2024 WAIRC 00795
APPEAL AGAINST THE DECISION OF THE EMPLOYER TAKEN ON 17 MAY 2023
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00795

CORAM
: PUBLIC SERVICE APPEAL BOARD
COMMISSIONER C TSANG – CHAIR
MS B CONWAY – BOARD MEMBER
MS E HAMILTON – BOARD MEMBER

HEARD
:
MONDAY, 11 DECEMBER 2023,
MONDAY, 18 DECEMBER 2023

DELIVERED : MONDAY, 2 SEPTEMBER 2024

FILE NO. : PSAB 17 OF 2023

BETWEEN
:
TRISTA CAROLE JEWELS BURKE
Appellant

AND

DIRECTOR GENERAL, DEPARTMENT OF EDUCATION
Respondent

CatchWords : Public Service Appeal Board – Appeal of dismissal for inability to perform inherent requirements of role due to poor attendance – preliminary issue regarding admissibility of evidence concerning past disciplinary proceedings – whether inability to perform inherent requirements of role to be determined at time of dismissal or time of appeal hearing – whether dismissal unfair in all the circumstances
Legislation : Industrial Relations Act 1979 (WA) ss 26(1)(b), 80C(1), 80I(1)(d), 80L
Public Sector Management Act 1994 (WA) s 80(c), Part 5
School Education Act 1999 (WA) s 239
Result : Appeal dismissed
REPRESENTATION:

APPELLANT : MR S PACK (OF COUNSEL)
RESPONDENT : MS E NEGUS (OF COUNSEL)

Cases referred to in reasons:
Batchelar v Skybus (1983) 63 WAIG 2244
Carter v Director General, Department of Education [2023] WAIRC 00883
Colpitts v Australian Telecommunications Commission [1986] FCA 1
Durham v Director General, Department of Communities [2023] WAIRC 00403
G v H (1994) 181 CLR 387
Garbett v Midland Brick Company Pty Ltd [2003] WASCA 36
Goodrem v Commissioner for Public Employment [2023] FWCFB 186
Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728
Heller-Bhatt v Director General, Department of Communities [2022] WAIRC 00719
Jones v Commissioner of Police [2007] WAIRC 00440
Kos v Director General, Department of Transport [2023] WAIRC 00298
Kyriakopoulos v James Hardie & Company Pty Ltd (1970) 38 SAIR 91
Magyar v Department of Education [2019] WAIRC 00781
Miles v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385
Mills v South Metropolitan TAFE [2023] WAIRC 00230
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40
Moran v The Commissioner of Police [2015] WAIRC 00464
Mourtada v Dnata Airport Services Pty Ltd [2022] FWC 1014
Nicholls v The Queen [2005] HCA 1
Noble v North Metropolitan Health Service [2022] WAIRC 00661
RobertsSmith v Fairfax Media Publications Pty Ltd (No 41) [2023] FCA 555
Rooney v State of Queensland (Queensland Health) [2022] QIRC 267
Spasojevic v Speaker of the Legislative Assembly [2023] WAIRC 00001
Titelius v Director General of the Department of Justice [2019] WAIRC 00195
Walley v Director General, Department of Biodiversity, Conservation and Attractions [2021] WAIRC 00569
Wilkie v National Storage Operations Pty Ltd [2013] FCCA 1056
X v The Commonwealth of Australia [1999] HCA 63
Reasons for decision
Background
1 The appellant (Ms Burke) commenced employment with the respondent on 14 April 2011.
2 Ms Burke worked at Roseworth Primary School, Girrawheen (Roseworth):
(a) From 30 January 2012–28 February 2016 as a Special Needs Education Assistant; and
(b) From 29 February 2016 as a School Officer.
3 Since 2017, the respondent held concerns about Ms Burke’s ability to maintain an acceptable standard of attendance at work.
4 Separately, in September 2020, Ms Burke was suspended from her employment and subjected to a disciplinary investigation by the Department’s Standards and Integrity Directorate (SID) for five allegations of misconduct in breach of s 80(c) of the Public Sector Management Act 1994 (WA) (PSM Act):
(a) Collecting, on behalf of Roseworth, a $100 Bunnings gift card from Bunnings, Balcatta on 29 June 2019, keeping the gift card and using it to buy household items on 19 July 2019 at Bunnings, Malaga, in breach of the Department’s Code of Conduct.
(b) Being convicted at the Perth Magistrates Court on 17 September 2020 for an offence of stealing for taking possession of a $50 Coles gift card posted to Roseworth on 25 October 2019 by Coles, Warwick Grove, and using it to purchase household items on 1 and 9 November 2019 at Coles, Mirrabooka, in breach of the Department’s Code of Conduct.
(c) Receiving a permission slip and $23 in cash from a student’s parent for the student to attend a school excursion on 25 November 2019, submitting the permission slip but failing to record the receipt of money in RM Billing, resulting in the inability to locate the funds by Roseworth, in breach of the Department’s Code of Conduct.
(d) Being convicted at the Joondalup Magistrates Court on 17 July 2020 for the offence of ‘Drove with prescribed illicit drug in oral fluid or blood’ after testing positive for methylamphetamine and tetrahydrocannabinol (cannabis) while driving a motor vehicle on a road in Warwick on Sunday 12 April 2020 and:
(i) Failing to notify the respondent of the charge and conviction, in breach of the Criminal History Screening for Department of Education Sites Policy and the Department’s Code of Conduct.
(ii) For both taking illicit drugs and driving with illicit drugs present in her body, in breach of the Department’s Code of Conduct.
5 On 12 July 2021, the respondent found the five allegations of misconduct to be substantiated.
6 On 24 March 2022, the respondent reprimanded Ms Burke for each allegation, and transferred her out of her substantive role at Roseworth.
7 In May 2022, the respondent temporarily placed Ms Burke at Ashdale Primary School, Darch (Ashdale) as a permanent employee requiring placement.
8 On 10 October 2022, Ashdale’s Principal wrote to Ms Burke outlining concerns regarding her ongoing absenteeism issues.
9 On 6 December 2022, the respondent placed Ms Burke on notice that she was being given an opportunity over Term 1, 2023 to demonstrate her ability to regularly attend work. Ms Burke was warned that her ongoing employment was at risk if she failed to meet this expectation.
10 During Term 1, 2023, Ms Burke only attended work for one part-day.
11 On 20 April 2023, the respondent sent a letter to Ms Burke proposing to dismiss her from her employment.
12 On 17 May 2023, the respondent terminated Ms Burke’s employment with four weeks’ pay in lieu of notice, based on her inability to fulfil the inherent requirements of her role due to poor attendance.
13 Ms Burke contests the dismissal on the ground of substantive fairness. She does not contend there were any procedural fairness issues with the dismissal (ts 20).
The Board’s jurisdiction
14 There is no dispute that Ms Burke is a ‘government officer’ pursuant to s 80C(1) of the ‍‍Industrial Relations Act 1979 (WA) (IR Act) and that by s 80I(1)(d) of the IR Act, the Public Service Appeal Board (Board) has jurisdiction to hear the appeal of Ms Burke’s dismissal.
15 The appeal involves the review of the dismissal de novo. The Board is to consider the appeal based on the evidence before it and not merely on the basis of whether the respondent made the right decision available to it at the time. The Board has greater scope to substitute its own view for the view taken by the respondent: Noble v North Metropolitan Health Service [2022] WAIRC 00661 [10].
Preliminary issue – Objection to evidence relating to past disciplinary proceedings
16 The respondent filed outlines of witness evidence for:
(a) Louise Nielsen, Roseworth’s Principal (Ms Nielsen).
(b) Jayne McKernan, Ashdale’s Manager of Corporate Services (MCS) (Ms McKernan).
(c) Sara Young, Principal Labour Relations Advisor with the Department (Ms Young).
17 Ms Burke objects to Ms Nielsen giving evidence of two matters relating to Ms Burke’s conduct in June and October 2019, which Roseworth did not treat as disciplinary issues. Additionally, Ms Burke objects to both Ms Nielsen and Ms Young giving evidence concerning the disciplinary proceedings at [4] above.
18 While Ms Burke concedes that both parties presented evidence of the historical fact of the disciplinary action at [4] above, she argues that the details of the disciplinary proceedings (including SID’s investigation report attached to Ms Young’s witness outline, 17–‍209) are irrelevant, prejudicial and distracting from the issues for determination in the appeal.
19 Ms Burke submits that there are three issues for determination in this appeal.
(a) Firstly, what is the inherent requirement of her role? While Ms Burke acknowledges that, in general, employees are expected to attend and perform work according to their scheduled hours, she argues that it is not an inherent requirement of her role to attend work when she has an entitlement to take leave, whether paid or unpaid.
(b) Secondly, is she unable to fulfil the inherent requirements of her role? Ms Burke contends that this assessment is forward-looking and there is no basis to conclude that she would be incapable of fulfilling the inherent requirements of her role in the future.
(c) Thirdly, is her dismissal fair in all the circumstances? Ms Burke argues that even if she was unable to fulfil the inherent requirements of her role, dismissal would be unfair given her length of service and employment history, financial circumstances, the likelihood that her absences in Term 1, 2023 would recur and the respondent’s ability to treat any future unapproved absences as a disciplinary matter.
20 Ms Burke submits that the evidence of her prior disciplinary proceedings should be limited to the respondent’s outcomes letter dated 24 March 2022 (attachment to Ms Young’s witness outline, 213–214) (Letter imposing reprimands).
21 Ms Burke acknowledges the respondent relies on her past disciplinary proceedings to question her credibility, and she concedes that evidence relating to her credit may be admissible based on relevance. However, Ms Burke argues that the evidence of her past disciplinary proceedings is only peripherally relevant and should be excluded on this basis: Nicholls v The Queen [2005] HCA 1 (McHugh J) [39]:
Policy considerations provide the rationale for the collateral evidence rule. The reasons for the rule are generally practical: it is based on principles of case management, such as the desirability of avoiding a multiplicity of issues and of protecting the efficiency and cost-effectiveness of the trial process by preventing the parties from litigating matters of marginal relevance. The rule is also based on the need to be fair to the witness. (footnotes omitted)
22 The respondent submits the prior disciplinary proceedings are relevant for three reasons:
(a) Firstly, the quality of Ms Burke’s service is relevant to assessing the fairness of the dismissal: Garbett v Midland Brick Company Pty Ltd [2003] WASCA 36 [72]. The respondent submits that assessing the quality of Ms Burke’s service is a broad exercise and not limited to particular matters: Jones v Commissioner of Police [2007] WAIRC 00440 (Jones) [70]:
70 In response to a specific question put to her in the hearing Ms Jones, very properly, recognised that there must at some point be an avenue for an employer to medically retire someone in a fair and just way including considering rehabilitation, depending upon whether it is work related or non-work related. Ms Jones’ comment is consistent with the position in industry generally where the decided cases appear to regard the general comments made in the 1970 decision of the Industrial Relations Commission of South Australia in Kyriakopoulos v James Hardie & Company Pty Ltd (1970) 38 SAIR 91 [(Kyriakopoulos)] at 103 as helpful. There, Olsson J dealt with an employee who had been dismissed when a medical condition meant that he could not perform his normal work and stated:
i. that an employee dismissed by the employer would only succeed in showing that the dismissal was unfair if it could be shown that the employee is, or will in the reasonably near future on the balance of probabilities be able adequately and fully to discharge all of the duties of his former position;
ii. that the period elapsing from the time of injury to the time of recovery must, in all of the circumstances be reasonable (a period which must differ greatly according to all of the circumstances including the length of the employee’s service, the size and nature of the employer’s business, and its ability to make reasonable temporary arrangements to carry on its operations in the absence of the employee);
iii. that the past employment history of the employee viewed from all aspects is a consideration of what is just in all of the circumstances;
iv. that the conduct of an employee in relation to his efforts to rehabilitate himself and to place himself in a position to resume his former duties at the earliest possible moment also constitutes a relevant circumstance. (transcript references omitted) (emphasis added)
(b) Secondly, in the absence of medical evidence regarding Ms Burke’s absences in Term 1, 2023, the Board will need to form a view of Ms Burke’s reliability and credibility as a witness when determining the extent to which it relies on her selfreporting of her medical issues. Ms Burke’s disciplinary history (including both her conduct and responses to the respondent during the disciplinary process) is relevant to that exercise.
(c) Thirdly, parts of the disciplinary history may be relevant to the issues in the appeal, such as evidence suggesting her use of illicit drugs might have contributed to her absences in 2019.
23 Having heard the parties’ submissions, the Board refused Ms Burke’s application to exclude evidence of her past disciplinary proceedings for the following reasons: Ms Burke’s employment history, including the past disciplinary proceedings, is relevant to the appeal. While Ms Burke does not object to the Letter imposing reprimands being tendered, that letter in isolation does not provide the Board with sufficient detail regarding the severity of the past disciplinary matters. As the Board is to hear the appeal de novo, the past disciplinary matters are relevant to a key question the Board must determine, namely, whether it should adjust Ms Burke’s dismissal.
The evidence
24 On 1 December 2023, the parties filed a Statement of Agreed Facts, stating:
1. [Ms Burke] commenced employment with the Respondent on 14 April 2011.
2. [Ms Burke] was employed on a contract until 30 January 2012.
3. From 30 January 2012 until 28 February 2016, [Ms Burke] worked as a Level 2/3 Special Needs Education Assistant at [Roseworth].
4. From 29 February 2016 until 18 May 2022, [Ms Burke] worked as a School Officer at [Roseworth].
5. From 23 May 2022 until 17 May 2023, [Ms Burke] worked as a School Officer at [Ashdale], as a permanent employee requiring placement (also commonly referred to by the Department as a ‘supernumerary’).
6. While at [Ashdale], [Ms Burke] was one of four School Officers (being three School Officers and one Business Support Officer) at the school.
Attendance at [Roseworth] (2017 to 2020)
7. [Ms Burke] was rostered to work 188 days in 2017.
8. Of [Ms Burke’s] 188 rostered days in 2017, [Ms Burke] attended work on 156.51 days, and was absent on approved leave for 31.49 days.
9. [Ms Burke’s] approved leave in 2017 is accurately set out in Agreed Document 1.
10. [Ms Burke] was rostered to work 199 days in 2018.
11. Of [Ms Burke’s] 199 rostered days in 2018, [Ms Burke] attended work on 161.53 days and was absent on approved leave for 37.47 days.
12. [Ms Burke’s] approved leave in 2018 is accurately set out in Agreed Document 1 and Agreed Document 2.
13. [Ms Burke] was rostered to work 202 days in 2019.
14. Of [Ms Burke’s] 202 rostered days in 2019, [Ms Burke] attended work on 130.06 days, was absent on approved leave for 61.34 days and no leave was approved by the Respondent for the other 10.6 days.
15. [Ms Burke’s] approved and unapproved leave in 2019 is accurately set out in Agreed Document 2.
16. From the beginning of 2020 to her suspension on 18 September 2020, [Ms Burke] was rostered to work 148 days.
17. Of [Ms Burke’s] 148 rostered days in 2020, [Ms Burke] attended work on 52.77 days, was absent on approved leave for 85.23 days and no leave was approved by the Respondent for the other 10 days.
18. [Ms Burke’s] approved and unapproved leave in 2020 is accurately set out in Agreed Document 3.
Attendance at [Ashdale]
19. From her commencement at [Ashdale] on 23 May 2022, [Ms Burke] was rostered to work 119 days in 2022 (taking into account her reduction to 0.9 FTE as from 2 August 2022).
20. Of [Ms Burke’s] 119 rostered days in 2022, [Ms Burke] attended work for 63.4 days, and was absent on approved leave for the other 55.6 days.
21. [Ms Burke’s] approved leave in 2022 is accurately set out in Agreed Document 4.
22. From the beginning of 2023 to her suspension on 20 April 2023, [Ms Burke] was rostered to work 45 days in 2023.
23. Of [Ms Burke’s] 45 rostered days in 2023, [Ms Burke] attended work for 0.33 of a day, was absent on approved leave for 36.67 days, and no leave was approved by the Respondent for the other 8 days.
24. [Ms Burke’s] approved and unapproved leave in 2023 is accurately set out in Agreed Document 4.
Other matters concerning [Ashdale]
25. Agreed Document 5 is a record of communications between [Ashdale] and [Ms Burke] regarding [Ms Burke’s] absences from work from 23 May 2022 to 6 April 2023 prepared by [Ms McKernan].
26. Ms McKernan did not tell [Ms Burke] that she had created and was maintaining Agreed Document 5 at the time of the communications she recorded.
27. On 2 August 2022, [Ms Burke] had a discussion with Ms Carla Rodriguez, School Staffing Consultant, and Ms McKernan.
28. On 3 August 2022, Ms Rodriguez sent [Ms Burke] Agreed Document 6.
29. On 10 October 2022, [Ms Burke] met with Ms McKernan and Mr Tony Watson, [Ashdale’s] Principal. Mr Watson provided [Ms Burke] with a letter regarding her absences (Agreed Document 7) and referred her to an Occupational Physician (Agreed Document 8).
30. On 26 October 2022, [Ms Burke] attended a fitness for work assessment with Dr Lai. Dr Lai provided a fitness for work assessment to Mr Watson the same day (Agreed Document 9).
31. On 16 November 2022, Dr Lai provided Mr Watson an update to his fitness for work assessment (Agreed Document 10).
32. Agreed Document 11 is the evidence provided by [Ms Burke] for absences from work during 2023.
33. On 27 February 2023, [Ms Burke] met with Ms McKernan.
34. Ms McKernan emailed [Ms Burke] a summary of their discussions on 28 February 2023 (Agreed Document 12).
35. On 6 April 2023, Mr Watson wrote to Ms Jenny Felstead, School Staffing Consultant at the Department, regarding [Ms Burke] (Agreed Document 13).
Correspondence between the Respondent and [Ms Burke]
36. On 6 December 2022, Mr Paul Wilding, Director Employee Relations at the Department, wrote to [Ms Burke] and his letter was provided to [Ms Burke] by email that day (Agreed Document 14).
37. On 20 April 2023, Mr Wilding wrote to [Ms Burke] regarding her absences from work and a proposal to terminate her employment. His letter was provided to [Ms Burke] by email that day (Agreed Document 15).
38. On 15 May 2023, [Ms Burke] responded to Mr Wilding’s letter by email (Agreed Document 16).
39. On 17 May 2023, Ms Cindy Barnard, A/Executive Director Workforce, wrote to [Ms Burke] and her letter was provided to [Ms Burke] by email the following day (Agreed Document 17).
40. For the avoidance of doubt, the accuracy of the statements in the correspondence and their attachments in paragraphs [25] to [39] is not agreed.
Termination
41. The Respondent terminated [Ms Burke’s] employment with effect from 17 May 2023 and this termination was communicated to [Ms Burke] on 18 May 2023 as set out at paragraph [39].
42. The Respondent paid [Ms Burke] a four week notice period commencing 18 May 2023 (i.e. 18 May 2023 was treated as day one of the notice period rather than a day of work).
Department of Education performance management policies
43. At all relevant times, the Department of Education maintained an:
a. Employee Performance Policy;
b. Employee Performance Procedures; and
c. Substandard Performance Procedures (together, Agreed Document 18).
Industrial Instruments
44. At all relevant times, [Ms Burke’s] employment with the Respondent was governed by:
a. the Department of Education (School Support Officers) CSA Agreement 2021 (Agreed Document 19) or its precursors; and
b. the Education Department Ministerial Officers Salaries Allowances and Conditions Award 1983 No. 5 of 1983 (Agreed Document 20).
45. The following Circulars also applied to [Ms Burke’s] employment with the Respondent:
a. Circular 6/2020 – Leave arrangements for COVID-19 (revised February 2022) (Agreed Document 21); and
b. Circular 4/2023 – Leave arrangements for COVID-19 (Agreed Document 22).
Ms Burke’s contentions
25 Ms Burke contends that the inherent requirement of her role is defined by the terms and conditions of the employment relationship: X v The Commonwealth of Australia [1999] HCA 63 (X) (McHugh J) [31]–‍[32], [37]–‍[38]; (Gummow and Hayne JJ, with Gleeson CJ agreeing) [103], [105]–‍[106]:
31 Whether something is an ‘inherent requirement’ of a particular employment for the purposes of the Act depends on whether it was an ‘essential element’ of the particular employment. However, the inherent requirements of employment embrace much more than the physical ability to carry out the physical tasks encompassed by the particular employment. Thus, implied in every contract of employment are obligations of fidelity and good faith on the part of the employee with the result that an employee breaches those requirements or obligations when he or she discloses confidential information or reveals secret processes. Furthermore, it is an implied warranty of every contract of employment that the employee possesses and will exercise reasonable care and skill in carrying out the employment. These obligations and warranties are inherent requirements of every employment. If for any reason – mental, physical or emotional – the employee is unable to carry them out, an otherwise unlawful discrimination may be protected by the provisions of s 15(4).
32 Similarly, carrying out the employment without endangering the safety of other employees is an inherent requirement of any employment. It is not merely ‘so obvious that it goes without saying’ – which is one of the tests for implying a term in a contract to give effect to the supposed intention of the parties. The term is one which, subject to agreement to the contrary, the law implies in every contract of employment. It is but a particular application of the implied warranty that the employee is able to and will exercise reasonable care and skill in carrying out his or her duties.
37 Unless the employer’s undertaking has been organised so as to permit discriminatory conduct, the terms of the employment contract, the nature of the business and the manner of its organisation will be determinative of whether a requirement is inherent in the particular employment. But only those requirements that are essential in a business sense (including where appropriate public administration) or in a legal sense can be regarded as inhering in the particular employment. The Commission must give appropriate recognition to the business judgment of the employer in organising its undertaking and in regarding this or that requirement as essential to the particular employment. …
38 Nevertheless, contract or statute to the contrary, performing the duties of the employment without unreasonable risk to the safety of fellow employees is, as a matter of law, an inherent requirement of employment. …
103 It follows from both the reference to inherent requirements and the reference to particular employment that, in considering the application of s 15(4)(a), it is necessary to identify not only the terms and conditions which stipulate what the employee is to do or be trained for, but also those terms and conditions which identify the circumstances in which the particular employment will be carried on. Those circumstances will often include the place or places at which the employment is to be performed and may also encompass other considerations. For example, it may be necessary to consider whether the employee is to work with others in some particular way. It may also be necessary to consider the dangers to which the employee may be exposed and the dangers to which the employee may expose others.
105 The inquiry that was required in the present case was an inquiry about what were the requirements of the particular employment. As we have said, that would begin by identifying the terms and conditions of service which revealed what the Army required of the appellant, not only in terms of tasks and skills, but also the circumstances in which those tasks were to be done and skills used. From there the inquiry would move to identify which of those requirements were inherent requirements of the particular employment. It was at this point that the Commissioner fell into error by confining the inherent requirements of the particular employment to the performance of the ‘tasks or skills for which [the appellant was] specifically prepared’. Only when the inherent requirements of the employment have properly been identified can one ask whether because of the employee’s disability the employee was unable to carry out those requirements.
106 Confining attention to tasks and skills for which a soldier is specifically prepared was too narrow a focus in the present case. It left out of account where, when, in what circumstances, and with whom those tasks and skills were to be performed or used. It treated all of those features as incidents of the employment rather than as inherent (in the sense of characteristic or essential) requirements of the employment. But just as the capacity to travel from school to school at short notice is an inherent requirement of employment as an emergency teacher (but may not be an inherent requirement of employment as a teacher at a particular school), the places and the circumstances in which the tasks of a soldier are to be performed and skills are to be used may be important considerations in identifying inherent requirements of service in the forces. The identification of inherent requirements must begin with the terms and conditions of service. (footnotes omitted) (emphasis in original)
26 Ms Burke contends that the inherent requirement of her role is determined by her employment contract in conjunction with Agreed Document 20 (Award) and Agreed Document 19 (CSA Agreement), which specify the leave, both paid and unpaid, to which she is entitled. Ms Burke argues that these documents establish that she is not required to attend work if she has an entitlement to take leave.
27 Ms Burke submits that the time for conducting the forward-looking assessment of her ability to fulfil the inherent requirements of her role is at the date of the appeal hearing. Ms Burke relies upon:
(a) Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728 [24]:
In Raxworthy, which was an appeal brought before the Appeal Board under the then s 80I(e), as to the nature of the appeal, it was said at 2266 as follows:
The nature of an appeal made under section 80I(1)(e) is somewhat different from the authority ordinarily given to the Commission to enquire into whether a dismissal is fair or not. … However, these proceedings are expressly an appeal, with the Appeal Board being given the power ‘to adjust’ a decision to dismiss an employee. The onus is of course on the appellant to show that the Board should interfere with and adjust the decision. However, as with promotion appeals the decision is to be reviewed de novo on the basis of the evidence before the Board, not merely on the basis of whether the decision maker made the right decision on the evidence available to it at the time (cf: Colpitts v Australian Telecommunications Commission (1986) 20 IR 184 [(Colpitts)]). The process afforded by section 80I is such that the Commission, constituted by an Appeal Board, is given a greater license to substitute its own view. Although as Mr Burns so rightly said the dismissal was lawful, the matter does not end there. Where as here the dismissal was based on a particular act of misconduct, albeit that there are parts to it, the Board, as part of the appellate process, is required to enquire into that allegation, if as is the case, the Appellant denies the Commission of such misconduct. If on appeal the act of misconduct is not shown to have occurred, then the very basis for the decision under appeal, in this case the decision to dismiss, is lost.
(b) Colpitts [1986] FCA 1 [45]–[47]:
45 … The statutory imperative, and the applicant’s right was that there be review of the decision, not the process by which the delegate has arrived at it. It is judicial review, as distinct from administrative review, which is concerned with the decision-making process: Council of Civil Service Unions v Minister for the Civil Service (1985) 1 AC 374 at 401, 414. A short false step may set one’s feet upon the wrong path. In concentrating upon the decision process of the delegate the Tribunal failed entirely to consider the ability of the applicant to discharge the duties of his position upon the material available at the time of the hearing before the Tribunal. It simply considered whether he was correctly deemed unable to do so by the decision of the delegate. The Tribunal accordingly ignored, on this issue, the evidence of continued recovery, given by Dr Kjorrefjord, upon which it relied on the further question of possible transfer. It just did not consider whether the recommendation of minimal contact with other personnel still applied. (Indeed it does not seem to have considered the question whether that recommendation was ever based on persisting medical incapacity, or was merely, as Mr Katz contended, a common sense precaution in view of what had happened in the past. Both psychiatrists regarded Mr Colpitts as quite fit for his previous work. But the Tribunal’s reasons, as formulated, turn on the evidence of supervisors about his incapacity at an earlier period when, or at least for much of which, he was admittedly ill.)
46 In my opinion the regulations clearly contemplate a full inquiry into the position at the time of the review, and not merely as at the time of the original decision. This is the normal position in a wide range of appeals to an appellate court, and I do not see why an administrative review should be more rigidly confined: see Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 619-20. In Drake v Minister for Immigration (1979) 24 ALR 577 at 589 Bowen CJ and Deane J said with reference to the Administrative Appeals Tribunal:
The question for the determination of the Tribunal is not whether the decision which the decisionmaker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.
In Sullivan v Department of Transport (1978) 20 ALR 323 (a case concerned with whether a transient psychotic illness debarred a pilot the issue of a license) Smithers J (at p 332) referred to the ‘current and probable future health of the appellant’ in terms clearly related, not to the time of the original decision of the department, but to the time of the decision of the Administrative Appeals Tribunal. Deane and Fisher JJ (at pp 346 and 352 respectively) did likewise.
47 Particularly having regard to the provision of the regulations for further consideration by the Commission itself at the end of the appeal process, I think the Tribunal was bound, as a matter of law, to consider the current condition of the applicant, and accordingly to have regard, on the primary issue of whether this case fell within s 56 at all, to the evidence of Dr Kjorrefjord. Otherwise, an officer, retired under s 56 for coronary insufficiency, for example, who applied for review, and in the meantime underwent wholly successful bypass surgery, could have his application dismissed without regard to his recovery (Cf the remarks of Bowen CJ in Peko-Wallsend Ltd v Minister for Aboriginal Affairs (1985) 59 ALR 51 at 59).
(c) Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 [20]:
It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.
28 In relation to the forward-looking predictive assessment of Ms Burke’s ability to fulfil the inherent requirements of her role, she submits that:
(a) During 2019–2020, there were exceptional circumstances affecting her attendance at Roseworth, and there is no basis in the evidence to suggest that those circumstances are likely to recur in the future.
(b) In the period September 2020–May 2022, while suspended during the disciplinary investigation, she fulfilled all her employment requirements, namely, to remain contactable.
(c) In 2022, she either attended work or was on approved leave.
(d) In Term 1, 2023, she either attended work or was on approved leave, with the exception of eight days:
(i) Tuesday 7 February 2023.
(ii) Wednesday 8 February 2023.
(iii) Friday 10 March 2023.
(iv) Friday 24 March 2023.
(v) Monday 3 April 2023.
(vi) Tuesday 4 April 2023.
(vii) Wednesday 5 April 2023.
(viii) Thursday 6 April 2023.
29 Of the eight days, Ms Burke states that while she was not on approved leave, she nonetheless had an entitlement to take leave: Spasojevic v Speaker of the Legislative Assembly [2023] WAIRC 00001 (Spasojevic) [61]–[62]:
61 When Gageler J observed that procedural rules safeguard against ‘sickies’, his Honour was averting to abuse of the entitlement by paid absence from work in circumstances that do not qualify for the entitlement. The procedural rules, however, do not condition the entitlement. The entitlement depends, relevantly, on an employee being unfit for work due to an illness or injury.
62 While there may be procedural rules, processes and procedures designed to prevent the abuse of leave entitlements, compliance with the procedure does not, in and of itself, give rise to an entitlement to the benefit. The preconditions for the benefit must always be met. The other side of the coin is that satisfying the procedural rules is not, in and of itself, conclusive as to whether there has been an abuse of the entitlement. Rules can be used dishonestly, just as they can be improperly evaded.
30 Ms Burke submits that she was entitled to take personal leave on the first four of the eight days at [28(d)(i)–(iv)] above.
31 While Ms Burke did not provide a medical certificate to the respondent at the time of her absence on Wednesday 8 February 2023 ([28(d)(ii)] above), she has subsequently produced a medical certificate for this day in these proceedings: Appellant’s Bundle: Screenshot of email from Hola Health dated 8 February 2023 with attached medical certificate.
32 While Ms Burke does not have a medical certificate for Tuesday 7 February, Friday 10 March and Friday 24 March 2023 ([28(d)(i), (iii)–(iv)] above), she contends that those days are sandwiched inbetween other days for which she has provided medical certificates.
33 Ms Burke maintains that, given the circumstances outlined at [31]–[32] above, the Board should be satisfied that she was ill or injured and therefore had an entitlement to take leave, whether paid or unpaid.
34 Ms Burke was absent on Sorry Business on Monday 27–Thursday 30 March 2023, for which the respondent granted three days bereavement leave and one day cultural leave. Ms Burke says that clauses 32–33 of the CSA Agreement entitles her to 10 days of leave, comprising five days of cultural leave and five days of bereavement leave where she is required to travel more than 240km due to the bereavement, as was the case on this occasion. Ms Burke maintains that her entitlement to 10 days of cultural and bereavement leave would cover her four days of absences listed at [28(d)(v)–(viii)] above.
35 In any event, Ms Burke argues that a small handful of unapproved absences in the past do not provide a basis to conclude that she would be incapable of fulfilling the inherent requirements of her role going forward.
36 Ms Burke submits that there is no medical evidence which suggests she is unable to fulfil the inherent requirements of her role. Ms Burke relies on Dr Lai’s reports dated:
(a) 26 October 2022 [Agreed Document 9]:
1) Does Trista Burke have a medical condition that may be affecting their ability to work?
[x] Further information required
The only longer term conditions apparent to me that are likely to affect future attendance are asthma and endometriosis. I am seeking further information from Ms Burke’s regular GP Dr Okezie. …
3) Their medical capacity to undertake the inherent requirements of their substantive position including regular attendance, ability to work safely and ability to undergo normal performance management. If not fully fit, what is impact of the condition as it related to work tasks.
[x] Further information required, (continue as is at work)
I am seeking further information from Dr Okezie on whether Ms Burke is medically capable of regular attendance.
(b) 16 November 2022 [Agreed Document 10]:
1) Does Trista Burke have a medical condition that may be affecting their ability to work?
Dr Okezie advised that Ms Burke’s most common medical presentations were:
a) Anxiety and depression – possibly reactive/situational (stress)
b) Asthma, with seasonal triggers, possibly affected by (a)
In relation to (a), Ms Burke had explained to me that she had no history of any mental health conditions or treatment of such but rather had felt quite stressed at times by what was going on in her life – in my opinion, a normal reaction and not reflective of any underlying condition or vulnerability.
Dr Okezie confirmed endometriosis and that the impact of this on future work was unpredictable. …
3) Their medical capacity to undertake the inherent requirements of their substantive position including regular attendance, ability to work safely and ability to undergo normal performance management. If not fully fit, what is impact of the condition as it related to work tasks.
[x] Can return to – or continue to perform – the full duties of their current position without restriction
Ms Burke is medically capable of attending work reliably.
Dr Okezie did not recommend any workplace adjustment or restriction.
37 In relation to the fairness of the dismissal, Ms Burke submits that the Board cannot rely on all of the disciplinary findings in SID’s investigation report (SID’s report) because:
(a) She only accepted the disciplinary outcome (to be reprimanded and transferred) and not all of the findings in SID’s report. She:
(i) Acknowledges her conviction for drug driving and that she did not report it to the respondent as required.
(ii) Denies any deliberate and dishonest conduct regarding the Bunnings gift card she collected on Roseworth’s behalf. She asserts that she accidentally gave the gift card she collected to a family member and then arranged for her fiancée to purchase a replacement (ts 31).
(iii) Concedes that she pleaded guilty to the charge of stealing the Coles gift card (downgraded from stealing as a servant) because she used the gift card knowing it did not belong to her. She denies stealing it from Roseworth, stating that she found the gift card on the ground outside Roseworth’s premises while walking home from work (ts 32).
(iv) Says, regarding the $23 excursion money, that she is unsure if she was the person who received the money. If she did receive the money, she claims that she would have put it in the safe (ts 33).
(b) The SID’s report is incomplete, contains errors and has not investigated everything that ought to be investigated and is a hearsay document, in circumstances where she has given sworn evidence in the appeal contrary of some of the report’s findings (ts 180).
38 Ms Burke also argues that the Board cannot rely on concerns about her not returning a work iPad that she took home and paying for her Working with Children Check (WWCC) on a corporate credit card, as well as reimbursing herself for the payment of the WWCC in her role as School Officer, because these matters were not subject to disciplinary action and there is no evidence upon which the Board can make a finding regarding her intentional dishonesty.
39 As to fairness, Ms Burke contends that she has more than 10 years’ service and apart from the disciplinary proceedings leading to her transfer to Ashdale, there is no other disciplinary action on her record. Moreover, the dismissal has a disproportionate impact on her due to her financial circumstances.
The respondent’s contentions
40 The respondent contends that the decision to dismiss Ms Burke was based on her absences from the beginning of 2017 to the end of Term 1, 2023, excluding the period she was suspended due to the disciplinary proceedings.
41 On 6 December 2022, the respondent wrote to Ms Burke stating the view held that she was unable to fulfil the inherent requirements of her role due to her inability to attend work regularly and reliably, and providing her with an opportunity during Term 1, 2023 to displace this view. At the end of Term 1, 2023, the respondent concluded that Ms Burke was still unable to attend work regularly and reliably, thereby unable to fulfil the inherent requirements of her role. After providing Ms Burke with an opportunity to respond (Agreed Document 15), and considering her response (Agreed Document 16), the respondent dismissed Ms Burke on this basis (Agreed Document 17).
42 The respondent submits that Ms Burke’s contract specifies that her ‘Duties/Task’ as being ‘in accordance with the Job Description Form [(JDF)] and other duties as directed which are within the limits of the employee’s skill, competence and training, including work which is incidental or peripheral to the employee’s main tasks or functions’. The respondent maintains that the JDF outlines Ms Burke’s role as performing administrative support tasks at the school:
ROLE
The School Officer:
• provides assistance to the [MCS] with administering the financial resources of the school including undertaking account and GST coding, reconciliations, invoice processing and BAS/FREDA returns
• assists with month-end procedures, including transporting receipts to the bank and ensuring data integrity
• collates figures for financial planning and budgeting
• assists with the management of school assets, including assistance with the administration of outofhours use of school facilities, coordinating and negotiating maintenance and repairs and maintaining key registers and security system codes
• assists with the induction and support of administrative school support staff development of induction programs and materials for school support staff, and the coordination of relief staff
• provides advice to staff on travel, subsidies and allowances
• administers the operation of school databases, records and management information systems including timetabling
• establishes ordering procedures for office consumables
• creates and prepares school materials for publication and undertakes routine analyses and reports on results
• undertakes studentrelated activities, including providing information, advice and collecting documentation for enrolment of new students
• supervises work experience students and assists the Vocational Education and Training Coordinator with the placement and monitoring of students.
43 The respondent contends that the implication of Ms Burke’s contention regarding the inherent requirements of her role being subject to an entitlement to leave, would effectively prevent an employer from making a finding that an employee is unable to perform their duties where there is an ongoing entitlement to leave. Effectively, this would mean that in cases where a longterm public sector employee has years of accrued personal leave, the employer would need to wait out the duration of the leave before being able to consider retirement due to health reasons. Furthermore, as demonstrated by Ms Burke under the CSA Agreement, where there is no cap on the amount of unpaid personal leave she can apply for, the employer would be prevented from taking action even if they have medical evidence indicating that the employee will be unfit to attend work in the foreseeable future.
44 In contrast to other forms of leave, such as parental leave, where the employer can plan for the absence, Ms Burke gave very short notice of her absences for most of Term 1, 2023, making it difficult for the respondent to plan for. Despite the respondent placing Ms Burke on notice that her employment was at risk, and despite Ms McKernan communicating that it would be helpful for Ms Burke to apply for longer periods of leave where she anticipated needing time off, such as a week’s leave, Ms Burke did not do so (ts 188).
45 The respondent contends the dismissal decision was open to them for the following reasons:
(a) Firstly, the extent of Ms Burke’s absences were consistently high throughout her employment from 2017–‍2023. Her absences did not abate for any significant period and tended to escalate over time.
(b) Secondly, Ms Burke’s reasons for her absences lacked an identifiable consistent cause. With the exception of Term 1, 2023, where she cited only two reasons (COVID-19 and ongoing respiratory symptoms at the beginning of the Term, and Sorry Business at the end of the Term), her explanations for being absent varied widely.
(c) Thirdly, Ms Burke was twice assessed in 2019 and 2022 by the Department’s Occupational Physician as medically capable of attending work regularly.
46 The respondent agrees that the assessment of whether Ms Burke’s ability to fulfil the inherent requirements of her role is a forward-looking one. However, the respondent submits that the appropriate time for undertaking this assessment is at the point of dismissal. The respondent relies upon Durham v Director General, Department of Communities [2023] WAIRC 00403 [33]–[47] and the position in the Commission’s unfair dismissals jurisdiction.
47 Nevertheless, the respondent submits that given the matters at [45] above, it makes little practical difference whether the Board undertakes the forward-looking assessment at the time of dismissal or at the time of the appeal hearing.
48 The respondent accepts there is evidence that Ms Burke contracted COVID-19 in December 2022 and January 2023 and that she visited her usual GP, Dr Okezie four times during Term 1, 2023 on 2 February, 17 February, 22 February and 22 March 2023. Additionally, the respondent recognises that Ms Burke has a longterm history of asthma and that Dr Okezie ordered blood tests and an X-ray due to her protracted postCOVID-19 cough on 17 February and 22 February 2023. However, the respondent submits there is a significant gap between this evidence and the conclusion sought by Ms Burke that her absences during Term 1, 2023 were so exceptional that they cannot be taken into account, for the following reasons:
(a) There is no evidence linking all of Ms Burke’s Term 1, 2023 absences to COVID19. After 27 February 2023, a one-month gap precedes her cultural and bereavement leave on 27 March 2023. During this period, there is evidence of only one consultation with Dr Okezie on 22 March 2023 which may be linked to her medical condition, whilst the remaining certificates were issued by Hola Health (ts 192).
(b) The Board should not accept the certificates issued by Hola Health as constituting a doctor’s medical opinion in each case, because the Board cannot be satisfied that Ms Burke consulted with a doctor through a telehealth consult on each occasion.
(c) In any event, the Hola Health certificates do not state the nature of Ms Burke’s illness. Thus, even if they are accepted as being from a telehealth consult with a doctor, there is no ability to know whether they are issued due to the after-effects of COVID19 or due to a new and different medical condition.
(d) Therefore, Ms Burke has not established that her post-COVID19 symptoms provide a complete explanation for her absences in Term 1, 2023.
(e) Accordingly, it was open to the respondent, and it is now open to the Board, to find that Ms Burke has not disturbed the position as at the end of Term 1, 2023 that she could not fulfil the inherent requirements of her role based on her absences since 2017.
49 The respondent submits that in circumstances where Ms Burke was put on notice that she was required to meet very strict evidence requirements due to ongoing concerns about her absences and that her employment was at risk, taking eight days of unapproved leave is indicative of her inability to work within the respondent’s requirements regarding her absences, even if the number of unapproved absences is numerically low.
50 The respondent submits that the disciplinary outcomes of the past disciplinary proceedings (of reprimand and transfer) cannot be divorced from the disciplinary findings: Titelius v Director General of the Department of Justice [2019] WAIRC 00195 [22]; Magyar v Department of Education [2019] WAIRC 00781 [33]. The respondent submits that the Board can have regard to the evidence in the SID’s report without being satisfied that the findings made in the report were open to the respondent.
51 Further, the respondent submits that Ms Burke’s evidence before the Board was essentially the same as her evidence throughout the disciplinary proceedings, and it is open to the Board to find that Ms Burke was dishonest in her responses to the allegations concerning the Bunnings gift card, the Coles gift card and the $23 excursion money.
52 The respondent submits that two implications arise from a finding concerning Ms Burke’s dishonesty:
(a) Firstly, the weight the Board assigns to Ms Burke’s evidence about the nature, extent and reasons for her absences in Term 1, 2023. Specifically, whether such absences were due to longCOVID, and if they should be considered exceptional and distinct from all of Ms Burke’s absences in previous years.
(b) Secondly, Ms Burke’s failure to ‘engage frankly, candidly and cooperatively’ with the respondent means that an order for reinstatement would be inconsistent with the Board’s exercise of power in accordance with equity, good conscience and the substantial merits of the case: Walley v Director General, Department of Biodiversity, Conservation and Attractions [2021] WAIRC 00569 [114]–[115].
53 The respondent submits that Ms Burke has been dishonest about her health on two occasions.
54 The first occasion was on 26 October 2022, during her fitness for work assessment, when she informed Dr Lai that she ‘had no history of any mental health conditions or treatment of such but rather had felt quite stressed at times by what was going on in her life’ (Agreed Document 10). This is inconsistent with Ms Burke’s written response to the five allegations of misconduct on 12 April 2021 (Attachment 44 of SID’s report), where she stated: ‘since speaking with my GP to explain my current state of mind, emotionally & physically, he’s diagnosed me with severe anxiety & depression. I was prescribed medication to assist me in my everyday life, something I’ve never needed to rely on due to my resilience’.
55 The respondent submits that the fact Ms Burke was sent to Dr Lai (the Department’s occupational physician) for a fitness for work assessment due to concerns regarding her ability to attend work, makes her dishonesty to Dr Lai particularly significant.
56 The second occasion of dishonesty was her response to the respondent’s proposal to dismiss her dated 15 May 2023 (Agreed Document 16):
(a) Agreed Bundle, 169:
2023 ABSENCES – 45 DAYS ABSENT
January, February, March – Sick due to Covid & Long Covid. [I’ve] had numerous courses of antibiotics & steroids. A number of different ultrasounds, x-rays, Cat Scans, Blood tests, Iron infusions. I have had a 2 week break from needing antibiotics, however I’m still taking steroids & relying on my Asthma medication.
(b) Agreed Bundle, 159:
L Hillbrick states you were provided an opportunity Term 1 2023, however during this period you were still absent majority of the term. Evidence supports a finding that you did not demonstrate that you can regularly attend work.
I tested positive to Covid on 21/1/23 for the second time in just over 2 months. I’m a severe asthmatic & also suffer with [Anaemia]. My symptoms all show that I’m a likely candidate for long Covid, I’ve had numerous tests including ultrasounds, cat scans, x-rays. Several courses of antibiotics & steroids.
The judgement of I was provided ample opportunity of all Term 1 2023 is not a fair judgement due to an illness I didn’t choose to catch, nor did I do anything to put myself in a situation where I would potentially catch Covid.
57 The respondent submits that Ms Burke’s dishonesty in claiming to have undergone tests when either no such tests were conducted or the tests were not for the purported reasons she stated (COVID and longCOVID) is a particularly significant issue.
58 The respondent submits that the two occasions of Ms Burke’s dishonesty about her health are significant enough for the Board to be convinced that if she were reinstated and an issue arose concerning her absences, Ms Burke would likely be dishonest with the respondent once again.
59 The respondent submits that the Board should not reinstate Ms Burke where it cannot be assured that she will attend work regularly and reliably. Moreover, Ms Burke’s demonstrated dishonesty is a further factor working against her reinstatement.
Consideration
The evidentiary onus
60 There is no dispute that as it is Ms Burke’s appeal, she has the onus of satisfying the Board that it should interfere with and adjust the dismissal.
61 In G v H (1994) 181 CLR 387 (G v H), 391–392, Brennan and McHugh JJ stated:
[W]hen a court is deciding whether a party on whom rests the burden of proving an issue on the balance of probabilities has discharged that burden, regard must be had to that party’s ability to adduce evidence relevant to the issue and any failure on the part of the other party to adduce available evidence in response. As Mason CJ, Deane and Dawson JJ explained in Weissensteiner v The Queen:
[I]t has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. (footnotes omitted)
62 In G v H, 402, Deane, Dawson and Gaudron JJ stated:
[I]t is well settled that, in the course of the ordinary processes of legal reasoning, an inference may be drawn contrary to the interests of a party who, although having it within his or her power to provide or give evidence on some issue, declines to do so. Thus, for example, there may sometimes be an inference in civil cases that the evidence, if called, would not assist that party’s case. And there may sometimes be an inference in criminal cases of ‘guilty knowledge’, in the sense of knowledge that the evidence cannot be explained in a way that is consistent with innocence. They are inferences that are to be drawn, if at all, in accordance with strict legal reasoning. In other cases, the failure to give evidence may result in more ready acceptance of the evidence for the other party or the more ready drawing of an inference that is open on that evidence. (footnotes omitted)
63 Besanko J in RobertsSmith v Fairfax Media Publications Pty Ltd (No 41) [2023] FCA 555 [122]–[124] summarised the decisions relevant to the question of whether a court could be satisfied to the relevant standard from the evidence that was before the court:
122 In Ho v Powell [2001] NSWSCA 168; (2001) 51 NSWLR (Ho v Powell) Hodgson J (with whom Beazley JA agreed) made the following two points. First, Lord Mansfields’s maxim in Blatch v Archer (1774) 1 Cowp 63 at 65; (1774) 98 ER 969 at 970 that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted, may affect the assessment of matters which are relevant to whether the limited material before the Court is an appropriate basis on which to reach a reasonable decision. Secondly, the principle in Jones v Dunkel is a particular application of Lord Mansfield’s maxim. Hodgson JA said the following (at [14]–[16]):
14 There is a long-standing controversy whether the civil standard of proof requires a numerical probability in excess of 50 per cent (see Davies v Taylor [1974] AC 207 at 219), or belief amounting to reasonable satisfaction (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361362). My own opinion is that the resolution of the controversy involves recognition that, in deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision. I discussed this in some detail in an article published at (1995) 69 ALJ 731 (D H Hodgson, ‘The Scales of Justice: Probability and Proof in Legal Fact-finding’).
15 In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so: cf 69 ALJ at 732-3, 736, 740. As stated by Lord Mansfield in Blatch v Archer (1774) 1 Cowp. 63 at 65 (98 ER 969 at 970): ‘… [A]ll evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted’. See also Azzopardi v The Queen (2000) 75 ALJR 931 at 935 [10]; 179 ALR 349 at 353 [10].
16 The case of Jones v Dunkel (1959) 101 CLR 298 is a particular application of this principle. That case itself related to a situation where there was evidence supporting an inference against a party, and that party did not give or call evidence, which that party was plainly in a position to have given or called, in order to explain or contradict the material presented. In my opinion, a similar principle applies where a person bearing the onus of proof does not give or call evidence which that person is plainly in a position to give or call; and unless some explanation is given of this failure, the tribunal of fact is entitled to infer that this evidence would not have assisted that person’s case: cf Commercial Union Insurance Co. of Australia Limited v Fercom Pty Limited (1991) 22 NSWLR 389.
123 In Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450 (Coshott v Prentice), the Full Court of this Court referred with approval to Lord Mansfield’s maxim and the observations of Hodgson JA in Ho v Powell (at [80]) and went on to say the following (at [81]–[82]):
81 Thus, where the evidence relied upon by a party bearing the onus of proof does not itself clearly discharge the onus, the failure by that party to call or give evidence that could cast light on a matter in dispute is relevant to determining whether the onus is being discharged: Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371 (Dixon CJ); Shalhoub v Buchanan [2004] NSWSC 99 at [71] (Campbell J). This principle is therefore wider than that in Jones v Dunkel (1959) 101 CLR 298. As Austin J in Australian Securities and Investments Commission v Rich (2009) 236 FLR 1 explained at 93 [440], ‘[w]hereas Jones v Dunkel reinforces an inference drawn against the party who has not called evidence, to the effect that the evidence would not have assisted that party’s case, Blatch v Archer leads either to the drawing of such an inference, or to some other assessment of the weight of evidence, unfavourable to the party against whom the principle is applied.’ (emphasis in original)
82 In short, the Coshott parties bore the onus of proving the trust over Robert’s interest but failed to call or give evidence explaining the documents and transactions on which they rely. Yet Robert, in particular, was in the best position to explain them. This cannot be ignored when weighing the limited evidence they relied upon to support their case with all the other evidence which tended to undermine it.
124 In Heydon JD, Cross on Evidence (13th ed, LexisNexis Australia, 2021), the learned author states (at [1215]):
Lord Mansfield CJ’s maxim is wider than the rule in Jones v Dunkel because the rule is available against a party not bearing the onus of proof. But the maxim is also available against a party bearing that onus – in permitting a conclusion that uncalled evidence would not have helped the case of a party not calling it, or permitting inferences against the party to be more strongly drawn, or assisting in deciding whether the party bearing the onus has discharged it.
Can Ms Burke be dismissed for an inability to fulfil the inherent requirements of her role?
64 In her written submissions, Ms Burke challenges whether an inability to fulfil the inherent requirements of her role is a basis on which she can be dismissed, considering s 239 of the School Education Act 1999 (WA) provides that Part 5 of the PSM Act applies to her employment, and Part 5 only deals with dismissal for substandard performance or breach of discipline.
65 The respondent’s written submissions state that a dismissal due to an inability to fulfil the inherent requirements of the role has been accepted in circumstances including:
(a) Where an employee cannot fulfil the inherent requirements of their role due to illness or injury, and will not be able to do so in the reasonably near future: Batchelar v Skybus (1983) 63 WAIG 2244 (Batchelar), Jones [70]–[72]; Moran v The Commissioner of Police [2015] WAIRC 00464 (Moran) [195]–[197].
(b) Where an employee cannot fulfil the inherent requirements of their role because they cannot attend work due to mandatory vaccination requirements: Goodrem v Commissioner for Public Employment [2023] FWCFB 186 [50], [65]; Mourtada v Dnata Airport Services Pty Ltd [2022] FWC 1014 [59]–[66]. The respondent submits that whilst Western Australian public sector employers dismissed employees for a failure to comply with a lawful vaccination direction, it does not preclude employees being dismissed for their inability to fulfil the inherent requirements of their role as a result of their inability to attend work due to their vaccination status.
66 In HellerBhatt v Director General, Department of Communities [2022] WAIRC 00719 (Heller-Bhatt), the employer dismissed Ms Heller-Bhatt for not following a lawful vaccination direction [3]. The Public Service Appeal Board found at [108] and [111]:
108 … In this case, failing to comply with the requirement to be vaccinated or provide a valid exemption meant that Ms Heller-Bhatt was unable to perform some of those key duties that she was engaged to perform. We find that because Ms Heller-Bhatt was not vaccinated or exempt, Ms Heller-Bhatt could not perform all of the duties of her role in accordance with her engagement. We consider that Ms HellerBhatt’s conduct in failing to comply with the Employer Direction was inconsistent with the continuation of her employment.
111 In this case, failing to comply with the Employer Direction was incompatible with Ms Heller-Bhatt’s obligation as an employee to provide service. It meant that she could not perform all of the duties she was engaged to perform.
67 Heller-Bhatt [108] has been followed in:
(a) Kos v Director General, Department of Transport [2023] WAIRC 00298 [116], where the appeal before the Public Service Appeal Board involved the dismissal of Ms Kos for being absent from work without authorisation: [115]–[116]
115 Whether in the public or private sector, an employee’s ongoing refusal to provide an explanation for being absent from work, supported by medical evidence, would provide a valid reason for an employee’s 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.
116 There is little doubt the appellant’s ongoing conduct by refusing to comply with the Department’s directions to return to work after 3 May 2022 was inconsistent with the continuation of her employment: Heller-Bhatt [108].
(b) Mills v South Metropolitan TAFE [2023] WAIRC 00230 [96], an unfair dismissal claim before the Commission in which the Commission found: [93]–[96]
93 Based on the evidence, I find that an inherent requirement of Mr Mills’ responsibilities as a trade lecturer involves in-person instruction and demonstration, requiring his presence on campus.
94 TAFE maintains that Mr Mills’ non-compliance with the Employer Direction, given that it prevents him from fulfilling the essential core duties of his role, constitutes a serious disciplinary breach justifying dismissal.
95 TAFE submits that the breach is serious because, like the employees in Kazantzis and Stevens, Mr Mills made a choice to not get vaccinated, which meant he was unable to perform the inherent requirements of his role.
96 I find that Mr Mills’ failure to comply with the Employer Direction meant Mr Mills was unable to perform the inherent requirements of the role he was employed to perform. His conduct in failing to comply with the Employer Direction was inconsistent with the continuation of his employment: Heller-Bhatt [108]. …
(c) Carter v Director General, Department of Education [2023] WAIRC 00883 [128], where the Public Service Appeal Board was determining whether it had jurisdiction to hear Ms Carter’s appeal of her dismissal under s 80I(1)(d) of the IR Act: [125]–[128]
125 Mr Matkovich stated that as at Term 1, 2020 all the schools were open and all school-based staff needed to be vaccinated to enter a school. This meant Ms Carter was unable to perform her role at any school.
126 The respondent contends that it was entirely appropriate to stand down Ms Carter without pay, given that she could not enter the school grounds, could not perform her duties and could not fulfil her employment contract. The Board agrees.
127 The Board finds that Ms Carter’s failure to comply with the CEO Instructions meant Ms Carter was unable to perform the inherent requirements of the role she was employed to perform.
128 An employee’s conduct in failing to comply with an employer direction to vaccinate or provide an exemption, preventing the employee from performing all of the duties of their role, is inconsistent with the continuation of employment: Heller-Bhatt [108].
68 For the reasons at [66]–[67] above, the Board agrees with the respondent’s submission at [65(b)] above that an employee’s inability to attend work and fulfil the inherent requirements of their role is inconsistent with the continuation of their employment, for which they may be dismissed.
69 While Ms Burke submitted that her dismissal appears to be the first occasion in which a Western Australian public sector employer has dismissed an employee on the basis that their non-attendance at work amounts to an inability to fulfil the inherent requirements of a role, she did not directly advance the challenge at [64] above at the hearing. Further, as noted at [13] above, Ms Burke does not contest the dismissal on any procedural fairness grounds, and there is no dispute that the Board has jurisdiction to hear Ms Burke’s appeal de novo and can substitute the respondent’s view with its own view ([14]–[15] above), which would cure any procedural irregularities.
70 Furthermore, Ms Burke submitted that the respondent’s ‘decision must be totally disregarded and must not be given any weight in the Board’s determination of this appeal’: Appellant’s Outline of Submissions [23].
71 By this, and for the reasons at [69] above, the Board considers that it is not prevented from substituting the respondent’s view (to dismiss Ms Burke for an inability to fulfil the inherent requirements of her role and not for substandard performance or a breach of discipline under Part 5 of the PSM Act), with its own view about Ms Burke’s dismissal for a reason under Part 5 of the PSM Act.
What are the inherent requirements of Ms Burke’s role?
72 The Board agrees with the principles set out in Spasojevic [53]–[56] that: (emphasis added)
(a) An employee’s entitlement to payment of salary arises from their contract of employment, which requires them to perform the full range of work assigned to them.
(b) Leave entitlements are exceptions to the primary obligation to perform work.
(c) Paid leave entitlements generally involve two components: the entitlement to be absent from work and the entitlement to be paid in respect of such absence despite not rendering any service. ‘There may also be leave entitlements that authorise an absence from work, but do not involve any liability for the employer to pay.’
(d) There is no at large entitlement to take leave. Leave can only be taken in the circumstances set out in the relevant clauses of the industrial instrument creating the leave entitlement.
73 Considering the principles at [72] above, and Ms Burke’s contract and JDF (at [42] above) in accordance with X [105], the Board finds that it is an inherent requirement of Ms Burke’s role to attend for work: Wilkie v National Storage Operations Pty Ltd [2013] FCCA 1056 (Wilkie) [78].
74 Furthermore, the Board finds that Ms Burke was required to attend the workplace for 72 hours each fortnight (in accordance with clause 22.2 of the CSA Agreement and her 0.9 FTE) in order to fulfil the inherent requirements of her role: Rooney v State of Queensland (Queensland Health) [2022] QIRC 267 [35].
75 The Board accepts the respondent’s submission that Wilkie [77] and [78] should be read together, and as stating that it is not an inherent requirement of Ms Burke’s role that she not take any annual leave, personal leave and carer’s leave to which she is entitled under the Award and CSA Agreement: Respondent’s Outline of Submissions [52]:
77 The Respondent also argues that the transfer of the Applicant was necessary due to the ‘inherent requirements of the particular position concerned.’ The basis of this argument appears to be that because the Centre at Cockburn was operated with only one full-time and one
part-time employee it was an ‘inherent requirement’ that the full-time employee be there for all rostered hours.
78 While it is clearly an inherent requirement of a position that an employee attend for work, it could hardly be an inherent requirement of a position that the person not access the annual leave, personal leave and carer’s leave to which they are entitled by statute and contract.
Was Ms Burke unable to fulfil the inherent requirements of her role?
76 Ms Burke objects to the respondent’s reliance upon Jones and Moran on the basis that those cases involve the removal of a police officer under the Police Act 1892 (WA), a specific statutory scheme, which does not apply to Ms Burke.
77 In Jones [70] (at [22(a)] above), [71]–[72], Beech CC (Wood C and Mayman C agreeing), states:
71 [Kyriakopoulos] was endorsed by Fielding C of this Commission in [Batchelor] when he dismissed a claim of unfair dismissal by Ms Batchelar who, after 3 months’ employment as a bus driver injured her knee sufficiently to prevent her operating the controls of a bus. Upon her return to work some 6 months later, but still unable to drive a bus, she was dismissed because there was not enough alternate work for her to do. In dismissing Ms Batchelar’s claim that her dismissal was unfair, Fielding C stated:
An employer is not obliged to keep the former position open indefinitely, but only for a reasonable time. In considering the question of fairness of otherwise of any dismissal which results in circumstances such as these, consideration should be given to the employee’s past service record, and the efforts made to rehabilitate after the injury.
72 The above points, whilst a useful aid for analysis, are not directly applicable here because the circumstances of police officers are not directly comparable to those of employees in industry generally. Employees in industry generally in WA have had an entitlement to ten days’ sick leave per year since that was determined by this Commission in 1979 (The West Australian Shop Assistants and Warehouse Employees Industrial Union of Workers, Perth v Boans Ltd (1979) 59 WAIG 1377) and this is reflected in Part 4 Division 2 of the Minimum Conditions of Employment Act, 1993 as 76 hours per fortnight.
78 In Moran [197], Kenner C states:
To the extent that the general approach in [Kyriakopoulos and Batchelar] was endorsed in Jones, I would similarly have regard to them in this appeal. I cannot accept the proposition that the Commissioner of Police should be required to maintain indefinitely in the Police Force, an Officer who has been found to be medically unfit for duty, has no reasonable prospect of any recovery and is either unable or unwilling to be rehabilitated into any other available position within the Force. …
79 By the passages at [77]–[78] above, the Commission in Jones and Moran acknowledged that the approach in Kyriakopoulos and Batchelar applying to employees in industry generally, was a useful aid for analysis even within the context of the removal of a police officer.
80 There is no suggestion that Ms Burke is not an employee to whom the principles in Kyriakopoulos and Batchelar would apply. Therefore, the Board considers it appropriate to apply the principles at [22(a)] and [77]–[78] above to Ms Burke’s appeal.
81 Ms Burke did not dispute that the period the respondent provided for her to demonstrate she could fulfil the inherent requirements of her role, namely throughout Term 1, 2023, was an unreasonable timeframe. Furthermore, applying the principles set out in Kyriakopoulos and Batchelar, the Board considers the period, namely throughout Term 1, 2023, a reasonable one, taking into account all the circumstances involved: Jones [70(ii)].
82 Agreed Document 14 is the respondent’s letter to Ms Burke dated 6 December 2022. In this letter, the respondent notifies Ms Burke:
(a) Of the concern that since commencing at Ashdale in May 2022, she has ‘demonstrated a pattern of irregular absences from work due to a range of reasons’. The letter attaches the Absence Yearly Calendar reports for 2017–2020 and 2022.
(b) Of the expectation to ‘work with regularity’ and to ‘attend for work as per [her] hours of duty on a consistent and reliable basis’, Monday–Friday, 8am–4pm according to her 0.9 FTE.
(c) That:
(i) She has an opportunity to demonstrate regular attendance over Term 1, 2023;
(ii) Her attendance over Term 1, 2023 will be reviewed at the end of the term on 6 April 2023; and
(iii) If her attendance over Term 1, 2023 is considered ‘concerning, consideration will be given to making a recommendation to the Executive Director Workforce that your employment be terminated’.
83 Despite Agreed Document 14 at [82] above, over Term 1, 2023, Ms Burke only attended for work 0.33 of a day (Statement of Agreed Facts [23]) on Monday 27 February 2023. On this day, Ms Burke left work at around 10.30am, and on 28 February 2023, Ms McKernan entered Ms Burke’s ‘personal leave into HRMIS for 27 and 28 February (as you texted me this morning to say you’d give today a miss). You have exhausted all your paid personal leave, so it will now be unpaid personal leave’: Agreed Document 12.
84 Agreed Document 11 is the evidence Ms Burke provided to the respondent for her absences during Term 1, 2023. These are summarised as follows:
Rostered days of work/absences in Term 1, 2023
Document provided by Ms Burke as evidence
Days covered
Certificate issued by Hola Health?
Wednesday 25 January–Friday 27 January
Medical Certificate issued by Dr McMullen on 24 January 2023
3

Monday 30 January–Wednesday 1 February
Medical Certificate issued by Dr Lodhi on 31 January 2023
3
Yes
Thursday 2 February
Medical Certificate issued by Dr Okezie on 2 February 2023
1

Monday 6 February
Medical Certificate issued by Dr Doria on 6 February 2023
1
Yes
Tuesday 7 February



Wednesday 8 February



Thursday 9 February–Friday 10 February
Medical Certificate issued by Dr Hetenyi on 9 February 2023
2
Yes
Monday 13 February–Tuesday 14 February
Medical Certificate issued by Dr Bajwa on 13 February 2023
2
Yes
Wednesday 15 February–Thursday 16 February
Medical Certificate issued by Dr Bajwa on 15 February 2023
2
Yes
Monday 20 February
Medical Certificate issued by Dr Hetenyi on 20 February 2023
1
Yes
Tuesday 21 February
Medical Certificate issued by Dr Hetenyi on 21 February 2023
1
Yes
Wednesday 22 February
Medical Certificate issued by Dr Okezie on 22 February 2023
1

Thursday 23 February
Medical Certificate issued by Dr Hetenyi on 23 February 2023
1
Yes
Friday 24 February
Medical Certificate issued by Dr Hetenyi on 24 February 2023
1
Yes
Monday 27 February–Tuesday 28 February
Medical Certificate issued by Dr Bajwa on 28 February 2023
2
Yes
Wednesday 1 March
Medical Certificate issued by Dr Bajwa on 1 March 2023
1
Yes
Thursday 2 March
Medical Certificate issued by Dr Bajwa on 2 March 2023
1
Yes
Monday 6 March
Medical Certificate issued by Dr Hetenyi on 6 March 2023
1
Yes
Tuesday 7 March–Wednesday 8 March
Medical Certificate issued by Dr Hetenyi on 7 March 2023
2
Yes
Thursday 9 March
Medical Certificate issued by Dr Hetenyi on 9 March 2023
1
Yes
Friday 10 March



Monday 13 March
Medical Certificate issued by Dr Lodhi on 13 March 2023
1
Yes
Tuesday 14 March
Medical Certificate issued by Dr Lodhi on 14 March 2023
1
Yes
Wednesday 15 March–Thursday 16 March
Medical Certificate issued by Dr Lodhi on 15 March 2023
2
Yes
Monday 20 March–Tuesday 21 March
Medical Certificate issued by Dr Hetenyi on 20 March 2023
2
Yes
Wednesday 22 March–Thursday 23 March
Medical Certificate issued by Dr Okezie on 22 March 2023
2

Friday 24 March



Monday 27 March–Thursday 30 March
Letter to Ashdale’s MCS and Principal requesting cultural leave to attend Sorry Business
4

Monday 3 April–Thursday 6 April



85 Under crossexamination, Ms Burke testified that her appointment with Dr McMullen was over the telephone, and some of her appointments with Dr Okezie were also telehealth consultations.
86 The table at [84] above outlines that Ms Burke submitted to the respondent the following number of medical certificates from Hola Health for the following periods:
(a) Eleven certificates for a 1-day absence.
(b) Seven certificates for a 2-day absence.
(c) One certificate for a 3-day absence.
87 On 10 November 2023, the initial version of Ms Young’s witness outline was filed, notifying Ms Burke that Ms Young would testify at the hearing about Hola Health and the possibility of obtaining a ‘Single-Same Day Certificate for Work’ by completing an online questionnaire.
88 By the time of the hearing, the respondent had placed Ms Burke on notice that it would be challenging her evidence regarding the reasons for her absences. The respondent’s outline of submissions state:
[Ms Burke’s] assertions about the reasons for her absences in Term 1 2023
65. [Ms Burke] gave two reasons for her absences in 2023. At the beginning of the term, [Ms Burke] had COVID-19 and then reported ongoing respiratory symptoms. At the end of Term 1 2023, [Ms Burke] was absent for five days to attend Sorry Business in Fitzroy crossing.
66. However, despite being on notice that her employment was at risk, [Ms Burke] provided only generic and short term medical evidence to the Respondent during Term 1 2023.
67. During Term 1 2023, [Ms Burke] provided only one and two day medical certificates to the Respondent (with the exception of one three day certificate).
68. Many of these medical certificates were provided by Hola Health, an online provider which offers one day medical certificates if a patient self-reports they are ‘feeling unwell/unfit for work today due to general illness’ and without a telehealth appointment.
69. The Respondent acknowledges that [Ms Burke] intends to give evidence that on almost every occasion she obtained a medical certificate through Hola Health, she booked a telehealth appointment and spoke to a doctor.
70. No medical certificate provided included any detail regarding the reason for [Ms Burke’s] absences.
71. When the Respondent invited [Ms Burke] to respond to her proposed dismissal, [Ms Burke] asserted that the reason [for] most of her absences was likely long COVID but did not provide any medical evidence to support this.
72. In these proceedings, [Ms Burke] has not provided any medical evidence (including, for example, notes from her General Practitioner appointments during Term 1 2023) to confirm the nature and severity of her illness throughout this period.
73. The Respondent accepts that the evidence is sufficient to show that [Ms Burke] had COVID in both December 2022 and January 2023 (leading to hospitalisation on the second occasion) and had a protracted cough for at least part of Term 1 2023.
74. However, the evidence is insufficient to demonstrate either that:
(a) [Ms Burke’s] complications from COVID-19 provide a full explanation for her absences during Term 1 2023 (excluding those to attend Sorry Business); or
(b) her Term 1 2023 absences should be considered an exceptional ‘one off’ such that no conclusions about her ongoing ability to attend work could be drawn at that point of time.
75. It was therefore open to the Respondent to find, at the end of Term 1 2023, that [Ms Burke] was unable to regularly attend work for the reasonably near future.
76. Similarly, [Ms Burke] has not, in these proceedings, provided evidence sufficient to satisfy the Board of the matters at [74] above. (footnotes omitted)
89 On 6 December 2023, Ms Burke filed a Bundle of Documents attaching a medical certificate issued by Dr Jan Hetenyi of Hola Health on 8 February 2023, which covered her absence on Wednesday 8 February 2023.
90 Ms Burke included in her Bundle of Documents what appear to be screenshots taken from her mobile telephone of emails addressed to her from Hola Health:
(a) From ‘No reply Hola He…’ ‘31 Jan’:
Hi Trista ,
Your on-demand appointment with Practitioner Hola has been confirmed. Please join by clicking this link […].
Thank You,
The Hola Health Support Team
(b) From ‘No reply Hola He…’ ‘8 Feb’:
Hi Trista ,
Thank you for your consult with Practitioner Jan. Find attached your Medical Certificate Referral .
Thank You,
The Hola Health Support Team
(c) From ‘No reply Hola He…’ ‘16 Feb’:
Hi Trista,
We received your medical certificate request and assigned it to a doctor. You will receive your medical certificate within 15 minutes of approval by the doctor.
Thank You,
The Hola Health Support Team
…
Hi Trista,
Thank you for submitting a medical certificate request. It has been approved by Dr Sobia Bajwa. Please find attached your medical certificate.
91 In accordance with s 26(1)(b) of the IR Act, which applies to the Board by virtue of s 80L of the IR Act and provides that the Board must not be bound by any rules of evidence and may inform itself on any matter in such a way as it thinks just, the Board notes that the Hola Health website provides the following options to a person seeking a medical certificate:
(a) Access to a single-same day certificate, which cannot be backdated, for $15.90; and
(b) Access to a multi-day certificate, which cannot be backdated, by seeing ‘a Hola doctor via a telehealth consult’ ‘within 15 minutes’ for $35.
92 Further, the Board notes that the Hola Health website’s ‘Frequently asked questions’ section states:
Medical Certificates
How does it work?
Fill out a short questionnaire online for one of our GPs to review – once approved, we will email your certificate to your nominated email address.
…
How many times can I book in for a single day medical certificate?
We can only provide you with three single day medical certificates in a row, after which if you are still unwell and need a fourth medical certificate, a consultation with one of our available practitioners will be required.
93 As noted at [60]–[63] above, the onus rests on Ms Burke to provide evidence supporting her claims, and the Board may draw inferences from her election not to do so.
94 As noted at [87]–[88] above, the respondent had placed Ms Burke on notice that they would contest her assertion that she obtained medical certificates following telehealth consultations rather than by self-reporting her symptoms through Hola Health’s online questionnaire. Moreover, Ms Burke was placed on notice that the respondent would challenge her evidence regarding the nature and severity of her illnesses during Term 1, 2023.
95 The respondent requested that Ms Burke provide her bank statements as evidence to determine whether she paid the lower fee (Ms Burke said this was about $12 at the time) for a 1-day certificate or the higher fee (Ms Burke said this was about $35 at the time) for a certificate following a telehealth consultation. Additionally, the respondent asked Ms Burke to produce her medical records and offered to cover any costs associated with obtaining these records.
96 Ms Burke testified that she had discussed with Dr Okezie the possibility of him providing evidence of her medical condition, but he would need to take time away from his practice to do so. She also claimed that the reason she did not produce a medical report was due to the costs, approximately $120 per page. Ms Burke said that the reason she has not provided comprehensive medical records is because she has been busy moving house. She said she has produced the test results she obtained from the administrative staff of Dr Okezie’s practice that did not involve any costs to produce.
97 During cross-examination, Ms Burke acknowledged that she informed Dr Okezie about the respondent’s offer to cover his costs. She then stated that she was not comfortable to produce her medical file because, ‘there are things in there that – about my mental health that maybe I have more of a conversation with my doctor than I do with the Department’ (ts 85). Ms Burke recognised that the request for her medical records was for the period December 2022 to the end of Term 1, 2023. She stated that she has not produced these records because she has not had the opportunity to obtain them.
98 The Board notes that Ms Burke’s evidence at [96] and [97] is inconsistent. This is a matter that the Board will return to in these reasons for decision.
99 Ms Burke explained that the reason she has not produced all emails from Hola Health is because she deleted several of them as part of her email inbox management process.
100 Ms Burke claimed that the reason she did not provide her bank statements was because she could not access Centrelink with four bank accounts, so she closed one of them. This happened to be the one she used to pay for Hola Health. During cross-examination, Ms Burke admitted that she did not attempt to retrieve records from the closed account by contacting her bank. She stated that she lacked the time to do so because she had recently moved house (on 24 November 2022) and has been occupied with unpacking (ts 82).
101 Ms Burke gave evidence that it was her choice to produce 1-day and 2-day medical certificates. She said (ts 54):
That was my choice. Um, I was so, so sick, and the optimism of waking up the next day and being okay, um, was something I wanted more than anything. Um, the stress of knowing I only had that term to come to work, yeah, it – it was my choice, um, most times against the doctor, but I just wanted to be back.
And you said, ‘The stress because you only had that term’. What did you mean by that?---Um, the ultimatum of if I couldn’t attend regularly from term 1 of 2023 that I’d be just – well, effectively, I could possibly be dismissed.
102 Ms Burke gave the following evidence about not providing the medical certificate dated 8 February 2023, covering her absence on Wednesday 8 February 2023, to Ashdale (ts 55):
Why didn’t you provide that to Ms McKernan?---Um, because I just – I went back to bed for one, um, but two, I was feeling like it didn’t really matter anyway. She’d already made up her judgment of me and – and – and everything moving forward. Um, it was just – you know what, whatever. I’ve had enough of this. I’m too sick. Um, yeah.
103 Ms Burke gave unequivocal evidence that every appointment she had with Hola Health was a telehealth consult, other than on 8 February 2023 (ts 59).
104 It was only when Ms Burke was taken to the document at [90(b)] above, which refers to a ‘consult with Practitioner Jan’, and to the document at [90(c)] above, which refers to Ms Burke being issued a medical certificate by Dr Bajwa on 16 February 2023 without a telehealth consult, that Ms Burke resiled from her evidence at [103] above (ts 60).
105 In relation to the document at [90(c)] above, Ms Burke gave evidence that she had a telehealth consult with Dr Bajwa on 15 February 2023 but did not get a certificate until 16 February 2023 ‘because again I didn’t get her to write a two-day certificate. Ah, my choice’ (ts 60).
106 When taken to the medical certificate dated 15 February 2023 stating, ‘Trista Burke has a medical condition and will be unfit for work from 15-02-2023 to 16022023’ (Agreed Document 11, 77), Ms Burke gave the following evidence (ts 61):
So when you’d seen the doctor on the 15th, did she give you a medical certificate?---Ah, so I haven’t found it in my emails, no, so I don’t have a single-day certificate, so I’m guessing when I’ve done this one, um, she’s edited it ---
Okay? to supply me, because she was meant to supply me with one on the 15th, um, so I’m guessing she’s added that to it.
107 The Board finds this explanation unconvincing. It is clear from the Hola Health website that regardless of whether a single-same day certificate or a multi-day certificate is requested, it will result in a medical certificate being issued. Accepting Ms Burke’s evidence requires the Board to accept all of the following:
(a) Ms Burke participated in a telehealth consult with Dr Bajwa on 15 February 2023;
(b) Despite Ms Burke paying for a medical certificate, Dr Bajwa did not issue one for 15 February 2023;
(c) This led to Ms Burke paying for a single-day certificate on 16 February 2023;
(d) Ms Burke’s single-day certificate request on 16 February 2023 was assigned to Dr Bajwa; and
(e) On 16 February 2023, Dr Bajwa issued a two-day certificate covering the two-days of 15–‍16 February 2023 but backdated it with an issue date of 15 February 2023.
108 The Board considers the proposition at [107] above implausible, particularly considering that Hola Health cannot backdate its certificates, as noted at [91] above.
109 The Board concludes that it is more plausible, in accordance with the document at [90(c)] above, that Ms Burke paid for and obtained a single-day certificate on 16 February 2023, which certificate was issued by Dr Bajwa based on the information Ms Burke selected herself when completing the online questionnaire, without any consultation with Dr Bajwa.
110 This raises doubts about the certificate dated 15 February 2023 that Ms Burke submitted to the respondent (Agreed Document 11, 77). It also questions the two instances in the table at [84] above where Hola Health medical certificates appear to have been backdated:
(a) Certificate issued by Dr Lodhi on 31 January 2023 for 30 January–1 February 2023.
(b) Certificate issued by Dr Bajwa on 28 February 2023 for 27–28 February 2023.
111 The matters at [110] above, are matters the Board will return to in these reasons for decision.
112 As noted at [93]–[94] above, the onus rests on Ms Burke to produce the evidence supporting her claims, and the respondent had informed her that it would challenge specific aspects of her testimony.
113 Despite this, Ms Burke failed to provide any evidence, including bank statements, to support her claim that all but one Hola Health certificate was obtained following a telehealth consult. The testimony she did give (at [103]–[104] above) was inconsistent. Considering these reasons and the matters at [92] above, the Board finds Ms Burke’s evidence at [103] above asserting that all but one Hola Health certificate was obtained following a telehealth consult to be implausible. Instead, the Board finds it more plausible that each time Ms Burke provided the respondent with a 1-day certificate from Hola Health, she paid for and obtained a 1day certificate without a telehealth consult.
114 Despite the matters at [112] above, and despite the respondent offering to pay for Dr Okezie’s costs, Ms Burke did not call nor produce evidence from Dr Okezie to support her contentions regarding her health. The testimony Ms Burke did give about the reasons for not doing so (at [96]–‍[97] above) were inconsistent.
115 Ms Burke was referred to her statement on 15 May 2023 in which she stated having undergone various tests, such as ultrasounds, xrays, CAT scans, blood tests, and iron infusions (at [56] above). Under crossexamination, Ms Burke admitted that the ultrasound was not related to COVID. Other than the ultrasound, she said her statement referred to the COVIDrelated treatments that she had either had or were pending. Despite this clarification, Ms Burke was reluctant to acknowledge that her statement might have been an exaggeration of her situation concerning her COVID-related absences during Term 1, 2023.
116 Despite Ms Burke’s reluctance to acknowledge that her statement (at [56] above) might have been an exaggeration, the Board concludes it was indeed so. The Board considers Ms Burke’s refusal to concede this minor point in the appeal to be a factor weighing against Ms Burke’s witness credibility.
117 Also weighing against Ms Burke’s witness credibility is her inconsistent, argumentative and evasive evidence concerning the prior disciplinary proceedings, as well as matters involving the WWCC and iPad (at [38] above), as outlined below.
118 On 12 July 2021, the respondent found the five allegations of misconduct (at [4] above) to be substantiated and proposed the following action:
Allegation 1: Dismissal from employment and reprimand.
Allegation 1: Dismissal from employment and reprimand.
Allegation 3: Reprimand.
Allegation 4: Reprimand.
Allegation 5: Reprimand.
119 In relation to this letter, Ms Burke said (ts 34):
All right. So this is the letter where the Department has come back to you and given you the findings?---Yes.
And they found that all of the charges are substantiated, and they’ve proposed to dismiss you?---Yes, on the balance of probabilities.
Yes. And before they made that finding, did they interview you and ask you about it orally in the way we’re talking about it now?---No. No, um, I was never given the opportunity.
120 The Board notes that Ms Burke’s evidence at [119] above, directly contradicts the respondent’s letter dated 12 July 2021, which expressly states:
Responding to the Findings and Proposed Action
Before I make a final decision and take action, you can respond to the Findings and proposed action in writing or in person with the investigator.
Please send your response to [SID] within 10 business days of you receiving this letter.
Should you choose to provide a written response, please send it to the following: …
If you would like to respond to the allegation in person, please contact …, Senior Investigator, [SID], who will arrange a convenient time for this to occur. We audio record responses to ensure full transparency. You can have a support person present.
I will consider your response before I make a final determination and impose any action.
Please note that you can choose not to provide a response. If you do not provide a response the matter will progress and you will be advised of my decision. (emphasis added)
121 During cross-examination about the allegation at [4(a)] above regarding the Bunnings gift card, Ms Burke (ts 92–93):
(a) Accepted that she collected the gift card on 29 June 2019 (Attachment 6 of SID’s report).
(b) Accepted that on 21 September 2019, Ms Keunen sent her an email stating ‘I got this voucher for our school to do the line markings. Trista picked it up but I am not sure where it went from there…Trista where did it go?’ (Attachment 6 of SID’s report).
(c) Said that after this email, she had a discussion with Ms Evans who asked her where the gift card went. Ms Burke said this was the first time the gift card had been brought up since she collected it, and that she told Ms Evans the gift card was in her spare room as she had been packing boxes to move house. Ms Burke said she told Ms Evans she was sorry, she had forgotten about it, and that she would go look for it.
(d) Agreed that on 21 November 2019 Ms Evans sent her home to find the gift card.
(e) Denied that on returning to the school, that she said to Ms Evans, ‘that was easier to find than I thought’ because ‘I’d been looking for it for – since September. Why would I say something so silly?’
(f) In addressing the contention that her response in the disciplinary investigation was dishonest said:
I gave them another card. They have a card with money on it. This is not relevant. I’m sorry, I don’t understand where you’re going with this when it’s not relevant to absences.
122 The Board considers Ms Burke’s evidence regarding the Bunnings gift card to be implausible. The Board considers it unlikely that she had been searching for the gift card since September 2019, as stated by her. If so, it is inexplicable why she did not inform Ms Keunen or Ms Evans about her search results. The Board considers it more plausible that Ms Burke had not been searching for the gift card since September 2019, which prompted Ms Evans to direct her to return home to retrieve the card on 21 November 2019. The Board has also taken into account Ms Burke’s demeanour during crossexamination. The Board perceives her as argumentative and evasive when giving her evidence at [121(f)] above, which weighs against her credibility. Considering these factors, the Board considers it is more likely that returning to Roseworth with the gift card purchased on 21 November 2019 by her fiancée, Ms Burke stated the gift card was easier to find than she thought and proceeded to hand over the newly obtained card to give the impression that it was the same one collected on Roseworth’s behalf on 29 June 2019.
123 During cross-examination about the allegation at [4(b)] above regarding the Coles gift card, Ms Burke (ts 93–94):
(a) Maintained that she found it near Roseworth.
(b) Agreed that on the morning of 21 November 2019 (the day Ms Evans directed her to go home to find the Bunnings gift card), Ms Evans informed her about the missing Coles gift card and mentioned that they had obtained CCTV footage showing someone using the gift card.
(c) Stated that it did not occur to her that the missing Coles card could possibly be the same card that she claims to have found.
(d) Denied any dishonesty in her description of finding the gift card, asserting that she was unaware it belonged to Roseworth.
124 The Board finds Ms Burke’s evidence regarding the Coles gift card to be implausible. The Board notes that Ms Burke’s evidence at [123(c)] above directly contradicts her written response dated 12 April 2021, in which she states, ‘Tracey Evans told me late November [2019] that there was CCTV footage of Roseworth missing gift card being spent. At this point I thought there might be a slight possibility the gift card I found, could have been the one RPS was waiting on.’
125 In regard to paying for the WWCC application fee on a work credit card and seeking a reimbursement, Ms Burke stated that it happened due to an oversight. She was at the post office with her fiancée at the time, and while she was having her photograph taken, he paid the WWCC application fee on Roseworth’s credit card. She did not become aware of this until Ms Evans (Roseworth’s MCS) asked her about it.
126 Ms Burke said she had ‘quite a bit of money’ in her account so she did not notice that the fee ($85) ‘was still in there’ (ts 38).
127 The Statement of Purchase Card Used for a Personal Purpose attached to Ms Nielsen’s witness outline indicates that Ms Burke provided the same explanation at [125] above to Ms Evans and subsequently to Ms Nielsen. Under the section ‘Circumstances leading to use of purchase card for a personal purpose’, the following are completed:
Type of Purchase Other
Select Circumstance Accidental purchase
128 In response to a question from her counsel as to whether anyone had ever suggested to her that this was anything other than an accident, Ms Burke said (ts 39):
[N]o, but I did have my card removed off me instantly, um, which - I mean, I felt a bit hard done by considering (a) I paid it back straight away, um, as soon as the - the accident was noticed, um, but (b) we had also had other staff members who had, for instance, bought alcohol - $100 worth of alcohol on their purchasing card, and it was laughed off as if it was just an accident and just a joke. However, I was all, ah - yeah, I was all of a sudden being - having my card removed, and this was the first time anything like this had ever happened.
129 The Board notes that this is inconsistent with what is stated on the Statement of Purchase Card Used for a Personal Purpose:
Section 7 – Action Taken
… The principal indicated that the money ($85) will need to be repaid immediately, no one other than card holder is permitted to use the card and that her corporate card will now be canceled. The principal also stated that it was not appropriate for her to approve her own reimbursement and this should be done by MCS or in her absence, the principal. The receipt for the transaction was also requested. Trista indicated that the card, receipt and money to pay back $85.00 were all at home and she would bring them in the next day. Trista texted Tracey (MCS) on the morning of 6/06/2019 to indicate she would not be at school due to sick with asthma. MCS texted Trista back to let her know that money needed to be repaid by 2 days after transaction was discovered as per guidelines. Trista returned to work after sick leave, on Friday 7/06/2019. She returned the receipt and credit card but indicated she did not have money to repay until next pay period Thursday 13 June 2019. Trista has not paid back the money yet, see attached payment plan.
130 When Ms Burke was directed to this inconsistency by her counsel and asked when she made the repayment, she stated (ts 40):
Now you’re looking at these documents, was it straight away or was it ---?---No. It would have been the pay period. You’re well, ah – yeah, you’re correct, so whatever the pay period was for then. I can’t remember that far ago.
All right?---So I’m guessing if this was an off week, go to the following Thursday, that’s the pay week.
131 Taking into account the inconsistencies in Ms Burke’s evidence as noted at [98], [103]–[104] and [113] above, and the matters that weigh against Ms Burke’s credit as noted at [116]–‍[117] above, the Board considers it unsafe to accept her testimony where it is unsupported by other evidence.
132 Ms Burke gave the following evidence about her unapproved absences for the last four days of Term 1, 2023, Monday 3 April–Thursday 6 April 2023 (ts 63):
So you were driving on the Monday?---Yes.
You got back early on the Tuesday?---Tuesday, yes. You didn’t attend on the Tuesday?---No.
Did you attend on the Wednesday or the Thursday?---No. I didn’t.
Why not?---Um, that wasn’t due to my illness that I’d been suffering. Um, I just needed a few days. Um, my Sorry Business had taken a bit of a toll. Um, I was scared of going back to work and what I was going to face. Um, yeah.
Did you ask if those extra days could be covered by bereavement or cultural leave?---No, because I had already tried to get, you know, travel time and things like that, and I’d been knocked back already so---
133 Ms Burke did not produce any evidence to corroborate her testimony at [132] above.
134 In the context of Agreed Document 14 (at [82] above), the Board finds Ms Burke’s evidence at [132] above to be inexplicable. The Board considers this evidence supports the respondent’s assertion at [49] above that the taking of unapproved leave in these circumstances demonstrates Ms Burke’s inability to adhere to the respondent’s requirements regarding her attendance at work.
135 In accordance with Jones [70(iv)] citing Kyriakopoulos (at [22(a)] above), when deciding whether the dismissal of an employee with a medical condition is unfair, one relevant consideration is the efforts made by the employee to place themselves in a position to resume their former duties as soon as possible. In the context of Agreed Document 14 (at [82] above), the Board considers that Ms Burke’s failure to provide evidence to the respondent during her eight days of absences (at [28] above), further demonstrates her inability to adhere to the respondent’s requirements regarding attendance at work.
136 Given the evidentiary onus resting on Ms Burke and considering the Board’s findings above at [108]–‍[109], [113] and [131], the Board does not consider that Ms Burke has sufficiently explained the reasons for her absences in relation to those instances where:
(a) No evidence was provided as per [28] above;
(b) Ms Burke produced a 1-day medical certificate issued by Hola Health, given these certificates can be obtained by her self-reporting her health condition through an online questionnaire without a telehealth consult; and
(c) A medical certificate issued by Hola Health covers backdated absences as mentioned at [110] above.
137 Ms Burke failed to produce her bank statements, or any evidence from Dr Okezie despite the respondent’s offer to cover Dr Okezie’s costs, to substantiate her claims concerning her absences, which is relevant for the future-looking assessment of her ability to meet the inherent requirements of her role.
138 The Board does not accept Ms Burke’s assertion that she could not produce her bank statements and evidence from Dr Okezie due to inability. The Board finds that Ms Burke had sufficient time to produce this evidence. Furthermore, Ms Burke could have requested an adjournment of the hearing in order to obtain this evidence or provided an undertaking to produce them following the hearing.
139 The Board finds that Ms Burke chose not to provide the requested evidence, and in accordance with the principles [61]–[63] above, the Board finds that Ms Burke has not discharged the onus on her to demonstrate to the Board that she can fulfil the inherent requirements of her role.
140 As noted at [131] above, the Board is unable to accept Ms Burke’s testimony regarding her health without supporting evidence. Since Ms Burke has not provided corroborating evidence, the Board agrees with the respondent’s submission at [47] above, that it is immaterial whether the forward-looking assessment of Ms Burke’s inability to fulfil the inherent requirements of her role is determined at dismissal or at hearing.
141 In accordance with Jones [70(i)] citing Kyriakopoulos (at [22(a)] above), Ms Burke would only succeed in showing her dismissal was unfair if she demonstrates, on the balance of probabilities, that she can adequately and fully discharge all duties of her role in the reasonably near future. For the reasons at [139] above, Ms Burke has failed to establish this.
Should the Board adjust the dismissal?
142 The Board has found at [72]–[75] above, that attendance at work was an inherent requirement of Ms Burke’s role.
143 The Board has found at [139] above, that Ms Burke has not discharged the onus on her to satisfy the Board that she is able to fulfil the inherent requirements of her role.
144 Given these findings, it is unnecessary for the Board to substitute its view about Ms Burke’s inability to fulfil the inherent requirements of her role with the respondent’s views.
145 Given these findings, the Board does not consider that the decision to dismiss Ms Burke was harsh, oppressive or unjust. It was not an abuse of the employer’s right to dismiss in the sense discussed in Miles v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385.
146 Even if the Board arrived at a different conclusion, the Board does not believe that the dismissal should be adjusted for the following reasons.
147 Ms Burke was subject to prior disciplinary proceedings as referenced at [4] above. The respondent found all five allegations of misconduct substantiated. Initially, the respondent proposed dismissal for the substantiation of allegations 1 and 2 regarding the Bunnings and Coles gift cards. However, after considering Ms Burke’s response, the respondent instead reprimanded her and transferred her to Ashworth, essentially providing her with a second chance in her employment. In light of these circumstances, it is unfortunate that Ms Burke did not make a greater effort to adhere to the respondent’s requirements regarding her attendance at work, particularly with respect to the eight days of unapproved leave at [28] above.
148 The Board has made credibility findings about Ms Burke’s evidence in this appeal, which consequently includes her responses to the respondent during the prior disciplinary proceedings. Given these findings, the Board cannot be satisfied that Ms Burke will engage in an open and transparent manner if she were to be returned to her employment with the respondent.
149 As noted at [144] above, although it not necessary for the Board to substitute its views about Ms Burke’s inability to fulfil the inherent requirements of her role with the respondent’s views, it is noteworthy that while the respondent did not dismiss Ms Burke for substandard performance or breach of discipline, the Board considers that it was within the respondent’s discretion to do so due to Ms Burke’s failure to adhere to the attendance requirements.
150 Although the Board has considered Ms Burke’s length of service and financial situation, it finds that these mitigating factors are insufficient to justify adjusting the dismissal in light of all the circumstances.
Conclusion
151 For the preceding reasons, the Board finds that Ms Burke has not discharged the onus on her to satisfy the Board that the decision to dismiss her should be adjusted.
152 Accordingly, the Board will order that PSAB 17 of 2023 be dismissed.