APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 4 APRIL 2022

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Luke Conti-Nibali

APPLICANT

-v-

Main Roads Western Australia

RESPONDENT

CORAM COMMISSIONER T B WALKINGTON

DATE (CORRIGENDUM FRIday, 18 August 2023)

FILE NO/S PSAB 35 OF 2022

CITATION NO. 2023 WAIRC 00713

CORRIGENDUM

1. On the second page of the Reasons for Decision dated 1 August 2023 [2023] WAIRC 00426, under the heading Case(s) referred to in reasons: insert ‘Heller-Bhatt v Director General, Department of Communities [2022] WAIRC 00719; (2022) 102 WAIG 1457’ underneath the case of Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728; (2017) 97 WAIG 1525.

2. At paragraphs [7], [8], [9] and [10] of the Reasons for Decision dated 1 August 2023 [2023] WAIRC 00426, delete the following:

 [7] 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] 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] 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] 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.

 And at paragraphs [7], [8], [9] and [10] of the Reasons for Decision dated 1 August 2023 [2023] WAIRC 00426, insert in lieu of the following:

 [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.

3. At paragraphs [29], [30], [31] and [32] of the Reasons for Decision dated 1 August 2023 [2023] WAIRC 00426, delete the following:

 [29] 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] 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] 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] 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.

 And at paragraphs [29], [30], [31] and [32] of the Reasons for Decision dated 1 August 2023 [2023] WAIRC 00426, insert in lieu of the following:

 [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.

4. At paragraphs [39], [40] and [41] of the Reasons for Decision dated 1 August 2023 [2023] WAIRC 00426, delete the following:

 [39] Mr Conti-Nibali was aware that his employment was at risk if he did not comply with the Employer Direction.

 [40] 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] Accordingly, the Board finds that that Mr Conti-Nibali disobeyed or disregarded a lawful order. He committed a breach of discipline.

 And at paragraphs [39], [40] and [41] of the Reasons for Decision dated 1 August 2023 [2023] WAIRC 00426, insert in lieu of the following:

 [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.

5. At paragraph [47] of the Reasons for Decision dated 1 August 2023 [2023] WAIRC 00426, delete the following:

 [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.  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.

 And at paragraph [47] of the Reasons for Decision dated 1 August 2023 [2023] WAIRC 00426, insert in lieu of the following:

 [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.

6. At paragraph [51] of the Reasons for Decision dated 1 August 2023 [2023] WAIRC 00426, delete the following:

 [51] Here the matters referred include the finding of a breach of discipline and the decision to take disciplinary action in the form of dismissal.

 At paragraph [51] of the Reasons for Decision dated 1 August 2023 [2023] WAIRC 00426, insert in lieu of the following:

 [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.

Commissioner T B WalkingtoN

Dated: 18 August 2023