WA top court restrains Police disciplining unvaccinated officers

The WA Police Commissioner was late this morning ordered by the Supreme Court of Western Australia by the issue of a temporary injunction pending a full trial of the issue in the first quarter of  2022 not to dismiss a police officer for failing to be covid 19 vaccinated to conform with with the WA government’s covid workplace mandates.

https://ecourts.justice.wa.gov.au/eCourtsPortal/Decisions/ViewDecision?returnUrl=%2feCourtsPortal%2fDecisions%2fFilter%2fSC%2fRecentDecisions&id=a360996f-447b-4645-80e8-1600530bdb66

 

Justice Allanson in his reasons for decision, inter alia wrote this

“Balance of convenience

72                 If not restrained, the disciplinary process based on breach of the Employer Direction could result in the dismissal or discharge of the applicant from the Police Force.  There is no doubt that he suffers prejudice.

73                 The potential risk to public health is managed by the continued operation of the direction issued by the Chief Health Officer; that is, the applicant may not lawfully enter or remain upon police premises.

74                 There is, undoubtedly, prejudice to the Commissioner in the applicant being unable to carry out his duties as a member of the Police Force due to the operation of the direction of the Chief Health Officer. The evidence currently before me does not enable a finding as to whether that prejudice may be adequately managed by, for example, the applicant using leave entitlements, or being stood down, or in some other way. The best way of dealing with that uncertainty is to give liberty to apply so that either party may bring the matter back before me, particularly should there be delay in bringing it to trial.

75                 While any disciplinary proceedings against the applicant would be subject to appeal under the provisions of the Act, it was not argued that the availability of an appeal should result in the court, at this stage, exercising its discretion against the applicant.

76                 In my opinion, the balance of justice requires restraint.  That restraint must, in the circumstances, be for a limited time.  The questions raised by this action must be heard and determined quickly. I will list the matter for directions hearing immediately following the court recess. The action should be heard in the first quarter of 2022.

Conclusion

77                 I will grant an interlocutory injunction restraining the Commissioner, until further order, from dismissing the applicant in reliance on the applicant’s failure to comply with the Employer Direction.

78                 I will separately determine and publish reasons on the Commissioner’s application for summary determination of the grounds other than grounds 2 and 3(e). 

79                 I will also separately determine and publish reasons on the application by the Chief Health Officer and the State of Western Australia for summary determination of the proceedings brought against them in relation to the directions of the Chief Health Officer.”