APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 25 MARCH 2022

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00120

DELIVERED : Friday, 22 March 2024

FILE NO. : PSAB 31 OF 2022

Appellant

AND

COMMissioner of mAIN ROADS

Respondent

CatchWords : Industrial Law (WA) – Public Service Appeal Board – Dismissal for breach of discipline – Appellant's failure to comply with Employer direction to be vaccinated against COVID-19 – Whether Employer direction was reasonable and lawful – Appeal dismissed

Legislation : Industrial Relations Act 1979 (WA)
Occupational Safety and Health Act 1986 (WA)
Public Health Act 2016 (WA)
Public Sector Management Act 1994 (WA)

Result : Appeal dismissed

Representation:

Appellant : Ms B Conti-Nibali (in person)

Respondent : Mr R Andretich (of counsel)

Case(s) referred to in reasons:

Alexander James Marriot v Baptcare Limited [2022] FWC 300

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

Byrne and Frew v Australian Airlines Limited (1995) 185 CLR 410

Construction Forestry Mining and Energy Union v BHP Billiton Iron Ore Pty Ltd (2004) 84 WAIG 3787

Construction Forestry Mining and Energy Union v Mt Arthur Coal Pty Ltd t/a Mr Athur Coal [2021] FWCFB 6059

Deborah Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728

Gary Mark Raxworthy v The Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266

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

Jessica Heller-Bhatt v Director General, Department of Communities [2022] WAIRC 00719

Kazantzis v Patrick Stevedores Holdings Pty Ltd [2022] FWC 1576

Krishna Thavarasan v The Water Corporation [2006] WAIRC 04089; (2006) 86 WAIG 1434

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

Luke Conti-Nibali v Main Roads Western Australia [2023] WAIRC 00426

Minister for Corrective Services v Penelope Anne Fagan [2023] WAIRC 00984

Kathryn Roy-Chowdhury v Ivanhoe Girls Grammar School [2022] FWC 849

Safeta Kos v Director General, Department of Transport [2023] WAIRC 00298

Sanja Spasojevic v Speaker of the Legislative Assembly [2021] WAIRC 00641

Scott v Consolidated Paper Industries (WA) Pty Ltd (1998) WAIG 4940

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

Reasons for Decision

1         This is the unanimous decision of the Public Service Appeal Board (Board).

2         In this appeal, Brianna Conti-Nibali (appellant) applied to the Public Service Appeal Board (Board) to adjust the decision the Commissioner of Main Roads (Department), made to terminate her employment.

3         On 28 March 2022, the Department dismissed the appellant from her role as an engineering associate (dismissal), for refusing to comply with a direction to be vaccinated against COVID‑19 and to provide evidence of her vaccination status.

4         On 20 April 2022, the appellant filed an appeal against her dismissal (appeal). By way of relief, the appellant sought an order that would see her reinstated to her former position, with no loss of entitlements.

5         The Board convened a hearing across two dates; 16 and 22 November 2023. During the hearing the Board heard evidence from the appellant and a witness for the Department. The Board also received extensive submissions from the parties as well as exhibits.

6         In the paragraphs that follow, the Board provides its reasons as to why we have dismissed the appeal.

The appellant's employment with the Department

7         The appellant commenced employment with the Department as an engineering associate level 2/3 on Monday, 13 January 2014. The job role statement for the position which was attached to Exhibit R28 relevantly states under the heading ‘Dynamic Resourcing’:

The incumbent of the position may be required to perform any other role within the incumbent's level of skill, competence and responsibility as directed by the Managing Director of Main Roads to meet the organisation’s objectives and the incumbent’s development.

8         The appellant was employed on a permanent full-time basis. In addition to her contract of employment, the appellant’s wages and working conditions were covered by the Main Roads CSA Enterprise Agreement 2020 (EBA).

9         In the period 2 September 2019 to 4 October 2020, the appellant was assigned to the Roe‑Kalamunda Bridge and Road Construction Project, where she worked out of an office on a construction site.

10      Around this time, the appellant was also assigned to the Mandurah Traffic Bridge Replacement Project (Mandurah Bridge Project). This work required her to visit the job site to examine defects requiring remedial work.

11      From 5 October 2020 to 1 October 2021, the appellant was on maternity leave following the birth of her first child. Upon her return to full-time work, the appellant was assigned to the Causeway Pedestrian and Cycle Bridge Project (Causeway Bridge Project).

12      The appellant also continued to perform work managing the rectification of defects on the Mandurah Bridge Project, around one day per week, which the Department concedes was predominately office based. At this time the appellant was working out of the Office of Major Transport Infrastructure Delivery in Stirling Street, Perth (OMTID building).

13      It is not in dispute the appellant had no disciplinary history with the Department and that she was competent in her role. The appellant submitted and we accept, that she was committed to and loved her job. These findings are not, however, relevant to and have no bearing on the matters at issue in this case.

BCIW Directions

14      On 2 December 2021, the Chief Health Officer under the provisions of the Public Health Act 2016 (WA) (Public Health Act) issued a Public Health Order (Public Health Order); the Building and Construction Industry Worker (Restrictions on Access) Directions (No 2) which required, in the absence of a medical exemption, any building and construction workers entering a building and construction site to be vaccinated against COVID-19 (BCIW Directions).

15      The Department took the view that any employee who may be required to attend a building and construction site in the course of their work would have to be vaccinated against COVID-19. This requirement was then incorporated into a departmental COVID-19 Mandatory Vaccination Policy (policy).

16      To this end, the Department on 16 December 2021 sent a letter (Exhibit R5) to each of its employees in such roles, which included the appellant, advising them of the requirement under the policy to be vaccinated and to provide evidence of their vaccination status by 1 January 2022 (Employer direction).

17      Employees who received the Employer direction were required to have at least two vaccinations; the first by 1 January 2022 and the second by 31 January 2022. Proof of vaccination status or alternatively, a valid exemption from vaccination was required.

Appellant's response to the Employer direction

18      On 22 December 2021, the appellant sent a letter (Exhibit R6) to Michelle Bastian (Bastian) and Hayden Falconer (Falconer), both of whom work in the Department’s Human Resources section (HR). In her letter the applicant asserted that she did not believe the BCIW Directions applied in her case, stating:

 "I note you’ve referenced the Building and Construction Industry Worker (Restrictions) on Access Directions (No 2) as applying to myself.

 However, I am currently in an office-based position and not due to carry out activities or undertake services at a building and construction site until late 2022."

19      By this letter, the appellant contended she was not at that time, under an obligation to be vaccinated or to disclose her vaccination status.

Department's letter of 30 December 2022

20      On 31 December 2022, Mr Falconer sent an email to the appellant attaching a letter (Exhibits R7 and R8) from Neville Willey, Acting Executive Director Human Resources (Willey).

21      By the letter, which was dated 30 December 2022 (30 December letter), Willey advised the appellant that if she could not provide evidence, she had received the first dose of an approved COVID-19 vaccination, she would not be able to undertake any work for the Department or attend any of its workplaces.

22      The 30 December letter confirmed the appellant would be given a two-week cooling off period before it would commence any disciplinary action for not complying with the Employer direction (Preliminary Access Restriction Period). The letter indicated the appellant would not be paid in this period.

23      Significantly the letter also warned the appellant that she would face disciplinary action if she remained unvaccinated or without a valid exemption at the end of the Preliminary Access Restriction Period, which could result in her dismissal.

Appellant’s response to the 30 December letter

24      On 4 January 2022, the appellant sent an email to Mr Falconer (Exhibit R10) in which she disputed the BCIW directions applied to her. The appellant maintained that she would not be required to go onto a building and construction site until the ‘second half of 2022’.

25      On 5 January 2022, the appellant sent a further email to Mr Falconer (Exhibit R11) in which she continued to assert the BCIW directions did not apply to her. However, the difference between this email and her email of 4 January, is that it also raised issues regarding the lawfulness of the Employer direction and the safety of the vaccine.

26      The appellant in her 5 January email, alleged the Department was taking adverse action against her. She requested the Department take part in mediation before the WAIRC.

27      The appellant pressed her request for mediation and maintained the BCIW directions did not apply to her in a further email she sent to Mr Falconer (Exhibit R13) on 5 January 2022.

Department’s 5 and 6 January responses

28      On 5 January 2022, Mr Falconer in an email to the appellant (Exhibit R12), advised the Department was not prepared to take part in mediation because it was ‘not part of the Department’s COVID-19 Policy or Guidelines’.

29      A day later, on 6 January 2022, Ms Bastian sent the appellant a letter (Exhibit R14) in which she confirmed the Department’s view the appellant had breached a lawful direction by not providing either an exemption or evidence that she had been vaccinated.

30      Ms Bastian’s letter confirmed the appellant would now be subject to the Preliminary Access Restriction Period and would not be paid while she remained away from work. She did, however, advise the appellant she would be permitted to utilise any accrued leave entitlements until she received an exemption or the vaccine.

Appellant continues to dispute the Employer direction

31      In emails the appellant sent to Mr Falconer and Ms Bastian on 6, 7 and 13 January 2022 (Exhibits R16, R17 and R20), the appellant continued to dispute the Employer direction applied to her.

32      The appellant contended the Department was required to undertake a risk assessment. She also asserted the requirement for her to be vaccinated was discriminatory because there were other workers who worked in the OMTID building where she was working, who were not subject to the Employer direction.

Department maintains its position

33      Despite the appellant’s opposition to the Employer’s direction, the Department’s position did not waiver. An email Ms Bastian sent to the appellant on 12 January 2022 (Exhibit R19), provided the following explanation:

“As advised in previous correspondence the requirement from Main Roads for employees to be vaccinated is in accordance with the BCIW and other PH Act directions. These requirements are prescribed in the Policy and Guidelines.

Although I acknowledge that you feel 'discriminated and bullied by HR', the directions you have received to be vaccinated is because OMTID has determined that your position is covered by the BCIW directions. You are being treated the same as other employees similarly covered by the BCIW and other PH Act directions employed by Main Roads. Notwithstanding, Main Roads has determined that a number of employees at OMTID are not covered by the BCIW directions as there is no expectation that they will be required to attend sites currently or in the immediate future.

Accordingly, Main Roads refutes your claim that we have taken any adverse action against you.

It is likely that the BCIW directions will continue to apply for the foreseeable future and therefore it remains a reasonable expectation that you will need to be attend [sic] building and construction sites with little or no notice. Given the workload and number of projects underway and the expected workforce impacts post 5 February 2022, your current office-based duties as part of the Causeway Project are likely to change. I am also advised that you were due to attend site for this project in the second half of 2022.

As previously advised, the Public Health Act does not provide for you to refuse to undertake duties including attending building and construction sites as required.

Your OSH concerns including those sent to Mr Keating (see attached) have been addressed in previous correspondence. In summary, there is no requirement to undertake a risk assessment in a defined format but rather there is a requirement for Main Roads to identify hazards and to ensure, amongst other requirements, a safe workplace through consultation and the provision of PPE to ensure workers are not exposed to hazards. The actions taken by Main Roads through our COVID Safety Plan and other actions have met our statutory obligations.

The Chief Health Officer has mandated vaccination requirements including the use of specific vaccines. Main Roads will not, nor is required to under OSH requirements, to undertake further risk assessments of these vaccines approved by the CHO.”

34      On 28 January, Mr Willey sent an email to the appellant (Exhibit R22) in which he reiterated the Department’s position. More importantly, Mr Willey warned the appellant that because the Preliminary Access Restriction Period was at an end, she was facing disciplinary action, which could include her dismissal.

35      Undeterred, the appellant in a reply email she sent on 28 January (Exhibit R23), continued to press her arguments about the Employer’s direction.

36      Following this, Katherine Davie, Acting Manager HR Communities of Expertise (Davie) sent a letter to the appellant the same day (Exhibit R25), which commenced disciplinary action against the appellant under s 80A of the Public Sector Management Act 1984 (PSM Act).

Disciplinary action

37      In Ms Davie’s letter of 28 January 2022, which was headed 'Suspected Breach of Discipline – Opportunity to Respond', the Department alleged the appellant had refused to comply with both a lawful order and departmental policy to be vaccinated and/or to present evidence of her vaccination and/or medical exemption (misconduct allegation).

38      The purpose of Ms Davie’s letter was twofold. First, the letter warned the appellant she could face disciplinary action, if the misconduct allegation was established, which could include her dismissal.

39      Second, Ms Davie’s letter gave the appellant an opportunity to provide her response to the misconduct allegation.

Appellant's response to the misconduct allegation

40      On 1 February 2022, the appellant provided a 10-page response to the misconduct allegation (Exhibit R26) in a reply letter to Ms Davie. The appellant continued to maintain that she did not have to be vaccinated because her role did not at that time, require her to attend a building and construction site.

41      The appellant also argued the Department lacked the power or the authority to direct her to be vaccinated. The appellant also continued to press for a risk assessment so that she could 'evaluate if OSH law has been complied with'.

Department foreshadows dismissal

42      On 25 February 2022, Belinda Stopic, Acting Executive Director Infrastructure Delivery (Ms Stopic), sent a letter (Exhibit R28) to the appellant headed 'Disciplinary Process – Proposed Course of Action' (show cause letter).

43      In the show cause letter, Ms Stopic confirmed the Department had concluded the appellant refused to comply with both a lawful order and the Department’s policy to be vaccinated and to present evidence of vaccination or a medical exemption.

44      The show cause letter indicated the Department had determined the appellant had committed an act of misconduct for which it was proposing to dismiss her.

45      Ms Stopic addressed the appellant’s response to the misconduct allegation in the show cause letter in the following way:

“A review of your response found that you believe you are following the Building and Construction Industry Worker (Restriction on Access) Directions (No.3) (BCIW directions) by refusing to attend sites covered by these directions.

Main Roads review of the relevant information including a letter from yourself on 22 December 2021 and the Engineering Associate Job Role Statement (JRS), has confirmed that attendance to site covered by the BCIW directions is an inherent requirement of your position.

Furthermore, Main Roads reserves the right to deploy resources to such sites with little to no notice based on operational requirements. Main Roads has repeatedly advised that employees must comply with all reasonable directions from their employer to undertake their duties.

As you have failed to provide evidence of a vaccination or an exemption, you are unable to fulfill the full requirements of your position as Engineering Associate.

On that basis, Main Roads proposed course of action is to proceed to termination of your employment. You have the opportunity to respond to the proposed course of action, no later than 4.00pm Tuesday 8 March 2022.”

46      As set out in the preceding extract, the appellant was given an opportunity to respond to her proposed dismissal.

OSH application

47      On 4 March 2022, the appellant filed an application with the Occupational Safety and Health Tribunal (OSH Tribunal) in OSHT 1 of 2022.

48      In this matter, the appellant alleged the Department had unlawfully stopped her pay when she refused to follow an instruction to be vaccinated, which the appellant said she reasonably believed was unsafe. The appellant claimed her pay was stopped despite her being ready and available for work.

49      The appellant sought an order for payment under s 28 of the Occupational Safety and Health Act 1986 (OSH Act) on the grounds the Employer direction exposed her to a risk of imminent and serious injury or imminent and serious injury to her health.

50      In addition, the appellant in OSHT 1 of 2022 sought the following further relief:

1. I seek the Tribunal to determine whether the Employer is obligated to comply with OSH Law, or whether the Employer’s Instruction has originated from the Public Health Direction, and therefore is exempt from OSH law compliance.

2. If the Employer is obligated to comply with OSH Law when issuing the Medical Procedure (Vaccination) Instruction, I seek for the Tribunal to determine if the Employer has followed OSH law obligations in order to mandate a Medical Procedure (vaccination) as a condition of employment.

3. I request an order requiring my Employer to backpay me for all hours I have been prevented from accessing my workplace due to the Employer’s alleged non-compliance with OSH law which led me to be unable to risk assess the Medical Procedure Instruction in any more detail than my reasonable grounds (as informed by the Manufacturer and Australian Govt Dept of Health) that the hazard posed an inherent risk of injury/death that was imminent upon inoculation.

4. I seek the Tribunal to refer any confirmed breach of OSH law to WorkSafe for prosecution.

5. I seek the Tribunal, where applicable, to instruct the Employer to complete an OSH Risk Assessment using the Department of Transport mandated Risk Matrix, and the Australian Government’s COVID-19 case numbers and statistics and COVID-19 vaccination injury data.

6. I seek an order for any damages which the Tribunal may believe are applicable in this matter.

Appellant's dismissal

51      On 8 March 2022, the appellant sent a response to the letter from Ms Stopic (Exhibit R29), in which she continued to challenge the Department’s authority to direct her to be vaccinated.

52      Following the appellant’s response, the Department, in a letter from Des Snook, Acting Manager of Main Roads dated 25 March 2022 (Exhibit R31), advised the appellant of its decision to terminate her employment (dismissal letter).

53      In its dismissal letter, the Department confirmed the appellant was being dismissed for failing to comply with a reasonable and lawful direction. The Department also advised it would pay the appellant a month’s salary in lieu of notice and any remaining entitlements.

The PSAB appeal

54      On 20 April 2022 the appellant filed an appeal against her dismissal. In her Form 8B Notice of Appeal against her dismissal (notice of appeal). By way of relief the appellant sought the following:

1. I seek the Board to determine if my Employer is exempt from substantiating if their Work Instruction is lawful and reasonable

2. To determine whether my Employer’s Work Instruction is lawful and reasonable.

3. To determine whether my Employer has conducted a fair and unbiased disciplinary investigation in accordance with the Commissioner’s Instruction No 3 and Public Sector Commission’s Disciplinary investigations under Part 5 of the PSM Act – A guide for agencies.

4. To determine if my Employer has followed their own procedures including compliance with risk assessment obligations.

5. To determine if I have complied with the WA Government Chief Health Officer Restriction on Access Directions.

6. I am seeking reinstatement of my Employment including continuation of my entitlements from 25 March 2022.

55      In her notice of appeal, the appellant stated a dispute she had raised in OSH 1 of 2022 was the 'centre of my defence for non-compliance with the Employer issued Medical Procedure (Vaccination) Direction'.

Appeal deferred while OSHT 1 of 2022 decided

56      Instead of pursuing the appeal against her dismissal, the appellant initially opted to pursue her application in OSHT 1 of 2022.  As a result, and at the appellant’s request, the appeal was deferred pending the outcome in OSHT 1 of 2022.

57      OSHT 1 of 2022 was allocated to Commissioner Emmanuel of the OSH Tribunal, who programmed and listed the matter for hearing.

58      On 15 December 2022 Commissioner Emmanuel issued her reasons for decision OSHT 1 of 2022 and dismissed the application. The Commissioner held the OSH Tribunal did not have the jurisdiction to hear the dispute the appellant had raised: Brianna Conti-Nibali v Main Roads [2022] WAIRC 00844.

59      Upon the issuance of this decision, the appellant asked for the appeal to be listed for hearing. Following this, the Board programmed the appellant’s case, having regard to the parties and witnesses’ availability.

Principles to be applied in the appeal

60      The appeal is brought under s 78 of the Public Sector Management Act 1994 (WA) (PSM Act) and s 80I(1)(b) of the Industrial Relations Act 1979 (IR Act).

61      Part 5 of the PSM Act applies to public service officers and other prescribed employees (public sector employees) in relation to any suspected breaches of discipline, including acts of misconduct.

62      Under s 78 of the PSM Act, a public sector employee may appeal a decision to take disciplinary action to a Public Service Appeal Board. The Board is a constituent authority of the Commission and exercises jurisdiction under the IR Act when hearing and determining such appeals. Under s 80I of the IR Act, the Board may ‘adjust’ the matters referred to in s 80I(1).

63      Under s 80 of the PSM Act, a public sector employee who commits an act of misconduct commits a breach of ‘discipline’ and is liable to face disciplinary action. Section 80A provides that ‘disciplinary action’ includes a reprimand, fine, transfer, reduction in remuneration or classification and dismissal. Section 82A sets out how an employing authority deals with a disciplinary matter.

64      Section 26(1)(a) of the IR Act applies to the exercise of the Board’s jurisdiction. It requires the Board to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms.

65      The Board is empowered to review the Department’s decision de novo: see Deborah Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728; (2017) 97 WAIG 1525(Harvey).

66      This means the Board can decide the matter afresh, on the evidence before it, not merely based on whether the Department made the right decision available to it at the time: Safeta Kos v Director General, Department of Transport [2023] WAIRC 00298 (Kos) at [15].

67      It also means the Board has much greater scope to substitute its own view for that of the Department. In the case of disciplinary action for misconduct, it is for the employer to establish on the evidence that the misconduct occurred: see Harvey at [24] – [25] citing Gary Mark Raxworthy v The Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266; Krishna Thavarasan v The Water Corporation [2006] WAIRC 04089; (2006) 86 WAIG 1434. Also see Sanja Spasojevic v Speaker of the Legislative Assembly [2021] WAIRC 00641 (Spasojevic No 1) at [36] – [37].

68      When determining matters de novo, the Board makes its own decision as to whether the appellant engaged in the misconduct alleged: see Harvey at [31] and [65].

69      The Department’s decision is not to be totally disregarded by the Board. However, a hearing de novo does not necessarily mean the Board must re‑hear every aspect of the allegations afresh: see Kos at [17].

70      The matters to be considered in the appeal will largely depend on the circumstances of the particular case: see Harvey at [29] – [30] and Spasojevic No 1 at [40] – [44].

Evidence and submissions

71      In the lead up to the hearing, the Board directed the parties to file outlines of evidence and submissions: Brianna Conti-Nibali v Main Roads [2023] WAIRC 00169.

72      In relation to these directions, the appellant, who was self-represented, filed two lengthy outlines of submissions; the first of which was some 389 pages long.

73      Although not required, the appellant lodged a second lengthy outline in response to the submissions the Department filed. This outline was 103 pages long. In comparison, the Department filed a seven-page outline.

74      During the hearing, the Board heard evidence from the appellant. Ms Stopic provided evidence as a witness for the Department.

75      Both witnesses were cross-examined about their evidence. A summary of the evidence they gave is set out in the paragraphs that follow.

Appellant’s evidence at the hearing

76      The appellant who is currently 33 years old, said she commenced employment as an engineering associate with the Department in January 2014. The appellant holds a Civil and Structural Engineering Advance Diploma.

77      The appellant said that prior to her dismissal in March 2022, she was working as a design coordinator and that she had been assigned to the Causeway Bridge Project.

78      In her role as design coordinator, the appellant said she liaised with internal and external stakeholders. Relying upon their expertise, the appellant sought their feedback on the design of the projects she was involved in.

79      The appellant said some of her duties included preparing tender documentation, liaising with representatives from the Aboriginal community and with contractors. The appellant said it was her role to send out relevant documentation to the various groups of people involved in a project.

80      The appellant said that from May 2021 until the start of October 2021, she was off work on maternity leave. Upon her return to work, the appellant said she was assigned a line manager/project director, which on this occasion was Mike Kapitola. The appellant said she was allocated to the Causeway Bridge Project under Mr Kapitola’s supervision.

81      The appellant stated that in the last few weeks of December 2021, she became sick. The appellant said that she tried to work from home. She also said that at or about the same time, the appellant and one of her colleagues were given permission to work from home.

82      The appellant said she was given this permission as her commuting arrangements were affected by disruptions to train services. The appellant said the approval she was given to work from home applied from December 2021 to the start of January 2022.

83      The appellant gave evidence that at or around the same time, Mr Kapitola told her the Causeway Bridge Project was going to be delayed. The appellant said the resulting delay would push the construction schedule back. The appellant said that according to Mr Kapitola, construction on the Causeway project would not begin until September 2022.

84      In her evidence, the appellant confirmed she received the Employer direction. The appellant said that when she received the Employer direction, she was working in the OMTID building.

85      The appellant said she did not have too many concerns about the letter because she thought it had been issued to her in error. The appellant said her project team consisted of a team of three people, each of whom reported to Mr Kapitola.

86      The appellant said one of the members of her team, who was about to go on maternity leave and would not be required to attend a construction site did not receive a letter directing her to be vaccinated.

87      The appellant said that she first wrote to HR about the direction for her to be vaccinated on or around 22 December 2021. She said she sent her correspondence to Mr Falconer, in HR. The appellant said she thought the correspondence she received from HR was automatically generated and did not apply to her.

88      The appellant gave evidence about one of her colleagues, Kay Morgan, who she worked with in the OMTID. The appellant said Ms Morgan who was upset that she had been directed to be vaccinated, was successful in having the direction withdrawn because she was not scheduled to attend a construction site.

89      The appellant said the work of Ms Morgan as a project support officer, was different to the work the appellant performed. The appellant said although the work Ms Morgan performed was mainly administrative work which she was performing in the OMTID building, Ms Morgan could have been assigned to work on a construction site.

90      The appellant said that when she became aware the letter Ms Morgan received directing her to be vaccinated, was withdrawn, she asked Mr Kapitola if the direction the Department had sent to her could also be withdrawn.

91      The appellant said Mr Kapitola told her that he would speak with Ms Stopic on the matter. The appellant said that on 6 January 2022, she received a phone call from Mr Kapitola in which he confirmed he had spoken to Ms Stopic and that she would speak to Mr Falconer.

92      The appellant gave evidence that following her conversation with Mr Kapitola, she thought she would not have to worry about the direction to be vaccinated because Ms Stopic would sort the matter out with Mr Falconer.

93      The appellant said that from 7 January 2022, she heard nothing further from Ms Stopic or Mr Kapitola. The appellant said that it seemed from the correspondence that HR was 'running the show from that point on'.

94      The appellant gave evidence that on 5 January 2022, while she was working from home Mr Falconer in an email, directed her to cease work. The appellant said she followed this direction even though her work at the time would have been at the OMTID building. The appellant said she initiated an OSH dispute with the Department on 7 January 2022 following this direction.

95      The appellant said all her communications with the Department from 7 January 2022 up until her dismissal, were by way of email and letters. Although the appellant said that she had never had a phone call from her employer, she also said that she refused to answer the phone because she had heard from her brother, Luke Conti-Nibali, that Mr Falconer was not very pleasant.

96      The appellant gave evidence that she had insisted in an email that all her communications with the Department were to be ‘by email or letter'. The appellant accepted the exhibits were representative of the communications between the parties.

97      The appellant gave evidence that she did not go and see a doctor about obtaining an exemption from the vaccination. The appellant said she had heard that it was difficult to obtain one and that most doctors were not writing exemptions.

98      The appellant gave evidence that it was her view there was no point in her going down the route of an exemption and that she had decided to instead focus on her argument that the BCIW directions did not apply to her.

Appellant’s cross-examination

99      The appellant was cross-examined by Department’s counsel, Mr Andretich.

100   Mr Andretich asked the appellant if part of her role required her to attend a construction site. The appellant responded by saying:

"Ah, not at that time, no."

101   Under further cross-examination, the appellant conceded that her job as an engineering associate required her to attend construction sites from time to time.

102   When questioned about when she became aware the Department had determined it would be necessary for engineering associates to be vaccinated, the appellant disagreed that it was as early as October 2021.

103   While the appellant said she became aware in late November 2021 that HR had started identifying which employees would be covered by the BCIW directions, she maintained the Department had possibly identified workers incorrectly.

104   The appellant admitted that when the Employer direction was issued to her, she had already decided that she would not be vaccinated. On this, the appellant was asked about whether the advice she had received from doctors when her child became ill following vaccinations, had influenced her decision not to be vaccinated.  The appellant said;

“I had decided the risk was too high at the present time”.                                                           

105   When asked about whether Ms Stopic, could have had assigned her to work projects other than what she was doing on the Causeway Bridge Project, the appellant agreed that she could have been assigned to other work. When conceding the point, the appellant said,

"If she felt I was under-utilised."

106   Mr Andretich questioned the appellant about whether she needed to be available at short notice to attend other construction sites. The appellant said;

"Ah, human resources said that yes."

107   Mr Andretich then put to the appellant that she would not have been available to attend a site at short notice because she was not vaccinated. Suggesting a difference in the directions from what HR told her and what her line mangers directed, the appellant said:

"Ah no, but they don't assign me duties, my branch does."

108   When questioned further about this, the appellant stated that if she was being assigned to a different project that required her to attend a construction site, she would have been given notice. The appellant said this didn’t happen because it ‘wasn’t a possibility’ that she would be assigned to a different project.

109   The appellant admitted during questioning by Mr Andretich that she would not have been able to predict when the BCIW directions would be revoked.

Ms Stopic's evidence

110   Ms Stopic gave evidence that she commenced employment with the Department in February 1992. She currently works as the Acting Executive Director of Infrastructure Delivery.  In this role, Ms Stopic oversees $1.6 billion worth of work on road and bridge infrastructure projects. Ms Stopic said she oversees approximately 140 employees.

111   Ms Stopic gave evidence about the managerial staff under her control. She confirmed Mr Kapitola, in his role as a project director, reports directly to her. Ms Stopic gave evidence about the correspondence from the Commissioner of Main Roads, regarding instructions for employees to be vaccinated in December 2021.

112   Ms Stopic explained that she was told by the Executive Director of HR to identify positions that would be site-based. She said this occurred around 16 December 2021. Ms Stopic identified engineering associates and project contract managers as falling into this category because they are involved in both procurement and onsite construction works. She said:

"If you are on procurement, you are about to go out on site."

113   Ms Stopic described the core business of Main Roads is to ‘deliver projects.’ She said that while the Department does have some support staff that are located in either the head office or the OMTID building, engineering associates, project contract managers, and project directors were required to attend construction sites because they are involved in the delivery of works.

114   Turning to the appellant's position, Ms Stopic accepted that she had been assigned to the Causeway Bridge Project. When asked whether the appellant would have needed to attend a construction site in the foreseeable future, Ms Stopic explained that because the appellant was involved in procurement, she would have had to go on site.

115   Ms Stopic gave evidence that the appellant in her role as an engineering associate, had throughout her career, been located onsite. Ms Stopic also said there were two projects the appellant was allocated to, one of which was the Causeway Bridge Project. Ms Stopic explained that when allocating staff to the various project teams, she tried to keep existing teams together.

116   Ms Stopic said engineering associates are sent out onsite, after a contract is awarded. Ms Stopic said the procurement process is completed when a contract is awarded. She said that after a contract is awarded it would usually take around three months from the awarding of contract before employees are sent to site on a full-time basis.

117   Ms Stopic gave evidence that at the time the Employer direction was issued, it was expected the contract for the construction of the Causeway Bridge Project would be awarded at the end of January 2022. Ms Stopic said that at that point in time, it was expected the appellant would be required to attend work onsite in April 2022.

118   Ms Stopic was questioned about the construction schedule, which the respondent disclosed to the appellant by way of discovery prior to the hearing. The document was admitted into evidence and marked as Exhibit A3.

119   When questioned about whether the appellant would have been required to go onsite for the Causeway Bridge Project, as at the date of her dismissal in March 2022, Ms Stopic, referring to Exhibit A3, said:

"I would not have expected her to go out on site probably until about July, looking here."

120   Ms Stopic gave evidence the contract for the Causeway Bridge Project was not awarded until 3 May 2022. When asked whether there would have been enough work on that project after the appellant was dismissed, Ms Stopic said that on the date of her dismissal, there was less work because commercial negotiations for the project were protracted.

121   Ms Stopic explained that in situations where the appellant was not fully occupied, the appellant would have been placed on another project with Mr Kapitola. Ms Stopic said it would have been likely the appellant would have been assigned work on the Smart Freeways project because Mr Kapitola was in charge of this project, and he was the manager the appellant reported to.

122   Ms Stopic gave evidence that she believed the appellant would have been ‘light on for work’ until the contract for the Causeway Bridge Project was awarded.

123   When asked by Mr Andretich, whether there was an immediate need for the appellant to be vaccinated, Ms Stopic said the following;

"Her position is to go out onsite, just like the rest of the engineering associates, the project managers, the project directors and including myself and my managing director as well, because we deliver works."

124   When asked if the appellant needed to be vaccinated even if there was no foreseeable need for her to attend site in the next six months, Ms Stopic responded;

"But that was not my position to know."

125   Ms Stopic gave evidence the appellant worked in the Infrastructure Delivery Directorate (ID Directorate) where there were 77 employees. She said that as at 1 December 2022, 15 out of 77 were not vaccinated, of which Ms Stopic was one.

126   Ms Stopic explained that because the percentage of employees in the ID Directorate who did not want to get vaccinated was as high as 25%, the Department had decided that it was not prepared to make exceptions.

127   Ms Stopic said that even though she had to attend sites less frequently than the appellant, she accepted that it was a requirement of her employment and decided to comply with the direction to be vaccinated.

128   Ms Stopic gave evidence that engineering associates are required to be deployed onsite at short notice. She said the Department must be able to move people around based on workload. Ms Stopic said that she did not like to have anyone idle.

129   Ms Stopic explained decisions on the projects employees may be moved to are discussed in resource meetings. She said these meetings were held every 4 - 6 weeks, depending on need.

130   Ms Stopic said there were no Main Roads employees that she was aware of, who were given approval to work from home indefinitely. Ms Stopic said that when Mr Kapitola gave the appellant and another employee permission to work from home early January 2022, it was on the assumption the appellant would have been vaccinated.

131   When questioned about whether Mr Kapitola had asked Ms Stopic whether there was something she do could to withdraw the direction to the appellant to be vaccinated, Ms Stopic said:

"We were not making any special allowances for anyone because if you allow for one, you allow it for others in the organisation and as I said, we had 15 sometime after 1 December, who did not want to be vaccinated at that time in my directorate, of which two were not vaccinated at the end."

132   When asked about whether employee Kay Morgan was treated differently, Ms Stopic explained that Ms Morgan was employed as a project support officer on a contract basis, for the procurement phase of the Manuwarra Red Dog Highway Project. She said the contract for that project was close to being awarded, and that once this had occurred it was unlikely Ms Morgan would have been deployed to the project for the construction phase.

133   Ms Stopic denied helping Ms Morgan avoid the direction to be vaccinated. Ms Stopic also said Ms Morgan was not employed in an onsite role. Ms Stopic explained that Ms Morgan's skill set was very different to the appellant’s. She said the appellant had a technical skill set in her role as an engineering associate and that she was permanently employed. Ms Stopic said Ms Morgan was employed on a contract basis to perform administrative work.

Ms Stopic cross-examined

134   The appellant cross-examined Ms Stopic about the project schedule for the Causeway Bridge Project. Ms Stopic admitted that as at December 2021, it was known there would be a delay to the awarding of the contract. However, Ms Stopic maintained that it was still expected that it would happen by 28 January 2022.

135   Ms Stopic acknowledged that due to the delay in awarding the contract, other stages of the Causeway Bridge Project were pushed out. Ms Stopic maintained that if the contract had been awarded in January, some work would have started in April 2022.

136   When the appellant asked Ms Stopic about the work, she would be performing on the Causeway Bridge Project, Ms Stopic responded by explaining the appellant would have been 'imbedded in the alliance'.

137   Ms Stopic explained that because the Causeway Bridge Project was an alliance project, the appellant would be working alongside employees of the contractor which the Department was in an alliance with. Ms Stopic explained that while the appellant's work duties in an alliance may change, her substantive position with the Department would remain unchanged.

138   In examination, Ms Stopic re-stated her evidence that the appellant's position required her to visit and be deployed to construction sites for which she had to be vaccinated.

139   Ms Stopic agreed with the appellant the Department had some positions that did not require employees to be vaccinated because they were not required to go onsite. However, Ms Stopic maintained her evidence that engineering associates were required to go onsite and for this reason had to be vaccinated.

140   The appellant asked Ms Stopic if she was aware of situations where employees who were directed to be vaccinated, did not need to attend construction sites while the BCIW directions were in effect. Ms Stopic responded by saying at the time the Department issued the Employer direction, the Department believed there would be an ongoing need for employees to attend construction sites for which they would have to be vaccinated.

141   When questioned by the appellant about whether Ms Stopic held any discussions with anyone about her vaccination status, Ms Stopic answered that she had looked for alternative positions to move the appellant to but was advised that she was unable to make exceptions. Ms Stopic answered:

“We weren't going to make rules for one. We all had to be vaccinated because we work onsite.”

142   The appellant asked Ms Stopic about whether she had issued instructions to Mr Kapitola to re‑allocate her to work on an active construction site away from the Causeway Bridge Project. In her answer, Ms Stopic confirmed the appellant was assigned to the Causeway Bridge Project, but said the appellant was allocated to the Smart Freeway Project.

143   Ms Stopic said the appellant was allocated to the Smart Freeway Project as a ‘backup.’ Ms Stopic said it was unlikely the appellant would have been allocated a different project director, and that if she was given work on a backup project it would have only been for a short period of time. Ms Stopic said:

  “The whole idea is to make sure your – you have got work at all times.”

144   Later in her cross-examination, Ms Stopic said:

“It was unlikely you were going to be placed on another project but if you had no work, you would have been placed on another project because your role is working in the Infrastructure Delivery Directorate. We deliver projects.”

Evidence preferred

145   To the extent there was a conflict in the evidence between the appellant and Ms Stopic, the Board prefers the evidence of Ms Stopic.

146   In her senior management role Ms Stopic was far more qualified to give evidence about the requirements of the appellant’s role and the operational needs of the Department.

147   The Board prefers Ms Stopic’s evidence because ultimately much of it was not able to be challenged.

148   While the Board does not believe the appellant was untruthful in her evidence, under cross-examination, she was very careful to only provide answers that best suited her arguments.

149   Ms Stopic on the other hand was more direct in her evidence. While she admitted to matters that gave strength to the appellant’s argument, Ms Stopic also provided clarity on the requirements of the appellant’s role, which was missing from the appellant’s evidence.

Appellant’s submissions

150   Despite the length of her outlines of submissions, it was possible to break the appellant’s argument down to a number of discrete arguments.

151   In order, the appellant submitted that the BCIW directions did not apply to her because she had been assigned to work on the Causeway Bridge Project where there were no actual site works underway.

152   The appellant submitted that at the time the Department directed her to be vaccinated, her work on the Causeway Bridge Project was in the OMTID building where she did not have to be vaccinated.

153   The appellant submitted the necessity for her to attend the Causeway Bridge Project would not have arisen until the end of 2022.  In these circumstances, the appellant submitted both the BCIW directions and the Department’s policy, did not at that time, require her to be vaccinated, as both instruments only imposed an obligation to be vaccinated on those employees who were attending a building and construction site.

154   The appellant disputed there was evidence the Department would have required her to attend a building and construction site before the later part of 2022. This included her attendance at the Mandurah Bridge because it was no longer an active construction site. To this end, the appellant relied upon the construction schedules in Exhibit A3

155   Relying upon the decision of a Full Bench of the Fair Work Commission (FWC) in Construction Forestry Mining and Energy Union v Mt Arthur Coal Pty Ltd t/a Mt Arthur Coal [2021] FWCFB 6059 (Mt Arthur), the appellant submitted that because the BCIW directions did not apply to her, the Employer direction was not validly made because the Department had not properly consulted employees before the direction issued.

156   More specifically the appellant submitted the Department did not discharge its obligation under the OSH Act to consult because it did not undertake an occupational health and safety risk assessment, regarding the potential dangers the vaccine posed.

157   Many of the attachments to the appellant’s outline of evidence and to her submissions were directed at supporting the appellant’s argument about what she considered were the risks of receiving the vaccine, which the appellant submitted the Department ought to have had regard to when conducting a risk assessment.

158   Relying upon the decision of the FWC in Alexander James Marriot v Baptcare Limited [2022] FWC 300, the appellant also argued that because there was no immediate requirement for her to attend a building and construction site until the end of 2022, her dismissal was premature and therefore unfair.

Department's submissions

159   The Department submitted the appellant was a building and construction worker as defined in, and to whom, the BCIW directions applied. The Department submitted that attending building and construction sites was an essential requirement of the appellant’s position.

160   As a result, the BCIW directions required the Department to collect and maintain a record of the vaccination status of its employees who would be required to enter any building and construction sites (which included the appellant) and to ensure that any of its employees who would be required to enter these sites were either vaccinated or had a valid medical exemption.

161   The Department denied the Employer direction went beyond the scope of the BCIW directions.

162   In its submissions, the Department argued the Employer direction was issued to give effect to the BCIW directions, which was consistent with the approach that was taken across the public sector in accordance with the State Government’s Mandatory COVID-19 Vaccination Policy for WA Workforces.

163   The Department submitted a risk assessment, which the appellant said it was required to conduct, could not change the statutory obligation the BCIW directions imposed upon the Department, to ensure that only vaccinated employees could access building and construction sites.

164   On this, the Department noted s 202(3) of the Public Health Act requires a person to comply with a Public Health Order despite the provisions of any other law.

165   Relying upon the decision in Kathryn Roy-Chowdhury v Ivanhoe Girls Grammar School [2022] FWC 849 (Roy-Chowdhury), the Department also submitted a risk assessment would have been of no relevance for two reasons.

166   First, the BCIW directions required the appellant to be either vaccinated or to have a valid medical exemption to fulfill the essential requirements of her position. A risk assessment would not have resulted in a different outcome.

167   Second, the vaccines were approved by the Therapeutic Goods Administration (TGA). For this reason, as in Roy-Chowdhury, the Department argued a further risk assessment which the appellant had pressed for, was not necessary because it would have been reasonable for the Department to rely upon the information from the TGA regarding safety of the vaccines.

168   The Department submitted the consultation requirements under s 19 of the OSH Act did not apply because of the operation of s 202(3) of the Public Health Act. The Department’s compliance with the BCIW directions was not discretionary.

169   The Department submitted any obligations under the EBA or cl 59 of the Government Officers and Salaries Award to consult employees about major workplace changes, were similarly displaced by the provisions of the Public Health Act.

170   The Department disputed the appellant could have continued to be usefully employed whether by confining her to the OMTID building or permitting her to work from home. The Department submitted the appellant could have been directed to a construction site at any time as a term of her employment.

171   The Department contended the respondent was entitled to require the appellant to perform all of the requirements of her role which the appellant could not do while she remained unvaccinated. By refusing to be vaccinated the appellant made herself unable to perform all of the inherent requirements of her position. In those circumstances there was a valid reason for the appellant’s dismissal: Kazantzis v Patrick Stevedores Holdings Pty Ltd [2022] FWC 1576 at [90] – [91].

172   The Department submitted in the circumstances the decision to dismiss was not harsh, oppressive or unfair as failing to comply with the Employer direction was inconsistent with a continuation of the Appellant’s employment: Jessica Heller-Bhatt v Director General, Department of Communities [2022] WAIRC 00719 (Heller-Bhatt).

173   Having now summarised the parties' evidence and submissions, the Board is required to explain why it was not prepared to adjust the Department's decision to dismiss the appellant.

Unfair Dismissal test

174   When deciding whether to adjust the dismissal decision, the Board applies the well settled principles the Commission follows in Western Australia to unfair dismissal cases.

175   The test as to whether a dismissal is harsh oppressive or unfair is a broad one of industrial fairness. The Chief Commissioner in Scott v Consolidated Paper Industries (WA) Pty Ltd (1998) WAIG 4940 at 4943 relevantly state the following:

“The law in this jurisdiction is well settled in relation unfair dismissal. It must be demonstrated that there has been an abuse of the employer’s right to dismiss an employee, such that the dismissal is rendered harsh or oppressive: Miles v The Federated Miscellaneous Workers’ Union of Australia, Industrial Union of Workers, Western Australian Branch (1985) 65 WAIG 385. It is also established that it is not for the Commission to assume the role of the manager in considering whether the dismissal is or is not unfair. The test is an objective one in accordance with the Commission’s duty pursuant to s 26(1)(a) and (c) of the Act. Moreover, contemporary standards of industrial fairness require in my view, that before an employee is dismissed, the employee be given some fair warning that his or her employment is at risk if his or her performance or conduct does not improve as required by the employer. This requires more than a mere exhortation to improve and should place the employee in the position of being in no doubt that their employment may be terminated unless they take appropriate remedial steps: Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 3635. It should be emphasised that whether an employee is afforded procedural fairness is but one factor for the Commission to consider, however it may be a most important factor, depending upon the circumstances of the particular case: Shire of Esperance v Mouritz (1991) 71 WAIG 891. It follows however, that a dismissal will not necessarily be unfair in the event of procedural unfairness alone, as all the circumstances need to be considered.”

176   The test must also be applied to the facts or circumstances that were in existence at the time of the dismissal: Lane v Arrowcrest Group Pty Ltd (t/a Roh Alloy Wheels) (1990) 27 FCR 427 per Von Doussa J at 456; Byrne and Frew v Australian Airlines Limited (1995) 185 CLR 410 (Brennan CJ, Dawson and Toohey JJ) at 430; and Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 (McLaughlan) at 9 – 10 and more recently in Minister for Corrective Services v Penelope Anne Fagan [2023] WAIRC 00984. (Fagan).

Reasonable and lawful directions

177   In this matter, it is not in dispute the appellant refused to comply with the Employer direction. What is in dispute is whether the Employer direction was reasonable and lawful and whether the Department’s response to the appellant’s non-compliance was harsh, oppressive, and unfair.

178   On the first issue, it is well-established that an employee’s refusal to comply with a reasonable and lawful direction, would provide a sound and defensible reason for an employee’s dismissal.

179   Of relevance are the recent decisions of the Public Service Appeal Board in Heller-Bhatt, and Kos.

180   Also relevant is the recent decision in Luke Conti-Nibali v Main Roads Western Australia [2023] WAIRC 00426 (Luke Conti-Nibali) to which we return.

181   Each of these decisions summarised the law on an employee’s obligation to follow the directions issued by a public sector employer, particularly where such directions are mandated under Public Health Orders.

182   The Board in Heller-Bhatt noted at [93]:

 It is trite that an employee has a duty to obey an employer’s lawful and reasonable orders (see R v Darling Island Stevedoring and Lighterage Company Limited (1938) 60 CLR 601 at 621; Adami v Maison de Luxe Limited (1924) 35 CLR 143 at 151; McManus v Scott-Charlton (1996) 70 FCR 16 at 21AD (McManus)). Disobeying or disregarding a reasonable lawful order is a serious matter. Reasonableness is a question of fact and balance/degree: McManus at 30C.

183   At [94] and [95] the Board in Heller-Bhatt acknowledged this principle was adopted and applied by Allanson J of the Western Australian Supreme Court in Finlay v Commissioner of Police as the Chief Executive Officer of the Department known as the Police Service (Department of Police) [2022] WASC 272 (Finlay).

184   Specifically, the Board in Heller-Bhatt referred to Finlay 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.                           

185   The Board in Heller-Bhatt further referred to Finlay at [23]:

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.

186   At [36] Allanson J in Finlay held the issuance of directions by employers (including those in the public sector), for the purposes of managing statutory responsibilities for health and safety and responding to the risks of the pandemic for the workforce and others who may be affected, would be justified.

187   As the case in Finlay confirms, an employee who refuses to follow a reasonable and lawful direction may face disciplinary action, which could include dismissal. In a public sector setting it would similarly constitute a breach of discipline within the meaning of s 80(c) of the PSM Act.

188   The Board in this matter as in Heller-Bhatt, is required to follow the decision of Allanson J in Finlay. In the hierarchy of Courts in Western Australia, the Supreme Court is at the top and as such, the Board in this case and in all other matters must adopt and follow its decisions.

189   We also note the decision in Finlay was not appealed and therefore stands as the authority on the principles we have referred to.

190   With this in mind, the Board, as it did in Heller-Bhatt and Kos, adopts and applies the reasons of Allanson J in Finlay.

The Employer direction in this case

191   In this matter, the Board accepts there were some employees the Department employed who did not have to get vaccinated. In her evidence, Ms Stopic readily conceded this point. However, due to the nature of the Department’s business, and because the Department had employees whose employment required them to perform site-based work, there were also a large number who had to be vaccinated.

192   The practical difficulty for the Department in complying with the BCIW directions lay in determining which employees would need to be vaccinated for it to comply with the directions and which employees did not.

193   The path the Department ultimately took to resolve this question which we consider was both lawful and reasonable, was to consider which of its employees would, as an inherent requirement of their employment be required to attend a construction site.

194   The question of whether this approach was reasonable and lawful was recently considered by a Public Service Appeal Board in Luke Conti-Nibali.

195   The case in Luke Conti-Nibali was factually very similar. Mr Conti-Nibali who also worked for the Department, was dismissed from his employment for refusing to be vaccinated. Like the appellant, Mr Conti-Nibali worked as an engineering associate.

196   Mr Conti-Nibali, as we have noted in the preceding paragraph 95, is the appellant’s brother. He argued he should have been re-assigned to work that did not immediately require his attendance at a construction site. The Board however, rejected this argument.

197   At [38] the Board, after considering Mr Conti-Nibali's employment contract, his position JDF, the nature of Main Roads' business and the effect of the BCIW directions, held that the Employer direction involved no illegality, was not contrary to his contract of service and was reasonable in the circumstances. Put simply, the Board in Luke Conti-Nibali accepted the Employer direction was lawful and reasonable.

198   At [41], the Board concluded that Mr Conti-Nibali's duties involved accessing construction sites. By failing to comply with the requirement to be vaccinated or to provide a valid exemption, Mr Conti-Nibali was unable to perform some of the key duties he was engaged to perform.

199   At [46], the Board accepted Mr Conti-Nibali's refusal to be vaccinated was inconsistent with the continuation of his employment and at [57], that his dismissal was not harsh, oppressive, or unfair.

200   Noting the findings of the Board in Luke Conti-Nibali, we do not consider the Employer direction went beyond the scope of the BCIW Directions.

201   On the contrary, we take the view the Employer direction was reasonably necessary to ensure the Department could not only comply with the BCIW Directions but could also meet its operational needs as well.

Inherent requirement to attend construction sites

202   The Board has noted the only difference between the appellant's case and the decision in Luke Conti-Nibali, is that immediately prior to his dismissal, Mr Conti-Nibali was required to attend construction sites in the Pilbara region.

203   The essential point of difference on the appellant’s submission was that until such time as she was actually required to attend site rather than there being an expected or anticipated need, she did not have to be vaccinated. 

204   During the hearing, the Board probed the appellant about why she considered her case should be viewed differently to the case in Luke Conti-Nibali.

205   The appellant conceded, that if the BCIW directions had continued to apply, and there was an immediate need for her to attend a construction site, she would have had to make a decision, about whether she was going to be vaccinated.

206   Inherent in the appellant’s concession is an acknowledgement that attendance for work on building and construction sites is a requirement of her role.  

207   However, even without this concession, the Board is not minded to reach a different conclusion to what the Board held in Luke Conti-Nibali regarding the requirements of an Engineering Associate’s role.

208   The position JDF which the Board reviewed in Luke Conti-Nibali, was in the same terms as the appellant’s. Noting this, we do not agree with the appellant’s submission that her position description contained any wording that prevented the Department from being able to move her from one project to another.

209   It is our view that when viewed in context, the appellant’s job description is sufficiently elastic to have allowed the respondent to move her to other projects.

210   Additionally, the appellant accepted under cross-examination that her role required her to attend construction sites. She also agreed the Department could, if the need arose, move her to other projects. Ms Stopic gave evidence of this requirement as well.

211   Having regard to the evidence on each these matters, the Board finds that it was a requirement of the appellant’s employment for her to attend building and construction sites.

212   It is our view that while the appellant may not have been immediately required to attend a construction site when she was directed to be vaccinated, her non-compliance with the Employer direction impacted upon the Department’s operational capacity to be able to move her between projects as the need arose.

213   When framing and issuing the Employer direction, the Department had to have regard to both the requirement to comply with the BCIW directions and its operational needs as well.

214   In these circumstances the Board considers the Employer direction which required the appellant to be vaccinated so that she would be able to perform the inherent requirements of her role, was not only necessary but it was reasonable and lawful as well.

Mt Arthur

215   Although the Board has determined the Employer direction was reasonable and lawful, we do not consider the appellant’s case is one in which the decision of a Full Bench of the Fair Work Commission in Mt Arthur helps the appellant.

216   In Mt Arthur the Full Bench held that a mandatory vaccination policy the employer had introduced which required its employees to be vaccinated was not made for the purposes of complying with a Public Health Order and therefore, was not reasonable and lawful.

217   At [254] – [255] the Full Bench held the policy was not reasonable or lawful because the employer did not follow the relevant consultation procedures that applied under the applicable enterprise agreement or occupational health and safety legislation.

218   The Full Bench described at [108] – [109] the relevant features of consultation in its decision in Mt Arthur which can be summarised as follows:

• Consultation must give employees an opportunity to be heard and express their views such that they may be taken into account.
•                 Consultation needs to be real, not merely formal or perfunctory or an afterthought.
•                 The right to be consulted is not a right of veto.
•                 Management has the right to make the final decision.

Consultation

219   While the Board does not accept the appellant’s submission that the Employer direction went beyond or exceeded the scope of the BCIW directions, thereby enlivening an obligation to consult with employees, there was evidence in the documents the parties submitted, the Department had engaged in the process of consultation with its workforce prior to the issuance of the Employer direction.

220   Although the appellant may not have agreed with the ultimate outcome from the process the Department followed, it did not mean that consultation did not occur. As we have noted, a requirement to consult does not give rise a right of veto.

221   Noting the decision in Roy-Chowdhury, we also consider the Department when issuing the Employer direction, was entitled to rely upon the information from the TGA (which the Chief Health Officer relied upon when issuing the various public health orders) that the vaccines were safe for use.

Timing of the requirement to be vaccinated

222   The Board has turned its mind to the factual difference between the appellant’s matter and the case in Luke Conti-Nibali in other ways.

223   Notwithstanding our finding the Employer direction was reasonable and lawful, we have considered whether the Department as a matter of fairness, should have deferred the requirement for the appellant to be vaccinated to the later part of 2022.

224   The Board has done this for the purposes of assessing whether the Department’s response to the appellant’s non-compliance with the Employer direction was harsh.

225   On the appellant’s submission, it was not reasonable for the Department to require her to be vaccinated until there was an actual need rather than an expected or anticipated need for her to attend a construction site.

226   The Board does not agree with this submission. As we have already noted, while the appellant remained unvaccinated or without a medical exemption, she was not able to be re-assigned or redeployed (even with notice) to another project, in the event the respondent for operational reasons, needed to move her.

227   We consider the capacity for the appellant to attend a construction site at reasonably short notice was an inherent requirement of her role which the appellant, like Luke Conti-Nibali, had to comply with.

228   The appellant’s case also ignores that even if the appellant had later opted to change her stance on vaccination, it would have taken at least four weeks before she would have been fully vaccinated.

229   It was a requirement of both the BCIW directions and the Employer direction for the appellant to have received two doses of the vaccine. At the time, the minimum period between each dose under the Employer direction was four weeks.

230   It is our view the length of time it would have taken the appellant to be fully vaccinated would have placed a further constraint on the Department’s capacity to redeploy the appellant, thereby inhibiting her ability to comply with the inherent requirements of her role.

Information available at the time of dismissal

231   The Board very much doubts the appellant would have been vaccinated. We have reached this finding from what was contained in the appellant’s correspondence prior to her dismissal regarding her response to the Employer direction.

232   We also formed this view by reference to the evidence the appellant gave about the risks she considered the vaccine posed to her at or around the time of her dismissal. For this reason, the Board finds that it would have been reasonable for the Department to conclude that it was unlikely the appellant would be vaccinated.

233   The conclusion that it is unlikely the appellant would be vaccinated is important because we also find that it was reasonable for the Department to have believed the BCIW directions were not going to be revoked any time soon.

234   As in Fagan, we consider the Department was unable to assume the BCIW directions were going to change. The Board takes the view the Department was therefore entitled to conclude that it would not, in the foreseeable future, be able to send the appellant to a construction site anywhere, thereby placing limits on the projects she could be assigned to in her role as an engineering associate.

235   This in our view, was incompatible with the continuation of her employment.

Change in workload

236   A further flaw in the appellant’s case is that it proceeded on the assumption she would have only worked on the Causeway Bridge Project and there would have been no need for her to attend any other sites for which she would need to be vaccinated, prior to the start of work on the Causeway Bridge Project.

237   The difficulty with the appellant’s case on this point is that it relied upon evidence of projected start dates, which at the time of her dismissal were not yet fixed.

238   The Board does not accept the appellant’s work would have only been confined to the Causeway Bridge Project. On the contrary, there was evidence the Department would have needed to redeploy the appellant to other work prior to the start of works on the Causeway Bridge Project.

239   In her evidence, Ms Stopic explained that negotiations for the Causeway Bridge Project, which were occurring in the lead up to the appellant's dismissal had become stalled. The Board accepts Ms Stopic's evidence, and we find, that because contract negotiations became stalled, there was a reduction in the appellant's workload for the Causeway Bridge Project.

240   The Board considers that because of the stalled contract negotiations, it is unlikely the appellant's work would have been exclusively confined to the Causeway Bridge Project as the appellant claimed and that she would have likely been assigned work on another project.

241   Evidence of a reduction in the appellant's workload because of the stalled contract negotiations was evident from what happened prior to and immediately following the appellant's dismissal in March 2022.

242   From 6 January 2022, (the date the appellant was stood down from her position following her non-compliance with the Employer direction), the appellant performed no further work on the Causeway Bridge Project.

243   Ms Stopic gave evidence, and we accept that she did not assign another engineering associate to the Causeway project, until after the contract was awarded. This did not occur until 3 May 2022, almost two months after the appellant's dismissal.

244   Noting the effect of delays to the awarding of the contract on the Causeway Bridge Project to the scheduled start of construction, it is our view this would have necessitated the appellant’s redeployment to other work.

245   Whilst the appellant remained unvaccinated or without a medical exemption, she was not able to be re-assigned or redeployed to another project in the event the Department needed to move her for operational reasons. This presented a significant problem for the continuation of the appellant’s employment.

Was the appellant's dismissal premature?

246   The appellant sought to rely upon a decision of the Fair Work Commission in Alexander James Marriot v Baptcare Limited [2022] FWC 300 (Marriot v Baptcare) to suggest her dismissal was premature.

247   The case in Marriot v Baptcare however is distinguishable on its facts and unhelpful for the appellant. The case involved an applicant who was employed as a customer service support officer in Victoria, who refused to be vaccinated against COVID-19.

248   The applicant in Marriot v Baptcare was directed to be vaccinated because although not often, he was required to attend nursing homes as a requirement of his employment.

249   The applicant was dismissed from his employment on 10 November 2021, after he refused to be vaccinated. On the date he was dismissed, the applicant along with his colleagues was working from home due to a ‘lock down’ and would not be required to attend a nursing home prior to 24 February 2022.

250   Commissioner Johns in Marriot v Baptcare held that until such time as the applicant and all of his colleagues were no longer in a lock down, thereby allowing them all to return to the workplace, the applicant could have continued to perform the inherent requirements of his role at home.

251   While Commissioner Johns held there was not a valid reason for termination on the date the applicant was dismissed and concluded the applicant’s dismissal was unfair, the Commissioner declined to issue a re-instatement order because the applicant was still not vaccinated, which was a requirement of his position.

252   Commissioner Johns also declined to make an order for compensation.

253   In the present case, the Board does not consider the facts in the present case are comparable with those in Marriot v Baptcare. At the time the Employer direction issued, the Department was involved in its normal operations which included employees attending building and construction sites.

254   There was, having regard to the evidence of Ms Stopic, no period after the Employer direction issued, where the appellant could have continued to work in her role without being vaccinated. This is because the appellant like her colleagues, had to be ready to be deployed to sites for which she either needed to be vaccinated or have a valid exemption.

An exception for the appellant

255   The Board has considered whether the Department could have made an exception for the appellant.

256   Noting our finding that it was an inherent requirement of the appellant's role to be able to attend building and construction sites, the Board does not accept there was an obligation on the employer to accommodate the appellant in a working-from-home position or to confine her to a role that did not require her to attend site.

257   The Board considers that making an exception for the appellant merely because she was not scheduled to immediately attend a construction site had the potential to create operational and staffing difficulties for the Department.

258   Specifically, the Board accepts that by making an exception, there is every likelihood other employees would have demanded the same. We therefore consider that making an exception for the appellant would have been unfair to other employees.

259   Ms Stopic gave evidence about the difficulties making an exception for the appellant would have created. She said and we accept, that if the respondent had made exceptions for one, it would have had to make exceptions for other employees, which it was not prepared to do.

260   We also accept the appellant was not the only employee who was initially reluctant to receive the vaccine. We therefore consider the concerns the Department had about what would have happened if it had made an exception for the appellant were well-founded.

261   It is the Board’s view that the uniform way in which the Employer direction was applied to those employees who would be required to go onsite as a requirement of their employment, was both reasonable and fair in the circumstances.

Differential treatment

262   One of the arguments the appellant made, was that the respondent had made exceptions for or treated, some of her colleagues who did not want to be vaccinated, more favourably.

263   On this, it is well established that a disparity in the treatment of employees by an employer may render a dismissal unfair (CFMEU v BHP Billiton Iron Ore Pty Ltd (2004) 84 WAIG 3787 at [396] and see Gonzalo Portilla v BHP Billiton Iron Ore Pty Ltd [2005] WAIRC 02604; (2005) 85 WAIG 3441 at [111] and [166]).

264   However, where a disparity of treatment is alleged, it is necessary to compare like with like or 'apples with apples' to ensure a true comparison is made: Sexton v Pacific National (ACT) Pty Ltd [2003] AIRC 506 at [36]. Also see Fagan where the issue of differential treatment of employees, both of whom had refused to be vaccinated, was raised and considered.

265   There was no evidence the appellant was treated less favourably than any of her colleagues. When compared with other engineering associates and as the case in Luke Conti-Nibali demonstrates, the appellant was treated no less favourably.

266   Regarding other employees in the OMITD building, the Board does not accept there was any differential treatment. There was no evidence the appellant was treated less favourably when compared with Ms Morgan, who worked as a project officer.

267   On the comparison between the appellant and Ms Morgan, the Board prefers Ms Stopic's evidence. The Board accepts Ms Morgan was employed in an entirely different capacity to the appellant. It was not disputed that her role was administrative, whereas the appellant was employed with a technical skill set.

268   Further, Ms Morgan was employed on a contract basis, whereas the appellant was a permanent employee. More importantly, there was no requirement for Ms Morgan to be sent to a construction site, for which there was a need for her to be vaccinated. Ms Morgan unlike the appellant, was not employed in a position where she had to be vaccinated.

269   In the circumstances, the Board finds that no relevant comparison could possibly be made with Ms Morgan, and so the appellant's claim of differential treatment cannot be made out. The Board reaches the same finding in respect of another member in the appellant's team, who the appellant claimed was not issued with a direction to be vaccinated because that employee was about to go on maternity leave.

Procedural Fairness

270   The Board has had regard to whether the appellant was given fair warning that her employment was at risk and whether the Department gave her a reasonable opportunity to ventilate her concerns about being vaccinated.

271   While the appellant may have taken the view the Department had adopted a particularly hard and inflexible approach to the issue, the appellant’s response was similarly fixed. By insisting that all communications between herself and the Department would need to be in writing and by refusing to take any phone calls from HR, the appellant cut off a potential avenue to confer with the Department about the reasons for her non-compliance and alternatives to dismissal.

272   The appellant also closed off any options that may have been available to her by not exploring the issue of an exemption with her medical practitioner.

273   The Board finds the appellant was on notice that her continued employment was at risk. We also find that she was given ample opportunity to respond to the issue of her non-compliance with the Employer direction and afforded a reasonable opportunity to re-consider her position.

Conclusion

274   For all the reasons set out in the preceding paragraphs, we have decided to dismiss the appeal.