Boyd v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Boyd v Secretary, Department of Education [2023] NSWPIC 605
APPLICANT:	Samantha Boyd
RESPONDENT:	Secretary, Department of Education
MEMBER:	John Isaksen
DATE OF DECISION:	10 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments of compensation and medical expenses due to psychological injury as a result of the employer implementing a covid vaccine mandate for workers working at schools; whether injury arose out of or in the course of employment; reference to Nunan v Cockatoo Docks & Engineering Co Ltd; whether employment was a substantial contributing factor or the main contributing factor to the injury; respondent also relies upon section 11A defence that injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to discipline and/or dismissal; reference to Irwin v Director General of School Education and Northern NSW Local Health Network v Heggie; whether there is comity between this dispute and three other disputes already decided by the Commission in regard to the covid vaccine mandate for education workers; reference to Secretary, Department of Education v Dawking; Held – worker sustained an injury arising out of her employment; the worker’s employment was the main contributing factor to contracting a disease; judicial comity does not apply as that principle is limited to questions of law and not to factual disputes; the injury was predominantly caused by reasonable action taken by the respondent with respect to discipline on the facts in this dispute.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a psychological injury arising out of her employment with the respondent which was predominantly caused by reasonable action taken by the respondent with respect to discipline. The Commission orders: 1. An award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Samantha Boyd, the applicant in these proceedings, claims that she sustained a psychological injury arising out of or in the course of her employment with the respondent, the Department of Education.
Ms Boyd was employed with the respondent as a high school teacher at Nowra High School in 2021. In a report of injury form sent to icare, Ms Boyd states:
“The injury occurred as a result of events arising out of, or in the course, of employment concerning the mandate to be vaccinated commencing on 23 August 2021 and continuing.”
Ms Boyd’s general practitioner, Dr Keerthigha, issued a Certificate of Capacity on
19 October 2021 which certified that Ms Boyd had no current work capacity from
23 October 2021 to a date which was “uncertain” due to “Anxiety, depression and stress concerning mandate to be vaccinated”.
Ms Boyd claims weekly payments of compensation due to an incapacity for work, as well as the payment of medical expenses, as a result of the psychological injury she claims to have arisen out of or in the course of her employment with the respondent.
Allianz Australia Insurance Ltd has issued dispute notices on behalf of the respondent dated 10 February 2022, 30 June 2022 and 27 July 2023 wherein liability is disputed on the grounds that Ms Boyd did not sustain an injury which arose out of her employment with the respondent and that employment was not a substantial contributing factor to that injury.
Liability was also disputed by the respondent pursuant to s 11A of the Workers Compensation Act 1987 (the 1987 Act) because the respondent contends that
Ms Boyd’s psychological injury was caused wholly or predominantly by reasonable action taken or proposed to be taken by the respondent with respect to transfer, discipline, dismissal and/or the provision of employment benefits.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant sustained an injury arising out of or in the course of her employment and whether her employment was a substantial contributing factor to that injury (sections 4 and 9A of the 1987 Act);
(b)    whether the psychological injury sustained by the applicant was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to transfer, discipline, dismissal and/or the provision of employment benefits (s 11A of the 1987 Act);
(c)    whether the applicant has been incapacitated for work as a result of her psychological injury (ss 32A, 33 and 36 of the 1987 Act), and
(d)    whether medical treatment which the applicant has undergone is reasonably necessary as a result of her psychological injury (s 60 of the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conference and hearing on 25 October 2023. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Mr Dodd appeared for the applicant, instructed by Mr McCabe. Mr Gaitanis appeared for the respondent, instructed by Ms Cotchett.
Mr Dodd amended the Application to Resolve a Dispute by restricting the claim for weekly payments to 13 weeks from 23 October 2021 pursuant to s 36 of the 1987 Act. Mr Gaitanis for the respondent objected to that amendment, but I provided reasons which were recorded as to why the amendment would be allowed.
Ms Boyd’s pre-injury average weekly earnings (PIAWE) was agreed at $1,884.50.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    the ARD and attached documents;
(b)    Reply and attached documents;
(c)    The transcript of evidence of Dr Paul Wood, Executive Director of Educational Standards for the Department of Education, which was provided on 29 August 2022 in Davis v Secretary, Department of Education [2022] NSWPIC 715 (Davis);
(d)    Application to Admit Late Documents filed by the applicant on
23 August 2023, and
(e)    Application to Admit Late Documents filed by the respondent on
20 October 2023.

Oral evidence

There was no application to adduce oral evidence or cross examine Ms Boyd or any other witnesses who have provided written statements.

The applicant’s evidence

Ms Boyd has provided statements dated 21 November 2021 and 24 January 2023.
Ms Boyd states that she commenced casual teaching employment with the respondent in October 2015. She states that she worked in a permanent full-time placement at Nowra High School from 2019 to 2021.
Ms Boyd states: “I became aware of the Public Health Order 2021 (COVID-19 Vaccination of Workers) which commenced on 26 August 2021”. She states that the order established mandatory requirements for health staff and persons working in health settings to be vaccinated with a COVID-19 vaccine.
Ms Boyd states in her second statement dated 24 January 2023 that she received an email from Georgina Harrisson, Secretary of the Department of Education, on
27 August 2021 which outlined the roadmap to be taken for face-to-face learning and required all New South Wales public school and preschool staff to be fully vaccinated by 8 November 2021.
Ms Boyd then states:
“Later that same day I received another email from Georgina Harrisson sharing plans for a safe return to school. It 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. As a result of this email I was shocked, anxious and feeling forced to have a trial drug objected into my body and worried about what it would do to me.”
Ms Boyd states that over the next week she continued to feel anxious and scared of the effects of the injection. She states that she was anxious and stressed about losing her job. Ms Boyd then states:
“Since receiving the email on 27 August 2021 I have suffered severe anxiety and feel depressed and struggling to do tasks that require concentration. 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 formally. I have since found that although in my line of work it’s mandated to be vaccinated, there is a choice to be or not to be and I feel that this choice was taken from me due to coercion.”
Ms Boyd states that since receiving the email from Ms Harrisson on 27 August 2021, and her decision to not be fully vaccinated, she suffers from feelings of helplessness and hopelessness, a loss of interest in daily activities, loss of energy and concentration problems.
Ms Boyd also states in her first statement:
“I believe the Covid 19 vaccination mandate denies me my fundamental right to work, as the mandate to be vaccinated restricts or removes my basic liberties and this must be proportionate and necessary to manage the risk and must be the minimum necessary to achieve the public health aims.”
Both statements from Ms Boyd end with the following:
“I have been totally incapacitated for work as a result of the events arising out of, or in the course of, my employment with my employer from 27 August 2021 and the feelings are increasing.”
There is also in evidence a letter from Ms Boyd to Tony O’Hea, NSW Department of Education Professional and Ethical Standards, dated 1 December 2021 which is in response to a letter sent by Mr O’Hea on 17 November 2021 wherein it is alleged that Ms Boyd has engaged in misconduct by failing to enter her vaccination status with the respondent. Ms Boyd acknowledges in her letter the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 made on 23 September 2021 which requires teachers to have had both doses of the COVID-19 vaccination by
8 November 2021.
Ms Boyd writes in that letter there are only a small number of teachers, such as herself, who are not fully vaccinated and this should be considered when dealing with an allegation of misconduct. Ms Boyd enquires in that letter if there can be alternative work arrangements such as reducing contact between a teacher and students and working from home.
There is also in the Reply a letter from Ms Boyd to Paul Wood, Executive Director COVID-19 Taskforce, which runs for 21 pages and which is sent on
21 November 2021 which addresses her failure to comply with a direction to provide her vaccination status.

The applicant’s medical evidence

Ms Boyd’s general practitioner, Dr Keerthigha, prepared a GP Mental Health Treatment Plan on 9 September 2021 which included the following:
“Stress, anxiety and depression
since press release that it has been made compulsory to get the vaccine two weeks ago, has been feeling very stressed and not coping.”
The Plan also included “Not sleeping okay” and “Forcing myself to eat”.
Dr Keerthigha issued a Certificate of Capacity on 19 October 2021 which certified that Ms Boyd had no current work capacity from 23 October 2021 to a date which was “uncertain” due to “Anxiety, depression and stress concerning mandate to be vaccinate”. The Certificate states how the injury is related to work as follows:
“Uncertain if related to work given vaccination requirement is a public health requirement. But the requirement for vaccination had caused her immense stress.”
Dr Rastogi, psychiatrist, has provided a report at the request of Ms Boyd’s lawyers dated 4 August 2022.
Dr Rastogi records the following history from Ms Boyd:
“The announcement was made for vaccine mandate for school teachers and stated the emails from the Department of Education and from the principal were very intense and on daily basis. There were daily emails seeking updates on vaccination mandate and very short time frames with threats that staff would not be allowed on site if they had not been vaccinated. This was followed by changing timelines to return back to school shifting it earlier and the demand that vaccination should be completed earlier by 18 October 2021 otherwise the staff would not be allowed to return to school under any circumstances.”
Dr Rastogi records that Ms Boyd was working from home at the time and was not comfortable with the demands of the mandate and felt under coercion to keep her job. She records that Ms Boyd had significant stress, anxiety with initial insomnia, anxious ruminations and panic attacks caused by the mandate for vaccination.
Dr Rastogi diagnoses Ms Boyd as having adjustment disorder with anxious distress in remission. Dr Rastogi opines:
“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. She felt punished and discriminated whilst she was still concerned about the vaccination due to fear about side effects and felt the undue pressures and coercion magnified her anxiety and distress leading to adjustment disorder.”
Dr Rastogi also opines that Ms Boyd’s condition has not wholly or predominantly being caused by action taken by the respondent in respect of promotion, appraisal, discipline and dismissal.

The respondent’s evidence

One of the two emails from Ms Harrison dated 27 August 2021 which are referred to by Ms Boyd in her evidence includes the following:
“we have been working in close partnership with NSW Health on the safest return to face-to-face learning plan. More details will be announced at the Premier’s press conference this morning.
Vaccinations are a critical element of our plan - alongside mask wearing, reduced mingling between cohorts, and staggered start and finish times. We have heard loud and clear from our principals, stakeholder groups and school communities that this is fundamental to ensuring confidence in any return to school sites.
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.”
On 23 September 2021 the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 was issued by the Minister for Health and Medical Records. The Order contains a direction from the Minister that an education and care worker must not carry out “relevant work” on or after 8 November 2021 unless the worker has had two doses of a COVID-19 vaccine or has been issued with a medical contraindication certificate. The phrase “relevant work” is defined in the Order to include: “work at a government or non-government school”.
The Public Health Order also set out in clause 3 the grounds for concluding that there is a risk to public health which included:
“(d) the risk of transmission, including by means of community transmission, of COVID-19 in New South Wales will remain significant and ongoing unless more COVID-19 vaccines are administered,
(e) there is a risk of transmission of COVID-19 among children at government schools, non-government schools and early education and care facilities because the COVID-19 vaccine is currently not available for children of certain ages.”
The respondent issued COVID-19 Vaccination Guidelines on 5 October 2021 which stated that all workers must be fully vaccinated from 8 November 2021 to work in schools and early education and care facilities as defined by the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021.
The Guidelines stated:
“Mandatory vaccination is one of the key strategies for the COVID-safe school operations the department uses to protect children and young people and to provide a safe working and learning environment for everyone at its workplaces.”
The Guidelines included the following:
“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.”
Georgina Harrisson as Secretary for the Department of Education issued a determination under the Teaching Service Act 1980 on 18 October 2021 which stated that 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 respondent issued a ‘Management of Conduct Related to Non-compliance with COVID 19 Vaccination Requirements Guidelines’. The Guidelines state non-compliance with the public health order, applicable determinations and directions for COVID-19 vaccination amounts to misconduct. Non-compliant COVID-19 conduct is defined as 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.
Tony O’Hea from the Professional and Ethical Standards Directorate of the Department of education wrote to Ms Boyd by latter dated 17 November 2021 alleging that Ms Boyd had engaged in misconduct by failing to comply with directions in regard to the COVID-19 vaccine mandate and advising that disciplinary action may be taken against Ms Boyd.
Daryl Currie, Executive Director of Professional and Ethical Standards for the respondent, wrote to Ms Boyd on 18 December 2021 stating that the three allegations of misconduct set out in the letter from Mr O’Hea dated 17 November 2021 had been sustained.
Mr Currie wrote again to Ms Boyd on 13 January 2022 to inform her that she was dismissed from her employment with the respondent as a result of her misconduct.

The respondent’s medical evidence

Dr Nagesh has provided a report at the request of the respondent dated
24 August 2023.
Dr Nagesh records that Ms Boyd first noticed her symptoms when the announcement by the Premier was made regarding mandatory COVID-19 vaccination. He records that Ms Boyd became anxious when the mandated COVID-19 vaccine came into place because she was unsure about the vaccine. He reports that her mood became depressed.
Dr Nagesh diagnoses Ms Boyd as having major depression of moderate degree with anxious distress.
Dr Nagesh opines that 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. Dr Nagesh opines that Ms Boyd’s employment appears to have been a substantial contributing factor to her psychological injury and also the main contributing factor to the aggravation of a pre-existing condition.

Determination

Whether the applicant has sustained an injury arising out of or in the course of her employment with the respondent

Mr Gaitanis for the respondent refers to the two statements from Ms Boyd and correspondence she has sent to the respondent, including her letter to Mr O’Hea dated 1 December 2021, to submit that Ms Boyd was vociferously opposed to the COVID-19 vaccine. He submits that it was this personal choice made by Ms Boyd which falls outside of her employment and which means that Ms Boyd has not satisfied the definition of ‘personal injury’ in s 4 of the 1987 Act.
Mr Gaitanis relies on support for this submission on the concession made by
Dr Keerthigha in the Certificate of Capacity which was issued on 19 October 2021 that Dr Keerthigha was “uncertain” if Ms Boyd’s psychological condition was related to work.
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.

In Badawi v Nexan Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503; 7 DDCR 75 (Badawi), a five member bench of the Court of Appeal said at [73]: “The meaning of “arising out of…employment” is settled” by confirming the decision of Nunan v Cockatoo Docks & Engineering Co Ltd (1941) 41 SR (NSW) 119 (Nunan). The Court then said in relation to Nunan at [75]:
“Their Honours concluded, at 124, that a worker would have established that an injury arose out of employment:
‘… if it appears…that the fact of his being employed in the particular job caused, or to some material extent contributed to, the injury…’”
There was also approval in Badawi at [77] of what Starke J said in Smith v Australian Woollen Mills [1933] HCA 33; 50 CLR 504 (Smith) at [517] that: “The expression ‘arising out of’ imports some kind of causal relationship with the employment, but it does not necessitate direct or physical caution”. The Court then said at [79]:
“The necessity for there to be a causal element between the employment and the injury when determining whether a worker sustained injury arising out of employment, has been consistently confirmed by the High Court and this Court.”
In my view there is a clear causal relationship between Ms Boyd’s employment as a teacher and the mandatory direction by the respondent for her to be double vaccinated in order for her to continue to perform her work duties as a teacher with the respondent. It was her psychological reaction to that direction which was the cause of her injury, and this is supported in the opinions on causation provided by both
Dr Rastogi and Dr Nagesh. The injury she has sustained therefore does arise out of the employment.
Mr Gaitanis additionally submits that Ms Boyd’s employment was not a substantial contributing factor to her psychological injury as required by s 9A of the 1987 Act. However, from my review of the evidence, the injury sustained by Ms Boyd properly fits the definition of ‘disease injury’ s 4 (b)(i) of the 1987 Act being:
‘‘a disease that is contracted by a worker in the course of employment but only if employment was the main contributing factor to contracting the disease.”
The initial onset of psychological symptoms from Ms Boyd’s evidence occurs on
27 August 2021 when she receives two emails from Ms Harrisson. She then attends Dr Keerthigha some two weeks later on 9 September 2021 (or perhaps
8 September based on the subsequent Certificate of Capacity dated 19 October 2021) and is provided with a GP Mental Health Treatment Plan which records Ms Boyd as having “stress, anxiety and depression”.
Ms Boyd again attends Dr Keerthigha on 19 October 2021 and is certified as having no current work capacity because “the requirement for vaccination had caused immense stress”. This is after the Public Health (COVID-19 Vaccination of Education and Care Workers) Order is issued on 23 September 2021 and the COVID-19 Vaccination Guidelines is issued on 5 October 2021.
In Perry v Tanine Pty Ltd t/as Ermington Hotel [1998] NSWCC 14; 16 NSWCCR 253 (Perry v Tanine), Burke CCJ was dealing with a carpal tunnel injury, but what was said by His Honour can be applied more generally to a disease injury:
“In general it seems to me that carpal tunnel syndrome is a failure of an area of the body to cope with repeated stress imposed upon it and reacts to that stress by developing swelling, pain and loss of function as a consequence. That seems to me to be classically a disease process. Where work is the source of the relevant stress it connotes to me that the worker has received injury either by the contraction or aggravation of a disease.”
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 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.
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)).
I am satisfied that Ms Boyd’s employment was the main contributing factor to the psychological injury which she sustained.

The s 11A defence

Section 11A (1) of the 1987 Act provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by, or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The dispute notices issued on behalf of the respondent identified four categories within s 11A which applied to Ms Boyd’s claim - transfer, discipline, dismissal and/or the provision of employment benefits. However, Mr Gaitanis only made submissions on the application of discipline and dismissal.
Dr Nagesh opines that the cause of Ms Boyd’s psychological injury was action taken by the respondent with respect to the COVID-19 vaccine mandate. Dr Rastogi is of the same opinion, although she adds ‘termination’ as a cause of Ms Boyd’s injury.
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 critical issue is whether that action taken by the respondent was reasonable.
In Irwin v Director General of School Education NSWCC, No. 14068 of 1997, unreported (Irwin) Geraghty CCJ stated:
“The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of an employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness.”
In Northern NSW Local Health Network v Heggie [2013] NSWCA 225; 12 DDCR 95 (Heggie), Sackville AJA said at [59]:
“The following propositions are consistent both with the statutory language and the authorities that have construed s 11A(1) of the [1987] Act:
(i) 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.
(ii) Nonetheless, for s 11A(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii) An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv) 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.
(v) Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi) 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.
(vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.”
Sackville AJA then said in Heggie at [61]:
“In my opinion, the better view is that the reasonableness of an employer's action for the purposes of s 11A(1) of the WC Act is to be determined by the facts that were known to the employer at the time or that could have been ascertained by reasonably diligent inquiries. The statutory language directs attention to whether the psychological injury was caused by reasonable disciplinary action taken or proposed to be taken by the employer. Ordinarily, the reasonableness of a person's actions is assessed by reference to the circumstances known to that person at the time, taking into account relevant information that the person could have obtained had he or she made reasonable inquiries or exercised reasonable care. The language does not readily lend itself to an interpretation which would allow disciplinary action (or action of any other kind identified in s 11A(1)) to be characterised as not reasonable because of circumstances or events that could not have been known at the time the employer took the action with respect to discipline.”
Mr Gaitanis submits that the respondent acted reasonably in response to the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021. The respondent was given a direction by the New South Wales government and had no option but to implement that direction. That required the respondent to inform all teachers that they must be double vaccinated in order to work in a school.
Mr Gaitanis relies upon what was said by President Phillips in Van Vliet v Landscape Enterprises Pty Ltd [2022] NSWWCCPD 49 (Van Vliet) [at 179] that: “the reasonableness in s 11A (1) does not, with respect, require a counsel of perfection”, and that the respondent did its best implement the mandate in particularly challenging circumstances.
Mr Dodd refers to there being three arbitral decisions to date regarding psychological injury sustained by teachers due to the COVID-19 vaccine mandate being enforced by the respondent and all three decisions have resulted in awards in favour of the worker.
Mr Dodd submits that Ms Boyd should also succeed in this dispute as a matter of comity with those other decisions of the Commission.
However, it is apparent from having read those other three decisions of the Commission that each of those decisions was determined on their particular facts and circumstances. Deputy President Wood in Secretary, Department of Education v Dawking [2023] NSWPICPD 23 referred at [112] to what was said by Chen J in Comino v Kremetis [2023] NSWSC 63 (Comino):
“As Chen J observed in Comino, judicial comity is limited to questions or law and statutory interpretation and has no application to factual determinations.”
Member Bamber did not consider the issue of reasonable action in s 11A in Davis because she did not consider that the injury sustained by the worker was the whole or predominant cause of the workers psychological injury.
Member Snell in White v Secretary, Department of Education [2023] NSWPIC 113 considered that action taken by the respondent with respect to discipline was not reasonable because:
(a)    the principal of the school had a telephone conversation with the worker on 27 September 2021 wherein the principal said that the worker’s attitude towards the mandatory vaccination requirements may have differed if a student who had passed away only a few weeks earlier was still attending the school;
(b)    the principal was aware of the worker’s mental fragility when she had this telephone conversation with the worker;
(c)    the principal required the worker to attend for work at school on
5 October 2021 with the knowledge that the principal would send the worker home due to her vaccination status, and
(d)    the principal and the administration manager conducted a meeting with the worker at the school on 5 October 2021 regarding the worker’s vaccination status when there was only short notice given for this meeting and the worker did not have the benefit of a support person.
In this dispute there is no evidence from Ms Boyd 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 Ms Boyd, or any relevant official from the Department of Education. There is no evidence from Ms Boyd of any coercive action taken by a representative on behalf of the respondent which might be found not to be reasonable.
Ms Boyd 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.
Dr Rastogi does record “daily emails” from the respondent and from the principal which were “very intense”. However, that same history is not taken by Dr Nagesh and, more importantly, those details do not appear in the quite lengthy consultation notes made by Theodora Famulari, psychologist, for Ms Boyd’s first attendance for treatment on
7 November 2021.
Ms Famulari does record: “She reported the stress, depression and anxiety of having to deal with negative comments about her vaccination stance. She was a judge for making decision to not get vaccinated, being called stupid”. However, the notes do not identify these comments as coming from the principal.
I am mindful that caution needs to be exercised when relying upon clinical notes from health practitioners, but the lack of any reference to any coercion by the principal or anyone else representing the respondent in the quite lengthy and detailed notes made by Ms Famulari, the absence of such a history in the report from Dr Nagesh, and the lack of Ms Boyd’s own evidence on this particular dispute, causes me to doubt the accuracy of that particular complaint which is recorded by Dr Rastogi.
The closest of the three arbitral decisions to the facts in this dispute is the decision of Member Batchelor in Dawking v Secretary, Department of Education [2022] NSWPIC 611 (Dawking). Member Batchelor agreed with a submission made by Mr Dodd in that dispute that the email sent by Ms Harrisson on 27 August 2021 regarding the expected announcement by the Premier 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” [104].
Member Batchelor then said at [104]:
“The applicant correctly submits that, rather than there being a problem with the public 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 facts in this dispute are different to those in Dawking and leads me to a different conclusion regarding the reasonable action of the respondent with respect to discipline.
Ms Boyd also received the email from Ms Harrisson on 27 August 2021 regarding the anticipated announcement from the Premier, but she also states that she received another email from Ms Harrisson later that day. That email is not in evidence but
Ms Boyd states that the email:
“…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.”
Ms Boyd then states that she was shocked and anxious when she received this second email on 27 August 2021 as she felt she was being forced to have a trial drug injected to her body.
Ms Boyd then attends Dr Keerthigha on 8 or 9 September 2021. The clinical notes for that consultation are not in evidence, but it is reasonable to infer from the contents of the GP Mental Health Treatment Plan prepared by Dr Keerthigha that Ms Boyd experienced a deterioration of her psychological condition and that was due to the COVID-19 vaccine mandate issued by the respondent.
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.
As I have already observed, there is no evidence from Ms Boyd of any specific emails received from the respondent or conversations with relevant officers on behalf of the respondent after the two emails which were received on 27 August 2021 until the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 which is issued on 23 September 2021, which caused her to experience an increase in her psychological symptoms.
Ms Boyd states that she became anxious and stressed about losing her job in the week following the emails she received from Ms Harrisson on 27 August 202, but
Ms Boyd provides no evidence of any communications from the respondent at this point in time that raised the possibility of the termination of her employment. Ms Boyd may have perceived that her job was at risk from the emails sent by Ms Harrisson, but that perception must be based upon real events in order to establish that she has sustained psychological injury (Attorney-General’s Department v K [2010] NSWWCCPD 76) and no such evidence is provided by Ms Boyd.
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.
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 was experiencing.
Sackville AJA in Heggie said that 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.
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. 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.
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 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.
The respondent sent out Guidelines dated 5 October 2021 in accordance with the Public Health Order issued some two weeks earlier. 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.
However, Sackville AJA also said in Heggie that the rights of the employee must be taken into account when assessing what is reasonable action, although the extent to which those rights are to be given weight depends on the circumstances of each particular dispute.
Ms Boyd states that the COVID-19 vaccine “denies me my fundamental right to work”.
In Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299 (Kassam; Henry), Court of Appeal was presented with various arguments as to why an employee should be allowed to continue to work despite an employer’s requirement that the employee be properly vaccinated against COVID-19. One of those arguments was whether a person has the right to work or a right to earn a living. These arguments were rejected by the Court.
President Bell addressed the claim of a ‘right to work’ or a ‘right to a living’ at [100] and [103-104] when he said:
“100 By way of contrast to the right to bodily integrity, the existence of a common law “right to earn a living” or a ‘right to work’ is far more problematic, although it is powerful rhetorical refrain. The use of such a refrain, however, is not the same as a right recognised by the common law, still less a right or value of a ‘fundamental’ character apt to attract and engage the principle of legality. The primary judge held that ‘the common law has refused to recognise a ‘right’ in those terms’: PJ [199].
103 As explained in JD Heydon, The Restraint of Trade Doctrine (4th ed, 2018, LexisNexis Butterworths) at 88, the ‘right to work’ mentioned in some cases, of which Nagle v Feilden[1966] 2 QB 633 is the most well-known, is ‘not a positive right, but a liberty which is not to be unreasonably impeded’. That is entirely consistent with what this Court said in Curro.
104 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.”
The ‘Impugned Orders’ referred to by President Bell included the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021.
I accept that the “rights of employees” as referred to in Irwin can be more than a ‘right to work’ as asserted by Ms Boyd. In Dawking, which was a dispute in which the worker was also represented by Mr Dodd, there were several issues raised by the worker as part of her contention that the respondent had not acted reasonably with respect to discipline which included:
(a)    allowing the worker to continue to work remotely and teach pupils at a school;
(b)    redeploying unvaccinated teachers to non-teaching roles such as curriculum development, and
(c)    allowing special leave to be given to unvaccinated teachers.
Member Batchelor also referred in Dawking to the oral evidence given by Dr Wood, Executive Director, Educational Standards, in Davis wherein Dr Wood could not explain why special leave provisions were not made available to those who refused to comply with the Guidelines and stated 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.
The ability for an unvaccinated teacher to work remotely was also considered by Beech-Jones CJ in Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320, which was the first instance decision before the appeal of those matters to the Court of Appeal. His Honour said in regard to the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 at [90-91]:
“As noted, sub-clause 4 (1) is directed to persons who are actually carrying out relevant work after 8 November 2021. It does not apply to a person who is employed as a teacher but not carrying out because, for example they are on leave. 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. If it did have that effect there would be a serious question as to whether the clause as drafted was untethered from the risk that the Minister identifies in the grounds set out in clause 3.
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. It follows in part from the fact that the ‘risk’ identified in the Education Order concerns physical transmission of the disease and the use of the word “at” as opposed to say ‘for’ in sub paragraphs (a), (b), (c) and (e)”.
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.
Ms Boyd does suggest various options for continuing to work in her letter dated
1 December 2021 to Mr O’Hea, including remote work, alternative duties, social distancing and wearing masks. However, this is after the date of enforcement of the vaccination mandate on 8 November 2021 and is some six weeks after Ms Boyd has been certified as having no current work capacity due to a psychological injury which, based upon the information contained in the Certificate of Capacity, is due to her concerns regarding the COVID-19 vaccine.
Ms Boyd writes in her letter to Dr Wood on 21 November 2021 that she requested leave from 25 October 2021, but she does not state when the request for leave was made, and if it was before she was certified as having no current work capacity in the Certificate of Capacity dated 19 October 2021.
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.
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.
I therefore consider after balancing “the objective of the employer” with the “rights” of Ms Boyd as an employee that the respondent has established that the action which it 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.
I would add that I agree with observations made by Member Batchelor in Dawking that the threat of discipline contained in the Guidelines, which included termination of employment, “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” [at 111].
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
Dr Wood to have the requisite knowledge on this issue.
The threat of dismissal and then actual dismissal of Ms Boyd would not appear to be reasonable action by the respondent for Ms Boyd given that she had been employed with the respondent for at least a few years, there should be some allowance for the uncertain times created by the COVID-19 pandemic, and there would be stain on
Ms Boyd’s employment record from the termination of her employment.
However, the available evidence does not disclose that the threat of termination of
Ms Boyd’s employment had any effect upon her psychological condition until after she had become totally unfit for work because of her psychological injury and after the due date for compliance with the COVID-19 vaccine mandate on 8 November 2021. I have already concluded that Ms Boyd would only have had a perception that she could lose her job after the emails which were sent by Ms Harrisson on 27 August 2021, but that this was not based on actual events.
I have already acknowledged that caution needs to be exercised when relying upon clinical notes from health practitioners. However, the lengthy notes taken by Theodora Famulari, psychologist, in her first consultation with Ms Boyd on 7 November 2021 do not include any concerns that Ms Boyd had with the possible termination of her employment by the respondent. That is only referred to in the notes from Ms Famulari on 20 November 2021, which is after the letter is sent by Mr O’Hea to Ms Boyd on
17 November 2021.
Furthermore, although it is recognised that the forms filed and served by the parties in the Commission are not strict pleadings, the injury details set out in the ARD are for injury which occurs between as a result of events between 27 August 2021 and
8 November 2021. From my review of the evidence the anxiety and stress experienced by Ms Boyd 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.
As a consequence of my finding that the predominant cause of Ms Boyd’s psychological injury was reasonable action taken by the respondent with respect to discipline, there will be an award for the respondent.

[2023] NSWPIC 605

10 November 2023