2022 WAIRC 00224
APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 16 DECEMBER 2021
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00224

CORAM
: PUBLIC SERVICE APPEAL BOARD
SENIOR COMMISSIONER R COSENTINO - CHAIRPERSON
MR D HILL - BOARD MEMBER
MS J VAN DEN HERIK - BOARD MEMBER

HEARD
:
WEDNESDAY, 20 APRIL 2022, THURSDAY, 21 APRIL 2022

DELIVERED : WEDNESDAY, 25 MAY 2022

FILE NO. : PSAB 2 OF 2022

BETWEEN
:
CRAIG GEE
Appellant

AND

WA COUNTRY HEALTH SERVICES
Respondent

CatchWords : Industrial Law (WA) – Public Service Appeal Board – Jurisdiction – Fixed term contract – Requirement to be vaccinated against COVID19 – Whether there was a dismissal – Acceptance of offer – Appeal dismissed
Legislation : Industrial Relations Act 1979 (WA)
Health Services Act 2016 (WA)
Public Health Act 2016 (WA)
Public Sector Management Act 1994 (WA)
Result : Appeal dismissed
REPRESENTATION:

APPELLANT : MS I FIGIEL AS AGENT
RESPONDENT : MR S PACK OF COUNSEL AND MS S WATERTON

Case(s) referred to in reasons:
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1
Crabtree v Director General, Department of Education [2021] WAIRC 00538; (2021) 101 WAIG 1401
Li v Haydar Family Restaurants T/A McDonalds [2003] WAIRC 09489; (2003) 83 WAIG 3303
Lunn v Department of Justice [2006] AIRC 756
Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 645

TABLE OF CONTENTS

Background 4
Requirement for an employment relationship and a dismissal 14
Did Mr Gee accept the 7 December 2021 offer? 16
Relevance of the PARP 19
Mr Gee’s alternative dismissal submission 19
Conclusion concerning dismissal 20
Working from home 20
Considerations regarding remedy 22
Conclusion 22

Reasons for Decision

1 These are the unanimous reasons of the Public Service Appeal Board (Board).
2 WA Country Health Services (WACHS) employed Mr Craig Gee as a fulltime ICT Help Desk Officer pursuant to a series of fixed term contracts over 19 months to 30 November 2021. WACHS offered Mr Gee a further threemonth fixed term contract after 30 November 2021. However, because Mr Gee did not provide proof that he was vaccinated against COVID19, WACHS purported to then withdraw the offer of a fixed term contract by email on 16 December 2021, before Mr Gee performed any work under it.
3 Mr Gee commenced this appeal on the basis that the communication of 16 December 2021 was a decision to dismiss him from his employment with WACHS and that such a decision was harsh, oppressive or unfair.
4 WACHS does not rely upon a failure by Mr Gee to comply with the Chief Health Officer’s Health Worker (Restriction on Access) Directions (Directions). WACHS does not attempt to make out a case that it terminated Mr Gee’s employment for reasons relating to misconduct or a breach of discipline.
5 Quite properly, Mr Gee does not dispute the lawfulness or validity of the Directions. The Directions have not, to date, been declared by a court to be invalid. As an administrative tribunal, the Board must decide appeals according to the law and on the basis that legislation and legislative instruments are valid until a court says otherwise. The lawfulness of the Directions is not a matter for the Board.
6 This case turns on whether there was a dismissal and, if so, whether there was a valid reason for such dismissal.
7 More specifically, the issues in these proceedings are:
(a) Whether there was, as at 16 December 2021, a subsisting employment relationship, or whether the employment relationship terminated at the end of a fixed term contract.
(b) If the employment relationship continued after 30 November 2021, whether that employment relationship was terminated at WACHS’ initiative so as to amount to a ‘dismissal’.
(c) If there was a dismissal, was the dismissal harsh, oppressive or unfair? In this regard, was it unfair because Mr Gee could perform the requirements of his role under the contract without being vaccinated against COVID19?
(d) If there was a dismissal, and it was unfair, what if any remedy should the Board impose?
Background
8 Mr Gee gave evidence at the hearing of the appeal and was subject to crossexamination. Mr Gee’s line manager, Mr Peter Fares and WACHS’ Acting Principal Human Resources Consultant, Mr Stephen Durnin, gave evidence for WACHS and were both crossexamined by Mr Gee’s agent. The factual aspects of this matter, set out below, were largely uncontentious.
9 Mr Gee’s position with WACHS was a fulltime ICT Help Desk Officer. This position is the first point of contact for technology and communications support and advice to clients using corporate information systems, computing and telecommunications equipment. The key duties involved providing Help Desk support, that is, technical assistance, guidance and problem resolution to users of the corporate technology and communications systems. This was done primarily remotely, that is, by phone, email or video, rather than by facetoface or inperson interactions with users. If resolution required repairs or modifications to hardware on site, this was typically done by other employees.
10 The ICT Help Desk was restructured to become a 24/7 operation in response to the COVID19 pandemic. Mr Fares, in consultation with the Health Services Union of Western Australia (Union of Workers), developed a roster system to enable the ICT Help Desk to operate 24/7. The roster system involved 10 different shifts. Over a 10week cycle, each employee in the ICT Help Desk Team was required to work a block of one week of each of the 10 shifts. Five of the 10 shifts were for hours between 8.00 am and 6.00 pm. These were referred to as the ‘middle shifts’. One shift was from 4.00 pm to 12.00 am followed by a period of oncall to 6.00 am. The other four shifts involved start and finish times outside the middle shift times.
11 The ICT Help Desk Team was required to work the five middle shifts from the office, which was located in the Bunbury Tower. The Bunbury Tower is an office building occupied by WACHS’ Central Services and other agencies and businesses. Employees had the option to work the other five shifts and weekend and public holidays shifts from home, provided the employee had a terminal and internet connection at home.
12 Mr Fares explained that this work from home option was designed to accommodate:
(a) security concerns: to ensure staff were not entering and leaving the Bunbury Tower late at night or early in the morning when their safety may be at risk; and
(b) fatigue management: to ensure staff were not required to drive home late at night, in circumstances where many employees live in regional areas, and their commute involves driving significant distances on country roads.
13 Mr Fares published the 10week roster two to three weeks prior to the commencement of each roster cycle. Employees were able to swap shifts by agreement with each other. If someone wanted to swap a shift and found another employee who agreed to do the swap, the changes to the roster could be entered online and were then submitted to Mr Fares for his approval.
14 Mr Fares maintained ‘General Guidelines’ to explain the shift patterns and working arrangements. The General Guidelines note:
…Staff should remain contactable via their work mobiles and willing to cover shifts at short notice…
15 Mr Fares explained that while most of the Help Desk Officer’s duties could be performed remotely from home, there were some aspects of the work that required a physical presence in the office. One shift was responsible for monitoring a dashboard which is part of the phone system, for the number of calls in the queue and to ensure wait times are adequately managed. The middle shifts also coordinated a data collection tool. Also, if there is a priority one or priority two incident, the employees in the office communicate what is going on to management, knowing that others present in the office could take over from them. Mr Fares’ evidence was that these things could potentially be done remotely with more work done on his part to change the processes, but currently, they are performed on site in the office.
16 As at 8 November 2021, Mr Gee was rostered to work for the 10week cycle ending on 25 January 2022. He was to be on approved annual leave for three of the 10 weeks and had agreed to swap shifts with other employees so that he was covering other employees’ weekend shifts and was not rostered to work any weekday middle shifts. Therefore, he was not required to come into the office until at least 25 January 2022. Mr Fares was aware of this roster and had approved it, although he was initially concerned that it involved a lot of weekends in a row.
17 Between 1 October 2021 and 30 November 2021, Mr Gee was employed pursuant to a written fixed term contract of employment dated 6 October 2021. The relevant terms of the written contract were:
1. POSITION
This offer of employment is for a COVID19 Position:
Position Title: Help Desk Officer
Position Number: 00613077
Contract Type: Fixed Term
Location/Work Area: WACHS Central Office
Classification: HSU Level G3, Increment 2
Based on the COVID19 operational requirements of the Employer, during your employment, you may be required to comply with a reasonable request by the Employer, to transfer to another location or Health Service Provider.
2. TERMS AND CONDITIONS OF EMPLOYMENT
If you accept this offer of employment, this contract applies to your employment with the Employer in the State of Western Australia. The terms and conditions of your employment are governed by, but not limited to, the HSU  Health Services Union Award and General Agreement (Agreement), or it’s replacement. You are also required to comply with relevant legislation, industrial instruments, codes of conduct, policy and procedural frameworks.
Your Fixed Term Contract of employment will commence on 01 October 2021 and will end on 30 November 2021.
…
3. CONDITIONS OF OFFER
This conditional offer of Select contract type employment is subject to:
…
3. COVID19 Vaccination Status
It is a requirement of your employment to comply with the Health Worker (Restrictions on Access) Directions No. 3 (or its replacement) (Directions).
In order to enter the health care facility in accordance with the Access Restrictions at section 4 and 5 of the Directions you must:
● ensure you are vaccinated against COVID19 and provide evidence of your vaccination status; or
● provide evidence of your status as an exempt person pursuant to the Directions.
For the avoidance of doubt, this offer of employment and therefore your employment is conditional on you providing evidence, satisfactory to your Employer of your:
● vaccination against COVID19; or
● status as an exempt person.
If you do not comply with the Directions this may be treated as a breach of discipline with termination of employment a potential outcome. Information on seeking an exemption is available here. The prescribed forms are available here and here. Information on the forms of satisfactory evidence of vaccination is available here and includes:
a. written confirmation issued by the Department of Health to you of the COVID19 vaccination you received; or
b. a COVID19 digital vaccination certificate or an immunisation history statement issued to you by Medicare showing the COVID19 vaccination recorded on the Australian Immunisation Register.
…
5. ACCEPTANCE OF OFFER
If you choose to accept this offer of employment you are required to complete the Acceptance of Offer section on the attached Offer of Employment Acceptance Form and return it to HSS.COVID19ES@health.wa.gov.au
Accordingly, if you sign this offer of employment, you will become an employee of the Employer, and this letter will form your Contract of Employment.
If you choose to not accept this offer of employment you will be required to complete the NonAcceptance of Offer section on the attached Offer of Employment Acceptance Form and return it to HSS.COVID19ES@health.wa.gov.au at your earliest convenience.
If you have any queries regarding this offer of employment, please do not hesitate to contact your Recruitment Consultant, Chelsea, on 6444 5249.
Congratulations, and we are looking forward to you joining our COVID19 contingency workforce and making a significant contribution to the success of our organisation.
…
18 Although the contract expressly required completion and return of the Acceptance of Offer section, Mr Gee did not return the Acceptance of Offer section. He received the offer after the employment period had commenced, and he had continued to work and be paid as usual following the expiry of the previous fixed term.
19 At the time Mr Gee received the 6 October 2021 contract, he was aware that WACHS considered that he fell within the ‘Tier 3’ category of Healthcare Facility. Therefore, he was required to be vaccinated against COVID19 with a first dose by 1 December 2021 and a second dose by 1 January 2022. This was confirmed by Mr Fares in an email to Mr Gee on 6 October 2021, in which Mr Fares stated:
Hi Craig
We fall into the Tier3ALL category.
So you are meant to have your first dose by 1st of Dec.
For the time being, I will report you as a ‘NO’ on the report.
But you need to think carefully about that and take action.
This may impact your future contract/employment if you plan to continue with WACHS/Health.
20 Mr Gee responded to this email:
Hi Fazee [Mr Fares],
Thank for the clarification that we fall under the Tier 3 All.
With the new contracts that have been sent out today, of only a 2 months extension, the end date is the 30th November 2021.
I feel this puts me into a strange and uncertain situation.
Thank you for your advice to think carefully, as I do consider my decision as a very important one.
I do wish to continue my employment and believe I am a valuable member of the team.
So to be clear, I am willing to follow the directions if I know prior to the deadline that I will have continued employment, as that would be the only reason that I would be following these directions as a Tier 3 All category employee.
When will the next contract extensions be sent out? As this will assist me in my decision.
21 Mr Gee submits that the above email communicated his acceptance of the offer of the fixed term contract dated 6 October 2021. We have doubts whether that conclusion is correct, but it is unnecessary for us to express a view as, ultimately, it was not in issue that the 6 October 2021 contract was accepted, if not expressly, then by conduct.
22 In any event, when the 6 October 2021 contract was offered, WACHS did not require Mr Gee to be vaccinated during its term but had foreshadowed a requirement to be vaccinated from 1 December 2021 to continue working.
23 The fact that the end date of the 6 October 2021 contract was the day prior to the date from which employees were required to be vaccinated against COVID19 with a first dose  1 December 2021, placed Mr Gee in a difficult position. He was hesitant to be vaccinated. He did not want to undergo vaccination without the assurance of having ongoing employment. In other words, if he knew he was not going to be employed from 1 December 2021, he did not intend to become vaccinated. This difficulty was articulated by him in the email referred to at [20] and again in an email to Mr Fares dated 17 October 2021, in which he stated:
…
The other point I would like to clarify is that I have not expressed any worries regarding this vaccine.
I have clearly stated that I do wish to continue my employment and that I am willing to follow the directions that apply to me.
As I have explained, I do not have a contract that covers the date that the directions apply.
That is why I am requesting the urgency of receiving a contract as soon as possible so I can take the next steps in following the directions.
…
24 Mr Fares and Mr Gee met to discuss this impasse on 18 October 2021. Their versions of what was discussed at the meeting about future permanent employment for Mr Gee is the only area of factual dispute in this matter. However, it was agreed that the primary purpose of the meeting was to discuss Mr Gee’s hesitancy in being vaccinated and its implications for his employment.
25 Mr Fares was keen to retain Mr Gee in the ICT Help Desk team. He was willing to have Mr Gee continue in his employment if Mr Gee could provide proof of being vaccinated as required by WACHS’ policies and the applicable Directions. He knew, however, that WACHS would make no offer of a further fixed term without evidence either that Mr Gee was vaccinated or had booked to receive a first dose of a COVID19 vaccination.
26 Mr Fares could not have been more transparent with Mr Gee about this situation. Between 6 October 2021 and 30 November 2021, he and Mr Gee exchanged several emails concerning the predicament they both faced. It is unnecessary to set out the entirety of the email exchanges or their dates, but Mr Fares’ statements to Mr Gee during this period included:
…
If you haven’t got your first shot by the 1st of December as per the directive, they will reject the renewal request when I submit it.
I do want you to continue. However, I am not able to work around this requirement.
…
You are potentially risking your contract being renewed though, because I noticed that this is now a clause on contracts.
Check your latest contract; it should have this clause.
3. COVID19 Vaccination Status
• It is a requirement of your employment to comply with the Health Worker (R
(or its replacement) (Directions).
I will have to report back that you’re not compliant for the time being.
Hopefully, that won’t impact your contract being renewed because I would like to retain you as a valuable and experienced member in the team.
…
Covid vaccination compliance status is an essential condition of the contract. This is not a punitive action. We are not permitted to give you a contract if you don’t satisfy this condition.
…
27 From 6 October 2021 to 30 November 2021, Mr Gee was communicative and polite with Mr Fares, but he was not entirely transparent. While he repeatedly stated he was willing to comply with ‘the directions’, he did not expressly say whether he was willing to be vaccinated or not. He alluded to a different view of what constituted compliance with the Directions. He did not make any commitment to comply with WACHS’ policies, lawful orders or the requirements of his employment contract.
28 For example (our emphasis):
I have stated numerous time that I am willing to follow these directions if they do apply to me…
To be clear, I have stated that I am willing comply with the Directions No. 3 as per that contract clause you have sent, which as a Tier 3 All category employee don’t apply to me until the 1st December.
…
It is impossible for me to select one of those three available options that you have been asked to report on [fully or partially vaccinated, booked first shot or not willing to take the vaccine] as neither three reflect my current situation.
…
I am a compliant employee.
….
I have made an appointment and provided evidence of this. I have made no indication that I am not willing to follow the directions.
I am simply waiting to receive my contract prior to attending an appointment…
…
I understand that there will be conditions within my contract, although I do not yet have a copy of it, so I am not aware of the contract conditions.
As I have made it very clear I am willing and intend to comply with directions and conditions that apply to me.
…
I look forward to my ongoing employment as a continued compliant worker.
29 On 22 October 2021, Mr Gee sent Mr Fares a copy of a booking confirmation showing he was booked with a COVID19 Vaccine Practitioner on 27 November 2021. However, he did not keep the booking because he had not yet been provided with an offer of a contract beyond 30 November 2021.
30 On 25 November 2021, WACHS’ Human Resources Team wrote to Mr Gee, noting that as a Health Support Worker at WACHS’ Central Office he must have received the first dose of a COVID19 vaccination on or before 12.01 am on 1 December 2021. He was advised that if he elects not to have a vaccination by that date, the Preliminary Access Restriction Period (PARP) described in WACHS’ COVID19 Mandatory Vaccination  Employee restrictions on Access to Health Care Facilities  Guidelines (Guidelines) may apply.
31 Mr Gee rebooked a vaccination booking for 30 November 2021 and provided a copy of that booking to WACHS’ Human Resources Team on 29 November 2021. When providing the booking, he said (our emphasis):
I would like it to be noted that I am currently rostered on Shift 10 and working from home this week and the next few weeks along with booked annual leave.
Thus, while waiting for the contract (as done in the past) I will continue to work. I will be compliant with the directive, as I will not be entering the workplace as I will be working from home.
…
I believe this arrangement works well and follows the directions that are currently in place.
32 There was a flurry of emails exchanged between Mr Gee, Mr Fares, and various other managers and Human Resources Personnel on 30 November 2022. It is unnecessary to set out all of the communications that Mr Gee and WACHS exchanged. Importantly, Mr Fares advised Mr Gee that:
(a) A contract renewal form had been submitted for him. This meant that senior management had approved the issue of an offer of a renewed contract, and the contract offer would ‘definitely come through’ although the paperwork could take some days or weeks.
(b) He was not allowed to work for WACHS unless he provided evidence that he received a first vaccination dose by 1 December 2021.
(c) If Mr Gee was unable to provide evidence of receiving his vaccination by that evening, the contract renewal process would need to be halted.
(d) He would be arranging to cover Mr Gee’s shifts for the following week as a backup.
33 WACHS Human Resources also told Mr Gee that if he remained unvaccinated as at 1 December 2021, he would not be rostered to work and would not be paid. He was advised that the PARP ‘may then apply’. This was described as:
…a period where unvaccinated employees will be allowed to remain away from the workplace for a period of two weeks (unpaid) without disciplinary action being commenced.
34 Mr Durnin also stated:
…unless you are vaccinated 1st dose by 30/11/2021 you will not be able to work and will proceed too[sic] PARP with effect 1 December 2021.
I can not be any clearer  decision now rests with you.
35 At 12.36 pm on 30 November 2021, Mr Gee advised the ICT Operations Manager, Mr Alistair Crowe (our emphasis):
I will continue to keep an eye out for my anticipated contract, prior to attending my booked appointment.
I would like it to be noted that you have been illadvised by HR, as I will be complying with the Health Worker (Restrictions on Access) Directions (No 3) and not entering or remain at the workplace tonight regardless of my vaccination status, therefore it would be considered unlawful to suspend my access from midnight, as per the Public Health Act 2016 section 202.
I am still awaiting HR to respond and clarify their misinterpretation of the application of the directions.
I do not wish to be suspended, terminated or resign.
I am willing and intend to comply with the applicable directions.
To be clear, whilst waiting to receive my contract, I will continue to comply with the directions by performing my role as rostered from home.
36 The last word from Mr Gee on 30 November 2021 was contained in his email to Mr Durnin (copied to others) at 3.55 pm:
Hi Steve,
I am not debating where my primary headquarters are or if I am a Health Support Worker.
The issue is, at the moment I am rostered to work from home and can do so while still complying with the directions, that I will not be entering or remaining at a health care facility.
Therefore there is no need for any adverse actions taken against me, such as putting me on PARP, as that will be a contravention by WACHS of the Public Health Act 2016 section 202.
My decision is to comply with the orders given within the directions. Which I am and intend to do so, as I have said previously.
Without supporting evidence to suggest otherwise provided, the decision and action moving forward is now actually with WACHS to follow the Public Health Act 2016 or to contravene it.
I wish to continue to work and can compliantly do so.
37 Reading these last two emails together, it would be reasonable to understand that Mr Gee did not intend to be vaccinated, at least until he received an offer of an employment contract. However, despite Mr Gee’s tergiversation, Mr Crow appears, from what he then said in an email to WACHS’ Human Resources Team, to have understood that Mr Gee was going to proceed to be vaccinated, and so the process that had begun to issue an offer of a fixed term contract was not halted.
38 In a nutshell, on 30 November 2021, the position was:
(a) WACHS had made it clear that future employment was not going to be offered unless Mr Gee was vaccinated against COVID19;
(b) Mr Gee had advised WACHS that he had booked to have the first dose of vaccination on that day but had not committed to receiving the first dose;
(c) Mr Gee disputed the lawfulness of WACHS’ proposal that he be placed on PARP;
(d) Mr Gee confirmed he was rostered to work from home ‘at the moment’ and so could continue to work without entering a health care facility;
(e) Mr Gee did not indicate he was unwilling to be vaccinated; and
(f) WACHS understood that Mr Gee was going to receive a first dose of vaccination on 30 November 2021.
39 As a result, an offer of a fixed term contract was made to Mr Gee on 7 December 2021.
40 Mr Gee did not keep his 30 November 2021 vaccination booking.
41 The offer made on 7 December 2021 resolved the impasse described at paragraph [23] above. Mr Gee’s dilemma about being vaccinated without the certainty of an employment contract vanished. The ball was then squarely in his court.
42 In the meantime, despite Mr Gee’s objections and because he had not supplied proof of vaccination, Mr Gee was purportedly placed on the PARP, meaning that his access to work ICT systems was revoked, he was directed not to perform work, he did not perform work, and he was not paid. A pay slip for this period refers to ‘PARP Leave Without Pay’. The PARP period was due to end at midnight on 14 December 2021. The letter to Mr Gee confirming the PARP indicates that he ‘…may apply to your line manager for an appropriate form of leave…’ during the PARP.
43 The 7 December 2021 offer of a further fixed term contract for the position of ICT Help Desk Officer was for a term of employment commencing on 1 December 2021 and expiring on 28 February 2022. The offer stated:
1. POSITION
You are appointed to Position Number 00613077 as a Help Desk Officer.
You will be classified as Level G3 Increment 2.
The duties of the position are as outlined in your Job Description Form. You may during the course of this contract be required to comply with any reasonable request to transfer to another location based on operational requirements within the WA Country Health Service.
You will initially be placed within WACHS  Central Office.
Your location is WACHS  Central Office.
…
3. CONDITIONS OF CONTRACT
This contract of employment is subject to:
…
3. Covid19 Vaccination Status
· It is a requirement of your employment to comply with the Health Worker (Restrictions on Access) Directions No. 3 (or its replacement) (Directions).
· Additionally, if you will be working in a residential aged care facility it is a requirement of your employment to comply with the Residential Aged Care Facility Worker Access Directions No 3 (or its replacement) (ACWD).
· In order to enter the health care facility in accordance with the Access Restrictions at section 4 and 5 of the Directions and/or at section 4, 5, 6 and 7 of the ACWD you must:
· ensure you are vaccinated against COVID19 and provide evidence of your vaccination status; or
· provide evidence of your status as an exempt person pursuant to the Directions.
· For the avoidance of doubt, this contract of employment and therefore your employment is conditional on you providing evidence, satisfactory to your Employer of your:
· vaccination against COVID19; or
· status as an exempt person.
· If you do not comply with the Directions and/or the ACWD this may be treated as a breach of discipline with termination of employment a potential outcome.
· Information on seeking an exemption under the Directions is available here. The prescribed forms are available here and here.
· Information on seeking an exemption under the ACWD is available here. The prescribed forms are available here and here.
· Information on the forms of satisfactory evidence of vaccination for the Directions is available here.
· Information on the forms of satisfactory evidence of vaccination for the ACWD is available here.
…
44 Mr Gee did not sign and return the contract, nor did he provide evidence of his vaccination against COVID19 or status as an exempt person. Between 7 December 2021 and 14 December 2021, he had not received any COVID19 vaccination. Nor did he intend to receive any vaccination against COVID19.
45 Mr Gee continued to dispute the lawfulness of WACHS’ actions in withdrawing his ICT access and placing him on the PARP. On 13 December 2021, he sent an email to Mr Durnin. Mr Gee’s case is that his email of 13 December 2021 constituted his acceptance of the 7 December 2021 offer. The content of the email is reproduced in full below:
Hi Steve,
I understand that you have said that it has been made mandatory for all WACHS staff to provide proof of their COVID19 vaccine status.
I would like to clarify that I am ready, willing, and able to work in my role and will remain so into the future.
Could you please provide me with a copy of the COVID19 vaccination risk assessment for the WACSH SW ICT department and my home, as my usual places of work?
Considering the impending deadline, I would appreciate receiving the risk assessment as soon as possible[.] I am trying to comply with the employer’s hurried deadline and would like to meaningfully engage with this issue.
46 Notably, the email does not refer to the offer or the terms of the contract. It is contained in an email chain with Mr Durnin commencing 1 December 2021 with the notification to Mr Gee that he was to be placed on the PARP and comprises several exchanges about Mr Gee’s views as to the lawfulness of the PARP and the requirements of the Directions. The email chain ends on 14 December 2021 with Mr Durnin stating that the position remained unchanged, that Mr Gee was required to be vaccinated and the PARP would continue to apply.
47 It is also clear from this email that Mr Gee had not, at that point, decided to be vaccinated. He was asking for more information to persuade him to be vaccinated.
48 At 11.13 am on 16 December 2021, Mr Gee emailed Mr Durnin asking what forms he needed to complete to use leave hours during the PARP.
49 At 12.10 pm on 16 December 2021, Mr Durnin wrote to Mr Gee attaching a letter which stated:
…
Clause 3 of the contract of employment clearly stipulates your employment is conditional on you providing evidence of a vaccination against COVID19 or your status as an exempt person.
I am informed that despite providing evidence of a booking to receive a COVID19 vaccination on 27 November 2021 (subsequently cancelled) and then rescheduled to 30 November 2021, you have not provided evidence of a vaccination against COVID19, nor your status as an exempt person. On this basis, I advise this offer of employment, is now withdrawn by WACHS, and confirm the contract of employment sent to you on 7 December 2021 is null and void, and does not constitute an offer of employment.
…
50 It is this communication that Mr Gee says constitutes his dismissal from his employment.
Requirement for an employment relationship and a dismissal
51 The appeal is brought under s 80I(1)(d) of the Industrial Relations Act 1979 (WA) (IR Act), which confers on the Board jurisdiction to hear and determine ‘an appeal, other than appeal under the Public Sector Management Act 1994 s 78(1) or the Health Service Act 2016 s 172(2), by a government officer that the government officer be dismissed’.
52 The principles that apply in proceedings under s 80I(1)(d) of the IR Act are not in dispute. In particular, both parties acknowledge that in order for the Board to have jurisdiction to adjust a decision by the respondent, the relevant decision must be a decision to dismiss the employee. If there was no dismissal, there is no jurisdiction.
53 The IR Act contains no definition of ‘dismissed’. In Li v Haydar Family Restaurants T/A McDonalds [2003] WAIRC 09489; (2003) 83 WAIG 3303 at [60], the Full Bench stated that for a dismissal to have occurred, there must be some action on the part of the employer which leads to or effects the termination of the employee’s employment. At [61], the Full Bench said:
The employer must act to bring the relationship to an end. This can be effected by the employer making it unbearable for the employee to remain. (We refer also to Metropolitan (Perth) Passenger Transport Trust v Gersdorf 61 WAIG 611 (IAC) where a “dismissal” is defined, and see also AttorneyGeneral v WA Prison Officers’ Union (op cit) (IAC) (see also Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at 205 (FC FC)) (see also Tranchita v Wavemaster International Pty Ltd (1999) 79 WAIG 1886 at 1893 (FB) and the cases cited therein where Sharkey P said):
“Where an employee does not fairly consent to the termination of employment, then the termination is a dismissal. Further, it is the case that, even though there is no statutory definition of “dismissal” in the Act (unlike the Industrial Relations Act 1988 (Cth), which was referred to in Mohazab v Dick Smith Electronics Pty Ltd (No 2)(FC)(op cit)) that a dismissal in which the action of the employer is a principal contributing factor leading to the termination of the employment relationship is a constructive dismissal. It can also be put this way: the employee is dismissed if he/she is given no option but to leave.”
54 Of course, in order for there to be a dismissal, there must be a subsisting employment relationship. As the Full Bench of the Australian Industrial Relations Commission (AIRC) observed in Lunn v Department of Justice [2006] AIRC 756 at [25], the expressions ‘employment relationship’ and ‘employment contract’ are not exactly synonymous. The distinction was described at [27]:
Whatever may have been the position in the past, under the modern law, there can be no employment relationship without there also being a contract of employment in existence between the parties to the employment relationship. However, as the Full Court of the Federal Court in Brackenridge v Toyota Motor Corporation Australia Ltd made clear, the termination of a contract of employment does not necessarily result in the termination of the employment relationship between the parties to that contract of employment: if the parties enter, or are taken to have entered, a new contract of employment, the employment relationship continues notwithstanding the termination of the prior contract of employment. Thus, a “continuous employment relationship” is not inconsistent with a series of backtoback fixed term or ‘outer limit’ contracts, each of which takes effect according to its terms. On the other hand, as noted by Dixon J in Automatic Fire Sprinklers Pty Ltd v Watson, it is possible for a contract of employment, and thus an entitlement to wages, to survive a termination of the employment relationship.
55 In this case, though, Mr Gee does not suggest that the employment relationship existed beyond the terms specified in the fixed term contracts of employment. This was not a case of the type that Kiefel CJ, Keane and Edelman JJ contemplated in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 at [42] and following, of an employment relationship that is defined by factors outside the written contract, such as a collateral agreement, subsequent conduct effecting a variation or conduct that gives rise to estoppel or waiver. Accordingly, the remarks of their Honours at [43] are apt:
While there may be cases where the rights and duties of the parties are not found exclusively within a written contract, this was not such a case. In cases such as the present, where the terms of the parties’ relationship are comprehensively committed to a written contract, the validity of which is not challenged as a sham nor the terms of which otherwise varied, waived or the subject of an estoppel, there is no reason why the legal rights and obligations so established should not be decisive of the character of the relationship.
56 As observed above, Mr Gee’s case is that there was a subsisting employment relationship created by his acceptance of the 7 December 2021 offer of a fixed term contract, the terms of which were set out in the 7 December 2021 offer. Therefore, to establish his case, Mr Gee must first establish that he did accept the 7 December 2021 offer such that the employment relationship came into existence.
Did Mr Gee accept the 7 December 2021 offer?
57 It is stating the obvious to say that in order for a contract to come into existence, there must be an intention between the parties to create a legal relationship. There must be an offer by one party accepted by the other. There is a further requirement that the parties genuinely consent to the terms of the contract: Sappideen et al, Macken’s Law of Employment (Lawbook, 8th ed, 2016) at [4.40].
58 In this case, we have no doubt that each party desired a future employment relationship. That is clear from the fact that WACHS made the offer of a fixed term contract and Mr Gee’s multiple requests for a new contract in the lead up to 7 December 2021.
59 When it comes to the requirement for acceptance of an offer, acceptance ‘must be unqualified and must correspond with all the terms of the offer. If the offer is conditional, those conditions must be satisfied before there is acceptance’: Sappideen et al, Macken’s Law of Employment (Lawbook, 8th ed, 2016) at [4.100].
60 Mr Gee submitted that his 13 December 2021 email to Mr Durnin effected his acceptance of the 7 December 2021 contract, because it was in similar terms to his email of 6 October 2021, which, on his case, effected acceptance of the contract sent to him on that date.
61 Counsel for WACHS drew the Board’s attention to several of Mr Gee’s emails, which showed that Mr Gee was in furious disagreement with the contract’s conditions that he be vaccinated, such that there could be no express or implied acceptance of the 7 December 2021 offer.
62 Before determining whether Mr Gee accepted the offer, we must first determine what the terms of the offer were. The parties disagree as to the effect of clause 3 of the Contract. WACHS says that the clause is a clear and unambiguous condition that Mr Gee be vaccinated against COVID19: that it is a standalone condition.
63 Mr Gee says that the clause is ambiguous, and on a correct construction, it only requires vaccination to the extent that the Directions require vaccination. This construction is based on:
(a) the contra proferentem rule of construction;
(b) the context in which the clause appears, namely ‘sandwiched’ between other clauses which refer to the Directions; and
(c) the fact, known to the parties, that the same words were included in the 6 October 2021 contract, but Mr Gee was not, in the course of the performance of that earlier contract, required to provide evidence of being vaccinated.
64 The purpose of the construction exercise is to ascertain the objective intention of the contracting parties, and that must start with the natural and ordinary meaning of the words in the contract, read in light of the contract as a whole and the context in which the words appear.
65 We consider the contract term is clear and unambiguous. It has an ordinary, natural and definite meaning: the employee is required to provide evidence of vaccination against COVID19 or status as an exempt person. There is no suggestion the words are susceptible of more than one meaning or are obscure.
66 The words ‘for the avoidance of doubt’ make it clear that providing evidence of vaccination status or exemption is a condition of employment. These words do more than merely obviate the need to reproduce or spell out the requirements of the Directions (and other documents or instruments referred to). They spell out an independent condition.
67 Because we do not consider the term to be ambiguous, there is no place for recourse to the contra proferentem rule. The contra proferentem rule’s application is limited to circumstances where a clause is ambiguous, and even then, it applies only when all other rules of construction fail.
68 The structure of the clause does not displace the ordinary and natural meaning of the words used. Closely analysed, the structure supports the ordinary and natural meaning.
69 The Directions and any replacement Directions had the force of law under the Public Health Act 2016 (WA). Reference to the Directions in the employment contract did not create any condition or obligation which did not already exist under the Public Health Act 2016 (WA). Further, the Directions only apply to a person who is a ‘health care worker’ or ‘health support worker’ as defined. Compliance with the Directions cannot truly be a condition precedent to an employment contract coming into existence because they only apply once an employee has commenced an employment relationship. This context reveals that the intention of referring to the Directions in the clause is not to limit the ambit of words we are now considering but rather to provide a preamble to them.
70 The heading to the clause ‘COVID19 Vaccination Status’, is a further indication that the key concern of clause 3.3 is vaccination against COVID19, rather than a concern to incorporate the concepts, obligations and exemptions contained in the Directions.
71 The third factor Mr Gee relies upon, the parties’ conduct under the earlier fixed term contract, does not persuade us to a different construction either. We do not accept that WACHS waived or ignored the condition either when the earlier contract was entered into or during its term. The correspondence between the parties during the term of the earlier fixed term contract set out above makes it abundantly clear that WACHS was actively and persistently seeking satisfactory evidence of Mr Gee’s vaccination status at all times from 28 September 2021 onwards. The reason why Mr Gee was employed in this period without having supplied evidence of being vaccinated was because, consistent with the Direction’s application to Tier 3, WACHS had given a deadline for provision of such evidence as 30 November 2021.
72 If this was an occasion for recourse to extrinsic evidence as an aid to construing the contract, the emails between the parties in the lead up to the offer of 6 December 2021, referred to previously, overwhelmingly indicate the intention was that ongoing employment would be conditional upon Mr Gee being vaccinated. The extrinsic evidence reinforces the conclusion that vaccination was intended to be a standalone condition of the employment contract.
73 Our conclusion as to the correct construction of the 7 December 2021 contract is the end of the matter. As we understand Mr Gee’s case, he concedes that he did not agree to be vaccinated against COVID19, and did not agree to vaccination as a condition of his employment. The following exchange occurred during Mr Gee’s agent’s closing submission:
COSENTINO SC: Right. So as I understand it  let me see if I’ve got this right, and correct me if I’m  if I haven’t. But we would have to find that the contract was ambiguous as to whether or not it was a condition that Mr Gee be vaccinated in order for us to then find his email of 13 December clearly conveyed an intention to accept that ambiguous contract?
FIGIEL, MS: I agree.
COSENTINO SC: But if we find that the contract is clear, in its terms, as requiring vaccination, would you agree that the 13 December 2021 is not acceptance of a contract that requires Mr Gee to be vaccinated?
FIGIEL, MS: Because of his lack of action do you mean, or intent?
COSENTINO SC: Because of his lack of intent, yes.
FIGIEL, MS: Yes…
74 It cannot be said that Mr Gee consented to the terms of the offer as properly construed. Indeed, as WACHS has submitted, he remained in furious disagreement with those terms. Therefore, it is not possible for us to find that he had accepted the offer or that the offer led to the creation of an employment relationship.
75 This conclusion is fortified when close regard is paid to the email, which Mr Gee relied upon as evidence of his acceptance of the contract. We find the email cannot constitute acceptance because:
(a) It does not convey words of acceptance of the offer. It makes no reference to the contract at all and is not part of a chain of emails concerning the contract.
(b) The email, in context, is a communication about the lawfulness of the PARP and a plea to be able to continue to work from home and be paid.
(c) The request for a COVID19 risk assessment for the ICT department and Mr Gee’s home indicates that Mr Gee had not agreed to be vaccinated as required by the contract.
(d) Mr Gee’s reference to ‘trying to comply with the employer’s hurried deadline’ indicates he remained undecided about whether to be vaccinated and had made no definite decision to accept the offer.
76 Far from evidencing acceptance of the 7 December 2021 offer, the 13 December 2021 email is evidence of continued dispute, disagreement and indecision.
77 On that basis, we reject Mr Gee’s submission that an employment relationship was on foot as of 16 December 2021 by virtue of his acceptance of the 7 December 2021 offer. There was no conduct on his part which can be viewed as acceptance of the 7 December 2021 offer while he did not agree to be vaccinated.
Relevance of the PARP
78 WACHS’ case is that the employment relationship ended upon the expiry of the October 2021 fixed term contract. Although it was not Mr Gee’s case, we are willing to entertain the possibility that the employment relationship continued beyond the expiry of that fixed term contract on 30 November 2021. By purportedly placing Mr Gee on the PARP, WACHS may have acted to preserve the employment relationship, at least for the PARP’s duration, and to enable a period of time for the parties to finalise a new employment contract.
79 WACHS says that such a finding is not open because Mr Gee did not agree to being placed on the PARP, and the PARP was not otherwise indicative of ongoing employment as no work was performed or paid for during that time. On the contrary, Mr Gee was excluded from working.
80 While Mr Gee did not agree to the PARP, he was willing to remain as a WACHS employee and engage in a process for entering into a new contract. This may be enough to have preserved the employment relationship by way of a variation to the contract by an agreement to extend the fixed term to the end of the PARP period.
81 However, we do not consider it necessary to decide on this issue. Even if the employment relationship survived beyond 30 November 2021, this does not assist Mr Gee or lead to a finding that there was a dismissal. If the employment relationship continued, it did so only for the PARP period, which ended on 14 December 2021. The end of the employment relationship then came about not because WACHS dismissed Mr Gee but by the expiration of the 14day PARP period and Mr Gee’s failure to provide evidence of his vaccination status in that time. As we have found, as at 14 December 2021, the new contract had not been accepted by Mr Gee.
Mr Gee’s alternative dismissal submission
82 Mr Gee’s agent submitted for the first time on the second day of the hearing of the appeal that the dismissal decision was not the decision of 16 December 2021 to withdraw the offer of the contract, but rather the decision not to employ anyone who was not vaccinated. The submission was:
FIGIEL, MS: So because of the misinterpretation of the directions, the respondent had terminated the employment relationship with the appellant on that reason alone, that Mr Fares gave evidence that this was a good worker and he did a good job, and if the directions weren’t in place, he would still be working there now.
So in other words, had the respondent not taken the action that it did, the appellant would have remained in that employment relationship.
…
…So with the decision to be appealed, that  to tie this together and to answer this, is that there was a decision to not employ unvaccinated people, and so that came through the action of not offering contracts or terminating employment relationships.
…
…that the decision from the misinterpretation of the directions that unvaccinated staff would not be able to work is the decision to dismiss and by the action of either withdrawing an employment contract or to not offer further contracts or permanent contracts is because of the decision to dismiss the unvaccinated employee.
83 This reasoning seems to be an attempt to fit the case to the constructive dismissal formula expressed in Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 645, that a dismissal occurs when the action of the employer is a principal contributing factor leading to the termination of the employment relationship. However, the submission skips an essential step, that is, that there be a subsisting employment relationship. Here, where the future employment relationship had not yet come into being, the effect of the submission is that the dismissal decision was the decision to offer an employment contract on the condition that the employee be vaccinated. It is enough to state that proposition to dispense with it. It is not a ‘decision to dismiss’. Indeed it highlights the very difficulty that Mr Gee has in establishing his appeal is within the Board’s jurisdiction.
Conclusion concerning dismissal
84 We find that Mr Gee was not dismissed. The employment relationship ended by the expiration of a contract for a fixed term. Mr Gee did not accept ongoing employment before WACHS withdrew its offer, which it was entitled to do. The decision to withdraw the offer is not a matter which can be the subject of an appeal under s 80I(1)(d) of the IR Act.
85 This conclusion disposes of Mr Gee’s appeal because it means that the Board is without jurisdiction.
Working from home
86 As the Board is of the view that it does not have jurisdiction, there is no call to consider the other issues argued by the parties. However, in deference to the parties and the efforts made to ventilate all issues, we wish to briefly make our views known.
87 Mr Gee argued that if he had been dismissed because he was not vaccinated against COVID19, such dismissal was unfair and unreasonable because:
(a) he was, as at 30 November 2021, rostered to work from home for the next 10 weeks or so; and
(b) he could therefore perform his role without breaching the Directions because it did not require that he be vaccinated unless accessing a Tier 3 health care facility, which he would not have done.
88 It was not in dispute that the planned roster did not require Mr Gee to attend work at a place other than his home any time before 25 January 2022. That Mr Gee was not rostered to work any middle shifts was the combined result of having leave for three of the 10 weeks rostered, and having agreed with his coworkers to swap his middle shifts for workathome shifts.
89 Mr Gee did not persuade us that it was inevitable that he would have worked entirely from home in future, nor that it would have been unreasonable for WACHS refuse to allow him to work entirely from home. The employment contract, had it been concluded, was for a term beyond 25 January 2022. Mr Gee would ordinarily have been rostered to work middle shifts, from the Bunbury Tower, for some of the remaining contract term.
90 Further, the contract terms expressly required Mr Gee to work at any location based on WACHS’ operational requirements. Mr Fares provided an example of an instance where he had directed Mr Gee to work from the Busselton Hospital because his home computer connection had been lost.
91 Shift swaps were dependent on coworkers being available and agreeable to the swaps. While Mr Gee’s evidence was that coworkers had frequently wanted to swap their weekend shifts in the past, we do not accept that trend would have necessarily continued after 25 January 2022, particularly in circumstances of the growing community transmission of COVID19. Mr Gee’s coworkers may have been more covetous of the shifts they could work from home in those circumstances.
92 There were sound operational reasons for requiring the ICT Help Desk Team to work their middle shifts from the Bunbury Tower on a rotating basis. Mr Fares’ evidence, as described in paragraph [15] above, outlined the reasons for having a physical presence of ICT Help Desk Officers in the office.
93 Further, according to Mr Fares, one of the purposes of having a rotating roster was fairness and equity between employees. For WACHS to permit Mr Gee to work exclusively from home would mean that some of the middle shifts, and thus the ICT Help Desk service, would either be deprived of the benefit of the tasks that were performed on site as described in paragraph [15] above, or the burden would fall to Mr Fares and Mr Gee’s coworkers to redesign the 10week roster in a way that was not equitable. The roster would cease to have the even spread that it was designed to have in fairness to all employees. It would also cease to have the same degree of flexibility to enable cover for employees who are sick or wish to take leave to which they are entitled.
94 In short, Mr Gee’s submission that he could continue to work from home was either a best case scenario or it was based on Mr Gee’s interests alone without balancing the needs of WACHS’ business and Mr Gee’s coworkers. For WACHS to have done what Mr Gee expected it to do, would likely require WACHS to contravene Part 6 of the Guidelines which requires it to take into consideration operational requirements, leave liability and fairness and equity for employees.
95 Mr Gee’s case was focused on the ambit of the Directions and whether the Directions required he be vaccinated. He did not address the requirements of the Department of Health COVID19 Mandatory Vaccination and Vaccination Program Policy (Policy). That Policy mandated the requirement for all employees of WA health system entities, of which WACHS is one, to be vaccinated against COVID19, including being administered a Booster vaccination, unless the employee is an exempt person (clause 3.1; 3.2 of the Policy). The Policy made it mandatory for employees to be vaccinated, regardless of whether they worked from home or not.
96 The Guidelines supporting the Policy provided WACHS with a discretion to facilitate remote working on an interim basis where operationally viable. The Guidelines are not mandatory but are for the purpose of supporting the implementation of the Policy. Therefore, the Guidelines do not establish a right on Mr Gee’s part to be permitted to work remotely and not be vaccinated.
97 In fairness to Mr Gee, it is not surprising that he would focus on the Directions, given WACHS’ correspondence to him frequently referred to ‘the directions’ as the source of the requirement for Mr Gee to be vaccinated. No real attempt was made by WACHS to distinguish between the Directions, the Policy and the Guidelines or to explain how they were being applied in Mr Gee’s case. This is perhaps understandable given the circumstances facing WACHS management at the time: the need to put in place processes to ensure compliance with the Directions, dealing with a large number of employees, in circumstances involving both urgency and ongoing change. Nevertheless, WACHS’ processes and communications have added to the confusion and difficulties on all sides.
Considerations regarding remedy
98 Even if Mr Gee had overcome all of the above hurdles, we have doubts as to whether reinstatement could have been ordered in any event. This is particularly so in circumstances where the term of the fixed term contract offered to Mr Gee had expired before the hearing of this matter. The Board may ‘adjust’ a dismissal decision. To adjust a dismissal decision might involve quashing it, but it does not extend to formulating new contract terms. Quashing the decision would result in Mr Gee being reinstated to a role under a contract that has since expired, meaning he would render no service to WACHS. These considerations weigh against quashing the decision: Crabtree v Director General, Department of Education [2021] WAIRC 00538; (2021) 101 WAIG 1401 at [116].
99 Further, to quash a dismissal decision resulting in reinstatement of an employee to a position which the employee cannot perform, because their vaccination status would mean that they would be in breach of any of the terms of the employment contract, the Directions, or an employer’s policies would not be consistent with the requirement that the Board ‘act according to equity, good conscience and the substantial merits of the case…’: s 26(1)(a) of the IR Act.
100 As we have noted above, there was a difference between the parties’ respective evidence as to whether and the extent to which Mr Gee was given assurances about being engaged by WACHS on a permanent basis. It is not necessary for us to make findings about this issue. Mr Gee accepts that it would not eventuate until after a further fixed contract term, even if future permanency was certain. Mr Fares’ evidence was that at least two other employees were due for permanency ahead of Mr Gee, but that Mr Gee was likely in due course to have been considered for permanency. While permanency was more than a possibility and was likely, it would not have occurred during the term of the employment contract offered to Mr Gee on 7 December 2021.
Conclusion
101 Mr Gee’s appeal will be dismissed for want of jurisdiction.