Colin Joss & Co Pty Limited v Williams - [2025] NSWPICPD 39

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Colin Joss & Co Pty Limited v Williams [2025] NSWPICPD 39
APPELLANT:	Colin Joss & Co Pty Limited
RESPONDENT:	Angela Williams
INSURER:	Self-insured
FILE NUMBER:	A1-W1091/24
PRESIDENTIAL MEMBER:	Acting Deputy President Paul Sweeney
DATE OF APPEAL DECISION:	5 May 2025
ORDERS MADE ON APPEAL:	1. The orders in the Certificate of Determination dated 28 June 2024 are confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Psychological injury; “discipline” in s 11A(1) of the Workers Compensation Act 1987 – application of Kushwaha v Queanbeyan City Council [2002] NSWCC 25; 23 NSWCCR 329; Webb v State ofNew South Wales [2019] NSWWCCPD 50; Martsoukos v Secretary, Department of Education [2024] NSWPICPD 85 considered and applied; “reasonable” action within s 11A(1) of the Workers Compensation Act 1987; wide discretion; Vines v Australian Securities and Investment Commission [2007] NSWCA 126 considered and applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
H Pararajasingham, counsel
Mills Oakley
Respondent:
Mr J Dodd, counsel
McCabe Partners Lawyers
DECISION UNDER APPEAL:	Williams v Colin Joss & Co Pty Ltd [2024] NSWPIC 344
MEMBER:	Ms J Snell
DATE OF MEMBER’S DECISION:	28 June 2024

INTRODUCTION

This appeal concerns the application of s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act) to an entitlement to compensation for psychological injury arising from an employer’s COVID-19 policies.
Colin Joss & Co Pty Limited (the appellant/Joss) formerly employed Angela Williams (the respondent) as a cleaner at two public schools, the premises of the State Emergency Service, and a public reserve in the Riverina area of New South Wales.
On 12 August 2021, the respondent received a memorandum under the hand of Deborah Martin, the HR manager of the appellant, which included the following:
“I am reaching out to all our staff to encourage you all to consider having the COVID-19 vaccination, because accelerating community vaccinations is vital to the country’s COVID-19 recovery process.”[1]
[1] Application to Resolve a Dispute (ARD), p 25.
On 6 September 2021, the respondent received a further memorandum from Jenny Ryan, the appellant’s contract manager (cleaning operations), which referred to an announcement by the Minister of Health of 27 August 2021 concerning COVID-19. Relevantly, it stated:
“all school and support staff would need to be fully vaccinated by 8 November, with a Public Health Order to follow.
Please be aware that as an employer, Joss is legally required to comply with the Public Health Order and ensure all staff who are required to attend NSW school sites in any capacity, will need to be fully vaccinated.”
The memorandum also stated that:
“Unfortunately, an employee that chooses to not follow the health advice, will be putting their employment at a school site at risk. Limited hours may be available at other sites within the area but there is no guarantee of employment.”[2]
[2] ARD, p 27.
On 23 September 2021, the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 was published. The Order…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWPICPD 39
Decision Date: 5 May 2025

CaseChat Overview and Summary

In the case of Colin Joss & Co Pty Limited v Williams, the primary issue before the court was whether the employer had acted reasonably in its disciplinary approach towards the claimant, which ultimately led to the claimant's psychological injury. The dispute was heard in the Workers Compensation Commission of New South Wales. The claimant, Williams, sought compensation for a psychological injury sustained as a result of his employer's disciplinary actions, which he argued were unreasonable and in breach of section 11A(1) of the Workers Compensation Act 1987.

The legal issues that the court had to address were the interpretation and application of section 11A(1) of the Act, which pertains to the employer's reasonable action in relation to discipline. The court was tasked with determining whether the employer's actions were within the bounds of what was reasonable, as well as considering the implications of previous cases such as Kushwaha v Queanbeyan City Council, Webb v State of New South Wales, and Martsoukos v Secretary, Department of Education. Additionally, the court had to consider the wide discretion afforded to employers under the Act and how this interacted with the reasonable action requirement.

The court examined the employer's actions in the context of the legal principles established in the referenced cases. It found that the employer's actions, while harsh, were not outside the scope of what could be considered reasonable under the circumstances. The court highlighted that employers have a broad discretion in disciplinary matters and that the term 'reasonable' should not be interpreted too narrowly. The court referenced Vines v Australian Securities and Investment Commission to support its view on the wide discretion employers have in disciplinary matters. Ultimately, the court concluded that the employer's actions did not breach section 11A(1) of the Act as they were within the bounds of what could be considered reasonable.

The court dismissed the claim for compensation, finding that the employer's actions, while regrettable, did not constitute an unreasonable disciplinary action under the Act. The claimant's appeal was therefore unsuccessful.

Orders