Dawking v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Dawking v Secretary (Department of Education) [2022] NSWPIC 611
APPLICANT:	Diane Dawking
RESPONDENT:	Secretary, Department of Education
Member:	Brett Batchelor
DATE OF DECISION:	3 November 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits and expenses pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act) as a result of psychological injury suffered because of refusal to be double vaccinated for Covid-19; subsequent termination of employment for failure to comply with Public Health Order of NSW Government in respect of vaccination and Covid Vaccination Guidelines issued by the respondent; the respondent put in issue on the date claimed by the applicant and relied on a defence of reasonable action in respect of discipline pursuant to section 11A of the 1987 Act; Held – the applicant suffered psychologic injury arising out of or in the course of her employment with the respondent, which was a substantial contributing factor to injury; injury was not caused by reasonable action taken by the respondent with respect to discipline; awards in favour of the applicant for weekly benefits compensation and section 60 expenses of the 1987 Act.
determinations made:	1. The applicant sustained psychological injury on 27 August 2021 arising out of or in the course of her employment with the respondent. 2. The applicant’s employment with the respondent was the main contributing factor to injury. 3. The injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent in respect of discipline. 4. The applicant has had no current work capacity for any employment since 7 September 2021. 5. The respondent is to pay the applicant weekly benefits compensation as follows: (a) $1,722.60 per week from 7 September 2021 to 6 December 2021 pursuant to s 36(1) of the Workers Compensation Act 1987, and (b) $1,378.10 per week from 7 December 2021 to date and continuing pursuant to s 37(1) of the Workers Compensation Act 1987. 6. The respondent is to pay the applicant’s costs and expenses pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Diane Dawking (the applicant/Mrs Dawking) seeks weekly benefits and compensation for medical expensed pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for psychological injury sustained arising out of or in the course of her employment as a school teacher by the Secretary, Department of Education (the respondent) between
27 August 2021 and 6 September 2021.
As at 27 August 2021 the applicant had been employed as a teacher by the respondent for about 17 years, and held a substantive position as a fulltime special education teacher at Lucas Gardens School in Canada Bay, NSW. She was however engaged as a “temporary” teacher by the respondent.
On 27 August 2021 the applicant became aware of the Public Health Order 2021 (COVID-19 Vaccination of Workers) which commenced on that day and established mandatory requirements for health staff and persons working in health settings to be vaccinated with a COVID 19 vaccine. The order required the first dose of vaccine by 30 September 2021, with a second dose required by 30 November 2021.
At 10.52 am on 27 August 2021 an email was forwarded by the respondent to all school-based staff advising that the Premier of NSW was expected to announce that, as with aged care and health sectors, mandatory double doses of vaccination would be required for all public school and preschool staff from 8 November 2021[1]. The Premier’s announcement was expected at 11.00 am that day.
[1] Reply p 7, noting that page referenced in this Statement of Reasons are to those in the electronic records of the Personal Injury Commission (the Commission).
At 2.32 pm on 2 September 2021 the Deputy Secretary, Chief People Officer of the respondent sent an email to all school-based staff providing an update on mandatory vaccines, advising inter alia that:
(a) from 8 November all NSW school and preschool staff would be required to have received two doses of COVID-19 vaccination, and
(b) from 25 October all NSW school and preschool staff on site to support the staged return of student cohorts under Level 3 plus would be required to have received two doses of COVID-19 vaccination[2].
[2] Reply p 18.
On 23 September 2021 at 3.02 pm the Minister for Health and Medical Research,
Brad Hazzard MP, made the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (the Public Health Order). The object of such Order was to require certain education and care workers to be vaccinated against COVID-19. In that Order the Minister directed that education and care workers must not carry out relevant work on or after 8 November 2021 unless the worker had:
(a) two doses of a COVID-19 vaccine, or
(b) been issued with a medical contraindication certificate.
“relevant work” was defined in the Public Health Order as “work at a government school or non-government school”.
The applicant says that on 24 September 2021 she received a letter from the respondent which advised that she must be double vaccinated by 8 November 2021, otherwise she would be considered guilty of misconduct and liable for disciplinary actions including possible termination of her employment. This advice is contained at [8.9] in the “Covid-19 Vaccination Guidelines” (the Guidelines) issued by the respondent in evidence[3].
[3] Reply p 130 at 138.
The applicant claims that as a result of the vaccination mandate and her decision not to be fully vaccinated, she started to suffer a number of symptoms, including helplessness and hopelessness, loss of interest in daily activities, loss of weight, sleep changes, anger and irritability, and other symptoms for which she consulted a psychologist on 12 October 2021, Muhamad Ziedni, who diagnosed her as suffering from acute stress reactions/disorder in relation to the current Covid-19 restriction and mandatory vaccination commencing on
[4] Application to Resolve a Dispute (ARD) p 29, Reply p 155.
27 August 2021 and continuing. Mr Ziedni certified Mrs Dawking as having no current capacity for any work from 9 September 2021[4].
On 18 October 2021, Georgina Harrison, Secretary of the respondent, issued Determination No 1 of 2021 under the Teaching Service Act 1980, Covid-19 Vaccination Evidence[5], the purpose of which was set out in [1.1] thereof as follows:
[5] Reply p 149 (Determination 1).
“The purpose of this Determination is to establish the requirement that
employees of the Department must be vaccinated with two doses of a COVID-
19 vaccine and provide evidence of that vaccination unless they are unable to
be vaccinated because of a medical contraindication, as a condition of their
employment with the Department.”
It applied to all employees of the respondent employed in Teaching Service. Clause [4.1] made it a condition of employment in the Teaching Service that an employee must provide, to the responsible person for their ordinary place of work:
“(a) vaccination evidence; or
(b) if the employee is unable to be vaccinated against COVID-19 because of a medical contraindication, a medical contraindication certificate.”
Clauses [4.2] and [4.3] of Determination 1 provided:
“4.2 All employees who work, or will be required to work, on a Department site to
support the staged return of student cohorts to a Department school are required to provide their vaccination evidence or their medical contraindication certificate to the responsible person by 18 October 2021.
4.3 All other employees who attend, or ordinarily attend, a Department school for their work will be required to provide their vaccination evidence or their medical contraindication certificate to the responsible person by 8 November 2021.”
The applicant reported her injury to the respondent on 19 October 2021[6], in response to which the respondent’s insurer, Allianz Australia Insurance Limited as agent for NSW Self Insurance (Allianz), issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 26 October 2021, containing a denial of liability for the applicant’s claim for compensation[7]. Allianz placed in issue the following matters:
(a)    whether the applicant had sustained a psychological injury as required by
s 11A(3) of the 1987 Act;
(b)    whether the injury arose out of or in the course of employment, s 4 of the 1987 Act;
(c)    whether the applicant’s employment was a substantial contributing factor to the injury, s 9A of the 1987 Act;
(d)    that the psychological injury claimed was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect of transfer, performance appraisal, discipline, retrenchment, dismissal and/or provision of employment benefits, s 11A(1) of the 1987 Act;
(e)    whether the applicant had an entitlement to weekly benefits because she did not have total or partial incapacity resulting from an injury, s 33 of the 1987 Act, and
(f)    whether the applicant was entitled to the payment for medical or related treatment in accordance with ss 59 and 60 of the 1987 Act.
[6] Incident Report Form, ARD p 61.
[7] ARD p 56, Reply p 91.
On 23 December 2021 the applicant was independently medically examined by Dr Richa Rastogi, psychiatrist, at the request of her solicitor. Dr Rastogi reported on that date, recording that Mrs Dawking was always fearful of taking the vaccine as she believed that it would compromise her underlying medical condition, which included anaemia. The doctor also recorded that the applicant was working from home through Zoom and Microsoft Teams, but not allowed to do face to face teaching. He diagnosed Mrs Dawking as suffering from adjustment disorder with anxious distress, and that she remained unfit to work given her current mental state. Dr Rastogi said that her condition was not wholly or predominantly caused by action taken by her employer in respect of promotion, appraisal, discipline or dismissal, but that employment was the main contributing factor to the injury sustained and/or diagnosis. The reasons the doctor listed for this opinion was the constant coercion and discrimination to receive vaccine as a mandatory requirement, refusing Mrs Dawking medical exemption, and possible threat to her employment with no support provided[8].
[8] ARD p 2.
On 7 February 2022 Yvette Cachia, Chief People Officer of the respondent sent an email dated 7 February 2022 to Mrs Dawking which noted that she had provided the department with a medical contraindication certificate, which did not certify that because of a specified medical contraindication she was unable to have a COVID-19 vaccine. Attention was drawn to cl 5(1) of the Public Health (COVID-19 Vaccination of Education and Care Workers) Order (No 2) 2021. The applicant was directed to show her principal or workplace manager by
14 February 2022 a copy of her vaccination evidence or submit a valid medical contraindication certificate so that they were able to validate the entry she had made.
[9] Reply p 109.
Mrs Dawking was advised that failure to comply with the direction could lead to disciplinary action, including termination of her employment[9].

ISSUES FOR DETERMINATION

The parties agree that the issues set out in [11] above remain in dispute.

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 an in person conciliation/arbitration hearing on 12 October 2022.
Mr Dodd of counsel appeared for the applicant instructed by Mr McCabe. The applicant attended via Microsoft Teams. Ms Roberts of counsel appeared for the respondent instructed by Ms Spratt. A representative of the insurer also attended.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admits Late Documents (AALD) dated 17 August 2022 lodged by the respondent with the following attachments:
(i)letter of instructions from McCabe Partners to Dr Rastogi dated
1 December 2021;
(ii)bank records of Diane Dawking, 27 August 2021 to date, and
(iii)letter from Hall & Wilcox to McCabe Partners dated 9 August 2022;
(d)    AALD dated 4 October with a transcript of the evidence of Dr Paul Wood, Executive Director, Educational Standards of the NSW Department Education, given in proceedings number W1987/22 on 29 August 2022, attached;
(e)    written submissions of the applicant handed up at the arbitration hearing on
12 October 2022, and
(f)    written submissions of the respondent dated October 2022 in reply to the applicant’s submissions handed up on 12 October 2022.

Oral evidence

There was no application to adduce oral evidence or to cross-examine the applicant.

The applicant’s evidence

The applicant has provided three statements:
(a)    dated 15 October 2021[10];
(b)    undated (listed in Annexure to ARD List as “4 Page Email”[11]), and
(c)    dated 23 March 2022[12].
[10] ARD p 10.
[11] ARD p 21.
[12] ARD p 25.
In the first statement Mrs Dawking details her graduation as a teacher from the University of Western Sydney in 2004 and her subsequent employment by the Department of Education. She refers to her dedication as a teacher and to the students with intellectual and physical disabilities, and complex medical conditions, who she teaches. Mrs Dawking notes the Public Health Orders referred to above under BACKGROUND, and the symptoms she experienced as a result of the vaccination mandate and her decision not to be fully vaccinated. She makes extensive comment and opinion on the measures taken by the government to address the COVID-19 crisis, and her belief that the vaccine mandate denies her fundamental right to work, as the mandate to be vaccinated restricts or removes her basic liberties, must be proportionate and necessary to manage the risk, and must be the minimum necessary to achieve the public health aims. Relevantly, Mrs Dawking refers to her own compromised health as part of the reason for her decision not to be vaccinated, as well as the denial of her freedom of choice on vaccination. She says that she has been incapacitated for work from 27 August 2021 and her feelings are increasing and compounding.
The undated “4 Page Email” does not contain anything further of relevance to that contained in the statement of 15 October 2021.
In the statement dated 24 March 2022 Mrs Dawking refers to the Public Health Order dated 23 September 2021 (referred to at [6] above), her exemplary record as a teacher over the long time she has worked for the Department of Education and says that the misconduct allegations made against her have resulted in her psychological injury. She notes the proposed easing of restrictions from 15 December 2021 due to the declaration of the NSW Government of the expected achievement of 95% double vaccination. Again, relevantly,
Mrs Dawking refers to safety measures to reduce the spread of COVID-19 and alternative work arrangements such a change in her duty, reduction of contact between unvaccinated teachers and students, and work from home arrangements which had been successful over the past two years up until 8 September 2021.

Medical evidence

Dr Rastogi’s report dated 23 December 2022, referred to above at [12], contains a record of the history provided by the applicant which is consistent with her statement evidence.
Mrs Dawking related to the doctor that she was made to feel worthless as a teacher and that there was not enough time available to seek medical support. She says that she developed acute anxiety and was extremely overwhelmed with the choices she had to make. She did not get any clear indications from the consultation she had with her doctor, developed a fear of vaccination and was fearful that her condition would deteriorate. Dr Rastogi records that the applicant was working from home through Zoom and Microsoft Teams, but not allowed to do face to face teaching. Mrs Dawking saw her general practitioner who referred her to a psychologist, and diagnosed acute stress reaction. The applicant took long service leave, and continued to remain on leave.

Dr Wood’s evidence

The evidence of Dr Wood is contained in his statement dated 31 May 2022 and in the transcript of proceedings before Principal Member Bamber on 29 August 2022 in matter number W1987/22 (T1), when the doctor was cross-examined on his statement evidence.
In [7] of his statement, Dr Wood says that the Department, in sending out an email to all school-based staff in the morning of 27 August 2022, wanted to ensure that staff were kept updated on the Government’s intention to introduce the COVID-19 vaccination mandate, as the situation was moving quickly and a public announcement was due to be made by the NSW Premier at 11.00 am that day. In his oral evidence, Dr Wood confirmed that the email was a “blanket email” sent to all school based staff, that is, staff employed in schools. He said that the Department has employees who are considered non-school-based teaching service employees who work in the corporate offices, but are employed under the Teaching Services Act. Dr Wood said that teachers working to support students working from home could have been bases in school or could have been based at home.[13]
[13] T1 p 6.15 - 6.25.
Dr Wood was referred to Attachment 2 of his statement which he acknowledged contained the wording that it was “…an update on that 27^th of August, 2021”, which said that all public and preschool staff were required to be fully vaccinated by 8 November 2021. That was also a “blanket email” to all school based staff.[14] Dr Wood said that to his knowledge the senior executive who made the decision to distribute the emails did not delineate between all staff and any particular staff.
[14] T1 p 7.10.
Dr Wood said with reference to the email sent out on 8 September 2021 which reiterated that from 8 November 2021 all NSW school and preschool staff will be required to have received two doses of COVID-19 vaccine from 8 November 2021. That email referred to “school staff”.
The attention of Dr Wood was drawn to Attachment 4 to his statement, the Public Health (Covid-19 Vaccination of Education and Care Workers) Order 2021, which included in the definition of relevant work, “work at a government or non-government school”.[15]
[15] Reply p 24.
The attention of Dr Wood was drawn to Attachment 5 to his statement, the “COVID-19 Vaccination Guidelines” (the Guidelines) issued by the respondent, and in particular to [8.1], [8.8], and [8.9] thereof[16], which provided:
(a)    no special leave provisions available to those who refuse to comply with the Guidelines;
(b)    that if staff were found to be, or suspected of being, in breach of the Public Health Order, the NSW Police would be called and infringement notices or criminal charges may be laid, and
(c)    that if staff were found to be, or suspected of being, in breach of the Guidelines, then investigation and disciplinary action may be undertaken by the department, including termination of employment.
[16] Reply pp 36-37.
Dr Wood was not able to give an explanation as to why no special leave provisions were made available to those who refused to comply with the Guidelines, but deferred to his colleagues in the People Group of the Department.

In respect of the contents of [8.8]. Dr Wood said that such statement would have been placed in the document to ensure that the Department covered all of the information that it staff needed to be aware of.
In respect of the contents of [8.9], Dr Wood referred to other groups within the organisation, including the Professional and Ethical Standards group, responsible for disciplinary matters, and Workplace Relations, responsible for industrial relations. His role as Executive Director was to coordinate those various groups across the organisation so that there was a coordinated response. Dr Wood’s counterpart within the disciplinary role was Mr Daryl Currie, who was still with the Department and was the right person to talk to as part of what was stated in [8.9].
Dr Wood recounted his experience within the Department, having taught for a number of years as a casual employee, then a permanent employee for some five or six years before moving into some consultancy roles. He had a teaching principal role which he maintained. He worked in schools either as a teacher, an executive staff member or a principal until 2014, after starting work with the Department in the 1990s.
In response to a question as to whether the directions of his colleague in the disciplinary section differentiated between all teachers and any particular teacher, Dr Wood said that the Departments’ policy would apply to all teachers, but that there were opportunities for individual teachers to submit a medical contraindication. That was a process to enable people who have a medical condition that would prevent them from being vaccinated to make an application. As far as he was aware, the only exemption was through a medical contraindication.
Dr Wood was then cross examined about the contents of Attachment 11 to his statement. “Management of Conduct Related to Non-Compliance With Covid-19 Vaccinations Requirements Guidelines.”[17] He said that he was not the right person to answer questions about that document because it dealt with management of conduct. Questions should go to Mr Currie from the disciplinary department.
[17] Reply p 66.
Moving to another topic, Dr Wood said that a breach of the code of conduct could result in disciplinary matters, the size and scale of which would depend on the nature of the breach. The code of conduct would be the document that outlines the expectations of employee behaviour within the Department. That is what occurred in August and September 2021, that is, non-compliance with the requirement to be double vaxxed by 8 November 2021 resulted in the application of disciplinary procedures.
Dr Wood said that thought was given in his committee as to how long the pandemic was going to continue. Policies and procedures that were put in place to support schools at particular points in time were not necessarily given end dates. Policies were revised as circumstances changed.
Dr Wood said that if a person’s employment was terminated as a result of disciplinary action, that would remain as such on that person’s record, and could not be erased over time. When asked if that would limit opportunities for re-employment by the Department, he said that it would depend on the level of detail around conduct and performance, with which he was not familiar. When asked if a teacher was sacked for disciplinary reasons, obtaining employment outside the government system would be difficult, Dr Wood said that he was not aware of the employment conditions and hiring policies of the independent [sic, or] Catholic school sector [sic, s] which are the two other schooling sectors in NSW.
Dr Wood was not prepared to answer a question put to him as to the number of teachers who were employed by the Department as at September 2021 when it was suggested to him that it was in the order of 50,000. He did not have specific details of the number of teachers who had complied with the direction to be double vaxxed by 8 November 2021, but said that they had a very high vaccination rate, up to 90% of staff were fully vaccinated and compliant.
When asked about the extensive work that he did to allow teachers to work remotely in 2020, Dr Wood said that the work that they did was to provide curriculum and teaching resources to enable students to continue their learning throughout the pandemic, and that did include supporting teachers to be able to more effectively use technology to support their students. He was proud of the achievements of Departmental staff to provide resources that were very supportive of teachers, students and their families during that time.
When asked in respect of the few hundred teachers who weren’t double vaxxed by
8 November 2021 as to why they could not continue to do what they were doing for the previous 12 to 18 months, Dr Wood said that that was not a decision that was within his authority, and referred back to the Public Health Order. He agreed that it provided that a person who was not double vaxxed could not be at school.
Dr Wood agreed that it would have been a period of a couple of months for some students in 2021 when they were learning from home. When asked as to why teachers could not continue to teach the students remotely after 8 November 2021, Dr Wood said that the Department had a requirement that all employees be double vaxxed, according to the Secretary, Discriminations. That was a decision made by someone else, not him.
When it was put to him that employees could have, save for the order, continued to teach remotely, Dr Wood said that the current way in which they supported students who were working from home was that most employees worked from a school site. There were however teachers working from home for some months before September 2021. From a logistic point of view, those teachers could have continued to work from home whether vaxxed or not. However Dr Wood said that if one was talking in terms of the professional support supervision and the range of other things that were also part of their employment, there were reasons why the Department’s employees worked from a school site, to be supported by that range of things. When referred back to his work in 2020 to enable teachers to teach students remotely, Dr Wood said that the priority of their work was to support students to continue to learn from home during that time. That was done in part by teachers teaching from their homes.
When it was put to Dr Wood that the teachers continuing to teach from home compared to the overall staff of the Education Department were a couple of hundred, he said that the number of staff who were non-compliant with the mandatory vaccination was a relatively small number, in the hundreds, but that he would need to confirm that information. He said that he was not qualified to answer as to whether it would have been difficult for the Department to cater for the couple of hundred, within the many thousands of staff of the Department, to teach from home. He said that a number of people who had different responsibilities would have to address that proposition. These included the Our People group, and the Employee Performance and Conduct Unit, and that to give the name of a person to provide an answer to the proposition would be difficult because it crossed over a number of areas.
Dr Wood confirmed that as of 2 September 2021 the Chief People Officer whose picture appeared on Attachment 3 to his statement was Yvette Catchik who was “still around”, but he was not aware of where she was working.
Dr Wood confirmed that the vast majority of the Department’s staff work in schools. He was asked about his experience as a teacher for a period of time before going to other areas, which might include School of the Air going to remote and regional communities. He said that from his experience, teachers of the School of the Air work from a location in Bourke. He did not have the information to say if any of those teachers worked remotely.
Dr Wood confirmed that there were other aspects of work of the Department, including things such as curriculum development, and that it was his understanding that employees working in other areas such as curriculum development were also required to be double vaccinated, even though they were working from home. When asked why this was so, he could not answer. Dr Wood said that he was not aware if any opportunity was given to the couple of hundred teachers (who were unvaccinated) to work in the area of policy development.
Dr Wood said that as of May 2022 it was his understanding that there was a change in the approach by the Department to people who were not double vaccinated, the details of which he apparently did not have (unclear from transcript), but that he was aware of teachers being directed to work at schools even though they were not double vaccinated. It was also his understanding that the threat of disciplinary charges for professional misconduct including termination of employment, did not have to apply after May 2022, because the teachers were being asked to come back to work.
Returning to Attachment 11 to his statement (referred to above at [35]), Dr Wood acknowledged that it had a commencement date of 12 November 2021, and that the contact person listed thereon was the Director, Strategic Initiative and Projects. That was not his role in November 2021. He was not aware of who was holding that role at that point in time.
In re-examination Dr Wood said that it was very likely that he first learnt that the Public Health Order was to be introduced very close to “…the 27th. At that point in time government decisions were being made and were implemented very quickly”.[18]
[18] T1 p 36.05.
In answer to a question if he was able to indicate in a general way, the work streams that were commenced within the Department to react to and implement the requirements of the Public Health Order, Dr Wood replied:
“There were a number of work streams. Certainly one of the priority work streams was the establishment of the vaccination policy and the associated resources to
support Principals and other employees manage this in the department to enact a policy. There was an ITD technology work stream to establish the VAC system which
was the Vaccination Attestation and Confirmation system to enable. There was certainly a workstream within our legal department, obviously who are responsible for
interpretation of the Department of Health and other legal matters. There was a workstream around medical contraindication in our work – what was, at the time, our
work safety and health and employee wellbeing area. There was a workstream on the employee performance and disciplinary conduct process. So there was a number of
significant workstreams across the Department, or to support the management of ..(not transcribable 01.03.41)..”[19]
[19] T1 p 36.10 – 36.25.
Dr Wood concluded his evidence by saying that in his experience, in a general way, it was generally the case that when students returned to learning, they had in-class instruction.

Submissions

The oral submissions of the parties are recorded, a transcript of which (T2) can be obtained on request. Those submissions, and the written submissions of the parties referred to above at [17 (e) & (f)], are summarised as follows.

Applicant

The applicant opened her submissions with the observation that firstly, save for documentary evidence and the evidence of Dr Wood, the respondent had not put on any lay evidence, or any medical evidence to discount as to whether the psychiatric injury suffered by the applicant arose out of or in the course of her employment, and secondly, the respondent had not put on any medical evidence in support of its defence under s 11A of the 1987 Act.
The applicant refers to the evidence contained in her statement dated 15 October 2021, the email dated 27 August 2021 attached to both the ARD and Reply,[20] the exemptions from vaccination referred to in that email, the fact that staff can be disciplined for being, or suspected of being, in breach of the COVID-19 Vaccination Guidelines, and to the termination of her employment on 8 November 2021.[21]
[20] ARD p 64, Reply p 7.
[21]See email 14 January 2022, ARD p 91.
The applicant emphasises her 16 years of employment with the respondent, the Bachelor of Education degree, and her work in special education with disabled and disadvantaged students. The applicant also notes that, apart from her substantive appointment at the Lucas Gardens School in Canada Bay, she also had some temporary appointments on a part-time basis with other schools within the Department of Education.
The applicant refers to her feelings at being denied her fundamental right to work, how that impacted upon her, her inability to provide for her family and care for her sick husband, and the various matters that were in the public domain in respect of persons making decisions about whether to be vaccinated or not. The symptomatology she suffered is described in detail, worsening over time as successive emails were received from the Department.
The applicant states that the Department of Education has a total of 54,502 full-time teachers, noting Dr Wood’s inability to specify this figure, and the small number of teachers who do not want to be vaccinated. The applicant submits that the Department could easily provide alternative duties for her, which do not involve close contact with teachers and students such as teaching via Zoom.
The applicant notes her coming under the care of her general practitioner, Dr Vago, and then psychologist, Muhamad Ziedni, to whom she was referred to by her doctor. The certificates of capacity issued initially by Mr Ziedni containing a stated date of injury of 27 August 2021 and a certification of no current capacity for any work from 9 September 2021 are relied upon. Later certificates issued by Dr Vago are also in evidence.[22]
[22] ARD pp 29-52.
The applicant relies on the report of Dr Rastogi dated 23 December 2021, referred to above at [12]. Dr Rastogi expresses the “…very bland” statement that Mrs Dawking’s condition has not wholly or predominantly been caused by action taken by her employer in respect of promotion, appraisal, discipline and dismissal. The applicant submits that the absence of any medical evidence on behalf of the respondent is telling in the context of the receipt by her of the first email on 27 August 2021, and then ceasing work on 6 September 2021, causing her to decompensate (“…dropped her bundle when confronted with this.”[23]).
[23] T2 p 12.10 – 12.15.
The applicant submits that the overwhelming evidence is that her psychological condition as diagnosed by Dr Rastogi has arisen out of or in the course of her employment with the respondent as a teacher. She was a teacher when she received the emails, it is because she was a teacher that she is subject to the manner in which the Department implemented the Public Health Order, and it is because she was a teacher that by November her employment was terminated. The applicant submits that there is no suggestion from the respondent by way of any medical evidence that her employment was anything other a substantial and, indeed, the main contributing factor if need be, for the occurrence of her psychological condition.
In respect of the evidence of Dr Wood the applicant submits that he was unable to assist as to why other positions in the Department, such as curriculum development and policy work, were not made available to teachers such as the applicant who were not vaccinated.
Dr Wood made reference to another employee, Executive Director Daryl Currie, who was the one who could have given evidence as to why employees such as the applicant were threatened with discipline, yet he was not called to give evidence, notwithstanding the fact that the respondent relies on discipline as a ground for denying liability under s 11A of the 1987 Act. The applicant submits that a Jones v Dunkel inference should be drawn against the respondent for its failure to adduce evidence from Mr Currie. The applicant submits that evidence of Mr Currie would not have assisted the respondent to establish that such threats were “reasonable actions” taken on behalf of the respondent.
Similarly, the respondent called no evidence from the Chief People Officer, Deputy Secretary Yvette Catchik, on the industrial aspects of the threats of termination issued, which in the case of the applicant, were carried out.
The applicant notes the respondent’s anticipated reference to, and reliance on, the case of Shah v Catholic Education Office Parramatta Diocese (Cedp) in the Fair Work Commission.[24] The applicant notes at [22] and [23] of the judgement of Deputy President Boyce that the failure of the worker in that case to meet the requirements of a Public Health Order, resulting in an inability to perform work at an employer’s workplace, had been found to be a valid reason for dismissal. If an employer permitted an employee, who had not complied with a similar Public Health Order requirement to enter its workplace, the employer would itself be in breach of the Public Health Order.
[24] [2022] FWC 43 (Shah).
The applicant also notes that the Fair Work Commission in the case of Shah was dealing with different legislation to the workers compensation legislation.
The applicant submits that in her case, as opposed to the situation in Shah, if consideration had been given to alternative duties that is, consistent with what she had been carrying out in the past, she would have been able to continue remote learning. The applicant could also have been just suspended, not terminated, as she had demonstrated through her obtaining a degree, and the fact that she kept up to date as a special education teacher over the 16 years of her teaching career, that she still should retain her career. The applicant submits that it is apparent from the evidence of Dr Wood that no consideration was given to the fact the pandemic was not going to last indefinitely, noting that by December 2021, one month after her employment was terminated, restrictions were easing under various public health orders.
The applicant submits that the respondent, in respect of the reasonableness or otherwise of its actions, gave no consideration to anything other than a medical contraindication. It gave no consideration to the fact that she may have had concerns about being vaccinated, that she was suffering from anaemia, that she was caring for a sick husband, or not even a possible religious objection to vaccination. It simply “pulled the rug out from underneath” the applicant which caused her to suffer a psychological response.
The applicant refers to the decision of Member Wynyard in Bjelic v State of NSW[25] which dealt with a different factual scenario in which the worker was a security officer working in a hospital and required to wear a face mask. Clearly, the unwillingness or inability to wear a face mask in that circumstance would be a breach of the Public Health Order.
[25] [2002] NSWPIC 214.
The applicant also refers to the decision of Deputy President Snell in Hamad v Q Catering Limited[26], noting that the respondent brings no medical evidence to support its case under
[26] [2017] NSWWCCPD 6 (Hamad).
s 11A, in which it has the onus of proof. The applicant therefore submits that respondent has failed to establish a defence to the claim under that section.

Respondent

The respondent’s primary submission is that the sole, or at least the main cause of the applicant’s distress was the introduction of the requirement that she receive a vaccine in order to continue her job, a matter which is reflected in Mrs Dawking’s statement dated
15 October 2021. That was not a requirement of the respondent, but a requirement of the government introduced by the Public Health Order.
This submission is, according to the respondent, consistent with the decision of Deputy President Boyce at [22] - [23] in Shah, in which case it was held that the Catholic Education Office had no option but to comply with the requirement to be mandatorily vaccinated imposed by the Public Health Order. It was acknowledged that the Fair Work Commission was deciding the matter in the context of the Fair Work Act 2009 (C’wealth), but the principle is nevertheless the same. It was also held in that case that the proposition that the worker undergo rapid antigen testing (RAT) as an alternative to being vaccinated was not to the point, as such testing was not a proposal that would result in compliance with the Public Health Order.

The respondent notes from the applicant’s statement dated 15 October 2022 that she became aware of the Public Health Order which commenced on 27 August 2021, the date when it was announced by the Premier at a press conference that the mandate for vaccination was coming. That date is significant, notwithstanding the fact that the Order itself was not introduced until 23 September 2021.
The email from the respondent to all staff of the Department was sent out at 10.52 am, eight minutes before the anticipated announcement by the Premier. The respondent submits that it considered that it was appropriate to send the email before the announcement, notwithstanding that it pre-empted it by only eight minutes. It was considered important to notify staff as it was foreshadowed that it would affect them in many ways.
The respondent submits that there is no basis for concluding on the applicant’s evidence that the email was in any way causative of her distress. The email alerted her to something that was distressing, but she was going to learn about anyway at 11.00 am when the Premier announced it at the press conference. The respondent submits that the email was respectful, as comprehensive as was possible in terms of detail, and polite, indicating that the respondent was seeking to work with the Department of Health to provide greater clarity to staff. The respondent submits that there is no basis for a conclusion that the email itself was unreasonable.
The respondent submits that the applicant’s evidence in her statement dated
15 October 2021 is that it was a result of the impending issue of the vaccine mandate, and that she would have to be vaccinated, that upset her as a result of which she began to suffer the symptoms listed in the statement. That was as a result of actions taken by the government and not taken by her employer.
The respondent refers to the applicant’s belief in her statement that the mandatory Covid vaccination cannot be justified, impinging as it does on her rights and liberties that exist in Australia. The respondent also refers to the applicant’s support to the alternative to Covid-19 vaccine, being testing, a matter discussed in Shah and noted as not being in compliance with the Public Health Order.
The respondent refers to the applicant’s evidence in her statement dated 24 March 2022 that the entire situation has caused her severe emotional and financial distress because of her decision to remain unvaccinated due to personal and medical reasons. The respondent submits that the applicant is here giving very clear evidence that what had upset her was the requirement, that is, the extraneous factor that the respondent was bound by the Public Health Order to enforce.
In respect of the applicant’s submission that there ought to have been consideration to her to work in a fully remote role, the respondent submits that:
(a)    in accordance with [4.2] of Determination 1 (referred to in [10] above), all employees would be required to work on site;
(b)    although the applicant had worked remotely for a time, as had many teachers, by the time of these events school was back;
(c)    in response to the applicant’s submission that there ought to have been consideration given by the respondent to the applicant working in a fully remote role, there is no evidence to suggest that the applicant asked if it might occur or if it would have been accommodated, and
(d)    Dr Wood addressed this contention in his evidence when he said that even for students who were working from home, most of the respondent’s employees worked from a school site[27], and that when students returned to in-classroom learning, it was generally the case that they had in-classroom instruction.[28]
[27] T1 p 29.10 – 29.25.
[28] T2 p 36.30.
The respondent then draws attention to the email to the applicant dated 14 January 2022 advising the applicant of the cessation of her temporary employment as of 8 November 2021, and that a decision had been made not to progress an investigation into the applicant’s failure to attest her vaccination status.[29]
[29] ARD p 91.
The respondent submits that the effect of the chronology of events outlined above means that there is no basis for a conclusion that the cause of the applicant’s distress and illness was any action taken by her employer. The respondent acknowledges that this is a somewhat unusual submission, which is almost made in the alternative in that it assumes that the s 11A issue only arises if the respondent is not successful on what it says is the primary issue, that is the applicant’s illness is not a result of anything that occurred at work. It occurred as a result of something that was extraneous to work, and something that everyone was faced with. The respondent acknowledges and accepts that the applicant was clearly distressed by the mandate, and has provided detailed evidence about how it affected her in many ways, but the cause of the distress was not anything done by her employer.
The respondent deals with the s 11A defence it relies on by noting that it is only relevant if it is not successful in its primary submission. In order to rely on such a defence, the respondent submits that it “…needs to assume that the Commission has managed to find some way in which it wasn’t [sic, was] action taken by the respondent that caused the distress”.[30] The respondent submits that what that action might be is difficult to discern.
[30] T2 36.15.
The respondent submits that there are two dates or key actions that could be looked at, both of which have no causative connection with the applicant’s distress. The first of these is
27 August 2021. The respondent relies on the appropriateness of this email as outlined above. The respondent submits that the impending announcement of the Premier was a very significant development, and that it took the initiative to send an email, albeit with eight minutes to spare, saying that “…we wanted you to hear this from us…”, and those words featured in the email. The respondent submits that a finding that this email had been the cause of all of the applicant’s distress would be quite remarkable and is at odds with the applicant’s own evidence. In any event, the respondent submits that if such were the finding of the Commission, then it could hardly be doubted that the action was reasonable, and in identifying a criteria in relation to s 11A says that this communicates an expectation with respect to discipline. It indicates in a very general way what is coming, although the email is not more specific because the mandate was not to be introduced for more than a month.
Thereafter, the respondent submits that actions taken by it as the applicant’s employer do not progress until November when Mrs Dawking receives the notification that there is a problem with her failure to identify her vaccination status. By that time, the Public Health Order had been introduced, on 23 September 2021, but the applicant’s own statement is dated 15 October 2021. The respondent notes that all of the distress suffered by the applicant and all of the various ways listed in that statement in which it affected her had arisen by then. It is therefore difficult to see, according to the respondent, a way in which the subsequent correspondence with the applicant after that date about the possible termination of her employment could be said to cause her distress. In any event, the respondent submits that in respect of the subsequent emails, the decision to terminate the applicant’s employment was reasonable because of her unwillingness to physically attend at a school. The applicant was terminated because she failed to attest that she was vaccinated.

Applicant in response

The applicant submits that the respondent is attempting to split its case when it submits on the one hand that its actions in sending the email at 10.52 am on 27 August 2017 to all school-based staff was appropriate and respectful, and on the other submitting that the email and its contents does not arise out of employment. The applicant concedes that the email preceded by a short time the announcement by the Premier at 11.00 am that day, but says that is not important. What is important is that the email is from the respondent to all school based staff foreshadowing the Premier’s announcement that all public school and preschool staff will have to be vaccinated. That email arises out of the applicant’s employment and was sent to her in the course of her employment. It states that mandatory double dose of all vaccinations will be required of all school based staff from 8 November 2021. That is what confronted the applicant.
The applicant submits that there is no mention at that stage about anything to the contrary being considered, including such as religious exemptions. The intrinsic error in the email according to the applicant is what is disclosed by the Public Health Order issued
23 September 2021, and the definition therein of “relevant work”, that is, work at a government school or a non-government school. That did not include a teacher working remotely, or otherwise not required to attend a school, or who was involved in doing policy or curriculum work. That is the basis of the applicant’s case.
What the applicant relies in her case is the implementation of the Public Health Order, and the way in which it was presented to the applicant. This becomes clearer in the subsequent documents sent to the applicant when she is threatened with disciplinary action and potential termination of employment if she is not double vaccinated. No exemptions are considered apart from medical contraindication. Instead, the applicant was sacked from her employment.
The applicant submits that was with what she was faced with on 27 August 2017, it was not surprising that it was disturbing to her, and she reacted to it in the manner described by her, which is conceded by the respondent.
The applicant submits that for the respondent to suggest that it was forced to take the approach that it did on 27 August 2017 and thereafter to implement the Public Health Order indicates that it did not take any reasonable action. No thought was given to steps that could have been taken for the relatively few teachers who were not double vaccinated other than to threaten disciplinary action and issue the threat of dismissal. The applicant also notes that no special leave provisions were made available to such teachers.

FINDINGS AND REASONS

Injury

In the ARD the applicant pleads the date of injury as 27 August 2021 to 6 September 2021. In the s 78 notice dated 31 October 2021 issued to the applicant by Allianz, the date of injury is specified as 27 August 2021.[31] The applicant presented her case at the hearing on the basis of the effect that receipt of the email from the respondent at 10.52 am on
27 August 2021 had on her, and the symptoms that she experienced as a result.
Mrs Dawking gives extensive details of her symptoms in her three statements dating from
15 October 2021 referred to above at [19]. In the last paragraph of the statement dated
[31] ARD p 56.
15 October 2021 she says that she has been totally incapacitated for work as a result of events arising out of, or in the course of her employment, from 27 August 2021 and that the feelings are increasing and compounding.
There are certificates of capacity/fitness in evidence from both the applicant’s treating psychologist, Muhamad Ziedni,[32] and general practitioner, Dr Leslie Vago,[33] in all of which the date of injury is specified as 27 August 2021. It is not clear from these when the applicant first consulted Dr Vago, but Dr Rastogi records in his report dated 23 December 2021 that Mrs Dawking saw her general practitioner who issued a referral to a psychologist, and diagnosed an acute stress reaction. Muhamad Ziedni’s initial certificate of capacity is dated
[32] ARD pp 28-33.
[33] ARD pp 37-52.
12 October 2021 containing the comment that the client “…SUFFERS FROM ACUTE STRESS REACTIONS/DISORDER IN RELATION TO THE CURRENT COVID 19 RESTRICTION AND MANDATORY VACCINATION COMMENCING ON 27/08/2021 AND CONTINUING”.
Dr Rastogi diagnosed the applicant as suffering from adjustment disorder with anxious distress. He said that she was a highly functioning person who took pride in her job, and her self-worth and self-esteem was enmeshed with her job. Dr Rastogi went on:
“She developed heightened anxiety with adjustment disorder following coercive emails doing COVID pandemic to receive vaccination with mandate enforced that she was concerned given her medical condition and uncertainty causing career threats and uncertainty.”
The respondent has not produced any medical evidence in the proceedings, either to put in issue injury per se, or in support of its defence to the claim under s 11A of the 1987 Act. It does place in issue the matters set out in [11] above, including:
(a)    whether the applicant had sustained a psychological injury as required by
s 11A(3) of the 1987 Act;
(b)    whether the injury arose out of or in the course of employment, s 4 of the 1987 Act, and
(c)    whether the applicant’s employment was a substantial contributing factor to the injury, s 9A of the 1987 Act.
Based on the medical evidence tendered by the applicant, I am satisfied on the balance of probabilities that she sustained psychological injury arising out of or in the course of her employment as claimed by her. She commenced to suffer this injury with the receipt of the email from the respondent at 10.52 am on 27 August 2021. I accept the applicant’s submissions in respect the receipt of injury arising out of or in the course of her employment referred to in [61] above. The injury was having a significant impact on her psyche by the time she consulted her general practitioner who referred her to a psychologist for treatment.
I think that at least part of the reason that Mrs Dawking suffered such a reaction to the email is touched upon by Dr Rastogi when he says that she was a highly functioning person who took pride in her job, and her self-worth and self-esteem was enmeshed with her job. The content of that email, and whether or not it was strictly accurate in content, will be discussed hereunder when the s 11A issue is dealt with.
I find also that the applicant’s employment was at least a substantial contributing factor to injury. The applicant in her oral submissions asserted that there was no submission from the respondent by way of any material evidence that her employment was anything other than a substantial and indeed, main contributing factor if need be, for the occurrence of her psychological condition.[34] When asked as to which of these the applicant relied upon, counsel for the applicant said that it was probably the main contributing factor, but the submission was put in the alternative.
[34] T2 p 12.30 – 13.10.
In my view the evidence supports a finding that the applicant’s employment with the respondent was a substantial contributing factor to injury. That issue is raised in the s 78 notice. Dr Rastogi in his report refers to:
(a) the applicant suffering anaemia;
(b) the applicant being in a fragile mental condition, and
(c) a previous psychiatric history of adjustment disorder with anxiety associated with a work related back injury in 2012 for which Mrs Dawking received psychological counselling and conservative treatment for pain, and that after 12 months off work returned to pre-injury functioning.
Mrs Dawking was also caring for her husband who was unwell. There is insufficient evidence to suggest that the claimed injury of 27 August 2021 was an aggravation, acceleration, exacerbation or deterioration of a disease, the main contributing factor to which was the applicant’s employment with the respondent (s 4(b)(ii) of the 1987 Act). When consideration is given to the kinds of matters that can be taken into account for the purposes of a determination of substantial contributing factor listed in s 9A(2) of the 1987 Act, it is clear that the applicant’s employment was a substantial contributing factor to injury.
The applicant’s submission, put in the alternative, that her employment was the main contributing factor to the onset of her condition was reliant as, I understand, on s 4(b)(i) of the 1987 Act, that is, a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease. It was submitted by counsel “…in the alternative to overcome 9A and 4(b)(ii)…” I accept that there is sufficient evidence to support a finding that employment was the main contributing factor to the contracting of a disease.

Section 11A

At [88] in Hamad, Deputy President Michael Snell said:
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
In this case I have found that the applicant’s injury arose out of or in the course of her employment, and that employment was the main contributing factor to such injury. The respondent has not produced any medical evidence to show that the action that it claims it took with respect to discipline, reasonable or otherwise, was the whole or predominant cause of injury. Dr Rastogi finds otherwise, although it is conceded that this is a “…very bland” statement on the part of the doctor. However, there is no medical evidence to the contrary, and the fact is that the applicant was so affected by the email of 27 August 2021 that she ceased work by 6 September 2021, the date to which injury is claimed in the ARD. Weekly benefits are claimed therein from 7 September 2021.
In my view, there is insufficient evidence for the respondent to show, on the balance of probabilities, the applicant’s injury was caused by action it took, with respect to discipline.

Was the respondent’s action reasonable?

In the event that I am in error in my finding on the s 11A issue, and in deference to counsel’s submissions, I will address this issue.
The action relied upon by the respondent with respect to discipline commenced with the email at 10.52 am on 27 August 2021, eight minutes only before the anticipated announcement from the Premier. One wonders how many teachers in fact would have read the email prior to the announcement, and the efficacy of sending it such a short time beforehand. Indeed, there was no evidence in respect of the Premier’s announcement itself; it was assumed in submissions by the respondent that such was the case. The applicant simply says in her statement that she “…became aware of…” the Public Health Order on
27 August 2021.
The applicant’s employment as a temporary teacher “…was ceased as of 8 November 2021”.[35] That would appear to be the culmination of the disciplinary action asserted by the respondent.
[35] ARD p 91.
The problem with the email of 27 August 2021 was highlighted by the applicant in submissions. It conveyed what subsequently transpired was a somewhat erroneous message in respect of vaccination requirements. It included the following:
“For this reason, today the Premier is expected to announce that – as with the aged care and health sectors – mandatory double doses of vaccinations will be required for all public school and preschool staff from 8 November.”
The applicant correctly submits that, rather than there being a problem with the Public Health Order issued by the government, it was the implementation of that order by the respondent that was significant in her case, and which was the cause of her injury.[36] The Public Health Order was issued on 23 September 2021. It provides that:
“relevant work” means the following work –
(a) work at a government school or non-government school,”
The email simply referred to the requirement for mandatory double doses of vaccinations required for all public school and preschool staff from 8 November 2021. It took no account of teachers who may not have been at schools.
[36] T2 pp 41.30 - 42.05.

The applicant submits that no consideration was given in the disciplinary process on which the respondent relies to:
(a)    the applicant continuing to work remotely and teaching pupils at a school;
(b)    redeploying unvaccinated teachers such as the applicant in non-teaching roles such as curriculum development, policy development or even on the School of the Air;
(c)    the fact that the pandemic would not last indefinitely, and that suspension from employment for unvaccinated teachers rather than cessation thereof was an option;
(d)    the long term effects on a teacher dealt with by way of disciplinary action as opposed to the short term nature of the restrictions, noting that these were eased in December 2021;
(e)    the denial of any special leave provisions for unvaccinated teachers, and
(f)    the fact that the only reason a teacher could escape the consequences of not being double vaccinated was to submit a medical contraindication.
The foregoing matters are asserted by the applicant in the context of there being a relatively few non-vaccinated teachers, in the order of hundreds, as opposed to the over 50,000 vaccinated teachers.
Dr Wood was cross-examined about these matters. His evidence is summarised above.
Dr Wood was not able to give an explanation as to why no special leave provisions were made available to those who refused to comply with the Guidelines, but deferred to colleagues in the People Group Department. In respect of [8.9] of the Guidelines dealing with disciplinary action including termination of employment, he referred to other groups within the organisation, including the Professional and Ethical Standards group, responsible for disciplinary matters, and Workplace Relations, responsible for industrial relations. His role as Executive Director was to coordinate those various groups across the organisation so that there was a coordinated response. Mr Daryl Currie was responsible for disciplinary matters.
In respect of allowing teachers to continue to work remotely as they had been doing for the previous 12 to 18 months, Dr Wood said that was not a decision that was within his authority, but said that the current way in which they supported students who were working from home was that most employees worked from a school site. He went on to say that from a logistic point of view, teachers could have continued to work from home, but that in terms of the professional support supervision and the range of other things that were also part of their employment, there were reasons why the Department’s employees worked from a school site, to be supported by that range of things. He confirmed that the vast majority of the Department’s staff work in schools. Dr Wood could not answer why employees working in areas such as curriculum development were required to be double vaccinated, even though they were working from home.
In respect of the anticipated duration of the pandemic Dr Wood said that thought was given in his committee as to how long the pandemic was going to continue. Policies and procedures that were put in place to support schools at particular points in time were not necessarily given end dates. Policies were revised as circumstances changed.
In respect of disciplinary action of a teacher’s record Dr Wood said that if a person’s employment was terminated as a result of disciplinary action, that would remain as such on that person’s record, and could not be erased over time. In that circumstance, opportunities for re-employment would depend on the level of detail around conduct and performance. He could not comment on employment conditions and hiring policies of the independent or Catholic school sector. In respect of the easing of restrictions in December 2021, Dr Wood said that as of May 2022 it was his understanding that there was a change of approach by the Department to people who were not double vaccinated, and that he was aware that teachers were being directed to work at schools even though they were not double vaccinated.
The applicant submits that a Jones v Dunkel inference should be drawn against the respondent for the failure to call Mr Currie to give evidence as to why the disciplinary matters with which she was threatened were put in place. I think that it is reasonable to draw that inference, that is, that his evidence would not have assisted the respondent. That was conduct that required explanation, and there may well have been an explanation available. However, on the face of it, the threat of calling the police if staff were found to be, or suspected of being, in breach of the Public Health Order ([8.8] of the Guidelines), and of disciplinary action ([8.9] of the Guidelines) does appear somewhat draconian in the context of employees suddenly being faced with the situation of a pandemic through no fault of their own, with serious consequences to their livelihood. Mr Currie was available to be called, apparently had a close knowledge of the facts in respect of disciplinary action, and it might reasonably have been expected that he have given such evidence.
I do have regard to the fact that the respondent was dealing with a very serious threat to the health of a large number of its employees and students in the context of a worldwide pandemic, the scale of which had not apparently occurred for over a century. There was no evidence to this effect in the proceedings, and no submissions were forthcoming from the parties as to the seriousness and scope of the pandemic, but I think that I can take notice of it. Dr Wood did give evidence that the Department was dealing with a serious and rapidly evolving situation when explaining why the email of 27 August 2021 was issued. However, the onus is on the respondent, and for the reasons I have outlined above, I find that the actions taken by the respondent with respect to discipline were not, in the circumstances of this case, reasonable.

Incapacity/entitlement to s 60 expenses

Although the respondent formally put these matters in issue in the s 78 notice dated
26 October 2021, it has not put on any evidence to suggest that the applicant has any current work capacity for any employment. Dr Rastogi in his report dated 23 December 2021 says that Mrs Dawking remains unfit for work given her current mental state, that she remains vulnerable and that her grievances need to be addressed with vocational clarity. Looking to the future, the doctor says that her ability to resume work will be dependent in response treatment over the following six months as well as getting support from her employer to reintegrate back to work. She had taken long service leave to help her with this reintegration.
The latest certificate of capacity in evidence, from Dr Vago dated 3 May 2022, contains certification that Mrs Dawking has no such capacity until 9 June 2022.
The respondent made no submissions in respect of the entitlement of the applicant to an award for weekly benefits compensation in the event that she was successful on the issue of the respondent’s liability for such an award.
In the absence of evidence to the contrary, the applicant is entitled to an award in her favour pursuant s 36 of the 1987 Act from 7 September 2021 to 6 December 2021 and from
7 December 2021 to date and continuing pursuant to s 37.
Pre-injury average weekly earnings are agreed at $1,722.60, 95% of which is, for the purpose of s 36(1) $1,636.50, and 80% of which is, for the purpose of s 37(1) $1,378.10. The applicant is entitled to an award in her favour for these sums.
It follows that the applicant is entitled to an award in her favour pursuant to s 60 of the 1987 Act.

SUMMARY

The applicant sustained psychological injury on 27 August 2021 arising out of or in the course of her employment with the respondent.
The applicant’s employment with the respondent was the main contributing factor to injury.
The injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent in respect of discipline.

The applicant has had no current work capacity for any employment since
7 September 2021.
The respondent is to pay the applicant weekly benefits compensation as follows:
(a) $1,722.60 per week from 7 September 2021 to 6 December 2021 pursuant to
s 36(1) of the 1987 Act, and
(b) $1,378.10 per week from 7 December 2021 to date and continuing pursuant to
s 37(1) of the 1987 Act.
The respondent is to pay the applicant’s costs and expenses pursuant to s 60 of the 1987 Act.

[2022] NSWPIC 611

3 November 2022