2023 WAIRC 00403
APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 19 JANUARY 2022
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00403

CORAM
: PUBLIC SERVICE APPEAL BOARD
COMMISSIONER T B WALKINGTON - CHAIR
MR G LEE - BOARD MEMBER
MR R DAVENPORT - BOARD MEMBER

HEARD
:
TUESDAY, 8 NOVEMBER 2022

DELIVERED : FRIDAY, 28 JULY 2023

FILE NO. : PSAB 9 OF 2022

BETWEEN
:
CLINTON VICTOR JUDE DURHAM
Appellant

AND

DIRECTOR GENERAL, DEPARTMENT OF COMMUNITIES
Respondent

CatchWords : Public Service Appeal Board – Public Health Directions – no direction to be vaccinated given – ‘no work, no pay’ principle
Legislation : Industrial Relations Act 1979 (WA)
Public Health Act 2016 (WA)
Public Sector Management Act 1994 (WA)
Result : Appeal upheld and dismissal quashed
REPRESENTATION:

APPELLANT : MR C DURHAM (IN PERSON)
RESPONDENT : MR J CARROLL (OF COUNSEL)


Case(s) referred to in reasons:
Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435
Csomore & Anor v Public Service Board of New South Wales (1986) 10 NSWLR 587
Director General, Department of Biodiversity, Conservation and Attractions v Cosentino & Ors [2022] WASC 306
Director General, Department of Justice v The Civil Service Association of Western Australia Incorporated [2003] WAIRC 07994; (2003) 83 WAIG 908
Edward Picks v WA Country Health Service Board [2020] WAIRC 00806; (2020) 100 WAIG 1400
State Government Insurance Commission v Johnson (1997) 77 WAIG 2169
The Civil Service Association of Western Australia v Commissioner of Police, WA Police Service [2019] WAIRC 00020; (2019) 99 WAIG 110
The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404
TREVOR WALLEY V DIRECTOR GENERAL, DEPARTMENT OF BIODIVERSITY, CONSERVATION AND ATTRACTIONS
[2021] WAIRC 00569; (2021) 101 WAIG 1419



Reasons for Decision
1 Mr Clinton Durham (the appellant) appeals the decision to dismiss him from his position as a Level 5 Senior Field Worker with the Department of Communities (the respondent) for his alleged non-compliance with a direction to be vaccinated against COVID-19 (Employer Direction), unless exempt, and to provide proof of vaccination or exempt status in accordance with restrictions set out in the Community Care Services Worker (Restrictions on Access) Direction (CCS Direction) made by the Chief Health Officer under the Public Health Act 2016 (WA) on 5 November 2021. The appellant seeks reinstatement and related consequential orders for back pay, continuity of entitlements and compensation.
2 The respondent conceded that the Employer Direction did not require the appellant to be vaccinated unless exempt, and therefore concedes the appellant did not commit the breach of discipline alleged.
3 Initially the respondent resisted the appellant’s reinstatement on the basis that it would be impracticable because the appellant could not lawfully perform the inherent requirements of his former position.
4 Following the revocation of the CCS Direction on 10 June 2022 the respondent accepted that the appellant can lawfully perform the duties of his former position from that date and the dismissal can be quashed and consequentially the appellant reinstated.
5 The respondent opposes any orders related to back pay, continuity of entitlements and compensation because the appellant was unable to lawfully perform the inherent requirements of his role from the date of his dismissal until 10 June 2022 and he cannot establish that he was ready, willing, and able to work. Therefore, he is not and was not entitled to pay for that period.
What The Board Must Decide
6 To determine this matter, the Public Service Appeal Board (Board) must decide whether the decision to dismiss the appellant ought to be quashed and whether any orders relating to back pay, continuity of entitlements and compensation ought to be made.
Background and Facts
7 The appellant was employed by the respondent as a Level 5 Senior Field Worker in the Wheatbelt Region.
8 The appellant was primarily located in the respondent's Merredin office, however, his role as Level 5 Senior Field Worker required him to work anywhere in the Wheatbelt Region.
9 The Public Service Award 1992, Public Sector CSA Agreement 2021, and Department for Child Protection and Family Support Agency Specific Agreement 2016 applied to the appellant's employment with the respondent.
10 On 20 November 2020 the respondent wrote to the appellant to confirm his permanent transfer from Senior Field Worker Level 5 Kimberley Region to Senior Field Worker Level 5 Wheatbelt Region effective on 27 November 2020. The appellant signed his agreement to the transfer on 2 December 2020.
11 The role of the appellant was to provide a professional service to individuals, groups and communities within a service delivery team; provide appropriate consultation to staff and other service delivery agencies and where required manage a small local office and ensure efficient and effective use of resources and represent the Department within the local community.
12 On 22 September 2021 the Chief Health Officer made the Health Worker (Restrictions on Access) Directions (Health Worker Directions).
13 On 5 November 2021 the Chief Health Officer made the CCS Direction.
14 On 19 November 2021 the respondent issued a direction to the appellant to declare his COVID-19 vaccination status and provide evidence in support of his declaration or provide evidence of his medical or temporary exemption from the requirement to be vaccinated.
15 The respondent’s direction to the appellant to declare his vaccination status or provide evidence of an exemption from vaccination was made on 19 November 2021. It did not contain any references to attendance at the workplace or a direction to take leave or a decision to suspend the appellant.
16 On 25 November 2021 the appellant emailed the respondent advising that he was not able to comply with the CCS Direction that required him to be vaccinated by 1 December 2021.
17 From 1 December 2021 the appellant was not able to attend at the workplace and was placed on a ‘no work, no pay’ arrangement. This was a consequence of his alleged non-compliance with the Employer Direction and his inability to comply with the access restrictions of the CCS Direction issued by the Chief Health Officer.
18 On 15 December 2021 the respondent notified the appellant that he may have committed a breach of discipline under s 80 of the Public Sector Management Act 1994 (WA) (PSM Act) and a disciplinary process pursuant to s 81(1)(a) of that Act had commenced.
19 On 6 January 2022 the Acting Director General of the respondent wrote to the appellant notifying him that she had determined that a breach of discipline had been committed and that she intended to dismiss the appellant. The basis of the findings and proposed dismissal action was that the appellant had failed to comply with a lawful direction. The appellant was given 5 business days to provide submissions before the respondent made a final decision.
20 On 12 January 2022, the appellant emailed the respondent stating that it would be premature to decide on disciplinary action given the Chief Health Officer’s Direction was being challenged in the Supreme Court of Western Australia. The appellant requested that alternate sanctions such as transfer, or unpaid leave be considered.
21 On 19 January 2022 the Director General of the respondent wrote to the appellant and notified him that he had decided to dismiss the appellant effective the date of the letter.
22 On 10 June 2022 the CCS Directions were revoked.
23 On 12 June 2022 the appellant was reinstated to his position by the respondent.
24 The appellant seeks payment equivalent of the salary for the period from 1 December 2021 until 10 June 2022 and entitlements that would have accrued to him during that period.
Legislative Framework
25 Part 5 of the PSM Act applies to public service officers and other prescribed employees in relation to any suspected breach of discipline for disobeying or disregarding a lawful order.
26 By s 80 of the PSM Act, an employee who disobeys or disregards a lawful order commits a breach of discipline and is liable to 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.
27 Section 78 of the PSM Act enables an employee who is aggrieved by a decision to take disciplinary action to appeal against that decision to the Board. The Board is a constituent authority of the Commission and exercises jurisdiction under the Industrial Relations Act 1979 (WA) (IR Act) in hearing and determining such appeals. Under s 80I of the IR Act, the Board may ‘adjust’ the matters referred to in s 80I(1).
28 Section 26(1)(a) of the IR Act applies to the Board’s exercise of its 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.
29 The Board accepts that the respondent concedes the Employer Direction did not require the appellant to be vaccinated unless exempt. The Board notes that the appellant emailed the respondent on 25 November 2021 advising:
I am not able to comply with the CCS Worker Directions that require me to be vaccinated by December 1 2021.
…
After getting the email “Department of Communities: Direction to be vaccinated against COVID-19” on 19/11/2021, I looked online for locations to be vaccinated and I found the health department popup clinic for Merredin.
Answering their questionnaire, I responded that at this time I don’t consent to receiving a COVID-19 vaccine as I do not believe that being directed/ordered/coerced is the same as consenting. They advised I couldn’t receive the vaccine at this time as I didn’t agree to it.
30 The Board is of the view that it is open to it to consider that the appellant understood that he was directed to be vaccinated.
31 However, the respondent submits that the appellant did not disobey a lawful direction to become vaccinated and therefore did not commit a breach of discipline. Following the revocation of the CCS Directions on 10 June 2022, the respondent submits that the appellant can lawfully perform most of the duties of the role in which he was formerly employed from that date.
32 In these circumstances the Board will adjust the decision to dismiss the appellant by quashing that decision.
Back Pay, Continuity of Entitlements and Compensation
33 The appellant seeks orders that the decision to dismiss him be quashed, that he be reinstated from 1 December 2021 and related consequential orders for back pay, continuity of entitlements and compensation. The appellant says he was at all times able to lawfully perform the inherent requirements of the role.
34 The appellant refers the Board to the decision of the Board, constituted differently, in Trevor Walley v Director General, Department of Biodiversity, Conservation and Attractions [2021] WAIRC 00569; (2021) 101 WAIG 1419:
[98] It is uncontroversial that the power in s 80I does not allow for the award of compensation for unfair dismissal, as may be ordered under s 23A of the Act. However, s 80I(1) does enable the Board to order the re-employment of an appellant with consequential orders for the payment of past lost benefits: Martin v The Director General of Health in his incorporated capacity under s.7 of the Hospitals and Health Services Act 1927 (WA) [2012] WAIRC 00703; (2012) 92 WAIG 1620. That is the relief that Mr Walley seeks.
35 The appellant also refers us to the decision in Edward Picks v WA Country Health Service Board [2020] WAIRC 00806; (2020) 100 WAIG 1400:
[82] The decision to dismiss should be adjusted such that it is replaced with a decision to impose a warning and improvement action in the form of training. Mr Picks should be reinstated without loss and with continuity of employment benefits. His service should be deemed continuous for all relevant purposes.
36 The appellant submits these two decisions are authority for the proposition that ‘adjustment’ through reinstatement of employees to their former position is without loss and with continuity of employment benefits.
37 The respondent opposes the Board making orders for back pay, continuity of entitlements and compensation. The respondent contends that the appellant was unable to lawfully perform the inherent requirements of his role from the date of dismissal until 10 June 2022 and cannot establish that he was ready, willing, and able to lawfully work. Furthermore, the respondent contends that the Board does not have the power to make the orders sought because the only remedy available is for the Board to ‘adjust’ the decision the subject of the appeal. In this matter the decision was a decision to dismiss the appellant.
38 The respondent submits the Board does not have power to award compensation and refers the Board to the decision of the Industrial Appeal Court in State Government Insurance Commission v Johnson (1997) 77 WAIG 2169, 2170 (SGIC), Anderson J held:
The only "matter" which is referred to in that paragraph is "a decision, determination or recommendation ... that the Government officer be dismissed". It is that, and only that, which may be “adjusted” in the exercise of this particular aspect of the Board’s jurisdiction. The power to "adjust" a decision or determination can only be a power to reform the decision in some way. In the case of a decision or determination by an employer to dismiss an employee with one month’s pay in lieu of notice, the most obvious way to do that would be to reverse it. Whether there may be other ways of adjusting such a decision is perhaps an open question. It may be arguable that the power to adjust a decision of dismissal includes a power to adjust the period of notice. The issue does not arise in this case because no such adjustment was sought by the respondent.
39 The respondent contends the Board has the power to quash a decision to dismiss but does not have the power to make consequential, ancillary, or subsidiary orders. The respondent submits that any matters that may flow from an order to quash a dismissal may be agitated in another authority, for example the Industrial Magistrates Court, but are not within the powers of the Board to determine.
40 In Director General, Department of Biodiversity, Conservation and Attractions v Cosentino & Ors [2022] WASC 306 the Supreme Court considered the powers of the Public Service Appeal Board:
[37] On an appeal before the Board, it has the power to hear and determine the appeal and adjust ‘all such matters’ referred to s 80I(1)(b); that is, any decision of finding referred to in s 78(1)(b) of the Public Sector Management Act.
…
[39] Section 78(1)(b)(i) refers to a decision under provisions relating to substandard performance, and s 78(1)(b)(ii) to (iv) refer to decisions or findings under provisions relating to disciplinary matters, including a decision to take disciplinary action under s 82A(3)(b).
[40] The decision under s 82A(3)(b) is whether to take disciplinary action, or improvement action, or both, or to take no further action. Disciplinary action may be a reprimand, a fine, transfer, reduction in remuneration, reduction in classification, or dismissal.
[41] I can see nothing in the other provisions of either Act, or in their context, to support a construction of s 78 or s 80I(1)(b) that goes beyond the ordinary meaning of the words used.
41 The Chief Health Officer’s Direction imposed restrictions on persons who are community care service workers entering community care services’ facilities or a community care services’ accommodation if they had not been partially vaccinated.
42 The appellant’s duties involved attendance at community care services’ facilities and as the appellant was not vaccinated, he was not able to perform, and did not perform, the full duties of his position.
43 The Board notes that an appellant may be entitled to any loss of pay due to a suspension made under s 82 of the PSM Act being restored by s 82(5). An appellant bears the onus of establishing the facts to establish that on the balance on probabilities he was suspended under s 82 of the PSM Act; The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404 at 426.
44 The evidence before the Board is that the CCS Directions precluded the appellant’s attendance at his workplace and from performing his duties. There is nothing that supports or infers that a decision was made to suspend the appellant without pay under s 82 of the PSM Act.
45 The provisions of the PSM Act are not necessarily the only or exclusive source of an entitlement to direct an employee not to attend work or to withhold an employee’s pay. Common law principles, the employment contract and industrial instruments may also apply to the extent that they are not inconsistent with the PSM Act: Director General, Department of Justice v The Civil Service Association of Western Australia Incorporated [2003] WAIRC 07994; (2003) 83 WAIG 908 (Bowles).
46 The Board’s power, applying Director General, Department of Biodiversity, Conservation and Attractions v Cosentino & Ors, is limited, under section 80I(1)(d) of the IR Act, to adjusting the decision of the respondent. In this matter it is the decision to dismiss the appellant. The Board has no power to adjust matters that do not form part of the dismissal decision appealed from and is not able to make the orders sought by the appellant.
47 An appellant may become entitled to the accrual of benefits because of the consequences of an order quashing a decision to dismiss, however as canvassed earlier in these reasons the Board is limited to adjusting the respondent’s decision to dismiss and accordingly, the Board has no power to make orders concerning the continuity entitlements. An appellant will need to consider alternate jurisdictions to pursue any entitlements they believe are owed to them.
Does the ‘No Work No Pay’ Principle Apply to Public Service Officers?
48 The appellant submits that the principle of ‘no work, no pay’ established in Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435 does not apply to public service officers.
49 The appellant refers the Board to the decision of the Full Bench in The Civil Service Association of Western Australia v Commissioner of Police, WA Police Service [2019] WAIRC 00020; (2019) 99 WAIG 110 and the observations of Smith AP at [74]:
Secondly, in Watson's case, an issue arises in respect of public service officers as to whether the terms of a person's employment provide that the payment of salary attaches to the office, or whether it is conditional on the performance of the duties of the office. In the former case, the principle in Watson does not apply. Whether Ms Richardson's terms of employment provides for salary that attaches to her office as a Level 2 Administrator was not a matter that was the subject of evidence nor argument before the Arbitrator (see the discussion on this point by G J McCarry, Aspects of Public Sector Employment Law (1988) pp 186 - 203).
50 The respondent submits that the ‘no work, no pay’ principle does apply to public service officers and refers the Board to a decision of the Full Bench in Bowles.
51 The application of the industrial principle of ‘no work no pay’ means an employee who does not perform work as directed is not entitled to payment: Csomore & Anor v Public Service Board of New South Wales (1986) 10 NSWLR 587 (Csomore).
52 Under this principle, the appellant’s entitlement to the payment of wages required him to perform the full range of work assigned to him and to follow all reasonable and lawful directions: Csomore per Rogers J at 595.
53 The Board is not able to identify any provision of the PSM Act which implies an obligation on the part of an employing authority to pay a person when service is not rendered, nor is such a provision contained in the relevant Award or the relevant Agreements. The appellant was not able to lawfully perform the full duties of his role and therefore does not have an entitlement to pay for that period.
54 The observations of Smith AP in The Civil Service Association of Western Australia v Commissioner of Police, WA Police Service are that there is an open question concerning the application of the ‘no work, no pay’ principle and is not a conclusion that the principle does not apply to public service officers. The appellant has not referred the Board to any other authority for his contentions that the principle does not apply.
55 The Board has not been persuaded that the appellant has made out his claim that the ‘no work, no pay’ principle does not apply to his circumstances in this appeal.
Conclusion
56 For the reasons set out above, the Board will order that the decision to dismiss the appellant will be quashed.