APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 4 APRIL 2022

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00426

DELIVERED : TUESday, 1 AUGUST 2023

FILE NO. : PSAB 35 OF 2022

Appellant

AND

Main Roads Western Australia

Respondent

CatchWords : Public Service Appeal Board – dismissal – misconduct – alternate deployment – failure of employee to comply with Employer Direction to be vaccinated against COVID-19 – appellant disobeyed a reasonable lawful order – Dismissal not unfair

Legislation : Industrial Relations Act 1979 (WA)

  Public Health Act 2016 (WA)

  Public Sector Management Act 1994 (WA)

Result : Appeal dismissed

Representation:

Appellant : Mr L Conti-Nibali (in person)

Respondent : Mr M McIlwaine (of counsel)

Case(s) referred to in reasons:

Adami v Maison de Luxe Limited [1924] HCA 45; (1924) 35 CLR 143

Director General, Department of Biodiversity, Conservation and Attractions v Cosentino & Ors [2022] WASC 306

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

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

Heller-Bhatt v Director General, Department of Communities [2022] WAIRC 00719; (2022) 102 WAIG 1457

Coal & Allied Mining Services Pty Ltd v MacPherson [2010] FCAFC 83; (2010) 185 FCR 383

McManus v Scott-Charlton [1996] FCA 904; (1996) 70 FCR 16

R v Darling Island Stevedoring and Lighterage Company Limited [1938] HCA 44; (1938) 60 CLR 601

Ronald David Miles & Ors t/a Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385

Roy-Chowdhury v The Ivanhoe Girls’ Grammar School [2022] FWC 849

Reasons for Decision

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

2         Mr Luke Conti-Nibali was employed as an Engineering Associate Level 2/3 by Main Roads Western Australia (Main Roads) from 20 October 2017 until 4 April 2022 when he was dismissed.

3         Main Roads took disciplinary action against Mr Conti-Nibali dismissing him by letter dated 4 April 2022 because he did not follow a direction (Employer Direction) to be vaccinated and provide evidence of vaccination under the Building and Construction Industry Worker (Restrictions on Access) Directions (No 3) (BCIW Directions).

4         Mr Conti-Nibali appeals to the Board to review and adjust Main Roads’ decision to take disciplinary action by dismissing him. Mr Conti-Nibali says he was unfairly dismissed because Main Roads did not permit him to work in an area of the business that did not require him to attend a building or construction site. The appellant contends he was denied an opportunity to negotiate a rotation that would have enabled him to perform the duties of his role at sites or locations that were not subject to BCIW Directions.

5         Mr Conti-Nibali seeks an order that he be reinstated.

6         Main Roads says that Mr Conti-Nibali was not unfairly dismissed as the Employer Direction was a reasonable lawful order. Mr Conti-Nibali’s duties required him to attend at construction sites. The BCIW Directions required him to be vaccinated to lawfully enter or remain at construction sites to perform his duties. Mr Conti-Nibali’s refusal to be vaccinated resulted in him not being able to perform the full range of duties. Main Roads submits that the decision to dismiss Mr Conti-Nibali was fair and the Board ought not adjust the decision.

Legislative Framework

7         In a matter similar to this one, the jurisdiction of the Board and the manner in which it is to be exercised has been previously considered (Heller-Bhatt v Director General, Department of Communities [2022] WAIRC 00719; (2022) 102 WAIG 1457 (Heller-Bhatt) [8]):

Part 5 of the Public Sector Management Act 1994 (WA) (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.

8         Heller-Bhatt [9]:

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.

9         Heller-Bhatt [10]:

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).

10      Heller-Bhatt [11]:

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.

The Board adopts this approach.

Background

11      On 2 December 2021 the Building and Construction Industry Worker (Restrictions on Access) Directions (No 2) were issued (BCIW Directions were issued under the Public Health Act 2016 (WA) (PH Act). The BCIW Directions restricted access to building construction sites to building and construction workers who had been vaccinated against COVID-19, as follows:

a. After 1 January 2022, a person who is a building and construction worker must not enter, or remain at, a building or construction site if the building and construction worker has not been partially vaccinated against COVID-19 to access a building or construction site;

b. After 1 February 2022, a person who is a building and construction worker must not enter, or remain at, a building or construction site if the building and construction worker has not been fully vaccinated against COVID-19 to access a building or construction site.

12      On 16 December 2021 Main Roads notified Mr Conti-Nibali by email that access to a building or construction site was an essential requirement of his position and that the BCIW Directions applied to him. Main Roads directed him to be vaccinated and provide evidence of vaccination in compliance with the BCIW Directions or provide a valid exemption by 31 December 2021:

As access to a building or construction site is an essential requirement of your position, it has been determined that the BCIW Directions apply to you. It is important you understand, in accordance with the BCIW Directions, unvaccinated workers and workers who do not provide the relevant vaccination evidence will not be permitted to enter or remain on site for the purposes of undertaking their work.

Direction to employees

You are directed 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 BCIW 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.

13      Mr Conti-Nibali advised Main Roads that he intended to comply with the BCIW Directions by not accessing the Restricted Area while unvaccinated for the duration of the BCIW Directions. Mr Conti-Nibali requested Main Roads provide documents that established their position that an employee can be disciplined with dismissal for following the instructions of a Chief Health Officer’s Direction. Mr Conti-Nibali maintains that he complied with the BCIW Directions that in effect were instructions that an unvaccinated person cease movement into the building and construction areas.

14      On 23 December 2021 Main Roads emailed Mr Conti-Nibali as follows:

Thanks again for your letter.

It is a requirement of your employment with Main Roads to attend workplaces as directed.

This includes sites covered by the BCIW and other directions. Based on your reply you are advising Main Roads that you will not comply with such direction where the site is covered by BCIW directions.

Accordingly, your next rotation scheduled to commence on 17 January 2022 in Pilbara Region will not proceed unless you provide evidence of COVID-19 vaccination by 31 December 2021. The region will be advised of this decision and we reserve our right to cancel or alter the rotation should you not be vaccinated in accordance with the BCIW directions. In regions you may also be required to attend mining sites covered by the Resources Industry Worker (Restrictions on Access) Directions (No 2) (www.wa.gov.au).

Further, I reiterate that Main Roads will not alter your job requirements or rotations as part of the EA program due to your vaccination choices.

15      On 23 December 2021 Mr Conti-Nibali emailed in response stating that he is following s 180 of the PH Act which prevents him from being able to access the identified restricted areas, and pursuant to s 202(3)(b) he must comply with the s 180 direction above any other written law.

16      By letter dated 30 December 2021, Main Roads notified Mr Conti-Nibali that he would be on a Preliminary Access Restriction Period (PARP) from 1 January 2022 until he provided evidence of vaccination. Mr Conti-Nibali was advised that the PARP was a ‘cooling off’ period of two weeks without disciplinary action being commenced, would be unpaid, and he may apply to use accrued leave, flex credits or time in lieu of overtime. Mr Conti-Nibali was notified that following the expiration of the PARP, Main Roads may commence a disciplinary process and during such period he would not be paid, and termination of employment was a potential outcome.

17      On 31 December 2021, by email and letter Main Roads notified Mr Conti-Nibali that he was not able to undertake any work for Main Roads and/or enter Main Roads’ workplaces on and from 1 January 2022 until he provided evidence of vaccination. Mr Conti-Nibali was not to be paid during this time.

18      On 6 January 2022, Main Roads wrote to Mr Conti-Nibali and notified him that it had been determined that he was in breach of a lawful direction from Main Roads because he remained unvaccinated and/or had not provided evidence of his vaccination status or exemption prior to 31 December 2021. Main Roads stated that on the cessation of his leave on 7 January 2022 Mr Conti-Nibali was unable to undertake any work for Main Roads and/or enter Main Roads’ workplaces until he provided approved evidence of his vaccination status. Mr Conti-Nibali was notified that he would not be paid during this time or be permitted to work from home during the period of the PARP.

19      On 27 January 2022, Mr Conti-Nibali wrote to Main Roads advising that his initial interpretation of the letter dated 23 December 2021 was that he was being directed to comply with the BCIW Directions that restricted access of unvaccinated workers to the emergency area, building and construction site and therefore he would comply with the BCIW Directions by not accessing ‘restricted areas’ or ‘emergency areas’ while unvaccinated for the duration the Direction had effect.

20      On 28 January 2022, Main Roads wrote to Mr Conti-Nibali notifying him that he was required to attend sites covered by the BCIW Directions and he was issued with a direction on 16 December 2021 to comply with the vaccination requirements of the BCIW Directions. Main Roads set out the allegations and the possible consequences if the allegations were proven:

1. You have not complied with the lawful order issued on 16 December 2021 by failing to receive your first dose of a vaccine against COVID-19 by 31 December 2021 and/or present evidence of such vaccination and/or a temporary or medical exemption.

 2. You have not complied with the Vaccination policy by failing to receive your first dose of a vaccine against COVID-19 by 31 December 2021 and/or present evidence of such vaccination and/or a temporary or medical exemption.

If proven, this will be considered a breach of discipline as defined by the Discipline Policy and Procedure (Discipline policy). The Discipline policy outlines the process which will be followed in relation to this matter, a copy of which is enclosed.

If you are found to have disobeyed or disregarded a lawful order it will be considered a breach of discipline under the Discipline Policy and can result in actions being taken including counselling and up to termination of employment.

21      On 3 February 2022, Mr Conti-Nibali responded setting out his belief that the BCIW does not mandate vaccination and require a person to undergo a medical procedure and that the direction to be vaccinated against COVID-19 does not reflect the intent of the Chief Health Officer. Mr Conti-Nibali maintained his view that he was complying with the BCIW Directions because he was not accessing any restricted areas.

22      On 11 March 2022, Main Roads wrote to Mr Conti-Nibali confirming that the allegations set out in the 28 January 2022 letter had been substantiated. Main Roads notified Mr Conti-Nibali that it had concluded that he was refusing to attend sites covered by the BCIW Directions, and a review of the Engineering Associate Job Role Statement confirmed attendance at sites covered by the BCIW Directions was an inherent requirement of his position. Main Roads notified that it reserved the rights to deploy resources to sites covered by the BCIW Directions with little or no notice based on operational requirements. On the basis that Mr Conti-Nibali’s failure to provide evidence of vaccination or an exemption he was unable to fulfill the requirements of this position as Engineering Associate, Main Roads proposed to terminate his employment.

23      Mr Conti-Nibali responded that he was following the BCIW Directions and asserting that Main Roads was not complying with ss 202(1) and 202(3) of the PH Act and that Restrictions on Access does not force vaccination. Mr Conti-Nibali reiterated his claims concerning the failure of Main Roads to conduct a risk assessment and non-compliance with occupational health and safety laws.

24      On 4 April 2022 by letter, Main Roads notified Mr Conti-Nibali that it had decided to terminate his employment because he failed to follow a reasonable direction from his employer.

25      Mr Reichert, Manager Human Resource Business, gave evidence of the engineering associate program and the requirement for participants to do 3 twelve-month rotations in different areas in Main Roads. Mr Reichert’s evidence is that Mr Conti-Nibali was due to go to the Pilbara region on his next and final rotation. The Pilbara region consisted of many large projects related to road and bridge construction. The role of Main Roads is to manage projects including procurement and supervising the contractors engaged to deliver works. This involves staff working on the site of the construction project. Mr Conti-Nibali would be required to attend road and bridge construction sites and possible mine sites. Tasks at road and bridge construction sites included audit and surveillance of the works being undertaken and sampling of materials used.

What Must The Board Decide?

26      An appeal of this type is heard de novo: Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728; (2017) 97 WAIG 1525.

27      Given that Mr Conti-Nibali denies that he disobeyed or disregarded a lawful order, the Board must decide, based on the evidence and arguments before it, whether:

a. The Employer Direction was a reasonable lawful order;

b. Mr Conti-Nibali committed a breach of discipline by disobeying or disregarding a lawful order; and

c. The Board should adjust the decision to dismiss.

Was the Employer Direction a Reasonable Lawful Order?

28      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] HCA 44; (1938) 60 CLR 601 at 621; Adami v Maison de Luxe Limited [1924] HCA 45; (1924) 35 CLR 143 at 151; McManus v Scott-Charlton [1996] FCA 904; (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.

29      The principles the Board will apply are set out in Heller-Bhatt [94]:

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), Allanson J 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.

30      Heller-Bhatt [95]:

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.

The Board respectfully adopts his Honour’s reasoning and applies it in this matter.

31      As in Heller-Bhatt it is not in dispute that the Chief Health Officer’s Directions that are in force stand as valid law. The Board cannot ignore or overturn the effect of the Chief Health Officer’s Directions.

32      Similar to Heller-Bhatt the Board must view Mr Conti-Nibali’s conduct in the context of the employment relationship as a whole, considering matters including the employment contract, his JDF, the effect of the BCIW Directions, the nature of Main Road’s ‘business’ and the position held by Mr Conti-Nibali.

33      It is not in dispute that at the time of his dismissal, the BCIW Directions prevented Mr Conti- Nibali from attending a construction site.

34      Based on the evidence before us, we find:

a. Main Roads has a responsibility to construct and maintain roads and bridges and that Main Roads engages suitably qualified people including Engineering Associates Level 2/3 to support and contribute to its work;

b. Mr Conti-Nibali’s duties involved entering and remaining on construction sites, such as roads and bridges;

c. Mr Conti-Nibali’s next rotation during a period when the BCIW Directions was effective, was to be the Pilbara which involved many large projects including attending at construction sites;

d. At the time Main Roads decided to terminate Mr Conti-Nibali it had no knowledge, nor could it have had, of the duration of the BCIW Directions.

35      Given the BCIW Directions, the Board finds that an employer direction requiring employees to be vaccinated or provide evidence of exemption was reasonably required in order for Main Roads to recruit and maintain a workforce that could lawfully carry out its statutory obligations.

36      Mr Conti-Nibali says it is clear at the time of his dismissal that the BCIW Directions would be revoked within a short period of time. Mr Conti-Nibali says the Chief Health Officer’s Directions were reviewed fortnightly. The Board is not persuaded that there is any evidence that the Chief Health Officer’s Directions and the BCIW Directions would be revoked within a short period in early April 2022. The Board is not persuaded that a two-week review period for the Chief Health Officer’s Directions created circumstances in which the date of revocation of the Directions would be known. As it was the BCIW Directions were revoked on 10 June 2022. This was two months after his dismissal. It is not unreasonable for Main Roads to have issued the Employer Direction in these circumstances.

37      In his appeal notice, Mr Conti-Nibali contended that the Employer Direction was not lawful because Main Roads had not conducted a risk assessment. The Board is not persuaded by this contention. COVID-19 vaccines are approved for use by the Therapeutic Goods Administration (TGA) which is responsible for regulating the supply, import, export, manufacturing and advertising of therapeutic goods. Main Roads does not possess the appropriate expertise to conduct a risk assessment and relies on the TGA for informed medical advice and guidance. The Board is of the view that a further risk assessment was not required, like the conclusion of Young DP in Roy-Chowdhury v The Ivanhoe Girls’ Grammar School [2022] FWC 849:

[103] I consider Ms Roy-Chowdhury's submissions that the School did not respond to her email of 12 November 2021 nor conduct a risk assessment to be of no weight. Firstly, the Directions required that after 18 October 2021 the School take reasonable steps to ensure that Ms Roy-Chowdhury not attend the School premises to perform her role if she remained unvaccinated. A risk assessment of any type was of no relevance in those circumstances. Secondly, the vaccines were approved by the TGA. Accordingly, no further risk assessment relating to the vaccines was required, necessary or relevant.

38      Taking into account Mr Conti-Nibali’s employment contract, position, JDF, the nature of Main Roads’ ‘business’ and the effect of the Chief Health Officer’s Directions, the Board finds that the Employer Direction involved no illegality, fell within the scope of the contract of service and was reasonable in the circumstances. The Employer Direction was a reasonable lawful order.

Did Mr Conti-Nibali Disobey or Disregard a Lawful Order?

39      Similar to the appellant in Heller-Bhatt, Mr Conti-Nibali was aware that his employment was at risk if he did not comply with the Employer Direction.

40      Further like the appellant in Heller-Bhatt, Mr Conti-Nibali did not comply with the Employer Direction because he was not vaccinated and did not provide evidence of vaccination or an exemption by 31 December 2021.

41      As in Heller-Bhatt accordingly, the Board finds that that Mr Conti-Nibali disobeyed or disregarded a lawful order. He committed a breach of discipline.

Should the Board Adjust the Decision to Dismiss?

42      The Board agrees with Mr Conti-Nibali’s assertions that the Employer Direction was not one which authorises involuntary vaccination or any act that interfered with his body without consent. Mr Conti-Nibali was not physically forced to receive the vaccination. He could choose not to receive it. However, that choice had consequences for his employment. The Board agrees with the reasoning of Allanson J in Finlay at [36]:

…An employer seeking to manage their statutory responsibilities for health and safety, and to implement a proper response to the risks of the pandemic for the workforce and others who may be affected, may reasonably issue an order requiring vaccination for employees. While that may result in dismissal for those who choose not to comply, that is not itself an abrogation of the right of bodily integrity and is not itself reason to hold the order unlawful.

43      Mr Conti-Nibali argues that it was unfair for Main Roads to dismiss him because he could have been assigned a rotation that did not require him to access a construction site. Mr Conti-Nibali accepted that he had previously attended building and construction sites and that his next planned rotation would also require him to attend building and construction sites. Mr Conti-Nibali did not contest the assertion by Main Roads that he may be required to attend building and construction sites with little or no notice.

44      Based on the agreed documentary evidence, and witness evidence, the Board finds that Mr Conti-Nibali’s duties involved accessing construction sites. We accept Mr Reichert’s evidence, which was undisturbed, that Mr Conti-Nibali’s next rotation was to be the Pilbara and he would be required to attend construction sites. In this case, failing to comply with the requirement to be vaccinated or provide a valid exemption meant that Mr Conti-Nibali was unable to perform some of the key duties that he was engaged to perform.

45      In Coal & Allied Mining Services Pty Ltd v MacPherson [2010] FCAFC 83; (2010) 185 FCR 383 (MacPherson) [42] – [43], the Full Court of the Federal Court considered the consequences of part performance of duties by an employee:

In my view, at common law it is not helpful to characterise an employer refusal to accept portion only of the work as a type of suspension. In such circumstances, the employees will almost certainly have committed breaches of their contracts. Although minor contractual breaches may not give an employer the legal grounds or the desire to summarily dismiss them, these circumstances are equivalent to a strike. In a strike or in a “no work, no pay” situation where part performance is rejected, the employees are then free to resume work in accordance with their employment contracts.

46      Mr Conti-Nibali could not perform all the duties of his role in accordance with his employment contract. Mr Conti-Nibali’s contention is that Main Roads ought to accommodate his inability to perform the full range of the duties of his position by adjustment and modifying the duties of his position. Main Roads, as established in MacPherson, is not obliged to accept part performance from Mr Conti-Nibali. His conduct in failing to comply and evincing an intention to continue to not comply with the Employer Direction was inconsistent with the continuation of his employment.

47      In the circumstances, the Board does not consider that the decision to dismiss Mr Conti-Nibali on 4 April 2022 was harsh, oppressive or unjust. The Board adopts the reasoning in Heller-Bhatt [109]:

It was not an abuse of the employer’s right to dismiss in the sense discussed in Ronald David Miles & Ors t/a Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385.

48      Even if the Board came to a different view, and found that the dismissal was harsh, oppressive or unjust we do not consider that we should adjust the decision to dismiss because at the time of the dismissal:

a. Mr Conti-Nibali was unable to provide service to Main Roads in accordance with his contract of employment;

b. The effect of the BCIW Directions meant that Mr Conti-Nibali could not perform all of his duties; and

c. It was unknown when (or if) the BCIW Directions would be lifted.

49      Mr Conti-Nibali’s submissions that the Board ought to reinstate him on the basis that his needs or wishes can be accommodated by assigning him rotations that did not require attendance at construction sites is, in effect, formulating new contractual terms.

50      The Board considers that an order reinstating Mr Conti-Nibali on the basis that he not be required to attend construction sites is outside the scope of the Board’s power. As held in Director General, Department of Biodiversity, Conservation and Attractions v Cosentino & Ors [2022] WASC 306 by Allanson J at [37]:

On an appeal before the Board, it has the power to hear and determine the appeal and adjust ‘all such matters’ referred to in s 80I(1)(b); that is, any decision of [sic] finding referred to in s 78(1)(b) of the Public Sector Management Act.

51      As in Heller-Bhatt, here the matters referred include the finding of a breach of discipline and the decision to take disciplinary action in the form of dismissal. Allowing Mr Conti-Nibali to work with adjustments related to the locations or rotations fall outside of those matters. It is not a matter referred to in s 80I(1)(b) of the IR Act. For the Board to make such an order would be beyond power and amount to jurisdictional error. Furthermore, the Board considers that such an order would be inconsistent with the Board’s obligations under s 26(1)(a) of the IR Act. Such an order would not be in accordance with equity, good conscience, and the substantial merits of the case in circumstances where Mr Conti-Nibali could not perform all his duties.

Conclusion

52      For the above reasons, the Board must order that application PSAB 35 of 2022 be dismissed.

NOTE: Case citation number 5 of Case(s) referred to in reasons and paragraphs [7], [8], [9], [10], [29], [30], [31], [32], [39], [40], [41], [47], [51], amended by Corrigendum issued 18 August 2023 ([2023] WAIRC 00713.