Appeal against a decision of the Commission in matter number APPL 36/2022 given on 14 June 2023

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

 Appellant

 AND

 Penelope Anne Fagan

 Respondent

ON APPEAL FROM:

Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Coram : SENIOR COMMISSIONER R COSENTINO

Citation : 2023 WAIRC 00324

File No : APPL 36 OF 2022

Catchwords : Industrial law (WA) - Appeal against decision of the Commission - Alleged harsh, oppressive and unfair dismissal - Refusal to comply with a lawful and reasonable direction - Alleged inconsistent treatment of employees - Matters arising after the date of dismissal - Exercise of discretion at first instance miscarried 

Legislation :      

Result : Appeal upheld.  Decision quashed

Representation:

Counsel:

Appellant : Mr D Anderson of counsel and with him Mr J Carroll of

                                         counsel

Respondent : Mr C Fordham of counsel

Solicitors:

Appellant : State Solicitors Office

Respondent : Slater + Gordon

Case(s) referred to in reasons:

Australia Meat Holdings Pty Ltd v McLaughlan (1998) 84 IR 1

Byrne and Frew v Australian Airlines Limited (1995) 185 CLR 430

CFMEU v BHP Billiton Iron Ore Pty Ltd (2004) 84 WAIG 3787

Coal and Allied Operations Pty Ltd v AIRC and Others [2000] 203 CLR 194

Dundovich v P&O Ports (PR 923358)

Falconer v Chief Health Officer [No 3] [2022] WASC 270

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

Frantzen v Director General, Department of Justice (2022) 102 WAIG 139

Gonzalo Portilla v BHP Billiton Iron Ore Pty Ltd [2005] WAIRC 02604; (2005) 85 WAIG 3441

Gronow v Gronow (1979) 29 ALR 129

Growmark Packaging v FMWU (1992) 73 WAIG 220

Hoogland v NL Tucker & Associates Pty Ltd (1999) 79 WAIG 3084

House v The King (1936) 55 CLR 499  

Jetstar Airways Pty Limited v Neetson-Lemkes [2013] FWFCB 9075

Lane v Arrowcrest Group Pty Ltd (t/a Roh Alloy Wheels) (1990) 27 FCR 427

Norbis v Norbis [1986] 161 CLR 513

Sexton v Pacific National (ACT) Pty Ltd [2003] AIRC 506

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

KENNER CC:

1         I have had the benefit of reading in draft form, the reasons for decision of Kucera C.  I agree with those reasons in relation to appeal grounds 1 to 3 inclusive and 5, and I have nothing further to add as to those grounds.  As to ground 4, despite the appellant arguing the matter, given the decision of the Full Bench on the other grounds, it is not necessary to consider and decide that ground for the purposes of the disposition of the appeal.  It raises some difficult and important questions of construction of both the Industrial Relations Act 1979 (WA) and the Public Sector Management Act 1994 (WA) and the administration of industrial relations in this State.  These questions are best left to an occasion when it is necessary to deal with them as part of the disposition of proceedings before the Commission. It may also be helpful for not only the parties to proceedings, but also organisations under s 50 of the Act, to be given an opportunity to make submissions on the matters arising, should they wish to do so.

2         It follows that the appeal should be upheld, and the decision of the learned Senior Commissioner should be quashed.

TSANG C:

3         I also have had the benefit of reading a draft of the reasons of Kucera C.  I agree with those reasons and have nothing further to add.  I also agree with Kenner CC that it is unnecessary to deal with ground 4.

KUCERA C:

Introduction

4         This case involves an appeal against a decision of the Senior Commissioner, made on Tuesday, 23 June 2023 (decision), to reinstate the respondent to her former position as a drug detection officer (employment), at the Bunbury Regional Prison (Bunbury Prison).

5         On 30 May 2022, the appellant dismissed the respondent from her employment at the Bunbury Prison, for refusing to comply with a direction to be vaccinated against COVID-19 (employer direction).

6         On 15 August 2022, some two and a half months after her dismissal, the respondent made an application under s 78(2) of the Public Sector Management Act 1994 (WA) (PSM Act), in which she alleged her dismissal was harsh, oppressive, and unfair (dismissal application).

7         The appellant opposed the dismissal application on the ground that it was filed ‘out of time.’ The appellant contends a limitation period of 28 days applied to the application (jurisdictional objection).

8         The dismissal application was initially allocated to Commissioner Emmanuel, who convened a preliminary hearing on the jurisdictional objection.

9         On 10 January 2023, Commissioner Emmanuel decided the limitation period did not apply, thereby allowing the respondent to proceed with the dismissal application (jurisdictional decision).

10      Following the jurisdictional decision, the dismissal application was reallocated to the Senior Commissioner. The matter then proceeded to arbitration.

11      During the hearing, the Senior Commissioner heard evidence from two witnesses; the respondent and Ms Beere, who is employed by the appellant as a ‘Security Intelligence Officer’.

12      Like the respondent, Ms Beere worked at the Bunbury Prison. She also refused to be vaccinated against COVID-19. However, Ms Beere, despite refusing to be vaccinated, was not dismissed from her employment.

13      Although in her decision, the Senior Commissioner found there was a valid reason for the respondent’s dismissal, she concluded the respondent’s dismissal when compared with the treatment Ms Beere received, was unfair.

14      Having decided the respondent’s dismissal was unfair, the Senior Commissioner ordered that the respondent be reinstated to the position she held as at the date of her dismissal, with effect from 14 June 2023. The Senior Commissioner also ordered that the appellant pay the respondent for remuneration lost because of her dismissal from 10 June 2022.

15      The appeal is against both the jurisdictional decision and the Senior Commissioner’s decision. Appeal grounds 1 – 3 and 5 relate to the decision. Appeal ground 4 is against the jurisdictional decision.

Appeal grounds

16      The appellant relies upon five separate grounds of appeal, which are set out below:

1. In finding that the respondent was unfairly dismissed, the Senior Commissioner made an error of law by considering an irrelevant consideration; namely, in determining whether the respondent was treated inconsistently, the Senior Commissioner considered matters that occurred after the date of the dismissal, when no matter arising after the date of dismissal could be relevant to the question of whether the dismissal was unfair.

2. In the alternative to ground 1, if matters that occurred after the date of the dismissal were relevant to the question of whether the respondent was unfairly dismissed, in finding that the respondent was unfairly dismissed the Senior Commissioner made an error of law by failing to take into account a material relevant consideration which provided an explanation for the identified differential treatment between Ms Beere and the respondent; namely, the CHO Directions were in force when the respondent was dismissed but the CHO Directions had ceased by the time the Director General made his decision to take disciplinary action against Ms Beere.

3. In finding that the respondent was unfairly dismissed, the Senior Commissioner erred by relying upon a conclusion which was legally unreasonable; namely, the conclusion at [91] that Ms Beere is a relevant comparator. That conclusion was legally unreasonable for each of the following reasons taken independently and cumulatively:

(a) Ms Beere and the respondent were employed by different employers;

(b) Ms Beere and the respondent had different employing authorities;

(c) Ms Beere and the respondent were employed under different statutory schemes;

(d) the respondent has taken an oath of engagement under the Prisons Act 1981 and had statutory duties under s 14 of the Prisons Act 1981 which she contravened when she failed to comply with the Employer Vaccination Direction, and those circumstances did not apply to Ms Beere;

(e) Ms Beere’s and the respondent’s duties were significantly different; and

(f) the consequences of Ms Beere’s and the respondent’s non-compliance were significantly different.

4. The Senior Commissioner erred in law in hearing and determining the referral when the Commission had no jurisdiction to do so, in particular:

(a) on the proper construction of s 78(2) of the Public Sector Management Act 1994 (WA) (PSMA) and s 29 of the Industrial Relations Act 1979 (WA) (IR Act), the time limit provided by s 29(2) of the IR Act applies to a referral of a matter under s 78(2) of the PSMA when the referral relates to a decision to dismiss;

(b) the respondent filed her s 78(2) PSMA referral with the WAIRC more than 28 days after the date which she was dismissed; and

(c) the Commission has not acted under s 29(3) of the IR act to accept the referral outside of the 28-day time limit.

5. It was Wednesbury[sic] unreasonable for the Senior Commissioner to find the appellant was unfairly dismissed because she was treated differently to Ms Beere, despite finding at [68] – [69] that dismissal was proportionate to the gravity of the appellant’s conduct in the following circumstances:

(a) the appellant could not work in her role if she did not follow the Employer Direction;

(b) the appellant’s failure to follow the Employer Direction had significant impacts for the operation of the prison;

(c) the appellant understood her non-compliance would have significant impacts for the operation of the prison;

(d) the appellant’s non-compliance was wilful and deliberate; and

(e) the appellant’s conduct was incompatible with the fulfilment of her duties and impeded the performance of the employment contact.

17      There are similarities with appeal grounds 1 – 3 and 5, in that they each assert the decision is wrong because the Senior Commissioner made errors in law and/or errors in the exercise of her discretion.

18      By appeal ground 4, the appellant contends the Senior Commissioner did not have the jurisdiction to make the orders reinstating the respondent to her position and that she be paid remuneration lost as result of her dismissal. The appellant says this is because Commissioner Emmanuel erred when she decided the Commission had the jurisdiction to hear the dismissal application.

19      Counsel for the appellant submitted that if any one of appeal grounds 1 –  3 or 5 were upheld, it would not be necessary to deal with appeal ground 4. Notwithstanding this, the appellant urged the Full Bench to deal with appeal ground 4 because it raises an important issue for the practice of the Commission, in circumstances where the authorities are unclear.   For the reasons expressed by Kenner CC, I agree that it is neither necessary nor desirable to deal with this ground on this occasion. 

20      Before dealing with the appeal grounds, it is worth returning to the facts and circumstances relevant to the respondent’s dismissal. In relation to this, the Senior Commissioner summarised the relevant facts in this matter, which were mostly agreed, at paragraphs [1] – [7] and at [18] – [27] of the decision.

Relevant facts regarding the respondent’s employment

21      The respondent commenced her employment with the appellant as a drug detection officer in 2018. The respondent’s job required her to detect and prevent drugs and other contraband from entering the Bunbury Prison.

22      The respondent’s work required her to conduct searches of prisoners, visitors, premises, and property. The respondent also trained, maintained, and looked after a drug detection dog.

23      The appellant at the time of the respondent’s dismissal employed a total of 14 drug detection officers (AB 211 – Transcript of proceedings at first instance p 23). The respondent for her part, was the only drug detection officer who worked at the Bunbury Prison (AB 211). She accepted that her job was a ‘frontline role’ in which she could only perform her duties in a prison environment (AB 211).

24      At paragraph [2] of the decision, the Senior Commissioner noted the respondent’s role was critical for community safety as well as the safety and security of the prison.

The respondent’s response to the employer direction to be vaccinated

25      On 12 November 2021, the Chief Health Officer (CHO) made a direction under the Public Health Act 2016 (WA) that prohibited people from entering or remaining at prisons unless they were partially vaccinated from 1 December 2021 and fully vaccinated from 1 January 2022 (CHO direction).

26      The CHO directions were issued in response to the unique risks posed by COVID-19 in Western Australian prisons and correctional facilities, including limiting the spread of the virus to the vulnerable population in those environments (AB 172 at [5]).

27      To ensure the appellant complied with the CHO directions, the Director General for the Department of Justice (Director General), on 15 November 2021, directed its employees, together with the appellant’s employees (which included the respondent) to be vaccinated against COVID-19 and to provide evidence of vaccination or of any exemption (employer direction) (AB 172 at [6]).

28      It is not disputed that the respondent refused to comply with the employer direction (AB 172 at [8]). As the respondent was not vaccinated by 1 December 2021, she was not able to continue working in her role.  Self‑evidently, this was because her refusal would have not only put in her breach of the employer direction but by attending for work at the prison, the respondent would have been in breach of the CHO direction too.

29      As a result of her non-compliance with the employer direction, the respondent’s pay was stopped (AB 121 - Letter from Stephen Blenkinsopp ACM – COVID-19 Taskforce Commander – Corrective Services dated 20 December 2021 – Agreed Document 6).  She was also directed to stay away from the workplace while she was not vaccinated (AB 121).

Disciplinary process commenced

30      Following her refusal to be vaccinated, the respondent faced a disciplinary process under Part 5 Division 3 of the PSM Act, which culminated in her dismissal (disciplinary process) (AB 172 at [7]).

31      On 20 December 2021, the appellant commenced the disciplinary process by advising the respondent that she had not complied with the employer direction (AB 121 – Agreed Document 6). A day later, the appellant sent a letter to the respondent advising that it had decided to deal with her refusal to comply with the employer direction, as a breach of discipline under s 80 of the PSM Act and for which dismissal was a potential consequence (AB 122-126 – Agreed Document 7).

32      The Senior Commissioner at [23] relevantly extracted the breaches of discipline that the appellant alleged that the respondent had committed (allegations). The allegations were cast in the following terms:

Allegation one

On 1 December 2021 at the Drug Detection Unit, you committed a breach of discipline contrary to s 80(a) of the Public Sector Management Act 1994, in that you disobeyed or disregarded a lawful order when you failed to be partially vaccinated against COVID-19, or provide an exemption, before this date.

…

Allegation two

On 1 December 2021 at the Drug Detection Unit, you committed a breach of discipline contrary to s 80(a) of the Public Sector Management Act 1994, in that you disobeyed or disregarded a lawful order when you failed to provide evidence of your partial vaccination against COVID-19, or provide an exemption, before this date.

(emphasis added)

33      On 1 February 2022, by which time the dates for the respondent to receive both doses of the COVID-19 vaccination had passed, the appellant wrote to the respondent (AB 130-133 – Agreed Document 9). In its letter, the appellant advised that it had completed its investigation into the allegations and formed a preliminary view from the evidence that the respondent had committed a breach of discipline (AB 132).

34      Significantly, the appellant advised that it had considered alternatives to dismissal, including transferring the respondent to another work location or other position. The appellant concluded transferring the respondent was not a feasible option because of the specificity of her role as a drug detection officer (AB 132). The appellant noted that the inherent requirements of the respondent’s position, required her to attend custodial facilities in-person, for which she had to be vaccinated.

35      By its letter dated 1 February 2022, the appellant put the respondent on notice that it was proposing to terminate her employment. In that same letter, the appellant also gave the respondent an opportunity to respond to the findings it had reached and its proposed disciplinary action. The appellant advised it wanted to terminate the respondent’s employment (AB 132).

Disciplinary process paused

36      In response to judicial review proceedings commenced in the Supreme Court, challenging the legality of the CHO and the employer directions (SC proceedings) the Director General decided to pause the disciplinary process from 29 March 2022 until 4 May 2022 (AB 147 – Agreed Document 12).

37      By way of a letter dated 4 May 2022, the Director General re-commenced the disciplinary process. In its letter, the appellant advised that it had decided to resume this process because it had received information that suggested the SC proceedings would not likely be heard before July 2022 (AB 149 – Agreed Document 13).

38      Put simply, the appellant advised the respondent that it was no longer prepared to await the outcome of the SC proceedings before it made a final decision in her disciplinary process.

Resumption of the disciplinary process

39      In addition to advising it had decided to resume the disciplinary process, the Director General in his letter of 4 May 2022 gave the respondent an opportunity to respond to the proposed outcome of dismissal.

40      On 14 May 2022, the respondent provided her response to the Director General (AB 151 – Agreed Document 14). When read with her previous responses, it is clear that the respondent was not prepared to comply with the employer direction and be vaccinated.

41      On 26 May 2022, the Director General made his final steps in relation to the disciplinary process. In a letter of the same date, the Director General dismissed the respondent from her employment (dismissal letter) (AB 152-153 – Agreed Document 15).

42      In his dismissal letter, the Director General stated that he had considered the respondent’s response of 14 May 2022 but maintained the same view he had previously reached in February; that the respondent should be dismissed for refusing to comply with the employer direction.

Events following respondent’s dismissal

43      There were a number of matters that followed the respondent’s dismissal, which she relied upon to argue that her dismissal was unfair. The first of these was the lifting of the CHO and the employer directions, which occurred on 10 June 2022.

44      The second is what appeared to have happened with other employees who refused to be vaccinated after the CHO and employer directions were revoked.

45      On the date of the respondent’s dismissal, some 49 prison officers remained the subject of a disciplinary process for failing to comply with the employer direction (AB 89 – Statement of Agreed Facts – par 19(c)).  I have taken this to mean a decision on whether these 49 prison officers would be dismissed for not being vaccinated was still pending.

46      Although there was no evidence on where these officers worked, the roles in which they were employed or how the appellant dealt with each of these officers’ individual disciplinary matters, the parties agreed that as of 2 February 2023, 40 of the 49 prison officers were still employed by the respondent (AB 90 – Statement of Agreed Facts par 20).

47      Thirdly, in August 2022, the SC proceedings were decided. In Falconer v Chief Health Officer [No 3] [2022] WASC 271 and Finlay v Commissioner of Police as the Chief Executive Officer of the Department known as the Police Service (Department of Police) [2022] WASC 272 (delivered August 2022), Allanson J reached decisions which support a finding that the employer direction was at the time of the respondent’s dismissal, reasonable and lawful.

48      The fourth event was the completion of Ms Beere’s disciplinary matter. Following her refusal to be vaccinated, Ms Beere, like the respondent, was not permitted to attend work at the Bunbury Prison. She was also the subject of a disciplinary process that was pending on 10 June 2022.

49      After the CHO and the employer directions were revoked, Ms Beere was allowed to return to work in her previous role. Her disciplinary process was then not finalised until some nine months after the respondent’s dismissal, with the issuance of a written reprimand.  This occurred on 22 February 2023 (AB 258-260 – Letter to Ms Beere – Disciplinary Outcome – 22 February 2023).

Principles to be applied on appeal

50      The decision under appeal is a discretionary decision, as that term is defined in Coal and Allied Operations Pty Ltd v AIRC and Others [2000] 203 CLR 194 and Norbis v Norbis [1986] 161 CLR 513.  To succeed in the appeal, the appellant must establish that the exercise of the discretion by the Commission at first instance miscarried, applying the principles laid down in House v King (1936) 55 CLR 499 (see also Growmark Packaging v FMWU (1992) 73 WAIG 220 (IAC)).

51      Whilst an appellate court should be slow to overturn a primary decision maker’s discretionary decision on grounds which only involve conflicting assessments of weight, an appellate court is not prohibited from doing so when it ought to:  Gronow v Gronow (1979) 29 ALR 129 (HC).

52      Further, the Full Bench has no warrant to interfere with the exercise of a primary decision maker’s discretion or to substitute a first instance decision with its own, unless it can be established the decision maker has acted on a wrong principle, was guided by irrelevant factors, mistaken as to the facts or failed to take some material consideration into account:  House v The King at 505. Also see Gonzalo Portilla v BHP Billiton Iron Ore Pty Ltd [2005] WAIRC 02604; (2005) 85 WAIG 3441 (Portilla) at [108].

Appeal ground 1 – parties’ submissions

53      By its first ground of appeal, the appellant contends the Senior Commissioner fell into error because she had regard to facts and circumstances that were not in existence at the time of the dismissal.

54      More specifically, the appellant by this ground of appeal, claimed the Senior Commissioner should not have had regard to the more lenient disciplinary outcome that Ms Beere received after the respondent’s dismissal (Appellant’s Outline of Submission par 12).

55      The appellant argued the assessment of whether a dismissal was unfair must be made against the facts and circumstances that were in existence at the time of the dismissal (Appellant’s Outline of Submission par 13).

56      The appellant contended the outcome in Ms Beere’s disciplinary matter was not relevant and should not have been considered because it was not a fact or circumstance that existed at the time of the respondent’s dismissal.

57      In support of this ground, the appellant relied upon a number of authorities dealing with the issue of whether an employer in an unfair dismissal claim can rely upon evidence as a basis for the dismissal, which the employer discovered after the employee was dismissed.

58      In response, the respondent’s counsel argued that the Senior Commissioner was entitled to take the outcome of Ms Beere’s disciplinary process into account. The respondent’s counsel submitted that this material was relevant to the issue of whether she was subject to inconsistent treatment, which can be differentiated from the question of whether the appellant had a reasonable and objective basis for the dismissal (Respondent’s Submissions par 10).

59      The respondent’s counsel submitted there is no rule or principle of law that places a blanket prohibition against the consideration of any evidence that arises after a dismissal has taken effect, regardless of the issues at hand (Respondent’s submissions par  14).

Test to be applied in an unfair dismissal case

60      At first instance, the Senior Commissioner correctly identified at [16] the test to be applied was to assess whether the respondent was harshly, oppressively, or unfairly dismissed from her employment.

61      It is well established this test focuses on whether the right of the employer to dismiss an employee was exercised so harshly or oppressively, so as to constitute an abuse of that right: The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital Service and Miscellaneous WA Branch (1985) 65 WAIG 385 at 386.

62      In Hoogland v NL Tucker & Associates Pty Ltd (1999) 79 WAIG 3084, Kenner C noted the approach to be taken by the Commission when applying this test, is not to assume the role of the manager but to consider the dismissal objectively and in accordance with the obligations imposed on the Commission pursuant to ss 26(1)(a) and 26(1)(c) of the IR Act.

63      Kenner C in Hoogland at 3085 also observed the practical realities of the workplace need to be considered and that a commonsense application of the statutory provisions under the IR Act should be adopted.

64      Inconsistency in the treatment of employees where one is dismissed for misconduct and the other is not, may render a dismissal harsh, oppressive, or unfair:  see CFMEU v BHP Billiton Iron Ore Pty Ltd (2004) 84 WAIG 3787 (FB) per Sharkey P and Coleman CC, also see Portilla [111].

Circumstances at the time of the dismissal

65      When determining whether a dismissal was harsh, oppressive, or unfair, it is well established that, although the validity of a reason for dismissal may be determined by reference to facts discovered after the dismissal, those facts must have existed at the time of the dismissal:  Lane v Arrowcrest Group Pty Ltd (t/a Roh Alloy Wheels) (1990) 27 FCR 427 per Von Doussa J at 456; Byrne and Frew v Australian Airlines Limited (1995) 185 CLR (Brennan CJ, Dawson and Toohey JJ) at 430; and Australia Meat Holdings Pty Ltd v McLaughlan (1998) 84 IR 1 (McLaughlan) at 9 - 10.

66      This approach was adopted by Kenner C in Hoogland at 3087, when having regard to facts discovered following a dismissal (after acquired knowledge).  In relation to an employer’s use of after acquired knowledge in the context of an employee’s dismissal for misconduct, Kenner C set out a number of propositions to be applied –

1. There is no prohibition on an employer seeking to rely on after acquired knowledge to support its decision to dismiss an employee.

2. The extent to which an employer may rely on after acquired knowledge to support such a decision will be a question of fact in each case.

3. The matters relied upon by the employer must relate to facts in existence at the time the decision to dismiss was made.

4. Circumstances supporting such reliance will be cases where the employee has, by reason of his or her conduct, contributed to a state of affairs such that the employer could not have, by reasonable endeavour, discovered the matters in issue and sought to be relied on by the employer to, ex post facto, justify the dismissal.

5. Circumstances negativing such reliance will be cases in which the employer could have reasonably discovered the matters relied on but did not take any steps to do so.

6. There must be some nexus between the conduct complained of and discovered after the event and the actual reason for which the employer dismissed the employee.

7. That a dismissal, demonstrably harsh oppressive and unfair when it was affected, cannot be subsequently rendered fair by a process of ex post facto rationalisation.

67      After listing these propositions, Kenner C at 3087 also stated:

In other words, I do not consider that there is able to be carte blanche reliance placed by an employer on conduct subsequently discovered by the employer, totally unrelated to the issue giving rise to the dismissal or not able to be discovered based upon reasonable enquiry prior to the dismissal.

Approach to post dismissal evidence

68      The authorities regarding the use of ‘after acquired knowledge’ or ‘post dismissal evidence,’ which include Hoogland, mostly centre on the use of after acquired knowledge in cases where employees were dismissed for misconduct. However, the use of such evidence is not confined to these situations.

69      Such evidence may also be relevant in cases where the capacity of an employee to perform the inherent requirements of their position, forms the basis for the dismissal.  The decision of a Full Bench of the Australian Industrial Relations Commission (AIRC) in Dundovich v P&O Ports (PR 923358) (Dundovich) is a case in point.

70      In Dundovich, the employee, who at the time of his dismissal, was not fit to perform all the duties of his position, contended his employer did not have a valid reason for his dismissal because his injury was work-related. The employee argued that due to the obligations that applied under the applicable workers’ compensation legislation, his employer was required to continue his employment (Dundovich at [79]).

71      During his unfair dismissal application, the employee placed reliance upon a judgment from the Magistrates Court regarding his workers’ compensation claim. Although the judgment was delivered after his dismissal, it confirmed he was, at the date of his termination, unfit for work because of a workplace injury.

72      The Full Bench found the judgment from the Magistrates Court was relevant because it was declaratory of facts and legal rights in existence at the time of the dismissal (Dundovich at [78]).  The facts at the time of the dismissal that should have been weighed in the applicant’s favour included:

(a) that the employee had made a workers’ compensation claim;

(b) the employer was on notice of the employee's claim;

(c) the injury was ultimately proven to have been work-related at the date of his dismissal; and

(d) the employer was aware the employee was actively pursuing a workers’ compensation claim for the injury that prevented him from performing all his duties at the date of his dismissal.

73      The outcome in Dundovich can be contrasted with the decision of a Full Bench of the Fair Work Commission (FWC) in Jetstar Airways Pty Limited v Neetson-Lemkes [2013] FWFCB 9075 (Jetstar), which also involved the dismissal of an employee who was not fit to perform the inherent requirements of her position.

74      In Jetstar, the Full Bench declined to accept that medical reports regarding the dismissed employee’s fitness for work, which were obtained after the employee’s dismissal, were relevant to deciding whether there was a valid reason for the employee’s dismissal.

75      The Full Bench in Jetstar concluded that the medical reports were not relevant because they were based upon assessments regarding the employee’s fitness for work conducted 3-4 months after the employee’s dismissal and which related to her recovery, not the state of her health at the time of dismissal.

76      Despite the difference in outcome the decisions in Jetstar and Dundovich support the principle that although the validity of a reason for dismissal may be determined by reference to facts discovered after the dismissal, those facts must have existed at the time of dismissal.  

77      In a further decision of a Full Bench of the FWC, Hyde v Serco [2018] FWCFB 3989, the Full Bench, in applying Jetstar said:

[67] We wish to make it clear that this does not mean that expert medical evidence obtained after dismissal is automatically excluded. Such evidence will be relevant to the question of whether there is a valid reason for dismissal provided it is directed at the appellant’s state of health at the time of dismissal. For example, in circumstances where an applicant’s state of health is stable, a medical expert may express an opinion about the applicant’s state of health at the time of their dismissal, which may have occurred some time before they were assessed by the expert. The probative value of such evidence will depend, in part, on the nature of the applicant’s condition and the time between dismissal and assessment.

78      Noting the authorities referred to, the correct approach to be followed as a matter of principle, is that when assessing whether an employer has exercised its right to dismiss harshly, oppressively, or unfairly, the focus of the Commission’s inquiry must be directed to the facts or circumstances that were in existence at the time of the dismissal.

Facts or circumstances at the time of the dismissal

79      At pars [39] – [43] of her decision, the Senior Commissioner made the following findings about the reasons for the respondent’s dismissal:

39. This was not a case where the respondent’s non-compliance with the employer direction was inadvertent or unintentional.

40. She told the Commission she understood the employer direction.

41. She knew that the CHO directions meant a person could not enter a prison without being vaccinated or having an exemption.

42. She knew that she could not perform her duties as a Drug Detection Officer while non-compliant with the employer direction.

43. She understood that non-compliance with the employer direction placed her employment at risk.

80      Regarding the seriousness of the respondent’s conduct, the Senior Commissioner concluded at par [66]:

66. Ultimately in my view, the respondent’s breach of the employer direction was serious enough to warrant dismissal.

81      Relevantly at pars [67] – [69]:

67. 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 Scott-Charlton [1996] FCA 1820; (1996) 70 FCR 16 cited in Heller‑Bhatt 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].

68. The respondent 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. The respondent understood the direction, and she understood her non-compliance would have that effect. Her non-compliance 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 Heller-Bhatt at [108]. The conduct, therefore, went to the heart of the employment contract. It was conduct that was incompatible with the fulfilment of the respondent’s duties and impeded the performance of the employment contract.

69. Dismissal in these circumstances is not disproportionate to the gravity of the respondent’s conduct.

Consideration of appeal ground 1

82      The issue at the heart of appeal ground 1 is whether the Senior Commissioner, after reaching the relevant findings that I have referred to in the preceding paragraphs [79] – [81], should have had any regard to the disciplinary outcome that was applied to Ms Beere some nine months after the respondent’s dismissal.

83      Respectfully, it is my view that to have been relevant, two things needed to have happened. Firstly, the appellant would have to have known at or immediately prior to the respondent’s dismissal, that the CHO and employer directions were about to be revoked.

84      There is no evidence the appellant had any advance notice, upon which an argument to justify the further deferral of the respondent’s disciplinary proceedings could have been made. When viewed in the context of the facts and circumstances as they existed at the date of her dismissal, it was reasonable for the appellant to have acted on the basis the CHO and employer directions would have continued to apply and the judicial review proceedings were unlikely to be resolved any time prior to July 2022.

85      The respondent was employed in a role that was critical to the safe operation of the Bunbury Prison. Noting the seriousness of the respondent’s non-compliance and its impact on the prison’s operations, the appellant was entitled to proceed with the disciplinary process without further delay, on the facts and the information that presented at the time of the respondent’s dismissal.

86      There was nothing that required the appellant to deal with each of the disciplinary matters involving employees who had refused to be vaccinated, together. Although s 93A of the PSM Act allows disciplinary action against an employee to be carried into effect at any time, the Public Sector Commissioner’s Instruction 3: Discipline – General requires an employing authority to ensure a process to determine if a breach of discipline has occurred, must be completed as soon as possible.

87      The requirement for procedural fairness means the conduct in issue, must be considered separately, having regard to the individual circumstances of the employee, including factors such as the seriousness of the conduct and its effect on the employer’s operations.

88      In this setting, the handling of disciplinary matters, even where a group of employees are accused of the same or similar conduct, may, because of the need to consider the differences in each case, be staggered. This would also explain why the respondent’s disciplinary matter was dealt with earlier than Ms Beere’s case.

89      Furthermore, it explains why the appellant may have delivered more lenient outcomes in other disciplinary matters where employees had refused to be vaccinated and whose cases, like Ms Beere’s, were concluded after the CHO and employer directions were revoked.

90      Whilst it may have appeared arbitrary from the outside, without evidence the employer knew or ought to have known that circumstances were about to change, which may have resulted in the respondent being treated more favourably; the appellant’s decision in relation to the respondent, could only be considered by reference to the facts and circumstances as they applied and were known to the parties at the date of the respondent’s dismissal.

91      This view is consistent with evidence regarding the appellant’s treatment of nine other prison officers, whose disciplinary matters for refusing to be vaccinated resulted in their dismissals and like the respondent’s, were finalised before the CHO and employer directions were lifted. On the date of the respondent’s dismissal, the appellant had dismissed 10 prison officers for refusing to be vaccinated, one of whom was the respondent (AB 89 – Statement of Agreed Facts par 19(a)).

92      For the reasons outlined in the preceding paragraphs, I have concluded the Senior Commissioner erred by having regard to the outcome in Ms Beere’s disciplinary matter. Accordingly, I would uphold appeal ground 1.

Appeal ground 2

93      The appellant has submitted ground 2 only arises if the first ground of appeal fails. As I have upheld appeal ground 1, there is no need to traverse ground 2.

Appeal ground 3

94      By its third ground of appeal, the appellant contends that the Senior Commissioner erred in concluding at [108] that Ms Beere was a proper comparator, for the purpose of determining if a disparity of treatment rendered the respondent’s dismissal unfair.

95      Although I take the view this appeal may be decided by upholding appeal ground 1 alone, I would also uphold appeal ground 3.

96      As I noted earlier, it is well-established that a disparity in the treatment of employees by an employer may render a dismissal unfair (CFMEU v BHP Billiton Iron Ore Pty Ltd (2004) 84 WAIG 3787 at 396 and see Portilla at [111] and [166]). Where a disparity of treatment is alleged, it is necessary to compare like with like or ‘apples with apples’ to ensure a true comparison is made:  Sexton v Pacific National (ACT) Pty Ltd [2003] AIRC 506 at [36].

97      The leading case in this jurisdiction, regarding unfairness through inconsistent treatment is the decision of the Full Bench in Portilla, which dealt with a disparity in the disciplinary action taken against two employees who were employed by the same employer.

98      Both employees were, in breach of relevant safe work procedures, each involved in two safety incidents.  The two were both longstanding employees, one of whom (Portilla) was employed 10 years longer than the other.  One of the employees was in a more senior supervisory position but worked within the same work area, performing very similar work.

99      The employee in the supervisory position received more lenient treatment for the two safety incidents he was involved in.  He was not issued a warning after his first incident and was not dismissed after his second.  Portilla, who was not employed in a supervisory role, received a warning after his first incident and was dismissed following his second.

100   Significantly, the disparity in treatment of the supervisory employee occurred prior to Portilla’s dismissal.  Put another way, it was a fact or circumstance that existed at the time Portilla was dismissed and so was relevant to determining whether Portilla’s dismissal was harsh, oppressive, or unfair.

101   At first instance, the Commissioner concluded that Portilla’s dismissal was not unfair.  On appeal, the Full Bench conducted a very close analysis of the treatment Portilla received in comparison with his supervisory colleague.

102   This analysis was undertaken for the purpose of establishing whether the treatment of both employees was so unjustifiably inconsistent that Portilla was unfairly treated (Portilla at [167]).

103   In conducting this analysis, the Full Bench examined the roles performed by each employee, the seriousness of the incidents they were involved in, how each employee conducted themselves during the investigation process that followed the incidents and the employer’s disciplinary response.

104   The Full Bench in Portilla concluded that the Commissioner had erred in the exercise of his discretion by attaching insufficient weight to some factors and not having proper regard to others. Accordingly, the Full Bench held the disparity in treatment was such that it rendered the dismissal unfair.

Difficulty in using Ms Beere as a comparator

105   The difficulty in using Ms Beere as a comparator arises in several ways.  Firstly, the roles in which the respondent and Ms Beere were employed were materially different.  The respondent was the only Drug Detection Officer at the Bunbury Prison, a role that was critical for the safety and security of the prison.

106   Ms Beere was by contrast employed as a Security Intelligence Office, which is a materially different role that did not require her to interact with prisoners.  Ms Beere’s role was predominantly computer-based and potentially could have been performed at an alternative location away from the Bunbury Prison.

107   Acknowledging this difference, I accept the appellant’s submission; the consequences of the respondent’s conduct for the safe operation of the prison when compared with Ms Beere’s, was a relevant consideration the Senior Commissioner ought to have had more regard to.

108   Secondly, although Ms Beere may have been based at the Bunbury Prison, she was employed by a different public sector employer and her work could have been performed away from the prison.

109   I also accept the appellant’s submission that the respondent was subject to a different statutory framework, the Prisons Act 1981 (WA), to which the Senior Commissioner should have attached greater weight.

110   The effect of the statutory framework that applied to the respondent’s employment is that prison officers, like police, are required to discharge their duties to a higher standard:  Frantzen v Director General, Department of Justice (2022) 102 WAIG 139 [19] and [20].  It is my view this would include compliance with any lawful order.

111   In practice this means that the potential consequences prison officers may face, for refusing to follow reasonable and lawful directions, may be different to other employees, including employees at other public sector agencies. This is because the consequences arising from prison officers’ non-compliance for the ‘good order, safety and security of the prison, the prisoners, and other officers’, may also be more serious.

Employees with whom the respondent should have been compared

112   The employees with whom the respondent should have been compared were those employees who performed the same or similar work and were subject to the same statutory framework. In line with the approach in Portilla, the respondent’s treatment should have been compared with disciplinary outcomes which her employer imposed for the nine other prison officers, who at the time of her dismissal, were also dismissed for refusing to be vaccinated.

113   When compared with these employees, the respondent’s treatment was the same and so, was not unfair.

114   Whilst I accept the optics of Ms Beere being allowed to return to work, after the CHO and employer directions were lifted, despite having engaged in the same conduct for which the respondent was dismissed, may have appeared arbitrary and it then took Ms Beere’s employer almost nine months to conclude her disciplinary process, (which was also less than ideal) side by side, the two cases are not comparable.

115   The same may also be said in relation to the use of the ‘40 of the 49 prison officers’ as comparators, who the parties agreed remained subject to a disciplinary process on the date of the respondent’s dismissal. There was insufficient evidence before the Senior Commissioner on how these officers’ disciplinary matters were handled, who like the respondent, had refused to be vaccinated, but whose disciplinary matters were not completed before the CHO and employer directions were lifted.

116   In the absence of more detailed evidence about why these disciplinary matters were not actioned before the CHO and employer directions were revoked and whether or what disciplinary action those officers faced after those directions were lifted, it is not possible for the Commission to make a relevant comparison.

117   For the reasons outlined in the preceding paragraphs [94] – [116], it is my view appeal ground 3 should also be upheld.

Appeal Ground 5

118   Noting the similarity of Appeal Ground 5 with grounds 1 and 3, both of which I have upheld, there is no need to deal with ground 5.