APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 8 JANUARY 2024

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 01059

DELIVERED : FRIday, 20 DECember 2024

FILE NO. : PSAB 3 OF 2024

Appellant

AND

North Metropolitan Health Service

Respondent

CatchWords : Public Service Appeal Board – Whether decision to dismiss and reprimand should be adjusted – Appellant failed to comply with five lawful and reasonable directions – Appellant not fit to return to work - Appeal dismissed

Legislation : Health Services Act 2016 (WA): s 172(2)

Industrial Relations Act 1979 (WA): s 80I(1)     

Public Sector Management Act 1994 (WA)

Result : Appeal dismissed

Representation:

Appellant : Mr R Lewis (of counsel)

Respondent : Mr J Carroll (of counsel)

Cases referred to in reasons:

Harvey v Commissioner for Corrections, Department of Corrective Servies (2017) 97 WAIG 1525

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

Ronald David Miles & Ors t/a Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385

Reasons for Decision

1         These are the unanimous reasons of the Public Service Appeal Board (Board).

2         This is a case about an employee who was dismissed by her employer after it found that she repeatedly failed to follow lawful directions.

3         Ms Christine White worked for North Metropolitan Health Service (Health Service) as a Health Information Systems Support Administrator from 24 October 2018 until 8 January 2024 when she was dismissed after the Health Service found that Ms White failed to comply with five lawful and reasonable directions. The Health Service also reprimanded Ms White for two further breaches of discipline relating to Ms White accessing confidential employee information, contained in the patient medical record system, without the employees’ consent.

4         Ms White appeals her dismissal and reprimand. She wants to be reinstated to an equivalent or higher position than her former position, at different health service with no loss of entitlements. She asks that the reprimand be adjusted to ‘a lower penalty of no penalty’. She also asks for a range of other remedies that are not within the Board’s power (for example, ‘recoup of tax paid, due to being required to have all leave paid out in a lumpsum’).

5         The Health Service says the Board should not adjust its decision to dismiss Ms White and reprimand her. It says the disciplinary action is fair and proportionate to the conduct that it established through a fair investigation and disciplinary process.

Questions to decide

6         The Board must decide:

1) Did Ms White engage in the alleged conduct?

2) If so, was dismissal and a reprimand a fair response?

7         If the Board decides that dismissal and a reprimand was not a fair response, then the Board would need to decide whether to adjust the decision under appeal.

Background

8         The following background is not in dispute.

9         Ms White worked for the Health Service as a Level 6 Health Information Systems Support Administrator. Ms White’s line manager was Ms Frances Harrison, Level 9 Manager of Health Information and Management Services (HIMS).

10      The Health Service gave Ms White four letters setting out eight allegations of breaches of discipline. Ultimately seven of the allegations were substantiated. On 8 January 2024, Ms White was dismissed for five of the substantiated allegations and reprimanded for two.

11      The five allegations that led to Ms White’s dismissal are set out in three letters of allegation:

• CF/22/17, dated 7 April 2022, which contained four allegations that were in essence:

○  Ms White failed to comply with lawful and reasonable directions because, despite being informed she did not have the authority to do so, in August 2021 Ms White authorised payments of higher duties allowances. (Allegation A)

○ Ms White failed to comply with lawful and reasonable directions because, despite her line manager Ms Harrison directing her to do so, in February 2022 Ms White did not send Ms Harrison a copy of a particular employee’s training plan and self-assessment competency checklist. (Allegation B)

○ Ms White failed to comply with lawful and reasonable directions because, despite Ms Harrison and Human Resources Manager Mr Leventhal directing her to do so, Ms White did not immediately enter specific overtime and roster information into RoSTAR. (Allegation C)

• CF/22/41 dated 14 April 2022 which contained one allegation that was in essence:

○ Ms White failed to comply with lawful and reasonable directions because she did not cancel a performance management meeting that she had scheduled with another employee, nor did she tell the employee and her support person that day that the performance management meeting was cancelled. (Allegation D)

• CF/22/73 dated 28 June 2022 which contained one allegation that was in essence:

○ Ms White failed to comply with lawful and reasonable directions because, despite Ms Harrison directing her to do so, Ms White did not give Ms Harrison a file note of a conversation she had had with another employee as part of a grievance resolution process. (Allegation E)

12      Ms White was also given a reprimand in relation to two further breaches of discipline:

• CF/22/104 dated 4 August 2022:

○ Ms White committed an act of misconduct by accessing Ms A’s personal information in the patient medical record system, webPAS, without Ms A’s consent. (Allegation F)

○ Ms White committed an act of misconduct by accessing Ms B’s personal information in the patient medical record system, webPAS, without Ms B’s consent, and updating her cultural status details. (Allegation G)

13      Ms White was the manager of Ms A and Ms B.

The legal framework for this appeal

14      Ms White has a right of appeal against the decision to take disciplinary action against her in accordance with s 172(2) of the Health Services Act 2016 (WA) (HS Act).

15      Under s 80(I)(1) of the Industrial Relations Act 1979 (WA) (IR Act), the Board’s remedial power is limited to ‘adjusting’ the decision Ms White appeals.

16      This appeal is by way of hearing de novo and any procedural defects can be cured by the de novo hearing before this Board: Harvey v Commissioner for Corrections, Department of Corrective Servies (2017) 97 WAIG 1525 at [65].

Witnesses

17      Ms White gave evidence and she called Ms Antonella McKenzie to give evidence on her behalf.

18      The Health Service called Ms Harrison and Ms Sharon Linton to give evidence.

19      The Board has serious concerns about Ms White’s evidence. She was a very poor witness. Ms White’s explanations were frequently convoluted and strained, changing to suit her case as the hearing progressed. Ms White’s evidence was inconsistent and implausible. She was evasive and uncooperative. On at least 41 occasions Ms White would not answer questions put to her (see for example transcript pages 53, 54, 57, 58, 59, 61, 62, 63, 64, 66, 69, 74, 75, 76, 77, 78, 82, 83, 84, 85, 86, 87, 89, 90, 92, 95, 96 and 99). On at least 20 occasions the Board had to direct Ms White, or counsel for the Health Service had to tell Ms White, to answer questions put to her during her testimony. Ms White’s refusal to answer questions put to her where they did not suit her case reflects poorly on her.

20      On many occasions Ms White would not make concessions that were obviously due (see for example transcript pages 52, 54, 56, 68, 73, 74, 81, 85, 87, 88, 89, 90 and 97). At times her evidence was simply implausible, for example in relation to the file note the subject of Allegation E, the intention of the meeting the subject of Allegation D, and whether Ms Harrison had raised welfare concerns about Ms Williams.

21      Ms White was Ms McKenzie’s manager. None of Ms McKenzie’s oral evidence was directly relevant to the allegations the subject of this appeal. Rather, Ms McKenzie’s evidence related to several incidents when Ms McKenzie felt uncomfortable as a result of the tension in the office between Ms White and Ms Harrison.

22      Ms Linton was Area Manager for the Clinical Coding Service, which worked closely with HIMS, where Ms White worked. Ms Linton’s evidence was broadly that she had had some difficulties working with Ms White, including for example one occasion when she witnessed Ms White refuse to follow a direction given to her by Ms Harrison, however Ms Linton’s evidence otherwise did not deal with the allegations the subject of this appeal.

23      Ms Harrison’s evidence directly related to the allegations and rang true to the Board. Her evidence was not undermined in cross-examination. Ms Harrison presented as a reliable, forthcoming witness. To the extent of inconsistency, the Board prefers the evidence of Ms Harrison to that of Ms White.

Did Ms White engage in the alleged conduct?

24      For the following reasons, we find Ms White did engage in the alleged conduct. Further, we consider that the directions underpinning the allegations were all reasonable, lawful directions in the sense discussed in Finlay v Commissioner of Police as the Chief Executive Officer of the Department Known as the Police Service (Department of Police) (Finlay) [2022] WASC 272 at [21]:

It is a fundamental term implied by law into all employment contracts that employees are contractually obliged to follow the lawful and reasonable directions of their employer. At common law, an employee's obligation of obedience is to lawful commands - commands which involve no illegality, which fall within the scope of the contract of service, and are reasonable: R v Darling Island Stevedoring and Lighterage Co; Ex parte Halliday v Sullivan (1938) 60 CLR 601, 621 - 622. Reasonableness is not a separate requirement, but is the standard or test by which the common law determines whether an order is lawful: One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) [2018] FCAFC 77; (2018) 262 FCR 527, 564; McManus v Scott-Charlton (1996) 70 FCR 16, 21. Reasonableness is not determined in a vacuum, but rather by reference to 'the nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship…': R v Darling Island Stevedoring and Lighterage, 622.

25      In [23], Allanson J went on to say:

The authority of the employing authority under the Public Sector Management Act to issue lawful orders should be understood as having the same content of the common law rule, and to authorise orders which involve no illegality, which fall within the scope of the contract of service, and are reasonable.

26      We consider that the observation in [23] of Finlay about lawful orders under the Public Sector Management Act 1994 (WA) applies equally to lawful orders or directions under the HS Act. We respectfully adopt his Honour’s reasoning in Finlay and apply it to this matter.

27      The first part of Ms White’s evidence set out a long history of what Ms White characterises as bullying by Ms Harrison. She says there was a ‘bullying environment’ from the beginning and the bullying was witnessed by ‘her’ staff members. The examples that Ms White gave of bullying did not materially relate to the allegations that underpin the decision that Ms White appeals to the Board. Ultimately, Ms White did not explain how her concerns about bullying justified or excused her conduct.

28      Ms Harrison’s evidence is that it was ‘very difficult to actually engage and have meetings with [Ms White] about certain things’.  She said that initially managing Ms White went well, but when Ms White requested she be given her own office and Ms Harrison refused, this changed and Ms White became ‘obstructive’. At one point, Ms Harrison says she had to arrange for her manager, the Executive Director Medical Services (Dr Nair), to meet with Ms White and ‘make it clear to [Ms White] about the reporting line’. Ms Linton similarly says that at times Ms White’s approach was ‘combative’ and that ‘there had been some incidences where it wasn't always a favourable outcome when we tried to work with Ms White and her team’.

29      While these observations did not directly relate to the specific allegations underpinning the decision Ms White is appealing, the Board’s view is that they support a finding that Ms White was frequently argumentative and chose not to follow instructions because she considered that she knew better than her managers.

Allegation A

30      In essence, Allegation A is that Ms White failed to follow a lawful direction that required her to get her line manager’s approval before moving staff into higher duties roles and arranging for them to be paid a Higher Duties Allowance (HDA).

Ms White’s evidence about Allegation A

31      The effect of Ms White’s evidence was that she understood she needed her manager’s approval for ‘filling vacancies’, but not for when she was ‘just doing backfill’.

32      In cross-examination, Ms White accepted that Ms Harrison sent emails addressed to Ms White on 30 August 2021, 31 August 2021, 30 September 2021 and 31 January 2022 making it clear that Ms White needed Ms Harrison’s approval to put someone on an HDA. Despite this, Ms White maintained that she had ‘standing approval’ to put people on an HDA for ‘backfill’.

33      Although Ms White eventually accepted that she refused to complete an M3 Staff Movement Form, as Ms Harrison had asked, in February 2022, she would not concede that:

1) she could not put anyone on an HDA, for any period of time, without Ms Harrison’s approval;

2) by putting Ms McKenzie on an HDA without Ms Harrison’s approval, Ms White was not following Ms Harrison’s instructions;

3) that on 2 February 2022, Ms Harrison told Ms White ‘that in order to provide staff shifts with higher duties on RoSTAR, [Ms White] require[s] approval’; or

4) that an M3 Staff Movement Form was required to authorise any amount of time for which someone was to be paid an HDA.

34      Eventually, later in cross-examination, Ms White accepted that she was ‘required to obtain manager approval to move a staff member to higher duties’, that she ‘needed to complete an M3 Staff Movement form to put a staff member on higher duties’ and that she herself did not have the required Tier 3 authority to authorise M3 Staff Movement Forms.

Ms Harrison’s evidence about Allegation A

35      Ms Harrison’s evidence is that her manager, Dr Nair, was the person who had the appropriate Tier 3 authority to authorise payment of HDAs. Ms Harrison said that usually, they do not manage sick leave with HDAs, instead ‘manag[ing] it within the teams ourselves’. Generally, HDAs are planned and used when people go on leave for a longer term. In those circumstances, Ms Harrison sent Ms White an email with directions saying she needed to fill out an M3 Staff Movement Form to put someone on an HDA. Ms Harrison says that temporary absences, for example one or two days, were not necessarily filled with someone on an HDA.

36      Ms Harrison was clear in cross-examination that an HDA would not be paid for ‘a couple of hours’. Counsel for Ms White put to Ms Harrison that some of the instances where Ms Harrison ‘requested’ Ms White complete an M3 Staff Movement Form were ‘for a few hours on a given day’. Ms Harrison said: ‘Well, I didn’t realise it was just for a few hours.  And also, for someone to go into that higher duties, they'd still need permission.’ Ms Harrison accepted that an M3 Staff Movement Form may not be needed in some circumstances, but approval from a manager would still be needed. Theoretically, Ms Harrison could approve an HDA for one day, but that does not happen often. Ms Harrison said that she would still inform her line manager, Dr Nair. Ms Harrison disagreed that ‘people had put people on higher duties and paid them for very short periods of time’.

Consideration about Allegation A

37      In relation to Allegation A, Ms White submits that her evidence shows that ‘it had always been the practice and the case’ that anyone who was ‘moved for a short term placement’ did not need an M3 Staff Movement Form. She argues that Ms Harrison’s evidence was that ‘staff movements of up to one day weren’t, in fact, subject to the approval process by a Tier 3 employee’.

38      Broadly, we accept the Health Service’s submissions about Allegation A.

39      We are satisfied that the direction given by Ms Harrison was a reasonable, lawful direction. The documents before us support that view. For example:

1) the M3 Staff Movement Form shows that it can be used for temporary deployments where HDAs are available;

2) the Health Support Services information sheet about which forms to use points to the M3 Staff Movement Form for existing employees moving to another position in the same Health Service temporarily, including for HDAs; and

3) the Delegations Schedule shows that temporary deployment and acting up arrangements for up to and including 6 month periods were to be authorised by Tier 3 level (which Ms White was not).

40      It is clear from the documents before us, and the oral evidence, that Ms Harrison repeatedly directed or told Ms White:

1) to get line manager approval before moving a staff member into higher duties;

2) that authorisation was needed to pay staff higher duties; and

3) to complete the M3 Staff Movement Form to support requests for higher duties.

In our view, it was entirely proper for Ms Harrison to have done so in the circumstances.

41      Any belief Ms White may have had that she had ‘standing approval’ to arrange for employees to be paid an HDA should have been corrected by the email communications from Ms Harrison. Any ‘earlier standard practice’ before those emails became irrelevant in the circumstances.

42      It is clear that Ms White did not comply with the direction the subject of Allegation A. Instead, Ms White moved staff into higher duties roles and arranged for them to be paid an HDA without getting her manager’s approval or other appropriate authorisation. Allegation A is substantiated.

Allegation B

43      In essence, Allegation B is that Ms White failed to follow a lawful direction by failing to give Ms Harrison a copy of a training plan and self-assessment competency checklist for a new employee (Ms Williams) when Ms Harrison asked her to do so.

Ms White’s evidence about Allegation B

44      Ms White initially said she did provide the training plan to Ms Harrison. When the Board asked her to explain when and how she did this, eventually Ms White said that the relevant email ‘is not before [the Board]’, but she ‘would have provided the program’ around 20 May by email.

45      In her written response to Allegation B, Ms White said that Ms Harrison knew where the training plan was and could get herself a copy. The Board asked Ms White how this aligns with her evidence-in-chief that she did provide the training plan to Ms Harrison. Ms White said that her response was ‘badly written’: she emailed Ms Harrison a one-page training document about a specific employee and Ms Harrison knew where to get a copy of the training manual.

46      In cross-examination, Ms White accepted that Ms Harrison had emailed Ms White twice, asking for a copy of the training plan that Ms White had for new starters and the ‘staff self-assessment competency checklist’ (Documents). Ms White disagreed that she did not provide the Documents after Ms Harrison’s first request:

CARROLL, MR: But you didn't provide Ms Harrison, by email, with a copy – or you didn't provide her with a copy of the training plan or the staff self-assessment competency checklist for [Ms Williams], did you?

WHITE, MS: A self-assessment competency checklist was being completed.  Um, oh, actually, within answering your – your – as far as the, ah – that – that goes there, um, it was being completed and, um, you cannot – I could not send an incomplete – and I can follow up and get the assessment, um – um, to be sent, but it's no sense in sending a half completed assessment.

CARROLL, MR: So you didn't provide it to her after the first email?‑‑‑Not half – not at half completed, no.

CARROLL, MR: And you didn't provide her with a copy of the training plan that you had for new HISO starters?

WHITE, MS: I didn't have – the training plan, um, is – is just the actual – all of the, um – all of the – the, um – um – all of the printed off, um – sorry, um, printed off, um, folders and that sort of thing.  That's all the training plan is, to immerse them in training.  That's what they do.

47      Ms White avoided answering counsel for the Health Service’s question about whether she provided the Documents after Ms Harrison’s third request, but later said that she did. In cross-examination, Ms White accepted that she had given evidence that she provided the Documents to Ms Harrison in May. Counsel for the Health Service put to her that the disciplinary allegation on this issue had been put to Ms White before May. Ms White said she ‘honestly can’t, ah, remember the absolute date of that’. They had the following exchange:

CARROLL, MR: And then can I take you to your response to this particular allegation ‑ ‑ ‑?

WHITE, MS: Mm hmm.

CARROLL, MR: ‑ ‑ ‑ which is the relevant parts at page 12 of the bundle?

WHITE, MS: On page 12?

CARROLL, MR: Yes?

WHITE, MS: Yes.

CARROLL, MR: Now, in response to the particulars which say that you didn't – well, we say that Ms Harrison requested the training plan from you.  Your response is that, "Ms Harrison was aware, and I've advised her previously, that the training plan, along with other documents, were still available on webPAS – on the webPAS guidelines on the "W" drive and Ms Harrison has full access to these documents".  That was your response to the allegation, is that right?

WHITE, MS: Yes.  But that doesn't mean that I hadn't provided them.  I just said that all of those were available there, either way.

CARROLL, MR: Well, I suggest to you, if you provided Ms Harrison the documents, you would've responded to the allegation, saying you provided Ms Harrison the documents.  Don't you agree with that?

WHITE, MS: I had already, in – in other ones, said that I had already provided ‑ ‑ ‑

EMMANUEL C:   No?‑‑‑

WHITE, MS: ‑ ‑ her ‑ ‑ ‑

EMMANUEL C:   Mr – that's ‑ ‑ ‑?

WHITE, MS: ‑‑‑Yeah.  Sorry.

EMMANUEL C: Mr Carroll's putting something different to you?

WHITE, MS: Yes.  No – no.  I would not have – well, um, that's a double-edged sword.

EMMANUEL C: Well, he's saying – well, he has ‑ ‑ ‑?

WHITE, MS: Um ‑ ‑ ‑

EMMANUEL C: ‑ ‑ ‑ to, in fairness, put it to you, because he'll make a submission to us about this.  And ‑ ‑ ‑?

WHITE, MS: Okay.

EMMANUEL C: ‑ ‑ ‑ he's required ‑ ‑ ‑?

WHITE, MS: All right.

EMMANUEL C: ‑ ‑ ‑ to.  And what he's saying is, if you had provided it to her, you would've said so in this response, wouldn't you?  And it's your opportunity to reply to that?

WHITE, MS: Not necessarily.

CARROLL, MR: Isn't it – if you're alleged by your employer to have breached discipline by failing to do something, if you did – had done what it was said you had failed to do, your immediate response would be, "No, I did it".  Don't you agree with that?

WHITE, MS: I had already said that many times, this was then me just saying that they were available there ‑ ‑ ‑

CARROLL, MR: Okay?

WHITE, MS: ‑ ‑ ‑ should that have been an issue.

48      Then again, later in cross-examination:

CARROLL, MR: Well, you're here in front of the Public Service Appeal Board, trying to get your job back, is that right?  That's the purpose of these proceedings?

WHITE, MS: Yes, it is.

CARROLL, MR: To put your best foot forward and provide the evidence to show that you didn't engage in the conduct alleged?

WHITE, MS: Absolutely, you do.  However, I'm sure, Mr Carroll, you realise as well, that to get – like, I would go to Integrity to get the emails that I needed, and then I would come back, and then there would be something else that would be required.  It's not as easy to get, to go into Integrity each time to get the answer – often is not that I have that in the email, but it's sort of more – was said on the day, you know, this will be your last opportunity to get any of these emails.  I can't – there – you know, um, in any given circumstances, when you were trying to answer something, you would have them to refer back to.

CARROLL, MR: It – is it the case that during the disciplinary process, you were given access – you were provided access to your emails to have a look to see if there was anything that you could obtain from your emails to assist your response?

WHITE, MS: I was provided timeframes.

CARROLL, MR: Can I just stop you there?  You were provided with access to your emails during the disciplinary process, is that correct?

WHITE, MS: Yes.

CARROLL, MR: Yes.  Isn't it the case that you – I suggest to you, you stubbornly refused to provide Ms Harrison the documents that she requested.  Do you agree with that?

WHITE, MS: No.

Ms Harrison’s evidence about Allegation B

49      Ms Harrison’s evidence is that one day a new employee (Ms Williams) approached Ms Harrison and said she felt she ‘wasn’t getting appropriate training and wasn’t feeling supported in the role’. Ms Williams later approached Ms Harrison a second time, saying that Ms White wanted to performance manage Ms Williams.

50      To understand where Ms Williams was at in her training, Ms Harrison asked Ms White for a copy of Ms Williams’ ‘self-competency checklist’, which all new staff complete to support their training. Ms Harrison also told Ms White she wanted to see Ms Williams’ training plan. Ms Harrison says she tried looking for it on the shared electronic system but there are ‘a lot of folders’ and it ‘may not be there’. Ms Harrison then asked Ms Williams if a training plan had been given to her and she said no.

51      Ms Harrison confirmed in cross-examination that she was asking for any training manuals that were given to Ms Williams, even if they were ‘stock standard’ and available ‘to every person in the same position’, because ‘[Ms Williams] told me she never got any of that’.

Consideration about Allegation B

52      Ms White submits that there were no individualised training plans for the new employee, Ms Williams. She submits that ‘the only training plans that could've been requested were standard training plans that were provided to anybody commencing in the type of position that [Ms Williams] was commencing in’. Ms White argues that they were ‘readily available’ to Ms Harrison.

53      We accept the Health Service’s submissions about Allegation B.

54      The documents show that Ms Harrison repeatedly directed Ms White to give her a copy of the training plan and the self-assessment competency list for the new employee. We are satisfied that in the circumstances that was a reasonable, lawful direction to give. Ms White’s evidence about this allegation was inconsistent and evasive, to say the least. Despite the voluminous documents before the Board, and ample opportunity to provide evidence, Ms White could not point the Board to the email she says she sent Ms Harrison attaching the training materials requested. In any event, even on Ms White’s version of events, such an email would have been sent after the allegation had already been put to Ms White.

55      It is not to the point that Ms White considered that Ms Harrison knew where to find the documents on ‘W’ drive. Ms White should have provided Ms Harrison with the training plan and self-assessment competency list for the new employee when asked to do so.

56      Ms Harrison’s evidence was clear and we accept it. We find that Ms White failed to give Ms Harrison a copy of a training plan and self-assessment competency list for the new employee when Ms Harrison asked her to do so. Allegation B is substantiated.

Allegation C

57      In essence, Allegation C is that Ms White failed to follow a lawful direction to immediately submit overtime hours into RoSTAR (the staff rostering system) for two employees, so that those two employees could be correctly paid.

Ms White’s evidence about Allegation C

58      In effect, Ms White’s evidence was that initially she did not put the overtime information into RoSTAR because she was concerned the relevant employees had already been ‘paid’ by way of approved flexitime. Once she had confirmation from the Human Resources Manager Mr Steve Leventhal, she was willing to put the information into RoSTAR.

59      The Board pressed Ms White on why she entered the information into RoSTAR five days after she was directed to do it ‘immediately’. She did not directly answer this, saying generally there were times ‘her’ RoSTAR ‘wasn’t as up to date as it should have been’. Eventually she said ‘honestly, I believe that I did go in there and put that in – in there on the 9th’.

60      In cross-examination, counsel for the Health Service put to Ms White that although Ms Harrison, Mr Leventhal and Ms White’s support person from her union all told her to follow Ms Harrison’s instruction to update RoSTAR by 12pm on 9 March 2022, Ms White did not do so until 14 March 2022. Ms White disagreed. Despite accepting that in her response to Allegation C she never said that she tried to change RoSTAR earlier than 14 March 2022, in cross-examination Ms White said:

CARROLL, MR:  But you understood the direction from Ms Harrison was to immediately update RoSTAR, didn't you?

WHITE, MS: Absolutely.

CARROLL, MR: And so once Steve ‑ ‑ ‑?

WHITE, MS: How – however ‑ ‑ ‑

CARROLL, MR: ‑ ‑ ‑ Leventhal had confirmed that ‑ ‑ ‑?

WHITE, MS: Mm hmm.

CARROLL, MR: ‑ ‑ ‑ you needed to comply with the instruction, you agree that you ought to have complied on that particular day and updated RoSTAR.  Do you agree with that?

WHITE, MS: Yes.  At ‑ ‑ -

CARROLL, MR: And you ‑ ‑ ‑?

WHITE, MS: ‑ ‑ ‑ that ‑ ‑ ‑

CARROLL, MR: ‑ ‑ ‑ didn't?

WHITE, MS: On that day.  On that, um – as I said to you, I honestly believed that I had done.  It may well have been the fact that I approved it again on the 14th.  Um, however, at the end of the day, um, I didn't hold anybody up and, um, I have also – wasn't in, ah – wasn't in a position that I had to then, um, be, yet again, in a position where I felt, um ‑ ‑ ‑

CARROLL, MR: Now ‑ ‑ ‑?

WHITE, MS: ‑ ‑ ‑ you know, bullied.

CARROLL, MR: ‑ ‑ ‑ you never said, in your response to the disciplinary allegation, that you tried to change RoSTAR earlier than 14 March 2022.  Do you agree to that – agree with that?

WHITE, MS: Yes.

CARROLL, MR: So today's the first time that we're hearing that you've tried – you made an attempt prior to 14 March to change RoSTAR.  Do you agree with that?

WHITE, MS: Today is the first time that I've – in – in, um – I've probably voiced it in other situations, but maybe not written it out, but I have actually – I had, ah – do that in RoSTAR, yes.

CARROLL, MR: I suggest to you that your evidence in respect of trying to change those times on RoSTAR before 14 March is a lie.  It's a recent invention that you came up with today.  Do you agree with that?

WHITE, MS: No.  I have no need to do that.

CARROLL, MR: Well, you do, because you're trying to get off disciplinary allegations, isn't that correct?

WHITE, MS: It does not take away from the truth.

Ms Harrison’s evidence about Allegation C

61      Ms Harrison remembers directing Ms White to enter overtime done by two staff members into RoSTAR. She did this because Ms White ‘had raised an issue about how much work there was’, so Ms Harrison said Ms White could offer her staff one extra hour of overtime, depending on who was available. Ms Harrison’s evidence is that she doesn’t believe Ms White did that, so then she sent an email herself offering the overtime to the team. Two people agreed to do it, and they sent the overtime hours they ended up working to Ms Harrison. Ms Harrison asked Ms White to put those hours in RoSTAR, but noticed that Ms White did not do this and asked her again. Ms Harrison’s evidence is that without those hours being entered in RoSTAR, the employees would not receive their overtime pay in that pay period.

62      Counsel for Ms White put to Ms Harrison in cross-examination that Ms White had a ‘genuine concern’ about ‘double dipping’ because ‘these people weren't putting it down to be granted flexi-time in lieu of these hours they were working, but they were also claiming paid overtime.’ Ms Harrison said, ‘No.  I made it quite clear that overtime is overtime.  It's not also a flexible hour that they put in.  And Chrissy managed their timesheets.  So she would've been – be able to check [that]’.

63      Counsel for Ms White then put to Ms Harrison that Ms White’s evidence is that once Mr Leventhal directed her to input the overtime into RoSTAR, Ms White did so ‘immediately’. Ms Harrison said: ‘Well, she never advised me.  I'd asked her, "Have you done the overtime?"  "Have you added it?"  So this is where the communication breakdown [sic].  I would ask her, "Has this been done?"  And I would never get a response.’

Consideration about Allegation C

64      Ms White submits that she never wilfully disobeyed a direction. She says she had a concern about employees receiving a double entitlement so she sought further advice. Ms White says she then immediately updated the RoSTAR system. She submits that the change RoSTAR says was made on 14 March ‘may have reflected another entry into the system to check or finalise’.

65      We are satisfied that the direction the subject of Allegation C was lawful and reasonable in the circumstances. Plainly it was appropriate that Ms Harrison ensure that employees are paid correctly and on time.

66      The evidence clearly shows that Ms White did not immediately update the RoSTAR system. Rather, despite the many directions to do so, even after the Manager Human Resources told Ms White that he was satisfied that the direction was reasonable and lawful, and directed her to action it, Ms White took another five days to do so.

67      We find that Ms White failed to follow a lawful direction to immediately submit overtime hours into RoSTAR for the employees, so that the employees could be correctly paid. Allegation C is substantiated.

Allegation D

68      Allegation D is in essence that Ms White failed to follow a lawful direction to tell Ms  Williams and her support person on 23 March 2022 that a performance management meeting Ms White had planned for Ms Williams was cancelled, and she failed to cancel the meeting.

Ms White’s evidence about Allegation D

69      Ms White gave evidence that Ms Williams started work in the team and Ms Harrison was responsible for her onboarding. Then other trainers, including Ms White, took over. Ms White trained Ms Williams for ‘four months, six months, seven months’ but says she had concerns about Ms Williams’ performance and lack of progress. Ms White says she was receiving complaints about Ms Williams and so she scheduled a performance management meeting. She says this ‘wasn’t as a punitive thing’ but there ‘was the possibility of it moving in that direction’. Ms White then referred Ms Williams for a fitness for work assessment with an Occupational Physician.

70      Ms White accepts she was directed to cancel the performance management meeting on 23 March 2022 and says she intended to do so. However on her way back to her office she was stopped by another employee who needed to speak to her and that conversation lasted an hour-and-a-half. Ms White started to leave the building to go home (it was the end of the day) but as she was leaving remembered she needed to cancel the performance management meeting. She returned to her desk, went into the calendar event and deleted everyone’s names from the event. She ‘flicked it further down’ so it would keep all the documents and information for when the meeting was ‘revised’.

71      Ms White says the next day (being 24 March 2022) she cancelled the meeting. In evidence, Ms White confirmed twice that she did this, and said it was around 11 o’clock. Ms White says she understands the Health Service to be saying that she rescheduled the meeting. From her lengthy responses to the Board’s questions about this, Ms White’s evidence was that by deleting people’s names from the event and pushing the event ‘down’, she considers that she complied with the direction to cancel the event. She would not directly answer the Board about whether on 25 March 2022 she then did cancel the meeting, as some of her earlier answers indicated. 

72      At first in cross-examination, Ms White denied that what she had invited Ms Williams to was a performance management meeting. She agreed that on 23 March 2022 at 12:48pm, Ms Harrison emailed Ms White and directed her ‘to cease performance management of [Ms Williams] immediately and to cancel the meeting scheduled for this Friday.’ Ms White would not accept that the document at page 175 of exhibit R1 (a calendar invitation for a meeting with ‘performance management’ in the subject line, originally scheduled for 14 March 2022), was the invitation for the meeting that Ms Harrison has directed Ms White to cancel in her email at 10:46am, 23 March 2022.

73      When the counsel for the Health Service asked Ms White again, she said:

CARROLL, MR: Yes.  So you agree that the meeting was in relation to performance management, is that correct?

WHITE, MS: The relationship to moving forward to a performance management.

CARROLL, MR: So it relates ‑ ‑ ‑?

WHITE, MS: Yes.

CARROLL, MR: ‑ ‑ ‑ to performance management, is that right?

WHITE, MS: If – that was the direction I would've liked the meeting to go.

CARROLL, MR: And then at the end of this same email, you say that, "The meeting on Friday is merely to advise and discuss [Ms Williams], her progress and performance issues to date" ‑ ‑ ‑?

WHITE, MS: Mm hmm.

CARROLL, MR: ‑ ‑ ‑ "[Ms Williams’] role within the HISO department and to advise regarding about an intended performance management as per policy and procedure", is that right?

WHITE, MS: Yes.

CARROLL, MR: That was the intention of the ‑ ‑ ‑?

WHITE, MS: Yeah.  The ‑ ‑ ‑

CARROLL, MR: ‑ ‑ ‑ Friday meeting?

WHITE, MS: The intention of the Friday meeting was to help and assist [Ms Williams] with as much as I possibly could to get her into our – to get her as a functioning team member and ‑ ‑ ‑

CARROLL, MR: Well, no.  The ‑ ‑ ‑?

WHITE, MS: ‑ ‑ ‑ enjoy her job.

CARROLL, MR: ‑ ‑ ‑ intention was to advise her regarding intended performance management, is that correct?

WHITE, MS: The intention was to help her and the possibility that it would actually  which is what I said there, that it would – there was a possibility of it moving towards that direction.

CARROLL, MR: Well, no?

WHITE, MS: What we ‑ ‑ ‑

CARROLL, MR: Can we go to what you've said there, Ms White?

WHITE, MS: What we need to do.

CARROLL, MR: Back to – let's just focus on what you've said there?

WHITE, MS: Okay.

CARROLL, MR: You've said the meeting is to – "Merely to advise and discuss with [Ms Williams] her progress and performance issues?

WHITE, MS: Yes.

CARROLL, MR: And then you go on to say, "And to advise regarding an intended performance management"?

WHITE, MS: That it would be intended if that was the, ah – if that was the direction – or that's where we got towards.  That's where it would – if that's where it was moving towards.  "Intended" is – you don't intentionally – that's what's – and that is the direction that it may need to go.

CARROLL, MR: Well, your email's crystal clear.  You're saying that you're intending to advise her – that you're going to advise her that you intend to move to performance management.  That's what you say in your email, is that correct?

WHITE, MS: No.

CARROLL, MR: It's not what you say in your email?

WHITE, MS: No.

CARROLL, MR: I suggest you're lying, Ms White?

WHITE, MS: No.

74      Ms White conceded that at 1:21pm the same day, 23 March 2022, Ms Harrison emailed her again saying ‘please advise [Ms Williams] and her support person that the meeting scheduled on Friday has been cancelled by close of business today’. Eventually, Ms White conceded she did not comply with Ms Harrison’s direction.

75      In relation to what happened the afternoon of 23 March 2022, Ms White said in cross-examination that she was called away from her office at about 1:20pm to resolve an issue in another department. Counsel for the Health Service put to Ms White that this was not the same as what she said in her evidence-in-chief, which was that she was called away for about an hour-and-a-half while she was on her way back to her office. Ms White was unclear about whether she agreed she had changed her evidence, eventually saying ‘um, yes’, but denied the change was because it was not the truth. Ms White said she went home at about 6 o’clock. She was unclear about exactly what caused the delay when she initially tried to leave the office at about 5pm. Ms White conceded that even though she had Ms Williams’ phone number, she did not call Ms Williams to tell her the meeting had been cancelled.

76      Ms White eventually conceded that she was supposed to have cancelled the meeting and informed Ms Williams by close of business on 23 March 2022. She would not concede that Ms Harrison had raised welfare concerns about Ms Williams, despite Ms Harrison’s email saying ‘I’m very concerned about the effect the proposed meeting is having on [Ms Williams]…and need you to support my instructions’.

77      Ms White’s counsel re-examined her about the timeline of events from 1:20pm on 23 March 2022. Ms White said that she went down to the other department and by the time she arrived it was 1:30pm or 1:45pm. She was in the other department for about an hour. She left that department around 3pm. She said ‘So I wouldn't have – I didn't leave [the other department] until about 3 o'clock.  Um, I've then – as I'm walking back up, these, ah – the – the next person came in and was quite upset.’ She says it was about 3:30pm by the time ‘we got, um, into the office’ and says:

I'd sort of said to one of the other staff members, "Could you just wait a little bit?"  Um, until the next person there – there's usually two people on at night, the next person's come in.  So it would've been about half past 3.  So half past 4, by the time I've sort of finished all that, it'd be 5 o'clock.  I've then literally got back to my desk, closed all my computer and everything like that down, and just left for the day.  I've gone out the door, to the road, come back and realised that I didn’t do what I've been – the meeting that – to cancel the meeting.  I've gone back in, I'm back to the office, and at 5.48 or something like that, I have to, ah – ah – that is when I moved the meeting down.   

Ms Harrison’s evidence about Allegation D

78      After having asked Ms White for the Documents (see Allegation B), Ms Harrison says she found out that Ms White intended to go ahead with a performance management meeting with Ms Williams ‘without having any documentation letting me know’. Ms Harrison understood that because the meeting was going ahead, Ms Williams was feeling targeted and upset. Ms Harrison spoke with Human Resources who agreed that a performance management meeting was not appropriate and so Ms Harrison told Ms White that she could not go ahead with the performance management meeting.

79      In cross-examination, Ms Harrison says she recalls that Ms White ‘rescheduled the meeting after I’d asked her to cancel it’ and the rescheduled meeting went to Ms Williams again. Ms Harrison found out about this because Ms Williams came and told her. Ms Harrison says she was not told that Ms White cancelled the meeting the next day, even though Ms Harrison had sent an email saying that ‘this meeting needs to be cancelled’ because Ms Williams ‘was still worried it was going ahead’.

Consideration about Allegation D

80      Ms White submits that the evidence shows she ‘removed the current appointment, but in doing so pushed it back several weeks’. She says her evidence shows she cancelled it the next day, but in any event, Ms Harrison’s evidence is that in the meantime she had sent an email cancelling the meeting.

81      The evidence does not support a finding that Ms White cancelled the meeting on 23 March 2022 (or at all), nor that she told Ms Williams and her support person on 23 March 2022 (or at all) that the meeting was cancelled, as she was directed to do. We accept the Health Service’s submissions about this allegation.

82      Ms White’s evidence about this allegation was inconsistent, non-responsive and implausible, like much of her evidence overall. It is clear from the documents and the oral evidence, including Ms White’s own testimony, that Ms Harrison directed Ms White in writing twice to cancel the performance management meeting and to tell Ms Williams and her support person on 23 March 2022 that the meeting was cancelled. Ms White did not do so. We consider that Ms White’s email responses to Ms Harrison support the conclusion that Ms White was not going to comply with the direction.

83      In circumstances that included Ms Harrison’s concern about Ms Williams’ wellbeing, and that Ms White had not complied with Ms Harrison’s directions to provide Ms Williams’ training documents, we are satisfied that the direction at the heart of Allegation D was a reasonable, lawful direction.

84      We find that Ms White failed to follow a lawful direction by failing cancel the performance management meeting, and by failing to tell Ms Williams and her support person on 23 March 2022 that the performance management meeting Ms White had planned with Ms  Williams was cancelled. Allegation D is substantiated.

Allegation E

85      Allegation E is in essence that Ms White failed to follow a lawful direction by failing to send Ms Harrison a copy of her file note of her discussion with Ms Jordan after complaint was made about Ms Jordan, when Ms Harrison had directed her to do so.

Ms White’s evidence about Allegation E

86      Ms White’s evidence about this allegation canvassed a range of matters that did not explain whether or not she provided the file note (about a conversation with Ms Jordan in relation to a complaint) to Ms Harrison. Eventually, after a direct question from the Board, Ms White said:

WHITE, MS:   I had provided it in the generic emails and that sort of thing and all the rest of it. [emphasis added]

EMMANUEL C: Okay? 

WHITE, MS: Um, I had provided it.  And I did go back.  And whenever she would say – I'd say I would go back and check and make sure.  I could look in and see who's in the generic emails.  That's what we had been instructed to do, was to actually refer it through to the generic emails.  Um, as I said, the reason why we created them was so everybody in that email box would get it.  I checked.  It was – it had been sent out.  And I did say, "I have sent it out to you".

EMMANUEL C: Okay.  And I suppose – and it's really a matter for – Mr Carroll will cross-examine you as he wants to, but a question that's turning in my mind is?  

WHITE, MS: Mm.

EMMANUEL C: I don't understand the allegation to be that you didn't provide anybody at all with the information.  The allegation is she asked you for it in a file note numerous times, and you didn't give it to her in a file note.  It doesn't sound to me like you really disagree with that?  

WHITE, MS: The – the – the file note was actually the merging situation.  That's what the file note was that I kept of this – that I actually kept.  That was the file note.  That was, um – (indistinct 12.07.35) when I first got to Sir Charles Gairdner.

EMMANUEL C: But you're not saying that you provided a file note to Ms Harrison, are you?  

WHITE, MS: I did provide that to – the – the actual merging was the file note.  So yes, I did.

HILL, MR:   Sorry, the merging of what?  

WHITE, MS: So the merging process that came out of that whole – it was all – the discussion was all about the merging process.  Um, the discussion was that, you know, the, ah – so the file note from my – for the way I looked at it, was the – I sent down a brand new merging process that all – that went out to all of the areas and – and that sort of thing, ah, right across, to sort of say, "This is all to the ED people.  This is all to the PMI people.  This is all to" – everybody that's in those generic email boxes got that merging process.  And to me, that covered – that's what the file note was.

EMMANUEL C:   And that amounted to sending Ms Harrison a file note?  

WHITE, MS: That was the file note.  Yes, she got that file note.

87      Immediately after this exchange, the Board asked Ms White to clarify whether ‘that file note’ referred to the conversation she had had, as directed, with Ms Jordan. Ms White said ‘no’ then suggested that she did not have a conversation with Ms Jordan about the Emergency Department. She said the conversation that she took a file note of was about a personal matter that Ms Jordan had raised so although Ms White had kept a file note, she would not share it. She then told the court about the details of that file note. The Board asked if Ms White means that she did not in fact have a conversation with Ms Jordan about the Emergency Department. Ms White answered:

Ah, the, ah – yes – yes, I did.  I spoke with Janet.  Um, I spoke with her and – and that sort of thing, but in the same vein that I spoke with Lisa Gibney as well.  I didn't – I didn't get Lisa to – I didn't take notes of what Lisa had said to me.  Um, that was in a meeting form.  So I didn't take notes, in that respect, of what Janet had sort of said to me.  I just, um, spoke – sort of thought to my, ah – in my way of dealing with it, I dealt with it by saying, "This is totally to do with the merging process".  Now, I said – I did say, you know, um, that – so I literally sent the merging process out of which, um, Emma Stoianis had said to me, "Yes.  Look, I can see how this has happened".  We both said how it would – could have happened.  And I sent the merging process out across the board to the, um – to the generic emails.  And, um, moving forward, once I, you know – I had said when I first went to Charlie's, that I was used to using a file note that we would – that we would do, that they would – that whatever you did with – if any sort of body spoke with you, if it was a personal basis, you would keep that yourself.  If it was, um, to do with something that had happened in the work station, it just meant – but I was told that that wasn't how they dealt with it at Charlie's.  So I didn't do that until after all of this.  And then we started using the file note.  And there is a – I will – there is a – there is a file note – a specific file note at Charlie's, um, either – it was – it was either found they use – but that came after.

Ms Harrison’s evidence about Allegation E

88      Ms Harrison gave evidence that a complaint was made by the Emergency Department administrator about Ms Jordan, a member of Ms White’s team. Ms Harrison and Ms White discussed the matter and the next step was for Ms White to meet with Ms Jordan and get Ms Jordan’s version of events. This was the usual process for dealing with complaints. Ms Harrison says ‘the agreement was that [Ms White] would meet with this staff – her staff member to discuss her version of the complaint’. That was in December. After the Christmas break, Ms Harrison said she followed it up with Ms White because she needed to get back to the person who had made the complaint. Ms Harrison said that by that point:

I've started writing to Chrissy about, "Have you done a – met with Janet?  Can you please show me the file note?"  Because that's all part of the complaint process.  You meet with the staff member.  You do a file note.  They review it and sign, "Yes, this is what occurred"… And I didn't get any – there was no feedback.  No response.  So that was in February.  And then March, again, I asked again.  And it – I don't think that meeting ever happened, because I never, ever got any feedback.

Consideration about Allegation E

89      Ms White submits that her evidence shows that standard practice was usually not to provide a file note. She argues that after Ms Harrison ‘provided her with a pro forma for that purpose of completing file notes in the future’, Ms White submits that ‘having been provided with that, she then proceeded with providing those file notes in that manner’.

90      We accept the Health Service’s submission about Allegation E.

91      We are satisfied that the direction at the heart of this allegation was a reasonable, lawful direction, given the complaint received from the Emergency Department Administrator about Ms Jordan, who reported to Ms White.

92      Notwithstanding Ms White’s many excuses and obstructive, non-responsive answers, plainly Ms White did not provide Ms Harrison the file note about her conversation with Ms Jordan in relation to a complaint that Ms Harrison directed her to provide. She should have. Allegation E is substantiated.

Allegations F and G

93      Allegations F and G relate to Ms White improperly accessing personal information in webPAS.

94      None of the witnesses gave evidence about these allegations. However it is clear on the face of the documents that Ms White engaged in the alleged conduct and that she was aware that inappropriate access of webPAS amounts to misconduct:

1) In her response to the Health Service about Allegation F (found at page 75 of Document 4 of Exhibit R1), Ms White accepts she did access webPAS, saying ‘out of duty of care I momentarily flicked into webPAS.’;

2) In relation to Allegation G, in an email dated 8 July 2022 Ms White wrote: ‘[Ms A]… identifies as Aboriginal. I have updated this information in webPAS.’, (found at page 323 of Exhibit R1); and

3) Ms White signed a confidentiality statement dated 27 September 2019 confirming  that she understands that updating details of work colleagues on webPAS is inappropriate and is considered an act of serious misconduct.

95      Allegations F and G are substantiated.

Was dismissal and a reprimand a fair response?

96      Ms White submits that ‘in regard to all allegations, [her] position is that she has never, at any time, wilfully or deliberately disobeyed a lawful and reasonable direction from her employer or from her manager on behalf of the employer’. She ‘believes that she was the subject of a dislike and a hostility from the commencement of her employment from her line manager’ and that was ‘ultimately behind her termination from the employment’. Ms White submits that in relation to the allegations against her, ‘many of these things could have been picked out on any employees’. She says the decision to dismiss her was unfair and that ‘if there [were] breaches that were technical in nature, but weren't wilful or deliberate, [dismissal] was not a proportionate or fair response.’

97      At the hearing Ms White’s counsel confirmed that she seeks the outcomes set out in her notice of appeal but he acknowledged that there is an ‘issue as to whether they’re things that, you know, are capable of being granted by the Board.’

98      We are not persuaded that:

1) Ms White was dismissed because of any dislike or hostility on Ms Harrison’s part;

2) any breaches of discipline were ‘technical in nature’ and not wilful or deliberate; or

3) any disobedience was in the context of a manager sending Ms White thousands of emails and picking on a few things that were not actioned.

99      There is simply no evidential foundation of those submissions, and in any event the matter in [98c] was not part of Ms White’s reasons for non-compliance. The directions were clear, reasonable and easy to comply with.

100   Ms White has a history of not complying with her manager’s directions, such that Ms Harrison’s line manager (Dr Nair) instructed Ms White on 1 February 2022 to ‘always follow management directives regarding work requirements’ and ‘[ensure] timely response[s] to requests by manager or [advise] as soon as practical reasons why unable to meet requirements’. On 28 March 2022, Dr Nair issued a written instruction to Ms White headed ‘Lawful Order’, instructing Ms White to ‘comply with all lawful and reasonable directions’. We agree with the Health Service that Allegations A, B and C all involve refusals to comply with directives very soon after 1 February 2022, which is an aggravating factor.

101   It seems to us that Ms White does not understand that she must comply with reasonable, lawful directions.  She appears to have no insight at all into her behaviour and conduct. We agree with the Health Service’s submission that:

The conduct has been repeated both within allegations (that is, there was more than one direction given within the allegations for which the appellant still did not comply) and across the allegations.

No good reason, excuse or justification is given for disobeying the directions. Indeed the reasons proffered are misconceived. The reasons proffered tend to aggravate the wrongdoing rather than being neutral or mitigating.

The duty to obey is a defining feature of the employment relationship. Any failure to follow a lawful direction is serious. It is entirely reasonable and justified for an employer to dismiss an employee for repeated failures to follow lawful directions. The appellant’s repeated failures illustrate she is incapable of being managed as an employee. The respondent should not be forced to do so.

102   The evidence does not support a finding that Ms White was bullied at work, and her arguments in this regard do not provide a reasonable explanation for her conduct the subject of the findings under appeal.

103   Even on Ms White’s version of events, it is clear to the Board that Ms White has consistently demonstrated a pattern of behaviour of unreasonably ignoring, challenging or refusing direct instructions from her manager because Ms White believes that she knows best.

104   It is fundamental to the employment relationship that a manager be able to give clear, reasonable lawful directions to an employee and have those directions followed. Ms White repeatedly ignored her manager’s reasonable requests to do basic tasks that fell well within the scope of Ms White’s duties. It should not have been necessary for Ms Harrison to have to expressly direct Ms White to follow her instructions, let alone to have to continually issue written directions.

105   The Health Service did not exercise its legal right so harshly or oppressively against Ms White so as to amount to an abuse of that right (see Ronald David Miles & Ors t/a Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385 at 386).

106   In the circumstances of this matter, dismissal was not harsh, oppressive or unfair. We consider that dismissal was a fair, appropriate and proportionate response. We should not adjust the decision to dismiss. Nor are we persuaded to adjust the decision to reprimand Ms White. The reprimand was an appropriate response to the conduct the subject of Allegations F and G.

107   Finally, even if we were persuaded that dismissal was an unfair, disproportionate response, Ms White reluctantly gave evidence that she is currently receiving income protection insurance because of an incapacity to do any work. On that basis, Ms White cannot perform the inherent requirements of her position. In those circumstances, it would not be appropriate for us to adjust the decision to dismiss.

108   We must dismiss application PSAB 3 of 2024.