APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 15 JULY 2022

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00670

DELIVERED : THURSDAY, 10 AUGUST 2023

FILE NO. : PSAB 62 OF 2022

Appellant

AND

The Director General, Department of Justice

Respondent

CatchWords : Public Service Appeal Board – Dismissal – Mandatory vaccination – Appellant unable to perform full scope of duties because of vaccination status – Appellant disobeyed a reasonable lawful order – Dismissal not unfair

Legislation : Industrial Relations Act 1979 (WA) s 26(1)(a), s 80I

  Industrial Relations Act 1988 (Cth)

  Public Sector Management Act 1994 (WA) s 80, s 80A, s 82A, s 78

  Public Health Act 2016 (WA)

Result : Application dismissed

Representation:

Appellant : Ms D Larson (of counsel)

    Mr R Sumner (as agent)

Respondent : Mr J Carroll (of counsel)

Case(s) referred to in reasons:

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

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

Qantas Airways Ltd v Christie [1998] HCA 18; (1998) 193 CLR 280

Reasons for Decision

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

2         Ms Steele was employed as a Level 4 Senior Community Engagement Officer (SCEO) with the Registry of Births, Deaths and Marriages, Department of Justice (Registry) from October 2008 until 15 July 2022 when she was dismissed by the Director General, Department of Justice.

3         The Director General took disciplinary action because Ms Steele did not follow a lawful order to be vaccinated against COVID-19 or show evidence of an exemption by 4 February 2022 (Employer Direction). The Director General says that Ms Steele was required to attend remote Aboriginal communities. This meant that she was subject to directions issued by the Chief Health Officer and was required to be vaccinated or be exempt from vaccination. 

4         Ms Steele maintains the Employer Direction did not apply to her because her position changed after the Registry was restructured. To the extent that the Employer Direction relied on the Chief Health Officer’s directions, Ms Steele says that she was led to believe the SCEO role did not require travel to remote Aboriginal communities. As such, there was no breach of discipline as intrastate travel was not an inherent requirement of her position. In circumstances where Ms Steele suffered stress and anxiety from the pandemic and the potential side effects of being vaccinated, and there was a lack of clarity about her new duties, Ms Steele says her dismissal was harsh, oppressive and unfair. Ms Steele seeks reinstatement to her position or a similar position, payment of lost salary and continuity of service-related benefits.

5         The Director General says that regardless of the change in Ms Steele’s job description, travel to remote communities remained a part of her duties, along with attending hospitals and schools. In light of her duties and the Chief Health Officer’s directions, the Employer Direction was lawful and reasonable, and the failure to comply amounted to a breach of discipline. The contravention meant Ms Steele was unable to fulfil the whole range of her duties at the Registry.

What the Board must decide

6         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.

7         Given Ms Steele denies that she 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. Ms Steele committed a breach of discipline by disobeying or disregarding a lawful order; and

c. the Board should adjust the decision to dismiss.

8         As the Board chaired by Emmanuel C set out in Heller-Bhatt v Director General, Department of Communities [2022] WAIRC 00719; (2022) 102 WAIG 1457:

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.

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.

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 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).

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 [8] – [11].

Background

9         The following background is not in dispute.

10      Ms Steele has worked for the Registry since around 2008. She has regularly attended Open Days in her role as a Level 4 Project Officer since 2016. Open Days are an initiative of what is now known as the Aboriginal Justice Unit. At least twice a month, a Project Officer would travel to remote Aboriginal communities to ‘take services to the community.’ This work was shared between Ms Steele and her colleague, Ms Susan Apina, who was also a Level 4 Project Officer.

11      In around late 2020 or early 2021, Ms Steele’s manager, Mr Rohan Quinn, explained to staff including Ms Steele that a restructure of the Registry would increase staff and expand service delivery to different community groups. Following the restructure, there would be two Level 2 administrative support staff, two Level 3 Project Officers responsible for attending Open Days and one Level 5 Manager. The Level 4 Project Officer roles would become Level 4 SCEOs and be involved in engagement, networking and liaising. Ms Steele was unhappy about the proposed restructure, particularly because she wanted to continue to do work in remote communities.

12      In around September 2021, Ms Steele and Ms Apina met with the Registrar of Births, Deaths and Marriages (Registrar) and Mr Quinn (September Meeting) where they discussed the proposed restructure. During the meeting, Ms Steele experienced a transient global amnesia episode.

13      The Registry was restructured in 2021. Ms Steele and Ms Apina became Level 4 SCEOs, with the Job Description Form for that role (SCEO JDF) becoming effective in September 2021.

14      The SCEO JDF states:

Key Role Statement

The Community Engagement Team identifies and analyses community needs and trends to develop responsive, innovative and practical policies and programs that deliver Registry services to key stakeholders and diverse community groups.

The Senior Community Engagement Officer is the key liaison point for internal and external stakeholders and community groups of diverse backgrounds, cultures and minority groups. The incumbent cultivates, develops and maintains effective relationships and networks with key stakeholders, including Aboriginal communities, funeral directors, celebrant associations, other public sector agencies and not-for-profit associations.

Job Related Requirements

● Plans, coordinates and schedules Registry related educational service delivery and support programs, and undertakes intrastate travel to deliver these programs throughout the metro and regional areas of Western Australia

…

15      Intrastate travel is also listed under ‘Special requirements/equipment’ in the SCEO JDF.

16      Between September 2021 and January 2022, under powers granted to him by the Public Health Act 2016 (WA), the Western Australian Chief Health Officer (CHO) issued various directions including (CHO Directions):

a. Health Worker (Restrictions on Access) Directions (No 3), given 22 September 2021 (Health Worker CHO Directions);

b. Remote Aboriginal Community Worker (Restrictions on Access) Directions, given 8 December 2021 (Remote Community Worker CHO Directions); and

c. Education Worker (Restrictions on Access) Directions (No 4), given 22 December 2021.

17      The effect of those CHO Directions is that:

a. Ms Steele had to be partially vaccinated against COVID-19 by 1 January 2022 and fully vaccinated by 1 February 2022 to access remote Aboriginal communities;

b. Ms Steele had to be partially vaccinated against COVID-19 by 1 January 2022 and fully vaccinated by 31 January 2022 to access schools; and

c. Ms Steele had to be partially vaccinated against COVID-19 by 1 December 2021 and fully vaccinated by 1 January 2022 to access health care facilities, hospitals and ancillary buildings.

18      In a letter dated 31 January 2022, the Director General issued a direction to Ms Steele to be vaccinated against COVID-19 unless exempt and to provide evidence of vaccination or exempt status by 4 February 2022.

19      The Director General wrote that: ‘[u]nder the [CHO] Directions, employees providing Government services where they work in or attend Remote Aboriginal Communities must be fully vaccinated’ and ‘as an employee required to attend Remote Aboriginal Communities as an essential requirement of your position [you] are required to have been fully vaccinated against COVID-19 before 31 January 2022 (or be exempt from the requirement to be vaccinated).’

20      Ms Steele did not get vaccinated or provide evidence of exemption.

21      In a letter dated 8 March 2022, the Director General advised Ms Steele that she was in breach of the Employer Direction.

22      The Director General wrote again to Ms Steele on 13 May 2022 to advise that disciplinary proceedings had commenced in response to allegations that she had disobeyed or disregarded a lawful order to be partially vaccinated, or provide evidence of vaccination or exemption by 4 February 2022. Ms Steele was found to have committed two breaches of discipline and was dismissed on 15 July 2022.

23      The Remote Community Worker CHO Directions were revoked on around 15 June 2022, and were no longer in effect when Ms Steele was dismissed.

Was the Employer Direction a lawful order?

Evidence

24      Ms Steele gave evidence. She also called her former colleague Ms Apina to give evidence. Ms Apina held the role of Senior Community Engagement Officer until she resigned in October 2022.

25      Ms Alison Jackson, Mr Rohan Quinn and Ms Cherena Thompson gave evidence for the Director General. Ms Jackson is the Registrar. Mr Quinn is the Manager of Registry Services and Ms Thompson is the Manager of Community Engagement.

Ms Steele

26      Ms Steele gave evidence about how Open Days were established and funded, as well as what they involved. Ms Steele explained that she loved doing that work. She found it challenging and rewarding.

27      Ms Steele gave evidence about being unhappy about the proposed restructure. She remembers saying to Mr Quinn  during the conversation set out at [12]: ‘[y]ou’re – you’re taking my job away’ and ‘I wanted to go to the communities’. Because of her travel commitments, Ms Steele was only able to attend one of a series of presentations the Department had organised to communicate details of the restructure to staff. Ms Steele said she received the SCEO JDF in August 2021 and her change in role was formally recorded on the human resources system in mid-September 2021. Ms Steele still travelled to remote communities in November 2021. She did not notice a change in her duties in November or December 2021. The effect of Ms Steele’s evidence was that the restructure was not well-handled and it was unclear what her day-to-day duties would involve.

28      Ms Steele gave evidence that she thought the CHO Directions would not apply to her, because her job no longer required travel to remote communities. However Ms Steele also gave evidence that she was told her new role would still involve going out to communities and travelling, but it was not apparent to Ms Steele that there would be budget for that.

29      Ms Steele’s evidence was that when she received the Employer Direction to be vaccinated by 31 January 2021, she still thought that the Employer Direction did not apply to her because she was no longer travelling to remote communities. Ms Steele said that she asked Registrar Jackson about whether the Employer Direction applied to her. In effect, Ms Steele’s evidence was that Registrar Jackson told her that the Employer Direction did apply to Ms Steele, because the key role statement from Ms Steele’s previous JDF was in the SCEO JDF.

30      In cross-examination, Ms Steele:

a. confirmed that she had provided informal feedback to Mr Quinn about the draft JDF before it was formalised;

b. said that she did not remember what was discussed at the September Meeting because she experienced a transient global amnesia episode. She could not remember being reassured by Registrar Jackson that she would still attend remote Aboriginal communities in her new role. Ms Steele said: ‘[n]o, I – I mean, she might have said that. I – I really can’t remember’;

c. agreed that she and Ms Apina were the most obvious candidates to train new staff to attend Open Days;

d. agreed that she could potentially be required to attend hospitals as part of the liaison aspect of the SCEO role;

e. said the chance she would travel in her new role was remote, because she was not given a budget. Further, Ms Steele said she thought it was highly unlikely that she would travel to a remote Aboriginal community under her new JDF;

f. said that she understood from the SCEO JDF that she would not need to attend remote communities anymore, but eventually Ms Steele conceded that the SCEO JDF allowed for travel to remote Aboriginal communities;

g. eventually conceded that it was part of her SCEO role to be involved in education and education programs, including in remote Aboriginal communities if budget allowed for that;

h. eventually conceded that intrastate travel could include travel to remote Aboriginal communities;

i. conceded that she would not be able to fulfill all her duties (for example by travelling to a remote Aboriginal community) unless she was vaccinated; and

j. said that she was stressed because she did not want to be vaccinated. She took personal leave because she was so stressed about the situation.

31      When asked in re-examination whether Ms Steele would have been more willing to consider being vaccinated if she thought she was still going to visit remote communities, in effect Ms Steele said that she looked into other types of vaccinations (such as Novovax), but they were also ‘getting a bad rap.’

Ms Apina

32      Broadly Ms Apina’s evidence about the restructure was consistent with that of Ms Steele.

33      Ms Apina gave evidence that at the meeting referred to in [12] above, Mr Quinn explained that the restructure would mean that Ms Steele and Ms Apina would no longer go to Open Days. Instead that responsibility would be given to the two new Level 3 positions. Mr Quinn said that Ms Steele and Ms Apina would do community engagement work, including liaising with hospitals, ministers of religion and community agencies such as RUAH. Ms Apina gave evidence that she understood that there would be some travel in her new role, but not to Open Days. Ms Apina said twice that the new role would probably involve attending hospitals.

34      Ms Apina gave evidence about a meeting she had with her new manager, who outlined the new duties of the Level 4 SCEO role, as well as the Level 2 and 3 duties.

35      Generally, Ms Apina gave evidence about the restructure process being unclear and lacking in consultation.

36      The effect of Ms Apina’s evidence was that she was vaccinated, but on her doctor’s advice in March 2022 she began working from home. Ms Apina gave evidence that in August 2022 she was asked to return her corporate credit card because she was no longer required to travel. In cross-examination Ms Apina confirmed that her corporate credit card had expired when she returned it and she no longer needed a corporate credit card.

37      In cross-examination Ms Apina:

a. agreed that she had signed the draft JDF for her new role before it was finalised, saying she had ‘only browsed it’;

b. agreed that the SCEO JDF provided that the role required intrastate travel to deliver education service delivery and support programs;

c. said she was not sure whether her work with hospitals had to be inside hospitals;

d. said she did not think it would be possible to provide education and engagement through the medical services in remote Aboriginal communities;

e. was reluctant to agree that increased education services would lessen the need for Open Days;

f. conceded that she was not responsible for the allocation of the budget; and

g. denied that she could not perform all her duties by working from home. In effect Ms Apina said she could do any training over video.

38      Ms Apina was cross-examined about the September Meeting. She could not recall what was discussed at that meeting before Ms Steele experienced the medical episode. She said she could not remember if Mr Quinn said that the Level 3s would be the people primarily attending Open Days, but that Mr Quinn did say that the Level 4 SCEOs would educate stakeholders in the community.

39      Ms Apina denied that she and Ms Steele were told that:

a. their position would still be required to attend some Open Days;

b. they would be required to at least provide backfill to the Level 3 Officers; and

c. they would leave the office and engage with the community out in the community.

40      Ms Apina resigned in October 2022 and later discovered that her position had been abolished.

Registrar Jackson

41      Registrar Jackson gave evidence about the restructure. She explained that it was necessary to meet changing community needs and increased demand for services. The two Level 3 Community Engagement Officer roles would attend events in regional and metropolitan areas, while the two Level 4 SCEO roles were to develop relationships and partnerships with stakeholders including non-for-profits, development commissions, the Department of Communities, job seeker agencies, hospitals and schools in the Kimberley and Pilbara. Registrar Jackson said the Level 4 SCEO role would involve hospital education in regional and metropolitan areas, particularly in the regions. Engagement with stakeholders would occur in person and from Perth. Registrar Jackson gave evidence about the benefits of face-to-face interactions, particularly for Aboriginal and Torres Strait Islander community groups.

42      Registrar Jackson gave evidence that the Level 4 SCEO role would still attend Open Days, although less frequently than the Level 3 roles, and the Level 4 SCEOs would perform the education and engagement part of their role on either side of the Open Days when they could arrange meetings with relevant stakeholders.

43      Registrar Jackson said that at the September Meeting she reassured Ms Steele that she would still have the opportunity to travel to Open Day events across the State in her new role, albeit less frequently than Ms Steele and Ms Apina had been doing. Registrar Jackson gave evidence that Ms Steele enjoyed attending Open Days and was good at doing so.

44      In cross-examination Registrar Jackson:

a. maintained that the Level 4 SCEOs would attend Open Days and do community engagement, as well as to cover leave periods for Level 3s;

b. maintained that she and others had told Ms Steele that Ms Steele would be required to attend remote communities as part of her new role;

c. confirmed that there was budget for Ms Steele to travel to Open Days in the Level 4 SCEO role, although she could not remember discussing that with Ms Steele;

d. said no Level 4 SCEO attended Open Days in 2022, because Ms Apina was working from home for medical reasons and Ms Steele was not working at the Registry; and

e. conceded it was not essential that all engagement be done face-to-face and agreed that Ms Steele had been able to complete some (though not all) of her duties while working from home.

Ms Thompson

45      Ms Thompson gave evidence that there was capacity for the Level 4 SCEO positions to attend Open Days when Level 3s were not able to. The effect of her evidence was that it was preferable that:

a. Level 3s be trained in how to do Open Days by attending those Open Days with a Level 4 SCEO; and

b. Level 4 SCEOs engage in face-to-face with community stakeholders, including in remote Aboriginal communities.

46      Ms Thompson was asked about Exhibit A1, a handwritten document of notes taken of a meeting she had with Ms Apina. Ms Thompson explained that the document was a preliminary list of items her team would be responsible for following the restructure. In re-examination she described the document as a guide she developed to facilitate a discussion with Ms Apina. Ms Thompson said the document was not a finalised list of her team’s new duties.

47      Ms Thompson confirmed that the Registry attended schools during Open Days and that she had no knowledge of budget for travel.

Mr Quinn

48      Mr Quinn has worked for the Director General for over 40 years and for the Registry since 2010. He manages teams across the Registry, including the team managed by Ms Thompson.

49      Mr Quinn gave evidence about the restructure, including staff consultation and communication. He explained that the Level 4 SCEO position was responsible for proactive and broad community engagement and education across Western Australia. Mr Quinn acknowledged that Ms Steele and Ms Apina had the knowledge and experience to perform that work.

50      Mr Quinn gave evidence that he went through the draft version of the SCEO JDF with Ms Steele and Ms Apina, and asked them to provide him with feedback on the draft.

51      Mr Quinn’s evidence was:

a. he made it clear to Ms Steele and Ms Apina that in the Level 4 SCEO role they would still be required to travel in order to provide education and support to communities across the State;

b. when Ms Steele raised her concerns with him (formally and informally) about not being able to do Open Days, he reassured Ms Steele that even though it would no longer be her primary role to attend events, there would still be opportunities for her to travel; and

c. Level 3s would do core Registry work at Open Days, while Level 4 SCEOs would provide community outreach at Open Days.

52      In cross-examination, Mr Quinn maintained that he told Ms Steele that there would be opportunities for her to attend remote communities from time to time in her Level 4 SCEO role. Mr Quinn acknowledged that Ms Steele’s medical episode affected her memory of the September Meeting, but he said that would not have affected her understanding of the restructure, because it was not the first discussion they had had about the changes to her role. In effect, in re-examination Mr Quinn said he was confident that the intent of the SCEO role was made clear to Ms Steele.

Ms Steele’s submissions

53      In essence Ms Steele submits that the Employer Direction was not a lawful order because the Remote Community Worker CHO Directions were not relevant to her role. Following the restructure, Ms Steele understood that her SCEO position was Perth-based and the Level 3 positions would travel to Open Days. Ms Steele argues that if Level 4 SCEOs were expected to travel, the calendar would have set out as much and it did not. In closing, counsel for Ms Steele said: ‘[s]o the respondent has said that they told Ms Steele that she’d be attending remote communities, but they’ve not said how often that would be, how this would be affected by COVID, how much Perth and other regional travel there would be, or how this would be funded.’

54      In disputing that the Employer Direction was lawful, Ms Steele argues that assessing the reasonableness of the Employer Direction must take into account the ‘significant pressure applied to employees to surrender bodily integrity’ and ‘the circumstances of the direction for vaccination need to be assessed against the need for vaccination’.

55      Ms Steele acknowledges that the SCEO JDF provides for some travel but says that does not necessarily mean that travel to remote communities is an inherent part of the role. Ms Steele argues that travel to remote communities must be an inherent part of Ms Steele’s role in order for the Employer Direction to be a lawful order. She says Qantas Airways Ltd v Christie [1998] HCA 18; (1998) 193 CLR 280 holds that a task is an inherent requirement if it is essential to the position or the position would not be the same without it. She says the evidence shows that responsibility for attending Open Days transferred to the Level 3 roles and there was no budget for the Level 4 SCEOs to travel to remote communities. Ms Steele says that travel to remote communities was not a duty of the Level 4 SCEO role and therefore not an inherent requirement of the position. She says the Employer Direction ‘cannot be lawful if there was never going to be any travel to a remote community. Undertaking intrastate travel is not the same as attending Open Days.’

56      Ms Steele submits that the evidence of the Director General’s witnesses shows that there was a lack of clarity about the day-to-day duties of Ms Steele’s new role. As such, it was reasonable for Ms Steele to have been confused about that matter.

57      Ms Steele’s submissions focussed on what Ms Steele considered was poor consultation  and communication with staff about the detail of what their new roles would involve on a day-to-day basis. The effect of Ms Steele’s submission is that it was reasonable for Ms Steele to have concluded that the CHO Directions (and accordingly, the Employer Direction) did not apply to her as a result of this poor consultation and communication.

58      Ms Steele’s counsel seemed to accept that the CHO Directions that applied to hospitals  applied to Ms Steele, but argued that it was not clear exactly what Ms Steele would have been required to do at a hospital, and potentially she could have done the work remotely.

The Director General’s submissions

59      The Director General argues that Ms Steele and Ms Apina were poor witnesses because they did not answer the questions put to them, they gave reluctant or tailored evidence and their answers sought to assist Ms Steele’s case. The Director General says where there is a conflict on key issues the Director General’s witnesses should be preferred. Their evidence was not challenged in cross-examination.

60      The Director General submits that the Employer Direction was lawful and reasonable because:

a. if attending remote Aboriginal communities falls within the scope of an employee’s duties, then it is lawful and reasonable to be vaccinated so that the employee can attend those places, even if travel is rare;

b. the evidence showed that it was part of Ms Steele’s duties to attend remote Aboriginal Communities, schools and hospitals (all of which are covered by CHO Directions) for stakeholder education and engagement;

c. the employer can decide how employees perform their duties, including facilitating face-to-face engagement with communities; and

d. any confusion about the restructure was not caused by the Department. Ms Steele had opportunities to discuss the changes to her role with her manager. She was assured that she would continue to attend remote communities.

61      The Director General says that remote Aboriginal communities, schools and hospitals were subject to the CHO Directions.

62      The Director General argues that even if travel to remote Aboriginal communities was rare, it would still be a sufficient basis to establish the lawfulness and reasonableness of the Employer Direction. Ms Steele was required to comply with the Employer Direction and her failure to comply was a breach of discipline. The Director General says that just because something does not occur often or regularly does not make it non-essential to the role and not an inherent requirement. In any event, the Director General submits that whether or not travel was an inherent requirement is not the point. The point is that travel to remote communities was part of the scope of duties.

63      The Director General submits that the CHO Directions were reasonable and lawful at the time they were made. If the Director General wanted Ms Steele to travel to remote communities, she needed to be fully vaccinated in order to do so. By not being vaccinated, Ms Steele created a situation where she was unable to travel.

64      Further, the Director General submits that Ms Steele would have been required by the Health Worker CHO Directions to be vaccinated to do community education and engagement in hospitals. When the various CHO Directions were introduced, the Government indicated that they could be in place for two years. The Director General may reasonably have wanted staff to attend hospitals and health care facilities at some point during that period.

65      The Director General disputes Ms Steele’s confusion regarding the scope and responsibilities of her position. He says that senior staff made clear to Ms Steele that she would continue to attend remote Aboriginal communities after the restructure took effect. Further, any confusion that the appellant held regarding her role was not confusion caused by the Director General, and not based on beliefs reasonably held by Ms Steele.

66      The Director General argues that it is lawful and reasonable to issue the Employer Direction so that Ms Steele could lawfully perform all of her duties in light of the CHO Directions.

Consideration

67      The Board in Heller-Bhatt held:

It is not in dispute that CHO directions that are in force stand as valid law. The Board cannot ignore or overturn the effect of CHO directions [85].

 And [93] – [95]:

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

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

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

His Honour held at [23]:

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

68      We respectfully adopt his Honour’s reasoning and that of the Board in Heller-Bhatt, and apply their reasoning in this matter.

69      The Board must view Ms Steele’s conduct in the context of the employment relationship as a whole, considering matters including the employment contract, her JDF, the effect of the CHO Directions, the nature of the Department’s ‘business’ and the position held by Ms Steele.

70      The most significant fact in dispute on the evidence is whether travel to remote Aboriginal communities was within the scope of duties for the SCEO role. This involves considering whether Ms Steele was told that she would still travel to remote Aboriginal communities in the SCEO role.

71      To the extent of inconsistency in the testimony, the Board prefers the evidence of the Director General’s witnesses. This is because, unlike Ms Steele and Ms Apina, the evidence of Registrar Jackson, Ms Thompson and Mr Quinn was neither disturbed nor undermined in cross-examination. Further, the Director General’s witnesses all had good recollection of events.

72      Ms Apina frequently contradicted herself and at times her recollection was poor. At times Ms Apina and Ms Steele were reluctant to answer questions in cross-examination. Understandably, Ms Steele cannot recall the September Meeting because of the medical event she experienced. She rightly conceded that Registrar Jackson may have told her that she would still travel to remote Aboriginal communities. Critically, Ms Steele’s own evidence was that Registrar Jackson told her that the new role would still involve going out to communities and travelling. We accept that there was budget for the SCEO role to travel to Open Days. Finally, Ms Steele eventually conceded that she would not be able to fulfill all of her duties if she was not vaccinated.

73      In our view, the principle in Qantas Airways Ltd v Christie is not relevant to this matter. That case was about the proper construction of the word ‘inherent’ in the Industrial Relations Act 1988 (Cth). That is not in issue in these proceedings. Nor does this matter, in the circumstances, hinge on the quality of the consultation in relation to the restructure. It was apparent from their evidence that Ms Steele and Ms Apina considered that consultation and communication in relation to the restructure was poorly handled. But the Board cannot make findings in relation to that. In any event, even if the restructure was poorly handled, for the reasons that follow the Board finds that the Employer Direction was a lawful order.

74      In our view, the issue in this matter is whether travel to remote Aboriginal communities falls within the scope of Ms Steele’s duties. The evidence clearly shows that it does.

75      It is not in dispute that the role required travel around the State. The JDF says as much and we are satisfied on the evidence that it does, including to enable face-to-face engagement with stakeholders in the community. Whether the travel to remote Aboriginal communities was weekly or less frequently, it was clearly well within the scope of duties, particularly so given:

a. the need to train new Level 3s in how to run Open Days;

b. community engagement and education;

c. the need to attend stakeholder meetings; and

d. the benefit of face-to-face engagement with Aboriginal and Torres Strait Islander stakeholders.

76      We are also satisfied that Ms Steele’s role required her to attend schools and hospitals, which also required her to be vaccinated to comply with the CHO Directions in relation to schools and hospitals.

77      Taking into account Ms Steele’s employment contract, position, JDF, the nature of the Department’s ‘business’ and the effect of the CHO 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 Ms Steele commit a breach of discipline by disobeying or disregarding a lawful order?

78      Ms Steele argues that she did not commit a breach of discipline because the Employer Direction was not a lawful order.

79      Ms Steele appears to submit that even if travel to remote communities was an inherent part of Ms Steele’s role, the Director General failed to adequately explain this to Ms Steele.

80      While not expressly stated, Ms Steele’s written submissions seem to imply either that:

a. the Employer Direction was not a lawful order because it was the Director General’s fault that Ms Steele concluded that the Employer Direction did not apply to her; or

b. even if the Employer Direction was a lawful order, failing to comply with the Employer Direction was not a breach of discipline because it was the Director General’s fault that Ms Steele concluded that the Employer Direction did not apply to her.

81      The Director General says the evidence shows that Ms Steele committed a breach of discipline by disobeying or disregarding a lawful order.

Consideration

82      Ms Steele gave evidence that she did not receive a COVID-19 vaccination or exemption. She submitted that she did not get vaccinated because she was concerned about the side effects of the vaccine, and further, because she believed the Employer Direction no longer applied to her due to the change in her role to Level 4 SCEO position.

83      As set out above, the Board considers that the Employer Direction was a reasonable, lawful order.

84      In our view, the evidence shows that Ms Steele was told numerous times that she would be required to travel to remote Aboriginal communities. She was also told that the Employer Direction applied to her. There was no reasonable basis for Ms Steele to conclude that the Employer Direction did not apply to her. Further, it was clear from Ms Steele’s evidence that she was not simply confused about whether she needed to be vaccinated in order to perform her duties. Ms Steele was not willing to be vaccinated in any event.

85      Ms Steele did not comply with the Employer Direction. We find that Ms Steele disobeyed or disregarded a lawful order because she was not vaccinated and did not provide evidence of exemption by 4 February 2022.

86      Clearly disobeying or disregarding a lawful order amounts to a breach of discipline. Accordingly, Ms Steele committed a breach of discipline by disobeying or disregarding a lawful order.

Should the Board adjust the decision to dismiss?

87      Ms Steele asks the Board to adjust the decision to dismiss ‘so that [she] is reinstated to her former position or a similar one without loss of payment of salary as from 18 March 2022 to date and no loss of benefits or continuity of service.’

88      In effect Ms Steele says that the disciplinary action is based on the Director General’s failure to communicate, which is harsh and unreasonable. Further, Ms Steele argues that the penalty is harsh and oppressive given:

1. the unique circumstances of the COVID-19 pandemic;
2. the lack of clarity around Ms Steele’s role and her expectation that she would not be attending remote communities on a regular basis. In particular, the Director General did not explain to Ms Steele how the CHO Directions would apply;
3. Ms Steele’s otherwise good service for 14 years;
4. Ms Steele is the sole provider for her family;
5. Ms Steele is close to retirement age and future employment may be difficult to find; and
6. the Remote Community Worker CHO Directions were lifted days before her dismissal.

89      Ms Steele submits that the Director General could have chosen to impose a reprimand or improvement action. In the circumstances, Ms Steele argues that there should be no penalty.

90      The Director General argues that no evidence was led in support of any argument about the disciplinary approach taken by other public sector agencies. Accordingly there is no evidential foundation for the Board to find that Ms Steele has been unfairly treated in comparison to employees in a similar position in other government agencies.

91      He says that Ms Steele intentionally and wilfully did not obey a lawful direction and that conduct meant she was unable to perform the full range of her duties for the period of the disobedience. Such conduct plainly warrants dismissal: Heller-Bhatt.

92      In effect, the Director General argues that it is incorrect to say Ms Steele’s case was unique and she was an employee with otherwise good service who faced the unique circumstances of dealing with the COVID-19 pandemic. Many employees faced those precise circumstances in light of the public health directions leading to the Employer Direction to be vaccinated.

93      The Director General says that in light of Ms Steele’s duties and the CHO Directions, the Employer Direction was lawful and reasonable. The failure to comply amounted to a breach of discipline and meant Ms Steele could not fulfil the whole range of her duties for the period of non-compliance. In those circumstances, dismissal was not unfair.

94      The Director General argues the appeal should be dismissed.

Consideration

95      There is no evidence before the Board in relation to how employees of other government agencies were treated. The Board cannot make a finding that Ms Steele was unfairly treated in comparison to employees in a similar position in other government agencies.

96      Ultimately the Board has concluded that travel was an important part of Ms Steele’s role. The Director General was entitled to require her to travel around the State, including to work in remote Aboriginal communities, in schools and in hospitals. At the time the Employer Direction was made, Ms Steele was not able to work in those places because of the CHO Directions in force. Failing to comply with the Employer Direction meant that Ms Steele was unable to perform some of the duties of her role in accordance with her engagement for the period of non-compliance. We consider that in those circumstances, dismissal was not unfair.

97      The Board accepts that Ms Steele loved the work she had been doing, and in particular her work with remote communities. It was obvious on the evidence that Ms Steele was very good at, and passionate about, that work. We accept that Ms Steele’s dismissal has had a significant impact on her. We have considered the matters at [88], but in all the circumstances of the matter the Board is not persuaded that we should adjust the decision to dismiss. Given that at least between February and June 2022 Ms Steele could not travel to remote Aboriginal communities, or attend schools and hospitals, we do not consider that the decision to dismiss Ms Steele was harsh, oppressive or unjust. 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.

Conclusion

98      Application PSAB 62 of 2022 is dismissed.