A prison safety rep refused his orders. His dismissal stood

What happened

Mr Rossiter worked as a prison officer for the WA Department of Justice from October 2005, most recently at Wooroloo Prison Farm. In mid-June 2023 his work group elected him as a health and safety representative (HSR), a worker elected under the Work Health and Safety Act 2020 (WA) (WHS Act) to represent colleagues on safety matters.

Two weeks later, on 30 June 2023, the prison was short of staff. Mr Rossiter said it was understaffed by about 42%. Senior officers met that morning to settle the day's reduced routine, called an adaptive routine. He said he had attended a similar meeting the day before, but this time he was told to leave on the Superintendent's instruction.

At about 7:15 am a senior officer directed him to go to reception and carry out his rostered duty, a prisoner medical escort to Royal Perth Hospital. He replied that he had important health and safety duties as an HSR, without saying what they were. He then sat at a computer and began writing emails about being excluded from the meeting and, as he saw it, being harassed.

At about 7:45 am an Assistant Superintendent ordered him, more than once, to do the escort and to talk with him in private. He refused, saying he was attending to a safety issue. He sent four emails between 7:58 am and 9:33 am and did not return to his assigned unit until 11:30 am. Another officer was pulled from a unit to do the escort, which was delayed.

The dismissal and the claim

The Department treated the two refusals as breaches of discipline under s 80(a) of the Public Sector Management Act 1994 (WA) (PSM Act), which covers disobeying a lawful order. In his first response Mr Rossiter said he had acted in good faith under the protection of the WHS Act. In his second response he admitted he had been wrong, apologised, and said a mental health condition had affected his judgment. He was dismissed on 20 May 2024.

He referred the decision to the Commission under s 78(2) of the PSM Act, asking for the dismissal to be quashed, for reinstatement and for lost pay. He did not dispute that the orders were lawful and reasonable. His case was that dismissal was too harsh once everything was taken into account: his mistaken view of his HSR rights, the industrial disputes over safety at the prison, his medical condition, his remorse, and lighter treatment of other officers who had disobeyed orders.

The legal test

The Commission asked whether the employer had used its right to dismiss in a way that was harsh, oppressive or unfair, so as to amount to an abuse of that right. This is the long-standing test from Undercliffe Nursing Home (1985), used throughout the WA state system.

The setting mattered. Prison officers swear an oath to obey the lawful orders of their supervising officers, and the Prisons Act 1981 (WA) requires them to. In Minister for Corrective Services v Fagan [2023] WAIRC 00984 the Full Bench said prison officers, like police, must meet a higher standard. Because a refusal in a prison can seriously affect its good order, safety and security, the consequences for a prison officer may differ from those for other public sector workers.

What the Commission decided

Commissioner Walkington dismissed the referral. A mistaken belief that HSR duties overrode lawful orders did not make the dismissal unfair. Mr Rossiter never explained what was urgent about his safety tasks or asked to do them before the escort. He did not invoke the WHS Act process for an imminent risk, and did not claim there was one. The prison also had a local arrangement under which HSRs asked their supervisor for time to do HSR work. The Commissioner found his conduct was clearly not in accordance with that protocol, and he never asked to be relieved of his duties.

Writing a record of his exclusion from the meeting was not an objectively reasonable explanation, because the emails could have waited until his duties were done. The industrial disputes did not excuse the refusals either; there was no evidence they were part of any industrial action.

The medical evidence did not establish that his condition caused his conduct that day. It was more consistent with the condition being triggered later, by the disciplinary process. His remorse came only when dismissal was in prospect, and he still showed little insight into how his refusal made the staff shortage worse. The other officers' cases he relied on were not like his. The Commissioner held that repeated refusal was serious misconduct in a prison, warranting dismissal unless he gave an explanation that was exceptional and supported by convincing evidence. He had not.

What this means for you

If you are an HSR, the WHS Act gives you real functions and powers, but it does not let you decide on your own that HSR work comes ahead of a direction to do your job. Where there is a genuine, urgent safety concern, it is worth explaining it, asking for time, and using the steps the WHS Act and your workplace set out.

If you are a WA public sector worker facing a discipline process, your first response matters. Explanations, admissions and medical evidence raised only after a proposed dismissal may be given less weight, so consider getting advice early. Time limits are short: generally 28 days to refer a disciplinary decision to the WAIRC.