Trevor Walley: Public Service Appeal Board finds DBCA ‘unlawfully’ fired Aboriginal man for test refusal

An Aboriginal man sacked from his State Government job after fearing for his physical and spiritual wellbeing at a neurological exam to prove his fitness for work has had his case upheld as “unlawful” and “unreasonable” by the Public Service Appeal Board. Trevor Walley, a Rockingham man who worked for the Department of Biodiversity, Conservation and Attractions for more than four decades, was dismissed from his role as an eco education officer after he did not sign a consent form at a medical appointment. A previous post-traumatic stress disorder diagnosis in 2000 incurred during his employment saw Mr Walley claim workers’ compensation and resulted in intermittent periods of incapacity at his job. Since 2000, Mr Walley had undertaken other fitness for work assessments and only been certified unfit for about two-and-a-half years in total. After attending an assessment by psychiatrist Lawrence Terace in March 2019, the Department told Mr Walley he was required to attend a further neurological assessment due to Dr Terace’s report. But the Department refused to give Mr Walley a copy of his report, saying doing so would “compromise the Department’s duty of care”. The Department organised an appointment with consultant neurologist Keith Grainger for July 2019 but Mr Walley did not attend. He attended another appointment in August 2019 and was asked to sign a consent form. Hesitant to sign, he emailed a copy to his union representative. Dr Grainger explained the tests he would undertake, including shining light in his eyes, a brain scan and attaching electrical wires to pass electrical currents through his body. Mr Walley, a Noongar man, said he was concerned about the effect the procedures might have on his spiritual totem and maintains Dr Grainger did not know enough about his medical history to safely conduct the tests. “When they shine torches in your eye, that’s where your totem sits . . . shining lights on it and interfering with that is spiritually dangerous, (especially) without my consent,” Mr Walley said. “And putting electricity in your arms upsets the rhythm of your dance, and how much are electricity are they going to put through you?” Mr Walley’s union representative contacted him and discouraged him from signing the consent form. The assessment did not go ahead and Mr Walley left without signing. The Department later told Mr Walley that by failing to attend his first appointment and not undergoing assessment at the second, he had engaged in misconduct and had “frustrated the ability for the employment relationship to continue”. The Department then sacked Mr Walley for his alleged misconduct in January 2020, effective immediately. Mr Walley appealed the decision with renowned barrister Greg McIntyre backing him, arguing there was no basis for further medical assessment and that requiring an assessment was unreasonable and unlawful. The Public Service Appeal Board ruled in his favour, finding the requirement for a neurology assessment to be “unreasonable” and unnecessary. It also said the Department failed to tell Mr Walley that not attending constituted misconduct. The board ordered the breach of discipline findings be quashed and the dismissal period of notice be adjusted from five weeks to 13 weeks. Mr Walley said fighting the case was difficult and that he had to dip into his superannuation to fund the appeal. “Even though I’ve won the case, I’ve lost,” he said. “(The Department) has endless resources.” Minister for Industrial Relations Bill Johnston has since written to Mr Walley, acknowledging his dismissal was unlawful and noting his concern for “individuals (who) have been the subject of racism or colonialism”. Mr Johnston said the Department of Mines, Industry Regulation and Safety was updating its advice to all public sector employers to “ensure medical examinations are reasonable and follow a sensitive and culturally appropriate approach”. But a DBCA spokesperson said the Department had sought further legal advice since the board’s decision and could not comment on the matter any further. “As a result, the department is unable to discuss confidential matters between the parties or legal representatives,” the spokesperson said.