UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00694

DELIVERED : TUESday, 15 August 2023

FILE NO. : U 27 OF 2022

Applicant

AND

Shire of Northam

Respondent

CatchWords : dismissal – refusal to wear face covering – inability to enter workplace – duties cannot be done entirely remotely – refusal to comply with lawful and reasonable order – dismissal not unfair

Legislation : Industrial Relations Act 1979 (WA)

  Emergency Management Act 2005 (WA)

Result : Dismissed

Representation:

Applicant : Mr D Sparrow (in person)

Respondent : Mr P Wittkuhn (of counsel)

Case(s) referred to in reasons:

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

Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd t/a Mt Arthur Coal [2021] FWCFB 6059; (2021) 310 IR 399

Briggs v AWH Pty Ltd [2013] FWCFB 3316; (2013) 231 IR 159

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

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

Sommerville v University of Tasmania [2022] FWC 1582

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

Reasons for Decision

1         Mr David Sparrow was employed by the Shire of Northam (the Shire) as an ICT Coordinator from 3 or 4 April 2018 until his employment ended on 14 February 2022. Mr Sparrow says his dismissal was unfair. In his Form 2A – Unfair Dismissal Application Mr Sparrow stated that he did not wish to be reinstated to his former position. Mr Sparrow seeks compensation, an apology, a reference and for the senior management staff to be brought to proper account.

2         The Shire contends that Mr Sparrow refused to comply with a lawful and reasonable order to wear a face mask in compliance with relevant public health orders issued under the Emergency Management Act 2005 (WA) and the decision to dismiss him in these circumstances was not unfair, nor harsh or oppressive.

Background and Facts

3         Mr Sparrow gave evidence on his own behalf. Mr Colin Young gave evidence on behalf of the Shire.

4         On 27 January 2022 the COVID Restrictions (Gatherings and Related Measures) Directions (No 11) (the Emergency Directions) became effective for the Perth and Peel regions. The Directions were issued by the Commissioner of Police and State Emergency Coordinator pursuant to ss 61, 67 and 72A of the Emergency Management Act 2005 (WA). The Emergency Directions required the wearing of face coverings in indoor places with certain exemptions:

PART I: FACE COVERING REQUIREMENTS

Requirement to wear a face covering in certain places

6. Subject to paragraph 8, a person in the affected area must wear a face covering at all times while they are:

 (a) in an indoor space; or

 (b) at or in a residential aged care facility, or residential disability facility, whether in an indoor space or outdoor space; or

 (c) at a hospital; or  

 (d) in a vehicle of any kind, including one that is being used for public  transport, taxi or rideshare services.

7. A person must not, in the affected area, enter or remain:

 (a) in an indoor space; or

 (b) at or in a residential aged care facility, or residential disability facility, whether in an indoor space or outdoor space; or

 (c) at a hospital; or  

 (d) in a vehicle of any kind, including one that is being used for public  transport, taxi or rideshare services,

 unless the person is wearing a face covering or one or more of the face covering exceptions in paragraph 8 apply to that person at that time.

Exceptions from face covering requirements

8. A person is not required to wear a face covering where:

 (a) the person is within or at their home unless another direction requires them to wear a mask at home; or

 (b)  the person is attending a gathering of persons at a home, provided that the gathering is not prohibited by these directions; or

 (c) the person is a child 12 years of age or under, except at any time the child is attending school in Year 7 and above; or

 (d) the person is at the time attending school as a student in Year 6 or below; or

 (e) the person has a physical, developmental or mental illness, injury, condition or disability which makes wearing a face covering unsuitable; or

 (f) the person is communicating with a person who is deaf or hard of hearing and visibility of the mouth is essential for communication; or

 (g) the nature of a person's occupation means that wearing a face covering at that time is impractical to perform that occupation or creates a risk to their health and safety; or

 (h) the person needs to temporarily remove their face covering so as to enable another person to appropriately perform their occupation; or

 (i) the nature of a person's work or the activity that they are engaging in means that clear enunciation or visibility of the mouth is essential; or

 (j) the person is at that time consuming food, drink or medicine; or

 (k) the person is asked to remove the face covering to ascertain identity; or

 (l) not wearing a face covering is required for emergency purposes (other than emergency preparation or emergency preparation activities, unless another exception specified in this paragraph applies); or

 (m) the person is working in the absence of others in an enclosed indoor space (unless and until another person enters that indoor space); or

 (n) the person is a resident in a residential aged care facility or residential disability facility; or

 (o) the person is a patient in a hospital; or

 (p) the person is engaged in an activity involving swimming; or

 (q) the person is running or jogging or otherwise engaged in some form of strenuous or vigorous exercise or physical activity; or

 (r) the person is travelling in a vehicle and either is the sole occupant of that vehicle or is travelling in the vehicle with other persons provided that all the occupants of the vehicle are members of the same household; or

 (s) the person is undergoing medical, dental or beauty related care or treatment to the extent that such care or treatment requires that no face covering be worn; or

 (t) the person is directed by a judicial officer or tribunal member in proceedings in a court or tribunal to remove their face covering to ensure the proper conduct of those proceedings; or

 (u) the person is a prisoner or detainee in a prison, detention centre or other place of custody; or

  Note: Nothing in these directions affects any other power a person may have to require a prisoner or detainee to wear a face covering.

 (v) not wearing a face covering is otherwise required or authorised by law; or

 (w) wearing a face covering is not safe in all the circumstances,

 provided that:

 (x) a person is only excepted from the requirement to wear a face covering under subparagraph (e) if the person produces a medical certificate that certifies that the person has an illness, injury, condition or disability that makes wearing a face covering unsuitable:

 (i) upon request by an authorised officer, and

 (ii) if requested to do so whilst at or on any premises, by the responsible person for those premises or by the staff of the responsible person; and

 (y) where a person is relying on an exception under subparagraph (f) to (w), that person resumes wearing the face covering as soon as reasonably practicable after the person no longer falls within the relevant exception.

5         The same day the Shire sent an email to all staff informing them of the requirement to wear a mask in all indoor settings.

6         The next day Mr Sparrow attended his workplace at the Shire of Northam Administration Centre and did not wear a mask.

7         On his arrival, a member of the Shire’s staff informed him of the need to wear a mask. Mr Sparrow responded that he was not legally obliged to wear a mask.

8         Soon after arriving at the workplace, the Acting Chief Executive Officer met with Mr Sparrow and explained the need to wear a mask. Mr Sparrow denied that he was obliged to wear a mask and claimed to have an exemption. When he was asked to provide evidence of the exemption Mr Sparrow asserted that he was not obliged to provide a copy of the exemption. The Acting Chief Executive Officer advised Mr Sparrow that he was to either wear a mask or leave the premises immediately. Mr Sparrow was informed he could apply for leave. Mr Sparrow proposed that he work from home. The Acting Chief Executive Officer advised he was not approved to work from home.

9         Mr Sparrow left the building.

10      On 28 January 2022, later the same day, the Acting Chief Executive Officer wrote to Mr Sparrow clearly stating that masks must be worn in all indoor public settings, including the workplace and directed Mr Sparrow to wear a mask when attending the workplace:

Please be advised that you must wear a mask when attending the workplace where this is an indoor public setting or produce a medical certificate which certifies that wearing a face covering is unsuitable.

11      On 31 January 2022, Mr Sparrow responded setting out six questions concerning the Shires’ view of the legal status of the Emergency Directions and risks to health from wearing face coverings:

● Do you and the Shire of Northam exec team agree that if mandates are not law, you are all under no legal obligation require general office staff to wear masks in their usual workplace?

● Are you and the Shire of Northam exec team aware of how dangerous to health prolonged mask wearing can be, including and not limited to an increased likelihood of contracting and spreading life-threatening bacterial pneumonia?

● Will you and the Shire of Northam exec team be properly advising staff in your care of the dangers of prolonged mask wearing in their usual workplace?

● Has the Shire sought and obtained legal advice in relation to Shire employees potentially contracting and/or spreading a life-threatening illness via prolonged mask wearing in their usual workplace?

● What assurances are you and the Shire exec team currently providing to staff that, in the event of life-threatening illness being contracted and/or spread by an employee due to prolonged mask wearing, that medical expenses and compensation for loss of income (etc etc) will be provided by the Shire?

● What protections are you and the Shire exec team providing for staff to mitigate the likelihood of staff contracting and spreading life-threatening bacterial pneumonia brought on by prolonged mask wearing?

Mr Sparrow stated:

Aside from “mandates not being law” but rather simply a voluntary contract that a mandator and mandate enter into with each other and, in this case, a contract that I, David A. Sparrow do *not* and have *not* voluntarily entered into nor currently under any legal obligation to do so, please accept the following as my exemption from any kind of unhealthy wearing of masks that increase the likelihood of me and other shire staff contracting and spreading life threatening bacterial pneumonia.

12      Mr Sparrow also stated that he would not disclose medical information, he remained available, able and willing to carry on his usual duties, was prepared to apply to work from home or an alternate agreed location where mask wearing could be avoided and he would not be applying to use any of his leave entitlements.

13      On 1 February 2022, the Acting Chief Executive Officer wrote to Mr Sparrow stating:

NOTICE OF STAND DOWN AND REQUEST TO SHOW CAUSE

As you are aware on 27 January 2022, the State Government issued a Direction which determined that all persons must wear a mask whilst in a public place or workplace from 6pm on that said date including the Wheatbelt Region. As such you cannot lawfully enter any Shire of Northam Building unless you are wearing a mask or have a medical certificate stating that you are exempt from wearing a mask for health-related reasons.

The relevant direction is the COVID Transition (Face Covering) Directions made on 29 January 2022 which came into operation on 12.01am on 31 January 2022. A link is https://www.wa.gov.au/system/files/2022-01/COVID-Transition-Face-Coverinq-Directions.pdf. The Shire therefore has authority to require you to produce a medical certificate as the source of evidence.

I confirm that you left the Shire's premises on Friday 28 January 2022 due to your refusal to wear a mask and your perception that the Shire was unprepared to allow you to remain on the premises in breach of the State's Directions. I confirm that you were stood down without pay.

You will remain on unpaid leave until close of business on Tuesday 8 February 2022 unless you return to work before that date wearing a mask and indicating that you are prepared to abide by the State government's mask-wearing directions moving forward.

It is an inherent requirement of your role that you work in an indoor space, and the Shire is not reasonably able to provide you with alternative duties that avoid the need to work in an indoor space. It is not apparent to the Shire that your duties come within any of the exemptions under the State’s Directions.

I acknowledge that you have asserted the State’s Directions to be legally invalid. The Shire does not accept this stance, however we believe that mask wearing is appropriate from an OSH perspective and I ask that you treat this letter as a direction by your employer to wear a mask at work until further advised, in the interests of public health. Employees must at common law follow lawful and reasonable directions of employers. This direction is made even independently of the State government's direction.

You are invited to attend a Teams meeting at 2pm on Tuesday 8 February 2022 when an opportunity will be given to you to show cause why your employment should not be terminated in relation to the following misconduct.

3. Conduct of Staff

3.1 Personal Behaviour

Staff will:

 (a) act, and be seen to act, properly and in accordance with the requirements of the law and the terms of this Code;

 (f) At all times observe the corporate values of the organisation around conducting themselves in a Safe, Open, Accountable and Respectful manner,

3.4 Compliance with Lawful Orders

 (a) Staff will comply with any lawful order given by any person having authority to make or give such an order, with any doubts as to the propriety of any such order being taken up with the supervisor of the person who gave the order and, if resolution cannot be achieved, with the Chief Executive Officer.

 (b) Staff will give effect to the lawful policies of the Local Government, whether or not they agree with or approve of them.

Please confirm that you will attend by close of business on Monday the 7 February 2022. Should you accept this invitation you are entitled to bring along a support person to sit with you during the Teams meeting.

You remain employed during the stand down period and any accrued leave can be utilised during this time. Should you use the following accrued annual leave you will continue to accrue leave entitlements as normal for those hours only. If you wish to take up other employment during the stand down period, please contact HR Manager Beverley Jones to discuss on 08 9622 6145.

For current information about your workplace entitlements and obligations, including information about stand downs from work, visit the Fair Work Ombudsman Coronavirus and Australian workplace laws website at https://coronavirus.fairwork.gov.au. This includes recent updates and key links to other government bodies that may be able to support you during this time. We are aware that the pandemic and it's effects can cause angst, and we would like to remind you that you can access the Shire of Northam confidential counselling service by contacting Claire Rowe on 0403 575 777.

Thank you for your understanding during this difficult time, I look forward to receiving your acceptance of the meeting invitation. If you have any questions or concerns in relation to this matter please contact the undersigned.

14      On 7 February 2022, Mr Sparrow emailed the members of the Shire of Northam Council, various staff and the Chief Executive Officer in response to the letter of 1 February 2022. Mr Sparrow alleged the letter contained inaccuracies and noted that his questions had not been answered and he reiterated the questions, highlighting some sections. Mr Sparrow stated that he declined to meet on the date proposed by the Acting Chief Executive Officer because it was not on a day he was usually rostered to work. Mr Sparrow stated that he was not required to be at the workplace to perform most of his duties and proposed some tasks within his current duties that he could undertake at home.

15      On 8 February 2022, the Chief Executive Officer wrote to Mr Sparrow setting out responses to his six questions and informing him of the possible consequences of Mr Sparrow’s refusal to comply with the Emergency Directions:

In the circumstances, it is not necessary that you agree to or apply for that state of affairs. If you refuse to comply with the State’s Direction (and the Shire’s lawful and reasonable direction as an employer), then that leaves the Shire with no reasonable options but termination, short-term stand-down without pay, or (at the Shire’s discretion) permitting annual leave. The Shire is under no obligation to offer the last-mentioned option, and you have not applied for it anyway. Termination has been under consideration, but as an immediate solution, short-term stand-down was the appropriate course.

It is respectfully considered that you have not shown cause why your employment should not be terminated.

Nevertheless, I am prepared to re-schedule the offered Teams meeting to Thursday 10 February at 2pm, or alternatively consider any final written submission you may wish to make by that time.

16      On 9 February 2022, Mr Sparrow again emailed the Shire of Northam Council members and the Shire Executive Management Team reiterating the response he had previously submitted with additional commentary.

17      On 14 February 2022, the Shire wrote to Mr Sparrow terminating his employment.

Was the Direction to Wear Face Coverings Lawful and Reasonable?

18      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.

19      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.

20      The direction must be reasonable and lawful but need not be the ‘better’ direction or ‘preferable direction’; a determination of what is reasonable must be assessed against factors relevant to the employment relationship. The Full Bench of the Fair Work Commission considered this in Briggs v AWH Pty Ltd [2013] FWCFB 3316; (2013) 231 IR 159 (Briggs v AWH) at [8]:

The determination of whether an employer’s direction was a reasonable one … does not involve an abstract or unconfined assessment as to the justice or merit of the direction. It does not need to be demonstrated by the employer that the direction issued was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties.

21      The implied duty to obey lawful and reasonable directions was considered recently by the Full Bench of the Fair Work Commission in Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd t/a Mt Arthur Coal [2021] FWCFB 6059; (2021) 310 IR 399 (Mt Arthur Coal) as cited in Sommerville v University of Tasmania [2022] FWC 1582 at [106]:

In summary, the duty to obey does not require a written or express term of the employment contract to that effect but, rather, the duty to follow a lawful and reasonable direction is implied into all contracts of employment. The fact that the term is implied, as opposed to being expressly written (although it often will also be expressly stated), does not affect its legal efficacy.

22      The Emergency Directions stand as valid law. The Shire cannot ignore or overturn the effect of the Emergency Directions.

23      Considering the prevailing circumstances, the Emergency Directions, and the measures of effective and efficient control including face coverings, I find the Direction to wear a face covering to be reasonable.

24      Accordingly, the Shire had a legitimate basis for implementing the policy as a measure to protect employees and others in the workplace in connection with COVID-19. The policy was an appropriate measure.

25      I find that the Direction was lawful and reasonable.

Did Mr Sparrow Refuse a Direction to Wear a Face Covering?

26      Mr Sparrow submits that he did not refuse to wear a face covering. Mr Sparrow says that on the morning of 28 January 2022, he was not requested nor directed to wear a face covering. Mr Sparrow submits that in the absence of a request or direction he cannot be found to have refused to comply with a lawful and reasonable order of his employer. In addition, Mr Sparrow asserts that even if he had been directed to wear a face covering he was not obliged to do so because he was drinking a cup of tea and covered by an exemption of the Emergency Directions.

27      Mr Sparrow focussed on the morning of 28 January 2022 when he attended work and was directed to leave the workplace because he was not wearing a mask. Mr Sparrow contends that he was not obliged to wear a mask at that time because he was drinking a cup of tea. Mr Sparrow claims this means he was exempt from wearing a mask under the Emergency Directions exemption (j). Mr Sparrow audio recorded the morning from his entering the workplace until he left the workplace. Both parties provided transcriptions of the recording. Mr Sparrow’s transcription inserted references to his cup of tea. At the hearing the recording was played. It is not possible to ascertain from the audio recording whether Mr Sparrow was drinking a cup of tea or not. Mr Young’s recollection was that Mr Sparrow was not drinking a cup of tea, however he said he could not be entirely certain this was the case.

28      The Shire contend that Mr Sparrow first raised the claim that he was drinking a cup of tea in May 2022. The Shire submits that had Mr Sparrow considered the relevant exemption applied he would have referred to this in his earlier communications with the Shire.

29      At the hearing Mr Sparrow’s evidence was:

…if I was drinking, then I might have a defence?---Of course you're going to say that, sir, but that was not the case, because this was, ah – ah, something a – a number of us were already doing every time we were attending meetings – Council meetings and all sorts of stuff. It was actually a regular thing for the people that I've been involved with, is whenever we went to somewhere, we would get, ah – ah – as soon as possible, make sure we have a beverage in our hand. It was part of our – our – our group to make sure that we could maintain – it was part of our fight for democracy and against tyranny. I was actually doing something that was regular and – and as I have already said, I deliberately did it as, ah – as soon as I could. In hindsight, I should've actually walked into the building with a cup of tea.

30      I do not find Mr Sparrow’s evidence that he considered he was exempt because he was drinking a cup of tea to be credible. If Mr Sparrow did have a cup of tea on the morning of 28 January 2022 his own evidence indicates it was an admitted device to create a defence to avoid the requirement to wear a face covering. However, as can be adduced from the audio recording, at the meeting with the Acting Chief Executive Officer that morning he did not refer to the exemption because he was drinking at the time. Mr Sparrow’s attempts to effectively retrofit the audio recording transcript with replete references to him drinking a cup of tea are an attempt to construct a defence after the fact.

31      Even so, if Mr Sparrow had been drinking a cup of tea he could have advised the Acting Chief Executive Officer that he intended to wear a face covering once he had finished his cup of tea in circumstances where he intended to comply with the Emergency Directions and the Employer Direction. I note the exemption in the Emergency Directions at (j) concerning consumption of food and drinks is qualified at (y) which states that where a person is relying on an exception under subparagraph (f) to (w), including (j), that person resumes wearing the face covering as soon as reasonably practicable after the person no longer falls within the relevant exception.

32      Furthermore, Mr Sparrow completely disregards subsequent events. In the weeks following, the Shire clearly directed Mr Sparrow to wear a face covering when attending the workplace and Mr Sparrow clearly refused to comply.

33      The Acting Chief Executive Officer’s letter of 1 February 2022 provided Mr Sparrow with the opportunity to return to the workplace provided he indicated that he was prepared to comply with the requirements to wear a face covering.

34      On 7 February 2022, Mr Sparrow emailed the members of the Shire of Northam Council, various staff and the Chief Executive Officer in response to the letter of 1 February 2022. Mr Sparrow alleged the letter contained inaccuracies and noted that his questions had not been answered and he reiterated the questions, highlighting some sections. Mr Sparrow stated that he declined to meet on the date proposed by the Acting Chief Executive Officer because it was not on a day he was usually rostered to work. Mr Sparrow stated that he was not required to be at the workplace to perform most of his duties and proposed some tasks that could be undertaken within his current duties. The clear implication of Mr Sparrow’s response is that he continued to decline to return to the workplace and wear a face covering.

35      I find that Mr Sparrow did refuse to follow a direction to wear a face covering.

Did Mr Sparrow Refuse to Follow a Lawful and Reasonable Direction?

36      Mr Sparrow contends that he is not obliged to provide evidence of a medical exemption from the requirement to wear a face covering. The Emergency Directions clearly state the obligations on both the Shire and on Mr Sparrow and the circumstances in which an exemption applies. I find it reasonable for the Shire to require Mr Sparrow provide a medical certificate to satisfy that he has a medical exemption from the Emergency Directions in circumstances where he relies on a medical exemption.

37      Inevitably my finding that the direction to Mr Sparrow to wear a face covering when attending the workplace was lawful and reasonable and my finding that Mr Sparrow refused to wear a face covering as directed and the fact that Mr Sparrow did not produce evidence of his medical exemption, or other exemption, means Mr Sparrow refused to follow a lawful and reasonable direction.

Was Dismissal for Refusal to Follow a Lawful and Reasonable Direction Fair?

38      The Shire submits that Mr Sparrow refused to comply with a lawful and reasonable direction to wear a face covering consistent with the Emergency Directions and in these circumstances the decision to dismiss was not harsh, oppressive nor unfair.

39      Mr Sparrow claims that the Shire did not genuinely consider the issues he raised and did not consider alternate arrangements that he proposed such as performing his duties at home. Mr Sparrow submits that in the absence of genuine consideration of these matters his dismissal was unfair.

40      It is well established that a refusal by an employee to comply with a lawful and reasonable direction will generally constitute a valid reason for dismissal as found in Darling. To determine whether a dismissal is harsh, oppressive or unfair it is also necessary to consider both the substantive and procedural fairness and weigh these matters in any given case and decide whether on balance a dismissal is harsh, oppressive or unfair.

41      In this matter, the test is whether the right of the employer to terminate the employment was exercised so harshly or oppressively as to constitute an abuse of that right: The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385 at 386 (Undercliffe).

42      Whether a dismissal was harsh, oppressive or unfair depends on an assessment of all the relevant facts and circumstances.

43       Mr Sparrow wrote to the Shire asserting that it was obliged to accommodate him working from home in circumstances where the Shire insisted he wear a face covering when attending the workplace. The Shire considered that Mr Sparrow had mistaken their obligations for circumstances in which an employee was injured, ill or had a disability. The Shire informed Mr Sparrow it did not consider the asserted obligation in the circumstances where Mr Sparrow proposed to work from home because he was not prepared to attend without committing a breach of the Emergency Directions and he was not prepared to follow a lawful and reasonable direction of his employer.

44      Even so, it is not correct to say the Shire did not consider Mr Sparrow’s proposal to work from home and concluded that it was an inherent requirement of his role to attend the workplace and that it was not reasonably able to provide him with alternate duties. Mr Young’s evidence is that he discussed options such as working from home with the Chief Executive Officer, however they concluded that Mr Sparrow would not be able to perform all the duties required of him from home. At that time, it was not known when the Emergency Directions would be revoked, and the Shire did not consider it feasible for Mr Sparrow to work from home.

45      The Shire clearly set out the consequences for Mr Sparrow of not following the Emergency Directions and Mr Sparrow was provided with an opportunity to respond before a decision was taken.

46      Mr Sparrow was offered the opportunity to participate remotely in a meeting through Teams to discuss the proposal to terminate his employment and declined to do so.

47      The Shire considered the submissions Mr Sparrow emailed on 9 February 2022 before determining that he had not shown cause why his employment should not be terminated. On 14 February 2022 Mr Sparrow was dismissed.

48      The Shire did not exercise the right to terminate Mr Sparrow’s employment in a manner that constitutes an abuse of that right as discussed in Undercliffe.

Conclusion

49      Mr Sparrow’s refusal to comply with that lawful and reasonable direction alone constituted a valid reason for his dismissal and had the consequential result that he was not ready, willing and able to fulfil the requirements of his role.

50      In all the circumstances I find that the Shire did not exercise the right to terminate his employment so harshly or oppressively as to constitute an abuse of that right.

51      For the reasons set out above I dismiss this application.

NOTE: [28] amended by Corrigendum issued 15 August 2023 ([2023] WAIRC 00704)