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 contained a Ministerial direction that an education or care worker must not carry out work at a public school on or after 8 November 2021 “unless the worker has—
(a)     had at least 2 doses of a COVID-19 vaccine, or
(b)     been issued with a medical contraindication certificate, or
(c)     a medical contraindication recorded on the Australian Immunisation Register that prevents the person from receiving any approved COVID-19 vaccine available in New South Wales”
On 1 October 2021, the respondent obtained a certificate from her general practitioner, Dr Saldevar, which she presented to the appellant. Relevantly, it stated that she had a:
“medical contra-indication to the AstraZeneca COVID-19 vaccine”.[3]
[3] ARD, p 57.
On 12 October 2021, the respondent applied to the appellant for leave.[4] It appears that she did not return to work after that date. It is common ground that the respondent suffered a psychological injury arising out of and in the course of her employment.
[4] ARD, p 15.
On 24 November 2021, a letter from the appellant signed by Ms Martin advised that the company had reviewed the respondent’s COVID-19 vaccine medical contraindication, which it “deemed as providing an ineligible reason for exemption”.[5]
[5] ARD, p 37.
On 22 March 2022, Ms Martin requested that the respondent meet with her at the appellant’s Wagga office “to discuss your ongoing employment”. The respondent did not attend that meeting.
On 31 March 2022, Ms Martin wrote to the respondent terminating her employment.[6]
[6] ARD, p 170.

THE ARBITRATION HEARING

By an Application to Resolve a Dispute, which was lodged with the Commission on 11 February 2024, the respondent claimed weekly compensation and an indemnity in respect of her medical and hospital expenses pursuant to s 60. The injury which allegedly gave rise to the respondent’s entitlement to compensation is described as “Adjustment Disorder with Prominent Anxiety”. The injury is said to have occurred on 17 August 2021. The “Cause of Injury” is particularised as follows:
“The injury occurred as a result of events arising out of, or in the course of employment concerning the direction to be vaccinated commencing on 12/08/2021 to 10/10/2021.”
When the matter came on for arbitration hearing on 6 May 2024, before Member Snell, Mr Dodd, of counsel, appeared for the respondent and Mr Pararajasingham, of counsel, for the appellant. The Member recorded that it was agreed that the date of injury, presumably for the purpose of ss 15 and 16 of the 1987 Act, was 12 August 2021 and not 17 August 2021 as stated in the ARD.
The hearing proceeded on the written evidence. The issues in dispute outlined by Mr Pararajasingham at the commencement of the hearing were threefold. First, whether s 11A(1) applied to extinguish the respondent’s entitlement to compensation for her acknowledged psychological injury. Secondly, whether an exacerbation of her psychological symptoms caused by a visit to her home by two employees of the appellant on 21 October 2021, arose out of her employment. Thirdly, whether the respondent had a residual capacity for employment during the period for which she claimed compensation. This appeal concerns only the first of these issues.
On the s 11A(1) issue, the appellant argued at the arbitration hearing that correspondence between it and the respondent concerning the need for COVID-19 vaccinations on 12 August 2021, 6 September 2021, 5 October 2021, and email correspondence commencing on 8 October 2021 were causative of her psychological injury.[7] The correspondence requiring her to be vaccinated was “action with respect to discipline” within s 11A(1).[8] The appellant relied on the discussion of “discipline” by Deputy President Wood in Webb v State of New South Wales.[9] It contended that the train of correspondence “clearly indicated” to the respondent that a failure to receive the COVID-19 vaccine “would result in adverse or detrimental effects to” her employment.[10]
[7] Transcript of proceedings 6 May 2024 (T), T 8–9.
[8] T 10.23–26.
[9] [2019] NSWWCCPD 50 (Webb), [141].
[10] T 11.20–22.
In respect of the issue of reasonableness, the appellant submitted that it introduced its COVID-19 vaccination policy in a “sympathetic and collaborative format”. Its actions were to be contrasted with those of the employer in Davis v Secretary, Department of Education[11] and Secretary, Department of Education v Dawking.[12] It relied on the reasoning of Member Wynyard in Martsoukos v Secretary, Department of Education.[13] Moreover, the respondent was required by law to undertake the vaccination program by the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (2021 PHO).
[11] [2024] NSWPICPD 18 (Davis).
[12] [2024] NSWCA 4 (Dawking).
[13] [2024] NSWPIC 16.
Relying on the reasoning of Wood DP in Webb, Mr Dodd submitted that none of the correspondence between the appellant and his client arose from “adverse or inappropriate” conduct that could result in “discipline” as that term is “defined by the legislation and the authorities.”[14]
[14] T 30.6–13.
In respect of reasonableness, the respondent submitted that the appellant had not proven that its vaccination policy was reasonable. There was no evidence that it was required to comply with the 2021 PHO or with a directive from the Department of Education. Further, the appellant’s conduct in refusing an exemption without reasons was indicative of the process not being reasonable.[15]
[15] T 38.
Mr Dodd also referred to Dawking and noted that in that case the worker suffered psychological injury before the 2021 PHO and before the employer proposed sanctions for noncompliance with the order. The latter proposition was also true in this case.

THE MEMBER’S DETERMINATION

The Member issued a written determination on 28 June 2024. The Member noted that there was no medical evidence to establish that the respondent’s psychological injury was “wholly or predominantly caused by Joss’ actions or proposed actions regarding discipline.”[16] She continued:
“my review of the evidence does not support [the] argument the actions taken or proposed to be taken by Joss relevant to [the] requirement [that] Ms Williams be double-vaccinated … were disciplinary in nature”.
[16] Williams v Colin Joss & Co Pty Ltd [2024] NSWPIC 344 (reasons), [92].
The Member referred to the evidence of Dr Rastogi, the psychiatrist relied on by the respondent, and to the opinions of Dr Vickery and Dr Kaplan in the appellant’s case. She stated that:
“Dr Rastogi had the opportunity to assess Ms Williams shortly after the termination of her employment and she did not consider Ms Williams’ injury was wholly or predominantly caused by action taken or proposed to be taken by Joss with regards to her recent dismissal.”[17]
[17] Reasons, [101].
Rather, Dr Rastogi considered that the respondent’s psychological injury had been caused by “coercion” and “discrimination to receive vaccination as a mandatory requirement” and the “termination of her employment despite providing a medical exemption”. Further, the Member did not consider that the appellant’s actions which were causative of the respondent’s psychological injury were reasonable.
The Certificate of Determination issued on 28 June 2024 records:
“1. The [respondent’s] primary psychological injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by the [appellant] with respect to discipline and/or dismissal.”
The Member entered an award for the respondent for a closed period of weekly payments and for her medical expenses pursuant to s 60 of the 1987 Act.

GROUNDS OF APPEAL

The appellant relies on 3 grounds of appeal. They are as follows:
(a)    “Ground 1: The Member erred in fact by finding at [92] of the Decision that ‘there is no documented actions taken or proposed to be taken by Joss regarding discipline’.”
(b)    “Ground 2: The Member erred in law finding at [92] of the Decision that Ms Williams’ injury was not wholly or predominantly caused by Joss’ actions or proposed actions regarding ‘discipline’, for the purposes of s 11A(1) of the [1987] Act.”
(c)    “Ground 3: The Member erred in fact by finding at [104] and [105] of the Decision that Joss’ conduct in relation to Ms Williams was not reasonable, for the purposes of s 11A(1) of the [1987] Act.”

ON THE PAPERS

Section 352(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
By its written submissions, the appellant requests that the appeal be conducted “by way of hearing”.[18] It submits that the appeal involved “a significant degree of complexity”, that there were several non-presidential decisions of the Commission “pertaining to a broadly similar factual matrix” and that the matter was of general public importance.[19] Conversely, the respondent submitted that the appeal should be dealt with on the papers.
[18] Appellant’s submissions (AS), [26].
[19] AS, [27].
Against the background of the appellant’s application and, as two of the non-presidential decisions referred to by the parties at the arbitration hearing had recently been determined on appeal by Presidential members, I issued the following direction on 1 April 2025:
“1. The decision of Martsoukos v Secretary, Department of Education [2024] NSWPIC 16 to which both counsel referred in their submissions was overturned by the President in Martsoukos v Secretary, Department of Education [2024] NSWPICPD 85 dated 17 December 2024. On 3 December 2024, Deputy President Snell delivered a decision in Boyd vSecretary, Department of Education [2024] NSWPICPD 79. If either party wishes to make any supplementary submission addressing the presidential decisions or the cases referred to therein, they should do so by 5.00 pm on 8 April 2025.
2. In its primary submission the appellant requested an oral hearing. The respondent maintained that the matter could proceed on the papers. Given the submissions made at the arbitration hearing and decisions referred to above, I am of the preliminary view that an oral hearing will not advance the case of either party or assist the Commission. If either party wishes to make any further submission on this issue or on the case generally they should also do so by 5.00 pm 8 April 2025.”
By its submission lodged pursuant to this Direction, the appellant submits that in view of the complexity of the matter and its “likely precedential value” an oral hearing would be of “utility for the Commission”. I do not find that submission persuasive.
First, the circumstances of the case arise from the implementation of a vaccination mandate in 2021 to deal with the COVID-19 emergency. Whether an employer’s vaccination policy fell within s 11A of the 1987 Act has been an issue in a large number of claims for psychological injury settled or determined by the Commission. As these reasons record, there are several Presidential decisions and a decision of the Court of Appeal which address various aspects of the application of s 11A(1) to vaccination policies. The number of these claims has been rapidly diminishing. Against that background, it is unlikely that this appeal will have any significant “precedential value”. The issues raised by the appellant are largely factual. The question of reasonableness is an evaluative decision. As I will demonstrate when addressing the issue, this confers a wide discretion on the Member.
More importantly, the appellant has had the opportunity to lodge written submissions dealing with all issues in dispute on three occasions. It had the opportunity to make oral submissions at the arbitration hearing and the transcript of those submissions is perfectly legible. It is not apparent from the submissions that there is any issue of fact or law that has not already been addressed or that could not have been addressed in writing. In the circumstances, I find it difficult to envisage how the respective arguments will be advanced by an oral hearing.
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

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

LEGISLATION

Section 11A(1) of the 1987 Act is as follows:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”

EVIDENCE

The Member provided a comprehensive summary of the respondent’s evidence[20] and that of the appellant’s witnesses in her reasons. It is, therefore, unnecessary to further recount that evidence. It may, however, be beneficial to recapitulate the specialist medical evidence relied on by the parties. What follows is not intended to be a comprehensive survey of that evidence or to substitute for the Member’s summary of that evidence. Rather, I set out the salient points of the evidence to enable an understanding of the issues in dispute and the way that the Commission has resolved those issues on this appeal.
[20]Reasons, [16]–[25].

Dr Richa Rastogi

Dr Rastogi saw the respondent at the request of her solicitors on 19 May 2022, and provided a report of that date. Dr Rastogi recorded the following history of injury:
“She stated that public order mandate requirements for vaccination were made on 26th August 2021. The announcement was made for enforcing vaccine mandate for workers to work on school premises. She submitted a medical exemption provided by her GP on 1st October 2021 with statutory declaration. She stated that the staff were looking down on her and passed sarcastic comments to her as she was unvaccinated. She was still getting clarification about vaccination. She stated that she was receiving emails from the Josh Facility Management [sic] and were very intense and on daily basis. There were daily emails and correspondence 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. She was coerced to have two vaccinations within a week to return to work. She was responding with them seeking whether her exemption was accepted and what was her position.
She stated her anxiety increased significantly and she could not cope. She took time off on sick leave since 20th October 2021. She was advised that if she did not comply with the mandate, she would be terminated. She stated whilst on sick leave, the supervisor arrived at her home and left abusive text messages as they were short staffed and putting pressure on her to return to work. Ms Williams was petrified and did not want to answer the door. She was threatened by supervisor at her home and left a message that she would call the police to find her where abouts. This caused further stress and anxiety and she felt under scrutiny with breach of her privacy.
She stated since then she was not getting answers for her emails and she was left in the dark. She later received a reply for [sic] Josh Facility [sic] management that her exemption was rejected and not approved.”[21]
[21] ARD, pp 2–3.
After conducting a mental state examination, Dr Rastogi diagnosed Adjustment Disorder with prominent anxiety. The doctor continued:
“She developed heightened anxiety with adjustment disorder following coercive emails to receive vaccination with mandate enforced and she was concerned. She stated that she provided a medical exemption and she had ongoing reservations due to fears and having a strong family history of blood clots and cardiac conditions and possible dangerous adverse effects. She feels discriminated, ostracised and under duress to receive vaccination and stated her integrity has been questioned and been terminated unfairly. She has been significantly traumatised and emotionally scarred by this process and way she was unsupported and treated. She was looked down and her supervisor also intimidated her and attended to her at her home causing coercion and being threatened [sic].”[22]
[22] ARD, p 5.

Dr Rastogi concluded that the respondent suffered a psychological injury to which her employment had been the main contributing factor. In response to a question posed by the respondent’s solicitor, Dr Rastogi stated that:
“Her condition has not wholly or predominantly caused by action [sic] taken by her employer in respect to promotion, appraisal, discipline and dismissal.”[23]
[23] ARD, p 6.

Dr Robert Kaplan

Dr Kaplan saw the respondent on 5 April 2024 and provided a report of that date to the appellant’s solicitor.[24] He recorded the following history:
“She sought vaccination exemption on the grounds that her father died of a cardiac illness, her brother had a stent inserted and she had palpitations, but had not received treatment (2018). She learned of schoolteachers who had developed side effects and heard comments that people had died as well.
Ms Williams attributes her condition of anxiety and depression to the pressure to be vaccinated and the incident with the two employees that led to the police coming around to her place which she regarded as bullying.
When she received the letter in response, she checked on the issues related to COVID vaccination.
Her employers put her under pressure to return to work because there was no one to replace her at [her work location] during the COVID lockdown.”
[24] Application to Admit Late Documents dated 2 May 2024.
Dr Kaplan diagnosed the respondent as suffering from an Adjustment Disorder with anxiety and depression but stated that an alternative diagnosis was Major Depressive Disorder. With regard to causation, he stated:
“her condition arises from losing her job because of the refusal to be vaccinated. Her interactions with her employers, as detailed in the reports, including the time when two workers came to her house, are contributory facts but secondary to the main issue.”

Dr Graham Vickery

Dr Vickery saw the respondent at the request of the appellant’s legal department on 1 March 2023. He provided a medico-legal report dated 7 March 2023. Dr Vickery recorded that the respondent’s problems “started with COVID-19 and having to have the vaccines”. He records that at that stage she saw a general practitioner as she had a history of heart problems and was “very concerned”.
Dr Vickery recorded that the respondent stated:
“it was distressing me when I was hearing comments at work of how many people had COVID-19 and how many were dying and there was one time when I was asked by several other workers if I was vaccinated, and I became distressed and I took some sick leave”.
Dr Vickery expressed the opinion that the respondent suffered from Adjustment Disorder with anxiety and depression with prolonged duration. He thought that she had a reduced capacity for employment. He expressed the opinion that the cause of the incapacity:
“was in the context of stress related to the outcome of her choice to not be vaccination [sic] and her subsequent termination.”[25]
[25] ARD, pp 202–215.

DISCUSSION

The grounds of appeal are largely concerned with the Member’s findings of fact. In accordance with the authorities which have discussed s 352(5) of the 1998 Act, to succeed the appellant must prove error.[26] The approach in Raulston is consistent with subsequent instruction from Justices of the Court of Appeal. In Northern NSW Local Health Network v Heggie,[27] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519, per Mason and Deane JJ.”
[26] Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 (Raulston).
[27] [2013] NSWCA 255 (Heggie), [72].
In Workers Compensation Nominal Insurer v Hill,[28] Basten JA said the following at [20]:
“If, on appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”

Ground 1: Error of fact in finding there were no “documented actions taken” by the appellant “regarding discipline”

[28] [2020] NSWCA 54, [20].

Appellant’s submissions

The appellant submits that, contrary to the Member’s finding at [92] of her reasons, the appellant:
“explicitly ‘documented actions’ which were proposed to be taken regarding discipline and clearly communicated these to Ms Williams.”[29]
[29] AS, [7].
The appellant refers to its correspondence of 6 September 2021, 5 October 2021, 24 November 2021, and 7 December 2021. Aspects of each item of correspondence should properly be characterised as actions with respect to discipline. It submits that the memorandum of 6 September 2021, which required all staff working at NSW school sites to be fully vaccinated, also stated:
“Unfortunately, an employee that chooses to not follow the health advice, will be putting their employment at a school site at risk”.[30] (emphasis and underlining as in submission)
[30] AS, [7a].
Secondly, the appellant argued that its memorandum of 5 October 2021 explicitly stated that:
“This means that all NSW School Cleaners are now required to be fully vaccinated against COVID-19 by 8 November 2021 to be able to carry out their duties”.[31] (emphasis and underlining as in submission)
[31] AS, [7b].
Thirdly, the appellant referred to a text message of 8 October 2021, which explicitly stated:
“If you are not doubly vaccinated by November 8, you will be unable to attend work”.[32] (emphasis and underlining as in submission)
[32] AS, [7c].
Fourthly, the appellant referred to the letter of 24 November 2021 by which the appellant informed the respondent that her application for exemption had been denied. The following appeared in that document:
“Should we not hear from you, we will consider your ongoing employment with Joss Facility Management based on the information we have to hand”.[33] (emphasis and underlining as in submission)
[33] AS, [7d].
Fifthly, the appellant referred to a letter of 7 December 2021, in which the appellant explicitly stated that:
“I reiterate that to remain in employment with Joss Facility Management as a Cleaner, you will be required to be vaccinated against COVID-19”.[34] (emphasis and underlining as in submission)
[34] AS, [7e].
The appellant submits that, over the period 6 September 2021 to 7 December 2021, it repeatedly “documented actions” which were proposed to be taken regarding discipline. It informed the respondent that:
“if she failed to follow its direction regarding the vaccine mandate, she would be putting her employment at risk; would not be able to carry out her duties; would be unable to attend work; would have her employment reconsidered; and would not remain in employment.”[35]
[35] AS, [8].
The appellant also submits that aspects of the respondent’s statement appear “to concede” that she was cognisant of the risk concerning her employment.[36]
[36] AS, [8].

Respondent’s submissions

The respondent submits that the evidence which the appellant argued demonstrated that she was cognisant of the risk of losing her employment concerned the termination of the respondent’s employment. I assume that by termination the respondent is referring to “dismissal” in s 11A(1). She refers to the following aspects of the correspondence:
“A.     putting her employment as [sic] risk,
B.      being able to carry out her duties,
C.      unable to attend work, and
D.      consideration being given to her ongoing employment.”[37]
[37] Respondent’s submissions (RS), [8].
The respondent then submits that:
“the Member was correct in noting there were no documented actions by the appellant in respect of discipline: all documents were in respect of dismissal.”[38]
[38] RS, [9].
The respondent submits that the appellant is mistaken in characterising proposed termination of the respondent’s employment as falling within the phrase “actions with respect to discipline”.

Appellant’s submissions in reply

The appellant submits that the respondent’s arguments that all of the documented actions were “in respect of dismissal” and not “discipline” misconstrues the correspondence between the appellant and the respondent in the period prior to her termination.[39] It contends that the references to putting the respondent’s employment at risk in the correspondence “squarely fall” within the scope of ‘discipline’. It argues by analogy with the caselaw that:
“Examples of discipline have thereby encompassed an employer’s prerogative of punishing, chastising or suspending an employee”.[40]
It refers to the reasoning of the former Compensation Court in Kushwaha v QueanbeyanCouncil[41] and of the Court of Appeal in Heggie at [59(v)].
[39] Appellant’s reply submissions (ARS), [4].
[40] ARS, [5].
[41] [2002] NSWCC 25; 23 NSWCCR 329 (Kushwaha), [152].
The appellant argues that in the correspondence in this case it did not “expressly canvass terminating the employment relationship”. Without expressing any fixed view, it conveyed that it was “considering a broad range of approaches including punishment, chastisement or suspension.” The employer’s actions, therefore, “pertain” to “discipline” as opposed to “dismissal”.[42]
[42] ARS, [6].

Appellant’s submissions pursuant to Direction dated 1 April 2025

By these submissions the appellant argues that the Presidential decisions in Martsoukos v Secretary, Department of Education,[43] Secretary, Department of Education v Uzunovska,[44] and Boyd vSecretary, Department of Education[45] could be distinguished on their facts. In each of these matters a cause of the worker’s psychological injury was the initial email correspondence from the employer. The content of the emails in each case was:
“not referrable (and did not otherwise canvass) the implementation, or prospect, of disciplinary action by the employer.”[46]
In each case, it was held that proposed disciplinary action was not clear on the face of the correspondence. By contrast, the cumulative correspondence in this case, which caused the worker’s injury:
“contained ‘specific disciplinary content or passages’ that clearly and coherently informed Ms Williams that if she failed to follow its direction regarding the vaccine mandate, she would be putting her employment at risk”.[47]
[43] [2024] NSWPICPD 85 (Martsoukos).
[44] [2024] NSWPICPD 19 (Uzunovska).
[45] [2024] NSWPICPD 79 (Boyd).
[46] Appellant’s submissions pursuant to Direction (ASD), [9].
[47] ASD, [10].

Respondent’s submissions pursuant to Direction dated 1 April 2025

The respondent submits that consistent with the factual matrix in Martsoukos, Boyd, and Uzunovska the correspondence between 12 August 2021 and 6 September 2021:
“(although mandatory in nature) makes no reference to any aspects of ‘discipline’ nor any disciplinary process. Such correspondence was undoubtedly a cause of the Respondent’s injury with a deemed date of 11 August 2021 [sic]”.

Consideration

The Member addressed the dispute as to whether the appellant’s actions which contributed to the respondent’s psychological injury could be characterised as “discipline” at [92] of her reasons. She stated:
“While there is reference in Joss’ communications with Ms Williams to her being unable to continue with her cleaning work or attend work unless she was double vaccinated and there is also reference in Joss’ communications with Ms Williams to consideration being given of her ongoing employment with Joss, possible termination of her employment with Joss and ultimate termination of her employment with Joss due to her not having provided confirmation that she has received double vaccination, in so far as I can ascertain there is no documented actions taken or proposed to be taken by Joss regarding discipline.”
The appellant does not argue on appeal that the memorandum of 12 August 2021 by which the appellant “encourages” all staff to consider vaccination was an action with respect to “discipline” for the purposes of s 11A(1). That concession is inevitable in view of the reasoning in Uzunovska, Boyd and, most recently, the decision of the President in Martsoukos to which I shall return below.
The memorandum of 12 August 2021 is important. The Member found that there was a “significant deterioration” in the respondent’s mental health following her receipt of the memorandum.[48] That finding is not challenged on appeal. The effect of that finding is that the subsequent correspondence between the parties concerning COVID-19 and vaccination cannot be the sole cause of the respondent’s psychological injury. Thus, should the appellant succeed in demonstrating that aspects of the subsequent correspondence were actions with respect to discipline, there remains a question of whether these actions were the predominant cause of the admitted psychological injury.
[48] Reasons, [103].
Resolution of this issue is made more difficult by the fact that the parties were at cross purposes in identifying the actions of the appellant which caused the respondent’s psychological injury. The ARD pleaded that the injury occurred as a result of events “concerning the direction to be vaccinated commencing on 12/08/2021 to 10/10/2021”. The respondent’s submissions concentrated on the correspondence of 12 August 2021, 6 September 2021[49] and 5 October 2021. On the other hand, the appellant’s submissions are predicated on the assumption that the whole of the correspondence, including that of 24 November 2021 and 7 December 2021, was causative of the respondent’s injury. One difficulty with that assumption is that the Member found that the respondent suffered a psychological injury which caused her to be totally incapacitated for work from 12 October 2021 to 12 October 2022. Against that background, proof of a causal nexus between the correspondence of 24 November 2021 and 7 December 2021 and the respondent’s psychological injury is not straight forward.
[49] See, for example respondent’s submissions pursuant to Direction (RSD), [10]–[11].
Nonetheless, the Member’s reasons suggest that she found that the whole of the correspondence between the appellant and the respondent and, perhaps, other aspects of her employment caused psychological injury.[50] She stated:
“I am of the view the psychological injury Ms Williams sustained in the course of her employment with Joss resulted from Joss’ requirement for her to be double vaccinated by 8 November 2021, a requirement which was continued to be urged upon her by Joss in circumstances where Joss knew she suffered vaccine hesitancy and had in fact submitted a contraindication to which no response was provided to Ms Williams until some eight weeks later and well after the date on which she was required to be double vaccinated.”[51]
[50] Reasons, [103].
[51] Reasons, [101].
While the Member went outside the injury alleged in the ARD in this finding, it was undoubtedly open to her to determine the case on the basis the parties conducted it and the evidence adduced.[52] The finding that the entirety of the correspondence caused the respondent’s psychological injury was not directly challenged on appeal. Mr Dodd did suggest that only the events before the pleaded date of injury on 12 August 2021 should be considered when determining reasonableness. But the relevance of that date is questionable. It appears to relate to the first day on which the respondent was informed that the vaccinations would be compulsory. However, the pleadings also implicate events over the next two months during which the respondent continued to work for the appellant.
[52] Dare v Pulham [1982] HCA 70; 148 CLR 658.
In making this finding the Member did not rely entirely on the correspondence. She expressed her preference for the opinion of Dr Rastogi who opined that “constant coercion and discrimination” together with “termination of her employment despite providing a medical exemption” contributed to the injury. But the correspondence provides the factual underpinning of the finding. An acceptance that the entirety of the correspondence between the appellant and the respondent were causative of psychological injury makes it necessary to consider whether this correspondence can be characterised as actions taken or proposed to be taken with respect to discipline within s 11A(1) as the appellant alleges. As I have found that the Member did not err in her finding that the appellant has not proven that these actions were reasonable, the outcome is merely of academic interest. I, therefore, address the issue briefly.
To facilitate a consideration of whether the correspondence between the appellant and the respondent explicitly “documented actions” with respect to discipline, I reproduce the content of the appellant’s correspondence of 6 September 2021, 5 October 2021, 24 November 2021 and 7 December 2021.
The letter of 6 September 2021, omitting formal parts, states:
“Joss is supportive of the NSW Government position in the COVID-19 vaccine rollout and has been strongly encouraging all staff to get vaccinated to reduce serious illness to our workmates, families and communities.
In the NSW Press Conference of 27 August, the Health Minister, Brad Hazard, announced that 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.
Joss appreciates that some employees have expressed concerns about COVID-19 vaccines and of the requirement to supply information to their employer, in order for their current employment to continue. Based upon the updated Health Orders, this information is now required to enable you to continue to work.
Once you have received both doses of the vaccine and are fully vaccinated, we request you immediately send through a copy of your vaccination certificate to your Supervisor by text message or by email to [redacted]. Information on accessing your vaccination records can be found from my.gov.au or 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.
Joss strongly recommends that any staff that are yet to book their vaccination appointment to do so as soon as possible. If your appointment is scheduled during your working hours, please advise your Supervisor. Vaccinations can be booked through the service NSW number (13 77 88), website (service.nsw.gov.au) or through your local GP network ARD, p 27.

The Memorandum of 5 October 2021, omitting formal parts, is as follows:

“Further to our recent correspondence regarding COVID-19 vaccination requirements for school cleaners, I can confirm the NSW Government issued a Public Health Order for Education and Care Workers on 23rd September 2021.
The Public Health Order requires workers who performs [sic] work at government or nongovernment schools or an early education and care facility to be fully vaccinated against COVID-19 by 8 November 2021.
This means that all NSW School Cleaners are now required to be fully vaccinated against COVID-19 by 8 November 2021 to be able to carry out their duties.
If you are yet to provide us evidence of either your first or second vaccination, we ask that you do this as a matter of urgency. If you have already submitted your vaccination certificate, you do not need to re-supply this.
Please email your information to [redacted].
We appreciate the efforts that our workforce has already taken and look forward to receiving vaccination confirmations from the remainder of our Employees.”[54]
[54] ARD, p 29.

The letter of 24 November 2021, omitting formal parts, is follows:

“I write further to your letter addressed to Contract Manager Jenny Ryan, on 28th October 2021.
Staff members from both of our Albury and Wagga offices have attempted to contact you in regard to the COVID-19 vaccination, and our recent correspondence and communications regarding the COVID-19 vaccination requirements for school cleaners, and the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (‘Order’) dated 23 September 2021.
As you are aware, the Order requires workers who performs [sic] work at government or nongovernment schools or an early education and care facility to be fully vaccinated against COVID-19 by 8th November 2021.
I wish to reconfirm that this Order applies to all Cleaners employed under the Whole of Government Facilities Management Services Cleaning Contract.
As a result of our communications, you have provided us a COVID-19 Vaccine Medical Contraindication.
This Contraindication has been reviewed by the Company and deemed as providing an ineligible reason for exemption.
Could you please contact the author on [redacted] or via email at [redacted] at your earliest convenience or by 12 noon on Friday 3rd December 2021 to discuss this matter.
Should we not hear from you, we will consider your ongoing employment with Joss Facility Management based on the information we have to hand.
I look forward to hearing from you.”[55]
[55] ARD, p 37.

Omitting formal parts, the appellant’s letter dated 7 December 2021 is as follows:
“Thank you for your letter of response dated 29th November 2021 and for a copy of your correspondence dated 15th October 2021. I confirm I am also in receipt of your correspondence dated 30th November 2021.
The questions listed in your letter of 15th October 2021 are not for the Company to answer, these should be referred to a medical expert for response.
I acknowledge that the requirement under the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (‘Order’) dated 23 September 2021 was not in effect when you commenced employment with Joss Facility Management, however we are required to comply with legal directions that impact the workplace.
I reiterate that to remain in employment with Joss Facility Management as a Cleaner, you will be required to be vaccinated against COVID-19.
This Order applies to all Cleaners employed under the Whole of Government Facilities Management Services Cleaning Contract.
I look forward to hearing from you and would be available to meet face to face should you prefer it. Could you please provide evidence of your vaccination status within 7 days of the date of this letter; otherwise I will have no alternative but to terminate the employment relationship.
Evidence can be provided via return mail, via email to [redacted] or via text to [redacted].”[56]
[56] ARD, p 43.
The meaning of “discipline” in s 11A(1) is a question of law.[57] In Kushwaha, Neilson CCJ postulated that the word could mean “instruction” or, perhaps, “training”; the primary meanings accorded to it by both the Shorter Oxford Dictionary 3ed and the Macquarie Dictionary 3ed. I have some difficulty with that construction of the meaning of “discipline” in s 11A(1). Each of the actions referred to in the section occurs at a particular juncture in the contract between a worker and an employer. Instruction, on the other hand, can, and often does take place on a daily basis. Considering the word in its statutory context, I doubt that the legislature intended the defence to extend to the quotidian interaction of an employer and worker in the way that it does to transfer, performance appraisal, demotion etc, each of which are readily identifiable and emphatic actions.
[57] Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145; 84 NSWLR 697, [62], per Beazley ACJ.
That is not to say that repeated failure by a worker to respond to instruction or training might not attract “discipline”. However, in contrast to the delivery of instruction or training, “discipline” will usually involve an element of chastisement, one of the secondary meanings considered by the Judge in Kushwaha, or an expression of dissatisfaction with a worker’s performance. In Martsoukos, the President adopted the reasoning of Barrett AJA in PoliceAssociation of New South WalesvState of New South Wales[58] in holding that actions with respect to discipline involved a “coercive corrective measure.”[59] That reasoning is persuasive.
[58] [2020] NSWCA 3.
[59] Martsoukos, [30].
Both parties referred to the reasoning of Deputy President Wood in Webb in which she stated that “discipline” would include “chastisement, and actions implementing adverse consequences for inappropriate behaviour in the workplace”.[60] The reference to “adverse consequences” is consistent with the concept of a coercive corrective measure. Wood DP also stated “discipline” “stems from action taken in respect of the worker’s conduct or performance in the workplace, or arising out of the worker’s employment.”[61] I doubt that the meaning can be so confined. There is no reason why the term “discipline” should not catch the actions of the Commissioner of Police, for example, in reprimanding an officer for activities in their private life that are inconsistent with the nature of the office. By analogy, the protection offered by s 11A(1) would extend to an employer’s response to its obligations under the Child Protection (Working with Children) Act 2012 where transfer, dismissal, demotion or “discipline” was necessary to comply with the statutory scheme. Obviously, the determination of the issue is fact sensitive and may depend on the statutory scheme that governs the relationship between worker and employer.
[60] Webb, [141].
[61] Webb, [141].
Contrary to the submission made by Mr Dodd, I have no doubt that coercive actions taken by an employer to enforce a vaccination policy can be characterised as disciplinary actions. It is unnecessary that there be “misconduct” by a worker. It is sufficient if the employer’s action is taken to remedy a breach of the policy. As this issue is not critical to the determination of the issue in dispute in this case, it is unnecessary to pursue it further.
While a broad view has been taken of the phrase “with respect to discipline” in s 11A(1),[62] for the defence to prevail it must be demonstrated that at the conclusion of the actions taken by the employer there is the possibility that an employee will be sanctioned for the impugned behaviour. An employer carries an onus to establish that the acts which engendered the worker’s psychological injury were with respect to “discipline”. If the facts relied on to establish “discipline“ are ambiguous, the employer may not succeed on the defence.
[62] Heggie, [52], per Sackville AJA.
Contrary to the appellant’s argument, it is difficult to find any real suggestion of sanction for failure to receive the requisite vaccinations in the correspondence of 6 September 2021 or 5 October 2021. Certainly, the letter of 6 September 2021 explicitly states that an employee who has not received the vaccination “will be putting their employment at a school site at risk.” But it also raises the possibility that “[l]imited hours may be available at other sites within the area.” That outcome may have been acceptable to both parties. The respondent may have been happy to see out the pandemic in this way. It is not evident that the appellant intended to terminate the contract of employment, suspend the respondent without pay, or otherwise sanction the respondent if she refused vaccination. Read in the context of the previous correspondence, I would reach the same conclusion in respect of the memorandum of 5 October 2021. It reiterates that all school cleaners must be vaccinated to carry out their duties. It does not manifestly speak of sanction or punitive action if this does not occur. In my opinion, while another view is tenable, given the ambiguity of this evidence it was plainly open to the Member to conclude that this correspondence did not bespeak discipline or proposed discipline.
The subsequent correspondence of 24 November 2021 and 7 December 2021 is in a different category. I accept that the first of these letters must be characterised as proposed disciplinary action as it plainly states that in the absence of response from the respondent, the appellant would “consider your ongoing employment with Joss Facility Management based on the information we have to hand.” That clearly invokes the possibility of sanction for noncompliance. The same may be true of the email of 8 October 2021, although the copy of that document is difficult to read.
Mr Dodd argued that the letter of 24 November 2021 should be characterised as proposed action with respect to dismissal.[63] But I doubt that the letter goes so far. There is often no bright line between “discipline” and “dismissal”. Disciplinary actions can imperceptibly metamorphose into actions with respect to performance appraisal or dismissal. It is unnecessary to consider whether the terms can overlap in the circumstances of this case, as neither party addressed it in submissions.
[63] See [55] above.
The letter of 7 December 2021 plainly contemplates “dismissal” as it emphatically states that unless evidence of vaccination is forthcoming within seven days, the respondent’s “employment will be terminated”. That is a proposed action with respect to “dismissal”, which the appellant raised in its s 78 notice but chose not to rely on at the hearing. There is no error in the Member’s characterisation of this action as one in respect of “dismissal”, an aspect of s 11A(1) not relied on by the appellant.
The appellant has proven error in respect of the characterisation of the letter of 24 November 2021. I accept that the proposed action with respect to the appellant’s employment was an action with respect to discipline. It is unlikely that this finding undermines the Member’s conclusion that the appellant had not proven that its actions with respect to discipline were the whole or predominant cause of the respondent’s injury. As recorded above, it is not disputed that the respondent suffered a psychological injury at the time that she ceased work on 12 October 2021. The Member held that she was totally incapacitated for work from that date. In these circumstances, it is highly improbable that the proven action with respect to discipline on 24 November was the predominant cause of the respondent’s psychological injury. In other circumstances, it may be necessary to consider whether to remit the issue for redetermination. As the appellant has not proven that its actions were reasonable, it cannot succeed on the appeal. Accordingly, I do not propose to consider Ground 2 of the appeal.

Ground 3 – Error of fact in finding that the appellant’s conduct in relation to Ms Williams was not reasonable

Appellant’s submissions

The appellant prefaces its argument that the Member erred in finding that the appellant’s conduct was not reasonable by referring to the principles enunciated by Sackville AJA in Heggie.[64] The appellant says the following supports its contention that its actions were reasonable:
(a)    the appellant provided “significant notice” to Ms Williams concerning the need for vaccination and its implications for her employment. “The prompt notice provided by Joss is indicative of its reasonable conduct”;
(b)    the record indicates that at all material times the appellant dealt with the respondent in a “sensitive manner”;
(c)    the appellant did not “unduly target or single-out” the respondent, and
(d)    “given the obligations in its contract with the NSW Government, Joss was obligated to follow its directions and had no scope to apply discretion” in the vaccination of its staff.[65]
[64] Heggie, [59].
[65] AS, [18].
The appellant also contends that the Member’s finding at [104] that the appellant “continued to urge” the respondent to be double vaccinated on receipt of her certificate of contraindication on 1 October 2021 was in error. There is no evidence of Joss directly “urging” Ms Williams to obtain the vaccine.[66]
[66] AS, [21].
The appellant then submits that the Member’s finding that Joss’s delay in dealing with the status of the respondent’s contraindication between 1 October 2021 and 24 November 2021 “fails to have due regard to the intervening events” including the respondent’s absence from work on “carer’s leave as well as personal illness”. Further, she was “uncontactable during this time”.[67]
[67] AS, [22].
Finally, the appellant criticises the Member’s conclusion at [105] that it was unreasonable to “caution” the respondent with “ultimate dismissal” where she had not “previously been advised of the status of her contraindication”. The appellant argues that the Member misconstrued the letter, no part of which “amounts to an unreasonable ‘caution’.”

Respondent’s submissions

The respondent noted that after the submission of her application for exemption on 1 October 2021, but before its denial by the appellant on 24 November 2021, she had received correspondence on 5 October 2021, 8 October 2021, 14 October 2021 “urging her to be vaccinated and threatening dismissal”. She submitted that:
“the Member exercised her judgement correctly in considering the manner in which the Appellant applied its policy was not reasonable.”[68]
[68] RS, [36].
The respondent then submitted that the question of reasonableness was “a judgement call of the Member”. There was no indication that the Member acted on wrong principles in accordance with House v King.[69] There was nothing in the appellant’s submission which would “lead to such interference on appeal”.[70]
[69] [1936] HCA 40 (House v King).
[70] RS, [38].

Appellant’s submissions in reply

By its submissions in reply dated 19 September 2024 the appellant submitted that the decision of Martsoukos ought to be duly considered by the Commission in the matter as it had not been overturned. Importantly, it takes issue with the contention of the respondent that the Commission should only consider the events of “12 August 2021” when assessing “reasonableness”.
The appellant reiterates that the delay in responding to the respondent’s letter of contraindication of 1 October 2021 “was impacted by intervening events (caused by the Respondent herself)”.
Finally, the appellant disputes the respondent’s contention that the question of reasonableness is “a judgement call of the Member”. It notes that the test of reasonableness is objective and reiterates that on what was known at the time “its actions (or proposed actions) were reasonable”.

Submissions pursuant to Direction of 1 April 2025

These supplementary submissions of the parties only briefly address the issue of reasonableness. Mr Dodd submits that as the appellant “provided cleaning services at many sites”, the respondent could have been “redeployed to another site”.[71] In reply, the appellant submits that it was a requirement of the NSW government that cleaners at all schools be vaccinated. Thus, “the entirety of the [appellant’s] enterprise” was affected by the 2021 PHO.
[71] RSD, [16].

Consideration

The Member dealt with the question of reasonableness at [103] of her reasons as follows:
“Despite Ms Williams’ submission of a contraindication and supporting statutory declaration on 1 October 2021, Ms Williams received a further memorandum dated 5 October 2021 from Joss, a text message on 8 October 2021 from Joss and a flyer on 14 October 2021 from Joss, all of which strongly advocated for Ms Williams to be double vaccinated. Under cover of letters dated 15 October 2021 and 28 October 2021 Ms Williams sought clarification from Joss regarding the requirement she be double vaccinated, which were not responded to by Joss until 24 November 2021, being a date well past the deadline of 8 November 2021, at which time Ms Williams was advised that that her contraindication had been reviewed and ‘deemed as providing an ineligible reason for exemption’. It was at this time too that Ms Williams was cautioned consideration could be given to her ongoing employment with Joss.”
After acknowledging the difficulties which confronted the appellant in managing cleaning staff in the context of the pandemic and the 2021 PHO, the Member found that it was not reasonable for it to urge vaccination upon her while it was considering the respondent’s application for exemption from its vaccination policy. Further, she found that the appellant’s failure to deal with the exemption application, submitted on 1 October 2021, until 2 weeks after the deadline for vaccination had expired on 8 November 2021 was also unreasonable. Thirdly, the Member found that invoking ultimate dismissal in the letter of 24 November 2021 refusing an exemption, in the context of the respondent’s medical condition, was also not reasonable.
In considering the issue of reasonableness, it must be borne in mind that a finding that an employer has not proven that its actions were reasonable is not a finding that these actions were unreasonable. On the reasonableness issue, the Commission’s practice has been to follow the instruction of Geraghty CCJ in Irwin v Director-General of School Education[72] and of Truss CCJ in Ivanisevic v Laudet Pty Limited.[73] Both cases were referred to with approval by Foster AJA (Sheller and Santow JJA agreeing) in Commissioner of Police v Minahan.[74] In Ivanisevic Truss CCJ stated:
“In my view when 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 effected.”
[72] Unreported, Compensation Court, 18 June 1998 (Irwin).
[73] Unreported, Compensation Court, 24 November 1998 (Ivanisevic).
[74] [2003] NSWCA 239, [42].
In Irwin, Geraghty CCJ stated:
“The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
It follows from the above that to have the benefit of the section the appellant must prove that its vaccination policy and its implementation were reasonable. The Member did not conclude that the vaccination policy was not reasonable. Rather, her findings on reasonableness go to the implementation of the policy. In particular they relate to the appellant’s actions after the respondent applied for exemption.
It is true as the appellant submits that the employer’s actions must be considered objectively in accordance with the instruction in Heggie. Contrary to its submissions, however, it is undoubtedly the case that a finding on reasonableness is an evaluative decision. In St George Leagues Club Ltd v Wretowska,[75] Deputy President Roche, in considering a challenge to an arbitrator’s decision as to reasonableness, applied the statement of Spigelman CJ in Vines v Australian Securities and Investment Commission,[76] which, omitting citations, is as follows:
“Where, as here, the relevant statutory test turns on whether or not the Court is ‘satisfied’ of a matter involving a broad evaluative judgment, then the case law indicates that the degree of restraint which an appellate Court should manifest is of the same order as that applicable to a discretion, in the strict sense of that word. A statutory provision expressed in terms of whether a decision-maker is ‘satisfied’ of a particular matter is accurately characterised as conferring ‘a very wide discretion’.”
[75] [2013] NSWWCCPD 64 (Wretowska).
[76] [2007] NSWCA 126, [8].
The reasoning in Wretowska has been continuously applied by the Commission in determining appeals involving the issue of reasonableness. A corollary of the reasoning in that case is that a member determining the issue of reasonableness has a degree of impunity against an attack on the quality of their reasons on this issue. When considering the content of a duty to give reasons in Public Service Association and Professional Officers’ Association Amalgamation Union of New South Wales v Secretary of the Treasury,[77] Basten JA stated:
“Generally, the concept of ‘reasons’ requires an explanation connecting any findings of fact with the ultimate decision. Where the legal test to be applied involves an evaluative judgment, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance; the scope of the obligation must recognise that constraint. (A different question arises if mandatory considerations have been identified.)”
[77] [2014] NSWCA 112, [46].
As the question of the reasonableness of the vaccination policy is not in issue on this appeal, it is unnecessary to consider the submission that by reason of the 2021 PHO the appellant had “no discretion” but to require vaccination “given the obligations in its contract with the NSW Government’.” A determination of that issue must involve a consideration of the principles enunciated by the Court of Appeal in Jeffrey v Lintipal Pty Ltd.[78] But given the potential consequences for the appellant’s business (and to the livelihood of its employees) of non-compliance it is difficult to envisage any basis for a finding that the policy was not reasonable.
[78] [2008] NSWCA 138.

The gravamen of the Member’s finding in respect of reasonableness relates to the appellant’s dilatory response to the respondent’s application for an exemption from the vaccination policy of 1 October 2021. It did not respond until 24 November 2021, well after the date prescribed by the 2021 PHO for excluding unvaccinated workers from school premises in NSW. The appellant’s attack on this finding does not rise above an application for a merits review. The appellant argues that it was managing “an unprecedented situation” dealing with a large cohort of employees during this period. That may be correct. But the appellant led no evidence on the reasons for its delay or its refusal to exempt the respondent from the vaccination policy. These are matters on which it carried the burden of proof.[79]
[79] See State of New South Wales v Stokes [2014] NSWWCCPD 78.
The appellant argued that the Member’s finding that it “continued to urge” the respondent to receive vaccination in this period was “unfounded”. Rather, it argues that it forwarded circulars and emails to her as part of an “employee-wide” distribution of information about COVID-19 and the need for vaccination. This argument turns on semantics rather than substance. The Member’s finding reflects the undoubted fact that the appellant forwarded material to the respondent relevant to its COVID-19 vaccination policy at the time when it knew that she had applied for a vaccination exemption and was certified unfit for work.
Finally, the appellant argues that the respondent was “un-contactable” during parts of this period. There is, however, no evidence to suggest that the appellant could not communicate with the respondent through the ordinary course of the post or, possibly, by email.
I have borne in mind the instruction in Department of Education & Training v Sinclair,[80] a case to which the Member referred, that specific blemishes in disciplinary processes do not necessarily support a finding that an employer’s actions are not reasonable. It is the whole process that must be considered. It is also true that in borderline cases, minds may reasonably differ on the issue of the reasonableness of an employer’s actions with respect to discipline. However, in my opinion the appellant has not established error of principle in the Member’s determination of the type identified by the High Court in House v King or that it is plainly wrong. The Member provided reasons for her finding on this issue. The appellant’s criticisms of the findings are not made out. It has not proven error in respect of the finding of reasonableness.
[80] [2005] NSWCA 465, [97], per Spigelman CJ.
In order to succeed on this appeal it is necessary for the appellant to prove error under this ground. As it has not done so the appeal must be dismissed, and the orders of the Member confirmed.

DECISION

The orders in the Certificate of Determination dated 28 June 2024 are confirmed.

Paul Sweeney
ACTING DEPUTY PRESIDENT

5 May 2025