Disciplined or dismissed as a WA nurse or midwife? The clock starts at the decision.

A senior officer was summarily dismissed for deleting messages from a work phone she had been told to return. The Commission explained that disciplinary appeals that once went to the Public Service Appeal Board now come to the Commission, which reviews the decision afresh ([55]–[58]). The employer must prove the misconduct, to the Briginshaw standard where serious misconduct is alleged ([64]–[65]). It had not ([219]). The dismissal was quashed and she was reinstated, "even if only to remain under suspension with pay" while other allegations were finished ([220]–[223]).

Not a health case: it was brought under the public service route, which has the same s 36AG powers as the health route.

A patient care assistant was dismissed as unfit to fulfil the inherent requirements of his role for the foreseeable future ([1]). He brought the claim as an ordinary unfair dismissal under s 29(1)(c) ([7]). The Commission preferred an independent psychiatric report to a general practitioner's certificate ([27]–[28]), and held that dismissing an employee while a workers' compensation matter is under way "is not unfair in and of itself" ([42]).

An appeal to the Full Bench (FBA 9 of 2026) had not been decided on the published record on 3 November 2026; applications to adduce fresh evidence in it were dismissed (Matthew Tran v East Metropolitan Health Service [2026] WAIRC 00872 at [39]).

The case arose from a home birth on 30 April 2010 under the Department of Health's Community Midwifery Program. The baby had breathing problems and later died ([3], [8]). In February 2010 a consultant obstetrician had advised that a home birth was too risky for this mother and asked to be told the birth plan ([4]-[6]). After each midwife gave a statement to the sentinel event investigation into the death, each was told she may have committed misconduct and would be investigated ([9]). They were suspended between May and October 2010 ([11]) and dismissed without notice on 21 October, 9 November and 2 December 2010 ([12], [18], [23], [28]).

The Commission found that the process "was hopelessly flawed and inept", that the midwives "were not given a fair go all round", and that the employer could not rely on its outcome ([395]). Among the failings it listed:

(a) the investigator and the decision-maker both took part in deciding the midwives' conduct during the investigation, "a serious and fundamental breach of the Guidelines" ([398]-[400]), and human resources advisers went beyond giving advice ([401]);

(b) the midwives were not asked for an explanation before the investigation began, the investigator had no written direction, and no investigation report was written ([404]-[406]); no minutes were kept of key meetings ([407]);

(c) the allegations changed during the investigation, one rested on a false premise, and the midwives were dismissed on allegations never put to them ([408]-[409]);

(d) the employer relied on material it was not open to it to use, and the sentinel event investigation overlapped with the disciplinary one in a way that denied the midwives a proper assessment of their conduct ([410], [418]);

(e) the mother and the student midwife who attended the birth were not interviewed, and documents given to them were incomplete; one midwife received only extracts of the client notes she was asked to explain ([411]-[412], [414]);

(f) the midwives' workload, the investigator's conflicts of interest and gaps in the program's policies were not taken into account ([416], [421]-[422]).

Reinstatement is the primary remedy, and the employer bears the onus of showing it is impracticable ([423]). Two midwives, with exemplary histories, had made "one-off lapses of judgement"; they were reinstated from the dates of dismissal, with lost remuneration less earnings, accrued entitlements restored and service continuous for all purposes, subject to a first and final warning for 12 months ([430]-[431]). The Ahpra restrictions on one of them were "not onerous" and were no impediment to her return ([430]).

The primary midwife was treated differently. Despite reminders, she had not made sure a birth plan was in place after the obstetrician's advice, which the Commission found was misconduct making reinstatement inappropriate ([432]). In further reasons it held that re-employment in any capacity was inappropriate (Michelle Benn v The Minister for Health [2013] WAIRC 00071 at [8]), and awarded eight weeks' wages, $13,948.64 gross plus superannuation, as roughly the time a proper investigation should have taken ([11]), and $3,000 for injury, because the harm went beyond the distress usual on a dismissal ([12]-[13]). A without-prejudice workers' compensation settlement was not set off against that award ([14]).

In the decision's words: "the process adopted by the respondent when investigating the allegations against the applicants and deciding that the applicants be terminated was hopelessly flawed and inept" ([395]).

Outcome: Won by the midwives, in part. All three were unfairly dismissed. Two were reinstated with back pay and continuous service, subject to a 12-month first and final warning. The third was not reinstated and was awarded eight weeks' wages ($13,948.64 gross plus superannuation) and $3,000 for injury. Also: further reasons Benn [2013] WAIRC 00071.

The nurse had worked for the employer for about 23 years, first as a ward clerk, then from 2005 as a Level 1 registered nurse at Graylands Hospital ([7]). She was dismissed on 28 April 2010 with five weeks' pay in lieu of notice, for misconduct in claiming meal expenses ([2]). An audit of the salary packaging scheme had led to allegations against 253 employees ([11]). Her claim of 13 July 2008 included seven restaurant receipts that seven other people had also claimed ([14]-[15]).

In January 2010 the employer told her it would investigate further, and that the investigation might include interviewing her and others ([21]). She was never interviewed ([23]). All the employer did was examine her claims history ([81]).

The Commission found that the claim was "neither a positive nor intentional wrongdoing" but a mistake, and that it did not strike at the root of the contract ([75]). Her 382 receipts between August 2007 and February 2009 averaged $53.64, against an average of $466 for the seven in question, which supported that view ([76]). The single act did not amount to misconduct under the employer's own guidelines ([85]).

The process also fell short. The investigation "was not as thorough as was realistic", and no one was interviewed before the dismissal ([83]). Her opportunity to respond "remained wanting" ([84]). A later investigation, with an interview seven months after the dismissal at the union's request, was "inconsequential" to procedural fairness ([86]). The employer gave insufficient regard to her 23 years without disciplinary action ([88]). She had also repaid the tax owed as soon as she learned of the problem ([74]).

The Commission concluded that she was unfairly dismissed ([93]). The employer bears the onus of showing that reinstatement is impracticable, so the matter was listed for submissions on remedy ([95]-[97]).

In the decision's words: "the thorough investigation promised to the applicant was never undertaken" ([87]).

Outcome: Won by the nurse: unfairly dismissed. The matter was listed for further submissions on remedy.

The nurse started on or about 12 January 1998 as Public Health Programmes Co-ordinator in Kununurra, on a one-year contract with an initial three-month probation ([9], [11]). Her employment ended on or about 28 April 1998 ([11]). The termination letter said she lacked "a clear understanding of Aboriginal cultural sensitivities" and the bi-cultural communication skills the role required ([25]).

The employer relied on two incidents in her first weeks ([26]). In one, a junior staff member assaulted her; the Commissioner found no fault on her part ([28]-[29]). The other, a disagreement over a vehicle, was resolved and did not affect her work ([32]-[34]). Her written appraisals were very favourable ([24]). The union brought her claim under s 44 of the Industrial Relations Act 1979 (WA), and the Commissioner found the dismissal harsh, oppressive and unfair, held reinstatement impracticable and ordered $22,210 compensation ([2]-[3]).

On appeal, the Full Bench held that in Western Australia a probationary employee may claim unfair dismissal ([47]), and that because the appointment was for a year, ending it needed a dismissal ([48]). Probation is "a time for teaching, training and counselling", and a probationer can expect to be counselled, trained and warned before being let go (49, (d)(ii)). A contractual right to judge the employee "cannot act as a cloak for unfairness" ([71]), and "an unfair evaluation leading to a dismissal renders the dismissal unfair" ([77]).

There was no warning, counselling or training after the first weeks ([88]). She was not told of the recommendation to dismiss her or given a chance to answer it, which alone was unfairness it was open to find ([89]-[91]). The compensation was capped at the six-month statutory maximum ([96]), and the appeal was dismissed ([99]).

In the decision's words: "probation is not a licence for harsh, oppressive, capricious, arbitrary or unfair treatment of a probationer" ([49]).

Outcome: Won by the nurse and her union: the employer's appeal was dismissed, leaving the finding of unfair dismissal and the order for $22,210 compensation in place.

On 23 May 2025 the health service directed the employee not to attend work while it investigated allegations of inappropriate behaviour ([1]). The letter said he would be paid, and that the direction was not a finding under s 162 of the Health Services Act 2016 (WA) or disciplinary action or a suspension under s 164 ([7]); it was not disputed that he was suspended on pay ([8]). He filed a referral seeking to vary the direction so he could return to work when the person he believed had complained was absent, or work from home ([3], [11]-[12]).

A dispute about the terms of a suspension on pay may be an industrial matter ([59]-[61]), but it "may only be referred by an 'organisation'", that is, a union in which the employee is a member or eligible to be one ([64]-[65]). He could not use the public service referral route, because Part 3 of the Public Sector Management Act 1994 (WA) does not apply to Health Services Act employees ([78]). Nor could he use the Health Services Act route: s 171 makes a suspension referrable only if it is on partial pay or without pay, so a suspension on full pay is not one an individual can refer ([89]-[91]). No disciplinary action had been taken ([93]-[96]).

The Commissioner added that even a union referral would not make an order lifting the suspension "by any means, be assured" ([98]). The Commission would be reluctant to set aside a full-pay stand-down during an investigation ([99]), but would expect the investigation to be "conducted and completed in a timely manner" ([100]). The claim was dismissed ([101]-[102]).

On appeal, the Full Bench said an individual's right of referral is "far more restricted" than a union's (Quai-De Azam Edoo v South Metropolitan Health Service [2026] WAIRC 00825 at [12]). The Commissioner's remark about a union referral was simply "identifying an alternative basis" for the grievance, not an error ([20]). No ground challenged the finding of no jurisdiction, so the appeal was dismissed ([17], [22]).

In the decision's words: "While this might present a pathway to refer a dispute to the Commission about the effect of the employer direction and the way the investigation is being conducted, I do not consider orders resulting in an amendment to or the revocation of the suspension, as sought by the applicant, would by any means, be assured." ([98]).

Outcome: Lost by the employee: his referral was dismissed for want of jurisdiction, and his appeal was dismissed. Also: appeal Edoo [2026] WAIRC 00825.

On 4 February 2025 the employee sent an email to 14 health service staff, copied to the Director General, WorkSafe, the Public Sector Commission, the then Health Minister and the then Leader of the Opposition ([7]). The health service put seven allegations to him; it found one substantiated, that the email breached principles 1 and 3 of the WA Health Code of Conduct ([8]-[11]). It dismissed him on 20 June 2025 with four weeks' pay in lieu of notice ([12]-[14]).

He referred the decision under s 29(1)(j) of the Industrial Relations Act 1979 (WA), read with s 171(1)(b) of the Health Services Act 2016 (WA) ([5]). Because he disputed the breach, the referral proceeded as a hearing afresh, and a fresh hearing can cure defects in the employer's process ([6]). The Commission asked three questions: did he do it, was it a breach of discipline, and was dismissal harsh, oppressive or unfair ([4]).

The email was "full of bare assertions of serious wrongdoing" ([37]), sent to a wide audience including members of Parliament and people who were the subject of the assertions ([36]). It breached principles 1 and 3 of the Code, and would have been a breach even without an earlier written direction ([38]-[39]). The process was "orthodox and fair" ([45]), the finding was a valid reason ([46]), and his lack of insight, after earlier warnings in 2023, made dismissal "a fair and proportionate response" ([47]-[49]). The dismissal was not an abuse of the right to dismiss ([50]), and the referral was dismissed ([51]).

In the decision's words: "It is a breach of discipline to make serious, bare allegations, to an email 'audience', in a way that does not allow the person/s the subject of the serious allegations to properly consider and respond to those serious allegations." ([38]).

Outcome: Lost by the employee: the dismissal was found not harsh, oppressive or unfair, and the referral was dismissed.

The nurse had worked for St John of God from 2010, full time from 13 October 2014, and was covered by the St John of God Health Care – ANMF – Registered Nurses' and Midwives' Agreement 2016 ([2]-[4]). In 2016 a colleague was appointed clinical nurse, a position the nurse had also applied for; he lodged a grievance about the recruitment, which was found to have no substantial deficiencies ([5]-[8]).

The employer's values required staff to address issues respectfully, and those expectations had been spelt out to him in a warning and a later letter ([118]). On 3 February 2017 he swore at the clinical nurse ([85]) and, later that day, repeatedly raised the work allocation in front of colleagues, without respect and with hostility; the clinical nurse reported feeling threatened, and a colleague was shaken ([98], [122], [149]). There was no evidence that the clinical nurse had provoked him ([119]). Given the counselling, the warning and the clear expectations, the conduct was a valid reason for dismissal ([123]).

He was told the reasons and given a chance to respond, and a union representative was with him at the meeting ([126]-[128], [130]). His claim that management had targeted him was rejected: the investigation was not affected by bias ([142]-[145]). The dismissal was not disproportionate to his "repeated non-compliance" with the employer's process for resolving problems at work and its values ([147]), and he showed an inability to modify his approach ([148]-[149]). The application was dismissed ([150]).

In the decision's words: "There was an inability of the Applicant to appreciate that [the clinical nurse]'s frustration was likely the result of the Applicant's repeated confrontational challenge to [the clinical nurse]'s authority to allocate work, in front of others." ([149]).

Outcome: Lost by the nurse: the dismissal was not harsh, unjust or unreasonable, and the application was dismissed.

The nurse had worked for the health service since 2006, latterly as a part-time clinical nurse ([10]). Under the Chief Health Officer's directions of September 2021, health care workers could not enter tier one health care facilities unless vaccinated, and on 21 September 2021 the health service directed its staff to be vaccinated unless an exemption applied ([7]-[8]). She was not vaccinated and gave no exemption ([1], [13]). After a disciplinary process in which she was invited to respond, her employment ended on 15 February 2022 ([16]-[19]).

She complained to the Australian Human Rights Commission that being unvaccinated was a disability, and the complaint was terminated ([20]-[21]). She then needed the Court's leave to bring the claim under the Disability Discrimination Act 1992 (Cth) ([3], [32]).

The Court refused leave on three steps. First, there was no reasonably arguable case that she had a disability: no evidence linked vaccination status to having the virus, so people who are not vaccinated are not "imputed" to have COVID-19 ([51], [69]). Second, the reason for the dismissal was her failure to comply with a lawful direction, not any claimed disability ([86], [88]), and no disciplinary action was taken until she failed to comply with it ([92]). Third, the work-from-home adjustments she proposed were not arguably reasonable, because most of her duties required her to attend the workplace ([104]). The inherent requirements defence did not need deciding ([108]). It was not in the interests of justice to grant leave ([110]); costs were left open ([111]).

In the decision's words: "That the direction [the nurse] failed to comply with was a direction to be vaccinated, and that it is because she is unvaccinated that she claims to have the Covid disability, does not mean that action was taken because of the claimed Covid disability rather than because she failed to comply with a lawful direction issued by EMHS." ([88]).

Outcome: Lost by the nurse: leave to bring a disability discrimination claim was refused and the application dismissed.

The employee applied under s 773 of the Fair Work Act 2009 (Cth), the unlawful termination route, against the North Metropolitan Health Service ([1]). The application must be made within 21 days after the termination took effect, unless the Commission allows more time for "exceptional circumstances" (s 774, set out at [2]). The health service objected only on time ([5]); the Commission dealt with the claim on that basis, without any objection that the Act did not reach a WA health service.

Dismissal had been proposed on 21 March 2019 ([9]). On 18 April 2019 the chief executive invited a further response by close of business 1 May 2019, saying that if she did not respond the dismissal would be "effective close of business 1 May 2019" ([11]). She did not respond, taking the view that the letter "needed no response" ([12]-[14]). A conditional notice can take effect if its date is certain and the condition is met ([18]); this one was, so her employment ended at close of business on 1 May 2019 ([19]-[22]). A later letter of 13 May confirming the dismissal "merely confirmed, for the record, what the Applicant already knew" ([16], [23]).

The application, filed on 3 June 2019, was out of time ([22]). No acceptable reason for the delay was given ([24]), she took no other action to dispute the dismissal ([25]), and the merits could not be assessed ([27]). There were no exceptional circumstances, and the application was dismissed ([29]-[30]).

In the decision's words: "From the moment the Applicant decided not to respond to the Chief Executive's letter of 18 April 2019, she knew her employment would be terminated at the close of business 1 May 2019." ([23]).

Outcome: Lost by the employee: the application was out of time, no further period was allowed, and it was dismissed.