Case's outcome determines worker's entitlement to benefits
Western Australia’s Work Health and Safety Tribunal recently dealt with the case of a worker who challenged her employer’s directions about getting vaccinated against COVID-19.
The issue is whether she refused to work or was excluded from work, a crucial distinction that would determine her entitlements under labour laws.
The worker was employed as an engineering associate employed by the organisation responsible for building Western Australia’s major government road infrastructure projects.
Her employment has been affected by the COVID-19 pandemic. After the chief health officer made public health directions requiring building and construction industry workers to get the COVID-19 vaccine, the employer required its affected employees to provide evidence of vaccination or exemption.
The worker refused to be vaccinated and did not provide evidence of an exemption. She said she refused to work under the state’s Occupational Safety and Health Act when she refused to be vaccinated.
According to records, she believed that “being vaccinated would expose her to a risk of imminent and serious injury or imminent and serious harm to her health.”
She argued that her employer “did not do a risk assessment of the COVID-19 vaccinations.”
The employee did not work from January 2022 until March 2022, when the employer dismissed her.
She consequently applied an application before the Work Health and Safety Tribunal for a range of remedies, including various determinations, backpay, and damages, referring the matter to WorkSafe WA for prosecution and an order requiring the employer to complete a risk assessment.
Meanwhile, the employer argued she did not refuse to work under the OSH Act.
Rather, the employer said it “excluded her from the workplace because of the operation of the chief health officer’s directions, which meant that she was unable to work and therefore she is not entitled to the pay and benefits she claims.”
HRD recently reported on the case of a manager who said she was forced to resign after questioning a company’s vaccination policy.
Another story covered a decision that sided with an employer who fired a worker who refused to comply with the state government’s COVID-19 vaccination mandate.
The tribunal’s decision
In this case, the tribunal noted that the key question in dispute was whether the employer’s direction was a reasonable and lawful order. It said that this was beyond the scope of its power.
It said most of the remedies sought by the applicant were outside of its jurisdiction.
However, the tribunal said it had the power to assess if the worker’s claim should be dismissed or not.
“The employer issued the directions and warned her multiple times that she would be excluded from the workplace before the time she said she refused to work,” the decision said.
Thus, it found that the “operative reason” for the worker’s absence from the workplace was that the employer excluded her from the workplace, not because she refused to work.
Ultimately, the tribunal dismissed the application.
