2023 WAIRC 00883
APPEAL AGAINST THE DECISION OF THE EMPLOYER TAKEN ON 18 JULY 2022

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00883

CORAM
: PUBLIC SERVICE APPEAL BOARD
COMMISSIONER C TSANG – CHAIR
MS R ANDERSON – BOARD MEMBER
MR N CINQUINA – BOARD MEMBER

HEARD
:
FRIDAY, 1 SEPTEMBER 2023

DELIVERED : THURSDAY, 9 NOVEMBER 2023

FILE NO. : PSAB 66 OF 2022

BETWEEN
:
LOANNE CARTER
Appellant

AND

DIRECTOR GENERAL, DEPARTMENT OF EDUCATION
Respondent

CatchWords : Public Service Appeal Board – Jurisdiction – Board to address three questions: Did the appellant resign by submitting a Form 2 - Unfair Dismissal Application? Was the resignation a constructive dismissal? Does the Board have jurisdiction to hear the dismissal? – Public health directions – Appellant unable to enter workplace due to vaccination status – Appellant's conduct inconsistent with ongoing employment – Finding that appellant was not forced to resign – Appeal dismissed for want of jurisdiction
Legislation : Industrial Relations Act 1979 (WA), s 26(1)(a), s 26(1)(c), s80I(1)(d), s 80L(1)
Result : Appeal dismissed
REPRESENTATION:

APPELLANT : MS L CARTER (ON HER OWN BEHALF) AND MR T CARTER (AGENT)
RESPONDENT : MS E NEGUS (OF COUNSEL)

Case(s) referred to in reasons:
Birrell v Australian National Airlines Commission (1984) 5 FCR 447
Bone Densitometry Australia Pty Ltd v Lenny [2005] WAIRC 02081; (2005) 85 WAIG 2981
Director General, Department of Biodiversity Conservation and Attractions v Cosentino [2022] WASC 306
Heller-Bhatt v Director General, Department of Communities [2022] WAIRC 00719; (2022) 102 WAIG 1457
JL v Haydar Family Restaurants T/A McDonalds [2003] WAIRC 9489; (2003) WAIG 3303
Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162
Koutalis v Pollett (2015) 235 FCR 370
Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878
State of New South Wales v Paige [2002] NSWCA 235; (2004) 60 NSWLR 371
Visscher v Honourable President Justice Giudice & Ors [2009] HCA 34

Reasons for Decision
1 This matter was listed for a preliminary hearing to determine whether the Board has jurisdiction to hear the appellant’s (Ms Carter’s) appeal pursuant to s 80I(1)(d) of the Industrial Relations Act 1979 (WA) (Act).
2 Section 80I(1)(d) of the Act states:
80I. Board’s jurisdiction
(1) Subject to the Public Sector Management Act 1994 section 52, the Health Services Act 2016 section 118 and subsection (3) of this section, a Board has jurisdiction to hear and determine —
…
(d) an appeal, other than an appeal under the Public Sector Management Act 1994 section 78(1) or the Health Services Act 2016 section 172(2), by a government officer that the government officer be dismissed,
and to adjust all such matters as are referred to in paragraphs (a), (b), (c) and (d).
3 The parties requested the Board to determine the following questions:
(a) Did Ms Carter resign from her employment with the respondent by submitting a Form 2 – Unfair Dismissal Application (Form 2) for filing with the Commission’s Registry?
(b) Was the resignation a constructive dismissal?
(c) Does the Board have jurisdiction to hear and determine the dismissal?
4 Ms Carter contends that her dismissal was not the consequence of a voluntary resignation but rather the outcome of actions by the respondent that amounted to a constructive dismissal. Consequently, she contends that the Board has jurisdiction to hear and determine the appeal.
5 The respondent’s position is that Ms Carter was not dismissed, whether constructively or otherwise, but her employment ended as a result of her voluntary resignation upon the submission of her Form 2. Consequently, the respondent contends that the Board lacks jurisdiction to hear and determine Ms Carter’s appeal.
6 To address the issues under consideration, the Board needs to examine the circumstances that led to Ms Carter’s submission of the Form 2, the specifics surrounding the formulation and content of the Form 2, as well as the broader context of this appeal.
Background – correspondence between the parties
7 Ms Carter was employed as a Level 2 Laboratory Technician at Kelmscott Senior High School. [Exhibit R5]
8 On 16 November 2021, the respondent emailed Ms Carter [Exhibit R1: pages 5-7]. The email states:
Background
The State Government has announced its intention to restrict access to certain premises, including schools and residential/boarding facilities to people who are unvaccinated through Directions made under the Public Health Act 2016 (Act). Under these Directions, staff in remote Aboriginal community schools are required to have received their first dose by Wednesday, 1 December 2021 and their second dose by Friday, 31 December 2021. All other staff in schools and boarding/residential facilities must be fully vaccinated when students return to school by Monday, 31 January 2022, prior to the commencement of Term 1, 2022.
Direction to employees
You are directed:
· to declare if you are unvaccinated, partially vaccinated or fully vaccinated against COVID-19 in accordance with the Schedule to this direction; and
· if you are unvaccinated against COVID-19, to declare if you intend to be partially vaccinated against COVID-19 before Wednesday, 1 December if working in a remote Aboriginal community, and fully vaccinated against COVID-19 before students are present on school site Term 1, 2022 for all school staff.
Failure to comply with this direction is a breach of discipline which may result in disciplinary action.
9 On 17 November 2021, 19 November 2021 and 3 December 2021, Ms Carter emailed the respondent and others raising issues about the announced mandates and requests for information about her vaccination status. [Exhibit R1: pages 5, 8-10]
10 On 25 November 2021, the respondent responded to Ms Carter’s 17 November 2021 email [Exhibit R1: page 11], stating:
On 20 October 2021, the State Government announced an overarching mandatory COVID-19 vaccination policy to certain occupations within Western Australia. The Policy’s phased approach includes all staff working in schools and boarding facilities.
The Department of Health leads our State’s response to the COVID-19 pandemic. The Department of Education will continue to act upon their advice, and that of the Western Australian Chief Health Officer. The mandate is being enacted by an upcoming Public Health Direction. The Department is developing accompanying guidelines and frequently asked questions for our principals, line managers and employees. We will provide more information as it becomes available.
Prior to the Public Health Direction being issued, the Department has sought independent legal advice. The Department of Education can issue a direction to school-based employees to lawfully disclose their vaccination status for legitimate operational or workforce management reasons. The information gathered from the Census is being used for 2022 school workforce staffing management planning to ensure day one, Term 1, 2022 preparedness.
11 On 26 November 2021, Ms Carter responded to the respondent’s 25 November 2021 letter [Exhibit R1: page 12], stating:
As someone in your position must know, that Federal Regulations and Legislation take priority over State Law, you must also be aware that as per the Health Department, there is no mandate at this stage.
What this means and what I have had confirmed by my own independent and Publicly Acknowledged on 6pr, the Education Department is pre-empting the actions of the Health Department and Health Officers by requesting my personal information in regards to something that is neither relevant nor required to be given to you under my job requirements and neither is it in my job description.
Please consider this a Formal Complaint against Department of Education and Kelmscott Senior High school and please take this matter seriously, as I feel that my rights to privacy has been removed because of the lack of compassion and understanding from your office, I will also be copying in the Office of the Information Commissioner who handles complaints about breaches in the Privacy Principles in WA. I expect the department to offer a full apology to all staff who have been asked to fill out this form as you have broken the Privacy Principle number 3, I also expect a full press release advising what the Education Department did wrong and acknowledging the mistake that they made.
Until the Premier releases the Mandate that instructs me on how to behave in regards to the Covid-19 Vaccine and my vaccination status, you will not be receiving any information about myself that you are not authorised to have under the Australia Privacy Act and Australia Privacy Principles.
12 On 9 December 2021, the respondent emailed all Department staff [Exhibit R1: pages 1415], stating:
The Chief Health Officer issued the Education Worker (Restrictions on Access) Directions (No. 3) (the Directions) on 3 December 2021. These Directions are available on wa.gov.au.
The purpose of the Directions is to put measures in place to address the unique risks posed by COVID19 within education facilities.
The Directions apply to people working in an education facility (education worker).
Education facility includes:
· a school, including Statewide Services (33 Giles Avenue, Padbury);
· a community kindergarten; and
· a boarding premise (boarding/residential facilities).
Vaccinated in accordance with the Directions means:
a. first dose on or prior to 31 December 2021 because, from 12:01 am on 1 January 2022, a person who is an education worker must not enter, or remain at, an education facility if the person has not been partially vaccinated against COVID-19; and
b. second dose on or prior to 30 January 2022 because, from 12:01 am on 31 January 2022, a person who is an education worker must not enter, or remain at, an education facility if the person has not been double dose vaccinated against COVID-19.
Please be advised that the CEO Instruction – Entry Restrictions No. 1 to an Education Facility, has now been issued, pursuant to 233 of the School Education Act 1999, as at 9 December 2021. I have attached this for your reference.
13 The CEO Instruction – Entry Restrictions No. 1 to an Education Facility [Exhibit R1: pages 1618] (CEO Instructions), states:
2. Instruction to Workers
2.1 A Worker must
a. be vaccinated in accordance with Paragraph 3, unless exempt from the Vaccination Requirement;
b. provide evidence of the vaccination or exemption in accordance with Paragraph 4;
c. establish a Vaccination Status Record in accordance with Paragraph 5; and
d. not enter an Education Facility without a Vaccination Status Record.
14 On 15 December 2021, Ms Carter responded to the respondent’s 9 December 2021 email [Exhibit R1: pages 19-23], stating:
The threat contained within your correspondence is exerting economic duress upon me by forcing me to choose between participating in a Covid-19 vaccination clinical trial, or to lose my job.
In the circumstance of economic duress being exerted upon me by you I am unable to provide consent to be injected with a Covid-19 vaccine, as duress vitiates consent.
Performing a medical procedure upon another person, absent the recipient’s consent, can amount to the criminal offence of battery, and or the tortious offence of trespass against the person.
In circumstances where consent has not, or cannot be given, the person performing the procedure may be liable both criminally and civilly. This liability is likely to extend to any individual that is exerting unconscionable and illegitimate pressure, such as economic duress, upon a person’s ability to decline to a medical procedure.
The threat contained in your correspondence is also causing me an apprehension of a battery. This apprehension may constitute an assault.
…
I am considering all legal protections available to me, including restraining orders, to protect my rights and to protect my person against your assault and threat of battery through the unconscionable and illegitimate economic duress contained in your correspondence, which is affecting my freedom to decline a Covid-19 vaccine.
15 On 17 December 2021, the respondent emailed Ms Carter [Exhibit R1: pages 24-25], stating:
The Chief Health Officer issued the Education Worker (Restrictions on Access) Directions (No. 3) (the Directions) on 3 December 2021.
I issued the CEO Instruction – Entry Restrictions No. 1 to an Education Facility (the CEO Instruction) on 9 December 2021 requiring education workers working in an education facility to upload their COVID-19 vaccination evidence or exemption to the Human Resources Management Information System (HRMIS) at least 14 days before their commencement date in 2022.
The CEO Instruction also required partial vaccination (single dose) by 12.01 am on 1 January 2022 and full vaccination (double dose) by 12.01 am on 31 January 2022. Any staff member who has not provided evidence or exemption is not permitted to access a school site from 1 January 2022.
As at 9.00 am on 17 December 2021, our Department’s records indicate that you have not yet uploaded your COVID-19 vaccination evidence or exemption to HRMIS.
This email is a reminder that you must upload approved evidence of your COVID-19 vaccination or exemption to HRMIS as a matter of urgency. Instructions on how to upload your vaccination evidence or exemption are available on Ikon.
If you do not provide your COVID-19 vaccination evidence or exemption through HRMIS by your expected 2022 return to work date, you will not be permitted to enter an education facility (this includes a school, a boarding/residential facility, a community kindergarten or Statewide Services, Padbury) or return to work. In accordance with the ‘no work, no pay’ principle, your pay will cease from the first date you are expected to return to work.
If you do not comply with the CEO Instruction, you may be subject to a disciplinary process, which may result in the termination of your employment.
16 On 22 December 2021, Ms Carter responded to the respondent’s 17 December 2021 email [Exhibit R1: page 24], stating:
I regret to inform you that I cannot cooperate with this process until you provide me with the crucial information that I had promptly requested on 19/11/2021 and again on 03/12/2021 regarding Vaccine Material Safety Data Sheets (MSDS) and Workplace Health Risk Assessment.
Please forward my request to the Chief Health Officer and be sure to stress that I need the vaccine MSDS with details of its complete components and chemical substances, as well as all data on the risks of these vaccines to human’s health, all adverse reactions including deaths that have been recorded since the beginning of vaccine rollouts. Please note Frequently Asked Questions are not accepted because the decision of injecting an experimental drug (such as Covid-19 injections) into one’s body cannot be taken lightly on such empty promises as FAQ. The Chief Health Officer has mandated the vaccines to education workers must also be obligated to provide them with complete data regarding the vaccines to assist workers in making this decision as taking the injections is an irreversible procedure.
The Department of Education in supporting the Chief Health Officer’s directions must be obligated to provide staff with Workplace Risk Assessment in which you have failed to do twice upon my requests. As soon as I receive all above requested information and I am satisfied with it, I will comply with your directions.
17 On 22 December 2021, an email was sent to Ms Carter attaching a letter from the respondent [Exhibit R1: pages 27-28]. Neither party tendered the respondent’s 22 December 2021 letter.
18 On 31 December 2021, Ms Carter responded to the respondent’s 22 December 2021 letter [Exhibit R1: pages 26-27], stating:
Please be advised that I do not accept your explanation in response to my request for a Risk Analysis or for the supplying of the MSDS for the Covid-19 Vaccine.
Your response is lacking and has left me wondering if you even know what is in the vaccine and what the potential health risks will be. This has left me with more questions than I started and due to my treatment
I will not be taking part in the Governments experiment.
…
Due to your evasive answers, the history of companies such as Pfizer, the lack of information and the harassment that I have received at the school that I work at and from the department, I have made the decision not to take the vaccine and I will only review my decision until all information is released and is not redacted. I will not be resigning from my position at Kelmscott Senior Highschool, as the school is not allowed to ask me to do something that is illegal.
As for medical exemption, I had tried to apply for it with my doctors; however their response to me was even if they wanted to they would not be able to give medical exemptions because they are under strict instruction not to unless for the reasons stated on the Health Department website, ie. having an anaphylactic shock to the vaccine. Due to your position within the Education Department, you should be recognized as an Emergency Officer under the Emergency Management act, therefore you should have the authority to grant me an exemption to be able to attend the premises without being vaccinated.
If you are unwilling to grant me the exemption, you are making it impossible for me to carry out my duties at Kelmscott Senior, therefore I am requesting that you offer me a redundancy to be able to retrain myself and support my family until I can get a job in an industry where vaccinations are not required by the Government's Mandates. I expect that the school will pay me out my full benefits that I am entitled to, and allow me to cash out my long service leave and any other unused leave that I have accrued.
19 On 10 January 2022, the respondent responded to Ms Carter’s 22 December 2021 email [Exhibit R1: pages 29-30], stating:
Thank you for your email dated 22 December regarding COVID-19 vaccination. Due to the significant volume of enquiries being received there has been an unfortunate delay in responding to your correspondence, for which I apologise.
As I have communicated to you previously, the Department of Health is the lead agency in our State’s response to the COVID-19 pandemic. The Department of Education continues to act upon the advice of the Department of Health and the Western Australian Chief Health Officer. The Department acts under the Education Worker (Restrictions on Access) Directions (No. 4). As I have explained, there is no Departmental risk assessment that would apply in this context.
Regarding your questions about the safety and efficacy of the vaccine, I refer you once again to the raft of information available at the healthywa.wa.gov.au and health.gov.au websites.
The CEO Instruction (No. 2 Version 2) gives effect to the Directions issued and requires education workers to be partially vaccinated (single dose) by 12.01 am on 1 January 2022 and fully vaccinated (double dose) by 12.01 am on 31 January 2022.
Instructions on how to upload your vaccination evidence or exemption to HRMIS are available on Ikon. If you do not upload your vaccination evidence or exemption to HRMIS by the required date, you will not be permitted to return to work or enter a school site. In accordance with the ‘no work, no pay’ principle, your pay will cease from the first date you are expected to return to work, because, unless you comply with these Directions, you are not permitted to enter the school site and therefore are unable to perform your usual work duties.
Given you have stated you cannot cooperate with this process, you will not be permitted to return to work for the start of Term 1, 2022.
20 On 16 January 2022, Ms Carter emailed the respondent and the Principal, in response to the respondent’s 10 January 2022 letter [Exhibit R1: pages 31-32, 34-72], stating:
I am under an immense amount of stress and anxiety due to the jab mandate and my health condition or face loss of employment. I am the sole income earner, I have two small children and a disabled husband to feed and look after. Therefore, I am applying to access my personal leave and pro rata long service leave. I currently have 4 personal leave days and 43 pro rata LSL, it should cover me until the end of term 1. I ask you to find compassion in your heart and trust you will do what is right.
What is happening and what the government is doing is highly illegal, morally wrong and it is the act of crime against humanity for so many people have been badly permanently injured and lost their lives from the injections. And what you are doing as leaders of the department and schools is contributing to it. People have legitimate concerns about the injections and choose not to take the injections should be respected as their most basic human right. I understand the backlash has been difficult for you to deal with but when people are cornered, when their health and livelihood are at stake, they take things personally. While I understand your position and that you are following directive, you should try and put yourself in these people's shoes. We all have families, children, bills to pay etc.
Instead of pushing your staff to the corner, you have authority to implement alternative solutions to support staff. The Department of Education has been promoting it all along, RUOK day, health and wellbeing of staff, Peoplesense etc, that should not be empty words and empty promises. It is now that people most need their leaders to show compassion and duty of care. You can allow staff to work from home where possible or access leaves/pro rata leave if working from home is not an option, or offer redundancy as the last result. I have seen many business owners who have done so to make sure their staff are looked after best they could. Their acts and compassion have been applauded by many and greatly appreciated by their staff.
Your true leadership and compassion will not only touch the ones who are opposed the jabs but also the rest of the staff. They can see that in times of difficulties, they can put their trust in the leaders. Please keep in mind that it is not a crime for people to have concerns about potentially dangerous drug/vaccine that have not gone through complete trial and testing. Sadly, it is what our premier portraying us and making us look like we are the problem. History should be our best teacher if we remember the case of Thalidomite, DDT spay, etc. Many of those victims are still alive today and that should be a clear reminder to us all.
21 On 25 January 2022, the respondent emailed Department staff [Exhibit R1: pages 73-76], stating:
As you’d be aware, on 22 December 2021 the Premier announced that all occupations under the vaccination mandate are required to receive a third dose of the COVID-19 vaccination. This is based on the latest health advice from the Chief Health Officer due to the emergence of the Omicron strain and community transmission.
The Chief Health Officer has issued new Directions, they can be found on the wa.gov.au website.
I have updated my CEO instructions in line with the third vaccine (booster) requirement, attached for your reference.
…
The updated CEO instruction requires you to:
1. receive your COVID-19 vaccination third dose (booster) within one month of being eligible. A booster calculator is available on Ikon
2. upload evidence of your COVID-19 booster vaccination to HRMIS.
…
Staff members who do not comply with this CEO Instruction will face disciplinary measures which may result in termination of employment.
It is your responsibility to comply. If you have any questions, I encourage you to reach out to the COVID-19 Support Team on 1800 882 345 or coronavirussupport@education.wa.edu.au.
22 On 27 January 2022, the respondent emailed Ms Carter [Exhibit R1: pages 77-78], stating:
Instruction to be vaccinated
On 9 December 2021, I issued the CEO Instruction – Entry Restrictions No. 1 to an Education Facility (CEO Instruction) instructing education workers to be vaccinated against COVID-19 in accordance with the vaccination schedule below unless they are exempt.
The Directions vaccination schedule is (Schedule Dates):
· 1 January 2022 – Partially vaccinated (single dose vaccinated)
· 31 January 2022 – Fully vaccinated (double dose vaccinated)
Since 9 December 2021 I have sent two further email reminders about your requirement to upload evidence of your vaccination status to the Human Resources Management Information System (HRMIS).
Instruction to provide evidence of vaccination or exemption
The CEO Instruction requires education workers working in an education facility to provide their COVID-19 vaccination evidence or exemption to the Department of Education (the Department), by uploading this evidence to HRMIS.
The Department’s HRMIS records indicate that you have not complied with the CEO Instruction. A failure to comply with the CEO Instruction may be considered a breach of discipline.
As you have not uploaded your COVID-19 vaccination evidence or exemption to HRMIS, you are not permitted to access an education facility.
As of 27 January 2022, your pay has been ceased because you are unable to enter an education facility, and are therefore unable to work. You will now have a period of 10 business days to comply with the CEO Instruction without disciplinary action being commenced against you.
…
Next steps
If after 9 February 2022, you have not uploaded your COVID-19 vaccination evidence or exemption to HRMIS, disciplinary proceedings may be commenced against you, which may result in the termination of your employment.
23 On 28 January 2022, Ms Carter responded to the respondent’s 27 January 2022 email [Exhibit R1: page 79, 81], stating:
I am unable to upload my Covid-19 vaccination evidence to HRMIS because you asked for something that does not exist.
I have attached my immunisation history to this letter as evidence showing that it does not exist.
24 On 1 February 2022, the respondent emailed Ms Carter [Exhibit R1: pages 82-83], stating:
Instruction to be vaccinated
On 9 December 2021, I issued the CEO Instruction – Entry Restrictions No. 1 to an Education Facility (CEO Instruction) instructing education workers to be vaccinated against COVID-19 in accordance with the vaccination schedule below unless they are exempt.
The Directions vaccination schedule is (Schedule Dates):
· 1 January 2022 – Partially vaccinated (single dose vaccinated)
· 31 January 2022 – Fully vaccinated (double dose vaccinated)
Since 9 December 2021 I have sent two further email reminders about your requirement to upload evidence of your vaccination status to the Human Resources Management Information System (HRMIS).
Instruction to provide evidence of vaccination or exemption
The CEO Instruction requires education workers working in an education facility to provide their COVID-19 vaccination evidence or exemption to the Department of Education (the Department), by uploading this evidence to HRMIS.
The Department’s HRMIS records indicate that you have not complied with the CEO Instruction. A failure to comply with the CEO Instruction may be considered a breach of discipline.
As you have not uploaded your COVID-19 vaccination evidence or exemption to HRMIS, you are not permitted to access an education facility.
As of 24 January 2022, your pay has been ceased because you are unable to enter an education facility, and are therefore unable to work. You will now have a period of 10 business days to comply with the CEO Instruction without disciplinary action being commenced against you.
…
Next steps
If after 15 February 2022, you have not uploaded your COVID-19 vaccination evidence or exemption to HRMIS, disciplinary proceedings may be commenced against you, which may result in the termination of your employment.
25 On 31 January 2022, Ms Carter received an email from HRMIS (a notification only address that is not monitored) [Exhibit R1: page 84], stating:
The following absence request has been approved.
…
Stand Down Leave
24/01/2022 to 04/02/2022 (10 day/s)
Status: Approved
26 On 14 February 2022, Ms Carter responded to the HRMIS email copying in the Principal and the respondent [Exhibit R1: page 84], stating:
I would like an explanation regarding this Stand Down Leave Request.
I did not request this leave, I did not authorise to request this leave.
Why have I been placed on Stand Down leave while I did not authorise it and I did not abandon my duty? In fact, I have been upholding my employment contract by attending work everyday. I requested instruction to proceed, it is the principal and the Director General who failed to provide instructions.
I do not accept this leave request for I have been doing my best to fulfill my duty.
I am looking to receive a reasonable explanation.
27 On 16 February 2022, the respondent emailed Ms Carter [Exhibit R1: pages 91-92], stating:
I refer to the CEO Instruction – Entry Restrictions No. 1 to an Education Facility (CEO Instruction) issued on 9 December 2021, instructing you to upload your approved COVID-19 vaccination evidence or exemption to the Human Resources Management Information System (HRMIS). The CEO Instruction also required you be vaccinated (unless exempt).
You received an email on 1 February 2022 advising you that you had not complied with the CEO Instruction and had 10 business days to upload your COVID-19 vaccination evidence or exemption. You were advised that you would not be permitted to access an education facility during this time, and your pay would cease as you are unable to perform your usual work duties.
You have not uploaded your COVID-19 vaccination evidence or exemption to HRMIS as directed. The Department of Education (the Department) does not have a record of your vaccination status.
This matter will now be referred to the Department’s Standards and Integrity Directorate. You are notified that disciplinary proceedings may be commenced against you, which may result in the termination of your employment.
You will continue to remain unpaid pending the outcome of any disciplinary process. This is because you remain unable to enter an education facility and are therefore unable to work.
28 On 17 February 2022, Ms Carter responded to the respondent’s 16 February 2022 email [Exhibit R1: pages 89-91], stating:
I refer you to the Health Directive issued by the Chief Health officer, dated 22nd December 2021.
This directive is the current Health Directive that ALL education Staff should be following for instructions in their duties for employment and how they manage the Covid Emergency.
As per your email, you referenced the Policy Change dated the 9th of December. In this CEO Instruction, you refer to the Chief Health Officers Health directive dated 3rd of December. Using this reference you have created your CEO instruction. As per the Chief Health Officers health Directive dated on the 22nd of December, Section 4. The Chief Health Officer revoked Health Directive number 3. As off the 22nd of December 2021, the Health Directive you were referencing on your CEO Instructions dated the 9th of December 2021 no longer has any relevance due to the actions of the CHO.
Due to my concerns about the legality of the directives issued by yourself on the 9th of December. I continued to honour my employment contract and Attended the premise of Kelmscott Senior Highschool, but I also followed the CHO directive and never set foot on the grounds of the school. I have requested communications from yourself as Director General of the Education Department, AND the principle everyday since 24th January 2022 when I was due to commence the year and until yesterday, this is the first communcations from yourself or anyone from the education department to follow up on the change of the Health Directives from the CHO.
29 On 17 February 2022, Nick Wells, Director, Standards and Integrity Directorate (Mr Wells) sent Ms Carter a letter [Exhibit R1: pages 95-97], stating:
I am writing to you because the Standards and Integrity Directorate has received a notification about your conduct.
It is important that the Department of Education considers all information, including any account or additional material that you wish to provide, before making a decision on the appropriate action to take, if any.
Details about your alleged conduct are provided to you below so that you can consider the information and make a decision as to whether you wish to respond.
It is alleged that:
1. On 27 January 2022, you disobeyed or disregarded a lawful order amounting to a breach of discipline pursuant to section 80(a) of the Public Sector Management Act 1994.
Particulars:
a. You are currently employed as a Laboratory Technician at Kelmscott Senior High School.
b. On 9 December 2021, the Director General issued an instruction pursuant to section 233 of the School Education Act 1999 to all staff to provide evidence or exemption of being fully vaccinated (double dose vaccinated) with COVID-19 vaccine prior to returning to work at an Education Facility in 2022. This instruction is considered to be a lawful order.
c. You have failed to comply with this lawful order by not providing evidence of having been vaccinated or lawfully exempt from being vaccinated.
d. Your conduct is contrary to the lawful order issued by the Director General on 9 December 2021 and is considered a breach of discipline.
I have made the decision to deal with this as a disciplinary matter.
We will treat the allegation as a disciplinary matter pursuant to section 81 of the Public Sector Management Act 1994. I have appointed the Standards and Integrity Directorate to investigate the matter.
If we find that you have not committed a breach of discipline, you will receive a letter advising you that we will take no further action.
If the evidence suggests that you have committed a breach of discipline, you will receive a letter to confirm this, and the proposed action we will take.
…
Responding to the allegation
You now have an opportunity to provide a written or personal submission about the above concerns about your conduct. We will consider any submission you wish to make when we decide whether or not you have committed a breach of discipline.
Send your response to the Standards and Integrity Directorate within 10 business days of you receiving this letter.
…
If you would like to respond to the allegation in person, please contact Hugh Matkovich, Principal Investigator who will arrange a convenient time for this to occur. Interviews are audio recorded, to ensure full transparency. You can have a support person present at your interview.
…
If you are aware of any other potential evidence that may be relevant to this matter, such as documents, please advise the investigator.
30 On 18 February 2022, Ms Carter emailed the respondent and the Principal [Exhibit R1: page 101], stating:
As per my employment contract, I’ve attended work this morning but due to the CHO’s directives, I’m not allowed to enter the premises, I’ve attached a picture of myself in front of school for your evidence. Please advise me how best to proceed.
31 On 18 February 2022, Mr Wells responded to Ms Carter’s 18 February 2022 email [Exhibit R1: pages 99-100], stating:
Thank you for your email dated 18 February 2022, the Director General has asked I respond on her behalf.
On 16 February 2022, you received correspondence advising you had been referred to the Standards and Integrity Directorate for consideration of disciplinary action. Further to this you received correspondence from Mr Hugh Matkovich, Principal Investigator on 16 February and again on 17 February. You were directed to send future correspondence to the attention of Standards and Integrity.
Please find attached a letter of allegation for an alleged breach of discipline, this letter was sent to you via registered post on 17 February 2022.
The letter attached particularises the alleged breach of discipline and seeks for a formal response from yourself. I would like to reiterate that you remain in breach of the lawful order issued by the Director General and unable to enter and education facility, you remain unable to perform your duties. All correspondence is to be directed to the attention of Mr Hugh Matkovich, future correspondence provided may be considered a response to the allegation. You are being provided the opportunity to provide a response to the allegation of failing to provide evidence of double dose vaccination or a medical exemption. You are able to use this opportunity to respond accordingly.
Please refrain from attending Kelmscott Senior High School and sending in pictures of your attendance to the Director General or other employees of the Department.
32 On 18 February 2022, Ms Carter responded to Mr Wells’ 18 February 2022 email [Exhibit R1: pages 98-99], stating:
First of all, I would like to take you up on the offer of counselling and retraining in a position that does not require me to enter a facility that I cannot access due to my health issue. In case you are not aware, I have been going through cancer prevention treatment since August 2021 however unable to obtain an exemption for Covid-19 vaccine. I even pleaded with Lisa Rodgers and Marisa Del Pin to access pro rata Long Service Leave due to my health and was completely ignored.
I have notice in the attached files that Lisa Rodgers has re-released her CEO Instructions to the correct CHO Directives. This can only be taken that her original CEO Instructions were issued in error. It is good to see that this mistake has been rectified. Due to her original CEO Instructions being wrong, I am requesting that my pay be reinstated and backdated. I have made multiple attempts to communicate with the school and the department to seek lawful instructions, but no one communicated with me until yourself.
Under Bullying and Harassment Guidelines, this behaviour is unacceptable, and I would like an investigation into Kelmscott Senior High School and their abusive culture towards staff especially women of minorities.
I would also like to bring to your attention part C of your Particulars, you have made a claim that I failed to comply with the CEO Instructions that were in error. If the Instructions were wrong, I cannot fail to comply. Also I did supply a copy of my Immunisation History as requested. Under the instruction from the Prime Minister, no vaccine would be made compulsory; therefore Lisa Rodgers cannot force me to take it and threatening my job can be seen as abuse of public office under the Criminal Code. I stress that the Education Department and Lisa Rodgers in particular should seek independent legal advice whether her instructions are lawful and just. Considering that you have stated “I have made the decision to deal with this as a disciplinary matter”, I would suggest that you also seek your own independent legal advice.
In the event that you consider that I have committed “breach of discipline”, I am happy to accept retraining as stated above, or if the Education Department wants to make this go away without an investigation, I’m happy to accept a redundancy as stated to both Lisa Rodgers and Marisa Del Pin. Please be aware, if it is found that the CEO Instructions were issued in error and I have suffered any losses at all, I will be seeking full compensation through the courts.
To make sure you are aware, Worksafe has already ruled against BHP for firing staff because of their vaccination status, the actions of the Education Department are very similar to those of BHP.
Last but not least, please be aware Australia has freedom of movement and freedom of association. The authority of Lisa Rodgers stops at the boundaries of the school; her CEO Instructions also stop at the boundaries of the school. Therefore, you will be receiving my email at 7:30 on Monday morning.
33 On 19 February 2022, Ms Carter sent a further response to Mr Wells’ 18 February 2022 email [Exhibit R1: page 108], stating:
This is in addition to my previous email to you dated 18 Feb 2022, regarding your request to me “Please refrain from attending Kelmscott Senior High School and sending in pictures of your attendance to the Director General or other employees of the Department.”
I would like to add a point in which all of you seem to miss. From day one (24 Jan 2022), I have every intention to return to work, I have always been ready and willing to work, I have attended work every day including the sick days which my sick leave request was denied for. My action all along shows one thing solidly that I am honouring my employment contract, something the department and the school have completely ignored. I will only stop attending work and sending in pictures of my attendance if the department acknowledges my clear intention and accept in writing to keep paying me my regular pay including backpay until this matter is resolved or grant my request to be paid out a redundancy. I have done nothing wrong but to follow the CHO directive, the CEO Instructions, and my employment contract to the best of my ability. The department changed my employment contract without my consent and without renegotiating with me; my LSL request under medical and compassionate grounds were ignored. I have tried to do the right things, but Lisa Rodgers chose to abuse her position as a public officer, instead of following the correct procedures and providing support to staff.
I trust that you as members of Standards & Integrity department understand this full well and will not follow suit.
34 On 21 February 2022, Ms Carter emailed Mr Matkovich, Mr Wells, the respondent and the Principal [Exhibit R1: pages 111-112], stating:
I have attended work this morning again as usual as per my employment contract. However, due to the CHO directives, I am not allowed to enter the premises, I have attached a picture of my attendance (in front of the school) for your evidence.
In regard to previous emails from Hugh Matkovich and Nick Wells dated 17 Feb 2022 and 18 Feb 2022 respectively, in which I was directed to send all correspondence to the attention of Mr Hugh Matkovich. Therefore I have included you both to this email to ensure you that I am following directions from staff members of the department.
Please advise me how best to proceed.
35 On 21 February 2022, Mr Matkovich emailed Ms Carter [Exhibit 1: pages 136-137], stating:
Thank you for your emails dated 18,19 and 21 February, received by the Standards and Integrity Directorate (the Directorate).
The correspondence provided will be retained on file and considered by the Directorate, the correspondence will be considered the response to the letter of allegation with a final decision being made by the Director General. The letter of allegation sent to your attention was not an offer of retraining or redeployment, it provided you with details of an alleged breach of discipline with an opportunity for response during a disciplinary investigation.
…
You remain in breach of the lawful order issued by the Director General, as you have not provided proof of vaccination (double dose vaccinated) or an approved exemption you remain in breach of the lawful order and unable to perform your duties. On 18 February 2022, Mr Nick Wells wrote to you and requested refrain from attending Kelmscott Senior High School and sending in pictures of your attendance to the Director General or other employees of the Department. You have continued this action in an email dated 21 February 2022, should you continue to send correspondence to the attention of the Director General and Line Management within Kelmscott Senior High School action will be taken to restrict your email access or redirect emails from these parties.
Your file and all correspondence will be provided to the attention of the Director General for consideration relating the alleged breach of discipline. Further formal correspondence will be sent to your attention shortly.
36 On 22 February 2022, Ms Carter emailed Mr Matkovich, Mr Wells, the respondent and the Principal [Exhibit 1: pages 142-143], stating:
I have attended work this morning again as usual as per my employment contract despite being threatened with my email account being restricted by Mr Hugh Matkovich in his email to me dated 21 February 2022. I feel bullied and harassed and suppressed by this threat; however I will not let the bully have his way. It would go against the Department of Education’s practice and support of the National Bullying No Way action which I was very familiar with during my time working at Kelmscott SHS and many other schools within the department.
I must express I am deeply disappointed that Mr Matkovich has appeared to follow suit and abused his public office power to bully to suppress such an employee like myself, a woman of minority.
I am standing up for what is right, I am merely upholding my employment contract. I have been waiting for specific instructions to best proceed in my circumstances. It is not my fault the school and the department refuse to communicate with me and refuse give me the instructions I have requested.
As we are all aware, due to the CHO directives, I am not allowed to enter the premises, I have attached a picture of my attendance (in front of the school) for your evidence.
In regard to previous emails from Hugh Matkovich and Nick Wells dated 17 Feb 2022 and 18 Feb 2022 respectively, in which I was directed to send all correspondence to the attention of Mr Hugh Matkovich. Therefore I have again included you both to this email to ensure you that I am following directions from the department.
Please advise me how best to proceed.
37 On 22 February 2022, Mr Matkovich responded to Ms Carter’s 22 February 2022 email [Exhibit 1: page 141], stating:
Thank you for your email dated 22 February 2022.
As of today access to your departmental user accounts and email will be restricted. The action has been taken as you have failed to acknowledge and adhere to requests from the Standards and Integrity Directorate relating to appropriate communication. Should you continue to send unwanted correspondence to the attention of the Director General, Standards and Integrity and School Administration further action may be taken for a breach of the Code of Conduct, Standard 1;
• Maintain appropriate professional relationships and boundaries with students, parents, carers, colleagues, stakeholders and suppliers
You are now to direct all email correspondence to the attention of myself via Standards & Integrity Investigations at StandardsIntegrity.Investigations@education.wa.edu.au.
Further to this the Gmail email address will be flagged with an automatic redirection to the above mentioned mailbox.
38 On 23 February 2022, Ms Carter emailed Mr Matkovich, the respondent, the Principal and Mr Wells, copying in Senator Malcolm Roberts [Exhibit 1: pages 138-139], stating:
I have attended work today as usual as per my employment contract. Due to the CHO Directives, I am unable to enter the premises therefore I have attached the image of my attendance outside of Kelmscott SHS to show that I have once again followed my Employment Contract and the CHO Directives to the best of my ability. I will still be CC-ing in the above mentioned email addresses of the director general Lisa Rodgers and my line manager at Kelmscott SHS Marisa Del Pin until you can confirm that you are now acting as my line manager. Once again, I am seeking instructions on how the Education Department would like me to proceed today.
Also I dispute your allegations that I have failed to follow your directions “Standards and Integrity Directorate relating to appropriate communication”. I would like you to clarify how I have failed to acknowledge and adhere to requests from the Standards and Integrity Directorate relating to appropriate communication. I have attended work everyday as per my employment contract, due to the CHO directives I am unable to enter the premises so my only option to communicate with my line manager to seek instructions is to email them with pictures of my attendance as evidence. Who are you to define my email to them as “unwanted correspondence”? Did Lisa Rodgers and Marisa Del Pin deem my work attendance emails to them seeking instructions and showing my willingness to work “unwanted correspondence”? If that’s the case I would like that in writing sent to myself because that is neglection of duty on their accounts and that will need to be investigated.
You have failed to give me an opportunity to explain my action but instead have restricted my access to communicate with my line manager. By the actions you have taken, I am now unable to communicate with my supervisor and am unable to receive instructions. Your actions can only be deemed as abuse of public office power to bully, intimidate and suppress me in order to prevent my efforts to fulfill my duty as an employee so that the department can fire me for not being able to attend work. You have no intention of resolving this issue properly from the beginning and it clearly shows that you will not give me a fair and reasonable treatment.
Furthermore, your action to block me from having access to the IKON Education, my work email and flagging my personal email account falls under the definition of Bullying and Harassment according to the Worksafe Website. If you continue to restrict my account I will have no option but to report you to Worksafe and have the department investigated for bullying and harassment. I have also sought personal legal advice and have been instructed to lodge a complaint against you personally after my lawyer read your emails that you have sent to me. I do not wish to take this action so I implore you to cease your actions against me. Again I stress the fact that I am a woman of minority and your actions make me feel extremely threatened and intimidated, especially now that you have removed my access to everything in the Department I have achieved since 2015.
Can you please confirm if you are now my direct line manager? If you are not, can you please explain why you are imposing yourself onto me and harassing me and bullying me in this way? As per the Worksafe website, I am going to formally ask you to cease and desist your actions against myself and reinstate my access to the IKON Education Portal and my Email access immediately.
I would also like your correspondence to me to be in Vietnamese and English to avoid any misunderstanding as Vietnamese is my native language. I will assume that this is possible as the Education Department is not a discriminating workplace and should have facilities to translate your instructions to ensure that there are no miss communications between us.
As you have notice, I have had to use my other personal email address today to send this email because you have suspended my access to the department Ikon and work email as well as flagged my email […]. I strongly suggest you do not continue to flag my email account for all the reasons I have stated above. To help you to understand your duty and responsibility as a public servant in which you clearly have no idea about, Senator Malcolm Roberts has allowed me to cc in his email address and happy to clarify any questions you may have regarding your duty as a public servant.
I trust you have a good day.
Ps: I usually send the email around 7:30am, however due to the difficulties you have caused me it has taken me a fair amount of time to write this email. If you wish I can show you evidence that my picture of attendance was taken at 7:25 this morning.
39 On 24 February 2022, the respondent wrote to Ms Carter [Exhibit R1: pages 113-114], stating:
I refer to the disciplinary investigation in respect to the allegation you failed to comply with a lawful order issued pursuant to section 233 of the School Education Act 1999. This allegation was identified in a letter sent to you by Mr Nick Wells, Director, Standards and Integrity Directorate, dated 17 February 2022.
The investigation into this allegation is now complete, and I have considered the matter in its entirety, including any correspondence you may have provided.
Findings
As the decision maker in this matter, I have decided to substantiate the allegation.
…
Proposed Action
Should I maintain the finding that you have committed a breach of discipline on the balance of probabilities, I propose dismissal from your employment.
This action is proposed given your non-compliance with the lawful order, CEO Instruction, Entry Restrictions No.1.1 to an Education Facility, COVID-19 Vaccination Requirement, issued on 9 December 2021.
Responding to the Finding and Proposed Action
Before I make a final decision and take action, you can respond to the finding and proposed action in writing.
Please send your response to the Standards and Integrity Directorate within 10 business days of you receiving this letter.
…
I will consider your response before I make a final determination. Please note that you can choose not to provide a response. If you do not provide a response the matter will progress and you will be advised of my decision.
40 On 3 March 2022, Mr Matkovich emailed Ms Carter [Exhibit R1: pages 115-126], stating:
Please find attached documents translated to Vietnamese as requested. The documents attached are;
- DG Instruction Vaccination Requirement
- DG Instruction and Referral to Standards and Integrity
- Letter of Allegation
- Proposed Finding
- Response from the Director Standards and Integrity
41 On 10 March 2022, Ms Carter responded to Mr Matkovich’s 3 March 2022 email [Exhibit R1: pages 128-129], stating:
Thank you for sending the requested documents, As I mentioned in the previous email that one of your Translated documents is missing the English version. This is causing further confusion.
Can you please confirm that my attendance to the Department of Education office is required since I have not received the document in English version. As we are all aware that I am not Covid-19 vaccinated please ensure that I am allowed to attend the Department of Education Office? I would hate to break a mandate on your instructions.
In the event that I am allowed into the building, I would like to have my husband to attend with me. I feel threatened by you and your colleagues because of the way you have responded to my emails and the way you have suppressed my ability to work and to follow my employment contracts. I am fearful to be in the same room as you and whoever that take orders from Ms Lisa Rodgers and yourself; I will not attend the meeting without my husband there with me at all time.
If all conditions are met, Tuesday 15th October 2022 10AM works for us.
Finally, will this meeting be recorded? If you are planning on recording this meeting, I request that I will also be allowed to record the meeting for my own records of what transpired.
42 On 11 March 2022, Mr Matkovich responded to Ms Carter’s 10 March 2022 email [Exhibit R1: pages 127-128], stating:
All documents translated have been sent to your attention via registered post, this includes English copies of the correspondence. If you would prefer these by email, please let me know.
Please note the CHO Direction, does not consider central office an Education Facility, as such you are permitted to access the building without being vaccinated. You must comply with all other Public Health Measures set by the State Government. I am sorry to hear that you feel threatened by me, this is not an intention, should you wish to bring a support person you are able to do so. Should you feel more comfortable this meeting can be led by a female investigation within the Directorate.
You are not required to present to central office, this was an option being made available to you to allow for an interpreter to be present. Should you wish to respond via phone or in writing this is fine also.
Your response is due by 18 March 2022, as mentioned above this can be in person, via phone or in writing (email/post).
43 On 11 March, Ms Carter responded to Mr Matkovich’s 11 March 2022 email [Exhibit R1: page 127], stating:
Thank you for clarifying the information, it was not mentioned previously hence I was not aware of the other options.
If there is no need for me to present at the meeting in person, I would like all communication in writing via email or registered post.
44 On 14 March 2022, Ms Carter emailed the respondent [Exhibit 1: pages 131-132], stating:
This email is the response to your registered letter posted to myself, dated 24 Feb 2022, signed by Lisa Roger, which I received on 1 March 2022.
I am writing to advise you that I disagree with your findings and proposed action for the following reasons:
· On the 9 December 2021, the CEO Instruction was issued by yourself which required me to be vaccinated against Covid-19. Prior to that I requested safety data and efficacy regarding the experimental Covid-19 vaccine including Risk Assessment and MSDS in my emails dated 19/11/2021 and 3/12/2021. You failed to provide such information and later confirmed in the letter dated 22/12/2021 that there is no Departmental risk assessment that would apply in this context.
· You have failed to fulfill your duty of care to myself, a staff member of the Department, yet have used coercion by making me choose between my health and my job.
· From the beginning you had no intention of resolving the issue because you did not offer any consultation or any alternative solution regarding my employment. This is despite my request to you regarding my health condition.
· You have formed a biased opinion towards myself prior to the investigation; this led to the unfair treatment that I have received.
· Your assertion that I did not follow the CEO Instruction, based on the CHO Directive, is incorrect. I did provide my vaccination status (Immunisation History) in my email to you dated 28/01/2022.
Your action so far has caused me great stress, anxiety and mental damage during this difficult time regarding my cancer prevention treatment and financial burden. If you continue to pursue disciplinary actions against me I will be forced to take legal action against you. The Department is the one that looked to change my employment contract and made it non negotiable for me to not take the Covid-19 Vaccine which even the Premier states only has a 4% efficacy rate. I have mentioned this and I repeat it again, the correct process would have been to offer me retraining into a role that does not require me to be vaccinated, or to offer me redundancy. Neither of which you or the department offered.
I trust that this is a reminder for you to make a fair and reasonable decision.
45 On 15 March 2022, Mr Matkovich responded to Ms Carter’s 14 March 2022 email [Exhibit 1: page 131], stating:
Thank you for your response received 15 March 2022.
Your response will be further considered during disciplinary proceedings, the response will be reviewed by the Director General and Director Standards and Integrity. Any formal correspondence will be translated from English to Vietnamese and sent to your attention via registered post.
Background – U 65/2022
46 On 15 April 2022, Ms Carter emailed to the Commission’s Registry a Form 2. [Exhibit R7 and Exhibit R9: page 5]
47 The Form 2 contains a two-page instruction sheet [Exhibit R7: pages 1-2], which states:
What happens after you lodge your Form 2?
After you have submitted your Form 2, the Commission’s Registry will:
1. check it to make sure that it contains all the required information;
2. if the form is complete, send a copy of it to you for your records; and
3. serve a copy of it on your former employer. There is no need to serve a copy of your Form 2 on your former employer unless you are instructed to do so.
You will then be contacted by the Commission to arrange to have your application dealt with.
48 On 19 April 2022, the Commission’s Registry emailed Ms Carter advising, amongst other things, that the Registry could not accept the unsigned Form 2 for filing. Filing by email required a signature and a typed signature did not suffice. The email states that if Ms Carter could not sign the Form 2, she could lodge it using the Commission’s online system. [Exhibit R9: pages 3-5]
49 The email states:
Further, within your Form 2 on page 6/10 you have stated that you are seeking: “... (1) Redundancy (2) Full Backpay to the last pay (date 3rd Feb 2022) (3) Payout for all entitlements (Personal Leave and Long Service Leave) that I have accrued (4) Compensation for any damage to my physical and mental health”. Under a Form 2 – Unfair Dismissal Application, there are two remedies available to the Commission to award – being either re-instatement to your position (which you have indicated you do not seek), or compensation of up to six months wages (which is the maximum that is able to be awarded). If you wish to claim an entitlement or benefit that you believe you are owed under an award, agreement, instrument or legislation, then it may be open to you to make a claim in the Industrial Magistrates Court. The Court can hear and determine claims:
· Where a party has failed to comply with an industrial award, industrial agreement, instrument or order, and/or;
· Where a party has contravened or failed to comply with another written law, and/or;
· Where an Order of the Commission has not been complied with, it may be enforced by way of an Originating Claim.
Claims are commenced with the Court by completing Forms 1.1, 1.2 & 1.3 available for download here; and lodging electronically to electroniclodgementIMC.wairc.wa.gov.au. For other methods of filing, please contact the Court on (08) 9420 4467. I have attached an information kit regarding this process as a courtesy.
50 On 22 April 2022, Ms Carter resubmitted the Form 2 by email [Exhibit R9: page 2]. Ms Carter confirmed at the hearing that other than replacing her typed name with her signature, there were no other differences. The email states:
Thank you for advising me of a further option to take the matter to Magistrate Court. I will follow that up later on.
51 On 26 April 2022, the Commission’s Registry emailed Ms Carter to acknowledge the return of the signed Form 2 [Exhibit R9: page 2], stating:
Having reviewed the Form 2, 1 note that no amendments have been made to the question about remedy on page 6/10. For clarity, there are only two remedies available to the Commission to award in an unfair dismissal claim. The two remedies available are either reinstatement to your position (which you have indicated you do not seek), or compensation of up to six months wages in lieu of being reinstated (which is the maximum that is able to be awarded). It is not open to you to claim the remedies you seek as currently set out in the Form 2.
Before the Registry can proceed to file the Form 2, please confirm by reply email that you understand you are not able to seek the remedies you have currently set out within the Form 2. Alternatively, please amend the Form 2 to request either of the available remedies and return it to the Registry at your earliest opportunity.
52 On 1 May 2022, Ms Carter responded to Registry’s 26 April 2022 email [Exhibit R9: page 1], stating:  
Thank you for your email. I apologise for not replying sooner.
This is to confirm that I understand that the Commission cannot accomodate all of the remedies I was seeking. Please proceed with the claim with my request for remedy is the maximum that can be awarded, i.e. 6 months wages in compensation.
Thank you for your time.
53 On 2 May 2022, Registry emailed Ms Carter to return a copy of the Form 2 stamped as filed on 29 April 2022 at 3.05pm, being the time Registry discussed the Form 2 with Ms Carter and she directed Registry to file it [Exhibit R9: page 1]. The email states:
The Commission’s Registry will serve a copy of the application on the respondent, who may file a response within 21 days of being served. If a response is filed, the Registry will send you a copy of that response.
Further information on the next stage of this process will be given to the parties in due course.
Please be advised that all correspondence with the Commission should be copied to all parties.
54 U 65/2022 was listed for a conciliation conference on 3 June 2022. The conference was adjourned for the parties to consider the offers made. The parties then negotiated settlement of U 65/2022 until 4 August 2022 when Ms Carter rejected the respondent’s offer and requested the Commission hear and determine the matter.
55 On 6 July 2022, the respondent filed a Form 2A – Employer Response to Unfair Dismissal Application (Form 2A). The Form 2A states:
1.2 What date did you tell the applicant that they were dismissed?
Not applicable, the employee has not been dismissed.
1.3 What was the last day of the applicant’s employment?
Not applicable, the employee has not been dismissed.
56 Paragraphs 2 and 3 of the Schedule to the Form 2A states:
The applicant has made a claim of unfair dismissal to the WAIRC general jurisdiction on the basis that she was constructively dismissed by the respondent.
However, the respondent’s position is that question of whether the applicant has been constructively dismissed does not fall within the jurisdiction of the WAIRC because the applicant is a “Government Officer”. Therefore, any appeal against dismissal is required to be to the Public Service Appeal Board (PSAB).
57 On 6 July 2022, the respondent filed a Form 1A – Multipurpose Form, which states (Jurisdictional Objection):
The respondent applies for an order dismissing the appeal on the basis that the applicant is a Government Officer and therefore there is no jurisdiction for the applicant’s appeal in the general jurisdiction of the WAIRC. Any appeal against dismissal is required to be to the Public Service Appeal Board.

See the Schedule to respondent’s Response, which has been filed at the same time as this form.
58 On 11 August 2022, the Commission issued Directions for the parties to file any documentary evidence and written submissions relevant to the Jurisdictional Objection, and for the Jurisdictional Objection to be determined on the papers.
59 On 20 October 2022, the Commission issued its Reasons for Decision upholding the Jurisdictional Objection ([2022] WAIRC 00741), and an Order dismissing U 65/2022 ([2022] WAIRC 00742).
Background – PSAB 66/2022
60 On 7 November 2022, Ms Carter filed a Form 8B – Notice of Appeal – Government Officer, Public Service Officers (First Form 8B). The First Form 8B states:
This Notice of Appeal is made to the Public Service Appeal Board in relation to:
an appeal by a government officer under s 78 of the Public Sector Management Act 1994, against a decision or finding referred to in s 78(1)(b) of that Act.
1.3. What date did the respondent make the decision that is the subject of this appeal?
25/10/2022
61 The First Form 8B does not refer to the respondent making a decision on 25 October 2022, however, in relation to 27 October 2022 the First Form 8B states:
On 27/10/2022, I received the Final Outcome Letter from Ms Rodgers deeming my action to not vaccinate is inappropriate and not to be tolerated. She chose to reprimand me; the letter also states that I am a former employee.
62 On 28 November 2022, the respondent filed a Form 4 – Response (General) (First Form 4). The First Form 4 states:
Appellant resigned when she filed her unfair dismissal application
40. The appellant resigned her employment when she filed the Application, for two reasons.
41. First, a constructive dismissal claim is a claim by an employee that he or she has been forced to resign by the conduct of the employer. The appellant’s Application, therefore, was made on the basis that she had resigned.
42. Second, in her Application, the appellant answered the question “do you want your job back?” with “no”, stating (with our emphasis):
I have been bullied at the school, harassed, suppressed, unfairly and wrongly treated by the Department of Education. I would not want to or be able to ever work there again. I am seeking the following:
(1) Redundancy
(2) Full Backpay to the last pay (date 3rd Feb 2022)
(3) Payout for all entitlements (Personal Leave and Long Service Leave) that I have accrued
(4) Compensation for any damage to my physical and mental health
43. The appellant’s Application therefore brought the appellant’s employment to an end.
63 At the Directions Hearing on 13 January 2023, Ms Carter was granted leave to file an amended Notice of Appeal, and the appeal was programmed for hearing on a date to be fixed.
64 On 13 February 2023, Ms Carter filed an amended Form 8B –Notice of Appeal – Government Officer, Public Service Officers (Second Form 8B). The Second Form 8B states:
This Notice of Appeal is made to the Public Service Appeal Board in relation to:
an appeal, other than an appeal under s 78(1) of the Public Sector Management Act 1994 or s 172(2) of the Health Services Act 2016, by a government officer that the government officer be dismissed
1.3. What date did the respondent make the decision that is the subject of this appeal?
18th July 2022
65 The Second Form 8B does not refer to the respondent taking any step on 18 July 2022. However, the Second Form 8B states:
Since the Unfair Dismissal Application was lodged to the WAIRC and not the Department of Education, AND that the Department of Education DID NOT accept the resignation (because no resignation was given), I am appealing the decision/assumption by the Department of Education that “I” resigned by filing Form 2  Unfair Dismissal Application.
66 On 24 February 2023, the respondent filed a second Form 4 – Response (General) (Second Form 4). The Second Form 4 states:
APPELLANT'S AMENDED NOTICE OF APPEAL
17. In the Appellant’s Amended Notice of Appeal filed 13 February 2023, the Appellant has claimed she was dismissed was 18 July 2022 and states that “the Department of Education made the assumption I had resigned by submitting the application”.
18. It appears, from the face of the Amended Notice of Appeal, that the appellant no longer asserts she was constructively dismissed by the respondent before she filed the First Application.
19. It appears that, in claiming that she was dismissed on 18 July 2022, the appellant is relying on a without prejudice letter written on behalf of the respondent on that date.
20. All communications between the appellant and respondent made for the purpose of seeking to settle the First Application are subject to without prejudice privilege and cannot be tendered as evidence in this matter.
RESPONSE
21. The appellant resigned her employment when she filed the First Application, for two reasons.
22. First, a constructive dismissal claim is a claim by an employee that he or she has been forced to resign by the conduct of the employer. The appellant’s First Application, therefore, was made on the basis that she had resigned.
23. Second, in the First Application, the appellant answered the question “do you want your job back?” with “no”, stating (with our emphasis):
I have been bullied at the school, harassed, suppressed, unfairly and wrongly treated by the Department of Education. I would not want to or be able to ever work there again. I am seeking the following:
(1) Redundancy
(2) Full Backpay to the last pay (date 3rd Feb 2022)
(3) Payout for all entitlements (Personal Leave and Long Service Leave) that I have accrued
(4) Compensation for any damage to my physical and mental health
24. The Appellant submits she could not have resigned because s 67(e) of the Public Sector Management Act 1994 (WA) provides that a public service officer’s office becomes vacant if “that public service officer resigns his or her office in writing addressed to his or her employing authority and that employing authority accepts that resignation”.
25. Regardless of the effect of s 67(e) of the Public Sector Management Act 1994 (WA) and whether the appellant’s First Application constituted a written resignation, s 67 does not apply because the appellant is not a public service officer.
26. There was therefore no dismissal of the appellant, and the Board does not have jurisdiction to hear the appeal. The respondent accordingly requests that the question of the Board’s jurisdiction be determined as a preliminary matter.
67 On 17 March 2023, the respondent filed a Form 1A – Multipurpose Form, which states (Jurisdictional Issue):
For the reasons set out in the Respondent’s Amended Response filed on 24 February 2023, the Respondent requests that the question of whether the Appellant resigned by filing an unfair dismissal application on 15 April 2022 be determined as a jurisdictional question.

Accordingly, the Respondent requests that a Directions Hearing be listed.
68 At the Directions Hearing on 12 April 2023, Ms Carter was granted leave to file a Further Amended Notice of Appeal, and the Jurisdictional Issue was programmed for hearing not before Wednesday, 16 August 2023.
69 On 10 May 2023, Ms Carter filed a further amended Form 8B – Notice of Appeal - Government Officer, Public Service Officers (Third Form 8B). The Third Form 8B states:
This Notice of Appeal is made to the Public Service Appeal Board in relation to:
an appeal, other than an appeal under s 78(1) of the Public Sector Management Act 1994 or s 172(2) of the Health Services Act 2016, by a government officer that the government officer be dismissed
1.3. What date did the respondent make the decision that is the subject of this appeal?
18th July 2022
I would like to use the 18 July 2022 as the date that the decision was made by the Education Department that my application to the WAIRC was a resignation. I understand that the State Solicitor Office will try to claim without prejudice and I request the SSO and the Board to allow the letter in question to be accepted as evidence. If the SSO does not allow this, we will use the date of 08 September 2022.
In the event that the Board deems that submitting an application to the WAIRC does in fact count as a “resignation” I would like to have the Board to consider the “resignation” to have been forced and to treat it as “constructive dismissal”.
70 On 17 May 2023, the respondent filed a third Form 4 – Response (General) (Third Form 4). The Third Form 4 states:
RESPONDENT'S POSITION
Appellant resigned when she filed her Unfair Dismissal Application
34. The appellant resigned her employment when she filed the Unfair Dismissal Application, for two reasons.
35. First, a constructive dismissal claim is a claim by an employee that he or she has been forced to resign by the conduct of the employer. The appellant’s Unfair Dismissal Application was therefore made on the basis that she had resigned.
36. Second, in her Unfair Dismissal Application, the appellant answered the question “do you want your job back?” with “no”, stating (with our emphasis):
I have been bullied at the school, harassed, suppressed, unfairly and wrongly treated by the Department of Education. I would not want to or be able to ever work there again. I am seeking the following:
(1) Redundancy
(2) Full Backpay to the last pay (date 3rd Feb 2022)
(3) Payout for all entitlements (Personal Leave and Long Service Leave) that I have accrued
(4) Compensation for any damage to my physical and mental health
37. The appellant’s Unfair Dismissal Application therefore brought the appellant’s employment to an end.
38. The fact that the appellant’s Unfair Dismissal Application did not provide notice in accordance with the Education Department Ministerial Officers Salaries, Allowances and Conditions Award 1983 may have the consequence that her resignation was a breach of contract or a contravention of the award, but it does not mean that her resignation was invalid or ineffective.
The appellant was not constructively dismissed
39. The appellant was not constructively dismissed. The respondent did not take actions which meant that the appellant was given no option but to resign from her employment.
40. The respondent’s actions were an appropriate response to the Appellant’s not complying with the CEO Instruction and being unable to lawfully perform her duties (because she could not enter her place of employment, or indeed any other school).
Settlement negotiations as part of U 65 of 2022
41. The appellant’s Further Amended Appeal Notice includes records of settlement negotiations that occurred as part of conciliation in U 65 of 2022 and which are subject to without prejudice privilege (at pages 62 and 82 to 85).
42. The appellant has requested that the respondent waive without prejudice privilege in relation to at least one these documents.
43. Because the Board is first hearing preliminary jurisdictional questions (see Loanne Carter v Director General, Department of Education [2023] WAIRC 00199) for which only the facts up to and including the filing of the Unfair Dismissal Application are relevant, the respondent will determine its position in relation to the appellant’s request after the preliminary questions are determined.
44. The respondent therefore requests that the Board disregard the documents attached to the appellant’s Amended Notice of Appeal at pages 62 and 82 to 85.
The Hearing
71 The Jurisdictional Issue was listed for hearing on 1 September 2023.
Respondent’s contentions and evidence
72 On 28 July 2023, the respondent filed an outline of legal submissions contending that:
(a) Ms Carter resigned when she filed the Form 2.
(b) Ms Carter’s resignation is to be determined by reference only at the time she filed the Form 2.
(c) A resignation is a unilateral act that does not require acceptance by an employer: Birrell v Australian National Airlines Commission (1984) 5 FCR 447, 458; State of New South Wales v Paige (2004) 60 NSWLR 371, 407-8 [277].
(d) The test to be applied in determining whether there was a resignation, is outlined in Koutalis v Pollett (2015) 235 FCR 370 [43], [47] in which Rares J states:
The question whether a resignation did or did not occur does not depend upon the parties’ subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position immediately after Mr Pollett left the Koutalis’ business’ premises on the morning of 5 May 2014, based on what each party to the conversation had said or done, in light of the surrounding circumstances. …
… In my opinion, there is no question that when Mr Pollett, as an employee, said, “I don’t want to start work. I want to leave. I don’t want to work here anymore” and “No. It’s better that I go now, sooner rather than later”, he communicated clearly that he no longer considered himself to be an employee. A person in the position of Mr Koutalis would have understood that to be a resignation, and both he and his wife did understand that to be so.
(e) The Form 2 would have been understood as a resignation by a reasonable person in the position of the respondent for three reasons.
(f) Firstly, filing the Form 2 for constructive dismissal communicated to the respondent that Ms Carter considered her employment to be over because the respondent had given her no real choice but to resign.
(g) Secondly, by the following statement in the Form 2, Ms Carter communicated that she understood that she was claiming that she had been forced to resign:
I believe all their actions have been to bully, harass, intimidate and suppress me into quitting my job so that they would not have to deal with me or have any responsibilities to me.
(h) Thirdly, by answering with ‘no’ to the question in the Form 2 ‘do you want your job back?’, making the statement below, and setting out the relief sought to not include reinstatement, Ms Carter communicated that she would not and would not be able to render service to the respondent in the future:
I have been bullied at the school, harassed, suppressed, unfairly and wrongly treated by the Department of Education. I would not want to or be able to ever work there again.
(i) Ms Carter contends that the Form 2 could not constitute a resignation because the Education Department Ministerial Officers Salaries Allowances and Conditions Award 1983 (Award) and her contract of employment required her to give notice. Whilst failing to give the required notice may not terminate the employment contract, a resignation terminates the employment relationship: Visscher v Honourable President Justice Giudice [2009] HCA 34 [53]-[55] (Heydon, Crennan, Kiefel and Bell JJ); Khayam v Navitas English PIL t/a Navitas English [2017] FWCFB 5162 [61]-[67].
(j) There are no facts to support a finding that Ms Carter was dismissed. The actions taken by the respondent and her officers prior to Ms Carter filing the Form 2 were entirely reasonable and appropriate.
(k) The respondent’s actions did not leave Ms Carter with ‘no effective or real choice but to resign’: Bone Densitometry Australia Pty Ltd v Lenny [2005] WAIRC 2981 (Bone Densitometry) [55]. Therefore, her resignation was voluntary.
73 Hugh David Matkovich gave evidence that:
(a) In March 2021 he commenced in the role of Senior Assessment Officer with the Standards and Integrity Directorate.
(b) His duties involved assessing complaints and notifications made to the Department to determine if there was any misconduct.
(c) In late 2021, the Department established a COVID response team to deal with the Public Health Orders that issued for mandatory vaccination of people in education roles.
(d) The effect of Education Worker (Restrictions on Access) Directions (No. 3) (Public Health Order No. 3) dated 3 December 2021 [Exhibit R2], was to require all staff employed in, or people entering, an education facility to be single-dose vaccinated by 1 January 2022 and double-dose vaccinated by 31 January 2022.
(e) Public Health Order No. 3 applied to all schools.
(f) At the time, he was appointed as a Principal Investigator to oversee disciplinary investigations of the staff who had not complied with the respondent’s direction made in accordance with Public Health Order No. 3.
(g) He supported the COVID response team to provide information to staff. This involved providing advice as to what could potentially happen and what the impacts were.
(h) There were approximately 41,000 employees. This involved assessing the information provided by employees and determining what the potential ramifications could be.
(i) In early October or November 2021, the respondent sent a census to all employees to determine whether or not they would be providing vaccination evidence to the Department. After that, the respondent prepared a series of emails, advising staff when they were required to provide vaccination evidence.
(j) If staff did not provide proof of vaccination by the start of Term 1 2022, this meant there was going to be a serious shortage of frontline staff to provide education services to the community.
(k) Considering the impact that would have on the delivery of education services, one of the top priorities for the Department was to ensure that staff were ready, able and present for the commencement of Term 1.
(l) Central office established a significantly resourced COVID response team, to advise the Department on PPE, rules and regulations and compliance with the Public Health Orders. The team established a hotline for staff and parents, resourced by 10-15 staff.
(m) The COVID response team and Standards and Integrity Directorate were responding to an overwhelming amount of correspondence from staff and parents at over 800 schools.
(n) Approximately 300 cases were referred to the Standards and Integrity Directorate for disciplinary action for non-compliance with the direction to provide vaccination evidence or an exemption.
(o) All staff who had failed to provide evidence were advised that they would be stood down without pay.
(p) The purpose of the respondent’s letter dated 24 February 2022 [Exhibit 1: pages 113114], was to communicate the finding from the disciplinary investigation, that the allegation of failing to comply with a lawful order was substantiated. The letter also informed Ms Carter that the respondent proposed to dismiss her from her employment, and to give Ms Carter an opportunity to respond to the proposed penalty.
(q) If a response was received, the Standards and Integrity Directorate would consider it and all relevant information to make a final outcome proposal. This was progressed to the respondent with all disciplinary investigation information for a decision to be made.
(r) After a response, a different final decision to the proposed action could be made depending on any additional information provided.
(s) Of the 300 employees, a small number were dismissed, and a larger number were issued with formal reprimands for failing to comply with a lawful order.
(t) Some disciplinary investigations were held in abeyance awaiting the Falconer decisions. Also, before finalisation, the Public Health Orders were revoked.
(u) When the Public Health Orders were revoked, employees issued dismissal proposals for non-compliance were allowed to return to work with a formal reprimand.
(v) On 14 March 2022, Ms Carter responded to the respondent’s letter proposing dismissal. On 15 March 2022, he responded to Ms Carter to acknowledge he had received her response and to advise that her response would be considered and progressed to the respondent for a final decision [Exhibit 1: pages 131-132].
(w) He did not receive any further communication from Ms Carter after this date.
(x) Ms Carter emailed the respondent and Principal each day advising she would not attend work, attaching photos of herself outside the school premises [Exhibit 1: pages 85-88].
(y) Initially he and Mr Wells asked Ms Carter to stop emailing the respondent and Principal as Ms Carter was stood down for non-compliance. The emails continued, so Ms Carter’s account was suspended and emails redirected to the Standards and Integrity Directorate.
(z) There was no need for Ms Carter to report non-attendance as the Department knew she could not work because she had not provided evidence of being vaccinated and was stood down.
(aa) Ms Carter’s emails were considered unnecessary, in particular at a time when the schools and the respondent was receiving such a large volume of email correspondence and information. It was considered unnecessary for the images or the absences to be reported.
(bb) On 2 May 2022, the Commission’s Registry emailed Paul Wilding, Director of Workforce, attaching a copy of Ms Carter’s unfair dismissal application [Exhibit R4]. This was forwarded to the Standards and Integrity Directorate, as the Directorate was managing the investigation of the matter.
74 Under cross-examination, Mr Matkovich’s evidence was that:
(a) The Public Health Orders [Exhibit R2 and Exhibit R3] do not state that if someone is not vaccinated, they would be subject to disciplinary action.
(b) The respondent issued the CEO Instructions [Exhibit 1: pages 16-18] in accordance with the Public Sector Management Act 1994 (WA), which provides that a failure to comply with a lawful order can be considered a breach of discipline, and result in disciplinary action.
(c) Paragraph 2.1 of the CEO Instructions states, ‘A Worker must: be vaccinated in accordance with Paragraph 3, unless exempt from the Vaccination Requirement.’
(d) The Public Health Orders refer to entering an educational facility. A worker would not be able to enter a school if they were not vaccinated.
(e) A worker working from home would not need to be vaccinated to continue working for the Department, as they were not entering an education facility.
(f) He had seen Ms Carter’s vaccination history and it showed that she was not vaccinated against COVID.
(g) This meant Ms Carter only partially fulfilled the requirements of the CEO Instructions. She did not fulfil the paragraphs stating, ‘A Worker must be vaccinated in accordance with Paragraph 3’ and ‘A Worker must be partially vaccinated … and fully vaccinated’ and provide approved evidence.
(h) Ms Carter was not offered retraining to a position not requiring vaccination. That decision would not be made by him, but by the respondent.
(i) Ms Carter’s request to be retrained into a position that did not require her to be vaccinated was part of the information that was provided to the respondent as part of the disciplinary proceeding.
(j) Standards and Integrity Directorate did not recommend Ms Carter be offered retraining as it was not feasible to offer that for all employees.
(k) On 24 February 2022, he was monitoring the Falconer decisions. Ms Carter was not treated differently to other employees based on the Falconer decisions.
(l) In the photos and emails Ms Carter sent to the respondent and Principal, she was off the premises, complying with the CEO Instructions not to enter a worksite unvaccinated.
(m) Ms Carter was not disciplined for sending the emails and photos of herself outside the school.
(n) Ms Carter was considered non-compliant with the CEO Instructions because it required Ms Carter to provide evidence of her vaccination against COVID to perform her duties.
(o) In the email exchange between Ms Carter, Mr Wells and himself, Ms Carter asked if he was her line manager. He would not have been Ms Carter’s line manager. He was performing the function of managing a disciplinary investigation.
(p) Any emails sent by Ms Carter to the attention of the Department were redirected at the time of the disciplinary investigation. This included an email from Ms Carter to Michelle Kelly sent on 22 June 2022 at 8.35am, stating: [Exhibit A1]
Hi Michelle,
It was lovely meeting you and thank you for the information.
Kind regards,
Loanne
(q) On 22 June 2022 at 2.48pm, he responded to Ms Carter, stating: [Exhibit A1]
Good afternoon Loanne,
I am unsure why this email was on sent to the Standards and Integrity Directorate, could you please provide further advice?
Regards,
Hugh Matkovich
75 On re-examination, Mr Matkovich’s evidence was that:
(a) As of Term 1 2022, no schools were closed. People were in schools and not working from home.
(b) Ms Carter was not treated differently to other employees. The disciplinary matters would have been dealt with at the same time.
(c) Ms Carter did not respond to his email sent on 22 June 2022 at 2.48pm [Exhibit A1]. He did not receive any further emails from Ms Carter that did not appear to be intended for him. If he had received something substantive that appeared to be for someone else in the Department, he would have on sent that for their attention.
Ms Carter’s contentions and evidence
76 On 9 August 2023, Ms Carter filed an outline of legal submissions contending that:
(a) Koutalis v Pollett is distinguishable because the communications in that case were between the employee and the employer. In this matter, the respondent is relying on communication Ms Carter made to a third party, namely the Commission, upon the filing of the Form 2.
(b) She filed the Form 2 after receiving the respondent’s 24 February 2022 letter, proposing dismissal. This shows the decision to dismiss was made by the respondent and there was no resignation.
(c) On 24 June 2022, she received a voicemail from the Acting Principal, enquiring if she was intending to return to work.
(d) She is aware of an email dated 29 July 2022 from Mr Matkovich to Tim Yorke (ICT Operations and Customer Service) (Mr Yorke) stating ‘Mrs Carter is due to return to work in the near future…’.
(e) The Principal’s voice message of 24 June 2022 and the Department’s email of 29 July 2022 shows an ongoing employment relationship.
(f) The primary remedy in the Form 2 was redundancy. As a former employee cannot seek redundancy, it shows she understood she was still an employee.
(g) She lodged the Form 2 to ‘prevent the finalisation of the “Dismissal Proposal” by the’ respondent.
(h) Her statement in the Form 2 that ‘I would not want to or be able to ever work there again’ was an emotional response made whilst under a large amount of stress and anxiety. Her statement should be taken as that of a person on the verge of having a mental breakdown due to the unprecedented stress and ‘a total lack of understanding from her employer’.
(i) The Award and her employment contract require her to give notice of the termination of employment. She did not do so.
(j) The respondent made two decisions in relation to her employment.
(k) Firstly, on 24 February 2022, when the respondent made the statement ‘I propose dismissal from your employment.’ This is a clear decision to dismiss her.
(l) Secondly, when the respondent made the decision to accept her Form 2 as a resignation. This decision was made with no communication with her.
77 Ms Carter gave evidence that:
(a) She sent an email requesting the respondent provide the vaccine’s MSDS and health assessment. She received a response from the respondent at a later date, confirming that there was no information regarding the COVID vaccination that she had requested.
(b) She had requested an exemption from the Chief Health Officer, from her doctor, and also from the school, to delay the vaccine for six months while she finished her treatment. All of her requests were declined.
(c) The information provided by the respondent referred to the Health Department’s link.
(d) On 18 August 2022, she was experiencing an extreme amount of stress. She went to see her GP who referred her to a psychologist. The psychologist requested that she undertake a screener [Exhibit A2].
(e) On 27 June 2022, she received a voicemail from the Acting Principal of the school.
(f) On 10 June 2022, she was expecting a phone call or notification from Standards and Integrity to say that she was allowed to return to work.
(g) In her Form 2, the statement that ‘I never want to work there again’ only related to Kelmscott Senior High School.
78 Under cross-examination, Ms Carter’s evidence was that:
(a) She was employed at Kelmscott Senior High School as a Lab Technician.
(b) Her employment contract states that her ‘Duties/Tasks’ are: [Exhibit R5]
In accordance with the Job Description Form and other duties as directed which are within the limits of the employee’s skill, competence and training, including work which is incidental or peripheral to the employee’s main tasks or functions.
(c) The employment contract required her to perform the duties provided for in the Job Description Form (JDF) [Exhibit R6]. The JDF states the following, which can only be performed at the school:
ROLE
The Laboratory Technician:
…
· Prepares chemicals, equipment and materials, designs and constructs teaching aids and collects and cares for living organisms for study purposes in compliance with chemical, physical and biological laboratory practices and legislative requirements
· Organises preparation areas and classroom laboratories and undertakes general housekeeping of chemicals, equipment (including repairs and maintenance) and other resources
· Manages laboratory stocks, including ordering of supplies and equipment, liaison with suppliers, and completion of annual stock-takes, complying with Departmental guidelines
(d) The following aspects of the role involve providing support and advice to the teachers and head of department, and would be more effectively performed if she was at the school:
· provides support and advice to the Head of Learning Area, teaching staff and Laboratory Technicians Level 1 (if present) to ensure that curriculum requirements are met
· provides advice on suitable experiments, and/or demonstrations to support teaching and curriculum outcomes for science classes
· provides advice on safe use, documentation, storage, handling, maintenance and disposal of science equipment, chemicals and biological materials
(e) She was contemplating taking legal action against the Department at the time she sent the 14 March 2022 email responding to the proposed finding, in which she states:
If you continue to pursue disciplinary actions against me I will be forced to take legal action against you.
(f) On 15 April 2022 when she submitted the Form 2 [Exhibit R7] she understood the Commission was a decision-making body similar to a court.
(g) When someone files a form with a court or tribunal they should be careful not to mislead the court or tribunal, and they should be careful that they are truthful and accurate with the information they provide.
(h) She was careful in ensuring the information in the Form 2 was truthful and accurate.
(i) She had sought legal advice before submitting the Form 2.
(j) Completing the Form 2 took a bit of work on her part and included completing the respondent’s details which included looking up the respondent’s ABN, doublechecking her commencement date, looking up the Award and her level under the Award, and compiling the annexures.
(k) The first four paragraphs in the section ‘Describe why you say the dismissal was harsh, oppressive or unfair’, raise the main issues she had with the respondent’s conduct at the time. This had been raised with the respondent and the Department at least once in correspondence in the months prior to submitting the Form 2:
Since October 2021, Ms Lisa Rodgers, Director General of DoE started sending out requests for vaccination status/mandatory vaccination info to all staff. In December 2021, the Department of Education issued a CEO Instruction (signed by Lisa Rodgers) requesting all education staff to be Covid-19 vaccinated. From there, I received multiple emails and letters from the school and the Department requesting me to comply with the CEO Instruction and to upload Covid-19 vaccination evidence to the system; if not staff would face disciplinary actions and termination of employment.
As Covid-19 vaccinations were developed in a short time and are still in trial phases, I sent two emails requesting Ms Lisa Rodgers to supply Risk Assessment and Vaccine MSDS to assist me in making the decision to take the vaccine because I have a health issue which concerns me greatly. Ms Rodgers later responded to me that there is no Risk Assessment that would apply in this context, she did not mention Vaccine MSDS.
Regardless of the lack of providing safety data, Ms Rodgers kept on pushing the vaccination onto staff with the threat of termination in each of her email to all staff. Due to my health condition, I decided not to take the vaccine until my condition is clear. I desperately wrote to the school Principal and Ms Rodgers explaining my health issue and personal circumstances and asking them on medical and compassionate grounds to allow me to access my Long Service Leave early. Ms Rodgers completely ignored my desperate request. On top of that, my personal leave requests were denied with a note: Unvaccinated.
I was then placed on Stand Down Leave, my pay was stopped from 4 February 2022; I was again threatened to be terminated if I refuse to comply with the CEO Instruction. I wrote to Ms Rodgers asking her to explain her actions as my employment contract does not state that I have to be vaccinated to be able to work. I pointed out that the CEO Instruction is conflicting with my employment contract, I should be consulted and offered an alternative arrangement. However, the department ignored correct procedures, changed the condition of my employment without negotiating with me and forced me out of job.
(l) The fifth paragraph in the section ‘Describe why you say the dismissal was harsh, oppressive or unfair’, explains the issue she had with Mr Wells and Mr Matkovich at the time. She had raised the issue with Mr Wells and Mr Matkovich directly before submitting the Form 2:
Furthermore, my case was referred to Stands & Integrity Directorate and handled by Mr Nick Wells, Director and Mr Hugh Matkovich, Principal Investigator. I have since received further emails and letters harassing me to comply or face termination. I have been investigated and treated like a criminal simply because I refused a potentially harmful vaccine. In addition, Mr Matkovich and Mr Wells locked me out of my departmental account because I kept reporting the daily attendance to my line manager since I am not allowed to enter the school site. I have not been able to log in my account to access emails or information. I believe all their actions have been to bully, harass, intimidate me into quitting my job so that they would not have to deal with me or have any responsibilities to me.
(m) The sixth paragraph in the section ‘Describe why you say the dismissal was harsh, oppressive or unfair’, states that before all these actions, she was bullied by another staff member at Kelmscott Senior High School, but it was not investigated.
(n) The final paragraph in the section ‘Describe why you say the dismissal was harsh, oppressive or unfair’, describes the effect that all these actions had on her:
Because of all their actions, I have been under a lot of stress for the last few months. I have recently started seeing a doctor regarding the level of stress I have been going through on top of my cancer prevention treatment. After an uncountable number of threats, Stand Down Notices and Disciplinary actions, the Department has not been in contact to finalise their decision as intended although in the most recent correspondence I was told that I would receive it in due course. This issue has been hanging over my head for months and it is causing damage to my mental health and possibly to my other health issue as well. It also affecting my family and my children negatively. Therefore, I am seeking to resolve this matter as soon as possible.
(o) The paragraph in the section ‘Describe why you say the dismissal was harsh, oppressive or unfair’, logically and clearly set out all of her key concerns about the Department at the time. It was consistent with what she had been saying to the Department prior to submitting the Form 2.
(p) In answer to the question 2.1 ‘Do you want your job back?’ she selected ‘no’. In the section ‘If you answered no to question 2.1, in the space below please explain why you are not seeking your job back, and what other remedy, outcome or other you seek’, she stated the following which honestly and accurately reflected her thoughts at the time:
I have been bullied at the school, harassed, suppressed, unfairly and wrongly treated by the Department of Education. I would not want to or be able to ever work there again. I am seeking the following:
(1) Redundancy
(2) Full Backpay to the last pay (date 3rd Feb 2022)
(3) Payout for all entitlements (Personal Leave and Long Service Leave) that I have accrued
(4) Compensation for any damage to my physical and mental health
(q) On 19 April 2022, Registry sent her an email requesting the Form 2 be resubmitted because it was not signed [Exhibit R9: pages 3-5]. On 22 April 2022, she resubmitted a signed copy of the Form 2 [Exhibit R9: page 2].
(r) The answer to question 2.1 in the resubmitted version is the same as the version submitted on 15 April 2022, and honestly reflected her thoughts at the time. She held the view that she would not want to or be able to ever work for the Department again for a period of at least one week.
(s) The second sentence ‘I would not want to or be able to ever work there again’ is linked to the first sentence ‘I have been bullied at the school, harassed, suppressed, unfairly and wrongly treated by the Department of Education’. She is expressing that she would not want to work there again because of the treatment described in the first sentence.
(t) She did not mention a transfer to another school in the Form 2 as a remedy sought from the Commission because she had raised it previously with the respondent and it was declined. The remedies stated in the Form 2 (redundancy, back pay, pro rata long service leave) had also been declined by the respondent.
(u) She read through the instructions to completing and lodging the Form 2. These instructions [Exhibit R7], including an email from Registry [Exhibit R9: page 1], notified her that after filing the Form 2 that Registry would serve the document on the respondent.
(v) Every day from the start of Term 1, 2022, she sent the respondent and the Principal a photograph of herself outside the gates of the school, noting that she was not allowed to go inside under the Public Health Directions and asking how best to proceed.
(w) She accepts that at the time she was sending these emails, the Department had clearly and on multiple occasions advised her that she was stood down without pay because she was unable to enter the school and therefore could not perform her duties.
(x) She accepts that at the time she was sending these emails, the Department had notified her it was not going to provide her with alternative duties.
79 On re-examination, Ms Carter’s evidence was that:
(a) She sought the remedy of redundancy in the Form 2, because ‘I was thinking I still have the job, but I was about to [be] dismiss[ed]’.
(b) She understood that if her unfair dismissal application was successful, and she were granted a redundancy, that she would not be able to return to work.
(c) She accepts that when she was sending emails to the Department with a photograph of herself outside of the school, that the Department did not provide her with alternative duties.
Consideration
Question 1: Did Ms Carter resign by submitting the Form 2 for filing with the Commission?
80 The Board finds that Ms Carter resigned by submitting the Form 2 for the following reasons.
81 The Board agrees with the respondent’s contention that Ms Carter’s written answer in the Form 2 to the question ‘Do you want your job back?’ of ‘No. I would not want to or be able to ever work there again’ clearly communicated that Ms Carter no longer considered herself to be an employee. The Board agrees that by this statement, Ms Carter clearly stated not only that she did not want to provide service, but that she was unable to provide service. As service by an employee is the foundation of an employment relationship, Ms Carter’s statement was irreconcilable with her continuing to be an employee.
82 The Board agrees with the respondent’s contention that Ms Carter knew, or ought to have known, that the Form 2 would be communicated to the respondent. The following words in Exhibit R9 make this clear:
The Commission’s Registry will serve a copy of the application on the respondent, who may file a response within 21 days of being served. If a response is filed, the Registry will send you a copy of that response.
83 Given Ms Carter knew the Form 2 would be provided to the respondent, the Board agrees with the respondent that Ms Carter’s analogy of completing the Form 2 being like discussing an intention to resign with a friend is not apt. Rather, the Board considers it is more analogous to asking an intermediary to deliver a written resignation letter on her behalf.
84 Whilst Ms Carter initially accepted that the sentence ‘I would not want to or be able to ever work there again’ is linked to the sentence ‘I have been bullied at the school, harassed, suppressed, unfairly and wrongly treated by the Department of Education’, she subsequently gave unclear responses in cross-examination about whether working ‘there again’ referred to working at the school or working for the respondent.
85 Having observed Ms Carter giving evidence, and closely examined the Form 2, the Board agrees with the respondent’s contention that ‘there’ refers to working for the respondent. This is consistent with the entirety of Ms Carter’s answer to paragraph 2.1 and with the answer to paragraph 3.2 of the Form 2. This is also consistent with Ms Carter seeking remedies that had been refused by the respondent but not seeking the remedy of a transfer to another school.
86 Ms Carter tendered into evidence an Adult PsychProfiler Self Report Form dated 18 August 2022, which indicated that Ms Carter attained the cutoff for six of the 22 disorders screened, including for Generalised Anxiety Disorder [Exhibit A2].
87 Whilst Ms Carter did not tender any evidence about her state of mind at the time of submitting the Form 2 on 15 April 2022, the Board accepts Ms Carter’s evidence that it was a stressful time for her.
88 However, the Board does not accept that Ms Carter did not carefully complete the Form 2 before submitting it to the Registry or that her statements in the Form 2 should now be disregarded for the following reasons:
(a) Ms Carter sought legal advice prior to completing the Form 2.
(b) Ms Carter carefully considered for inclusion the respondent’s details, her commencement date and the Award and her level of employment under the Award. She also collated 69 pages of correspondence that formed the annexures to the Form 2.
(c) Ms Carter’s answers to paragraph 3.1 is internally consistent, clear and logical. Ms Carter accepted under cross-examination that looking back at her answer, that it accurately reflects what she was thinking at the time, and that it clearly set out her position.
(d) Ms Carter’s statements in the Form 2 are also consistent with the statements made by her in the correspondence she exchanged with the respondent at the time.
(e) Due to Ms Carter submitting a Form 2 without a signature, Ms Carter was given the opportunity to re-submit the Form 2, which she did one week later. Ms Carter maintained the statements made in the resubmitted Form 2.
(f) Under cross-examination, Ms Carter agreed that when she filed the Form 2 she was careful in ensuring that the information in the Form 2 was truthful and accurate.
89 The correspondence preceding Ms Carter filing the Form 2 comprised of the respondent’s letter dated 24 February 2022, in which the respondent advised of the ‘Proposed Action’ of dismissal, and invited Ms Carter to provide a response to the proposed action before a final decision was to be made [Exhibit R1: pages 113-114].
90 On 14 March 2022, Ms Carter provided her written response to the proposed action. Ms Carter’s email concludes with, ‘I trust that this is a reminder you to make a fair and reasonable decision.’ [Exhibit R1: pages 131-132]. The Board accepts the respondent’s contention that by this statement, Ms Carter understood she was making a submission to be considered by the respondent before a final decision was made on her employment.
91 On 15 March 2022, the respondent acknowledged Ms Carter’s response and advised it would be further considered in the disciplinary proceedings and reviewed by the respondent and Director of Standards and Integrity.
92 Mr Matkovich’s unchallenged evidence was that he received no further communication from Ms Carter between 15 March 2022 and learning she had filed the Form 2.
93 On 15 April 2022 at 11.23am, Ms Carter submitted the Form 2 to the Commission’s Registry, stating that ‘I am applying for Constructive Dismissal as part of the Unfair Dismissal claim’ [Exhibit R9: page 5]. In the Form 2, in answer to the question at paragraph 1.3, Ms Carter states, ‘I am applying for Constructive Dismissal as part of this application’ [Exhibits R7, R8 and R9: page 9].
94 The respondent does not contend as a matter of law that all unfair dismissal applications based on a claim of constructive dismissal amount to a resignation. Rather, the respondent relies on the specific language Ms Carter used in the Form 2.
95 A constructive dismissal is one where the ‘employee has no effective or real choice but to resign’, or put another way, one where the employee is forced to resign because of the employer’s conduct: Bone Densitometry Australia Pty Ltd v Lenny [2005] WAIRC 02081; (2005) 85 WAIG 2981 [55]:
In any event, an important element of dismissal of an employee by an employer is that the act of the employer results directly or consequentially in the termination of the employment and the employee does not voluntarily leave the employment relationship. Indeed, put another way, had the employer not taken the action which he/she did, then the employee would have remained in the employment relationship. Put another way, if the employer directly or consequentially brings about the termination of the contract and the employee has no effective or real choice but to resign, it can hardly be said that the termination of employment is effected by the employee or his/her act (see J L v Haydar Family Restaurants (FB) (op cit) at page 3309, para 67).
96 The Board finds Ms Carter’s statements in the Form 2, including claiming constructive dismissal, meant she was claiming forced resignation due to the respondent’s conduct.
97 Whilst the Board accepts that by filing the Form 2 Ms Carter did not intend for it to have the effect of a resignation, whether the filing of the Form 2 containing Ms Carter’s statements amounted to a resignation depends upon ‘what a reasonable person in the position of the parties would have understood was the objective position’: Koutalis v Pollett [43].
98 This is the case whether the communication was made directly to the respondent, or through an intermediary: Koutalis v Pollett [44] citing Sovereign House Security Services Ltd v Savage [1989] IRLR 115 at 116:
In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise. However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the Tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight.
99 This is also the case even though Ms Carter did not give notice of termination in accordance with the terms of her employment contract.
100 Notice which is ineffective in terminating an employment contract may nevertheless be effective in terminating the employment relationship: Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 [22] citing Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435; Byrne v Australian Airlines Limited (1995) 185 CLR 410, Purcell v Tellett Prebon (Australia) Pty Ltd [2010] NSWCA 150; D’Souza v Halas [2014] FWC 5864 (emphasis added):
For example, a wrongful dismissal of an employee by an employer, or a unilateral resignation by an employee other than in accordance with the terms of the contract, is effective to bring the employment relationship to an end, but it does not automatically discharge the contract of employment.
101 During the hearing, Ms Carter stated that she had no intention to resign. Ms Carter’s subjective intention is not relevant to the determination of whether she resigned: Koutalis v Pollett [43]. Further, the Board finds Ms Carter’s statement about her intention problematic for the following reasons:
(a) Firstly, it is inconsistent with Ms Carter’s Form 2 statements. Filing an unfair dismissal application necessarily infers a dismissal ending employment. Ms Carter claimed in the Form 2 that there had been a constructive dismissal, that is, that she had been forced to resign. Further, Ms Carter stated she did not want her job back and ‘would not want to or be able to ever work there again’.
(b) Secondly, it suggests Ms Carter filed the Form 2 for reasons other than genuinely seeking redress for the claimed constructive dismissal.
(c) It was contended that Ms Carter filed the Form 2 ‘more for mediation, not for a result, not for an answer, not for what the respondent is treating it as. It wasn’t to terminate an employment relationship, it was more to get someone who’s not associated to either party to go, right, here’s a problem, let’s fix it’ and as a ‘cry for help from the Western Australian Industrial Relations Commission to help negotiating with the Education Department and herself’.
(d) Further, Ms Carter stated that she filed the Form 2 because she understood she was ‘about to be dismissed, because at that point, um, Ms Lisa Rogers proposed dismissal. So if anything, I actually took the action to prevent the dismissal to come to, um, a conclusion.’
102 Ms Carter contends the Acting Principal’s 24 June 2022 voicemail enquiring if she would return to work and Mr Matkovich’s 29 July 2022 email referring to her return ‘in the near future’ supports her contention that the employment relationship was ongoing.
103 The respondent contends that these communications were made in the context of the settlement negotiations at the time and ‘it’s very possible that the Department was envisaging an outcome out of the conciliation process, rather than just expecting her back to work as a normal kind of incident of her previous employment.’
104 Privilege over the U 65/2022 settlement discussions was not waived and no evidence was given by the Acting Principal or Mr Matkovich on the voicemail and email. The Board notes the communications were after the 3 June 2022 conciliation conference and before Ms Carter’s 4 August 2022 notification to the Commission that negotiations had concluded and determination of U 65/2022 was requested.
105 In the circumstances, the Board finds it more likely the communications were in the context of the U 65/2022 negotiations. As such, they are without prejudice to this appeal, and it would be unsafe for the Board to rely on them.
106 Section 80L(1) of the Act provides that s 26(1) of the Act applies to the exercise by the Board of its jurisdiction. Section 26(1)(a) and (c) states that the Board:
(a) must act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms; and
(c) must have regard for the interests of the persons immediately concerned whether directly affected or not and, where appropriate, for the interests of the community as a whole; and
107 Having claimed that she was forced to resign, the Board does not consider it would be consistent with equity and good conscience, nor the interests of the community as a whole in seeking redress through the Commission or Board, to allow Ms Carter to proceed by resiling from her statements in the Form 2.
108 Whilst the Board accepts Ms Carter’s submission that she sought legal advice before filing the Form 2, and her evidence that, ‘my understanding of legal proceeding is very limited’, Ms Carter stated that, ‘My understanding of the unfair dismissal is literally being dismissed by the employer unfairly, um, for lack of, um, understanding of the terms. Um, that’s how I took it.’ (emphasis added)
109 Given Ms Carter understood that by filing the Form 2 that there was a dismissal, the Board considers that it would be inconsistent with its obligations under s 26(1)(a) and (c) of the Act to allow Ms Carter to argue in this appeal that despite filing the Form 2 that the employment relationship with the respondent was ongoing.
110 In her written submissions, Ms Carter contends the primary Form 2 remedy of redundancy supports her contention of ongoing employment, as a former employee cannot seek redundancy.
111 The respondent contends the Form 2 redundancy request could be viewed as Ms Carter seeking a Commission finding of constructive dismissal and order for a redundancy payment. Alternatively, if the statement was made for the purposes of mediation, it could be viewed as made for the purposes of persuading the respondent that Ms Carter should be made redundant. This supports an interpretation that Ms Carter was refusing to provide future service to the respondent.
112 Given the findings above, the Board does not consider it necessary to make any findings about the proper interpretation of Ms Carter’s Form 2 redundancy request.
Question 2: Was the resignation a constructive dismissal?
113 The Board finds that Ms Carter was not forced to resign for the following reasons.
114 There was no dispute that the CEO Instructions were a lawful and reasonable direction.
115 In cross-examining Mr Matkovich, Ms Carter appeared to contend that she was not in breach of the CEO Instructions because it only required her to provide her vaccination status, which she did when she provided her vaccination status confirming she was not vaccinated against COVID-19. The Board finds this contention unsustainable for the following reasons.
116 Firstly, this contention is plainly unsustainable based on the clear language in the CEO Instructions [Exhibit R1: pages 1618] at paragraph 2.1a.: (emphasis added)
2. Instruction to Workers
2.1 A Worker must
a. be vaccinated in accordance with Paragraph 3, unless exempt from the Vaccination Requirement;
b. provide evidence of the vaccination or exemption in accordance with Paragraph 4;
c. establish a Vaccination Status Record in accordance with Paragraph 5; and
d. not enter an Education Facility without a Vaccination Status Record.
3. Vaccination Requirement
3.1 A Worker must
a. be partially vaccinated against COVID-19 from 12.01 am on 1 January 2022 (single dose vaccinated); and
b. be fully vaccinated against COVID-19 from 12.01 am on 31 January 2022 (double dose vaccinated).
117 Secondly, it is inconsistent with Ms Carter’s statements to the respondent indicating her understanding the CEO Instructions required her to be vaccinated or to obtain a medical exemption from vaccination:
(a) Email sent 15 December 2021 [Exhibit R1: pages 19-23], stating ‘The threat contained within your correspondence is exerting economic duress upon me by forcing me to choose between participating in a Covid-19 vaccination clinical trial, or to lose my job.’ and ‘I am considering all legal protections available to me, including restraining orders, to protect my rights and to protect my person against your assault and threat of battery through the unconscionable and illegitimate economic duress contained in your correspondence, which is affecting my freedom to decline a Covid-19 vaccine.’
(b) Email sent 22 December 2021 [Exhibit R1: page 24], stating ‘the decision of injecting an experimental drug (such as Covid-19 injections) into one’s body cannot be taken lightly on such empty promises as FAQ. The Chief Health Officer has mandated the vaccines to education workers must also be obligated to provide them with complete data regarding the vaccines to assist workers in making this decision as taking the injections is an irreversible procedure.’
(c) Email sent 31 December 2021 [Exhibit R1: pages 26-27], stating ‘Your response is lacking and has left me wondering if you even know what is in the vaccine and what the potential health risks will be. This has left me with more questions than I started and due to my treatment will not be taking part in the Governments experiment.’ and ‘I have made the decision not to take the vaccine and I will only review my decision until all information is released and is not redacted.’
(d) Email sent 16 January 2022 [Exhibit R1: pages 31-32], stating ‘I have a health condition that deeply concerns me regarding taking the Covid-19 injections.’ and ‘Please keep in mind that it is not a crime for people to have concerns about potentially dangerous drug/vaccine that have not gone through complete trial and testing. Sadly, it is what our premier portraying us and making us look like we are the problem.’
(e) Email sent 28 January 2022 [Exhibit R1: page 79], stating ‘I am unable to upload my Covid-19 vaccination evidence to HRMIS because you asked for something that does not exist.’
(f) Email sent 18 February 2022 [Exhibit R1: pages 98-99], stating ‘Under the instruction from the Prime Minister, no vaccine would be made compulsory; therefore Lisa Rodgers cannot force me to take it and threatening my job can be seen as abuse of public office under the Criminal Code.’
(g) Email sent 14 March 2022 [Exhibit R1: pages 131-132], stating ‘On the 9 December 2021, the CEO Instruction was issued by yourself which required me to be vaccinated against Covid-19.’
118 It is also inconsistent with the statements made by Ms Carter in the Form 2, indicating her understanding that the CEO Instructions required her to be vaccinated or to obtain a medical exemption from vaccination: ‘Regardless of the lack of providing safety data, Ms Rodgers kept on pushing the vaccination onto staff with the threat of termination in each of her email to all staff. Due to my health condition, I decided not to take the vaccine until my condition is clear.’
119 Having closely examined the pre-Form 2 correspondence, and accepting Mr Matkovich’s evidence in full, the Board sees no basis for Ms Carter’s contention she was forced to resign due to the respondent’s conduct.
120 The Board considers the correspondence from the respondent to be conventional, appropriate and measured in all respects. This includes the request for Ms Carter to cease sending daily emails to the respondent and Principal with a photograph of herself in front of the school. This also includes the redirection of Ms Carter’s emails when she refused to comply with the request.
121 It was submitted that Ms Carter attended a medical facility to seek a vaccine exemption but did not qualify. Further, Ms Carter notified the respondent of this exemption attempt through an application for sick leave for the appointment. This implies Ms Carter did not meet exemption criteria and the respondent knew this.
122 As Ms Carter did not qualify for a medical exemption, the CEO Instructions required her to be vaccinated against COVID-19. There is no dispute that Ms Carter was not vaccinated against COVID-19.
123 Ms Carter accepted that apart from a small number of duties she could perform remotely, she could not effectively perform most of her role from home.
124 While Mr Matkovich did not know why alternative duties were not offered, the Board accepts the respondent’s contention that the respondent was under no obligation to offer Ms Carter retraining or alternative duties.
125 Mr Matkovich stated that as at Term 1, 2020 all the schools were open and all school-based staff needed to be vaccinated to enter a school. This meant Ms Carter was unable to perform her role at any school.
126 The respondent contends that it was entirely appropriate to stand down Ms Carter without pay, given that she could not enter the school grounds, could not perform her duties and could not fulfil her employment contract. The Board agrees.
127 The Board finds that Ms Carter’s failure to comply with the CEO Instructions meant Ms Carter was unable to perform the inherent requirements of the role she was employed to perform.
128 An employee’s conduct in failing to comply with an employer direction to vaccinate or provide an exemption, preventing the employee from performing all of the duties of their role, is inconsistent with the continuation of employment: Heller-Bhatt v Director General, Department of Communities [2022] WAIRC 00719; (2022) 102 WAIG 1457 [108].
129 Ms Carter contends there was a constructive dismissal because the disciplinary process was initiated by the respondent and because the disciplinary process was protracted.
130 Immediately preceding the filing of the Form 2, the respondent notified Ms Carter of the ‘Proposed Action’ of dismissal, and invited Ms Carter to respond. Ms Carter responded on 14 March 2022, which the respondent acknowledged on 15 March 2022. Further, in the respondent’s correspondence of 15 March 2022, Ms Carter was advised that there was still another step in the disciplinary process.
131 Ms Carter did not wait for this further step and submitted the Form 2 on 15 April 2022.
132 The Board does not consider there to be any basis for Ms Carter’s contention that by 15 April 2022 she had been constructively dismissed by the respondent.
133 Mr Matkovich gave evidence that Ms Carter was not treated differently to other employees, and that the respondent dealt with all of the disciplinary matters at the same time. He gave evidence that a large number of the 300 employees issued a letter with the ‘Proposed Action’ of dismissal, were allowed to return to work when the Public Health Orders were revoked, and were issued with a formal reprimand for failing to comply with a lawful order.
134 The Board accepts Mr Matkovich’s evidence that the respondent did not treat Ms Carter differently from the 300 employees who had failed to comply with the CEO Instructions.
135 Ms Carter urged the Board to consider the respondent’s treatment of her in light of her circumstances. As a 37-year-old diagnosed with an aggressive HPV strain that could become cervical cancer; with no information on vaccine effects if requiring chemotherapy; her only family being her injured, unemployed husband; behind on their mortgage, she felt under duress facing the CEO Instructions to vaccinate or risk losing her job. She was experiencing stress and anxiety.
136 Ms Carter urged the Board to consider the power imbalance. She submitted that the respondent initiated disciplinary proceedings when she was under severe duress, at a time no worker could be described as sound of mind due to community feelings around COVID-19. Further, the extended disciplinary process compounded her stress.
137 The Board accepts it was a stressful time for Ms Carter and is sympathetic to her circumstances. As the CEO Instructions were an undisputed lawful and reasonable direction that she did not comply with, the Board considered whether the respondent’s conduct in addressing Ms Carter’s noncompliance left her with ‘no effective or real choice but to resign’: Bone Densitometry [55].
138 Having closely examined the correspondence between the parties before the filing of the Form 2, and given the Board’s finding that the respondent’s correspondence was unremarkable, the Board does not consider there to be any basis for Ms Carter’s contention of a constructive dismissal.
Question 3: Does the Board have jurisdiction to hear and determine the dismissal?
139 In the Supreme Court of Western Australia case of Director General, Department of Biodiversity, Conservation and Attractions v Cosentino [2022] WASC 306, Justice Allanson observed the following in relation to s 80I(1)(d) of the Act [24] at footnote 8:
Paragraph (d) has apparently suffered in amendment. It was inserted in its present form by s 295(6) of the Health Services Act 2016 (WA). Before that amendment, the section provided for an appeal ‘from a decision, determination or recommendation of the employer of that Government officer that the Government officer be dismissed’. There is now no reference to what the appeal is against.
140 Therefore, the Board requested the parties to provide submissions on the proper interpretation of s 80I(1)(d) of the Act.
141 On 13 September 2023, the respondent filed written submissions contending that:
(a) Section 80I(1)(d) has no plain or ordinary meaning. The words describing the nature of the appeal in s 80I(1)(d) of ‘an appeal … that the government officer be dismissed’ does not make sense and is grammatically incomplete.
(b) The structure of s 80I(1) further indicates that s 80I(1)(d) is incomplete. Each of s 80I(1)(a) to (c) provides that the Board has jurisdiction to hear and determine ‘an appeal against’ a specified ‘decision’ or ‘decision or finding’. The appealed decision or finding is the ‘matter’ that may be ‘adjusted’ by the Board.
(c) Without referencing a ‘decision’ or a ‘decision or finding’, s 80I(1)(d) does not identify what the appeal is against or what ‘matter’ the Board has power to adjust.
(d) The legislative history shows the current wording of s 80I(1)(d) results from a drafting error. The Health Services Act 2016 (WA) (HS Act) reorganised the public health system, establishing health service providers as board governed statutory authorities, and made consequential amendments to the Act. Before the enactment of the HS Act, s 80I(1)(d) read:
an appeal, other than an appeal under section 78(1) of the Public Sector Management Act 1994, by any government officer … from a decision, determination or recommendation of the employer of that government officer that the government officer be dismissed;
(e) Therefore, s 80I(1)(d) should be read as providing the Board with jurisdiction to hear and determine ‘an appeal … by a government officer against a decision, determination or recommendation by an employing authority that the government officer be dismissed.’
(f) However, determining the proper interpretation of s 80I(1)(d) is not necessary to determine the Board’s jurisdiction. Regardless of how s 80I(1)(d) is interpreted, the Board’s jurisdiction does not arise as there was no dismissal, nor a decision, determination, recommendation or finding to dismiss.
142 On 18 September 2023, Ms Carter filed written submissions contending that:
(a) If the Board finds that she resigned by the filing of the Form 2, there was no dismissal which would mean the Board would not have jurisdiction to hear the appeal. Interpreting s 80I(1)(d) in accordance with the respondent’s submission would not change that fact.
(b) If the Board finds constructive dismissal, the dismissal would have been caused by the respondent, and therefore the Board would have jurisdiction to hear the appeal.
143 A constructive dismissal must be at the initiative of the employer and a ‘voluntary resignation’ is not a dismissal: JL v Haydar Family Restaurants t/a McDonalds [2003] WAIRC 09489 (Haydar) [67] citing Corneille v Composite Buyers Ltd t/a Maxi Foods (2000) 48 AILR 4278.
144 If an employee has other options, other than to resign and does resign, the employee will not be held to have been dismissed: Haydar [68] citing Librizzi v Flower Power Pty Ltd (2000) 48 AILR 4-323.
145 Applying Haydar, and given the Board’s findings that Ms Carter resigned but was not forced to do so, there was no dismissal for the purposes of s 80I(1)(d) of the Act.
146 Therefore, the Board agrees with the respondent that in this appeal’s circumstances, it is unnecessary to make findings on the proper interpretation of s 80I(1)(d) of the Act.
Conclusion
147 For the preceding reasons, the Board finds that Ms Carter resigned but not in circumstances where she had no effective or real choice but to resign.
148 Therefore, there was no dismissal and the Board lacks jurisdiction to hear Ms Carter’s appeal.
149 Consequently, PSAB 66 of 2022 will be dismissed for want of jurisdiction.