2023 WAIRC 00932
APPEALS AGAINST THE DECISION OF THE EMPLOYER TAKEN ON 13 MARCH 2023 AND 15 MARCH 2023
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00932

CORAM
: PUBLIC SERVICE APPEAL BOARD
SENIOR COMMISSIONER R COSENTINO - CHAIRPERSON
MR G LEE - BOARD MEMBER
MS B SKALKO - BOARD MEMBER

HEARD
:
WEDNESDAY, 1 NOVEMBER 2023

DELIVERED : WEDNESDAY, 29 NOVEMBER 2023

FILE NOS. : PSAB 7 OF 2023; PSAB 9 OF 2023

BETWEEN
:
CLIVE PETER JENKINS; MICHAEL GREGORY JOHN COWLEY
Appellants

AND

COMMISSIONER OF POLICE, WESTERN AUSTRALIA POLICE FORCE
Respondent

CatchWords : Industrial Law (WA) – Public Service Appeal Board – Review of the employer’s decisions de novo – Vaccination Direction – Employer Direction to be vaccinated against COVID19 not complied with – Breach of discipline – Decision to dismiss made under s 78(1)(b) of the Public Sector Management Act 1994 (WA) – Chief Health Officer’s WA Police Force Worker (Restrictions on Access) Directions revoked before the dismissal decision – Reasons for not complying with the Employer Direction – Whether reasons objectively reasonable – Seriousness/gravity of conduct – Alleged inadequate consideration given to unique circumstances – Breach of discipline warranted dismissal – Appeals dismissed
Legislation : Industrial Relations Act 1979 (WA)
Public Sector Management Act 1994 (WA)
Public Health Act 2016 (WA)
Result : Appeals dismissed
REPRESENTATION:
Counsel:
APPELLANT : MR S HICKS OF COUNSEL
RESPONDENT : MR N JOHN OF COUNSEL
Solicitors:
APPELLANT : LAWFIELD LEGAL PRACTICE
RESPONDENT : STATE SOLICITOR'S OFFICE

Case(s) referred to in reasons:
Fagan v William (Bill) Johnston Minister for Corrective Services [2023] WAIRC 00324
Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728; (2017) 97 WAIG 1525
Stace v Complete Office Supplies/Complete Office Staffing Pty Ltd [2023] FWC 2758
The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385

Reasons for Decision

1 These are the unanimous reasons of the Public Service Appeal Board (Board).
2 The appellants, Mr Clive Jenkins and Mr Michael Cowley, were each employed in the WA Police Force The Commissioner of Police was Mr Jenkins and Mr Cowley’s deemed employing authority. The WA Police Force is the agency in which Mr Jenkins and Mr Cowley worked. For the purpose of these reasons, the term ‘WA Police Force’ is used interchangeably with the employing authority.
as Communications Technicians.
3 Mr Jenkins and Mr Cowley’s roles, as described in their job descriptions, were essential to the maintenance and support of ‘mission critical communications systems and hardware for the Western Australia Police Force frontline operations’ They performed essential maintenance and support for fixedsite infrastructure at police stations and operational centres, as well as to mobile communication devices in vehicles, marine vessels, and aerial appliances. This sophisticated communications network is vital to the safety of frontline officers and personnel and the public.
4 Mr Jenkins and Mr Cowley both provided over 10 years of service to the WA Police Force, without any disciplinary action being taken against them, other than that which is the subject of these proceedings.
5 During the World Health Organisation declared COVID19 pandemic, the WA Police Force issued directions to all WA Police Force employees requiring that they be vaccinated against COVID19 and provide evidence of vaccination or of any exemption (Vaccination Direction). Neither Mr Jenkins nor Mr Cowley complied with the direction. WA Police Force commenced a disciplinary process, which resulted in their dismissal from their employment.
6 Mr Jenkins and Mr Cowley have appealed from the dismissal decision. They have asked the Board to adjust the dismissal decision, by reversing it and imposing a lesser sanction for their conduct, which they agree was a breach of discipline.
7 Neither Mr Jenkins nor Mr Cowley say the Vaccination Direction was unlawful or unreasonable. They concede that they failed to comply with the Vaccination Direction, and that the failure to comply was a breach of discipline.
8 Nor do Mr Jenkins and Mr Cowley allege that they were denied a fair process leading up to the dismissal decision. They were given fair notice of the allegations against them and ample opportunities to respond over a period of 15 months while they were suspended on full pay.
9 They say that the dismissal was harsh because inadequate consideration was given to their unique circumstances. The particular unique factors relied upon were:
(a) Mr Cowley’s genuine concerns about the safety of the approved vaccination, which concern was reasonable in light of his medical history of brain tumour, surgery to remove brain tumour and recent seizures.
(b) Mr Jenkins’ concerns about the safety of the approved vaccinations which concerns were reasonable in light of the combination of his medical conditions and his involvement in IVF at the time of the Vaccination Direction.
(c) Their unblemished employment records.
(d) Their age and the impact of dismissal on them.
(e) The fact that the Vaccination Direction had been revoked prior to the date of dismissal and so being vaccinated was no longer a requirement to perform their duties.
10 They say that the culpability or severity of their disobedience needed to be assessed in light of these factors which mitigate their conduct, such that dismissal is too harsh a sanction.
11 Mr Jenkins and Mr Cowley also argue that they ought to be reinstated because other employees who failed to follow the Vaccination Direction for medical reasons were not dismissed.
Legal Framework
12 The appeals are brought under s 80I(1)(b) of the Industrial Relations Act 1979 (WA), which confers on the Board jurisdiction to hear and determine an appeal by a government officer under the Public Sector Management Act 1994 (WA) (PSMA) s 78 against a decision or finding referred to in subsection (1)(b) of that section.
13 Mr Jenkins and Mr Cowley are each government officers and the decision against which they appeal is one referred to in s 78(1)(b) of the PSMA.
14 The principles that apply in proceedings under s 80I(1) of the Act are not in dispute.
15 The appeals involve the review of the employer’s decisions de novo. As such, the Board is to consider the appeals based on the evidence before it, not merely on the basis of whether the employer made the right decision available to it at the time. The Board has greater scope to substitute its own view for the employer’s.
16 The employer’s decision is not to be totally disregarded by the Board hearing and determining the matter. That the appeal involves a hearing de novo does not necessarily mean that the Board must rehear every aspect of the allegations afresh. What precisely the Board must consider in the proceedings ultimately depends upon the nature of the challenge to the decision under review: Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728; (2017) 97 WAIG 1525 at [26] and [29].
17 The test of whether a dismissal was harsh, oppressive or unjust was discussed in The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385. The test was described in that case as whether the employer’s lawful right to dismiss was exercised so harshly or oppressively as to amount to an abuse of that right and denied the employee a ‘fair go all round’. That articulation of the test may not be directly applicable in appeals before the Board: Harvey at [25]. However, the test is apt where a decision is appealed on the grounds that the sanction is harsh or disproportionate to the misconduct, as is the case in these matters.
Events leading to dismissals
18 The facts in these matters are uncontentious. The parties filed a Statement of Agreed Facts, and a book of Agreed Documents. In combination, these represented the evidence about the process that led to the decision to terminate Mr Jenkins and Mr Cowley’s employment as well as the reasons for termination.
19 The Agreed Documents included copies of the Chief Health Officer’s WA Police Force Worker (Restriction on Access) Directions made under the Public Health Act 2016 (WA) on 12 November 2021, the Vaccination Direction issued on 24 November 2021, disciplinary investigation documents and correspondence between the appellants and the WA Police Force in the course of the disciplinary investigation.
20 In addition, Mr Jenkins and Mr Cowley each gave evidence in support of their appeals. Superintendent Crofts gave evidence for the WA Police Force.
21 The following summary of the facts common to Mr Jenkins and Mr Cowley is sufficient to deal with the issues that require determination in the appeals.
22 On 20 October 2021, the WA Police Force released a broadcast to all employees foreshadowing that it would be a requirement to be vaccinated against COVID19 by 1 December 2021 in order to be able to attend work, unless exempt.
23 The foreshadowed requirement was confirmed by the Vaccination Direction issued on 24 November 2021. The Vaccination Direction followed the Chief Health Officer’s WA Police Force Worker (Restrictions on Access) Directions (CHO Directions), the effect of which was that the Commissioner of Police was prohibited from allowing its employees to attend any WA Police Force facility unless vaccinated or exempt.
24 The Vaccination Direction was preceded and followed by a suite of information for employees about vaccination and exemptions.
25 Neither Mr Jenkins nor Mr Cowley complied with the Vaccination Direction. They were at all relevant times unvaccinated against COVID19 and not exempt.
26 On 1 December 2021, Mr Jenkins and Mr Cowley were each notified that they were suspected to have committed a breach of discipline by disobeying or disregarding the Vaccination Direction. They were suspended on full pay and provided with an opportunity to respond to the allegations.
27 Neither Mr Jenkins nor Mr Cowley responded to the allegations at that stage.
28 By 24 December 2021, Mr Jenkins and Mr Cowley had both been notified that the alleged breach of discipline was substantiated, and the recommended sanction was dismissal. They were invited to respond to the proposed sanction.
29 Mr Cowley responded on 2 January 2022. Mr Jenkins responded on 11 January 2022, with further information provided by him on 6 February 2022.
30 The disciplinary processes were suspended pending the outcome of proceedings in the Supreme Court that, amongst other things, challenged the validity of the Vaccination Direction.
31 On 10 June 2022, the Vaccination Direction was revoked.
32 On 22 August 2022, a decision affirming the validity of the Vaccination Direction was delivered by the Supreme Court. The disciplinary proceedings were recommenced, with further opportunities provided to Mr Jenkins and Mr Cowley to respond.
33 On 13 March 2023 Mr Jenkins was notified of the decision to dismiss him from his employment. Mr Cowley was notified on 15 March 2023.
34 In both cases, the dismissal letter explained the reasons for the decision in this way:
The WA Police Force is an agency that is critical to the functioning of our society. Ensuring employees were vaccinated against COVID19 was based on the state of emergency due to the COVID pandemic, and to ensure the capacity of the workforce was retained to address demand over this period, and to contribute to the safety of the workforce and community, suppressing the spread of COVID and the seriousness of any subsequent illness. A disciplined and responsive police force are critical factors to safety and wellbeing of the community, and compliance by all police staff with the directions provided by the Commissioner as the employing authority is the foundation of that system.
You wilfully rendered yourself fundamentally unable to lawfully carry out your employment, through your failure to be vaccinated or obtain an exemption and provide evidence thereof.
The Commissioner's order was based on public health advice. The Chief Health Officer's advice was that vaccination was the key measure to protect against the COVID19 pandemic…
In my view, your conduct posed a significant risk to the WA Police Force and its ability to provide continuity of service to the community. You demonstrated an unwillingness to place duty ahead of personal considerations, in circumstances that required a commitment to duty. Your conduct was completely out of step with the standards adopted by the vast majority of your colleagues, each of whom would have had their own personal background that informed their response to the Commissioner's Direction as to vaccination.
Whilst circumstances have changed since the directions of both the Chief Health Officer and the Commissioner were revoked on 10 June 2022, what has not changed is that you did not meet the standards and values expected of all employees when you wilfully disobeyed or disregarded the Commissioner's directives during the period of the applicable COVID19 mandates. Your conduct entirely undermines the trust and confidence that the Commissioner can have in you in the future.
I am of the view that your conduct goes beyond what can be adequately dealt with by way of improvement action alone, or a combination of improvement action and disciplinary action.
I have carefully considered all the various disciplinary actions available. In all the circumstances, however, I have determined that I have no alternative but to dismiss you from your employment, which is effective immediately upon service of this letter on you.
Did Mr Jenkins and Mr Cowley’s concerns about the approved vaccinations lessen their culpability?
35 During their evidence, Mr Jenkins and Mr Cowley expressed their worries about the possible adverse and serious side effects of the approved COVID19 vaccinations. There is no doubt they were genuinely worried. Mr Cowley frankly said that he was petrified.
36 It was common ground that Mr Jenkins and Mr Cowley’s subjective beliefs and concerns would only lessen the seriousness of their conduct if those subjective beliefs were objectively reasonable.
Mr Jenkins’ reasons
37 Mr Jenkins generally came across as truthful, and did his best to provide answers to the questions put to him. He made appropriate concessions without hesitation. But in some places, discussed below, his evidence was simply vague.
38 It is uncontentious that as at 15 November 2021, Mr Jenkins:
(a) Had a history of hypertension, psoriasis, asthma, acid reflux and high cholesterol for at least 5 years. Exact symptoms and dates were not provided to the Board, except that his psoriasis was symptomatic as at May 2018, October 2018 and July 2019.
(b) Had consented to participate in IVF with his wife, and had participated in some IVF cycles prior to June 2021.
39 During his evidence, he was asked to explain his reasons for not being vaccinated. He said:
(a) He had several medical conditions; and
(b) He had heard of side effects in other people, both temporary and longer lasting; and
(c) He knew of individuals who had died soon after having a Pfizer vaccination.
40 He summed all this up:
So I was very concerned because of all my health conditions and having IVF and everything else, I really didn’t want to risk having anything happen to me.
41 The first time Mr Jenkins put his reasons for not complying with the Vaccination Direction in writing was his response to the proposed dismissal dated 11 January 2022. At that time, Mr Jenkins explained his reasons for not being vaccinated:
…
It appears what I have communicated to OIC has not been Passed on. I had Passed onto him on 2 occasions that I was waiting for Covax19/Spikogen which is a Protein based Vaccine and was willing to take leave without pay until this comes out.
Please note this Vaccine is now with TGA in Australia for Approval to use here, Iran has already used 2 million doses without any severe or adverse effects such as blood clots, myocarditis or Death also Covax 19 stops transmission. Also in addition they have designed extra addition to combat omnicron Variant
Now to other Matters for Vaccine Applications to people
1. they should not be Coerced into taking it
2. No one Should be financially threatened to take it
If any of the measures are used it is Unethical
I have never felt so threatened and bullied as to what is happening with this Mandate, it has caused much trauma and stress and depression for myself and my wife and family.
If i was to ask my Doctor to try to get a Medical Exemption my doctor said he will lose his Medical License.
To me this is not Ethical Either.
Why will the Government not Publicize Contract between them and Drug Companies that make Current Vaccines Pfizer Moderna and Astrazeneca as these would normally be publicized with Vaccines.
I Have offered to take leave without pay until Covax 19/Spikogen comes out or maybe Novavax which is also Protein Based
Covax 19 has shown not to have severe side effects that current Vaccines Have
Finally i would nicely ask for your patience and not terminate my employment with you as i am now still waiting for Approval by TGA as you can see from the attached information to this email[.] The reason i am asking for this is because my age, medical reasons and my concerns with regards to so many adverse reactions with all around the world and from people i know and i spoke with who have taken Pfizer, Astrazeneca and other current Vaccines used.
I appreciate your help given to me with this matter
Please see below i have copied text re covax19/spikogen update and have made attachment as well
…
42 Aside from the vague reference to ‘medical reasons’, Mr Jenkins does not refer to his particular medical history, nor his involvement in IVF. Despite having later opportunities to respond to the proposed disciplinary action, Mr Jenkins does not refer to his specific medical history nor his involvement in IVF in any of his correspondence to the WA Police Force prior to the dismissal decision.
43 He explained that the reason for not referring to these matters in his written responses was because the police doctor already knew his medical conditions and his involvement in IVF, from another unspecified medical condition he was having. He said this information should be in the police doctor’s record. But in response to questions from the Board, he conceded that he could not recall consenting to the release of his medical information held by the police doctor, nor could he be sure that the Police Staff Investigation Unit had access to this information. In other words, he did not know that his medical conditions were known to those who were dealing with the disciplinary matter.
44 Mr Jenkins was unable to tell the Board when he was participating in IVF beyond saying it was in 2021. He referred to an email from the IVF clinic dated June 2021. Based on the contents of the email, he said he gave a cycle consent in December 2021, but there had been multiple cycles involved, including some that may have been before December 2021. He did not indicate he was involved in IVF beyond December 2021.
45 Because IVF involved him providing his semen for in vitro egg fertilisation, he was concerned about the possibility that vaccination would affect his fertility. However, he did not say on what dates sperm was collected or planned to be collected.
46 Perhaps we can infer from Mr Jenkin’s evidence that the dates for sperm collection were during 2021 including December 2021. Although there is an evidentiary void after that date, we can also infer that, as at November and December 2021, Mr Jenkins may have been anticipating involvement in further cycles if IVF had not resulted in a pregnancy by that time.
47 Mr Jenkins was not asked whether he had considered or sought advice about freezing sperm prior to being vaccinated to address his concerns about the impacts of vaccination on his fertility. Nor was he asked about whether sperm he had provided for cycles before December 2021 had been preserved and was available for any cycles after December 2021.
48 Mr Jenkins did not ask for an extension of time to comply with the Vaccination Direction, until after his involvement in IVF.
49 The inexact and incomplete nature of Mr Jenkins’ evidence on this topic, combined with the fact that there is no reference to participating in IVF in his correspondence to the WA Police Force, raises doubts about whether the IVF considerations were Mr Jenkins’ true reasons for not being vaccinated after the Vaccination Direction was issued.
50 The best indication of Mr Jenkins’ reasons are those that he expressed in writing, shortly after the Vaccination Direction was issued, knowing that his job was at stake. That is, simply, he was worried about adverse side effects of available vaccines, and he preferred to wait for COVAX19 to become available because he believed that vaccine was better.
51 We do not accept Mr Jenkin’s explanation for not mentioning his medical conditions as his reason for not being vaccinated in his response. He did not know that the police doctor’s records were available to those considering his response. Therefore, the only way for him to rely on his medical conditions as the reason for not being vaccinated is if he expressly raised it. That he did not is telling.
52 Ultimately, this means that Mr Jenkins’ reasons for not complying with the Vaccination Direction were not ‘unique’ to him at all. He was simply vaccinehesitant. He took a position on principle or ideology. He just happened to also have a combination of not uncommon medical conditions.
53 Even if Mr Jenkins’ true reasons were related to his belief about the available vaccines being unsafe for him in light of his medical conditions and his involvement in IVF, we are not persuaded that his belief was reasonable, for the following reasons.
54 First, Mr Jenkins did not base his belief on any expert medical opinion to establish that his medical conditions placed him at higher risk of adverse side effects from the available vaccinations compared with the general population.
55 Second, he was not aware of any person, family, friend or otherwise, with any combination of his medical conditions which had adverse side effects from the available vaccinations.
56 Third, he did not seek out medical advice from his own treating medical practitioners about whether he should be vaccinated, or which vaccination was best for him in light of his medical conditions and involvement in IVF. He said:
I didn’t think it was even worth trying to ask because, you know, because of what the – you know, I’ve heard of doctors not being allowed to speak against things, and so it was pretty pointless me even asking the question.
57 He confirmed that no doctor advised him that the Covax vaccine was most appropriate for him, and to wait for that vaccine. His decision to wait for Covax was his decision made without advice. He confirmed that nothing was going to change his mind about getting vaccinated with the COVID19 vaccinations that were available at the relevant time.
58 In explaining how he made this decision, Mr Jenkins said:
It was my choice, regardless of what they may say. You know, a lot of doctors have been silenced about saying anything against the vaccine, period, so I made my own decision…I’m the one that knows my health best…I have to make my own decisions based on what I think and feel…
And later:
And to me, I’d rather have my  for my own self, I’d rather have my health than not knowing, and not take something that I feared it could kill me or permanently injure me. I’d rather still be alive and be able to  even if I have to work at somewhere else, rather than take that risk. Your health’s worth more than any job.
59 Mr Jenkins had asked his general practitioner to provide him with an exemption from vaccination, shortly before the Vaccine Direction was made on 30 October 2021. His general practitioner declined. Mr Jenkins was told that this was because his GP would lose his licence to practice if he issued an exemption. This evidence tells us nothing about whether the GP considered Mr Jenkins’ medical conditions meant that his vaccine hesitancy was justified or not.
60 Mr Jenkins had resolved not to have the available vaccines, regardless of what expert and specialist information and advice might have been available to him. He has not established that a belief the available vaccines were unsafe for him was a reasonable belief. As counsel for the WA Police Force submitted, his position at its heart was no different to a sincerely held ethical or ideological belief.
61 Accordingly, Mr Jenkins’ culpability is not lessened by reason of his beliefs, regardless of how strongly he held them.
Mr Cowley’s reasons
62 Mr Cowley gave evidence in an authentic, frank and candid manner. There is no reason for the Board to doubt the truth of anything he told the Board.
63 In 2017, Mr Cowley had a large brain tumour removed after he had collapsed at work and was taken to hospital. He remained in hospital for a month, then had an extended period of leave after the surgery and returned to work on a graduated basis during his recovery period. Postsurgery, he had two collapse episodes, one of which resulted in him suffering a rib fracture.
64 By May 2020, Mr Cowley was medically cleared to work without restrictions. He had not had any further seizures since November 2017. He remained on medication to control seizures.
65 On 15 September 2021, Mr Cowley was at work on alarm duties when his colleagues noticed that he was leaning over his desk and making strange noises. He fell and hit his head. His colleagues called an ambulance and he was rushed to hospital. Mr Cowley did not have his own memory of this event, but relayed what he had been told. He recalls waking up in Royal Perth Hospital and remaining away from work for about three days.
66 Five weeks after Mr Cowley had this episode, on 20 October 2021, the WA Police Force issued a broadcast to all employees foreshadowing the Vaccination Direction.
67 On 27 October 2021, Mr Cowley was sent an email asking him to advise his vaccination intention via an online survey.
68 On 11 November 2021, Mr Cowley responded to the survey, selecting the option ‘I do not intend to be vaccinated by 1 December 2021’.
69 Mr Cowley confirmed in his evidence that he had made up his mind to not get vaccinated by 11 November 2021.
70 On 24 November 2021, Mr Cowley suffered another seizure in the afternoon after work, while he was at home. He was admitted to St John of God Midland Hospital, where it was noted that he ‘has a residual tumour which measured 25 mm x 22 mm x 15 mm’, or, in Mr Cowley’s words, the size of a golf ball. He was off work for two days after this episode.
71 The Vaccination Direction was made on the same day as this medical episode. It was not suggested that there was any link between the Vaccination Direction and Mr Cowley’s seizure. However, the coincidental timing is important because, naturally and reasonably, Mr Cowley would prioritise dealing with his immediate health issues at and immediately after the Vaccination Direction was made.
72 However, Mr Cowley did not at that stage request more time to consider his position in relation to the Vaccination Direction, nor more time to comply with the direction in light of his medical complications that were symptomatic at this time. He simply did not comply with the Vaccination Direction. He had already decided, by 11 November 2021, that he was not going to get vaccinated.
73 The first time Mr Cowley put his reasons for not complying with the Vaccination Direction in writing was by his response to the proposed dismissal dated 2 January 2022. Mr Cowley explained his reasons for not being vaccinated:
…
It is true to say that since experiencing a health episode at work on 14 February 2017 my health has had some ups and downs.
On 14 February 2017 on collapsing at work I was taken by ambulance to Royal Perth Hospital. I was diagnosed with a large olfactory meningioma (tumour in my brain) which required surgical removal. Following an extensive period of rehabilitation I was able to return to full duties.
I am grateful to the team at Radio and Electronic Services for their support during this time since 2017.
Whilst I have had the occasional medical episode (seizure), until 2021my medical conditions where stable. Since mid 2021 the incidence of seizure has increased culminating in a serious seizure occurring on 24 November 2021 (coincidently the same date as the Commissioner's Direction). Due to having driving restrictions a work colleague dropped me at home and
thankfully witnessed me collapse and fall. I was taken by ambulance to SJOG Midland where I was admitted and stayed until Saturday 27 November 2021.
I was referred to Professor Carroll Neurologist SJOG Subiaco for review. The medical advice is that the cause of my seizures is unknown and require further monitoring. The report from the MRI undertaken during my stay at SJOG Midland indicates that although the MRI shows a small meningioma it is “highly unlikely the cause of seizure”.
I was referred for an EEG which was carried out on 21 December 2021. The report from that report showed increased unusual brain activity which resulted in my level of medication being increased.
I am advised by my medical experts that the medication levels will need to be monitored, reviewed and adjusted dependent on results of further testing (EEGs).
I set out the above for you as my health situation is directly related to my hesitancy to have the current available COVID19 vaccinations. Trying to reduce the risk of seizure and attending appointments to seek answers to those issues is my priority.
In respect to my current medical conditions I am seeking to access my Salary Continuance insurance through my superannuation provider GESB. I am gravely concerned that should the Commissioner determine to dismiss me would adversely affect my capacity to access Salary Continuance insurance should I cease to be a WA Police employee. On that basis given my medical situation alone it would harsh, unjust and unfair for my employment to be terminated at this time.
My current priority must be to do whatever is required to reduce the risk of seizures and stabilise my condition, which requires attendance at appointments and tests, trialling
different medications and monitoring the effects.
74 Mr Cowley’s response clearly expresses an explanation for not being vaccinated related directly to his medical circumstances. He sensibly and frankly notes that his current priority is to do whatever is required to reduce the risk of seizures and to stabilise his condition. No one could quibble with the reasonableness of that position. He also identifies that the next appointment with his neurology team was scheduled for 14 March 2022, and indicates that he intends to attend those appointments ‘to seek answers’ relevant to his hesitancy to have the currently available vaccinations.
75 Mr Cowley’s response suggested that his reason for not being vaccinated was because of the uncertainty about how it would impact his particular medical condition. He suggests that, with appropriate medical advice, he was open to being vaccinated, and he needed more time to obtain that advice.
76 Mr Cowley had set out a reasonable explanation for not being vaccinated, namely his uncertainty about how it would affect his medical condition, and a plan for resolving that uncertainty by seeking expert medical advice.
77 The WA Police Force did not dismiss Mr Cowley at that point. It halted the disciplinary process.
78 Despite what Mr Cowley’s 2 January 2022 response suggested was going to be his course of action, he acted otherwise.
79 In about mid2022, Mr Cowley saw his GP. Although Mr Cowley’s response in January 2022 said that he would attend appointments to ‘seek answers’, he did not give evidence of seeking his GP’s advice about vaccination, either which vaccination was recommended or contraindicated, or how vaccination would impact him in light of his medical history. Rather, he said he asked his GP for an exemption. His GP declined ‘very abruptly and loudly’.
80 At some point in time after he saw his GP, he consulted with his neurologist. He said that his neurologist:
...sat me down and walked me through how good these new spike proteins and whatever else they are, and how good they – and I said, “Oh yeah, fantastic” and then my partner said “Oh, by the way, he wants you to go and get vaccinated.” And I said “Well  well  well  well, I ain’t getting vaccinated. And then he called me an idiot.
81 He agreed that his neurologist knew about his medical history and his condition, was a specialist, and recommended that he be vaccinated.
82 In October 2022, the WA Police Force recommenced the disciplinary process and invited Mr Cowley to provide additional information in relation to the alleged breach of discipline or any further response to the allegation for WA Police Force’s consideration. He did not take up that opportunity.
83 The WA Police Force wrote to Mr Cowley again on 21 December 2022, confirming the investigation phase of the disciplinary process had been completed, and again providing an opportunity to make submissions about the proposed sanction of dismissal. Mr Cowley sought an extension of time to respond so that he could seek legal advice. His request was granted.
84 On 17 January 2023, Mr Cowley made a further submission. He restated that his health situation ‘is directly related to my hesitance to have the COVID19 vaccination’. He also notes that the Vaccination Direction had been revoked from 10 June 2022.
85 On 18 January 2023, WA Police Force acknowledged Mr Cowley’s submission and invited him to provide evidence to support his submission that his health situation is directly related to his vaccine hesitancy.
86 In response, Mr Cowley clarifies that ‘my hesitancy to have the COVID19 vaccinations is due to my health situation and the ongoing management/treatment of my medical condition’. He attached an abstract from an article titled ‘Brain tumour patients and COVID19 vaccines: results of an international survey’.
87 This abstract actually says that the vast majority of brain tumor patients had been vaccinated against COVID19 with no serious adverse side effects. It is reproduced below:
Results: A total of 965 unique surveys were completed from 42 countries. The vast majority of both brain tumor patients and their caregivers have been vaccinated against COVID19 (84.5% and 89.9%, respectively). No patient reported serious adverse events from any vaccine. Less than 10% of patients decided against receiving a vaccination against COVID19, with the most common reason being concerns over the safety of the vaccine. Patients wanted more specific information on how COVID19 vaccines might impact their future brain tumor treatment.
Conclusions: In conclusion, the majority of brain tumor patients and their caregivers have received COVID19 vaccines with no major side effects. Patients want more information on how COVID19 vaccines might directly impact their brain tumor and future management.
88 In his response, Mr Cowley also said:
Since your email of 18 January 2023, I have not been able to obtain medical evidence from my medical specialists. I have a scheduled consultation with Professor Stephen Honeybul, Neurosurgeon scheduled for 8 February.
89 Again, the suggestion from this email is that Mr Cowley would be seeking advice about the appropriateness of vaccination from Professor Honeybul.
90 On 24 February 2023, the WA Police Force wrote to Mr Cowley noting that he had referred to a consultation with his neurosurgeon scheduled for 8 February 2023. The WA Police Force said:
Before I decide on the appropriate action to be taken in the circumstances, I wish to give you a final opportunity to provide me with evidence, from that consultation or otherwise, that might demonstrate a medical reason for, or otherwise mitigate, your failure to be vaccinated or obtain an approved exemption.
91 Mr Cowley did not provide further information. In fact, despite suggesting that he would seek advice about vaccination from Professor Honeybul, his evidence was that he did not discuss seeking an exemption from vaccination at that scheduled appointment (which proceeded on 8 February but with one of Professor Honeybul’s colleagues).
92 When it was put to Mr Cowley that he had made his choice not to be vaccinated without that choice being based on the advice of his doctors, he agreed. He agreed that he had made his decision not to be vaccinated by 11 November 2021 when he filled out the online survey. His evidence was frank and forthright:
Mr JOHN: Right, and is it fair to say that, really at the end of the day, there was nothing that was going to convince you to get vaccinated?   
Mr COWLEY: That is correct Mr John.  I’m looking you fair and square. I’m not looking away.
93 When invited to explain his reasons for refusing the available vaccines, Mr Cowley talked about the adverse side effects that he had heard about:
In the later days of 2021, ah, my colleague and I who I'm looking at right now, we'd heard that there was a lot of side effects that people were experiencing with the vaccine and, um, there was one in  in  in  that I remembered quite clearly, a 37yearold female officer who didn't want to have the vaccine, and she did have it under duress and, ah, I think she's still in bed today, so, um, we heard this and I just got scareder and scareder and scareder. I was petrified, so I
…I’ve already got a condition. I don’t want anymore, so after I’ve heart that I just said “No. I  I can’t afford to risk anything.
94 And later he said:
It was too many things I’d heard with the bad reaction side of things.
95 He agreed that none of the ‘bad reactions’ he was referring to were in people with a medical history like his.
96 Had Mr Cowley followed through with what he told the WA Police Force he intended to do, namely, seek and follow medical advice about the risks of being vaccinated in light of his medical condition, and had that advice then been that there were risks to him, that would be a strong mitigating factor. However, any mitigating effect that Mr Cowley sought to rely upon is completely undermined by his subsequent actions, and his evidence that he was never intending to listen to any medical advice from his treating medical team.
97 Ultimately, like Mr Jenkins, Mr Cowley’s fears and worries were simply based on his ideological beliefs, not on his particular medical susceptibilities. His fears and worries were not objectively reasonable. His fears and worries were not unique. He just happened to also have a serious medical condition.
98 Accordingly, Mr Cowley’s culpability is not lessened by reason of either his medical history or his belief about the safety of the available vaccinations.
Other gravity considerations
99 Mr Cowley and Mr Jenkins each rely on the fact that both the CHO’s Directions and the Vaccination Direction were revoked in June 2022 before the dismissal decision as grounds for rendering their dismissals unfair. They ask the Board to consider and follow the Fair Work Commission’s decision in Stace v Complete Office Supplies/Complete Office Staffing Pty Ltd [2023] FWC 2758, in which Commissioner Schneider found an employee’s dismissal for not being vaccinated unfair. In that case, the dismissal occurred after the State Government had eased vaccination requirements.
100 Commissioner Schneider’s conclusion about unfairness in Stace turned on his view of the defensibility of a mandatory vaccination policy in the office supplies industry: [82][83]. The Commissioner was not persuaded that the employer’s vaccination policy was reasonable, or that it ought to have been applied at the relevant time: [100]. The fact that the State Government restrictions had been eased was part of the Commissioner’s considerations as to whether there was a valid reason for the dismissal.
101 Commissioner Schneider also considered the relaxation of restrictions was relevant to the process the employer engaged in bringing about the dismissal, noting that the employer ought to have taken greater care or time in those circumstances: [154].
102 The reasoning in Stace does not establish a general principle that the absence of CHO Directions supporting a vaccination direction at the time of dismissal will render dismissal unfair.
103 It is particularly notable that the direction to Ms Stace to be vaccinated was issued on 18 July 2022, so the direction and Ms Stace’s refusal to follow it both occurred after most governmentimposed vaccination restrictions had been lifted. That alone makes Stace distinguishable from Mr Jenkins and Mr Cowley’s cases because their breach of discipline was occurring while the CHO’s Directions remained in place and operative.
104 That the Vaccination Direction has been revoked removes a barrier to reinstatement, had the dismissal decision been found to be unfair. But it does not mean the conduct was less serious when it was committed.
105 Another difficulty with the submission is that the timing of the revocation of the Vaccination Direction was not known to Mr Cowley and Mr Jenkins at the time that they committed the breach of discipline. They cannot be said to have been justified in refusing to comply with the direction because they anticipated the requirement to be vaccinated would not apply to them at a particular point in time in the future.
106 Finally, the fact that Mr Cowley and Mr Jenkins remained employed at that particular point in time was only because the WA Police Force had afforded them the benefit of deferring the disciplinary proceedings pending the outcome of Supreme Court proceedings, and several later opportunities to respond. A provisional decision to recommend termination had been reached in December 2021, well before the June 2022 revocation of the Vaccination Direction. Nothing else had relevantly changed between December 2021 and the decision to dismiss in March 2023. As counsel for the WA Police Force pointed out, it would be unsound as a matter of industrial law for the preservation of the status quo pending the determination of a dispute to operate to the prejudice or advantage of a party to the dispute.
107 Mr Cowley and Mr Jenkins are both in their late 50s. They had no other causes for disciplinary action. While these factors are mitigating, they are not on their own sufficiently mitigating to mean the dismissal decision was harsh or unfair.
108 Finally, Mr Cowley and Mr Jenkins’ counsel relied on inconsistent treatment as a ground for arguing the dismissals were unfair. This submission was made in light of Superintendent Croft’s evidence that there were officers who were neither vaccinated nor had an exemption, but were not dismissed. His evidence was also that of those officers, the decision not to dismiss was based on medical grounds in some cases.
109 As the Senior Commissioner said in Fagan v William (Bill) Johnston Minister for Corrective Services [2023] WAIRC 00324 at [70]:
Inconsistent treatment of employees can render a dismissal unfair, even if dismissal might otherwise be justified or warranted. The dismissal of an employee may be unfair if another employee guilty of similar or the same misconduct, and without other mitigating features to differentiate, is not dismissed: Portilla at [166] citing The Construction, Forestry, Mining and Energy Union of Workers v BHP Billiton Iron Ore Pty Ltd [2004] WAIRC 13424; Sexton v Pacific National (ACT) Pty Ltd [2003] AIRC 506 at [33].
110 The Senior Commissioner also noted at [74][76] that caution must be exercised in approaching claims of differential treatment, to ensure that apples are compared with apples. There needs to be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.
111 The evidence in this case does not allow a proper comparison to be made. There is no evidence of the circumstances of the employees who remain employed to compare them with Mr Jenkins’ and Mr Cowley’s circumstances.
112 Ultimately, in our view, Mr Jenkins’ and Mr Cowley’s breaches of the Vaccination Direction were serious enough to warrant dismissal.
113 In Fagan, the Senior Commissioner observed:
It is well established that a refusal on the part of an employee to comply with a lawful and reasonable direction, will generally constitute a valid reason for dismissal: R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan [1938] HCA 44; (1938) 60 CLR 601 and McManus v ScottCharlton [1996] FCA 1820; (1996) 70 FCR 16 cited in HellerBhatt v Director General, Department of Communities [2022] WAIRC 00719 at [93]. The degree of conduct that will justify disciplinary action is a question of fact: Blyth Chemicals Ltd v Bushnell [1933] HCA 8; (1933) 49 CLR 66 citing Clouston & Co v Corry (1906) AC 122; Portilla v BHP Billiton Iron Ore Pty Ltd [2005] WAIRC 02604; (2005) 85 WAIG 3441 at [131].
Ms Fagan could not continue to work in her role if she did not follow the Employer Direction. Her failure to follow the Employer Direction had significant impacts for the operation of the prison. Ms Fagan understood the direction, and she understood her noncompliance would have that effect. Her noncompliance was wilful and deliberate. And because it meant she could not work, it was also inconsistent with the continuation of the contract of employment: Roman v Mercy Hospitals Victoria Ltd [2022] FWC 711 at [41] and HellerBhatt at [108]. The conduct, therefore, went to the heart of the employment contract. It was conduct that was incompatible with the fulfilment of Ms Fagan’s duties and impeded the performance of the employment contract.
114 Similar observations can made about Mr Jenkins and Mr Cowley. Their counsel placed some emphasis on the fact that their roles were not categorised as ‘mission critical’ roles like those of frontline officers. Superintendent Crofts described their roles as ‘Second Tier’. Even if that is the case, the assets and infrastructure which they were responsible for maintaining were ‘mission critical’. As the notices of dismissal observed, a disciplined and responsive police force is critical to the safety and wellbeing of the community. The effective operation of a responsive police force requires that all staff, in all roles, follow the Commissioner’s lawful and reasonable directions.
115 Mr Cowley, Mr Jenkins and Superintendent Crofts all talked about the increasing demands on the WA Police Force during the COVID19 pandemic. This extended to Mr Jenkins’ and Mr Cowley’s work unit which was exceptionally busy at that time.
116 Mr Jenkins and Mr Cowley made a deliberate decision not to be vaccinated, knowing that their decision would render them unable to perform their work duties at a time when demand for their important skills and knowledge was high.
117 Dismissal in these circumstances is not disproportionate to the gravity of Mr Jenkins and Mr Cowley’s conduct.
Disposition
118 We decline to adjust the decisions the subject of the appeals. The appeals will be dismissed.