Chiha v State of New South Wales (Western Sydney Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Chiha v State of New South Wales (Western Sydney Local Health District) [2024] NSWPIC 49
APPLICANT:	Jemma Chiha
RESPONDENT:	State of New South Wales (Western Sydney Local Health District)
MEMBER:	Cameron Burge
DATE OF DECISION:	8 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits in respect of alleged psychological injury; injury disputed and in alternative, if injury is present, the respondent alleges it was brought about by its reasonable actions in relation to discipline, dismissal and/ or provision of employment benefits; the degree of any incapacity is also in issue; the applicant alleges she suffered psychological injury arising from lack of communication and uncertainty surrounding her COVID-19 vaccine status; Held – the applicant suffered a psychological injury in the course of her employment; the defence pursuant to section 11A is not made out; as a result of the injury, the applicant was for a time totally incapacitated and has, since January 2023 been partially incapacitated; respondent to pay the applicant weekly compensation.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered a psychological injury in the course of her employment with the respondent with a deemed date of injury of 19 August 2022. 2. The injury referred to in [1] above was not caused by the reasonable actions of the respondent with respect to discipline, dismissal or provision of employment benefits. 3. As a result of her injury, the applicant was totally incapacitated for employment from 19 August 2022 to 31 December 2022. 4. As a result of her injury, the applicant was and remains partially incapacitated for employment, with a residual capacity to work in her former employment for eight hours per week, at an hourly rate of $43.6578, or $349.26 per week. 5. The applicant’s pre-injury average weekly earnings were $1,123.42. 6. The respondent is to pay the applicant weekly compensation as follows: (a) pursuant to s 36, for the period 19 August 2022 to 18 November 2022, at the rate of $1,067.24 per week; (b) pursuant to s 37, for the period 19 November 2022 to 31 December 2022, at the rate of $898.73 per week, and (c) pursuant to s 37, for the period 1 January 2023 to date and continuing, at the rate of $549.47 per week. 7. The parties have liberty to apply in relation to the calculations of weekly compensation in [6] above.

STATEMENT OF REASONS

BACKGROUND

The applicant, Jemma Chiha seeks payment of weekly compensation benefits from 19 August 2022 to date and continuing as a result of an alleged psychological injury suffered in the course of her employment with Western Sydney Local Health District (the respondent).
The applicant commenced employment with the respondent on or about 12 January 2009, and since approximately 2012 was working between two to three days per week as a midwife. She alleges that as a result of feeling unsupported, ignored and dismissed during attempts to communicate with human resources and her manager about the clearance of a COVID-19 exemption, she was removed from various communication lists, could not work and developed a psychological condition.
The applicant's pre-injury average weekly earnings (PIAWE) are agreed at $1,123.42 per week.
The respondent denies liability in relation to the applicant's claim. It alleges the applicant's injury did not arise out of or in the course of her employment with the respondent, that her employment was not the main contributing factor to the development of the condition and that if a work-related psychological condition did occur, it was wholly or predominantly caused by the reasonable actions of the respondent with respect to discipline, dismissal or provision of employment benefits.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant suffered a work-related psychological injury;
(b)    if the answer to (a) above is in the affirmative, whether that injury was brought about by the reasonable actions of the respondent with respect to dismissal, discipline and/or employment benefits, and
(c)    whether the applicant suffered incapacity for employment, and if so to what extent and for how long.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing on 27 October 2023. At the hearing, the applicant was represented by Ms Grotte of counsel instructed by Ms Azer. The respondent was represented by Mr Young of counsel instructed by Ms McDonald.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attached documents;
(b)    Reply and attached documents, and
(c)    the Applicants Application to Late Documents (ALLD) dated 23 October 2023 and attachments.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered a work-related psychological injury

The factual background to the alleged injury as set out by the applicant is in large parts uncontroversial.
In or around July 2021, the applicant states staff received an email and verbal communication to the effect all employees must receive two doses of the COVID-19 vaccination or have a medical contraindication, as set out in the relevant Public Health Order.
In her statement, the applicant alleges that on or about 30 September 2021, she received a letter from the respondent advising she was unable to work for New South Wales Health as she had not received at least one dose of the COVID-19 vaccine and did not have a valid medical contraindication. The letter directed the applicant to contact Ms Daniel of the respondent’s Human Resources Department if she wished to discuss the matter further.
On or about Friday, October 2021, the applicant states she called Ms Daniel and informed her she had recently been diagnosed with coeliac disease, that she had suffered an adverse reaction to an iron infusion and had a history of anaphylaxis allergy. During the course of that conversation, the applicant stated she was advised to speak to her direct line manager about accessing paid leave on a week-to-week basis until health her concerns had been clarified and addressed.
The applicant states she then contacted her line manager, Ms Zhang and advised her of her contact with human resources. The applicant states she received no reply, but realised approximately two weeks later that she was on paid leave. The applicant then emailed Ms Zhang seeking clarification of her status, to which Ms Zhang replied the applicant had requested to be paid and was therefore on paid leave. The applicant states there was no clarification as to how long she would be entitled to receive leave, nor had she been advised of any decision to approve or decline her leave. According to the applicant, at this time she began to feel isolated and ignored and to experience feelings of depression and hopelessness.
The applicant alleges that in or around October 2021, she made an appointment with an endocrinologist to discuss her health concerns, but was informed the doctor was very busy and she would be put on a waiting list for a telehealth consult.
In or about November 2021, the applicant became aware she had been deleted from a mailing list regarding work emails, and therefore contacted Ms Zhang to ask her to rectify that deletion. The email was apparently returned as not delivered. The applicant then phoned Ms Zhang and the problem was rectified.
In or around December 2021, the applicant states she received a phone call from Ms Daniel asking for an update as to her situation. She informed Ms Daniel she was on the waiting list to see a specialist.
On 16 January 2022, the applicant contracted COVID-19, at which time her GP Dr Salib issued her with a COVID-19 vaccine medical contraindication certificate. According to the applicant, she was then unable to receive the vaccine until 15 July 2022. The applicant states that on or about 28 January 2022, she emailed Ms Daniel informing her of a medical contraindication and sought clarification as to whom she should send her certificate. That email was not responded to.
In January and February 2022, the applicant states she noticed she was again not receiving emails from Ms Zhang and emailed her to advise this was the case and to inform her the applicant had been removed from two chat groups, namely the Birthing Unit Midwives’ team and the Birth Unit Team Leader chat. The applicant states she advised Ms Zhang that as part of the applicant’s responsibilities she must keep up to date with ongoing changes and review emails regularly. She informed Ms Zhang any change to her employment status had not been communicated to the applicant by Ms Zhang or by the respondent generally.
The applicant was then added back to the Teams groups. However, the applicant states she was never added back to the email list from February 2022 onwards and felt ignored and excluded together with feeling depressed and isolated.
On or about 2 February 2022, the applicant sent another email to Ms Daniel about her medical contraindication and asked where to send it. Ms Daniel replied and asked her to email it through and Ms Daniel would confer with the respondent to determine where the request was to be referred. The applicant emailed her contraindication certificate to
Ms Daniel on that day.
The applicant chased a response from Ms Daniel on 16 February 2022, and on or about 17 February 2022 Ms Daniel sent an email stating she had received the medical contraindication and asked if the applicant was still asymptomatic. Ms Daniel then asked when the applicant intended commencing the vaccine regime. The applicant replied via email on the same day stating she was not symptomatic. Ms Daniel replied asking if the applicant had a specialist appointment. The applicant replied that she did not, as her exemption from being vaccinated was valid until 15 July 2022, however, the applicant would take steps by then to obtain clarity with respect to the vaccine and any new options available in light of her medical history.
On or about 24 February 2022, the applicant sent another email to Ms Daniel seeking an update on the progress of her medical contraindication, to which she received no reply. On 2 March 2022, the applicant sent a further email to Ms Daniel referring to her earlier email and asking for an update on the progress of her medical contraindication. In that email, the applicant stated she was confused as to why the process was taking so long and confirmed that she had provided all the documentation necessary to support the application for contraindication. The applicant states she was feeling depressed by the lack of responsiveness and clarity but informed Ms Daniel she was looking forward to resolving the matter.
On the same day, Ms Daniel replied advising she was informed on 25 February 2022 that there had been a change in the medical contraindication exemptions, which now had to be processed via the Australian Immunization Register. Ms Daniel informed the applicant she had yet to receive advice about the specific process, but it should be made available later that week or early the following week and she would share that advice once it became available.
During March 2022, the applicant noticed she had again been removed from the two Teams groups and continued not to be included in the mailing list. She was never provided access again from that time despite there being no change in her employment status and having what she describes as a valid medical contraindication. The applicant states she did not understand why she was being removed from the Teams groups and was feeling depressed and isolated from her employer.
After sending three emails in early March 2022 to Ms Daniel chasing an update on her medical contraindication, the applicant received a reply on 24 March 2022 with two resources and an updated version of the medical exemption form. The applicant replied on the same day asking for clarification about the information provided by Ms Daniel and pointed out that the document stated any New South Wales COVID-19 vaccine medical contraindication forms issued on or before 24 February 2022 remained valid. The applicant noted the exemption she had been provided was issued on 25 January 2022, which would mean it was still valid and she was therefore not required to complete the new form. The applicant asked Ms Daniel to please confirm whether her understanding was correct. The applicant received a reply advising Ms Daniel was out of the office but received no substantive reply.
Thereafter, the applicant states she sent numerous emails to Ms Daniel on a weekly to fortnightly basis to which no reply was received.
On or about 27 April 2022, the applicant emailed Ms Konowec, Division 4 Manager for Women and Children's Health. The applicant advised Ms Konowec of her situation and the lack of communication and informed her that she was eager to return to work.
Ms Konowec replied on the same day that she was chasing human resources, without success. According to the applicant, Ms Konowec replied in an email that she thought the situation was “slightly ridiculous”. The applicant replied saying she agreed and hoped there would be answers soon. According to the applicant, those two emails were deleted from the email thread with Ms Konowec and there was no substantive reply from either Ms Daniel or
Ms Konowec to the applicant's concerns.
The applicant describes her psychological health deteriorating over the ensuing weeks, and her feeling very depressed. She felt ignored and isolated and “was in a very bad state and spent my time in a depressed state”.
On or about 17 June 2022, the applicant had attempted to return to an alternate role as a canteen assistant with the respondent. According to her further statement, the applicant tried to maintain that employment, but was feeling very depressed and noted her concentration had significantly declined as she was not doing well psychologically. The applicant stated the modest remuneration was not worth putting her wellbeing at risk, and she only maintained that employment until mid-August 2022.
According to the applicant, she only received paid leave between 1 October 2021 to approximately 14 November 2021, and never received confirmation of that leave being approved. The applicant states she was not offered paid leave beyond 14 November 2021 nor during the time her medical exemption was valid.
The applicant states the next communication she received from the respondent was a letter dated 22 October 2022, which she received on 1 November 2022 stating the Public Health Order had lapsed, however, New South Wales Health had implemented their own vaccine directive. The letter stated the applicant had seven days to provide a reply regarding her vaccination status or a valid medical contraindication and that if she failed to respond she was unable to attend work and consideration would be given as to whether her employment would continue.
The next day, the applicant sent an email to Ms Vracar, Industrial and Employee Relations Specialist, informing her she had received a letter on 1 November 2022. The applicant informed Ms Vracar that she would reply within seven days from receiving the letter. On 3 November 2022, Ms Vracar responded granting a seven-day extension to reply.
On or about 9 November 2022, the applicant attended a general practitioner, Dr Khoo. On that occasion, she spoke to Dr Khoo about the isolation she had experienced from her employer and how it made her feel. Dr Khoo informed the applicant she was in no state to work and required treatment for her condition, issuing the applicant with a certificate of incapacity. The applicant then forwarded that certificate of incapacity to her employer and had not been able to return to work since.
For the respondent, Mr Young submitted the evidence did not discharge the applicant's onus of demonstrating a work-related psychological injury. In particular, Mr Young submitted the Independent Medical Examiner (IME) upon whom the applicant relied, Dr Khan had a background and history which was incomplete and inaccurate. The respondent particularly relied upon the applicant's representations to the effect she would consult with a specialist over a period of several months, her failure to do so and the absence of any substantive explanation as to why there had never been a consultation with a specialist as the applicant had initially foreshadowed.
In a s 78 notice dated 30 November 2022, the respondent denied the applicant had suffered a work- related injury. That notice set out the factual circumstances regarding the onset of the alleged psychological condition, and noted:
“Notwithstanding the above, your employer was required to act under the direction and comply with the PHO [Public Health Order] issued upon it after the beginnings of the global pandemic. Health workers were required to be double vaccinated under the PHO even if they were able to work remotely. This requirement placed upon healthcare workers was due to the type of clients they were working with who are more vulnerable than other people in the community. Your employer had no choice but to comply and, in that regard, you were given all information and time and support to comply with the obligations placed upon you by NSW Health through your employer. This was not something over which your employer had any say or control.
Consequently, your employer was required to follow the PHO. The Supreme Court of NSW has found that the NSW Minister for Health and Medical Research is the legal authority to introduce state specific Public Health Orders that require particular workers from declared industries to be vaccinated against COVID-19.
These cases have held that a person's consent to vaccination is not invalidated and a person's right to bodily integrity is not violated and that differential treatment of people based on their vaccination status is an evidence-based approach and is not arbitrary in nature such that if you wish to continue in your employment with your employer, when you were required to provide a valid medical contraindication or provide proof of vaccination. This was not a matter over which your employer had any input or control. It was an order under which your employer had to operate and ensure that all employees complied for the purposes of keeping staff and clients safe from a virus which has spread and continues to spread and change widely and rapidly.
Subsequently, any injury or symptomology arising from your employer's compliance with the PHO does not fall under section 4 of the Workers Compensation Act 1987 (NSW). Employment is not a substantial contributing factor to your injury or symptoms pursuant to section 9A of the Workers Compensation Act 1987 (NSW). Compensation is therefore not payable.”
However, the respondent's IME Dr Malik, in his report dated 4 April 2023 noted the following:
“In my professional opinion, on the balance of probabilities, I believe she has an adjustment disorder with mixed anxiety and depressed mood. I am also of the opinion that the predominant cause of her psychological injury is the circumstances around which she was asked to be vaccinated followed by how she perceived she was treated when she applied for exemption.”

Although Dr Khan places a different emphasis on the nature of the cause of the applicant's condition, he also agrees that it was brought about by her employment. In his report dated 25 January 2023, Dr Khan said:
“I am of the opinion that it was the maltreatment that Ms Chiha felt she received from her employer following her submission of a valid vaccine exemption that caused her psychiatric condition. She felt coerced, stonewalled, isolated, threatened, unsupported, ignored and dismissed by her employer which caused her to lose trust in her employer and led her to suffer from a psychiatric/psychological injury.”
Ultimately, despite the respective IMEs describing the respondent's conduct in varying terms, they each agree the applicant's employment was the main contributing factor to the development of her condition. Notwithstanding the contents of the s 78 notice, and Mr Young's forceful submissions in relation to the requirement of a health provider to comply with the Public Health Order, it is apparent on the medical evidence in this matter the applicant's employment was the main contributing factor to the development of a psychological injury.
It is also noteworthy the applicant provided a contraindication certificate to the respondent but received no substantive reply as to why it was no longer considered valid despite at face value having been obtained in the appropriate fashion at the time it was obtained. Her evidence as to her psychological health at this time is also consistent with the uncertainty surrounding her work status effecting her mental health.
In Attorney General’s Department v K [2010] NSWWCCPD 76 Roche DP, in considering the issue of establishing psychological injury in circumstances of the worker’s perception of real events at work, provided the following useful summary of the relevant authorities on this issue:
“(a)    employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spiegelman CJ in Chemler at [54]);
(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f)      it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered. (at [52])”
In this matter, it is apparent the uncertainty over her future led the applicant to feelings of abandonment and lack of psychological wellbeing. That is not to say the respondent was objectively abandoning the applicant, however, it is not necessary to find that it did. In relation to a worker’s perception of events, Basten JA noted in State Transit Authority of NSW v Chemler [2007] NSWCA 249 (18 September 2007):
“67. The Appellant’s contention that a misperception, or indeed a perception, cannot give rise to an injury ‘arising out of or in the course of employment’, must be a contention that the accepted psychological state of the Respondent did not arise out of or in the course of that employment. For there to be the relevant connection with the employment, it was argued that the events perceived must be ‘real’ and not ‘imagined’.
68. No doubt a psychological state can be based upon a delusion, but the question remains one of causation. The point was succinctly identified and addressed by Windeyer J in Federal Broom Company Pty Ltd v Semlitch(1964) 110 CLR 626 at 642:
“Can the event to which a disordered mind irrationally attributes physical suffering, that is real to the patient but delusional, be properly called a contributing factor? Ordinary concepts of cause and consequence are perhaps not applicable. Yet it seems to me that the incident which precipitated or stimulated, however irrationally, the worsening of her condition could be regarded as a factor contributing to it.”
69. There must be an aspect of the employment which constitutes ‘a substantial contributing factor to the injury’ for compensation to be payable: see s 9A(1) of the 1987 Act. To focus on the concept of ‘perception’ may obscure the real issue. Although the arbitrator said that he accepted the statements from witnesses who denied that they had heard anybody refer to the Respondent in a derogatory fashion because of his race or religion, he nevertheless accepted that ‘in this workplace, racial slurs and comments were made, particularly in relation to the Jewish religion, and the respondent’s witnesses accept that’: Reasons, Tcpt, 09/08/04, p 57. In so far as his findings constituted a rejection of the need for an intention to harass, there was no error of law. Nor is it necessary to determine whether the Respondent’s response was a misperception as to the intention or attitudes of his fellow workers. In contrast to discrimination law, the proper focus in this context is the consequence of conduct on the claimant and not, even in a limited sense, the motivation, intention or other mental state of the co-worker or supervisor: cf Purvis v New State Wales (Department of Education and Training)(2003) 217 CLR 92 at [166] (McHugh and Kirby JJ); and [234]-[236] (Gummow, Hayne and Heydon JJ). If conduct which actually occurred in the workplace was perceived as creating an offensive or hostile working environment, and a cognizable injury followed, it was open to the Commission to conclude that causation was established. Accordingly, no error in point of law was identified by this ground.”
Given each of the IMEs accept the applicant’s developed a work-related condition, and taking into account the applicant’s own evidence, I find for the applicant in relation to the question of whether she sustained a work-related psychological injury.

The defense under s 11A

The respondent has the onus of demonstrating that its reasonable actions with respect to discipline, dismissal or provision of employment benefits were the whole or predominant cause of the applicant's psychological injury.
The test under s 11A is a two-step one. The first is that the conduct relied upon by an employer must be the whole or predominant cause of the injury. The second is that the conduct relied upon as the whole or predominant cause was reasonable in the circumstances.
In this matter, there is little argument that the circumstances surrounding the requirement for the applicant to be vaccinated were the predominant cause of the development of her condition. Each of the IMEs indicate the conduct leading to the applicant's injury which was causative of it was almost exclusively that relating to her vaccine status.
The question of whether the circumstances surrounding the applicant's vaccine status and the conduct relied upon by the respondent can be accurately categorised as matters surrounding discipline, dismissal or provision of employment benefits is, however, a separate question. There does not seem to be any evidence suggestive of the applicant being subject to a formal disciplinary process. However, there is no doubt the provision of employment benefits to the applicant was a consequence of the entire course of conduct surrounding her vaccination status. Nevertheless, before examining the question of whether the conduct relied upon by the respondent falls within one of the categories under s 11A upon which it relies, it is appropriate firstly to determine whether that conduct was reasonable.
As noted, reasonableness is an essential requirement of the defence under s 11A. Considering the meaning of reasonableness, Geraghty J Irwin v Director General of Education NSWCC14068/97, 18 June 1998 said:
“…The question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
In Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998), Truss CCJ said:
“In my view in considering the concept of reasonable action, the Court is required to have regard not only to the end result but to the manner in which it was affected.”
These passages were quoted with approval by Foster AJA (Sheller & Santow JJA agreeing) in Commissioner of Police v Minahan [2003] NSW CA239 (Minahan), where his Honour said:
“I prefer the construction which has been accorded to it in the decisions in the Compensation Court referred to in this judgment and in His Honour’s judgment. The words ‘reasonable action’, in a statute dealing with workers compensation rights of employees should be given a broad construction, unfettered by considerations as to whether the employee can or cannot also bring an action at common law against the employer, found that upon a breach of duty of care” (at [42]).
In Ritchie v Department of Community Services [1998] 16 NSWCCR 727, Armitage J said:
“It is apparent that the test in this case is an objective one where one must weigh the consequences of the respondent's conduct against the reasons given for it. It follows of course from the objective nature of the test that the evidence given by the applicant as to the perceived unreasonableness of the respondent's conduct or from the respondent as to the reasonableness of its conduct from its perspective will not be determinative of this issue.”
Reasonableness is judged having regard to fairness appropriate in the circumstances, including what went before or after a particular action: see Burke J in Melder v Ausbowl Pty Ltd [1997] 15 NSW CCR 454. Armitage J in Jackson v Work Directions Australia Pty Ltd [1998] NSW CC45 stated “Only if the employer's action in all the circumstances was fair, could it be said to be reasonable” (see also Northern NSW Local Health Network v Heggie [2013] NSW CA 255, where it was held that the reasonableness of a person's actions is assessed by reference to the circumstances known to that person at the time the action is taken).
In this matter, I am mindful of the requirement for the respondent to adhere to Public Health Orders. This is particularly so in the context of the COVID-19 pandemic, which was a unique health emergency. I am also mindful of the applicant's stated intention to consult a specialist regarding whether she could obtain a relevant exemption and her failure to do so.
Nevertheless, there is no doubt that over time the applicant was removed from various email lists and work-related groups. It is also apparent the respondent's communication to the applicant was wanting. This is particularly the case in the context of the applicant having contracted COVID-19 and subsequently obtaining an exemption from being vaccinated which, she contends, was effective for six months. Although there is some contention as to whether the exemption was effective for that long, or only “up to six months”, the fact remains that the applicant presented the exemption provided to her by her general practitioner to the respondent, which then provided no substantive reply to her in terms of allowing her back to work, be it in her former capacity or at all.
As Ms Grotte noted, the alleged unreasonableness in the circumstances of this case relied on by the applicant is a failure to communicate on the part of the respondent. Moreover, when the respondent eventually replied to the applicant and stated she needed to submit a new form to claim a valid contraindication certificate, the applicant pointed out the new guidelines appeared to provide for the acceptance of certificates obtained within the timeframe her GP provided the exemption, she received no timely or substantive reply. In my view, the lack of communication by the respondent to the applicant in these circumstances renders the conduct relied on by it to establish a defence under s 11A unreasonable.
The email correspondence between the applicant and Ms Daniel confirms the applicant did forward to the respondent a relevant vaccination exemption form, prima facie within time. Ms Daniel then replied saying that a new form was required, even though the applicant had lodged with her employer a relevant certificate which was in effect at the time she provided it to the respondent.
In my view, the failure by the respondent to adequately communicate with the applicant surrounding the requirements to prove her exemption from vaccination or alternatively to tell her specifically that she required vaccination rendered its actions unreasonable. It is, in my opinion also noteworthy that there is no statement evidence from either Ms Zhang or
Ms Konowec. I accept the applicant’s submission that absent an explanation as to why no statements are in evidence, it is appropriate to draw an inference that the evidence of those witnesses would not have assisted the respondent: Jones v Dunkel (1959) 101 CLR 298.
The rule in Jones v Dunkel was considered by the Court of Appeal in RHG Mortgage Ltd v Ianni [2015] NSWCA 56. Although that case related to the absence of evidence given by a witness to a mortgage-related transaction, the court noted the circumstances where the inference could appropriately be drawn.
The court reiterated that the circumstances for drawing a Jones v Dunkel inference are found where an uncalled witness (or in this instance, an untendered document) is presumably able to put the true complexion on the facts relied on by a party as the ground for any inference favourable to them. The three conditions to be applied are:
·        whether the uncalled evidence would be expected to be called by one party rather than the other;
·        whether the evidence would elucidate the matter, and
·        whether its absence is unexplained.
Further assistance on the application of a Jones v Dunkel inference was provided by the Court of Appeal in Gaskell v Denkas Building Services Pty Limited (2008) NSWCA35. That case makes it clear a tribunal of fact does not need to draw an inference adverse to a party which has not called evidence of a relevant matter. The failure of a party to call a witness (or tender evidence) does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel. Such an inference is available only if evidence otherwise provides a basis on which that unfavourable inference can be drawn. An unfavourable inference cannot be drawn solely on the basis that the witness was not called or the evidence not tendered. There must be a basis elsewhere in evidence to support the inference.
In this matter, the applicant gave clear evidence of interactions with each of Ms Zhang and Ms Konowec which go to important matters regarding the applicant’s interactions with the respondent surrounding her vaccination status. The absence of statement evidence from those witnesses without explanation is, in my view, sufficient basis for making a Jones v Dunkel inference.
In making a finding in favour of the applicant on the s 11A defence, I wish to emphasise there is no criticism of the respondent in attempting to comply with Public Health Orders. Rather, the difficulty in this case is the lack of communication by the respondent's Human Resources Department to the applicant as to what type of exemption was required, when it was required and how long it would last.
Given the findings in relation to reasonableness, it is unnecessary to determine the question of whether the conduct relied upon by the respondent fell strictly within a category of discipline, dismissal, or provision of employment benefits. Were I required to make a finding on this point, briefly stated, I would find the respondent's actions broadly related to the provision of employment benefits to the respondent.

Capacity for employment

Mr Young submitted if there was a finding in favour of the applicant in relation to liability, her incapacity arising from the injury was minimal. He noted the applicant's failure to provide any adequate reason as to why she did not comply with Public Health Orders.
I am also mindful the applicant did work for a short period of time as a canteen assistant from 17 June 2022 to 18 August 2022. It is the latter date which is the commencement of the period claimed.
On balance, I am of the view that the applicant suffers incapacity for employment from
19 August 2022. I have taken into account the evidence of her treating general practitioner, Dr Khoo, together with the IMEs retained by the parties.
On balance, I am not, however, satisfied that the applicant's incapacity for employment is total. Rather, doing the best I can, I am of the view that, consistent with her statement evidence which I accept, the applicant had a period of total incapacity from 19 August 2022 when she was incapable of working as a canteen assistant. In my opinion, that period of incapacity lasted until January 2023, at which time the applicant was partially incapacitated and able to work up to eight hours a week in her former employment. In so finding, I accept the views of Dr Khan, IME for the applicant. I note Dr Malik, IME for the respondent, also indicates in his report dated 4 April 2023 that the applicant could work in her former role on restricted hours, though he is not specific in identifying a number of hours which the applicant could work on a long term basis. Dr Malik’s view as to an initial return to work capacity at the time of his report was also eight hours per week. Given the uncertainty as to the rate at which the applicant might return to her full pre-injury duties, I consider a finding in accordance with the views of both IMEs as to her capacity as at the dates of their respective reports to be appropriate, namely a capacity of eight hours per week.
There is no issue the applicant’s PIAWE is $1,123.42 per week. A payslip dated
1 September 2020 reveals the applicant’s hourly rate was relevantly $43.6578 per hour.
In light of my findings relating to incapacity, I find the applicant was totally incapacitated for employment from 19 August 2022 to 31 December 2022, a period of 19 weeks. For the first 13 weeks of that period, that is from 19 August 2022 to 18 November 2022, the applicant is entitled to 95% of her PIAWE pursuant to s 36 of the 1987 Act, or $1,067.24 per week, and I award accordingly.
For the period from 19 November 2022 to 31 December 2022, or six weeks, the applicant is entitled to 80% of her PIAWE pursuant to s 37(1) of the 1987 Act, or $898.73 per week, and I award accordingly.
For the period from 1 January 2023 to date and continuing, s 37(3) of the 1987 Act applies. As the applicant has capacity but has not returned to employment, her weekly rate is 80% of her PIAWE less the amount represented by her capacity for employment. In this matter, having found the applicant’s pre-injury hourly rate was $43.6578 and she relevantly has a capacity for eight hours’ work per week, I find the applicant’s capacity for employment from
1 January 2023 to date and continuing to be $349.26. Given 80% of the applicant’s PIAWE is $898.73, she therefore has an entitlement pursuant to s 37 of $549.47 per week, and I award accordingly from 1 January 2023 to date and continuing.
In the event I have erred in my calculations regarding the amount payable to the applicant, I grant the parties liberty to apply in relation to the mathematical calculation of the weekly payments only.

SUMMARY

For the above reasons, I make the findings and orders on page 1 of the Certificate of Determination.

[2024] NSWPIC 49

8 February 2024