Bath v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bath v Secretary, Department of Education [2024] NSWPIC 312
APPLICANT:	Ashlea Jade Bath
RESPONDENT:	Secretary, Department of Education
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	14 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation in relation to psychological injury sustained in the course of employment with the respondent; “injury” disputed pursuant to sections 4(a) and 4(b)(i); the respondent raises a defence under section 11A in respect to discipline and dismissal; consideration of the Public Health Order in relation to Covid-19; findings made pursuant to section 4(b)(i) injury established by the applicant, and section 11A defence not established by the respondent; Northern NSW Local Health Network v Heggie and Webb v State of New South Wales applied; pursuant to section 4(b)(i) the applicant sustained a psychological injury with her employment with the respondent being the main contributing factor to the contraction of the disease in the period of 27 August 2021 to 8 November 2021; Held – the respondent is to pay the applicant weekly benefits compensation as follows: from 9 November 2021 to 7 February 2022 at the rate of $631.85 per week pursuant to section 36(1), from 8 February 2022 to 31 July 2022 at the rate of $532.09 per week pursuant to section 37(1), and from 1 August 2022 to 7 May 2024 at the rate of $432.09 per week pursuant to section 37(3); the respondent is to have credit for payments made in the above periods, with any sick leave being re-credited; pursuant to section 60 the respondent is to pay the applicant’s reasonably necessary treatment expenses upon production of accounts, receipts and/or Medicare Notice of Charge.
DETERMINATIONS MADE:	The Commission determines: 1. Pursuant to s 4(b) (i) of the Workers Compensation Act 1987 the applicant sustained a psychological injury with her employment with the respondent being the main contributing factor to the contraction of the disease in the period 27 August 2021 to 8 November 2021. 2. The respondent has not established a defence under s11A of the Workers Compensation Act 1987. 3. The respondent is to pay the applicant weekly benefits compensation as follows: (a) from 9 November 2021 to 7 February 2022 at the rate of $631.85 per week pursuant to s 36(1) of the Workers Compensation Act 1987; (b) from 8 February 2022 to 31 July 2022 at the rate of $532.09 per week pursuant to s 37(1) of the Workers Compensation Act 1987, and (c) from 1 August 2022 to 7 May 2024 at the rate of $432.09 per week pursuant to s 37(3) of the Workers Compensation Act 1987. 4. The respondent is to have credit for payments made in the above periods, with any sick leave being re-credited. 5. Pursuant to s 60 of the Workers Compensation Act 1987 the respondent is to pay the applicant’s reasonably necessary treatment expenses upon production of accounts, receipts and/or Medicare Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

Ashlea Jade Bath (the applicant) was employed as a primary school teacher with the respondent, Secretary, Department of Education, from 2011. She remains an employee of the respondent but she has not physically undertaken teaching work since about 15 October 2021 when that school term ended. Prior to 2011 she worked as an Early Childhood Educator.
In these proceedings Ms Bath seeks s 60 expenses and weekly compensation pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act) for psychological injury that she alleges she sustained arising out of or in the course of her employment with the respondent in relation to events occurring in the period 27 August 2021 and 8 November 2021. Her counsel confirmed at the hearing that she does not rely on later events, including the referral to the Professional and Ethical Standards Directorate (PES) in relation to allegations of misconduct.
She pleads the injury as “an adjustment disorder with anxious distress”. Her counsel advised that Ms Bath’s case is brought pursuant to s 4(a) of the 1987 Act, and in addition, or in the alternative, s 4(b)(i) of the 1987 Act.
The respondent’s counsel confirmed that the following issues remain in dispute:
(a)    that the applicant’s psychological condition does not arise out of or in the course of her employment because the respondent asserts it arises from the Government’s Public Health Order and therefore is not compensable;
(b)    if “injury” is found, the respondent relies on a defence under s 11A(1) of the 1987 Act in relation to reasonable conduct taken by the employer in relation to dismissal and discipline;
(c) entitlement to the claimed s 60 expenses is dependent on the outcome of the s 11A(1) defence, and
(d)    Ms Bath’s capacity for employment.
The respondent’s counsel confirmed at the outset of the arbitration hearing that if Ms Bath was successful in establishing injury under s 4(a) of the 1987 Act, then s 9A of 1987 Act was not in issue.
The claim for weekly compensation commences on 9 November 2021 and is an ongoing claim. The pre-injury average earnings (PIAWE) figure is agreed between the parties at $656.11, reflecting the fact that in the 12 months before her injury she had only been working one or two days per week.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a conciliation/arbitration hearing on 24 January 2024 which was held on the MS Teams platform. Mr Dodd, of counsel, appeared for the applicant instructed by Mr McCabe, solicitor. Ms Bath was in attendance. Mr Grant, of counsel, appeared for the respondent instructed by Ms Malone, solicitor.
Subsequently, written submissions were sought in relation to the decision of the Court of Appeal in Secretary, Department of Education v Dawking[1] and these have been supplied.

EVIDENCE

[1] [2024] NSWCA 4 (Dawking).

Oral evidence

There was no oral evidence. The main submissions were presented orally and a sound recording was made of those submissions and is available to the parties.

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents (AALD-A) dated 29 October 2023 filed by the applicant;
(d)    unsealed Application to Resolve a Dispute;
(e)    Application to Admit Late Documents (AALD-B) dated 24 November 2023 filed by the applicant;
(f)    respondent’s wages schedule and annexures;
(g)    Application to Admit Late Documents (AALD-1) dated 19 January 2024 filed by the respondent;
(h)    applicant’s written submissions dated 15 February 2024, and
(i)    respondent’s written submissions dated 26 February 2024.

Ms Bath’s statements

In Ms Bath’s statement dated 29 October 2021 at [14] she includes a table reciting the actions taken by the respondent and her reactions to each action. These are as follows:
(1)    On 12 July 2021 at a staff development day the Principal Tony Selwood spoke about the current restrictions for the school and encouraged all staff to book in a vaccination appointment as soon as possible. Ms Bath said this made her feel worried and concerned as to why the Principal would be recommending the vaccine and to get it as a matter of urgency.
(2)    On 20 August 2021 an email was received from the Chief People Officer Yvette Cachia which said responses would be voluntary and anonymous and the aim was for them to find out how many staff intended to be vaccinated to assist in the continued planning for the safe return to schools. Ms Bath said she started to feel sick in the tummy and worried about what was to come of this action.
(3)    On 24 August 2021 Ms Cachia sent a reminder to complete the voluntary survey and questions were asked as to how many vaccine doses a person had and to provide reasons why persons selected “not planning to have a covid vaccine”. Ms Bath said this made her concerned about her medical privacy and disclosure of procedures to the Department of Education.
(4)    On 27 August 2021 the NSW Premier Ms Berejiklian and the Minister for Education, Ms Mitchell, announced covid-19 vaccinations for all school staff would be mandatory from 8 November 2021. Ms Bath said this gave her a feeling of helplessness and hopelessness and she had a bleak outlook that the “mandate meant that I could no longer work in my chosen area”.
(5)    On 27 August 2021 at 11.18am Georgina Harrisson, Secretary of the Department of Education sent an email which provided information about the vaccination situation. It encouraged staff to be vaccinated as soon as possible and advised special leave could be taken to have the vaccination. Ms Bath says she felt coerced into taking the vaccine to ensure the safety of others. She said she felt disappointed, miserable and sad and that she did not sleep well and had nightmares about the mandate.
(6)    On 27 August 2021 1.07pm another email was sent by Ms Harrisson stating that double doses of Covid vaccinations would be mandatory for any staff on school sites from 25 October and for all school staff from 8 November. Ms Bath says she felt bullied with the “3 ‘hits’/ correspondence in one day.” She says she felt overwhelmed and “in denial of how my freedoms could be ripped from me.”
(7)    On 27 August 2021 at 1.10pm an email from Ms Harrisson about closing comments on the Yammer site as they could not moderate and respond to all the comments made on the site, about 318. It was stated by Ms Harrisson that this was not intended to silence anyone or shut down discussion or debate and that they would be in touch the next week with more information. Ms Bath said this made her feel like teachers were being silenced and denying them the opportunity for information surrounding their consent to the mandated medical procedure.
(8)    On 30 August 2021 at 1.58pm there was a call from Tony Selwood confirming the mandate for staff to be fully vaccinated by 8 November. Ms Bath says she felt physically sick with a racing heart and sweaty palms and she had extremely disrupted sleep waking for hours at a time.
(9)    On 2 September 2021 an email was sent from Yvette Cachia which referred to the requirement for school staff to have received two doses of the Covid-19 vaccine by 8 November. Ms Bath said she had sleep difficulties through the night and was feeling so anxious she could not stomach food. She says she was also worried about the short time frame to make an informed choice.
(10)    On 3 September 2021 an email was sent by Georgina Harrisson announcing that a new conversation would be started on Yammer about priority vaccinations for education workers and advising the Public Health Order was expected to be released in the coming weeks. Ms Bath said she felt angry, irritable and tense and had aches and pains in shoulders and jaw. She also writes that she viewed this as a “crime”, to be coerced to have a medical procedure before the Public Health Order was issued.
(11)    On 6 September 2021 at 8.30am there was a zoom meeting with Principal Selwood and fellow staff in which he was encouraging staff to get vaccinated and telling them they could get two hours special leave to get this done in school hours. Ms Bath says she experienced feelings of anxiety and my heart began racing, and she felt undue pressure and harassment to obtain the double vaccination or risk her future employment. She also states, “I felt ashamed and disappointed my principal was encouraging this behaviour”. Presumably the behaviour she is referring to means encouraging the obtaining of the vaccine.
(12)    On 6 September 2021 at 10.30am Ms Bath says she had a meeting with Principal Selwood who told her he had a call from his boss, Timothy McCallum, concerning her email and about her feelings of being highly anxious about the upcoming mandatory vaccinations. She says that Mr Selwood asked if she was ok and he let her know about the Employees Assistance Program (EAP) scheme. She says he told her he was uncomfortable being required to view staff vaccination certificates and agreed it was a violation of privacy. She told him she was seeking medical advice from her general practitioner (GP). She says she was overwhelmed and very emotional in this meeting with lots of crying and a panic attack, with a racing heart and sweaty palms. She says she had feelings of helplessness and worthlessness about her position.
(13)    On 9 September 2021 Ms Bath made a report to the Department of Education Incident Hotline. She says making this report was a release from all the mental hurt and pain that had been caused by the mandate. She felt she had courage to speak up about psychological damage that was taking place.
(14)    On 10 September 2021 at 11.45am she took part in an EAP counselling session. She repeats her comment from above.
(15)    On 10 September 2021 at 12.52pm she received a call from Tony Selwood asking if she preferred to work on site or from home in term 4 and she said she confirmed that she was content to work at school. She says this conversation was supportive and it considered her choice.
(16)    She refers to an appointment with Dr Ing on 13 September 2021 but it does not appear in his clinical notes.
(17)    On 14 September 2021 an email was sent by Ms Cachia about the vaccination survey. She says this made her feel harassed and uncomfortable in sharing her personal medical information.
(18)    On 23 September 2021 at 3.02pm the Minister for Health and Medical Research,
Brad Hazzard MP, made the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (the Public Health Order). In that Order the Minister directed that education and care workers must not carry out relevant work on or after 8 November 2021 unless the worker had:
(a)    two doses of a COVID-19 vaccine, or
(b)    been issued with a medical contraindication certificate.
“relevant work” was defined in the Public Health Order as “work at a government school or non-government school”.
Ms Bath said the was a very difficult day – full of sadness and anxiety, frustration and anger and disappointment with the Department of Education as she regarded this as the ultimate coercion for employees to adhere to the mandate or risk termination. However, as discussed later this Public Health Order did not say anything about termination of employment. Ms Bath says by the end of the day she felt emotionally flat and numb.
(19)    On 24 September 2021 an email was sent by Ms Cachia which advised of notification requirements for staff about their vaccination status. Ms Bath says she regarded this as bullying and harassment to meet looming deadlines to be double vaccinated. She was feeling very fatigued form lack of sleep, finding it difficult to concentrate on tasks.
(20)    She refers to a consultation with Dr Ing on 24 September 2021 but she has omitted to refer to that on 20 September 2021.
(21)    On 5 October 2021 at 10.30am she had a meeting with Tony Selwood who stated that staff not fully vaccinated by 18 October 2021 can work from home until 8 November 2021. He said he was unsure what would happen to their employment if they had not been fully vaccinated by 8 November. Ms Bath said this made her feel discriminated against, not being allowed to work on site with the students, she also felt isolated and humiliated being in this position.
(22)    On 5 October 2021 she received an email from Tony Selwood about the portal to fill in vaccination status. Ms Bath again says she felt this was coercion and harassment with information to be stored on a portal for seven years.
(23)    On 6 October 2021 an email was received from Ms Cachia about the portal. Ms Bath made similar comments to above and said she felt saddened by the use of the words obligations and compliance.
(24)    On 13 October 2021 Ms Bath says she received a personalised email from Ms Cachia about the fact that she had not provided her vaccination status. Ms Bath again refers to feeling bullied etc.
(25)    On 18 October 2021 Ms Bath refers to receiving a call and email from Tony Selwood and she felt ignored, insignificant and angry that her request for a risk assessment for Covid-19 at the school was not done. She says she felt very run down from the sleepless nights she was having.
(26)    On 22 October 2021 Ms Bath refers to another personalised email from Ms Cachia conveying a direction that she enter in the Department’s VACS portal her vaccination status or give her Principal a medical contraindication certificate. The email stated that failure to comply with this direction could lead to disciplinary action including termination of her employment. Ms Bath said this made her feel worthless and miserable and she cried from the forceful nature of the email.
In her statement dated 22 May 2023 Ms Bath says before the “mandatory notice” she had returned from maternity leave and was working two days per week. She says if she was mentally and physically fit she would have returned to full employment. She says she has exhausted all her leave entitlements. In the last paragraph of this statement Ms Bath says she has obtained employment for three hours per week earning $100 per week and she says due to her psychological injury she has been unable to hold that position.
In her statement dated 10 August 2023 she says at [9] the Department threatened to place her on a not to be employed register and this made her feel ostracised and made her feel discriminated against. She does not give a date for this. This is an important omission because her counsel specifically said he was not relying on events after 8 November 2021.
She says the Department failed to give consideration as to whether she could still work remotely and still teach students at school. I regard this suggestion as not realistic. There were cogent reasons for the Department to get children back to school, for their mental health and for the benefit of their education. The suggestion that Ms Bath could teach remotely a class of primary school children (who were at school) does not deal with the fact there would still be a need to have a teacher in the classroom to supervise them, help with technology and the like. Ms Bath also says the Department failed to redeploy her to other areas such as curriculum or policy development. This overlooks that there would have been others in these positions. Furthermore, there is no evidence of her having such skills in curriculum or policy development. She was a primary school teacher from 2011 to 2016 when she went on maternity leave to have twins. She then only worked one day per week until she had her third child in 2020 and at the time of the events in 2021 she was working one or two days per week.
She also refers to the restrictions easing in December 2021 but her counsel is relying on events only from 27 August to 8 November 2021.
In a statement dated 21 November 2023 Ms Bath states her twins were born in 2016 (I have not referred to their names and dates of birth to protect their identity information). She was off work until 2017 and then returned to work one day per week. Ms Bath says she had another child in March 2020. She took maternity leave and was returning back to work one day per week, building up to two days per week. She says she was paid $423 per day. She says it was her intention to return to full time employment as a teacher at the end of January 2022.

She obtained work as a play group leader with Nature Learn and Play Pty Ltd from 1 August 2022 to April 2023 but she says she felt she could not continue that employment because of the diagnosis of a psychiatric injury. She gives no detail at all about this employment, for instance she does not elaborate in this statement as to her duties or what aspects she could not perform.
She says she did not work in any physical capacity for the respondent since her employment ceased on 8 November 2021.
She refers briefly to the sessions with Ms Sheather, psychologist, and says she was still suffering anxiety and depression and she does not think she could continue to do the driving. However, this driving was to go near her former school at Tighes Hill. She does not refer in this statement about her ability to drive elsewhere nor does she advise how she manages caring for her three young children.
An Incident Report entered on 27 September 2021 refers to the incident date of 9 September 2021 and Ms Bath expressing:
“…she has been bullied, harassed and coerced in regards to the mandated vaccine. She is afraid of risking her employment and not being allowed back on site and being discriminated against.
The pressure to make the decision around the dates to be vaccinated by. The constant emails about the vaccine and asking for updates is creating more stress and anxiety.
EAP details provided. Executive staff are aware.”

Dr Ing

Dr Ing is Ms Bath’s GP. In his clinical notes he records seeing Ms Bath as a new patient on 20 September 2021 with significant work stress and anxiety regarding potential for dismissal due to decision not to have Covid-19 vaccination despite mandate for teachers. He records she has poor sleep and she was concerned about the short and possible long term adverse effects associated with the vaccines. Also noted is that her aunty had a stroke and cardiac arrest and another aunty has had tremors and shakes and her brother-in-law arrhythmias. Dr Ing has not written that these conditions are due to the covid vaccine. He states he discussed with Ms Bath the risks and benefits of the covid-19 infection and vaccination options. He records that Ms Bath said she was bullied and harassed by the Department but she has a supportive Principal.
Dr Ing in this entry records that Ms Bath had counselling through EAP but it was not beneficial. He noted her twins were aged five and her other child one year old. He also records that wearing a mask triggers anxiety and she feels claustrophobic and feels like she cannot breathe. When she was aged 14 her father tried to suffocate her. She declined to get screening of her bloods due to needle phobia.
Dr Ing gave her a letter for a face mask exemption and was have a discussion with a psychologist.
He completed a Mental Health Treatment Plan dated 24 September 2021 diagnosing anxiety/depression and recommending counselling. The doctor has written that she suffers significant stress, anxiety and depressed mood in response to mandated vaccination as a teacher and she had childhood trauma associated with emotional abuse sustained from a controlling father.
On 15 October 2021 Dr Ing records that it was Ms Bath’s last day at school yesterday, it was very distressing. She was teary and upset. He writes “has caused significant stress and anxiety.” He notes she has been allowed to work from home for two weeks until the vaccine dose deadline. She was enquiring about eligibility for a medical exemption. She was considering whether to see a psychologist.
On 28 October 2021 Dr Ing records in his clinical notes that her distress has escalated with significant symptoms of anxiety and depression associated with psychosomatic symptoms. Poor sleep continues. He notes she has made the decision to pursue a workcover claim.
In Certificate of Capacity dated 28 October 2021 Dr Ing says he first saw Ms Bath for this injury on 20 September 2021 and her “condition has occurred in response to events following the introduction of the COVID-19 vaccination mandate on the 27^th August 2021.” He certified her unfit for any employment. On 24 November 2021 Dr Ing continued to record ongoing stress and escalating anxiety. He noted that Ms Bath has been accused of professional misconduct because she did not provide her immunisation status. She advised she had received ongoing communication and she had been on sick leave.
On 28 February 2022 Dr Ing records that she cares for her youngest child at home and the twins are at a childcare centre. He notes Ms Bath has requested a further two months of sick leave and then she will take long service leave until July. He records that generally her mental health has improved in comparison to his last consultation.
On 18 July 2022 Dr Ing noted Ms Bath had used her long service leave. She had ongoing anxiety symptoms with episodic panic attacks and nausea. It was recorded that she is running some groups with home schoolers. The doctor recorded that the vaccine mandate had been lifted for teachers but Ms Bath’s symptoms have continued and she was not fit to return to work.
Similar entries are recorded. On 31 July 2023 is it noted she is 11 weeks pregnant. She has done some volunteer work at her daughter’s school. The doctor noted anxiety and she was feeling hopelessness in relation to return to work. On 1 August 2023 Dr Ing spoke to Ms Sheather and suggested consideration of return to work in an alternate location if her anxiety was associated with her former workplace.
Dr Ing provided certificates of capacity dated 12 June 2023 and 17 November 2023 certifying Ms Bath as having no current capacity for any work.
On 8 August 2023 Dr Ing recorded that Ms Bath wanted to return to work to the same school but she has anxiety symptoms with closer proximity to the school which escalated to a panic attack on arrival. She was crying, had nausea, vomiting, heart racing and sweaty palms and she had to ring her mother to come and drive her home. He records that she doubts her ability to teach and she would like to achieve a return to work before the end of the year as she will be on maternity leave next year.
Dr Ing continues to record Ms Bath’s difficulties in driving near her former school.
On the John Hunter Hospital Maternity Service Outpatient Referral for Pregnancy it states the estimated date of birth is 18 February 2024.

Darren Garriga

Darren Garriga, psychologist, treated Ms Bath on 2 February 2022 at which time her mood was anxious and stressed, flat, teary, with good awareness and insights. He notes in his clinical record that her issue was anxiety and stress, work related. He refers to her receiving emails from school and she had feelings of being bullied, with no option, threatened and heat breaking. She was being investigated for misconduct which she asked to put on hold until her leave was over.

Rachel Sheather

Ms Sheather is a psychologist who reported to Dr Ing on 12 September 2023 advising that Ms Bath had agreed to commence a return to work plan to start from term 4 2023, 9 October 2023. The plan was for two weeks to drive to the suburb near her school once a week with her husband for support. Then in the next two weeks to drive herself. Then drive to the actual suburb of her workplace, at first with her husband and then on her own and then in the final two weeks of the plan she was to drive and park in the school grounds.
On 11 September 2023 Ms Sheather noted Ms Bath’s circumstances have changed as she is now pregnant with her fourth child and she does not want to return to work. It is recorded that during that term Ms Bath has been doing studies in Steiner Education and really likes it. Despite Ms Sheather noting she did not want to return to work, she later records that they discussed a return to work for term four and they came up with a gradual return plan very slowly to get herself comfortable with returning to school.
On 20 October 2023 Ms Sheather noted that Ms Bath had her last assignment due for her Steiner Education.
In report dated 17 November 2023 Ms Sheather recorded that Ms Bath experienced heightened anxiety at each stage of the plan. The clinical note for that consultation in the reply at p 126 noted she and her husband went to a bakery but she could not get out of the car due to recognising some people.

Dr Rastogi

Dr Rastogi, psychiatrist, provided a medico-legal report for Ms Bath dated 19 May 2022. She records the history that Ms Bath worked at the Tighes Hill Public School since 2011 and had no performance issues. The doctor states that Ms Bath was researching into the vaccine and was contemplating whether to be vaccinated and did not feel it was necessary due to high risk as she was planning pregnancy and fear of having fertility issues. Ms Bath also informed Dr Rastogi that some of her family members and close friends had adverse reactions to the vaccine and one member had to be resuscitated, and this heightened her anxiety about being vaccinated. The doctor also records that Ms Bath felt coerced into having the vaccine and that she was not given time to make a decision. Dr Rastogi sets out the emotional symptoms related by Ms Bath.
The doctor also notes that Ms Bath’s husband is a fitter and turner and also runs a jitsu academy and Ms Bath ran the admin and advertising duties for about 20 hours per week. Ms Bath was unable to continue to do this work due vaccine orders.
Dr Rastogi found Ms Bath had an adjustment disorder with anxious distress, stating:
“She developed heightened anxiety with adjustment disorder following coercive emails doing COVID pandemic to receive vaccination with mandate enforced that she was concerned and uncertainty causing career threats and uncertainty. She felt discriminated, ostracised and under duress to receive vaccination and stated her integrity has been questioned. She developed anxiety disorder with avoidance, social scrutiny, excessive fears and poor stress coping associated with coercion, feeling betrayed and ostracised and victimised at work due to a vaccine mandate.
This impacted her capacity to work, and the anxiety/panic attacks with depressed cations [sic], fears have caused significant memory deficit, loss of confidence, self-doubts and ruminations. There is focus on injustices and being treated unfairly leaving vocational uncertainty and disadvantage. She feels her anxiety is overwhelming and causing significant impairments and her confidence and self-esteem has been significantly impacted.”
Dr Rastogi attributed her adjustment disorder to being advised by her employer of the response to covid pandemic with no support which made her feel ostracised, alienated and she has vocational uncertainty. The doctor says there were no pre-existing psychological conditions.
Dr Rastogi also states that Ms Bath’s condition has not been wholly or predominantly caused by action taken by her employer in respect to premotion, appraisal, discipline and dismissal.
At the time of her examination, Ms Bath was on long service leave. Dr Rastogi opined that she is unfit to work due to anxiety with avoidance behaviours and unresolved grievances and she has memory deficits, amotivation and poor drive, excessive fears, loss of confidence and anxious ruminations affecting her ability to function and multitask. Dr Rastogi says Ms Bath was ambivalent about returning to work as a teacher and being retriggered and ostracised further. The doctor opines she will need a graded return to work.

Dr Choudhary

Dr Choudhary, psychiatrist, provided a medico-legal report from the insurer dated 15 September 2022. At the time of the examination Ms Bath was aged 37 and had
six-year-old twin daughters and a two and a half year old daughter. Dr Choudhary diagnosed an adjustment disorder with features of moderate anxiety and depressive conditions. The doctor accepted her history that it was announced on 27 August 2021 there would be a requirement for vaccination and the Public Health Order on 23 September 2021 and constant emails after the announcement which Ms Bath regarded as coercion and harassment. The doctor records that Ms Bath said she was contemplating falling pregnant and was researching vaccination safety and its impact on fertility and associated adverse reactions. Ms Bath related that her aunt needed resuscitation two weeks after having the second vaccination and her sister lost a baby at 23 weeks due to a clotting issue she had developed from the vaccine.
Dr Choudhary states “even though she did not sustain an injury directly through work but the decline in her mental state is certainly the result of the alleged pressure and provocation regarding vaccination mandate from the Department of Education.”
Dr Choudhary says she would be hesitant to say Ms Bath has any capacity to return to work at her premorbid duties and her prognosis is guarded. The doctor does not limit her incapacity to her pre-injury employment as in answer to question 11 the doctor adds “or for that matter at any meaningful level of employment yet.” The doctor suggested a further assessment in six months’ time.

Dr Wood’s evidence

The evidence of Dr Wood is contained in his statement dated 31 May 2022 and he was cross-examined in the matter of Davis v Secretary, Department of Education.[2] The respondent eventually agreed to the tender of this cross-examination in Ms Bath’s matter.
[2] W1987-22, Davis. Transcript (T) is at AALD-A.
Because it is documented I am not going to reproduce all of his evidence, but I have summarised the main areas of his evidence. Many of the questions asked were to have him confirm the contents of the various emails, which are in evidence. I summarised his evidence in Davis as follows:
“In [7] of his statement, Dr Wood says that the Department, in sending out an email to all school-based staff in the morning of 27 August 2021, wanted to ensure that staff were kept updated on the Government’s intention to introduce the COVID-19 vaccination mandate, as the situation was moving quickly, and a public announcement was due to be made by the NSW Premier at 11.00am that day.
Dr Wood was referred to Attachment 2 of his statement which he acknowledged contained the wording that it was ‘…an update on that 27^th of August 2021’, which said that all public and preschool staff were required to be fully vaccinated by 8 November 2021. Both emails were sent to all school based staff.[3] I find nothing turns on this fact as it would be unrealistic to expect a large employer such as the respondent to send individual emails to each employee.
[3] T 7.10.
Dr Wood said with reference to the email sent out on 8 September 2021 which reiterated that from 8 November 2021 all NSW school and preschool staff will be required to have received two doses of COVID-19 vaccine from 8 November 2021.
Dr Wood was questioned about Attachment 5 to his statement, the ‘COVID-19 Vaccination Guidelines’ (the Guidelines) issued by the respondent, and in particular to [8.1], [8.8], and [8.9] thereof, which provided:
(c)no special leave provisions available to those who refuse to comply with the Guidelines;
(d)that if staff were found to be, or suspected of being, in breach of the Public Health Order, the NSW police would be called and infringement notices or criminal charges may be laid, and
(e)that if staff were found to be, or suspected of being, in breach of the Guidelines, then investigation and disciplinary action may be undertaken by the department, including termination of employment.
Dr Wood stated that the Professional and Ethical Standards group was responsible for disciplinary matters, and Mr Daryl Currie was the head of that group. The Workplace Relations Group was responsible for industrial relations. Dr Wood could not give evidence about the reasons made for decisions by those groups.
Mr Dodd asked Dr Wood whether the directions of his colleague in the disciplinary section differentiated between all teachers and any particular teacher. Dr Wood stated that the Department’s policy would apply to all teachers, but that there were opportunities for individual teachers to submit a medical contraindication if they had a medical condition which would prevent them from being vaccinated to make an application. As far as he was aware, the only exemption was through a medical contraindication[4].
[4] T 20.20.
Dr Wood said that a breach of the code of conduct could result in disciplinary matters, the size and scale of which would depend on the nature of the breach. The code of conduct would be the document that outlines the expectations of employee behaviour within the Department[5]. Dr Wood agreed that in August and September 2021 non-compliance with the requirement to be double vaccinated by 8 November 2021 resulted in the application of disciplinary procedures.
[5] T 21.
Dr Wood said that thought was given in his committee as to how long the pandemic was going to continue. Policies and procedures that were put in place to support schools at particular points in time were not necessarily given end dates. Policies were revised as circumstances changed.[6]
[6] T 22.
Mr Dodd asked Dr Wood about the effect on a worker’s employment record if they were disciplined and Dr Wood responded that it was outside his area of expertise what would be recorded. He was pressed about the situation if someone was terminated as a result of disciplinary action, whether that would remain on that person’s record and could not be erased over time. He answered, ‘I understand it probably would be.’[7]
[7] T 23.23.
Dr Wood would not speculate about the number of teachers who were employed by the Department as at September 2021 when Mr Dodd suggested that it was about 50,000… Dr Wood stated he did not have specific details of the number of teachers who had complied with the direction to be double vaccinated by 8 November 2021 but said that they had a very high vaccination rate, up to 90% of staff were fully vaccinated and compliant. He said the actual number of non-compliance was actually very small, he believed in the hundreds.[8]
[8] T 25-26.
Mr Dodd asked about why arrangements were not made for the unvaccinated to work remotely and Dr Wood said that was a matter for the Workplace Relations Group to answer...
Dr Wood in answer to further questions said that he was not qualified to answer as to whether it would have been difficult for the Department to cater for the couple of hundred, within the many thousands of staff of the Department, to teach from home. He said that a number of people who had different responsibilities would have to address that proposition. These included the Our People group, and the Employee Performance and Conduct Unit, and that to give the name of a person to provide an answer to the proposition would be difficult because it crossed over a number of areas.
Dr Wood confirmed that the vast majority of the Department’s staff work in schools. He was asked about his experience as a teacher for a period of time before going to other areas, which might include School of the Air going to remote and regional communities. He said that from his experience, teachers of the School of the Air work from a location in Bourke. He did not have the information to say if any of those teachers worked remotely.
Dr Wood stated he was moved from the Covid taskforce in February 2022.[9] He said that as of May 2022 he was aware of teachers being directed to work at schools even though they were not double vaccinated. He said disciplinary proceedings were paused.
[9] T 33.20 not transcribed in the transcript but clear from sound record.
Dr Wood was asked about attachment 11 to his statement and acknowledged that it had a commencement date of 12 November 2021, and that the contact person listed thereon was the Director, Strategic Initiative and Projects. He stated he was not aware of who was holding that role at that point in time.
In re-examination Dr Wood was asked when he learned that the Public Health Order was to be introduced. He was not sure but said that it was ‘very likely to have been very close to the 27^th’. He added at that point in time government decisions were being made and were implemented ‘very quickly’.[10]
Dr Wood also gave evidence about the work streams that were commenced within the Department to react to and implement the requirements of the Public Health Order, including:
(a)the establishment of the vaccination policy and the associated resources to support Principals and other employees manage this in the department to enact a policy;
(b)an ITD technology work stream to establish the Vaccination Attestation and Confirmation system;
(c)legal department, who are responsible for interpretation of the Department of Health and other legal matters;
(d)work safety and health and employee wellbeing area who dealt with medical contraindication, and
(e)employee performance and disciplinary conduct process.
Dr Wood advised it was generally the case that when students returned to in-classroom learning, they had in-class instruction.”
[10] T 36.05.

Applicant’s oral submissions

As the submissions of both parties have been recorded, I will not summarise them verbatim. The main thrust of each parties’ submissions is discussed below.
Mr Dodd’s central submission is that the evidence establishes Ms Bath suffered a psychological injury either under s 4(a) of the 1987 Act or s 4(b). And it was not the “mandate” per se, but the way the Public Health Order was implemented by the respondent that was not reasonable. He submitted that:
(a)    the evidence from Ms Sheather is the most recent evidence in relation to Ms Bath’s treatment and it reveals that she continues to suffer from anxiety such that she cannot drive near the school she had worked at for the respondent.
(b)    Ms Bath is a dedicated teacher for the State as her statements reveal that she gained her teaching qualifications in 2011 and has been a primary teacher since that time and is still employed by the respondent. She was employed at the Tighes Hill Public School. He confirmed that the PIAWE figure has been agreed and her evidence is that she gave birth to twins in 2016 and then after a period of maternity leave she returned to work one day per week. She gave birth to a further child in 2020 and has worked one or two days per week.
(c)    Dr Rastogi is of the view her condition has arisen out of the requirement of the respondent to be vaccinated as indicated in the emails of 27 August 2021 and there is no pre-existing psychological condition or non-work stressors.
(d)    Dr Rastogi considered that Ms Bath was unfit to work because of her mental state including anxiety, avoidance behaviours, memory deficits and amotivation.
(e)    Dr Chaudhary, the respondent’s psychiatrist, comes to the same diagnosis as Dr Rastogi in terms of an adjustment disorder arising out of the emails of 27 August 2021 and following. The doctor relates that Ms Bath was contemplating becoming pregnant and was researching the covid vaccine and she knew of people including relatives who had health issues. It was submitted that this is the background of Ms Bath being required by her employer to be vaccinated. Dr Chaudhary records that Ms Bath felt what was announced by the Department of Education was a violation of her rights and she felt the continuing action by the respondent was harassment.
(f)    Ms Bath first consulted Dr Ing on 24 September 2021 when she completed an incident report and a mental health plan was completed. (I note she actually saw Dr Ing for the first time on 20 September 2021.)
(g)    The records of the psychologists Mr Garriga and Ms Sheather support Ms Bath’s case, as do the certificates of capacity of Dr Ing.
(h)    Ms Bath did try to obtain some alternate employment where she was employed by Nature Learn and Play Pty Ltd from 1 August 2022 and 1 April 2023. He acknowledged that Dr Chaudhary does not mention this even though he saw Ms Bath at this time. Mr Dodd submits that performing this work does not really change the overall medical case of Ms Bath.
(i)    There should be no doubt that Ms Bath suffered an injury, either simpliciter or as a disease due to what happened in August 2021 to November 2021. Mr Dodd relies on the statements of Ms Bath, in particular where she lists all the actions by the respondent including the email on 27 August 2021.
(j)    Prior to the Public Health Order being issued in September 2021, Ms Bath had already consulted Dr Ing on 13 September 2021 and had a number of physical manifestations of a psychological nature at that stage.
(k)    Regarding s 11A, there is nothing in the email of 27 August 2021 about “dismissal”. He stated that this only arose in the email of 15 October 2021. Mr Dodd submitted that there is no mention of “discipline” in the email of 27 August 2021. He submitted that in Webb v State of New South Wales[11] the ambit of discipline is more than the disciplinary actions as there may be a number of steps towards discipline. However, In Ms Bath’s case he submitted that there was no suggestion of any wrong doing by Ms Bath and discipline cannot be said to come into play.
(l)    In s 11A there is the requirement that the employer’s conduct was reasonable and it was submitted that the Public Health Order did not require unvaccinated teachers to be disciplined. And the Department did not take into account Ms Bath’s situation of having been employed for 10 years and she had been a valued employee. It was also submitted that there were other things that the respondent could have done such as explored in Dr Wood’s evidence, such as put people on suspension, or have unvaccinated teachers work remotely or be utilised in curriculum areas. Mr Dodd submitted in light of these factors the Department’s conduct was not reasonable. He submitted that Ms Bath does not have to justify why she was reluctant to have the vaccine, but there is evidence of her concerns about adverse effects to herself particularly as she was contemplating becoming pregnant.
(m)     Even if it is found that the employer’s conduct comes within the concept of “discipline”, the actions of the employer were not reasonable and the s 11A defence fails. He relies of the decision in Dawking where Member Batchelor held how the respondent sought to implement the Public Health Order was not reasonable. In Boyd it was also considered to be not reasonable conduct. It was submitted that the Public Health Order did not require a teacher to be vaccinated, just they could not attend on a school site without vaccination.
[11] [2019] NSWWCCPD 50, Webb.

Respondent’s oral submissions

Mr Grant’s submission regarding s 4 of the 1987 Act is that Ms Bath’s injury is a reaction to the actions of the Government, as opposed to the Department, relating to issues with and her reaction to the Public Health Order and, therefore, it is submitted that her injury does not arise out of or in the course of her employment with the respondent.
It was submitted that if the Commission nonetheless finds injury is established under s 4 of the 1987 Act, then the respondent should succeed in its defence of the claim under s 11A(1) of the 1987 Act.
Mr Grant submitted that the way Ms Bath has pleaded her case relates to a specific period of time, being from 27 August 2021 to when she actually ceased work for the Department when she went on leave on 15 October 2021. Mr Grant submitted that in relation to s 11A(1) the Commission must look at the circumstances in this period. He agrees with Mr Dodd that the concepts of discipline and dismissal have to be looked at in a wider sense.
Mr Grant relies upon Ms Bath’s first statement in which she attributes her injury to the vaccine mandate, because at [12] she says “as a result of the vaccine mandate and my decision not to be fully vaccinated” she suffered from various symptoms. He also submitted that the best place to get a handle on what Ms Bath’s thinking was in the period in question is from Dr Ing’s clinical notes. Mr Grant cites the entry for 20 September 2021 referring to significant work stress and anxiety regarding potential for dismissal due to decision not to have covid 19 vaccination, despite mandate for teachers.
Mr Grant submits that this evidence demonstrates that the stress that Ms Bath suffered relates to dismissal. He submitted that Ms Bath, as a teacher, clearly understands what a mandate means and she knew there would be disciplinary consequences in regard to her refusal to be vaccinated. He argues that this thinking of Ms Bath clearly fits within the concept of discipline, especially a wider view of the concept.
It was also submitted that there is no detail about Ms Bath’s suggestions she has been bullied or harassed. It was noted that Ms Bath told Dr Ing that her Principal was supportive. He submits that in the period in question it was her reaction to the vaccine mandate that caused her psychological injury. He later returned to this submission and said that when Ms Bath refers to being bullied and harassed she is referring to the Department sending her information about the vaccine mandate. He submits there is no question that her injury was wholly or predominantly caused by the Department’s actions implementing the vaccine mandate and there are no other factors. He submits that Dr Chaudhary’s opinion supports the wholly or predominant cause. He referred to Hamad v Q Catering[12] and submitted that, however, some cases do not require medical evidence about the concept of wholly or predominantly caused. Mr Grant says Snell DP in Hamad referred to the fact that there could be some cases where medical evidence is not required if say the psychological injury arose out of one cause. Mr Grant says this is such a case because the cause of her contracting a psychological injury was the requirement to be vaccinated and the Department conveying that to Ms Bath.
[12] [2017] WCCPD 7, Hamad.
The email sent by Ms Harrisson on 27 August 2021 was the start of what was concerning Ms Bath. It was this email that triggered in her mind that she needed to be vaccinated.
Mr Grant refers to the statement of Dr Wood sets out the steps that the Department had taken.
In relation to the question of reasonableness, Mr Grant submits that Mr Dodd referred to various cases however Mr Grant says each case is fact sensitive and the applicants’ reactions can differ in each case, so it is not helpful to consider other similar cases. Mr Grant says the test of reasonableness involves considering what was reasonable between August to November 2021, not the state of knowledge now. He said at time there were deaths and everyone was concerned about contracting the virus.
It was submitted in the Teaching Services Act the interests of the children are paramount and this needs to be considered in relation to the concept of reasonableness.
Dr Wood gave evidence that there were about 50,000 teachers to which the mandate would apply, so the actions of the respondent have to be viewed in this context. It was submitted that the steps taken by the Department were reasonable. He argued if she wasn’t informed of the impending mandate the Department could have been criticised and so the steps they took to inform her were reasonable. It was submitted that the s 11A(1) defence both in relation to discipline and dismissal were reasonable and the defence succeeds.
In response to Mr Dodd’s submission that the Department should have given Ms Bath other employment not at a school site, Mr Grant says it needs to be borne in mind that the period 27 August 2021 to October or 8 November 2021 is a very short period and secondly, there is no evidence of Ms Bath applying for other forms of work in that time. He says the idea she might be employed in other work is not reasonable.
In relation to incapacity, Mr Grant acknowledges that the evidence of Dr Rastogi, Dr Chaudhary and Dr Ing as being incapacity but at the time she saw Dr Chaudhary she had undertaken the work with Nature Learn. Mr Grant says he was not suggesting there should be a credit issue but he submits that Dr Chaudhary did not know she had work as a playgroup leader and that may well have had effect on his views regarding her employability. He submits that one needs to look carefully as to the doctor’s views about fitness for work.
Mr Grant submits that the psychologist was also not told that Ms Bath had worked for a period of time from September [sic, 1 August 2022] to April 2023. He said that is a long period of time and the Commission should consider if the basis upon which the psychologist considers Ms Bath’s capacity for employment is flawed. He argues there is insufficient evidence to judge Ms Bath’s capacity for employment given all the medical practitioners were unaware she had worked. It was submitted that the PIAWE is low and there may have been other work the doctors may have considered if they knew she had performed some work.

Applicant’s oral submissions in reply

Mr Dodd submitted in reply that Ms Bath was a playgroup leader for three hours per week earning $87 per week [sic, $100]. He said this level of employment was small and it is likely that it would not have affected the doctors view of her capacity.
Mr Dodd submitted that there is no medical evidence to satisfy Hamad and it is not a single event, but a number of emails and meetings and Ms Bath points out what she perceived as bullying and harassment. He argues that her statement refers to her psychological symptoms with each event. He submits that the respondent has the onus of proof and it cannot establish that the email of 27 August 2021 had to do with discipline or dismissal. He submits that Mr Grant has referred to what the applicant thought might happen to her. However, Mr Dodd argues this is not the same as the respondent’s actions at the time being part of discipline or dismissal.
Mr Dodd submitted that Wood DP in Webb at [141] refers to a respondent’s action taken in respect to a worker’s conduct or performance in the workplace. Mr Dodd argues there is nothing that the worker had done up until that date had been the subject of any misdemeanour. He said Wood DP found discipline can include mentoring program or chastising a worker. But in Ms Bath’s case the actions of the employer were not of this nature.
In response to Mr Grant’s argument that the Department’s actions have to be viewed in light of the fact it was dealing with 50,000 teachers and staff, Mr Dodd submits that Dr Wood confirmed that there were only a few hundred teachers that did not get vaccinated and he argues it was unreasonable for the Department to take a blanket approach.
In terms of reasonableness, Mr Dodd also argues as the test is objective and it is what the employer did that has to be reasonable, not how it affected the worker, and therefore as a matter of comity he argues one should follow the finding in Dawking about reasonableness. He noted that Mr Grant referred to Martsoukos v Secretary, Department of Education[13] but he advises an appeal is to be filed in that matter.
[13] [2024] NSWPIC 16, Martsoukos.

Written submissions

The applicant made submissions about the Court of Appeal decision in Secretary, Department of Education v Dawking[14] stating the issue of s 11A was not the subject of appeal in Dawking. The submissions repeat the oral submissions about comity in relation to the finding in the first instance and Presidential decision, that the Department’s conduct was not reasonable conduct.
[14] [2024] NSWCA 4, CA decision in Dawking.
In terms of causation it is submitted that the facts in Dawking are very similar to that in Ms Bath’s case. Mr Dodd referred to the Court of Appeal’s finding that the Public Health Order was not issued until 23 September 2021 and the worker’s references before that to the “mandate” were to the emails sent by the Department. Mr Dodd also referred to the concession made by the respondent in the Presidential decision in Dawking that the email of 27 August 2021 could not constitute the implementation of the policy because it had not been issued until 23 September 2021. Mr Dodd submits that Ms Bath received the same emails from the Department and she gave evidence that she was shocked, anxious and feeling forced to have a trial drug injected into her body and worried what it would do to her. It was also submitted that she had family and friends who had adverse reactions to the vaccinations and she was concerned about fertility issues as she was contemplating getting pregnant.
Mr Dodd submitted that the Court of Appeal at [64] of its decision held that it was open for Wood DP to accept the members finding at first instance that the employment was the main contributing factor distinguishing between the effect of the receipt of the emails of 27 August 2021 and the Public Health Order of 23 September 2021. And that the Commission should so find in Ms Bath’s case.
Mr Dodd also submitted that the respondent in the Court of Appeal did not challenge Wood DP’s finding that the Member at first instance reasons for distinguishing Bjekic v State of New South Wales[15] were adequate.
[15] [2022] NSW PIC 214, Bjekic.
Mr Dodd also provided submissions expanding on his oral submissions about discipline referring to various cases. I will not recount these submissions as they do not take his oral submission further and leave was not given for such further submissions.
In its written submissions the respondent argues that further submissions were sought by me only in relation to the Court of Appeal decision in Dawking and no leave was given for wider submission. I accept the respondent’s argument in this respect.
In relation to the Court of Appeal’s decision in Dawking the respondent submits it has no direct application to this case as each case is fact sensitive. It argues that principles of comity apply to questions of statutory interpretation and principles of law and has no application to the applicant’s arguments in Ms Bath’s matter.

Determination

In the matter of Davis v Department of Education I stated:
“It needs to be borne in mind that the outcome in this case does not turn upon whether the Government’s Covid-19 response and vaccine mandate were reasonable. These were lawful steps taken by the Government in response to a world-wide pandemic in which many people who contracted Covid-19 died. The steps taken were designed to minimise illness and death of members of the community, including to the school community made up of workers and children.”
This statement was cited with approval by the President, His Honour Judge Phillips in the appeal in the matter of Secretary, Department of Education v Davis[16] and I find it needs to be borne in mind in this matter as well.
[16] [2024] NSWPICPD 18, Davis appeal decision.
Both parties have cited various other “vaccine mandate” cases involving this respondent and urged me to follow the same outcome for reasons of comity. However, I decline to do this because I find each case is fact sensitive. Each applicant has a different medical history and it is trite to say, but true, that people react differently to events. Also, in the various cases that I now have had to decide, and in those decided by other Members of the Commission, different counsel have appeared and the submissions are not identical in each case. Even where the same counsel has appeared in multiple matters their submissions are not identical. Furthermore, in some cases injury is in issue and others not.
Each case must be determined on its own facts and evidence.
Ms Bath framed her claim under s 4(a) or s 4(b) of the 1987 Act in the alternative. The respondent’s argument was that her psychological condition was caused by her reaction to the Government’s action to require teachers to be doubly vaccinated to attend school sites. Therefore, it argued Ms Bath’s psychological condition was not compensable as it did not arise out of or in the course of employment with the respondent.
I reject that submission.
The “mandate”, or more correctly described as the Public Health Order, only applied to
Ms Bath because she was a teacher. The Public Health Order did not require all citizens to be vaccinated. It provided that teachers who were not doubly vaccinated could not work at a school. It did not require Ms Bath to be vaccinated.
Because the Public Health Order applied to her only because she was a teacher, I find that if she had suffered a psychological injury because of that Order the injury would come within the s 4(a) definition of injury, “arising out of” of her employment because there would be a causal connection between the employment and injury. See: Nunan v Cockatoo Docks & Engineering Co Ltd[17] which was relied upon in Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Aust Pty Ltd[18] in particular from [73] to [75]. At [75] the Court of Appeal in Badawi found that a worker would have established that an injury arose out of employment if it appears that the fact of his being employed in the particular job caused, or to some material extent contributed to the injury. In s 4(a) of the 1987 Act “arising out of” employment requires a causal element, whereas “in the course of employment” requires a temporal element.
[17] (1941) 41 SR (NSW) 119, Nunan.
[18] [2009] NSWCA 324, Badawi.

For reasons discussed later in these reasons, I am not satisfied that Ms Bath suffered an injury due to the Public Health Order because it was issued weeks after the Department’s emails of 27 August 2021 and subsequent communications. In addition, I have found her psychological injury was present prior to the Public Health Order being issued.
Another authority to bear in mind when considering Ms Bath’s evidence is Attorney General v K[19] where Roche DP summarised at [52] various principles about causation in psychological injury cases, as follows:
“(a)    employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f)      it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
[19] (2010) 8 DDCR 120; [2010] NSWWCCPD 76, K’s case.
Therefore, I find just because Ms Bath in some parts of her statements may use “irrational” reasoning or even has “a flawed perception of events because of a disordered mind” such as when she says at [15] of her first statement “I believe the mandatory COVID vaccination order cannot be justified as it impinges on my liberties and rights that exist in Australia”, that does not preclude her suffering an injury under s 4(a) arising out of her employment. Another example of irrationality is Ms Bath’s reference to Ms Harrisson’s email of 3 September 2021 as “coercion to have this medical procedure BEFORE the PHO was released is a crime”.
I pause to note that much of Ms Bath’s first statement has identical passages that are word for word the same as other applicants in other matters I have recently determined, even to the extent of the underlining and bold text. For example in Ms Bath’s statement paragraphs 15, 16, 17, 18(i), (ii) and (iv), 19, 20, 21, 22, 23, 24 ,25, 26, 27, 28 30, 31, 33, 34, 35 and 36 and even the dot points listing her psychological symptoms in [32] are identical in all respects to those in other matters.[20] The same solicitor acted for the applicants in those matters. It is not helpful to draft statements in this manner as they should reflect a worker’s own words. This is why when I have summarised Ms Bath’s evidence I have focused on the table at [14] of her first statement because that appears from the heading to be a diary of her responses to various actions of the employer.
[20] See the applicant’s statement dated 30 November 2021 in Hajjar v Secretary, Department of Education.
It is important to be aware that there is a difference between the Government’s Public Health Order and the communications by the Department of Education. When the terminology “vaccine mandate” is issued it tends to cloud that distinction. As discussed above the Public Health Order did not get issued until 23 September 2021, but Ms Bath states at [12] of her first statement as a result of the “vaccination mandate” and my decision not to be fully vaccinated she started to suffer various symptoms. When one looks at her entries beside
the actions of the employer she started to develop psychological symptoms before 23 September 2021. She also attended Dr Ing on 20 September 2021 and she submitted her notification of injury on 9 September 2021.
Ms Bath gives evidence that she reacted to the multiple emails from the Department of Education which occurred on 27 August 2021. She also concludes her statement at [34] by asserting she has “been totally incapacitated for work as a result of the events arising out of, or in the course of, my employment with my employer from 27 August 2021[21] [sic] and the feelings are increasing.”
[21] This is confusing. She did not cease work on 27 August 2021 as she kept working until 15 October 2021 and she thereafter took sick leave.
I consider the evidence is overwhelming that Ms Bath has established she suffered an injury under s 4(b)(i) of the 1987 Act, that she contracted a disease in the course of her employment with the respondent. The reason I consider the psychological injury is a disease is because it was caused over a period of time not just due to the events on 27 August 2021. I have set out Ms Bath’s reactions she said she had to the various communications from her employer. The symptoms she describes are those considered by the doctors as giving rise to a psychological injury, such as sleep difficulties, feelings of anger, her heart racing and anxiety feelings. I find it is relevant that she attended Dr Ing on 20 September 2021 before the Public Health Order and she told Dr Ing she had received counselling through EAP. Ms Bath had also made a report on 9 September 2021 to the Department’s hotline.
Both psychiatrists, Dr Chaudhary and Dr Lim, have diagnosed an adjustment disorder contracted in the course of her employment with the respondent. Section 4(b)(i) of the 1987 Act requires the employment to be the main contributing factor to the contraction of the disease. I accept Mr Dodd’s submission that there are no other factors and that the employment is clearly the main contributing factor.
Therefore, I find injury has been established under s 4(b)(i) of the 1987 Act.

Section 11A

Section 11A(1) of the 1987 Act provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The respondent has the onus of proof to establish a defence under s 11A. In this case it is relying on “discipline” and “dismissal”. In Webb the Deputy President found at [102]:
“The fact that there was a potential for action with respect to discipline is not sufficient to establish that the action conducted by the respondent in calling the meeting and investigating the complaint could be categorised as disciplinary.”
In Webb reference was made to Northern NSW Local Health Network v Heggie[22] at [59] where Sackville AJA stated:
“A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.”
[22] [2013] NSWCA 255, Heggie.
In Heggie the Court of Appeal found that reasonableness of a person’s actions is assessed by reference to the circumstances known to the person at the time the action is taken.
In Ms Bath’s case, the way the matter has been pleaded, events after 8 November 2021 cannot be taken into account as causing her psychological injury. Therefore, the later events are not to be considered in relation to the s 11A defence. This excludes the evidence about the investigation by the PES.
In Webb at [109] it was stated;
“However, in my view, the above passages establish that some part of the process of the actions taken by or on behalf of the employer must have the characteristic of being disciplinary in nature. Each case must be determined on its own facts. In the present case, it is true that the respondent may have instigated a disciplinary process had the allegation been proved. However, in the circumstances where the actions taken by the respondent, that is, where the appellant was not being investigated about any breach of conduct or any blemish in his performance in the workplace, what may or may not eventuate cannot be relied upon to change the characterisation of the actions that did take place.”
The applicant in Webb pleaded that his psychological injury was due to one meeting where he was told of allegations concerning which the employer had an obligation to investigate. At [118] the Deputy President in Webb said the Arbitrator erred by taking into account the possibility of disciplinary action, which had not occurred in characterising the action which did occur.
While I acknowledge the fact sensitive nature of particularly psychological injury cases, and the facts are different in Ms Bath’s case to Webb, it strikes me that the respondent’s actions from 27 August 2021 cannot be viewed as “with respect to discipline” when you examine what the respondent’s conduct was in this period.
For instance, the respondent’s conduct in this period comprised of the following:
(a) on 27 August 2021 Georgina Harrisson, Secretary of the Department of Education sent an email to all school based staff which provided information about the vaccination situation.[23]
(b) On 2 September 2021 an email was sent to all school based staff from Yvette Cachia.[24] It provided information and encouragement about getting vaccination.
[23] AALD-A p 1.
[24] AALD-1 p 4.
I find is reasonable that they inform teachers the how to get vaccinated, how to upload their status to the system, and how they have until 8 November 2021 to do so. However, I find following Webb these steps were not in respect to discipline. Ms Bath at this point in time was not being investigated and the time had not expired for her to advise her vaccination status. She had not been threatened with disciplinary action. At this point in time up to about 18 October 2021, while she may have been worried about the effect on her employment, the respondent had not actually threatened her employment.
I accept Mr Dodd’s submission that when one looks at the actual conduct of the employer in this period she had not been threatened with the loss of her position and just because Ms Bath thought she might lose her job is not the test.
For all anyone knew at that time the covid situation could have ended, or the Department in the future may have chosen to take a different course of action than threatening the loss of her position. Heggie states one needs to consider the objective state of knowledge at the relevant time.
I consider for these reasons there is a powerful argument that Ms Bath developed her psychological injury due to the conduct of the respondent prior to any mention or aspect of discipline or dismissal.
Ms Bath refers to Ms Cachia’s email addressed to her personally on 22 October 2021 and it referred to the consequences of non-compliance including referral to the PES for them to commence an investigation, and “failure to comply with this direction could lead to disciplinary action, including termination of your employment”. However, I consider that before this time Ms Bath had contracted her psychological injury as demonstrated by Dr Ing completing a Mental Health Plan on 24 September 2021 diagnosing anxiety/depression and recommending counselling.
I consider most of the employer’s communications up to this time had the characteristic of providing information and were not disciplinary nor as I have stated did they threaten dismissal. I accept Mr Dodd’s submission that just because Ms Bath was fearful about what would happen to her job is not the test. I find the whole or predominant cause of Ms Bath’s psychological injury was not due to discipline or dismissal and so the s 11A defence fails.

Reasonableness

Nonetheless I will deal with the other aspect of s 11A that a respondent has to establish to succeed in this defence, that of reasonableness. Mr Dodd asserted it was not reasonable because it was the way the Department of Education sought to implement the mandate that was unreasonable. He submitted that the Public Health Order did not require the Department to take any action except that staff who were unvaccinated by 8 November 2021 were not to enter school premises. Mr Dodd submitted that the respondent could have made other arrangements for her employment away from school premises. I consider his suggestion about redeployment to curriculum development to not be realistic as there would have been other staff who usually occupied those positions. The proposition that Ms Bath could have worked remotely I consider is also not viable because the children would have been in the classroom and would need supervision as Ms Bath was a primary school teacher, so effectively there would have to be another teacher in the room. It is one thing that during the lockdowns children were taught remotely from their homes, where they would have been individually supervised by their parents, whereas in Mr Dodd’s suggestion a whole classroom of children would have had to look at the teacher on a screen, which I find is just not a realistic approach for primary school children.
However, Mr Dodd did submit that the respondent could have just stood down or suspended the unvaccinated teachers. I accept in the case of Ms Bath that would have been a reasonable approach, as Mr Dodd submitted, she had been employed for 10 years and did not have any performance issues on her record.
Notwithstanding, I have found some of the respondent’s conduct in the period 27 August 2021 to 8 November 2021 was reasonable, I find that this action of the respondent, which actually for the first time did threaten her employment, in Ms Bath’s case was unreasonable.
The respondent has the onus of proof. In Heggie Sackville AJA stated:
“The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.”
I find the respondent more likely than not believed it was acting in good faith to get as many teachers vaccinated as possible. But in Ms Bath’s case, for the reasons discussed above I find the respondent has not discharged its onus of proof to establish the respondent’s conduct was reasonable and the s 11A defence fails.

Weekly compensation

The claim for weekly compensation is made pursuant to s 36 and s 37 of the 1987 Act on the basis of Ms Bath having no capacity for any employment from 9 November 2021 to date and ongoing. Mr Dodd says there is no medical evidence presently before the Commission asserting to the contrary.
However, Mr Dodd did concede that Ms Bath did work for Nature Learn and Play Pty Ltd from 1 August 2022 to 1 April 2023 as a playgroup leader. Ms Bath in her statement dated 22 May 2023 at [11] said she worked three hours per week in this job, earning $100 per week. I note she also undertook Steiner studies in 2023 which according to Ms Sheather she liked and she had her last assignment in October 2023. There were no submissions made about these studies so they have not factored in my determination of Ms Bath’s capacity for employment.
Mr Grant submitted that none of the medical evidence refers to Ms Bath performing this work with Nature Learn and Play. He submitted that even Dr Chaudhary who saw Ms Bath on 15 September 2022 does not record being told about this job despite the fact that she was performing it at that time.
Mr Dodd tried to gloss over this situation by being dismissive that it was only three hours per week work as a playgroup leader. However, given Ms Bath after the birth of her twins had only returned to work one day per week and then after the birth of her child in 2020 worked one to two days per week up to the events in August 2021, I do not consider I can regard her working over eight months from 1 August 2022 to 1 April 2023 for three hours per week as insignificant and having no effect on her capacity for employment. Her doctors and Dr Chaudhary should have been told about this employment. Section 32A of the 1987 Act requires me to make a determination about her capacity to work in suitable employment. The terms “current work capacity” and “no current work capacity” are defined in Schedule 3 cl 9 of the 1987 Act.
I find that I cannot determine that Ms Bath after 1 August 2022 had no current work capacity when the fact is she did work. “No current work capacity” is not confined to an inability to work in pre-injury duties it also involves an inability to work in suitable employment. Ms Bath had qualifications and work experience in early childhood education. The definition in s 32A of suitable employment requires me to have regard to the medical information and certificates but I find that I cannot take at face value the evidence post-dating 1 August 2022 because while it supports she did not have the ability to return to Tighes Hill School, other areas of employment were not explored and I find the fact that the medical opinions were given without knowledge of actual work, the evidence of inability to work at all cannot be accepted.
Section 32A also requires I take into account her age, education, skills and work experience. As I have stated she worked in early childhood education and had qualifications in that area before she became a teacher in 2011. And importantly the work with Nature Learn and Play involved working with young children as a playgroup leader.
The other aspects of s 32A involve return to work plans and occupational rehabilitation services. None have been arranged by the respondent. Ms Sheather was implementing a plan about return to work but that was focused on return to Tighes Hill Public School and there is no consideration of driving elsewhere or working elsewhere. I simply do not know what her opinion would have been of Ms Bath’s capacity had she known about the job with Learn and Play.
I find that this work demonstrates some capacity for employment which cannot be ignored. Given the paucity of evidence the only finding I can make, taking into account all of the factors in s 32A, is that Ms Bath has demonstrated a capacity to earn $100 per week from 1 August 2022. In her statement dated 22 May 2023 at [11] Ms Bath just says, “due to my psychological injury I have been unable to hold the position.” I consider this statement lacks detail to explain why she could do that work up to 1 April 2023 from 1 August 2022 and not beyond.
The PIAWE was agreed at $665.11 because Ms Bath had been working one or two days per week in the 52 weeks before her injury.
In the s 36 period from 9 November 2021 for 13 weeks to 7 February 2022 I find Ms Bath had no current work capacity and is entitled to compensation at the rate of 95% of her PIAWE which equates to $631.85 per week.
In the s 37 period from 8 February 2022 to 31 July 2022 I also find Ms Bath had no current work capacity and she is entitled to 80% of the PIAWE, equating to $532.09 per week.
However, from 1 August 2022 to 7 May 2024 (the expiry of 130 weeks) I find she had some capacity for work in suitable employment of $100 per week. Under s 37(3) of the 1987 Act her entitlement is 80% of her PIAWE less her “current weekly earnings”, which is defined in Schedule 3 to be the weekly amount she is able to earn in suitable employment. Therefore, I find she is entitled to $532.09 less $100 per week resulting in $432.09 per week.
Section 38 of the 1987 Act would apply from 8 May 2024. There are no discretionary factors to take into account her pregnancy unlike under the former s 40 of the 1987 Act. Ms Bath was due to give birth to her fourth child in February 2024.

However, I decline to make any orders for the period from 8 May 2024 as there have been no submissions or evidence relating to satisfying the provisions in s 38.
It was agreed that an order should be made for the respondent to have credit for any payments made in the above periods because Ms Bath in the time since 8 November 2021 has received various payments for leave entitlements from the employer.
In relation to s 60 expenses I have made a “general order” as the respondent at the outset said it only disputed the s 60 expenses if the s 11A defence prevailed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established