus of establishing this reason for non‑compliance as a matter of fact.

47      The relevant time for having the belief, is the time during which she was failing to comply with the Employer Direction. That was from 15 November 2021 when the Employer Direction was issued, to 15 December 2021, when the requirements of the Employer Direction had to be met.

48      Ms Fagan’s letter to her Employer, dated 23 October 2021 but sent on 4 November 2021, did not assert that the Employer Direction was unreasonable or unlawful. Rather, Ms Fagan requested a litany of information ‘before making a decision in this matter’.

49      Ms Fagan explained to the Commission that she was trying, by her letter, to express her major concerns about the experimental nature of the vaccines, and that she did not feel it was safe for her to have a vaccine.

50      This means that, as at 4 November 2021, Ms Fagan had not formed a belief about the direction being lawful or unlawful. Nor had she decided whether she would or would not comply with the Employer Direction. She said she would comply, that is, receive the vaccine, if she was given answers to her questions and other conditions set out in her letter were met. She confirmed in her answers in cross‑examination that she intended to comply if her questions were answered.

51      The Commission was provided with an email Ms Fagan sent to the Department’s Investigations Branch on 4 January 2022. In it, she provides detail on ‘the reasons for my declination’. It sets out her concerns about the possible side effects of ‘the Covid vaccine’ in light of her own, unspecified, personal medical needs. She details her understanding of how mRNA vaccines work to build immunity. She then states:

This is the main reason I am declining this injection. It is not the traditional vaccine that has been used effectively for decades. This is a relatively new technique that has failed in animal studies in the past…

52      There is no allegation made by her that the Employer Direction is unlawful or unreasonable, or that she need not comply with it. She makes it clear that she is making her own choice that vaccination does not suit her or her personal medical history.

53      On 22 February 2022, in response to the Director‑General’s proposed outcome letter, Ms Fagan raised issues about human rights. She alleged that it is unlawful to discriminate against someone based on their medical history. She alleged that vaccines cannot be mandated under the Commonwealth Constitution. She referred to the Occupational Safety and Health Act 1984 (WA), the Nuremburg Code (1947), the Biosecurity Act 2015 (Cth), the Siracusa Principles, and various other extracts from handbooks, legislation and case law.

54      Clearly, by this time Ms Fagan was relying on an argument that the Employer Direction was unlawful. However, by the time Ms Fagan has expressed the view that the Employer Direction was unlawful, the alleged breach of discipline had already occurred and the disciplinary process was well advanced.

55      The 22 February 2022 letter does not show what Ms Fagan’s belief was at the time she was in breach of the Employer Direction. It does not explain Ms Fagan’s failure to comply with the Employer Direction as being because of a genuinely held belief that she did not need to comply. Rather, the 22 February 2022 letter suggests Ms Fagan resorted to an illegality argument only as a defence to the disciplinary action. That is, it was in an attempt to keep her job, not an explanation for her non‑compliance.

56      I also note that Ms Fagan’s 22 February 2022 correspondence contains verbatim questions and content that were reproduced in the Fair Work Commission decision Inwood v Baxter & Co Pty Ltd [2022] FWC 792 at [16]. That decision sets out the content of a letter sent by the applicant, Ms Inwood to Ms Inwood’s employer. Deputy President Easton described the letter as ‘prepared apparently by a firm of Solicitors that is circulating in public service and private workplaces’ and as ‘obviously a template’: Inwood v Baxter & Co Pty Ltd.

57      Ms Fagan was not questioned about the source of the text in her 22 February 2022 correspondence. Nor was Ms Fagan questioned about her understanding of the arguments made in the correspondence. It is obvious on its face that it has been reproduced from other sources. While Ms Fagan has adopted the contents as her own, I have reservations about whether she understood the contents so as to have genuinely held the views they express, not least because of the vast quantity, and obscurity, of sources referenced.

58      Ms Fagan has not established that she genuinely believed that she did not need to comply with the Employer Direction at the relevant time, that is, prior to 15 December 2021. Certainly she argued after the fact that the Employer Direction was unlawful. But she did not explain her non‑compliance as arising from her belief that she did not need to comply.

59      Had Ms Fagan’s reason for not complying been that she genuinely questioned the lawfulness of the Employer Direction, it could be expected that her explanation be accompanied by an undertaking to comply with the Employer Direction once its lawfulness was clarified or confirmed by legal advice or a relevant judicial determination. There was never any such indication from Ms Fagan.

60      Accordingly, I do not find there were circumstances concerning Ms Fagan’s beliefs which lessen her culpability for non‑compliance with the Employer Direction.

61      It was common ground that Ms Fagan’s subjective beliefs about the Employer Direction would only lessen the seriousness of her conduct if those subjective beliefs were objectively reasonable. I have not found the reason for Ms Fagan’s non‑compliance was a belief that the Employer Direction was unlawful and that she need not comply with it. It is not necessary for me to consider the objective reasonableness of a belief that was not held. However, if I had been satisfied that Ms Fagan held such a belief at the relevant time, and that it explained her conduct, I would find that the belief was objectively reasonable.

62      The Employer argued that a belief that the Employer Direction was unlawful was not reasonable because:

(a) Ms Fagan understood that, because of the nature of her role and the CHO Directions, failure to comply with the Employer Direction meant that she could not do her job.

(b) Her written responses revealed her position was unreasonable, because she was relying on information that was clearly irrelevant to her circumstances, and therefore irrelevant to whether the Employer Direction was reasonable and lawful. Examples were her questions about the COVID‑19 vaccination effects on pregnant recipients and children when she was neither pregnant nor a child.

(c) There was no evidence she had sought credible legal or industrial advice about the lawfulness of the Employer Direction or her obligations concerning it. I note in this regard that Ms Fagan’s own response of 22 February 2022 contained the recommendation ‘all employees should seek specific legal advice for their specific set of circumstances’. It would appear that Ms Fagan instead relied on what she found on the internet. She led no evidence of having taken any other steps to find out whether the Employer Direction was lawful.

63      While there is merit to each of these points, I return to my previous observation that the relevant time was the period 15 November 2021 to 15 December 2021. At that time, COVID‑19 vaccination mandates were widespread in Australian workplaces, but they were far from business as usual. Like many of the trends that emerged during the COVID‑19 pandemic, such workplace directions were widely considered unprecedented. Accordingly, uncertainty surrounded the lawfulness of directions to employees that effectively mandated vaccination. Many legal actions were launched, testing the parameters of what is a lawful direction, including Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059; (2021) 310 IR 399; Falconer v Chief Health Officer [No 3] [2022] WASC 270 and Finlay v Commissioner of Police as the Chief Executive Officer of the Department Known as the Police Service (Department of Police) [2022] WASC 272 (delivered August 2022).

64      It matters not. Even if the evidence established Ms Fagan did not comply with the Employer Direction because she genuinely believed it was unlawful and need not be followed, and even if such a belief was reasonable, it would not sufficiently diminish the seriousness or gravity of the breach of discipline. I discuss my conclusion in this regard under the following heading ‘Other gravity considerations’.

Other gravity considerations

65      In her written outline of submissions, Ms Fagan alludes to arguments that her conduct in refusing to comply with the Employer Direction was not sufficiently serious to warrant dismissal because:

(a) The pre‑appointment requirements of the role did not contemplate a direction that she agree to undergo vaccination against COVID‑19. As such, the refusal was not a rejection of her essential obligations as an employee.

This point was not developed during the hearing. It is not supported by established principles. It is illogical. A lawful direction need not be in contemplation at the contract commencement in order to assess the seriousness of its breach.

(b) The blanket and blunt approach taken by the Employer and represented by the Employer Direction supported Ms Fagan’s view that the Employer Direction was not reasonable or not lawful, or both.

This submission falls away because Ms Fagan did not establish that she had the view the Employer Direction was not lawful or not reasonable at the relevant time.

(c) The Employer’s unwillingness to engage in discussion fuelled Ms Fagan’s belief that the Employer Direction was unreasonable.

Again, this submission falls away because Ms Fagan did not establish that she had the view the Employer Direction was not reasonable at the relevant time. Ms Fagan did establish that she had concerns, but those concerns related to the information she had about the effects of the COVID‑19 vaccines. She asked questions, but the questions did not themselves reveal her view of the reasonableness of the Employer Direction. Indeed her questions suggest she was yet to form a view.

(d) The Employer was not actually of the view that the refusal to be vaccinated against COVID‑19 was inconsistent with ongoing employment. In this regard, Ms Fagan points to the fact that after the CHO Directions were lifted in June 2022, the Employer permitted a majority of unvaccinated employees to continue in their employment. She also points to the case of Ms Penelope Beere, whose evidence is discussed below.

The answer to this contention is that the evidence relied upon is evidence of the Employer’s conduct after the date of Ms Fagan’s dismissal. It cannot be relevant to the seriousness or gravity of Ms Fagan’s breach, which occurred from 15 November 2021 to 15 December 2021, because it is evidence of the Employer’s position at a different time, in different circumstances.

66      Ultimately, in my view, Ms Fagan’s breach of the Employer Direction was serious enough to warrant dismissal.

67      It is well established that a refusal on the part of an employee to comply with a lawful and reasonable direction, will generally constitute a valid reason for dismissal: R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan [1938] HCA 44; (1938) 60 CLR 601 and McManus v Scott-Charlton [1996] FCA 1820; (1996) 70 FCR 16 cited in Heller‑Bhatt v Director General, Department of Communities [2022] WAIRC 00719 at [93]. The degree of conduct that will justify disciplinary action is a question of fact: Blyth Chemicals Ltd v Bushnell [1933] HCA 8; (1933) 49 CLR 66 citing Clouston & Co v Corry (1906) AC 122; Portilla v BHP Billiton Iron Ore Pty Ltd [2005] WAIRC 02604; (2005) 85 WAIG 3441 at [131].

68      Ms Fagan could not continue to work in her role if she did not follow the Employer Direction. Her failure to follow the Employer Direction had significant impacts for the operation of the prison. Ms Fagan understood the direction, and she understood her non‑compliance would have that effect. Her non‑compliance was wilful and deliberate. And because it meant she could not work, it was also inconsistent with the continuation of the contract of employment: Roman v Mercy Hospitals Victoria Ltd [2022] FWC 711 at [41] and Heller‑Bhatt at [108]. The conduct, therefore, went to the heart of the employment contract. It was conduct that was incompatible with the fulfilment of Ms Fagan’s duties and impeded the performance of the employment contract.

69      Dismissal in these circumstances is not disproportionate to the gravity of Ms Fagan’s conduct.

Was Ms Fagan treated differently from other employees in similar circumstances?

70      Inconsistent treatment of employees can render a dismissal unfair, even if dismissal might otherwise be justified or warranted. The dismissal of an employee may be unfair if another employee guilty of similar or the same misconduct, and without other mitigating features to differentiate, is not dismissed: Portilla at [166] citing The Construction, Forestry, Mining and Energy Union of Workers v BHP Billiton Iron Ore Pty Ltd [2004] WAIRC 13424; Sexton v Pacific National (ACT) Pty Ltd [2003] AIRC 506 at [33].

71      The reasoning in the cases concerning differential treatment can be traced to a basic notion of fairness: National Jet Systems Pty Ltd v Mollinger AIRC R3130, 18 March 1999. In Donaldson v NSW National Parks & Wildlife Service [1997] FCA 837, Madgwick J articulated the reasons why differential treatment could render an otherwise ‘unexceptional’ dismissal unfair by drawing from the criminal law:

It is no answer to say to this that Mr Kettlewell’s good fortune, or the NPWS’s lack of due firmness with him, is irrelevant to the consideration of the relationship between Mr Donaldson and the NPWS. The criminal law, for example, aims at the protection of citizen's lives, limbs and property by punishing those found guilty of deliberate, reckless or gravely negligent acts. With purposes of such fundamental importance, it is nevertheless the case that, as between co‑offenders, the principle of parity of treatment is of such weight that it may be appropriate, where one offender has escaped with too lenient a sentence, to reduce an otherwise appropriate penalty for his colleague in crime to a level which, looked at alone, would be inadequate; and the reason why the principle of disparity of treatment is accorded such weight is that:

"disparity engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander" (Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, per Mason J at 613‑4)

72      Naturally, differential treatment will give rise to a sense of grievance by employees, and be an affront to what His Honour referred to as the ‘objective bystander’. However, the enquiry is focused on consistency of treatment, not consistency of outcome: Capral Aluminium Ltd v Sae (1997) 75 IR 65; BC9703967.

73      SERCO Gas Services (Vic) Pty Ltd v Alkemade AIRC R6090, 21 June 1999 is a good illustration of the need to look to treatment not outcome. In that case, several employees’ positions had been made redundant. Redundancy was a valid reason for the termination of their employment. However, white collar workers were paid a redundancy calculated using a different methodology to blue collar workers whose positions were redundant. The less favourable methodology applied to the white‑collar applicants, not the comparative final amount of their redundancy pay, rendered their terminations unfair.

74      Caution must be exercised in approaching claims of differential treatment. As Vice President Lawler said in Sexton at [36]:

In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a "fair go all round" within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing "apples with apples". There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made. Obviously, where, as in National Jet Systems, there is differential treatment between persons involved in the same incident the Commission can more readily conclude that the cases are properly comparable. However, even then the Commission must approach the matter with caution. Specifically, the Commission must be conscious that there may be considerations subjective to the circumstances of an individual that caused an employer to take a more lenient approach in an allegedly comparable case. For example, a worker guilty of particular misconduct justifying termination might be shown leniency because of extreme need or stress arising from the serious illness of a close dependent. Another worker guilty of the same misconduct could not necessarily rely upon the leniency shown to the first worker as a basis for demonstrating that his or her termination was harsh, unjust or unreasonable. Many other examples could be constructed.

75      The Full Commission of the NSW Industrial Relations Commission has also described the need for care in deciding whether inconsistency in punishment is a matter that can be taken into account in determining if a dismissal is unfair:

The response to misconduct is a matter of discretion. The time, place and circumstance of one breach, the circumstances of the offender and the implications for adequate administration of an enterprise, will seldom coincide.

Electricity Commission of New South Wales t/a Pacific Power v Nieass (1995) 81 IR 46 at [66].

76      The timing of the comparative treatment may be relevant. In Portilla, Beech C suggested that the comparative treatment must occur at a contemporaneous point in time: [230]. In Holman v Telstra Corporation Ltd [2006] SAIRC 16; (2006) 153 IR 445, the Full Bench of the South Australian Industrial Relations Commission refused to admit fresh evidence, which was said to demonstrate disparity, for reasons that included the fact that the material post‑dated the appellant’s dismissal: [132].

77      In this case, it was agreed that as of the date of the Ms Fagan’s dismissal (26 May 2022):

(a) ten prison officers (including Ms Fagan) had been dismissed by the Employer following a disciplinary process for failing to comply with the Employer Direction;

(b) three prison officers had resigned in the course of a disciplinary process for failing to comply with the Employer Direction;

(c) 49 prison officers remained subject to a disciplinary process for failing to comply with the Employer Direction for which the process was not complete; and

(d) save for those who resigned, no other prison officer had a disciplinary process finalised by the respondent for failing to comply with the Employer Direction with a disciplinary outcome less than dismissal.

78      It was also agreed that as of 2 February 2023, 40 of the 49 prison officers who remained subject to a disciplinary process on 26 May 2022 are currently employed.

79      Ms Penelope Beere was the only witness in these proceedings, in addition to Ms Fagan. Ms Beere worked as a Security Intelligence Officer at Bunbury Regional Prison. She was asked questions about what she knew about other prison officers who had been the subject of a disciplinary process for not complying with the Employer Direction. She did not know enough about any other person’s individual circumstances, or the source of her knowledge was so indirect, that no more could reliably be found about other prison officers beyond the agreed facts.

80      The agreed facts are not sufficient evidence of the circumstances of comparable cases to enable a finding that there was inconsistent treatment between Ms Fagan and any other person.

81      Ms Fagan’s case about disparate treatment also relies upon a comparison with the circumstances, treatment and outcome for Ms Beere. Ms Beere did not comply with the Employer Direction, but the sanction imposed on her was a reprimand, not dismissal.

82      I must first assess whether Ms Beere is properly comparable to Ms Fagan. This does not involve an assessment of Ms Beere’s and Ms Fagan’s relative culpability: Holman at [131]. Rather it requires an enquiry into whether there are reasons to have differentiated between Ms Beere and Ms Fagan. If Ms Beere is comparable, then I must consider whether Ms Fagan was treated differently to Ms Beere.

83      Ms Beere told the Commission that she worked for the Department as a Security Intelligence Officer appointed under the PSMA, and was based at Bunbury Regional Prison. Her role was to collect and assess intelligence used to identify threats to the safety and security of prisoners and staff. Her work was mostly computer based, although at times she was required to be present at interviews with prisoners.

84      Ms Beere received the Director‑General’s email of 15 November 2021, which contained the Employer Direction. She understood it was a direction to get a COVID‑19 vaccination and to provide evidence of having received it, failing which she would not be able to attend the prison.

85      Ms Beere did not get a vaccination, nor did she provide evidence of an exemption. She provided her Employer with her personal medical reasons and her own research to explain why she was unwilling to receive the COVID‑19 vaccination.

86      A disciplinary process was commenced against Ms Beere, in relation to her non‑compliance with the Employer Direction. Before the disciplinary process was concluded, on 10 June 2022, Ms Beere returned to work in the same position she was performing as at November 2021. The disciplinary process concluded on 22 February 2023 when Ms Beere was informed that she was being reprimanded.

87      The Commission was provided with a copy of a letter from the Director‑General sent to Ms Beere dated 22 February 2023. It records that:

(a) On 1 February 2022, the Director‑General advised Ms Beere that he had formed a preliminary view that she had committed two breaches of discipline and that he intended to impose the disciplinary action of dismissing her under s 82A(3)(b) of the PSMA.

(b) The disciplinary action was paused whilst judicial review was underway.

(c) On 25 November 2022, the Department recommenced the disciplinary process.

(d) Ms Beere provided a written submission dated 13 December 2022 in which she ‘cite[d] that the vaccination must be given voluntarily in the absence of undue pressure, coercion or manipulation as well as your personal medical history as explanations for non‑compliance’.

(e) Ms Beere had since returned to her employment as a prison officer after the Employer Direction that required employees to be vaccinated was removed on 10 June 2022.

(f) The Director‑General had now decided given all the circumstances that Ms Beere will instead receive a reprimand for the two breaches of discipline.

(g) The breach/disobedience was serious causing Ms Beere to be away from the workplace and unable to fulfill her duties as an Intelligence Officer.

88      Compared with Ms Fagan:

(a) Ms Beere and Ms Fagan had the same or a substantially similar understanding of the requirements and effect of the Employer Direction.

(b) Ms Beere’s breaches of discipline occurred over precisely the same period as Ms Fagan’s.

(c) Ms Beere’s breaches of discipline involved precisely the same conduct as Ms Fagan’s namely failure to comply with the Employer Direction by failing to be vaccinated against COVID‑19 and failing to provide evidence of vaccination or an exemption.

(d) The consequence of the breach was the same in both cases: Ms Fagan and Ms Beere were both unable to attend their workplace or fulfil their respective duties.

(e) The disciplinary action for both employees was taken under the same provisions of the PSMA.

(f) Precisely the same preliminary findings and proposed action/outcome was issued to both employees at the same time: 1 February 2022.

(g) The disciplinary process was paused for both Ms Fagan and Ms Beere whilst judicial review proceedings were underway in the Supreme Court.

89      An obvious point of departure as between Ms Fagan and Ms Beere is the velocity of the disciplinary processes from 4 May 2022 onwards. The disciplinary process was recommenced for Ms Fagan on 4 May 2022 and concluded on 26 May 2022, but it was recommenced for Ms Beere on 25 November 2022 and concluded on 22 February 2023.

90      The Employer argued that Ms Beere was the wrong or an inappropriate comparator because:

(a) Ms Fagan was engaged as a prison officer under the Prisons Act, whereas Ms Beere was engaged as a public servant under the PSMA.

(b) Ms Fagan was employed by the Minister, whereas Ms Beere was employed by the Director‑General, a different employing authority.

(c) As a prison officer, Ms Fagan had specific duties under s 14 of the Prisons Act, and the failure to be vaccinated in accordance with the Employer Direction caused her to contravene those duties.

(d) The paramilitary nature of Ms Fagan’s role as a prison officer meant that failure to follow a lawful direction is a matter of greater significance and seriousness than it is for a public servant.

(e) Ms Beere’s duties were different to Ms Fagan’s. In particular, Ms Fagan worked face to face with prisoners and visitors, while Ms Beere’s role was not ‘front line’ and could be performed away from Bunbury Regional Prison.

(f) Ms Beere’s circumstances as set out in her response to the disciplinary process was different to Ms Fagan’s in that she identified matters relating to her own medical history; whereas Ms Fagan alluded to matters concerning her medical history without disclosing any details.

91      I consider there is sufficient evidence of Ms Beere’s circumstances to enable a proper comparison between Ms Beere and Ms Fagan to be made. In my view, Ms Beere’s circumstances are properly comparable, so that the Commission is comparing ‘apples with apples’.

92      While it is technically correct that Ms Beere’s employment was by a different employing authority and under a different legislative instrument, the distinction is not one of practical substance for present purposes.

93      Ms Fagan’s appointment under s 13(1) of the Prisons Act meant that she was engaged as a ‘prison officer’ by the Minister. However, s 13(4) of the Prisons Act enables the Minister to delegate the Minister’s powers under s 13(1) to the Chief Executive Officer of the Department of Justice. The Director‑General is the CEO of the Department. Ms Fagan’s offer of employment was made ‘on behalf of the Director General Department of Justice’ indicating that, in her case, the power of appointment was exercised by the Director‑General under delegation, not by the Minister.

94      For relevant practical purposes, the Director‑General had the same authority over Ms Beere and Ms Fagan. Under the Prisons Act, Ms Fagan was obliged to obey all lawful orders and directions given to her by the Director‑General: s 14(1)(c). The Director‑General’s functions under the PSMA also included managing and directing employees of the Department, like Ms Beere and Ms Beere was, in turn, obliged to obey all lawful orders and directions given to her by the Director‑General: PSMA s 29(1)(g) and s 80(a) and Exhibit A1.

95      Employees appointed under s 13 of the Prisons Act are subject to the same provisions of the PSMA in relation to substandard performance and disciplinary matters as all public service officers appointed under Part 3 of the PSMA: Prisons Act s 98 and PSMA s 76(1)(b).

96      The decision maker in the disciplinary process for both employees was the Director‑General, Department of Justice, Dr Adam Tomison.

97      Importantly, the Employer Direction did not distinguish between employees’ employing authority nor their duties. It applied to all employees in the same terms. The Employer Direction was addressed to ‘employees’ without qualification. Further, the Employer Direction was clearly underpinned by the CHO Directions, which in turn applied to ‘Correctional Facility Entrants’ which, under the CHO Directions, means any person who enters a correctional facility in any capacity other than an exempt person. Employer authority identity was irrelevant.

98      Both employees were based at Bunbury Regional Prison. However, Ms Beere’s duties were different to Ms Fagan’s duties. Ms Fagan’s role was certainly more ‘front line’. But the nature of the duties each employee performed was irrelevant to application of the Employer Direction. The Employer Direction applied because of the location of their work, that is, within a correctional facility, regardless of the duties associated with the work.

99      The suggestion that the paramilitary nature of Ms Fagan’s role meant that her breach was more serious than Ms Beere’s was not adequately elaborated upon. I understand the Employer uses the description ‘paramilitary’ to refer to the fact that, under the Prisons Act, a prison officer must make an oath of engagement to promise:

…

(a) I will well and truly serve the State as a prison officer of Western Australia; and

(b) I will do my utmost in the performance of my duty as a prison officer to maintain the security of every prison in which I serve and the security of the prisoners and the officers employed at the prison; and

(c) I will uphold the Prisons Act 1981, as amended from time to time, and the regulations, rules and standing orders made under that Act from time to time; and

(d) I will deal with prisoners fairly and impartially; and

(e) I will obey the lawful orders of an officer under whose control or supervision I am placed.

100   Further, under s 14 of the Prisons Act, prison officers:

(a) must obey the orders of their superintendents and other offices under whose control or supervision they are placed; and

(b) have the power to issue orders to prisoners for the security and good order of prisons, and to use reasonable force in ensuring compliance with orders.

101   As I understand it, the submission is that these characteristics mean prison officers had a higher duty to comply with the Employer Direction than public service employees.

102   I doubt the correctness of that position. The purpose of the Employer Direction was to aid in the security and safety of prisons. It achieved that purpose by mandating vaccination so as to limit the spread of COVID‑19 through a combination of widespread vaccination and restrictions on access to prisons of those who were unvaccinated without an exemption. It required compliance across all employees who would ordinarily enter correctional facilities, whether public service employees or prison officers. The imperative for compliance was not dependent on or connected in any way with the features of prison officers’ engagement under the Prisons Act.

103   I also note that the Director‑General could have taken removal action under Part X Division 3 of the Prisons Act if he considered Ms Fagan’s conduct went to her suitability to continue as a prison officer. He instead chose to take disciplinary action under the PSMA, meaning he considered the conduct as relevantly comparable to that of Ms Beere’s and did not consider the conduct as going to the heart of Ms Fagan’s oath of engagement under s 13(2) or her ability to fulfil her duties as a prison officer under s 14.

104   When responding to the disciplinary process, Ms Beere may have been more transparent about her medical history than Ms Fagan was. Ms Fagan did not disclose any details of her medical history, which were the basis for her concerns, whereas Ms Beere did refer to a specific medical complication she had suffered in the past. There was no suggestion Ms Beere provided any medical exemption or expert medical opinion in support of her response to the disciplinary process. Ultimately, both employees declined to be vaccinated because of their own personal medical history and their concerns about the effects of the vaccine.

105   Any difference in the detail of Ms Beere’s and Ms Fagan’s respective responses does not detract from the comparability of their circumstances because the Director‑General does not appear to have based his findings on this aspect of the responses anyway. The 1 February 2022 letters to both employees proposed the same preliminary findings and proposed action of dismissal. As at 1 February 2022, the Director‑General apparently considered both employees’ circumstances and their conduct to be comparable. Or, put another way, the Director‑General did not consider there was reason to distinguish between them, as at 1 February 2022, based on their given reasons for non‑compliance with the Employer Directions.

106   The Employer points out that the comparison with Ms Beere must fail because the evidence is that other prison officers were dismissed so Ms Fagan was not singled out. This is not the test. The Full Bench of the Australian Industrial Relations Commission rejected an argument that employer conduct must be oppressive or discriminatory in order to be a relevant circumstance in assessing whether there had been a fair go all round: SERCO Gas Services (Vic) Pty Ltd at [6], cited with approval in Sexton at [34].

107   Finally, the Employer made a faint submission that the more appropriate comparators were the prison officers referred to in the Statement of Agreed Facts. However, as I have indicated above, there is insufficient evidence before the Commission about the circumstances of those prison officers for them to be assessed for comparability.

108   As I am satisfied that Ms Beere is a proper comparator, I must now consider whether Ms Fagan was treated differently to Ms Beere. This question is not answered by reference to outcomes on their own.

109   What appears to be a significant factor in the different outcomes for Ms Beere and Ms Fagan is that the disciplinary action recommenced for Ms Fagan on 4 May 2022 but for Ms Beere, more than six months later, on 25 November 2022. Further, by the time the disciplinary process was recommenced for Ms Beere, the Employer Direction had been lifted and Ms Beere had been permitted to return to work.

110   The delay in recommencing the disciplinary process against Ms Beere, despite the fact that the disciplinary process had been at the same stage as Ms Fagan’s, means that Ms Beere and Ms Fagan were treated differently.

111   There is nothing before the Commission which explains this inconsistent treatment. The difference appears to be nothing more than a matter of timing. This means that the outcome for Ms Fagan is random and arbitrary, and as such, Ms Fagan’s dismissal, while Ms Beere remains employed, is harsh and unfair.

112   I should make it clear that my analysis does not mean either that the outcome for Ms Beere was the right outcome or that it was the wrong outcome. Nor does it detract from the requirement that each case of breach of discipline be decided on its own facts, taking into account the relevant individual employee’s particular circumstances. I echo Vice President Lawler’s exhortation against allowing the use of differential treatment to develop in such a way as to act as a disincentive to employers to show leniency in appropriate cases: Sexton at [39].

Remedy

113   Ms Fagan seeks reinstatement to her former position with no loss of continuity of service, and compensation for loss of remuneration from 10 June 2022 being the date that the vaccination mandates were lifted.

114   Reinstatement is the primary remedy under s 23A of the IR Act. The Employer bears the onus of establishing credible reasons why reinstatement is impracticable: Public Transport Authority of Western Australia v The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch [2016] WAIRC 00236; (2016) 96 WAIG 408 at [106]. In s 24A, impracticable means not reasonably feasible or reasonably capable of being accomplished. Assessing the practicability of reinstatement involves a bespoken factual evaluation, in a common sense way: Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2017] WASCA 86; (2017) 97 WAIG 431 per Kenneth Martin J at [148].

115   The Employer has not suggested that reinstatement is impracticable. I do not know whether or not Ms Fagan has since been vaccinated against COVID‑19, but the requirement to be vaccinated is no longer in place. Her vaccination status is not a barrier to employment with the Employer. It is an agreed fact that, as at 2 February 2023, the Employer employed 40 prison officers who had previously been subject to a disciplinary process for non‑compliance with the Employer Direction. I infer from this that those prison officers are not vaccinated against COVID‑19 but that their vaccination status is not a barrier to employment.

116   Ms Fagan was not able to perform her role at least until the Employee Direction was revoked on 10 June 2022. In those circumstances, I would not order that she be reinstated with continuity of service from the date of the dismissal. Rather, I would order that Ms Fagan be re‑instated to the position she held as at 26 May 2022 with effect from the date of my order.

117   Ms Fagan has not engaged in remunerated employment since 26 May 2022. She did start her own business of dog obedience training, and has worked in that business since November 2022. The Commission was not told what income Ms Fagan has earnt.

118   In the absence of evidence of Ms Fagan’s earnings, I am unable to quantify her loss. I will therefore order that the respondent pay Ms Fagan remuneration lost because of the dismissal in the period from 10 June 2022 to the date of my order, to be assessed if not agreed. I would make a further order for payment to be made within 14 days of the date of assessment or agreement.

119   I will hear from the parties for the purpose of assessing the quantum of compensation and the precise terms of the final orders.