Boyd v Secretary, Department of Education - [2024] NSWPICPD 79

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Boyd v Secretary, Department of Education [2024] NSWPICPD 79
APPELLANT:	Samantha Boyd
RESPONDENT:	Secretary, Department of Education
INSURER:	Allianz – TMF
FILE NUMBER:	A1-W5211/23
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	3 December 2024
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 10 November 2023 is revoked. 2. The matter is remitted to a different member for redetermination consistent with these reasons.
CATCHWORDS:	WORKERS COMPENSATION – doctrine of ‘comity’ – does not apply to factual decisions: Comino v Kremitis [2023] NSWSC 32; inferences pursuant to Jones v Dunkel [1959] HCA 8; 101 CLR 298 – RHG Mortgage Ltd v Ianni [2015] NSWCA 56, Payne v Parker [1976] 1 NSWLR 191; ‘reasonable action’ in s 11A(1) of the Workers Compensation Act 1987 – application of Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95; test of ‘reasonableness’ confers a wide discretion – Vines v Australian Securities and Investment Commission [2007] NSWCA 126; error of the kind in House v The King [1936] HCA 40; 55 CLR 499; ‘disciplinary action’ – application of Secretary, Department of Education v Uzunovska [2024] NSWPICPD 19, Kushwaha v Queanbeyan City Council [2002] NSWCC 25; 23 NSWCCR 329; Soutar v Commissioner of Police [2006] NSWDC 95, Webb v State of New South Wales [2019] NSWWCCPD 50
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr J Dodd, counsel
McCabe Partners Lawyers
Respondent:
Mr P Stockley, counsel
Hall & Wilcox Lawyers
DECISION UNDER APPEAL:	Boyd v Secretary, Department of Education [2023] NSWPIC 605
MEMBER:	Mr J Isaksen
DATE OF MEMBER’S DECISION:	10 November 2023

INTRODUCTION AND BACKGROUND

Samantha Boyd (the worker/appellant) was employed full-time by the New South Wales Department of Education (the Department/respondent) as a teacher at Nowra High School.[1] Her injury was of a psychological nature; it resulted from events in 2021 associated with steps taken by the Department in the context of COVID-19 and requirements that employees (including the appellant) should be double vaccinated against that disease. The Application to Resolve a Dispute (ARD) pleads a date of injury of 27 August 2021. It describes “Adjustment Disorder with anxious distress … as a result of events arising out of, or in the course of employment concerning the mandate to be vaccinated commencing on 27/08/21 to 08/11/21”. The claim was pleaded as a continuing one, from 9 November 2021. The appellant amended this pleading at the hearing of the matter, to restrict the period of the weekly claim to 13 weeks from 23 October 2021.[2]
[1] Appellant’s statement 21/11/21, [10], Application to Resolve a Dispute (ARD), p 9.
[2] Boyd v Secretary, Department of Education [2023] NSWPIC 605 (reasons), [10].
The Department’s dispute notices[3] raised issues regarding ‘injury’, whether s 9A of the Workers Compensation Act 1987 (the 1987 Act) was satisfied, and whether the Department’s defence pursuant to s 11A of the 1987 Act was established. The matter was listed for hearing on 25 October 2023. Mr Dodd appeared for the worker and Mr Gaitanis appeared for the Department. The documentary material included a transcript of the evidence given by Dr Paul Wood, Executive Director of Educational Standards for the Department, on 29 August 2022, in earlier proceedings which involved the Department and issues arising out of COVID-19.[4]
[3] Reply, pp 1–6, 73–76, 79–84.
[4] Davis v Secretary, Department of Education [2022] NSWPIC 715 (Davis), Reasons, [12].
Both counsel addressed and the Member reserved his decision. A Certificate of Determination and Reasons was issued on 10 November 2023. The worker succeeded on the issues of ‘injury’ and s 9A of the 1987 Act. The Department succeeded in establishing its defence based on s 11A of the 1987 Act, with the outcome that there was an award in its favour.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE MEMBER’S REASONS

The Member outlined the nature of the claim, the agreed issues between the parties and some procedural matters. He noted the documents which comprised the documentary evidence before the Commission.[5]
[5] Reasons, [1]–[12].
The Member summarised the appellant’s statements dated 21 November 2021 and 24 January 2023. The appellant said that she received an email from Georgina Harrison, the Secretary of the Department, on 27 August 2021 which “outlined the roadmap” for the vaccination of public school staff by 8 November 2021. A second email from Ms Harrison on the same date outlined that double doses of vaccination would be mandatory for all school staff by 8 November 2021. The appellant said she was “anxious and scared of the effects of the injection” and of losing her job. She referred to “receiving the email from Ms Harrison on 27 August 2021 and her decision to not be fully vaccinated”. The appellant said the vaccination mandate “denies me my fundamental right to work”.[6]
[6] Reasons, [14]–[21].
The Member referred to a letter from Mr O’Hea, NSW Department of Education Professional and Ethical Standards, dated 17 November 2021, which alleged the appellant had engaged in misconduct, by failing to enter her vaccination status with the Department. The Member referred to a lengthy letter from the appellant to Dr Wood dated 21 November 2021, addressing her failure to provide her vaccination status. The Member referred to a letter from the worker to the Department on 1 December 2021, enquiring if alternative work arrangement could be considered, such as reducing contact between a teacher and students and working from home.[7]
[7] Reasons, [23]–[25].
The Member discussed the appellant’s medical evidence. He referred to a Certificate of Capacity from Dr Keerthigha, the appellant’s general practitioner, dated 19 October 2021. It described “[a]nxiety, depression, and stress concerning mandate to be vaccinate[d]”. The Member referred to a report from Dr Rastogi, a psychiatrist qualified in the appellant’s case, dated 4 August 2022. It recorded the appellant was “not comfortable with the demands of the mandate and felt under coercion to keep her job”. The doctor diagnosed “adjustment disorder with anxious distress in remission”. He said:
“In absence of any other non-work stressors, her employment is the main contributing factor to the injury sustained and/or diagnoses. The reasons being constant coercion and discrimination to receive vaccination as a mandatory requirement, to her employment with no support provided and termination.”[8]
[8] Reasons, [28]–[32].
The Member quoted from Ms Harrison’s email dated 27 August 2021 and the Public Health Order dated 23 September 2021. The Order provided that an “education and care worker” must not carry out “relevant work” (which included work at a government school) after 8 November 2021 unless the worker was double vaccinated or had been issued with a medical contraindication certificate. The Member quoted from the Department’s Vaccination Guidelines issued on 5 October 2021, which included:
“There are no special leave provisions available to those who refuse to comply with these guidelines.
If staff are found to be, or suspected of being, in breach of the Public Health Order NSW police will be called an infringement notices or criminal charges may be laid.
If staff are found to be, or suspected of being, in breach of these guidelines, then investigation and disciplinary action may be undertaken by the Department, including termination of employment.”
The Member noted that on 18 October 2021 Ms Harrison issued a determination under the Teaching Service Act 1980 which provided “it was a condition of employment in the Teaching Service that an employee must provide either vaccination evidence or a medical contraindication certificate”. On 12 November 2021, the Department issued Vaccination Requirements Guidelines which stated “non-compliance with the public health order, applicable determinations and directions for COVID-19 vaccination amounts to misconduct”. The Member recorded that Mr O’Hea wrote to the appellant on 17 November 2021 alleging that she had engaged in misconduct. Mr Currie, Director of Professional and Ethical Standards with the Department, wrote to the appellant on 18 December 2021 stating that three allegations of misconduct against her had been sustained. Mr Currie wrote to her again on 13 January 2022 advising that she had been dismissed as a result of her misconduct.[9]
[9] Reasons, [34]–[44].
The Member summarised the report from Dr Nagesh dated 24 August 2023, on which the respondent relied. The doctor gave a diagnosis of “major depression of moderate degree with anxious distress”. The doctor said he “could not identify any non-work-related factors and hence the only factor that has contributed to Ms Boyd’s psychological injury was the mandated COVID-19 vaccine”.[10]
[10] Reasons, [47]–[48].
The Member dealt initially with the disputed allegation of injury. The Member referred to the settled authority found in Smith v Australian Woollen Mills,[11] Nunan v Cockatoo Docks & Engineering Co Ltd,[12] and Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd.[13] The Member said there was “a clear causal relationship between the appellant’s employment as a teacher and the mandatory direction that she be double vaccinated”. The psychological reaction to the direction caused her injury. The Member found that the injury arose out of the appellant’s employment.[14]
[11] [1933] HCA 33; 50 CLR 504.
[12] (1941) 41 SR (NSW) 119.
[13] [2009] NSWCA 324; 75 NSWLR 503.
[14] Reasons, [52]–[54].
The Member noted that s 4(b)(i) of the 1987 Act requires that employment be the ‘main contributing factor’ to a ‘disease injury’. The Member quoted from the reasons of Burke CCJ in Perry v Tanine Pty Ltd t/as Ermington Hotel.[15] He accepted the appellant was subject to “repeated stress” at least from 27 August 2021 to 19 October 2021. This encompassed the two emails received from Ms Harrison on 27 August 2021, issue of the Public Health Order on 23 September 2021 and issue of the Vaccination Guidelines on 5 October 2021. Both Dr Rastogi and Dr Nagesh concluded employment was the main contributing factor to the appellant’s psychological injury. The Member accepted that “employment was the main contributing factor to the psychological injury which she sustained”.[16]
[15] [1998] NSWCC 14; 16 NSWCCR 253.
[16] Reasons, [55]–[61].
The Member then dealt with the respondent’s defence pursuant to s 11A of the 1987 Act. He noted the respondent’s submissions relied on two of the categories of action referred to in that section, ‘discipline’ and ‘dismissal’. He said the medical evidence supported the fact that the correspondence, directions and guidelines communicated to the appellant were a “predominant cause of her injury” and amounted to ‘discipline’ within s 11A. He quoted from the decision of Geraghty CCJ in Irwin v Director General of School Education[17] and from Northern NSW Local Health Network v Heggie.[18]
[17] NSWCC 14068/1997, Geraghty CCJ, unreported (Irwin). The passage is quoted in Commissioner of Police v Minehan [2003] NSWCA 239, [27].
[18] [2013] NSWCA 225; 12 DDCR 95 (Heggie).
The Member noted the respondent’s submission that, in relation to the Public Health Order 2021, the respondent was given a direction by the New South Wales government which it had “no option but to implement”. The Department was required to inform all teachers they must be double vaccinated in order to work in a school. The Member noted the respondent’s reference to Van Vliet v Landscape Enterprises Pty Ltd, where Phillips P said that “reasonableness in s 11A(1) does not … require a counsel of perfection”[19].[20]
[19] [2022] NSWWCCPD 49, [179].
[20] Reasons, [63]–[71].
The Member referred to the appellant’s submission that there had been three earlier decisions of the Commission, dealing with psychological injuries to teachers associated with the COVID-19 vaccine mandate, in which the workers had succeeded. The appellant submitted her case should also succeed, as a matter of comity. The Member referred to a decision of Chen J in Comino v Kremetis, in which his Honour said that “judicial comity is limited to questions of law and statutory interpretation and has no application to factual determinations”.[21] The Member distinguished a number of the other first instance decisions to which he was referred.[22]
[21] [2023] NSWSC 63 (Comino). Applied by Wood DP in Secretary, Department of Education v Dawking [2023] NSWPICPD 23, [112].
[22] Reasons, [72]–[75].
The Member said there was no evidence from the appellant of “any coercive action taken by a representative on behalf of the respondent which might be found not to be reasonable”. The Member said the appellant referred to “all the emails and conversations” which she felt were “forcing my hand”, but there was not specific evidence of these or of the effect such events had upon her. The Member said that Dr Rastogi referred to daily emails from the respondent and the principal, but Dr Nagesh did not obtain the same history. The Member said that such details did not appear in the “quite lengthy consultation notes made by Theodora Famulari”, a psychologist who treated the appellant. The Member said that Ms Famulari “reported the stress, depression and anxiety of having to deal with negative comments about her vaccination stance … being called stupid”, but the notes do not record these comments coming from the principal.
The Member observed that caution needed to be exercised when relying on clinical notes from health practitioners. He said there was a lack of evidence of coercion by the principal or anyone else representing the respondent, in Ms Famulari’s “quite lengthy and detailed notes”. Dr Nagesh did not record such a history. There was a lack of evidence from the appellant on this particular dispute. The Member said this caused him to “doubt the accuracy of that particular complaint which is recorded by Dr Rastogi”.[23]
[23] Reasons, [76]–[80].
The Member said that the previous arbitral decision, which was closest factually to the current matter, was Dawking v Secretary, Department of Education.[24] The Member said the facts in the current matter were “different to those in Dawking and [lead] me to a different conclusion regarding the reasonable action of the respondent with respect to discipline”.[25]
[24] [2022] NSWPIC 611 (Dawking).
[25] Reasons, [81]–[83].
The Member said that, in addition to receiving Ms Harrison’s email dated 27 August 2021 (regarding the anticipated announcement from the Premier) the appellant said she received another email from Ms Harrison on that day, which “outlined double doses of covid vaccinations would be mandatory for any staff on school sites from 25 October and all school staff from 8 November 2021”. The appellant said she was “shocked and anxious when she received this second email as she felt she was being forced to have a trial drug injected to her body”. The Member observed that the appellant attended Dr Keerthigha, her general practitioner, on 8 or 9 September 2021. He said clinical notes relating to that consultation were not in evidence, but it was reasonable to infer, from the doctor’s Mental Health Treatment Plan, that the appellant “experienced a deterioration of her psychological condition due to the COVID-19 vaccine mandate issued by the respondent”.[26]
[26] Reasons, [84]–[86].
The Member said:
“In my view it is clear that [the appellant] was aware at the end of the day on 27 August 2021 that as a teacher in a high school with direct personal involvement in the teaching of students that she would be required to have two doses of a COVID-19 vaccine by

8 November 2021 if she was to teach at that school. Ms Boyd suffered psychological symptoms in response to that communication and sought medical treatment within a period of two weeks of that communication.”[27]
[27] Reasons, [87].
The Member said there was no evidence of any specific emails or conversations, after the two emails on 27 August 2021, until the Public Health Order issued on 23 September 2021, that caused an increase in the appellant’s psychological symptoms. Although the appellant said she became anxious and stressed about losing her job, in the week following the 27 August 2021 emails, there was no evidence of communications with the respondent at that time that raised the possibility of termination. The Public Health Order issued on 23 September 2021 was consistent with the appellant’s understanding from the emails of 27 August 2021 – “it would be necessary for [her] to have double doses of the covid vaccine in order for her to return to face to face teaching at Nowra High School”.[28]
[28] Reasons, [88]–[91].
The Member referred to the reasons of Sackville AJA in Heggie and said:
“… it is not enough that an employer believes in good faith that the action with respect to discipline was reasonable or that the respondent was compelled to act in the interests of discipline. It is the reasonableness of that action taken by the respondent which must be assessed, and that is an objective test based on the facts of each dispute.”[29]
[29] Reasons, [92].
The Member said the Department was required to ensure that “an education and care worker must not carry out relevant work at a government school unless that worker had two doses of a COVID-19 vaccine”, subject to the exception for a worker who had a medical contraindication certificate. This was in Ms Harrison’s second email of 27 August 2021. The respondent’s Guidelines dated 5 October 2021 were in accordance with the Public Health Order. The Member said:
“This was all reasonable action in accordance with the requirements set by the New South Wales government and with the aim that the respondent had of returning teachers and students to face-to-face learning.”[30]
[30] Reasons, [93]–[96].
The respondent referred to Heggie, in which it was said by Sackville AJA that the rights of the employee must be taken into account when assessing what is reasonable action, although to what extent depends on the circumstances of each dispute. The Member referred to the appellant’s statement that she was denied her “fundamental right to work”. The Member referred to Kassam v Hazzard; Henry v Hazzard,[31] from which he quoted a passage of the reasons of Bell P (as the Chief Justice then was) which included the following:
“The primary judge was correct to conclude that there was and is no common law ‘right to work’ in any strict sense which would engage the principle of legality. For this reason, to the extent that people’s ability to work was directly or indirectly affected by the Impugned Orders, they were not invalid by reason of the operation of the principle of legality.”[32]
[31] [2021] NSWCA 299 (Kassam/Henry).
[32] Kassam/Henry, [104].
The Member noted that the “Impugned Orders” included the Public Health Order 2021 (COVID-19 Vaccination of Workers) (the Public Health Order).[33] The Member also referred to the reasons of Beech-Jones CJ at CL (as his Honour then was) in Kassam at first instance, where his Honour said:
“One matter that is unclear is whether sub-clause 4(1) precludes education and care workers who are not vaccinated from carrying out teaching work remotely …
When this issue was drawn to the attention of Mr Kirk SC he responded by accepting (and contending) that, on its proper construction, the Education Order only applies in respect of persons physically attending ‘at’ the places listed in sub paragraphs (a), (b), (c) and (e) of the definition of relevant work. I agree …”[34].[35]
[33] Reasons, [97]–[101].
[34] [2021] NSWSC 1320 (Kassam/Henry at first instance), [90]–[91].
[35] Reasons, [104].

The Member referred to identifying when the appellant requested duties such as working remotely, performing alternative duties away from a school or taking some form of special leave. The appellant made some suggestions in a letter to Mr O’Hea dated 1 December 2021. This was after 8 November 2021 (the date of enforcement of the vaccination mandate) and six weeks after the appellant was certified as having no current work capacity due to her psychological injury. The appellant’s letter to Dr Wood dated 21 November 2021 stated she requested leave from 25 October 2021. It did not state when the request was made, and if it was before or after she was certified as having no current work capacity in the certificate dated 19 October 2021.[36]
[36] Reasons, [105]–[107].
The Member said:
“108. The respondent took action between 27 August 2021 and 8 November 2021 to have teachers return to face-to-face learning in compliance with the requirements of the New South Wales government while there remained a significant risk of the transmission of COVID-19 in the community. The need for proper vaccination for teachers for their intended interaction with other staff and students was fundamental to the aims of the respondent.
109. The correspondence and directions issued on behalf of the respondent during the period from 27 August 2021 and 8 November 2021 and which applied to Ms Boyd as a teacher employed by the respondent were reasonable having regard to ‘the objective of the employer’ (Irwin). Although there may have been options such as remote teaching or alternative duties, I am not convinced from my review of the evidence that Ms Boyd had sought these options from the respondent until after she had sustained her injury and was certified as having no current work capacity.”
The Member referred to balancing the rights of the employee with the objective of the employer. He concluded “the action which [the Department] took with respect to discipline as it applied to Ms Boyd was reasonable and was the predominant, if not the whole, of the cause of her psychological injury”.[37]
[37] Reasons, [110].
The Member went on to say the threat of dismissal, followed by actual dismissal, “would not appear to be reasonable action”. He said the evidence, however, did not disclose the threat of termination affected the appellant’s psychological condition until after the psychological injury had rendered her totally unfit, and after 8 November 2021 (the date for compliance with the vaccination mandate). The Member refers to the “lengthy” notes of Ms Famulari, psychologist, at her initial consultation with the appellant on 7 November 2021. There was no discussion of concerns regarding possible termination. The Member said possible termination was referred to in the psychologist’s notes on 20 November 2021, subsequent to the letter from Mr O’Hea to the appellant dated 17 November 2021.
The Member also referred to the injury details in the ARD. These referred to events between 27 August 2021 and 8 November 2021. The Member said that, on reviewing the evidence, anxiety and stress associated with possible termination does not occur until after receipt of Mr O’Hea’s correspondence on or about 17 November 2021. The reasons conclude that the predominant cause of the psychological injury was reasonable action taken by the respondent with respect to discipline, leading to an award in favour of the respondent.[38]
[38] Reasons, [113]–[117].

THE NATURE OF THE APPEAL

The appeal is brought pursuant to s 352 of the 1998 Act, subsection (5) of which provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[39] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[40] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[41]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a)    A [Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.
(c)     It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong’.”[42]
[39] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[40] (1966) 39 ALJR 505, 506 (Whitley Muir).
[41] [1996] HCA 140; 140 ALR 227.
[42] Raulston, [19].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[43]Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[44]
[43] [2020] NSWCA 54 (Hill).
[44] Hill, [20].
In Northern NSW Local Health Network v Heggie[45] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.
[45] [2013] NSWCA 255; 12 DDCR 95 (Heggie), [72].

GROUNDS OF APPEAL

The appellant raises the following grounds of appeal:
(a)    Error of fact in failing to have regard to the whole of the evidence (Ground No. 1);
(b)    Error of law in failing to follow the decision in Dawking v Secretary, Department of Education [2022] NSWPIC 611 as a matter of comity (Ground No. 2);
(c)    Error of law in failing to apply the reasoning in Dawking v Secretary, Department of Education [2022] NSWPIC 611 which should be applied at Presidential level (Ground No. 3);
(d)    Error of fact, law or discretion in considering the respondent was bound to apply the Public Health Order as at 27 August 2021 when that Order was not made until 23 September 2021 (Ground No. 4);
(e)    Error of fact, law or discretion in that the Public Health Order did not require that all teachers (including the appellant) be vaccinated (Ground No. 5);
(f)    Error of fact, law or discretion in posing the wrong question for determination (Ground No. 6), and
(g)    Error of fact, law or discretion whether the email of 27 August 2021 was part of a process of investigation or discipline that would fall under s 11A (Ground No. 7).

ORDERS FOR FURTHER SUBMISSIONS PURSUANT TO DIRECTION

The decision of the Court of Appeal in Dawking was issued on 31 January 2024. The Commission issued Directions dated 1 and 5 February 2024 (the second of these varied the dates for compliance). The Direction dated 1 February 2024 stated:
“On 31 January 2024, the New South Wales Court of Appeal published the decision of Secretary, Department of Education v Dawking [2024] NSWCA 4.
It is appropriate to give the parties an opportunity to make further submissions in relation to this decision, noting that the Certificate of Determination, Appeal Application, and Notice of Opposition refers to both the first instance decision and the Presidential decision in Dawking which has now been determined by the Court of Appeal.”
Following some correspondence with the parties’ solicitors a second Direction was issued dated 5 February 2024. This additionally referred to the case of Bjekic v State of New South Wales (Western Sydney Area Local Health District).[46] The timetable provided for submissions by 15 February 2024 (the appellant), 29 February 2024 (the respondent) and 7 March 2024 (submissions in reply by the appellant, if required).
[46] [2023] NSWPICPD 27 (Bjekic).

Appellant’s submissions pursuant to Direction

The appellant refers to the “very similar” factual matrix in the current matter and Dawking. The Court of Appeal, in its reasons at [19], summarised the findings made by the Member in that case. It was found the worker sustained a psychological injury on 27 August 2021. The appellant submits the employer’s case was that a reference by Ms Dawking to the “mandate” had to be to the Public Health Order, not the emails from the Department. It submits the Court of Appeal rejected this, as the Public Health Order was not issued until 23 September 2021. The Court of Appeal (and the appellant’s submissions on the Direction) referred to a concession by the Department before Wood DP, that “the email could not constitute the implementation of the policy because the policy had not been issued until 23 September 2021”[47].[48]
[47] Dawking Appeal, [56].
[48] Appellant’s further submissions, [3]–[5].
The appellant submits that, in the current matter, she received the same emails and as a result was “shocked, anxious and feeling forced to have a trial drug injected”. She described symptoms commencing on 27 August 2021. She “first consulted Dr Keerthigha on 8 September 2021 and ceased work on 9 September 2021”. The appellant notes she does not appeal the findings on ‘injury’ in the Member’s decision in the current matter, at [54], [55], [56] and [61].[49] The appellant quotes the reasons of Gleeson JA (Mitchelmore and Kirk JJA agreeing) in the Court of Appeal:
“It was well open to the Deputy President to conclude that the Member’s determination that the employment was the main contributing factor to the injury distinguished between the effect that the receipt of the email from the Secretary on 27 August 2021 had on the worker, given the symptoms that she experienced as a result and that it put the worker’s career in jeopardy, and the subsequent Public Health Order issued on 23 September 2021.”[50]
[49] Appellant’s further submissions, [6]-[8].
[50] Dawking Appeal, [64].
The appellant notes the application of s 11A was not at issue in the Court of Appeal in Dawking. The appellant submits the Appeal decision “points to the key issue in this appeal: what actions of the employer are relevant for the purposes of the application of section 11A”. The appellant submits “only the events arising out of or in the course of employment that caused injury are relevant, not events that occurred subsequently”. The appellant refers to the Member’s finding at [91] of the reasons:
“In my view, what was set out in the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 issued on 23 September 2021 and COVID-19 Vaccination Guidelines issued on 5 October 2021 was consistent with what Ms Boyd understood from the second email received by her on 27 August 2021, namely that it would be necessary for to have double doses of the covid vaccine in order for her to return to face to face teaching at Nowra High School. The response by Ms Boyd to both the emails received on 27 August 2021 and the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 issued on

23 September 2021 was to seek medical treatment for the psychological stress which [she] was experiencing.”
The appellant submits this passage was “wrong in fact”. “The Public Health Order and Guidelines did not require teachers to be vaccinated: rather, it prohibited teachers working AT a school unless they were vaccinated”[51] (capitalisation in original). The appellant refers to her submissions dealing with ground no. 5 and to Kassam at first instance at [90]–[91]. The appellant refers to the Member’s finding at [93] of the reasons, that “the Respondent acted reasonably within the requirements set out by the New South Wales government in the Public Health Order”. The appellant submits this was factually wrong, “the Public Health Order was not made until 4 weeks later”. It submits the respondent carried the onus of establishing the defence under s 11A. There was no evidence that the respondent’s “actions in August 2021 occurred due to some direction from the NSW government”. It submits a reasonable action available to the Department was to allow those teachers who did not wish to be vaccinated to continue to work remotely.[52]
[51] Appellant’s further submissions, [11].
[52] Appellant’s further submissions, [9]–[13].
The appellant submits there were errors of fact and law regarding the application of s 11A. She submits the decision is “completely contrary to the decision of the Court of Appeal in Dawking”.[53]
[53] Appellant’s further submissions, [14].
The appellant deals with the Presidential appeal in Bjekic. It submits that decision concerned issues of ‘injury’ which are “not particularly relevant” to the current appeal, in which ‘injury’ is not in issue. That case involved a security officer who was required, in compliance with the Public Health Order, to wear a face mask, which aggravated sinusitis from which he suffered. It was found the substantial cause of injury was the Public Health Order, rather than the employment.

Respondent’s submissions pursuant to Direction

The respondent submits the similarity of the facts in the current matter and Dawking is of no assistance to the Presidential member. The Court of Appeal found no appealable error in the Presidential decision in Dawking. There was “no statement of new principle or fresh insight” into the matters complained of in the current appeal. The Court of Appeal did not “provide a general statement of principle to be deployed as authority in these types of cases”. It submits that to do so would be “unfathomable, where such findings on causation are evaluative findings involving questions of impression and degree and findings of fact”.[54]
[54] Respondent’s further submissions, [3]–[5].
The respondent submits the Court of Appeal decision is “limited to its own set of facts and narrow legal argument as to the adequacy of the decision of the Deputy President”. It is not an endorsement of the Member’s findings in Dawking.[55]
[55] Respondent’s further submissions, [6]–[7].
The respondent submits the appellant’s “further submissions” categorise the same complaints contained in the notice of appeal, the appellant wants a different outcome.[56]
[56] Respondent’s further submissions, [8].
The respondent submits that Bjekic turned on its own facts. It is of no assistance.[57]
[57] Respondent’s further submissions, [9].

THE DECISION IN DAWKING

The appellant’s submissions argue that Dawking, on similar facts, was decided in the worker’s favour, and a similar result should have followed in the current matter. In Dawking a worker succeeded, before Member Batchelor, in proving ‘injury’ and in proving that employment was the ‘main contributing factor’ to the contraction of the psychological injury. The employer in that case was unsuccessful in establishing a defence pursuant to s 11A of the 1987 Act, as the Member found the employer had failed to prove that the injury was caused by the respondent’s reasonable actions with respect to discipline.[58] The appellant’s submissions in the current matter place specific reliance on the reasoning in paragraphs [102] to [112] of the Member’s decision in Dawking. That part of the decision in Dawking is set out below:
[58] Dawking, [99]–[100].
“102. The action relied upon by the respondent with respect to discipline commenced with the email at 10.52 am on 27 August 2021, eight minutes only before the anticipated announcement from the Premier. One wonders how many teachers in fact would have read the email prior to the announcement, and the efficacy of sending it such a short time beforehand. Indeed, there was no evidence in respect of the Premier’s announcement itself; it was assumed in submissions by the respondent that such was the case. The applicant simply says in her statement that she ‘... became aware of ...’ the Public Health Order on 27 August 2021.
103. The applicant’s employment as a temporary teacher ‘... was ceased as of 8 November 2021’. That would appear to be the culmination of the disciplinary action asserted by the respondent.
104. The problem with the email of 27 August 2021 was highlighted by the applicant in submissions. It conveyed what subsequently transpired was a somewhat erroneous message in respect of vaccination requirements. It included the following:
‘For this reason, today the Premier is expected to announce that – as with the aged care and health sectors – mandatory double doses of vaccinations will be required for all public school and preschool staff from 8 November.’
The applicant correctly submits that, rather than there being a problem with the Public Health Order issued by the government, it was the implementation of that order by the respondent that was significant in her case, and which was the cause of her injury. The Public Health Order was issued on 23 September 2021. It provides that:
‘relevant work’ means the following work –
(a)work at a government school or non-government school,’
The email simply referred to the requirement for mandatory double doses of vaccinations required for all public school and preschool staff from 8 November 2021. It took no account of teachers who may not have been at schools.
105. The applicant submits that no consideration was given in the disciplinary process on which the respondent relies to:
(a)the applicant continuing to work remotely and teaching pupils at a school;
(b)redeploying unvaccinated teachers such as the applicant in non-teaching roles such as curriculum development, policy development or even on the School of the Air;
(c)the fact that the pandemic would not last indefinitely, and that suspension from employment for unvaccinated teachers rather than cessation thereof was an option;
(d)the long term effects on a teacher dealt with by way of disciplinary action as opposed to the short term nature of the restrictions, noting that these were eased in December 2021;
(e)the denial of any special leave provisions for unvaccinated teachers, and
(f)the fact that the only reason a teacher could escape the consequences of not being double vaccinated was to submit a medical contraindication.
106. The foregoing matters are asserted by the applicant in the context of there being a relatively few non-vaccinated teachers, in the order of hundreds, as opposed to the over 50,000 vaccinated teachers.
107. Dr Wood was cross-examined about these matters. His evidence is summarised above. Dr Wood was not able to give an explanation as to why no special leave provisions were made available to those who refused to comply with the Guidelines, but deferred to colleagues in the People Group Department. In respect of [8.9] of the Guidelines dealing with disciplinary action including termination of employment, he referred to other groups within the organisation, including the Professional and Ethical Standards group, responsible for disciplinary matters, and Workplace Relations, responsible for industrial relations. His role as Executive Director was to coordinate those various groups across the organisation so that there was a coordinated response. Mr Daryl Currie was responsible for disciplinary matters.
108. In respect of allowing teachers to continue to work remotely as they had been doing for the previous 12 to 18 months, Dr Wood said that was not a decision that was within his authority, but said that the current way in which they supported students who were working from home was that most employees worked from a school site. He went on to say that from a logistic point of view, teachers could have continued to work from home, but that in terms of the professional support supervision and the range of other things that were also part of their employment, there were reasons why the Department’s employees worked from a school site, to be supported by that range of things. He confirmed that the vast majority of the Department’s staff work in schools. Dr Wood could not answer why employees working in areas such as curriculum development were required to be double vaccinated, even though they were working from home.
109. In respect of the anticipated duration of the pandemic 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.
110. In respect of disciplinary action of a teacher’s record Dr Wood said that if a person’s employment was terminated as a result of disciplinary action, that would remain as such on that person’s record, and could not be erased over time. In that circumstance, opportunities for re-employment would depend on the level of detail around conduct and performance. He could not comment on employment conditions and hiring policies of the independent or Catholic school sector. In respect of the easing of restrictions in December 2021, Dr Wood said that as of May 2022 it was his understanding that there was a change of approach by the Department to people who were not double vaccinated, and that he was aware that teachers were being directed to work at schools even though they were not double vaccinated.
111. The applicant submits that a Jones v Dunkel inference should be drawn against the respondent for the failure to call Mr Currie to give evidence as to why the disciplinary matters with which she was threatened were put in place. I think that it is reasonable to draw that inference, that is, that his evidence would not have assisted the respondent. That was conduct that required explanation, and there may well have been an explanation available. However, on the face of it, the threat of calling the police if staff were found to be, or suspected of being, in breach of the Public Health Order ([8.8] of the Guidelines), and of disciplinary action ([8.9] of the Guidelines) does appear somewhat draconian in the context of employees suddenly being faced with the situation of a pandemic through no fault of their own, with serious consequences to their livelihood. Mr Currie was available to be called, apparently had a close knowledge of the facts in respect of disciplinary action, and it might reasonably have been expected that he have given such evidence [sic].
112. I do have regard to the fact that the respondent was dealing with a very serious threat to the health of a large number of its employees and students in the context of a worldwide pandemic, the scale of which had not apparently occurred for over a century. There was no evidence to this effect in the proceedings, and no submissions were forthcoming from the parties as to the seriousness and scope of the pandemic, but I think that I can take notice of it. Dr Wood did give evidence that the Department was dealing with a serious and rapidly evolving situation when explaining why the email of 27 August 2021 was issued. However, the onus is on the respondent, and for the reasons I have outlined above, I find that the actions taken by the respondent with respect to discipline were not, in the circumstances of this case, reasonable.” (excluding footnotes)

I note the decision of Member Batchelor in Dawking was subject to unsuccessful appeals by the employer to a Presidential Member, and then to the Court of Appeal. Those appeals did not involve challenge to Member Batchelor’s finding in Dawking on the s 11A issue.[59] I note the decision of Member Wynyard in Bjekic is referred to in the Order for further submissions in the current matter. Bjekic does not take on any significance in the submissions going to the current appeal. I accept the respondent’s submission above that it is of no assistance in the current matter.

GROUND NO. 1: FAILING TO HAVE REGARD TO THE WHOLE OF THE EVIDENCE

[59] Dawking Appeal, [22].

Appellant’s submissions

The appellant refers to an email dated 2 September 2021, which it submits was in evidence and which the Member failed to refer to. It submits the criticism in the reasons at [77] was “unfounded”.[60]
[60] Appellant’s submissions, A2–3.

Respondent’s submissions

The respondent submits this ground does not identify the relevant factual error, does not argue for an alternative factual finding, and does not submit how an alternative finding should lead to a different outcome. The ground is submitted to be deficient. It submits the respondent should not be required to respond to the ground in its present form.
The respondent states the email dated 2 September 2021 was referred to in the appellant’s submissions at first instance.[61] The respondent submits the criticism of the Member “is not warranted and the ground is not articulated, let alone made out”.[62]
[61] Transcript of hearing 25/10/23 (T), T 52.7.
[62] Respondent’s submissions, [1]–[2].

Consideration

Notwithstanding how it is framed, this ground goes to the Member’s failure to refer to a single piece of evidence, an email from “Yvette”, the Chief People Officer with the Department, dated 2 September 2021.[63] In his reasons at [76] to [77] the Member referred to a paucity of specific evidence about the respondent’s actions and what effect the actions had upon the appellant:
“76. In this dispute there is no evidence from [the appellant] of any telephone conversations or meetings with the principal of Nowra High School, any staff with authority to discuss the COVID-19 vaccination mandate with [the appellant], or any relevant official from the Department of Education. There is no evidence from [the appellant] of any coercive action taken by a representative on behalf of the respondent which might be found not to be reasonable.
77. [The appellant] refers to ‘all the emails and conversations’ after the two emails she received from Ms Harrisson on 27 August 2021, which she felt ‘were forcing my hand’, but she does not provide any evidence of when those ‘emails and conversations’ occurred, who those emails were from, the identity of the persons she had conversations, and what effect any of those events had upon her at the time they occurred.”
[63] AALD 21/8/23, pp 4–7.
This was a reference to the appellant’s statement dated 24 January 2023 at [8], where she said “I felt I had no option as with all the emails and conversations were forcing my hand as if I declined to be vaccinated I was informed my position would not be held for me” [sic].[64]
[64] ARD, p 20.
The appellant’s submissions at first instance referred to the email dated 2 September 2021 as following up the “big email 27^th of August”.[65] The respondent’s submissions on appeal referred to a passage in the transcript[66] where the appellant’s counsel, in his submissions before the Member, said:
“… does Ms Boyd’s psychological condition arise out of her employment? In my submission, the answer’s yes, it arises out of her being directed by her employer to be double vaxxed by the – by way of the emails of 27 August and 2 September 2021.”[67]
[65] T 47.23–5.
[66] Respondent’s submissions, 2.
[67] T 52.4–7.
The Member’s reasons at [51] reflected this submission:
“Mr Dodd on behalf of Ms Boyd submits that Ms Boyd’s psychological injury arose out of her employment because the injury was sustained upon Ms Boyd being directed to be double vaccinated by the respondent.”
The email of 2 September 2021 was briefly summarised in paragraph [3] of the appellant’s statement dated 1 December 2021.[68] It was there set out as part of the text of the appellant’s statement; it was described as a “vaccination update” issued by “Yvette, the Chief People Officer with the NSW Department of Education”. It was not in the first person. It was not identified in the statement as an email. The email dated 2 September 2021 was attached to the respondent’s letter dated 10 February 2022 disputing liability,[69] and to an Application to Admit Late Documents dated 21 August 2023. It was a document circulated by email and directed to “All school-based staff”. The email was referred to, in the Dawking Appeal, as part of the “[b]ackground circumstances” in that case.
[68] Appellant’s statement, 1/12/21, [3], ARD, p 24.
[69] ARD, p 61.
There was potential error to the extent that the appellant, in its submissions, referred to an email communication that was before the Commission, was relevant and which the Member did not refer to. It is not necessary that a decision-maker refer to every piece of evidence.[70] In Ming v Director of Public Prosecutions (NSW) it was said:
“… it is not necessary for judicial decision-makers to address every argument or every piece of evidence in delivering reasons. Hence the need to show that there has been a failure to grapple with a substantial, clearly articulated argument … The failure to address an issue must be of such significance as to warrant a conclusion that the decision-maker has failed to complete the exercise of its power by reason of having failed to engage with an issue of importance to the matter being resolved.”[71]
[70] Mifsud v Campbell (1991) 21 NSWLR 725, 728.
[71] [2022] NSWCA 209 (Ming), [15].
There is some doubt regarding the extent to which the principles summarised in Ming, that govern the reasons of judicial decision-makers, apply to Members of the Commission.[72] In any event, the simple failure of a decision maker to refer to a piece of evidence, without more, is not, in the circumstances, sufficient to constitute appealable error within the meaning of s 352(5) of the 1998 Act. The appellant’s submissions on appeal are silent on the question of whether (and how) this error could have vitiated the Member’s decision.[73] The appellant’s submissions before the Member, which referred to the email dated 2 September 2021, went to the issue of whether the appellant had suffered psychological injury arising out of her employment.[74] This ‘injury’ argument was one on which the appellant succeeded before the Member in any event, a finding which is not challenged on this appeal. The appellant failed before the Member on a different issue, whether the respondent had established a defence pursuant to s 11A of the 1987 Act.
[72] See Fisher v Noncomformist Pty Ltd [2024] NSWCA 32, [136]–[139].
[73] See Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478, [6]–[7], Leichhardt Municipal Council v Seatainer Terminals (1981) 48 LGRA 409, 419.
[74] T 52.2–7.
The respondent submits it “should not be required to respond to this ground in its present form”.
The ground is not, in any event, made out. The appellant’s submissions on the ground do not identify a basis on which there was appealable error.
Ground No. 1 fails.

GROUND NO. 2: FAILING TO FOLLOW THE DECISION IN DAWKING AS A MATTER OF COMITY

Appellant’s submissions

The appellant refers to the factual similarity between Dawking and the current matter. It submits the Member should have been followed Dawking as a matter of comity.
The appellant’s submissions on ground no. 2 include the following:
“1. The [a]ppellant submits that, if reference is made to all the evidence the Member [sic], it would be apparent that the facts in this matter are almost identical to those in Dawking.
2. It is submitted that, once it is realised that the facts in this matter are almost identical to those in Dawking, the Member should have followed that decision as a matter of comity.”
The appellant’s submissions on this ground refer to Dawking at first instance. Although the matter of Dawking was appealed to a Presidential member,[75] and then to the Court of Appeal,[76] the decision of the Member who heard Dawking was not appealed on the issue of s 11A of the 1987 Act.
[75] [2023] NSWPICPD 23 (Dawking Presidential).
[76] [2024] NSWCA 4 (Dawking appeal).
The appellant refers to a finding in Dawking, that an announcement by the Department, that all public school staff would be required to have double doses of vaccinations from 8 November 2021, was “a somewhat erroneous message in respect of vaccination requirements”.[77] The finding was directed to the level of vaccination status that would be required “to return to face to face teaching at Nowra High School”.
[77] Appellant’s submissions, B1–4.

Respondent’s submissions

The respondent states the Member’s reasons referred to Dawking at [81], [83], [102], [103], [111] and [112]. The respondent notes the reference in Dawking Presidential where Wood DP said “comity is a principle limited to questions of law and statutory interpretation”.
The respondent submits the appellant does not identify any legal principle or question of law and statutory interpretation that ought to have been adopted as a matter of comity.[78] (emphasis in original) The respondent refers to the appellant’s submission that the Department did not appeal the decision in Dawking insofar as it went to the s 11A issue. The respondent submits this is not relevant to the identified ground.[79]
[78] Respondent’s submissions, [3]–[4].
[79] Respondent’s submissions, [5].

Consideration

In Mustac v Medical Board of Western Australia[80] the Court of Appeal of Western Australia said:
“The practice of judicial comity is, of course, distinct from, but related to, the doctrine of precedent (or stare decisis) which compels each court in a judicial hierarchy to follow and apply decisions of any court higher in that hierarchy on questions of law. The practice of judicial comity applies to augment that doctrine by creating a non-binding practice applicable to decisions of courts of co-ordinate jurisdiction, or as between a court in one judicial hierarchy, and a court at the same or a higher level in another judicial hierarchy, and provides that questions of law should usually (but not always) be determined the same way.”[81]
[80] [2007] WASCA 128 (Mustac).
[81] Mustac, [38], per Martin CJ, Wheeler and Buss JJA agreeing.
In Comino v Kremetis[82] Chen J dealt with the doctrine of comity. His Honour said:
“It is well established that a judge of this Court should follow an earlier decision of another judge unless of the view that it is plainly wrong.”[83]
And:
“Three further matters should be noted. First, the ‘practice is limited to questions of law, and has no application to questions of fact’. Here, there is no doubt that the issue of construction raised is of the requisite character so as to be within the rule. Secondly, the rule does not override the fundamental duty of the trial judge to decide the case albeit that that process involves consideration of, and proper regard being given to, the previous judgment. Thirdly, in relation to the exception to the rule – satisfaction that the decision was plainly wrong or clearly wrong – it directs attention to the quality of the error or the level of conviction of error that must be perceived before declining to follow earlier decision.”[84] (omitting references)
[82] [2023] NSWSC 32 (Comino).
[83] Comino, [61].
[84] Comino, [63].
Deputy President Wood, in the Presidential appeal in Dawking, dealt with an argument (made by the employer in that case) that the decision of Member Wynyard, in Bjekic, should have been applied as a matter of comity. The Deputy President, rejecting this submission, quoted from the above passage of Comino. The Court of Appeal in Dawking quoted, without criticism, from this part of the Deputy President’s reasons, in which she concluded that “judicial comity is limited to questions of law and statutory interpretation and has no application to factual determinations”.[85]
[85] Dawking Appeal, [76].
The appellant additionally submits that the Member who decided Dawking held that a message relating to double vaccination was “somewhat erroneous”. This is a reference to a factual finding in the decision of Member Batchelor in Dawking. I cannot see that this assists the appellant’s argument on comity. The appellant also notes that the Department did not appeal the first instance decision in Dawking, going to the issue pursuant to s 11A of the 1987 Act.[86] Again, this does not assist the appellant’s argument on comity.
[86] Appellant’s submissions, B1–4.
The submissions in support of ground no. 2 involve the proposition that the factual findings in Dawking should have been adopted out of comity. I do not accept those submissions. Ground No. 2 fails.

GROUND NO. 3: FAILING TO APPLY THE REASONING IN DAWKING

Appellant’s submissions

The appellant refers to the reasoning of the Member in Dawking, at [102] to [112] of those reasons. The appellant submits it was an error of law that the same reasoning was not applied by the Member in the current matter. The appellant submits the same reasoning should be applied in this Presidential appeal. The appellant submits the respondent’s actions, in issuing the email of 27 August 2021, were not ‘reasonable’ for the purposes of s 11A of the 1987 Act.[87]
[87] Appellant’s submissions, C1–2.
The appellant refers to the reasons in Dawking at [102] to [112] and submits it was an error of law that the Member failed to apply the same reasoning in the current matter. The appellant submits the passage of the reasons dealing with s 11A “stands independently” from any factual differences between Dawking and the current matter. The appellant submits it was an error of law that those reasons were not applied in the current matter.[88]
[88] Appellant’s submissions, C1–2.

Respondent’s submissions

The respondent refers to the appellant’s submission that it was an error of law, in the current matter, that the reasoning in Dawking, was not applied. The respondent submits the appellant has failed to “identify that part of the reasoning constituting legal principle that the Member erroneously failed to apply” (emphasis in original). The respondent submits that “[p]ractically, this ground and submission [in ground no. 3] is no different from ground [no. 2] and should be dismissed”.[89]
[89] Respondent’s submissions, [6].

Consideration

This appeal is brought pursuant to s 352 of the 1998 Act. It is subject to the principles discussed at [34] to [37] above. In Iqbal v Hotel Operation Solutions Pty Ltd the Court of Appeal said:
“… s 352(5) imposes a limitation on the nature of the appeal to a determination whether the decision ‘was or was not affected by any error of fact, law or discretion’. The appeal ‘is not a review or new hearing’. As the Deputy President correctly noted, and as this Court has held, if error of fact be the basis of the appeal, as it was in this case, an appellant must establish, not merely a preference for a different view of the evidence, but an error in the fact-finding exercise undertaken by the arbitrator. Absent established error, the Deputy President had no authority to intervene.”[90]
[90] [2022] NSWCA 138 (Iqbal), (per Basten AJA, Brereton and Mitchelmore JJA agreeing), [11].
The lengthy passage from Dawking, on which the appellant relies, is set out above. It consists largely of factual analysis and findings. The respondent submits that the passage deals with “questions of fact, law and evaluation”. The respondent correctly submits that the appellant’s submissions do not identify that part of the passage that is submitted to be “reasoning constituting legal principle that the Member erroneously failed to apply”.[91] An appeal pursuant to s 352(5) is dependent on the existence of error. It is not sufficient to simply set out the reasoning, the fact-finding and the associated evaluative process undertaken in Dawking and to assert that any decision making to the contrary constitutes an error of law. The appellant’s submissions on Ground No. 3 effectively invite a Presidential member to find error, on the basis of a preference for the fact-finding and outcome in Dawking as opposed to that in the current matter under appeal. Such a process does not seek to identify relevant error. It is contrary to the settled principles that govern appeals pursuant to s 352 of the 1998 Act.
[91] Respondent’s submissions, [6].
Ground No. 3 fails.

GROUND NO. 4: APPLYING THE PUBLIC HEALTH ORDER AS AT 27 AUGUST 2021 BEFORE IT WAS OPERATIVE

Appellant’s submissions

The appellant submits there was no basis for finding the respondent’s emails were objectively “reasonable” on the basis of the Order, when the Order was not promulgated until about one month later.[92] The appellant refers to the email from Ms Harrison dated 27 August 2021,[93] which stated the Department was working in close partnership with NSW Health and that more details would be announced at the Premier’s press conference on that day. The appellant submits there was no evidence regarding any such discussions, or any announcements made at the Premier’s press conference.[94]
[92] Appellant’s submissions, D6.
[93] AALD 22/8/21, p 2.
[94] Appellant’s submissions, D5.
The appellant refers to the reasons at [87], which read:
“In my view it is clear that Ms Boyd was aware at the end of the day on 27 August 2021 that as a teacher in a high school with direct personal involvement in the teaching of students that she would be required to have two doses of a COVID-19 vaccine by

8 November 2021 if she was to teach at that school. Ms Boyd suffered psychological symptoms in response to that communication and sought medical treatment within a period of two weeks of that communication.”
The appellant refers to the reasons at [93] to [94] which read:
“93. I agree with the submission made by Mr Gaitanis that the respondent acted reasonably within the requirements set by the New South Wales government in the Public Health Order which to education in this State [sic]. The Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 identified the significant risk of transmission of COVID-19 unless more vaccines were administered and the particular risk to children in schools.
94. The respondent was required as a consequence of this to ensure that an education and care worker must not carry out relevant work at a government school unless that worker had two doses of a COVID-19 vaccine. The only exception provided in the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 was that if a worker had a medical contraindication certificate.”
The appellant submits that actions before 23 September 2021, when the Public Health Order was issued, were “not required by the Order”.[95]
[95] Appellant’s submissions, D4.
The appellant submits there was no basis for a finding that the email directions were “objectively ‘reasonable’” on the basis they were required by the Public Health Order when it was not “promulgated until about one month later”.[96]
[96] Appellant’s submissions, [5]–[6].

Respondent’s submissions

The respondent submits this ground is based on an incorrect reading of the reasons. There was no finding that the respondent was bound to apply the Public Health Order as at 27 August 2021. It submits the reasons at [95] are “unambiguous”:
“The respondent declared in an email from Ms Harrisson on 27 August 2021 that it would be mandatory for school staff, which would include Ms Boyd, to have had double doses of the COVID-19 vaccine by 8 November 2021. This was to allow for the return to face-to-face learning referred to by Ms Harrisson in the initial email she sent out on 27 August 2021.” (emphasis added in the respondent’s submissions)

Consideration

It is necessary that the reasons be read as a whole.[97] The reasons at [90] to [91] state:
“90. The Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 is issued on 23 September 2021 and the COVID-19 Vaccination Guidelines were issued on 5 October 2021. Ms Boyd attends Dr Keerthigha two weeks after the publication of the COVID-19 Vaccination Guidelines on 19 October 2021 and in the Certificate of Capacity on that day it is stated that Ms Boyd ‘has been feeling very stressed and not coping’ for the previous two weeks since a ‘press release’ that it would be compulsory to get the COVID-19 vaccination.
91. In my view, what was set out in the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 issued on 23 September 2021 and COVID-19 Vaccination Guidelines issued on 5 October 2021 was consistent with what Ms Boyd understood from the second email received by her on 27 August 2021, namely that it would be necessary for [her] to have double doses of the covid vaccine in order for her to return to face to face teaching at Nowra High School. The response by Ms Boyd to both the emails received on 27 August 2021 and the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 issued on 23 September 2021 was to seek medical treatment for the psychological stress which [she] was experiencing.” (emphasis added)
[97] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 (Beale), 444.
The Member’s discussion in the reasons at [90], of the Public Health Order and the Vaccination Guidelines, proceeds on a clearly stated understanding of when these were issued. The reasons do not, when read fairly and as a whole, suggest the fact finding proceeded on a misunderstanding of when the Public Health Order and the Vaccination Guidelines were issued. The reasons at [91] make it clear that “what [the appellant] understood”, from the second email on 27 August 2021, was in the Member’s view “consistent with” what was set out in the Public Health Order and the Vaccination Guidelines. I accept that this ground is based on an incorrect reading of the reasons. The fact finding in the reasons does not proceed on the basis that the Public Health Order had effect at some time before it was actually issued.
Ground No. 4 fails.

GROUND NO. 5: ERROR IN THAT THE PUBLIC HEALTH ORDER DID NOT REQUIRE ALL TEACHERS TO BE VACCINATED

Appellant’s submissions

The appellant submits the Public Health Order “did not require the respondent to demand that the appellant be vaccinated by 8 November 2021”. The Order proscribed unvaccinated workers from working in ‘relevant work’, being “work at a government school” (emphasis in original). It did not extend to teachers working remotely or in duties such as curriculum development. The appellant refers to Kassam/Henry. The appellant submits the respondent carried the onus of establishing its s 11A defence. The appellant questions whether it was objectively reasonable to require that all teachers be vaccinated. It submits those who did not want to be vaccinated were a “few hundred of its 50,000 plus employees”. Why could it not have adopted different measures to cater for these?[98]
[98] Appellant’s submissions, E1–4.
The appellant refers to Dr Wood’s evidence.[99] It submits Dr Wood could not say why consideration was not given to measures such as working remotely or in a non-teaching role. The pandemic would not last indefinitely. Suspension of unvaccinated teachers was an option. The appellant refers to the reasons in Dawking at [105] to [112].[100] The appellant submits the issuing of the email on 27 August 2021 was not objectively reasonable.[101]
[99] Reply, pp 149–153.
[100] Appellant’s submissions, E5–6.
[101] Appellant’s submissions, E7.

Respondent’s submissions

The respondent submits the appellant has not identified the part of the reasons this ground is directed to. The respondent submits this ground “has not been sufficiently articulated" and the respondent should not be required to submit on it. The Public Health Order “speaks for itself. Order 4 prohibits ‘relevant work’ unless the worker is sufficiently vaccinated or there is a medical contraindication certificate.” The email of 27 August 2021 did not purport to set out the terms of the Order. The email informed employees of the likely content and effect of the Order. This was “more sensitive and reasonable” than forwarding a copy of the Order and “having the employee figure it out for themselves”.[102]
[102] Respondent’s submissions, [12]–[16].

Consideration

The stated ground reads: “Error of fact, law or discretion in that the Public Health Order did not require that all teachers (including the appellant) be vaccinated.” In Kowalski v Repatriation Commission the Full Bench of the Federal Court said:
“A ground of appeal must identify, in a meaningful way, what is alleged to be the error in the judgment of the court below rather than leave the reader to speculate by reference to a particular passage or, even worse, just judgment paragraph number what the error might be.”[103]
[103] [2011] FCAFC 43 (Kowalski).
In Ready Workforce (A Division of Chandler Macleod) Pty Ltd v Andronicus Phillips P said it was necessary “for the asserted error to be identified in a meaningful way”.[104] The ground should be understood in the context that the liability finding under challenge was that pursuant to s 11A(1), this being the basis on which the appellant lost. In context, the challenge is to the finding that the respondent’s actions were ‘reasonable’, given the contents of the Public Health Order. The drafting of this ground is not ideal. However, in my view, the ground sufficiently identifies its subject matter and the basis on which it challenges the decision. The respondent has responded to it. This issue was raised before the Member and discussed in the reasons. The appellant’s basic point is that it was not necessary, under the Public Health Order, to insist that a worker such as the appellant be vaccinated. Such a worker could have been moved to other duties, or been otherwise dealt with, in a way that did not involve working in ‘relevant work’.
[104] [2024] NSWPICPD 7, [91].
At [102] of the reasons the Member referred to Dawking, in which the same alternative approaches, to dealing with staff who were vaccine resistant, were suggested. The Member referred to Dr Wood’s evidence,[105] which was before the Commission in both Dawking and the current matter, and which also raised these issues.[106] The Member quoted from the decision of Beech-Jones CJ at CL, in Kassam at first instance (see [28] above).
[105] Reasons, [103].
[106] See Dr Wood’s statement 31/5/22, Reply, pp 149–153, transcript Davis v Secretary, Department of Education, W1987–22.
The appellant submits it was not objectively reasonable that the respondent issued the email dated 27 August 2021.[107] The Member referred[108] to a reference by the respondent to Van Vliet v Landscape Enterprises Pty Ltd, in which Phillips P said “the reasonableness in s 11A(1) does not, with respect, require a counsel of perfection”.[109]
[107] Appellant’s submissions, E7.
[108] Reasons, [71].
[109] [2022] NSWWCCPD 49, [179].
The Member referred to the passage from the decision of Geraghty CCJ in Irwin, in which his Honour said:
“The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness."
The Member’s reasons[110] quoted a summary of principle, taken from Heggie at [59], which included the following:
“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.”
And:
“The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.”
[110] Reasons, [68].
The Member made a finding at [91] of the reasons, quoted at [89] above, that the appellant’s understanding of the second email, forwarded on 27 August 2021, was that “it would be necessary for [her] to have double doses of the covid vaccine in order for her to return to face-to-face teaching at Nowra High School”. The Member found the appellant’s response to the emails received on 27 August 2021, and to the Public Health Order, was to seek medical treatment for psychological stress.
The appellant’s argument, that the Public Health Order did not specifically require that a teacher such as the appellant be double vaccinated, was correct to a point. It was not correct, if the appellant were to be able to continue in ‘relevant work’ at a school.
The Member considered the reasonableness of the respondent’s actions. In the reasons at [95] reference was made to the “return to face-to-face learning referred to by Ms Harrison in the initial email she sent out on 27 August 2021” (emphasis added). The Member referred to the second email on 27 August 2021, “that it would be mandatory for school staff, which would include Ms Boyd, to have had double doses of the COVID-19 vaccine by 8 November 2021. This was to allow for the return to face-to-face learning” (emphasis added). In the reasons at [96], the Member described these actions (as well as the Issue of the Public Health Order and the Guidelines) as “all reasonable action in accordance with the requirements set by the New South Wales government and with the aim that the respondent had of returning teachers and students to face-to-face learning” (emphasis added). This involved having regard to “the objective of the employer” (see the passage from Irwin quoted above). Consistent with the quoted passage from Heggie, it was necessary that account be taken of the “rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances”.
The Member discussed the reasonableness of the respondent’s actions, including in the context of Dr Wood’s evidence, at some length.[111] The Member referred to the alternative options that were raised, involving work that did not constitute ‘relevant work’. The respondent could have allowed teachers to teach while working remotely, unvaccinated teachers could have been redeployed to non-teaching roles such as curriculum development, unvaccinated teachers could have been allowed special leave. The Member referred to the evidence of Dr Wood, who could not explain why special leave was not made available to those who refused to comply with the Guidelines. Dr Wood gave evidence that it was “not within his authority to allow teachers to continue to work remotely as they had done for the previous 12 to 18 months”.[112]
[111] See the reasons at [92]–[97], [108]–[113].
[112] Reasons, [102]–[103].
The Member’s reasons, at [108] to [109], dealt with the actions of the respondent between 27 August 2021 and 8 November 2021. This was the period of the appellant’s work relied on in the ARD as being causative of her injury. The Member referred to the Department’s actions to return teachers to face-to-face learning, while a significant risk of COVID-19 transmission remained in the community. The Member described the need for “proper vaccination for teachers for their intended interaction with other staff and students” as “fundamental to the aims of the respondent”. This was consistent with the evidence overall. The Member referred to the respondent’s “correspondence and directions” that applied to the appellant. The Member said these were “reasonable having regard to ‘the objective of the employer’”. The Member said that, after balancing the objective of the employer with the rights of the employee, he considered the respondent’s actions to be “reasonable”, and the “predominant, if not the whole, of the cause” of the appellant’s psychological injury.[113]
[113] Reasons, [108]–[110].
The Member went on to be critical of some of the respondent’s actions. He said the threat of discipline in the Guidelines, including termination when employees through no fault of their own were faced with “serious consequences to their livelihood”, was “somewhat draconian”. The Member said the threat of dismissal, ultimately carried out in the appellant’s case, “would not appear to be reasonable action”.[114] The Member said:
“Perhaps the respondent had made a deliberate decision to not only make those threats, but to act on them, in order to ensure that as many teachers as possible would return to face-to-face learning. The answer to that is unknown because as Member Batchelor observed in Dawking, and as Mr Dodd also submits in this dispute, there has been no evidence provided by Mr Currie, who would appear from the evidence from
[114] Reasons, [111], [113].
[115] Reasons, [112].
Dr Wood to have the requisite knowledge on this issue.”[115]
I have concluded below, in dealing with Ground No. 7, that an inference pursuant to Jones v Dunkel was available in relation to the failure of Mr Currie to give evidence in the respondent’s case. The Member’s reasons did not specifically refer to such an inference. The reasons at [112] effectively treated the absence of evidence from Mr Currie as leaving a lacuna in the evidence. The reasons were generally consistent with approaching this issue on the basis that Mr Currie’s evidence would not have assisted the respondent’s case.
The Member’s ultimate conclusions were set out at [110] and [117] of his reasons. The appellant has not succeeded in establishing the error alleged in Ground No. 5. I am not persuaded the Member erred in the approach he took to the Public Health Order. The reasonableness of the respondent’s actions was not to be assessed only by reference to fairness to the appellant, although that was a factor. The “all staff” email from Ms Harrison dated 27 August 2021,[116] at the commencement of the process, spelled out the Department’s aims:
– “Vaccinations are a critical part of the COVID-safe return to face-to-face learning plan, to be announced today.
– To allow for a safe return to face-to-face learning under the roadmap, NSW Health has advised that by 8 November all NSW public school and preschool staff will be required to be fully vaccinated.”
[116] AALD 21/8/23.
The text of Ms Harrison’s message included “I know we are all keen to see students in classrooms again, in a safe way that protects both our staff and our students – this is our top priority.” It was necessary that the Member assess reasonableness in the overall circumstances of the case. This involved a “broad evaluative judgment”. It is appropriate that I exercise a “degree of restraint” dealing with the issue on an appeal (see the passage from Vines quoted in the discussion of Ground No. 6 below). As was said in Heggie: “The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.”[117] Reading the decision as a whole, it is clear that the Member did not proceed under a misapprehension that the Public Health Order required that the appellant be vaccinated by 8 November 2021. Ground No. 5 fails.

GROUND NO. 6: POSING THE WRONG QUESTION

[117] Heggie, [59].

Appellant’s submissions

The appellant submits the Member’s question, whether the appellant requested alternative work, was the wrong question. The correct question was whether the respondent’s action in issuing the emails dated 27 August 2021 was reasonable. The appellant submits discussions between the Department and NSW Health, on catering for the few teachers who did not wish to be vaccinated, and the supply of alternative work, was not an administrative task the appellant had any say in.[118]
[118] Appellant’s submissions, F1–2.
The appellant submits that, in any event, the Member found the appellant was injured on 27 August 2021 when she received the respondent’s emails; there was no opportunity for her to make submissions before she was injured. The appellant submits the Member’s consideration at [109] of the reasons, of whether the appellant had sought alternative employment prior to sustaining her injury, was erroneous.[119]
[119] Appellant’s submissions, F3–4.

Respondent’s submissions

The respondent accepts that if an incorrect question for determination was posed this would constitute an error of law. It submits the “reasons at [105] do not appear to pose any question, let alone an incorrect one”. It submits the reasons at [105] are part of the Member’s consideration of the decision of the Court of Appeal in Kassam/Henry. This related to the appellant’s submission that she had been “denied her fundamental right to work.” The discussion of that decision is not of direct relevance to the issue of ‘reasonableness’ for the purposes of s 11A(1) of the 1987 Act.
The respondent submits the “real question” was whether its actions constituted ‘reasonable action’. It gave employees notice that “in all likelihood” the government would require mandatory doses of vaccine and informed them “of the Department’s arrangements to facilitate compliance”. The Department was not yet bound to apply the Public Health Order as at 27 August, but it was reasonable to give employees early notice of likely developments. The appellant’s desire for alternative work had not arisen at that stage, these matters were articulated by the appellant after she was injured (referring to the reasons at [106] to [107].[120]
[120] Respondent’s submissions, [17] to [21].

Consideration

The reasons at [105] read:
“However, the difficulty for Ms Boyd in relying upon any of this material is that it is not clear from the evidence as to when Ms Boyd requested that she might be able to work remotely, undertake alternative duties away from a school, or take some form of special leave.”
The reasons leading up to [105] refer to the appellant’s statement that she had been denied her “fundamental right to work”.[121] In the reasons from [98] to [104] there was discussion of the decision of the Court of Appeal in Kassam/Henry.[122] The Member referred to Irwin and the “rights of employees”, saying that such rights could be “more than a right to work”. The reasons described the options suggested by the appellant regarding alternate duties and referred to the reasons of Member Batchelor in Dawking. They referred to the decision of Beech-Jones CJ at CL in Kassam at first instance.[123]
[121] Reasons, [98].
[122] Reasons, [99]–[101].
[123] Reasons, [102]–[104].
Following the statement in the reasons at [105], described by the appellant as the “wrong question”, the Member at [106] to [107] discussed various matters going to working remotely, alternative duties, social distancing, wearing masks, and special leave. The Member referred to the appellant’s letter to Dr Wood on 21 November 2021, in which she said she had requested leave from 25 October 2021, but did not say when the request was made. The Member referred to the appellant’s letter to Mr O’Hea dated 1 December 2021, regarding alternative duties and the like. The Member said this postdated the vaccination mandate and postdated by six weeks the appellant having ‘no current work capacity’ due to her psychological injury.[124]
[124] Reasons, [106]–[107].
The appellant frames this ground on the basis the correct question was whether the respondent’s action in issuing the emails dated 27 August 2021 was reasonable. The appellant’s pleaded allegation of injury, and the Member’s finding of injury, relied on the work from 27 August 2021 to 8 November 2021. The Member’s finding on ‘injury’ was not confined to the emails dated 27 August 2021. The Member found the relevant actions of the respondent occurred from 27 August 2021 to 8 November 2021.[125] In the reasons at [109] the Member concluded the respondent’s relevant actions over the same period were reasonable. The reasons at [109] continued:
“Although there may have been options such as remote teaching or alternative duties, I am not convinced from my review of the evidence that Ms Boyd had sought these options from the respondent until after she had sustained her injury and was certified as having no current work capacity.”
[125] Reasons, [108].

The reasons at [110] then restated the finding that the respondent’s relevant actions with respect to Ms Boyd were “reasonable”, and “the predominant, if not the whole, of the cause of [the appellant’s] psychological injury.”
The availability of a defence pursuant to s 11A(1) was dependent on the injury being “wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer”.[126] (emphasis in original) The reasons at [105] to [107] related to a consideration of the adequacy and timing of any attempts by the appellant to obtain alternative duties (and associated matters) from the respondent. This was not part of the statutory test in s 11A(1), which focuses on the reasonableness of the actions of the employer, not the worker. The parties’ submissions on appeal do not refer to anything in the legislation or caselaw that would support the approach taken.
[126] Heggie, [59].
In Vines v Australian Securities and Investment Commission Spigelman CJ said:
“Where, as here, the relevant statutory test turns on whether or not the Court is ‘satisfied’ of a matter involving a broad evaluative judgment, then the case law indicates that the degree of restraint which an appellate court should manifest is of the same order as that applicable to a discretion, in the strict sense of that word. A statutory provision expressed in terms of whether a decision maker is ‘satisfied’ of a particular matter is accurately characterised as conferring ‘a very wide discretion’.”[127]
[127] [2007] NSWCA 126, [8].
This approach has been applied in Presidential decisions dealing with s 11A(1) of the 1987 Act.[128]
[128] See for example St George Leagues Club Ltd v Wretowska [2013] NSWWCCPD 64, [147]–[148]; Undag v Bupa Care Services Pty Ltd [2014] NSWWCCPD 67, [57]–[58]; State of New South Wales v Phelan [2017] NSWWCCPD 29, [104]–[105]; Westpac Banking Corporation v Mani [2019] NSWWCCPD 41, [170].
The plurality in House v The King[129] said:
“It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed …”.
[129] [1936] HCA 40; 55 CLR 499.
I accept the appellant’s submission that matters such as the consideration of alternative work practices and options, catering for teachers who did not wish to be vaccinated, and the supply of alternative work or leave arrangements, were not a task for the appellant. The relevant test involved the reasonableness of the respondent’s actions. The Member allowed extraneous or irrelevant matters, which were not relevant to his consideration of the s 11A issue, to affect his decision.
The way in which these matters were discussed in the reasons at [105] to [110], particularly at [109] to [110], was consistent with this being an operative error that affected the result.
It follows that Ground No. 6 is upheld.

GROUND NO. 7: ERROR IN FINDING THE EMAIL DATED 27 AUGUST 2021 WAS PART OF A PROCESS OF INVESTIGATION OR DISCIPLINE

Ground No. 7, raises two issues. The first is whether the email dated 27 August 2021 was part of a process of investigation or discipline. The appellant additionally submits that an inference on the basis of Jones v Dunkel[130] should have been drawn, having regard to the respondent’s failure to adduce evidence from Mr Currie.
[130] [1959] HCA 8; 101 CLR 298 (Jones v Dunkel).

Appellant’s submissions

The appellant refers to Heggie at [59] (a passage quoted in the Member’s reasons at [68]) where it is said:
“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.”
The appellant submits the email of 27 August 2021 at 10.52 am made no reference to disciplinary action if the appellant failed to be vaccinated. The email stated there was an expectation of an announcement by the Premier that day, providing that “as with aged care and health sectors – mandatory double vaccinations will be required for all public school and preschool staff from 8 November”. The appellant submits there was no evidence of what the Premier announced. When the Public Health Order was promulgated on 23 September 2021 it did not require all teachers to be vaccinated. The appellant submits the prospect of investigation and discipline was first raised when the Department issued the “COVID – 19 Vaccination Guidelines” on 5 October 2021.[131] By then the appellant had already sustained injury, was incapacitated and receiving medical treatment”.[132]
[131] Reply, p 30.
[132] Appellant’s submissions, G1–5.
The appellant refers to a determination issued on 18 October 2021 under the Teaching Service Act.[133] This made vaccination certificates a condition of employment. The appellant submits it postdated the appellant’s injury. The appellant submits there was no evidence to suggest that the email of 27 August 2021 was part of a proposed disciplinary process. The reasons at [112] noted the relevant officer of the Department (Mr Currie) had not provided any evidence. The appellant submits the deficiency in the evidence was pointed out when Dr Wood gave evidence in the matter of Davis on 29 August 2022, but the evidentiary gap was not filled. The appellant submits an inference pursuant to Browne v Dunn [sic] should be drawn. The respondent carried the onus on the s 11A issue. The appellant submits that, even applying the extended meaning of ‘discipline’ in Heggie quoted in the reasons at [68], it could not be held that the email dated 27 August 2021 was part of a disciplinary process within the meaning of s 11A.[134]
[133] Reply, pp 22–23.
[134] Appellant’s submissions, G6–8.
The appellant submits the email dated 27 August 2021 did not refer to disciplinary action in the event of non-compliance. The email simply announced that “mandatory double vaccinations will be required for all public school and preschool staff from 8 November”. There was no evidence of what the Premier announced. The Public Health Order, promulgated on 23 September 2021, did not require all teachers to be vaccinated. The appellant submits the Vaccination Guidelines, issued on 5 October 2021, were the first indication of investigation and discipline. There was a determination dated 18 October 2021, under the Teaching Service Act, that vaccination certificates were made a condition of employment. The appellant submits that by the time investigation and discipline were raised she had already been injured, was receiving medical treatment and was incapacitated.[135]
[135] Appellant’s submissions, G2–6.
Dealing with the Jones v Dunkel point, the appellant refers to the evidence of Dr Wood, who was called by the Department to give evidence in Commission proceedings in a matter of Davis (see [2] above), which raised generally similar issues to the current matter. Transcript of this evidence from Dr Wood was before the Commission in both Dawking and the current matter. Dr Wood was the Executive Director of the Department’s “Covid-19 Taskforce 2020 to February 22”.[136] He stated his role was to “coordinate the activities of the entire taskforce”.[137] When giving evidence Dr Wood said that, in some specific areas of expertise, he would not feel qualified to respond. He said his “counterpart within the disciplinary role” was Daryl Currie, the “Executive Director of our Professional and Ethical Standards Directorate”. He said Mr Currie still worked for the Department and was the “right person to talk to” regarding “investigation and disciplinary action including termination”.[138]
[136] Evidence of Dr Wood, 8.24–8.
[137] Evidence of Dr Wood, 8.18.
[138] Evidence of Dr Wood, 16.10–29.

Respondent’s submissions

The respondent’s submissions do not challenge those of the appellant regarding the potential application of Jones v Dunkel.
The respondent describes the email dated 27 August 2021 as the “first step in a process of discipline”. At [64] of the reasons, the Member referred to medical evidence from Drs Nagesh and Rastogi, both of whom referred to injury from actions taken with respect to the COVID-19 mandate. The respondent submits:
“… this medical evidence supports a finding that the correspondence, directions and guidelines issued by the respondent and communicated to Ms Boyd were a predominant cause of her psychological injury, and that this action taken by the respondent amounts to ‘discipline’ within s 11A of the 1987 Act.”
The respondent submits the “subsequent steps in the process were not causative of injury, their evidence identifies its entirety”. It submits the process “introduced a rule which would require either vaccination or exclusion from face to face teaching roles. That much was apparent to the appellant from the moment that the certainty of such a rule was identified in the email”. The respondent submits “the policy objective was vaccination. The sanction (not punishment) was exclusion”. The respondent submits that without the sanction, the appellant would not have succumbed to her psychological condition. It submits the application of the principles in Heggie “cannot be faulted”.[139]

Consideration

[139] Respondent’s submissions, [22]–[24].

The Jones v Dunkel inference

In RHG Mortgage Ltd v Ianni McColl JA (Emmett JA and Sackville AJA agreeing) said:
“The rule in Jones v Dunkel is that the ‘unexplained failure by a party ... to call witnesses ... may in appropriate circumstances lead to an inference that the uncalled evidence ... would not have assisted that party’s case’. ... Any ‘explanation’ such as unavailability or absence of recollection for the failure to call the witness must be established by evidence. The ‘rule cannot be applied to the non-calling of a [non-party] witness unless it would be natural for the party to call the witness, or the party might reasonably be expected to call a witness’.”[140] (excluding references)
[140] [2015] NSWCA 56 (Ianni), [75].
Her Honour also quoted the following from Payne v Parker:
“Whether the [Jones v Dunkel] principle can or should be applied depends upon whether the conditions for its operation exist. These conditions are three in number: (a) the missing witness would be expected to be called by one party rather than the other, (b) his evidence would elucidate a particular matter, (c) his absence is unexplained.”[141]
[141] [1976] 1 NSWLR 191 (Payne), 201–2.
Dr Wood, in cross-examination, indicated the subject matter of ‘discipline’ was outside his specific area of expertise. He named Mr Currie as his “counterpart within the disciplinary role”. Mr Currie still worked for the Department and was “the right person to talk to” regarding “investigation and disciplinary action including termination”.[142] There was not, on the evidence before me, an explanation for the failure to call Mr Currie. The respondent would reasonably have been expected to call him, in light of Dr Wood’s evidence. The appellant’s counsel, before the Member, described Mr Currie as “someone not prepared to give evidence”.[143] The appellant submits a Jones v Dunkel inference should be drawn. The respondent does not make a contrary submission on this point. The conditions for the operation of the rule in Jones v Dunkel, set out in the passage from Payne quoted immediately above, were satisfied. Such an inference was available. The effect of the inference is that described in Ianni above: that the uncalled evidence (from Mr Currie) would not have assisted the respondent’s case. The appellant submits that the inference should be drawn, “particularly when [the respondent] carries the onus of establishing its defence under s 11A”.
[142] Evidence of Dr Wood, 15.28–16.24.
[143] T 46.28.
The appellant’s submissions do not deal specifically with how the inference would have affected the reasoning or outcome in the matter.

Was the email dated 27 August 2021 part of a process of investigation or discipline?

Section 11A(1) of the 1987 Act provides:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1) 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 appellant’s submissions proceed on a basis that the initial email on 27 August 2021 did not provide for disciplinary actions in the event of non-compliance.[144] She submits “investigation and discipline” were first raised in the Vaccination Guidelines issued on 5 October 2021, by which point she was injured, incapacitated and receiving medical treatment.[145] The Member’s reasons at [38] to [39] dealt with the Vaccination Guidelines (issued on 5 October 2021). These guidelines described vaccination as “mandatory” and said that in cases of breach or suspected breach NSW Police “will be called” and “infringement notices or criminal charges may be laid”, “investigation and disciplinary action may be undertaken”. The Member at [41] of the reasons referred to the Vaccination Requirements Guidelines, issued on 12 November 2021, which referred to “non-compliant COVID-19 conduct” as that of an employee who has “not completed a self-declaration form, declared that they are not vaccinated as at 8 November 2021, or failed to provide a medical exemption”. The Guidelines stated that “non-compliance amounts to misconduct”. There is a sharp contrast between the documents issued on 5 October 2021 and 12 November 2021, and the email dated 27 August 2021.
[144] Appellant’s submissions, G2–3.
[145] Appellant’s submissions, G5.
The Member made a finding of ‘injury’ at [59] to [61] of the reasons:
“59.   It is apparent from Ms Boyd’s evidence and the medical evidence referred to that
Ms Boyd was subject to ‘repeated stress’ at least between 27 August 2021 and
19 October 2010 [sic, 2021] from the two emails received from Ms Harrisson on 27 August 2021 and the issue of the Public Health Order on 23 September 2021 and the Vaccination Guidelines on 5 October 2021.
60.    Both Dr Rastogi and Dr Nagesh opine that there were no other non-work related stressors which were having an impact on Ms Boyd during this period and both experts conclude that Ms Boyd’s employment is the main contributing factor to her psychological injury (although Dr Nagesh answers in the affirmative in response to s 4 (b)(ii) rather than s 4 (b)(i)).
61.    I am satisfied that Ms Boyd’s employment was the main contributing factor to the psychological injury which she sustained.”
President Phillips dealt with the issue of whether an identical email dated 27 August 2021 (and some other communications from the respondent) involved actions with respect to ‘discipline’, in Secretary, Department of Education v Uzunovska (a decision that postdates the Member’s decision in the current matter).[146] The worker in the matter of Uzunovska, like the current appellant, was a teacher in the public system, who suffered psychological injury in the context of the COVID mandate and associated events. In considering the nature of the emails dated 27 August 2021, the facts of the two matters did not differ materially. The emails dated 27 August 2021 were identical. His Honour said:
“I would note that nowhere, either before the Member or on this appeal, has the appellant pointed to any salient aspect of the email communications as constituting the commencement of, or a proposal to commence, disciplinary action against the respondent before the email of 5 October 2021 suggested that disciplinary action ‘may’ be taken.”[147]
[146] [2024] NSWPICPD 19 (Uzunovska).
[147] Uzunovska, [58].
The President dealt with an argument that the email dated 27 August 2021 should have been interpreted as raising the prospect of disciplinary action:
“In short, the submission seems to suggest that whether the email in question constituted disciplinary action, or a proposal to commence such action, depended entirely upon the subjective interpretation of the email by the respondent. I reject the suggestion that disciplinary action depends on the subjective interpretation of the email by the respondent.”[148]
“Dr Wood describes the email’s purpose [as] to keep the staff ‘updated as the situation was moving quickly’. Nowhere in his statement does Dr Wood ascribe the email as having the quality of disciplinary action, either actual or proposed.”[149]
[148] Uzunovska, [64].
[149] Uzunovska, [65].
I accept and agree with the President’s characterisation of the emails dated 27 August 2021, referred to above. I do not accept the submission that the emails dated 27 August 2021 were the first steps in a disciplinary process. The contents of the emails do not support that characterisation.
There is a line of authority, flowing from a decision of Neilson J in Kushwaha v Queanbeyan City Council[150] regarding the meaning of ‘discipline’ in s 11A(1) of the 1987 Act. After referring to dictionary meanings, his Honour said:
“It can be seen, therefore, that the primary meaning of ‘discipline’ is learning or instruction imparted to the learner and the maintenance of that learning by training, by exercise or repetition. The narrow meaning of punishment, chastisement is secondary to the primary meaning although this word is often used in this sense in popular speech. It is this narrow meaning which weighed on my mind in Bottles’ case. However, the word used in an Act of Parliament must be given its full meaning, unless the context otherwise requires. Such a context does not appear to me to be called for in the interpretation of s 11A(1).”
[150] [2002] NSWCC 25; 23 NSWCCR 329 (Kushwaha).
Deputy President Wood, in Webb v State of New South Wales,[151] summarised Kushwaha and some Presidential decisions dealing with the interpretation of ‘discipline’ in s 9A(1).[152] In Soutar v Commissioner of Police Neilson J said:
“In my view, the facts of this matter are wholly analogous to those in Kushwaha. Accepting, as I did in Kushwaha, that offering support and training to a worker in order to have the worker improve his or her work performance or to do his or her job properly was discipline, then in the current matter there was invoked a disciplinary process. My only concern is that perhaps I approached the matter too broadly in Kushwaha.”[153]
[151] [2019] NSWWCCPD 50.
[152] See George Weston Foods Ltd v Bogdanoski [2011] NSWWCCPD 62, [173], Mascaro v Inner West Council [2018] NSWWCCPD 29, [134]–[135].
[153] [2006] NSWDC 95.
If the broader meaning of ‘discipline’ were applied, this would not affect the outcome in the current matter.
This is sufficient that Ground No. 7 is upheld.
This does not detract from the Member’s fact finding going to ‘injury’. However, it is inconsistent with the fact finding at [65] and [109] to [110] of the reasons, going to whether the appellant’s psychological injury was wholly or predominantly caused by the respondent’s ‘reasonable action’ for the purposes of s 11A(1). The appellant submits that investigation and discipline were first raised on 5 October 2021, when the Vaccination Guidelines were issued. This is generally consistent with the President’s decision in Uzunovska. In those circumstances, actions on and after the issue of the Vaccination Guidelines potentially constituted ‘reasonable action’ for the purposes of s 11A(1), those before 5 October 2021 did not.
The Member’s reasons dealt with multiple events that were causative of the appellant’s psychological injury. The Member referred to the two emails from Ms Harrison on 27 August 2021.[154] The appellant said she felt “shocked and anxious” when she received the second of those emails.[155] The Member referred to the appellant’s statement regarding the second of the emails sent on 27 August 2021. This outlined that double doses of vaccination would be mandatory for any staff on school sites from 25 October, and for all school staff from 8 November 2021.[156] The Member found it was clear the appellant, at the end of the day on 27 August 2021 was aware that, as a teacher with direct personal involvement in teaching students, she would be required to have two doses of vaccine by 8 November 2021 if she was to teach at Nowra High School. The Member found the appellant suffered psychological symptoms in response to that communication and sought medical treatment within two weeks of it.[157] The appellant referred to “all the emails and conversations”, subsequent to 27 August 2021, which the appellant felt “were forcing my hand”.[158] The Member found that the Public Health Order, issued on 23 September 2021, caused an increase in the appellant’s psychological symptoms.[159] The Member referred to a certificate from Dr Keerthigha issued on 19 October 2021. It said the appellant had been “feeling very stressed and not coping for the previous two weeks, since a “press release” that it would be compulsory to get the COVID-19 vaccination.[160] The Member also noted that the ARD pleaded injury “as a result of events between 27 August 2021 and 8 November 2021” The Member said that, on reviewing the evidence, “the anxiety and stress experienced by [the appellant] which is associated with possible termination of her employment does not occur until she receives the correspondence from Mr O’Hea on or about 17 November 2021”.[161] This correspondence[162] set out the allegations of misconduct, essentially a failure by the appellant to enter her vaccination status in the Department’s system by no later than 8 November 2021. It listed the possible outcomes, stating “sustained disciplinary action may be taken against you, including the placement of your name on the list of people not to be employed by the Department”.
[154] Reasons, [84]–[85].
[155] Reasons, [85].
[156] Reasons, [84].
[157] Reasons, [87].
[158] Reasons, [77].
[159] Reasons, [88].
[160] Reasons, [90].
[161] Reasons, [115].
[162] Reply, pp 85–6.

CONCLUSION

Grounds Nos. 6 and 7 have been upheld. This involves errors that have affected the result. The appeal is upheld. There remains an allegation that the respondent’s actions on and from 5 October 2021 were reasonable, fell within the definition of ‘discipline’ in s 11A(1), and represented the whole or predominant cause of the appellant’s psychological injury. The respondent’s entitlement to succeed on its s 11A(1) defence would be subject to establishing that the appellant’s injury resulted wholly or predominantly from psychological injury suffered during the period from 5 October 2021 to 8 November 2021, when a disciplinary process was arguably in place. These are not topics that have been specifically raised or have been the subject of submissions on this appeal. In those circumstances it is appropriate that the matter be remitted to a different member to deal with any necessary factual issues

DECISION

The Certificate of Determination dated 10 November 2023 is revoked.
The matter is remitted to a different Member for redetermination consistent with these reasons.

Michael Snell

DEPUTY PRESIDENT

3 December 2024