Georges v Barnardos Australia

[2025] NSWPICPD 61

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Georges v Barnardos Australia [2025] NSWPICPD 61
APPELLANT:	Rebecca Georges
RESPONDENT:	Barnardos Australia
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W28929/24
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	1 September 2025
ORDERS MADE ON APPEAL:	1.    The Certificate of Determination dated 6 March 2025 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – psychological injury – COVID-19 vaccine mandate – psychological injury wholly or predominantly caused by reasonable action taken by the employer in respect of discipline under section 11A of the 1987 Act – Martsoukos v Secretary, Department of Education [2024] NSWPICPD 85 distinguished
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr D McCabe, solicitor
McCabe Partners Lawyers
Respondent:
Mr J Hart, counsel
Hall & Wilcox Lawyers
DECISION UNDER APPEAL:	Georges v Barnardos Australia [2025] NSWPIC 74
SENIOR MEMBER:	Ms K Haddock
DATE OF MEMBER’S DECISION:	6 March 2025

INTRODUCTION

1. This is yet another matter involving a dispute about the development and application by an employer of a COVID-19 vaccination mandate.

2. Rebecca Georges (the appellant) was employed by Barnardos Australia (the respondent) as a co-ordinator of its home interaction program for both parents and young children in the New South Wales south coast. This was known as the “HIPPY” program. The appellant commenced employment with the respondent in 2010.

3. In February 2021 the appellant went on maternity leave. This period coincided with the COVID-19 pandemic. At the time that the appellant embarked on maternity leave, it was envisaged that she would return to work in or about March 2022. During this period, the respondent had commenced a process of consultation with its staff about the development and implementation of a vaccination policy. This resulted in a policy entitled “COVID-19 Vaccination Policy”[1] (policy) first becoming operative on 8 December 2021.[2] The policy inter alia required staff to be fully vaccinated unless they gained an exemption under the policy.

   [1] Reply to Application to Resolve a Dispute (reply), p 35.

   [2] Reply, p 50, [14] “Version control and change history”.

4. The appellant was opposed to being vaccinated. The appellant applied for an extension of her maternity leave, an additional year, in the hope that the requirement for vaccination might change. This request was granted by the respondent. Over time, both the appellant and respondent had various exchanges, by telephone, email and correspondence, about the vaccination mandate, but they were not able to resolve the matter. Ultimately, the appellant’s employment was terminated on 17 October 2023.[3] This process is more fully set out in the Senior Member’s decision (see below).

   [3] Application to Resolve a Dispute (ARD), p 153.

5. The appellant alleged that:

   “My psychological injury resulted from my employer’s coercion and discrimination in order to receive the vaccination, as they made it a mandatory requirement of my employment and provided no support to me.”[4]

   [4] Appellant’s statement dated 14 March 2024, ARD, p 12, [9].

6. The appellant submitted a claim for workers compensation, signed 30 April 2023, stating that her psychological injuries were due to the respondent’s vaccination requirements.[5] By a notice dated 29 June 2023, issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent’s workers compensation insurer declined the claim for the reasons set out therein.[6] A second s 78 notice was issued on 20 September 2023 which affirmed the earlier decision.[7] For the purposes of this appeal, relevantly the s 78 notices relied on the provisions of s 11A of the Workers Compensation Act 1987 (the 1987 Act), stating that the respondent’s actions were reasonable with respect to discipline and/or the provision of employment benefits.

   [5] ARD, p 115.

   [6] ARD, p 169.

   [7] ARD, p 175.

7. The appellant then lodged an application in the Personal Injury Commission (Commission).

8. The matter was heard on 11 February 2025. In a decision dated 6 March 2025, a Senior Member of the Commission found in favour of the respondent and the appellant now appeals that decision.

ON THE PAPERS

1. Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) 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.”

2. Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, 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

1. 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 1998 Act have been met.

THE EVIDENCE

1. In order to save repetition, I am only going to extract evidence not otherwise detailed in the Senior Member’s reasons. However, the COVID-19 Vaccination Policy[8] is an important document so I therefore extract below the salient aspects of that document.

   [8] Reply, pp 35–51.

   “COVID-19 Vaccination Policy

   1.      Purpose

   The purpose of this Policy is to set out Barnardos commitment to continually strive towards a safe and healthy working environment, including taking all reasonably practicable steps towards protecting Workers from the risk of COVID‑19 transmission and infection. Barnardos must also try to protect the health and safety of the people we support and interact with through our services.

   …

   2.      Guiding Principles

   The following principles underpin the Vaccination Policy and its administration:

   ·     Safety and wellbeing being a priority focus

   ·     Government directives, mandates and health orders will be observed

   ·     A culture of care will prevail through the conscious application of our values

   ·     We will engage in open dialogue and genuine consultation with employees and all key stakeholders

   ·     We will empower employees with communication and education

   ·     Decisions founded on due diligence, evidence and hearing the voices of our people

   ·     Lead with people and policy in harmony

   ·     Taking into consideration the children, families and communities we work with.

   3.      Scope

   This policy applies to Workers (see definition below) who are engaged by Barnardos as well as children, young people and their families, authorised carers, service delivery partners, other agency workers and visitors.

   The interim policy position previously adopted for Clients (see definition below) will remain unchanged with a view to updating this Policy when the position is clear and endorsed by the Executive Leadership Team.

   It is the responsibility of every person within this scope to ensure they comply with this Policy.

   Failure to adhere to this Policy along with supporting procedures and government public health orders, may lead to a direction to not attend work or be engaged and/or disciplinary action up to and including termination of employment/engagement. (emphasis added)

   …

   5.      Policy Statement

   …

   The risks of COVID-19 have presented the need to consider comprehensive measures to protect Workers, Clients, Visitors and others and provide a safe environment for Workers to work together and provide services to the Clients they serve and ensure business continuity.

   Barnardos has a duty of care to ensure, as far as reasonably practicable, the health, safety and welfare of Workers, Visitors and others at work and those affected by their work. In relation to COVID-19, this means Barnardos is required to manage the risk of COVID-19 to Workers, Clients and Visitors in the work environment. Vaccination helps reduce the risk of COVID-19 infection to help protect Workers, Clients and Visitors. In line with advice from the Australian Technical Advisory Group on Immunisation (ATAGI), it has been found that initial protection is reduced, and increased waning is evident following Primary COVID‑19 Vaccination Dose (usually 2 doses).

   Barnardos has a diverse and geographically spread workforce providing services to the community, including the most vulnerable. There is frequent contact between frontline Workers and support and enabling functions of Barnardos in the delivery of services. We also have contractual obligations to meet with our funding bodies to ensure we are compliant. We want to ensure organisational consistency, as far as reasonable and practicable in the policies we develop, to ensure we create a positive and collective culture between frontline Workers and support and enabling functions.

   …

   7.      Vaccination Management

   A. Vaccination Evidence

   All Workers are required to provide Vaccination Evidence acceptable to Barnardos of Primary COVID-19 Vaccination Dose Status and for Disability Workers, Up-To-Date Vaccination Status. Barnardos will accept for these purposes, a copy of the Worker’s COVID-19 Digital Certificate or alternatively the Immunisation History Statement (as long as the IHI number has been blacked out for privacy reasons). This Vaccination Evidence can be obtained through Medicare via the MyGov account, Service NSW app or the Check In CBR app.

   …

   C. Requests for Exemptions

   i. Medical Reason

   Barnardos understands that some current Workers and prospective Workers may have medical conditions preventing vaccination as determined by an Authorised Medical Practitioner for which there is a recognised Medical Contraindication.

   Any Worker who has a medical condition preventing them from being COVID-19 Vaccinated is required to provide medical evidence by an Authorised Medical Practitioner, satisfactory to Barnardos, of the medical condition and the reason for which they are unable to receive the recommended Primary COVID-19 Vaccination Doses or in the case of Disability Support Workers, the recommended dosage to maintain Up-to-date Vaccination Status.

   Medical Evidence provided must clearly identify the medical condition and specify that the Worker's medical condition gives rise to a Recognised Medical Contraindication in respect of all Approved Vaccines. Barnardos reserves the right to contact the issuing Authorised Medical Practitioner to verify the authenticity of any such Medical Evidence and clarify any details in line with the organisation’s duty to maintain a healthy and safe workplace.

   ii. Other Reasons/s

   Any Worker who is unable to receive their Primary COVID-19 Vaccination Doses for any other reason, including by reason of a sincerely held religious belief, religious practice or religious observance, must email their Manager and notify HR via email at [email protected].

   Requests for exemption from the requirement to receive Primary COVID-19 Vaccination Doses or in the case of Disability Support Workers to maintain an Up-to-date COVID-19 Vaccination Status will be considered by Barnardos on a case-by-case basis via completion of an Individual Risk Assessment and will be assessed having regard to:

   ·     the basis for the request (e.g., temporary or permanent Medical Contraindication or other grounds) and relevant supporting information;

   ·     the nature and requirements of the Worker's role, including whether there is likely to be interaction with members of the public or people with vulnerabilities in connection with their employment;

   ·     the risks of exposure (for the Workers and Clients) to COVID-19; and

   ·     the overall purpose and scope of the Policy.

   Workers should immediately raise their concerns if unable to comply with the requirements of this Policy for consideration and consultation.”

THE SENIOR MEMBER’S REASONS

1. The dispute before the Senior Member pertained to whether the respondent had a defence to the claim pursuant to s 11A of the 1987 Act. The respondent relied primarily on its action with respect to discipline, but also relied on its action with respect to the provision of employment benefits.

2. The Senior Member referred to the appellant’s evidence in her statements dated 16 November 2022, 14 March 2024, 30 April 2024, 5 August 2024 and 15 November 2024.[9] The appellant commenced maternity leave in February 2021 and was due to return in March 2022. During this period the respondent commenced enforcing COVID-19 vaccinations requiring all employees to be double vaccinated in order to return to work.[10]

   [9] Georges v Barnardos Australia [2025] NSWPIC 74 (reasons), [38]–[81].

   [10] ARD, p 12.

3. The appellant says she was advised of the respondent’s intended policy in both October and December 2021. This made her “anxious about my continued employment.”[11] She was requested to read the policy as it applied to “all workers”. The appellant responded that she had no questions and would “reach out to [the policy manager] in the future.”[12]

   [11] ARD, p 23.

   [12] Reasons, [64].

4. As the appellant was against the COVID-19 vaccine and her return to work date was looming, she requested an extension of her unpaid parental leave until March 2023. Her request was approved by letter from the respondent dated 17 February 2022. The contents of the letter were summarised by the Senior Member at reasons [133]. The letter stipulated that although the extension of leave was approved, the appellant’s employment was conditional upon being fully vaccinated prior to returning on 10 March 2023.[13] The appellant says extending her leave was her only option as she believed her employment would be terminated if she returned to work on 10 March 2022.[14]

   [13] ARD, p 147.

   [14] Reasons, [67].

5. The appellant says it was at this time she experienced symptoms of irritation from sudden noise, being snappy and cranky at home and her anxiety levels increased. She says she felt discriminated against by the respondent and was under duress to receive the vaccinations if she wanted to continue her employment.[15]

   [15] Reasons, [44]–[46].

6. The appellant says the respondent contacted her on 25 October 2022 regarding her impending return to work in March 2023.[16] It was at this time that her anxiety and depression had elevated to a point where she did not think she could return to work.

   [16] Reasons, [59].

7. The appellant first consulted Dr Khadka regarding anxiety and depression on 2 March 2023.[17]

   [17] Reasons, [60].

8. The appellant said that although the “pandemic ended in May 2022”, the respondent continued to deny her employment unless she was vaccinated. Her employment was eventually terminated on 17 October 2023. The appellant says that in terminating her employment, the respondent did not take into consideration the government had relaxed restrictions in May 2022. She said the threats of termination caused her distress and depression and there was no determination on the respondent’s part as to whether alternative work arrangements were available. She complains that the respondent had requested she provide a risk assessment to prove that she was not a threat to anyone in the workplace, which she asserts was impossible.

9. The appellant said that as a result of the respondent’s actions in regard to terminating her employment, she suffered psychological symptoms.[18]

   [18] Reasons, [48]–[50].

10. The Senior Member considered the lay evidence of the respondent, including the statements from Ms Sharon Dolan, who was head of HR design, standards and systems,[19] and the respondent’s centre manager, Maria Corsiglia.[20]

    [19] Reasons, [82]–[114].

    [20] Reasons, [115]–[123].

11. Ms Dolan states that in October 2021, the policy consultation process commenced. The appellant was emailed details of the proposed policy and was invited to be involved in the process. Staff were emailed a survey, and a subsequent reminder email was sent to staff on 28 October 2021.[21]

    [21] Reasons, [100].

12. Ms Dolan states the results of the survey were published on 9 November 2021 and a link to the information was provided to staff. On 8 December 2021 the policy was published online and sent to all staff, which required all staff to have their first vaccination by 17 January 2022.[22]

    [22] Reasons, [102].

13. Ms Dolan states the respondent regularly reviewed the policy and made appropriate updates.[23] She states the appellant had been invited to participate in the consultation process during October 2021 to December 2021 and they had communicated with the appellant during the time she was on parental leave noting the requirements to be vaccinated.

    [23] Reasons, [84].

14. Ms Dolan states that two weeks prior to the appellant’s expected return date in March 2023, they became aware the appellant was still unvaccinated. A formal direction to comply with the policy was therefore sent to the appellant on 27 February 2023. The Senior Member summarised the direction to comply at reasons [135]–[140]. The direction to comply set out that it was a condition of the appellant’s employment to be fully vaccinated and was a requirement of the policy. The appellant was given seven days to comply with the policy, or, in the event she was unable to be vaccinated due to medical or other reasons, she was required to provide reasons why.

15. Ms Dolan stated that on 2 March 2023 she received an email from the appellant, however it did not contain any submissions with respect to an exemption. The Senior Member summarised the contents of the appellant’s email at reasons [141]–[145]. The respondent placed the appellant on unpaid parental leave due to non-compliance with the policy and discussions continued. Ms Dolan said what followed was a request from the appellant to work from home two days a week as she had not organised childcare.[24]

    [24] Reasons, [108].

16. On 14 April 2023 a letter titled ‘Non-Compliance with Vaccination Policy – Individual Risk Assessment Consultation was sent to the appellant. The Senior Member summarised the contents of the letter at reasons [146]–[154]. The letter noted that as the appellant had indicated she was not intending to be vaccinated, the matter had been progressed and requested the appellant to complete an individual risk assessment “in order to better understand your personal circumstances and assess the risk level posed by this.”[25] The risk assessment was attached to the letter and a meeting was scheduled for 26 April 2023. The letter invited the appellant to suggest ideas of what she considered to be reasonable and practical steps that could be taken to minimise the risk of exposure to and the passing of COVID-19 in her role.

    [25] Reply, p 66.

17. Ms Dolan states the appellant’s role required her to attend various locations approximately 50% of the time and the remainder was office based which could mostly be done at home.[26] The appellant failed to participate in the risk assessment process which resulted in an inability to move forward and ultimately the termination of the appellant’s employment.

    [26] Reasons, [97]–[98].

18. The Senior Member referred to Ms Corsiglia’s statement noting an overlap with Ms Dolan’s evidence.[27] Ms Corsiglia states she explained the risk assessment to the appellant and that it would be conducted with HR to determine whether she could return to her workplace while unvaccinated.

    [27] Reasons, [115]–[123].

19. Ms Corsiglia said she contacted the appellant in February 2023. The appellant informed her she wished to return to work, however she was unvaccinated and had no intention of doing so. She requested to work her full 24-hour working week from home as she did not have childcare.

20. The Senior Member summarised the treating and expert medical reports at reasons [167]–[226].

1. The Senior Member considered the appellant’s submissions from reasons [257]–[272]. The appellant submitted that although COVID-19 restrictions had relaxed by 2022, the respondent’s policy had not. The appellant submitted that return to work discussions occurred over a twelve-month period, and she had done all that was needed of her, however the respondent “shut the gate”[28] by issuing a formal direction which eventually led to the termination of her employment.[29]

   [28] Transcript (T) of Proceedings dated 11 February 2025, T 32.5–28.

   [29] Reasons, [259].

2. The appellant submitted it was not reasonable for the respondent to maintain its policy after the Public Health Orders in respect of teachers and carers of the aged and disabled children had been withdrawn in June 2022. The appellant submitted that during 2023, the respondent acted unreasonably by failing to think about the effect of the policy on a person-by-person basis, particularly in the appellant’s circumstance, a long-term employee who from as early as 2020 was running a successful program called the Lighthouse program, with four- and five-year-olds.[30] The appellant submitted the modifications made to the policy were only minimal such as a booster shot and isolation.[31]

   [30] T 36.6–15.

   [31] T 41.32–42.5.

3. The appellant submitted that although the deemed date of injury was 6 March 2023, part of her injury occurred well before any action by the respondent in respect of discipline.[32]

   [32] Reasons, [267].

4. The appellant submitted the respondent had failed to meet its onus under s 11A of the 1987 Act.[33]

   [33] Reasons, [269].

5. The Senior Member set out s 11A of the 1987 Act. She noted the respondent primarily relied on its action with respect to discipline but also relied on its action with respect to the provision of employment benefits.

6. In considering whether the appellant’s injury was wholly or predominantly caused by action taken by or on behalf of the respondent with respect to discipline and/or the provision of employment benefits, the Senior Member considered Ponnan v George Weston Food Ltd[34] and Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd[35] noting that causation is a question of fact to be determined by the evidence in each case.

   [34] [2007] NSWWCCPD 92.

   [35] [2008] NSWWCCPD 96.

7. The Senior Member referred to the appellant’s evidence, noting her feelings of being depressed, snappy and increasingly anxious at the time she applied for an extension of her parental leave. The Senior Member noted the appellant had applied to extend her leave for a further year to avoid the requirement to be vaccinated.[36]

   [36] Reasons, [282].

8. The Senior Member noted that apart from one isolated reference to psychological symptoms on 6 July 2021, the appellant first consulted her treating GP, Dr Khadka, about anxiety and depression on 2 March 2023. The Senior Member noted that the isolated clinical record of 6 July 2021 related to struggles with wearing a mask rather than being employment related.[37] She noted the absence of reports from medical practitioners prior to March 2023.

   [37] Reasons, [283].

9. The Senior Member quoted from the decision of Snell DP in Hamad v Q Catering Ltd[38] in which the Deputy President discussed the need for medical evidence when dealing with the question of causation under s 11A(1) of the 1987 Act. The Senior Member noted the appellant relied on Dr Anand’s supplementary report in maintaining that her injury was not wholly or predominately caused by the respondent’s action.

   [38] [2017] NSWWCCPD 6 (Hamad).

10. The Senior Member set out her reasons as to why she did not accept Dr Anand’s opinion.[39] She noted Dr Anand, a consultant psychiatrist and neuropsychiatrist qualified by the appellant, first provided a report in September 2023 diagnosing the appellant with Adjustment Disorder with Mixed Anxiety and Depressed Mood. Dr Anand said the prominent cause of the psychological condition was “the constant coercion and discrimination” to receive the vaccination.[40] The Senior Member then referred to Dr Anand’s supplementary report dated 10 January 2025 where he said the diagnosed adjustment disorder with depression and anxiety existed as of 6 July 2021. The Senior Member was unconvinced by Dr Anand’s supplementary report finding it of “little assistance” as there was no mention in Dr Anand’s initial report of the diagnosis existing in July 2021, nor was there any medical evidence supporting a psychological diagnosis had been made in July 2021.[41]

    [39] Reasons, [287]–[293].

    [40] Reasons, [289]–[290].

    [41] Reasons, [291].

11. The Senior Member was ultimately satisfied that the appellant’s injury was wholly or predominantly caused by the respondent’s action with respect to discipline.

12. The Senior Member accepted that the appellant’s ability to perform all her duties at home, where she did not have to engage childcare services, was to be regarded as an employment benefit, however the respondent’s action with respect to the provision of such employment benefit was not causative of the appellant’s injury.[42]

    [42] Reasons, [295]–[296]

13. The Senior Member’s task then turned to whether the respondent’s action was reasonable.

14. The Senior Member referred to the principles of reasonableness in Irwin v Director General of School Education,[43] Northern NSW Local Health Network v Heggie[44] and Department of Education & Training v Sinclair,[45] noting the actions are not required to meet a counsel of perfection.[46]

    [43] Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068 of 1997, unreported (Irwin).

    [44] [2013] NSWCA 255 (Heggie).

    [45] [2005] NSWCA 465.

    [46] Reasons, [297]–[299].

15. The Senior Member rejected the appellant’s submission that the Public Health Orders were determinative in considering whether the respondent acted reasonably and said that “the fact that Public Health Orders may have been extinguished does not abrogate the right of an employer to make its own judgment and assessment of the risk it is prepared to accept in the environment in which it operates.”[47]

    [47] Reasons, [301]–[302].

16. The Senior Member noted it was not in issue that the respondent’s employees dealt with vulnerable people and the appellant had failed to establish the requirements of her role were to the contrary. She referred to Ms Dolan’s uncontested evidence that the appellant was required to attend community events and clients’ homes which exposed her to children.[48] The respondent had a duty to both its employees and its clients. The Senior Member referred to the appellant’s complaint that there were concerts and sporting events with “thousands of people jammed shoulder to shoulder” while she was not allowed to return to work. The Senior Member distinguished this from the appellant’s employment circumstance noting attendees of concerts had the ability to undertake their own assessment of the risk in deciding whether to attend a concert, unlike the clients of the respondent who were visited in their homes.[49]

    [48] Reasons, [304].

    [49] Reasons, [305].

17. The Senior Member referred to the appellant’s submission that the respondent’s review of their policy was merely a “bit of a touch-up”. The Senior Member concluded that the policy was reviewed, and it was open to the respondent to maintain its vaccine requirement.[50]

    [50] Reasons, [308]–[309].

18. The Senior Member referred to the chain of events that occurred between the appellant and the respondent during the appellant’s maternity leave. Ultimately, the Senior Member concluded that the respondent’s action with respect to discipline was reasonable. The Senior Member noted the respondent elucidated to the appellant that she was required to comply with the policy and be vaccinated to return to work, or otherwise, apply for an exemption. If she applied for an exemption, a risk assessment would occur to ascertain whether the appellant’s unvaccinated status could be accommodated. In February 2023, the appellant advised she was not vaccinated and that she had no intention of doing so. At this stage, the respondent proposed an individual risk assessment and requested the appellant attend a meeting. The Senior Member concluded the respondent had accepted the appellant did not intend to be vaccinated and this was the next step in the process. The Senior Member noted there was no evidence the appellant engaged in the process, she did not respond to the “show cause” letter, propose any reasonable adjustments nor did she attend the proposed meeting to discuss the risk assessment and gave no evidence of her decision not to do so.

19. The Senior Member said that because of the appellant’s actions, “[i]t is therefore impossible to ascertain whether the respondent would have been able to accommodate the [appellant] in returning to work whilst she was unvaccinated.” The Senior Member referred to Ms Dolan’s evidence that the respondent had been able to “make it work” with other employees.[51]

    [51] Reasons, [310]–[315].

20. The Senior Member noted the respondent consulted its staff prior to implementing the policy which it believed was best suited to protect its staff and clients. The appellant requested an extension of her parental leave to avoid having to be vaccinated so she was aware it was a condition of her employment to be vaccinated to return to work. The Senior Member said the respondent’s policy regarding vaccination had not changed and the Senior Member was of the view that it was reasonable for the policy to remain in force.[52]

    [52] Reasons, [316]–[319].

21. Finally, the Senior Member noted funding for the program would have been at risk had the appellant’s position not been filled.

22. The Certificate of Determination issued on 6 March 2025 records:

    “1.     There is an award for the respondent.”

GROUNDS OF APPEAL

1. The appellant argues the following five grounds of appeal.

   Ground One – Failure to consider the appropriate weight to be attached to statements of the respondent’s witnesses Sharon Dolan and Maria Corsiglia.

   Ground Two – Failure of respondent to adduce evidence of its COVID-19 policy as changed over time.

   Ground Three – The appellant had suffered injury before any actions by the respondent concerning discipline.

   Ground Four – Whether the actions of the respondent regarding discipline were “reasonable”.

   Ground Five – Whether the actions taken by the respondent were “reasonable” taking into account its grievance policy.

LEGISLATION

1. Section 11A of the 1987 Act relevantly provides:

   “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.

   3.      A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”

NATURE OF APPEAL

1. Since this appeal was filed, a five-member bench of the Court of Appeal delivered judgement in State of New South Wales v Culhana.[53] Culhana considered the nature of an appeal under s 352(5) of the 1998 Act, disapproving what had been the leading authority of Raulston v Toll Pty Ltd[54] on this question. The Court of Appeal rejected what it described as the ‘narrow’ view of the appellate function under s 352(5) of the 1998 Act that Raulston had provided, instead stating the following:

   “Future appeals under s 352 should apply the approach in Warren v Coombes and Fox v Percy. Appropriate deference is to be given to members where their findings are based on evidence in respect of which they have an advantage (such as the kind identified in Lee v Lee at [55]) over the Presidential member hearing an appeal. But it is not sufficient for an appeal to be dismissed on the basis that an inference was ‘open’ to the member, as if the member were a jury and there was some evidence supporting it. If the Presidential Member, after making appropriate allowance for the advantages enjoyed by the member, would reach a different conclusion on a question of fact, he or she should not shrink from giving effect to it. Otherwise, the Presidential member will be dismissing an appeal without fully addressing whether there is an error of fact, law or discretion.”[55]

   [53] [2025] NSWCA 157 (Culhana), 17 July 2025.

   [54] [2011] NSWWCCPD 25 (Raulston).

   [55] Culhana, [91].

2. After Culhana was decided by the Court of Appeal, I issued the following Direction dated 31 July 2025 to the parties in this matter inviting submissions as to the application of that decision to the issues in this appeal:

   “On Thursday 17 July 2025, the Court of Appeal handed down its decision in State of New South Wales v Culhana [2025] NSWCA 157 (Culhana).

   This decision addresses the correct approach regarding the nature of an appeal to a Presidential Member under s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

   The parties are invited to provide any supplementary submissions with respect to Culhana and its effect on this appeal as follows:

   1.     The appellant is to file and serve any supplementary submissions by no later than 4 pm on 7 August 2025

   2.     The respondent is to file and serve any supplementary submissions by no later than 4 pm on 14 August 2025.”

Appellant’s submissions

1. The appellant, with commendable alacrity, provided a set of supplementary submissions dated 1 August 2025 in response to the Direction. The appellant submitted the following.

2. As to Ground One:

   “6.     Ground 1 submissions refer to the failure of the Respondent (who bears the onus of proof to establish a defence under section 11A) to include attachments referred to in those statements and the failure of the Member to properly consider a submission on behalf of the Appellant that that failure derogated from the weight that could be given to those statements.

   7.      No witnesses were called to give oral evidence and no action was taken by the Respondent’s legal representatives to seek to have those annexures to the statements admitted into evidence.

   8.      Consistent with the decision in Culhana, the Presidential member is in the same position as the member and the member had no advantage in assessing the evidence. It is submitted that, consistent with Culhana, the Presidential member of appeal should consider the appeal by way of rehearing.

   9. It is submitted that, in considering the appeal by way of rehearing, the Presidential member should decide what weight should be given to the said statements. It is submitted that the Presidential member should not be satisfied that the Respondent has made out its defence under section 11A when the evidence it has submitted is deficient.”

3. As to Ground Two:

   “10.   Ground 2 of the Appeal refers to the failure of the Respondent to adduce evidence of changes to its COVID 19 Policy as it changed over time. All the Respondent did was to adduce the Policy extant as at February 2023, but not the versions of 2 December 2021 and 30 June 2022.

   11.    The [appellant] (see [reasons], para 2) relied upon incidents arising from her employment from 1 March 2010 to 6 March 2023. The Claim Form nominated an injury date of 27 August 2021 ([reasons] para 7) and evidence was adduced regarding events arising from the Appellant’s employment with the Respondent from February 2021 to 27 February 2023 (see [reasons] paras 43 to 76): it was therefore relevant on the question of ‘reasonable action’ to know what the Respondent’s Covid 19 Policies were as amended over time.

   12.    The member failed to consider changes in the Policy over time ([reasons] paras 162 to 166), despite the Respondent submitting ([reasons] para 239) that its vaccination policy WAS regularly review[ed] and implemented after consultation.

   13.    Consistent with the decision in [Culhana], the Presidential member is in the same position as the member and the member had no advantage in assessing the evidence. It is submitted that, consistent with [Culhana], the Presidential member of appeal should consider the appeal by way of rehearing.

   14. It is submitted that, as the Respondent has the onus to adduce evidence to satisfy its obligation to establish its section 11A Defence, the Presidential member should take into account the failure of the Respondent to adduce its relevant Covid 19 Policies which can form one basis to assess whether the Respondent’s actions were ‘reasonable’ for the purposes of section 11A. The section 11A defence should be rejected and the matter remitted to the member to determine what benefits are payable.”

4. As to Ground Three:

   “15.   Ground 3 of the Appeal points out an obvious error in the Member’s decision that the Appellant’s injury was (at least in part) suffered BEFORE any actions on the part of the Respondent regarding discipline or termination.

   …

   17. The Member needed to make a determination as to WHEN the Appellant was first injured because the Respondent’s reliance on section 11A depended on when it took actions concerning discipline or termination.

   18.    Consistent with the decision in Culhana, the Presidential member is in the same position as the member and the member had no advantage in assessing the evidence. It is submitted that, consistent with Culhana, the Presidential member of appeal should consider the appeal by way of rehearing.

   19. It is submitted that the Presidential member should apply the evidence before them of the Appellant and Dr Khadka’s contemporaneous records regarding the onset of the Appellant’s injury, not just accept that it was ‘open’ to the member to find injury occurred in late 2022 (based solely on a history recorded by Dr Fernando. The Respondent’s defence under section 11A should be rejected as its actions occurred AFTER the Appellant was already injured.” (emphasis in original)

5. As to Grounds Four and Five:

   “21. The Member dealt with this issue at [reasons] paras 297 to 325 and it is not suggested that the member erred as to the applicable law. However, the Member’s fact finding and exercise of discretion are also proper subjects for appeal pursuant to section 352(5) and the Presidential member should approach these questions consistent with Culhana, that is by way of a rehearing, unimpeded by any finding that the Member has made as the member had no advantage in considering the evidence.

   22.    It is submitted that the Presidential member should accept the submissions made in Grounds 4 and 5 and find that the Respondent has not established that its actions were reasonable taking into account that those actions did not even comply with its own policies.”

Respondent’s submissions

1. The respondent submits that the proper approach to this question is that as described by Leeming JA in Culhana at [91]. The respondent submits:

   “However, the two specific matters referred to by the respondent at paragraph [5] of [the respondent’s submissions on appeal] remain unaffected by Culhana. First, error must still be shown. The effect of Culhana is to simply expand the circumstances in which the President can correct such error. Second, parties are bound by the presentation of their case at arbitration, and no issues can be raised on appeal where those issues could have affected the course of the arbitration and have been met with additional responsive evidence.”[56]

   [56] Respondent’s submissions 14 August 2025, [4].

2. The respondent says that the application of Culhana would not affect the conclusion challenged in Grounds One, Two and Three. The respondent says that the appellant has not shown why the decision on appeal would be any different from that which the Senior Member decided.

3. With respect to Grounds Four and Five, the respondent puts the following:

   “The appellant simply submits that the President should accept the submissions made by her in respect of grounds 4 and 5. Those grounds of appeal are dealt with from paragraphs [29]–[42] of [the respondent’s submissions on appeal]. In short, the Policy was amended to consider changes to Public Health Orders and the Member did not take into account the terms of the Grievance Procedure because no submission was made by the appellant that the Member should have. In any case, even if the appellant was permitted to run this argument on appeal, there is no basis to infer that the Grievance Procedure applied to the circumstances of this case. As above, Culhana also does not affect the proper disposition of this ground.”[57]

   [57] Respondent’s submissions 14 August 2025, [14].

DISCUSSION

1. Before addressing each appeal ground in turn, I would make the following remarks about how I intend on approaching this appeal in light of Culhana. Firstly, no oral evidence was given in this matter before the Senior Member. This is not a criticism, indeed this is a very common occurrence in how first instance disputes are heard and determined in the Commission. There is no presumptive right for any party to require oral evidence, leave must be sought and granted by the presiding Member.[58]

   [58] Rule 34 of the Personal Injury Commission Rules 2021; Procedural Direction PIC 1, [38].

2. Secondly, as no oral evidence was adduced in this matter, the advantages that the first instance decision maker would usually have over an appellate body, by virtue of having heard such evidence, are in my view limited in this appeal. I am therefore in as good a position as the Senior Member was to consider the evidence and draw what I consider to be the correct inferences or conclusions if I consider that the Senior Member was in error. What this does not mean, is that I would substitute my own preferred outcome on a factual matter. Error still must be proven. However, I do not accept the appellant’s submission that I “should consider the appeal by way of rehearing.”[59] Notwithstanding the decision in Culhana, s 352(5) of the 1998 Act makes it plain that error is required and that the appeal is not a review or new hearing. The correct approach is as I have extracted (above) from the decision of Leeming JA in Culhana at [91].

DECISION

[59] Appellant’s supplementary submissions 1 August 2025, [8].

As to Ground One

1. The appellant makes the following accusation about the evidence relied upon by the respondent before the Senior Member. The appellant firstly refers to the statement of Ms Sharon Dolan signed 9 June 2023 and to the fifteen annexures referred to in the statement, which are designated SD1 to SD15. The appellant alleges it is untrue that the annexures referred to in the statement, can be found at Reply pp 18–70.

2. The appellant also complains about the absence of the annexure MC01 referenced in the statement of Ms Maria Corsiglia.

3. As a result of what the appellant obviously considers to be missing attachments to these two statements, the appellant submits the following:

   “6. The Personal Injury Commission must proceed on probative evidence, not left in a position when it must speculate on the contents of documents supposedly forming part of the evidence of a witness. It was the Respondent's obligation to discharge the onus of proof to establish the section 11A defence. The paucity of the Respondent's evidence from statements submitted in the Reply was not considered by the Member.

   7.      The weight that should have been attached to these statements, therefore must negligible (Dupas v The Queen (2012) 218 A CRIM R 307).

   8.      The Member proceeded to make a decision without probative evidence on the key question in the case: whether the Respondent has established a defence under section 11 A.

   9. The Member made an error of law, fact and discretion because the Respondent's witness statement should have been rejected. Therefore, the Respondent had not made out its defence under s 11A and the Appellant's claim should be upheld.” (emphasis in original)

4. The respondent says that with respect to the annexures to Ms Dolan’s statement, the appellant has not set out the basis for the serious contention that has been made. The respondent says that “it is plain from a review of the attachments that there is nothing to indicate that the attachments from pages 18 to 68 do not reflect the attachments referred to by Ms Dolan.”[60]

   [60] Respondent’s submissions on appeal 5 May 2025, [7].

5. In terms of attachment MC01 to Ms Corsiglia’s statement, the respondent agrees that this document is not present but can be supplied “if necessary”. The respondent says this in response to this missing annexure: “In any case, nothing turns on its absence from the material before the [Senior] Member. This is because paragraph [9] of Ms Corsiglia’s statement describes that the attachment is ‘… notes about that call [in October 2022] and the following correspondence with Rebecca’. Ms Corsiglia goes on to describe communications she had with the [appellant] and the ARD and Reply includes relevant written communications between the parties.”[61]

   [61] Respondent’s submissions on appeal 5 May 2025, [8].

6. The respondent continues:

   “9.     The [appellant] gives evidence about her interactions with the respondent (pages 3–8 of the ARD), including phone conversations (albeit at a different point of time) she had with Ms Corsiglia at paragraph 21 of her further evidentiary statement at page 26 of the ARD. Indeed, most of the [appellant’s] further evidentiary statement from pages 22 to 30 is directed to that very issue.

   10.    If there was some real contest as to what was said in phone conversations the [appellant] had with Ms Corsiglia or about the broader nature of the communications that she had with the respondent, she could have put further evidence on about those issues.

   11.    The content of Attachment MC01 is simply not an issue in dispute between the parties and nor was it raised as an issue before the Member. Moreover, it is not clear how the absence of that document before the Member could lead to some adverse inference being drawn against the respondent. Such a complaint ultimately goes nowhere and could not have affected the result in any case (Raulston at [31]).”

Consideration

1. As a result of reading the appellant’s submissions, I was concerned that the fifteen annexures to Ms Dolan’s statement signed 9 June 2023 were absent from the material considered by the Senior Member. I noted that the respondent said that the material was present in the Reply at pages 18–68, which the appellant submits “is not true”.[62] This is a serious accusation to level at another practitioner. It is tantamount to a submission that the respondent is attempting to mislead this Commission.

   [62] Appellant’s submissions on appeal 2 April 2025, Ground One, [4].

2. In light of the seriousness of the appellant’s submission, I therefore conducted a review of the material that was before the Senior Member. I examined the description of each of the fifteen annexures given by Ms Dolan in the body of her statement and then attempted to ascertain if any of the documents could be located in either the ARD or Reply. The results of this examination of the material I set out in the Table below.

Attachment number	Description in Ms Dolan’s statement	Location of document in evidence
SD01 & SD02	Described as “HIPPY – Home Interaction Program for Parents and Youngers [sic]”	Reply, pp 18–22  This is a letter from the respondent dated 12 April 2010 confirming a casual appointment with HIPPY & letter dated 15 July 2013 confirming a permanent part-time position with HIPPY
SD03	Described as “job description”	Reply, pp 23–27  This is a document that describes the details of the position including its purpose, and job responsibilities/duties
SD04	Described as “Rebecca started her parental leave on 16 March 2021 and was booked until 14 March 2022”	Reply, pp 28–30  This document is a letter from the respondent to the appellant dated 14 January 2021 providing details of the parental leave arrangement
SD05 & SD06	Described as the respondent’s “COVID policy consultation process …” and “[a]s part of that process a survey was put to staff”. “A reminder of that survey was emailed out on 28 October 2021”	Reply, pp 31–32  This document is titled “Barnardos Plan for Moving Forward from COVID-19” Reply, p 33  This document is an email from “Rita D’Arcy” dated 28 October 2021 with the subject heading “**Employee Survey Closing Today**”. Within the content of the email it states “If you haven’t yet completed the survey, I would encourage you to do so by using this link”
SD07	Described as “On 9 November 2021 the results of that survey were published”	Reply, p 34  This document is an email from “Rita D’Arcy” dated 9 November 2021 with the subject heading “COVID-19 Vaccination Policy Employee Survey Results”
SD08	Described as “On 8 December 2021 our COVID policy was published online and available to all staff and sent to all staff including those on parental leave”	Reply, pp 35–51  This document is titled “COVID-19 Vaccination Policy”
SD09	Described as the appellant extending her parental leave on 16 January 2023	Reply, pp 52–53  This document is an email from the appellant to the respondent dated 16 January 2023 stating “I wish to notify you that I will be taking a further 12 months unpaid leave to care for my young baby. I will return to work in March 2023”
SD10	Document described as a “Direction to comply with Policy” sent via email	Reply, pp 54–55  This document is a letter from the respondent dated 27 February 2023 to the appellant with the subject heading “Re: Formal Direction to comply with Vaccination policy”
SD11	Described as the appellant’s response to the ‘Direction to comply with Policy’ and the respondent’s ‘whole decision process’	Reply, pp 56–64  Here there is a chain of emails between appellant and respondent commencing 28 February 2023
SD12	Described as a “Non-Compliance with Vaccination Policy – Individual Risk Assessment Consultation” letter that was emailed to the appellant on 14 April 2023	Reply, pp 65–67  This document is a letter from the respondent to the appellant dated 14 April 2023 with the subject heading “Re: Non Compliance with Vaccination Policy – Individual Risk Assessment Consultation”
SD13 & SD14	Described as email from McCabe Partners dated 18 April 2023 attaching a statement dated 16 November 2023 [sic, 2022] and a request for weekly payments to be backdated to 8 November 2021 together with a workers compensation lodgement form	ARD pp 155–156  This document is a letter from McCabe Partners dated 18 April 2023 requesting weekly payments to be paid from 8 November 2021 (incorrectly noted as an email) Reply pp 68–70  icare lodgement form dated 22 February 2023  Reply pp 1–6  Statement of appellant dated 16 November 2022 (incorrectly recorded as 16 November 2023)
SD15	Described as Sharon Dolan’s responses to the appellant’s allegations	Reply, pp 7–9  This document is titled “Statement by Sharon Dolan in response to Statement by Rebecca Georges” dated 6 June 2023

1. As is evident from the Table, the annexures referenced in Ms Dolan’s statement are readily ascertainable if one examines the material and undertakes the comparison that I did. The description given by Ms Dolan of each annexure was of sufficient detail to enable each document to be located. Obviously, this is not ideal. The preferable and usual course of action would have been for each annexure to have been identified by the allocated annexure number with each annexure then appearing sequentially after the end of the statement, numbered one through to fifteen. However, the Commission’s processes are sufficiently flexible and informal to cope with the circumstance referred to in this ground.[63] I am satisfied that the documents I have identified are the ones referred to in the statement, which is the respondent’s submission in this ground.

   [63] See s 43 of the 2020 Act.

2. Additionally, I have reviewed the submissions put by the appellant before the Senior Member.[64] Not once did counsel for the appellant raise the issue addressed in this ground with respect to the annexures to Ms Dolan’s statement signed 9 June 2023.

   [64] T 29–44.

3. For the following reasons, I do not accept the appellant’s complaints in Ground One as they apply to the annexures to Ms Dolan’s statement. Firstly, the annexures are not absent from the material as alleged. The material I have examined and identified corresponds with the description in the statement of each annexure. I would remark that the annexures are situated in the Reply in a place which relatively is proximate to the statement of Ms Dolan. One document is in the appellant’s ARD. Secondly, this submission was deployed to undermine the weight given by the Senior Member to the statement of Ms Dolan. The appellant refers to the “paucity of the Respondent’s evidence from statements submitted in the Reply”[65] and that the “Member proceeded to make a decision without probative evidence”.[66] The appellant concludes by saying the statement should have been rejected.[67] None of these submissions can be substantiated. No submission to reject Ms Dolan’s statement was made by the appellant nor was any submission made regarding the weight to be given to the statement of Ms Dolan. The rules of evidence do not apply in Commission proceedings,[68] so the question is not one of rejection, rather it is a question of weight.[69] In any event the essential complaint in this ground is the incorrect assertion that the fifteen annexures to Ms Dolan’s statement were absent from the proceedings. As I have set out above, factually there is no basis for this complaint, indeed the assertion should not have been made. This aspect of Ground One is dismissed.

   [65] Appellant’s submissions on appeal 2 April 2025, Ground One, [6].

   [66] Appellant’s submissions on appeal 2 April 2025, Ground One, [8].

   [67] Appellant’s submissions on appeal 2 April 2025, Ground One, [9].

   [68] Section 43(2) of the 2020 Act.

   [69] Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11, [83] per Beazley JA.

4. This leaves the annexure MC01 which is missing from Ms Corsiglia’s statement. There is no dispute about this fact.

5. Ms Corsiglia signed a statement on 9 June 2023.[70] The reference to the missing annexure appears at paragraph [9] of the statement where the witness says the following:

   “In October 2022 I telephoned Rebecca to check she was aware of the COVID policy and to arrange her return to work. She confirmed she was aware of the policy and had a copy. She informed she was not vaccinated and was not intending to do so. She asked what would happen with her employment. I explained a risk assessment would need to be conducted with HR to determine weather [sic] she could return to her workplace while unvaccinated. I made notes about that call and the following correspondence with Rebecca. Refer Attachment MC01.”[71]

   [70] Reply, p 71.

   [71] Reply, pp 72–73.

6. Ms Corsiglia also recounts further contact with the appellant by telephone in February 2023, stating the following:

   “11.   In February 2023 I telephone[d] her again to see where she was at. She said [she] would like to return to work and again said she was not vaccinated and did not intend to get vaccinated.

   12.    She also said she would need to go her entire 24hr working week from her home as she did not have childcare for her 2-year-old. I did not go into the detail regarding her role requiring some face to face and that would not work. I was merely seeking her intentions at that time.

   13.    On 28 February 2023 I emailed Rebecca the ‘Direction to comply with Vaccination Policy’ which she replied to on 2 March 2023. I passed those details to HR. From then Sharon Dolan dealt with the matter.”[72]

   [72] Reply, p 73.

7. The appellant relied on a number of statements including one signed 15 November 2024.[73] At paragraph 21 of this statement,[74] the appellant recounts a discussion with Ms Corsiglia in February 2023.

   [73] ARD, p 21.

   [74] ARD, p 26.

8. Both witnesses describe the February 2023 contact and their recollections are not in conflict. The appellant does not say anything about the earlier contact from Ms Corsiglia in October 2022, which is of course related to the missing annexure. Reading both witnesses’ statements reveals discussions about the respondent’s vaccination policy and the effect of the policy upon the appellant’s intended return to work. I do not see any controversy about what was said, although it is apparent that the appellant was not pleased with the vaccination requirement.

9. I have also closely read the Senior Member’s decision and the transcript of the hearing. The appellant took no point regarding the missing annexure MC01 nor was there any challenge to the evidence of Ms Corsiglia about her contact with the appellant. The Senior Member in the dispositive section of her decision made reference to Ms Corsiglia’s evidence at reasons [315] and [319], neither of which are challenged on appeal.

10. I accept the annexure should have been in evidence. But the mere fact of its absence, without more, does not assist the appellant. The exchanges between the two witnesses are not in dispute. Even if I were to assume that the absence of the annexure is an error, having regard to how it is described by Ms Corsiglia and the lack of any contest in the appellant’s response, it is hard to see its relevance to any matter in dispute. If this was an error, it only justifies intervention on appeal if the error affected the result.[75]

    [75] Walshe v Prest [2005] NSWCA 333, [27].

11. The appellant has failed to establish how the absence of the annexure was relevant to the resolution of the overall controversy between the parties and thus how the result was affected. Additionally, this point was not argued before the Senior Member and having read the material, including the transcript, I cannot see that the issue now complained of was a matter in dispute. This aspect of Ground One fails.

12. Ground One is dismissed.

As to Ground Two

1. The appellant complains that the respondent only had in evidence the single iteration of its COVID-19 Vaccination Policy, dated February 2023,[76] and not its earlier versions. The appellant contends:

   “All that is set out in the Policy adduced in evidence (Reply pages 50/51) is that the Policy was ‘reviewed in line with all applicable laws from the CDC, etc AND changes in the PHOs’ (shortened), with PHOs being Public Health Orders.

   However, the Policy gives no indication if and how the Policy was changed due to the Government withdrawing its PHO in June 2022 (at which time the requirement for health workers to be vaccinated was withdrawn).

   The Respondent could have called/adduced evidence from its CEO Ms Cheers or another employee as to the changes in its Covid 19 Policy. Its failure to do so must lead to an inference that this evidence would not support its case.

   The requirements of the Respondent’s Covid 19 Policy were fundamental to the determination of this case and the Respondent complying with its onus to establish all the elements of section 11A. The Member refers to the Policy in detail at [reasons] paragraphs 162 to 166 and its ‘reasonableness’ at paras 304 to 325. Indeed the Member at paragraph 318 (wrongly) refers to the Policy not having changed until the termination of the Appellant’s employment.”[77]

   [76] Reply, p 51.

   [77] Appellant’s submissions on appeal 2 April 2025, Ground Two, [3]–[6].

2. The appellant alleges that the failure to put the earlier versions into evidence and the Senior Member’s reliance on the policy as “reasonable” was thus an error.

3. In reply, the respondent submits the following:

   “By the second appeal ground, the [appellant] argues that the failure by the respondent to adduce all the versions of the respondent’s COVID-19 Vaccination Policy (set out from pages 35 to 51 of the Reply) (Policy) should lead to an inference that this evidence would not have supported its case (AS [5]). The Member was not invited to make any adverse inference pursuant to Jones v Dunkel [1959] HCA 8; 101 CLR 298.

   In any event, there is no substance to the complaint. The broad nature of the changes made to the Policy can be inferred from the terms of the Policy itself (see the ‘Version control and change history’ section set out at pages 50–51 of the Reply).

   Even more fundamentally, it was not the precise changes made to the Policy over time that was relevant. Rather it was the fact that the Policy was not a static document. See the respondent’s submissions on that issue (T3.23, T20.8, T45.31).

   The way that issue ultimately featured in the Member’s analysis in the [reasons] was principally by a rejection of the [appellant’s] submission that it was not reasonable for the respondent to maintain the Policy after relevant Public Health Orders had been withdrawn (see [reasons] [300]–[309]).

   The Member found that the withdrawal of those orders was not determinative ([reasons] [301]) (a finding not challenged on appeal) and that the Policy was reviewed ([reasons] [309]).”[78]

   [78] Respondent’s submissions on appeal 5 May 2025, [12]–[16].

Consideration

1. Counsel for the appellant addressed the Senior Member on the terms of the policy.[79] Nowhere in the appellant’s submissions before the Senior Member was any issue taken with respect to the absence of the two earlier iterations of the policy. Nowhere was any Jones v Dunkel submission put to the Senior Member by the appellant regarding the absence of the two earlier versions of the policy. Needless to say, it is not an error for the Senior Member to not deal with an argument that was not put.[80]

   [79] T 33–34.

   [80] Brambles Industries Limited v Bell [2010] NSWCA 162 (Bell), [30], per McColl JA.

2. In any event, if one considers the terms of the policy, especially at paragraph [14],[81] the amendments to the earlier versions of the policy are plainly spelt out in the Table. The Table has four columns, the fourth being entitled “Amendment”. Plainly this fourth column lists the amendments between the latest version of the policy as compared to the one immediately preceding it. The development of the policy can easily be tracked by reviewing this Table. I do not accept the submission that the absence of the earlier versions left a lacuna in the evidence.

   [81] Reply, pp 50–51.

3. Next, I refer to the appellant’s submission that the Senior Member’s remark at reasons [318] wrongly asserts that the policy had not changed until the termination of the appellant’s employment.[82] Reasons [318] reads: “The respondent’s policy regarding vaccination had not changed by the time the [appellant’s] parental leave ended, and in my view it was reasonable for the policy to remain in force” (emphasis added).

   [82] Appellant’s submissions on appeal 2 April 2025, Ground Two, [6].

4. The appellant does not correctly represent what the Senior Member said at reasons [318]. The Senior Member’s remark was limited to the “policy regarding vaccination”, it was not more broadly referring to the entire policy. If one reads paragraph [14] of the policy, which tracks the policy amendments, there was no amendment to the vaccination requirement. The Senior Member’s remark at reasons [318] is therefore a correct statement of that position.

5. For the reasons I have set out above, the appellant has not established that the Senior Member was in error.

6. Ground Two is dismissed.

As to Ground Three

1. The appellant says that she pleaded a disease injury spanning the entirety of her period of employment, from 1 March 2010 to 17 October 2023. The appellant then says that as the respondent did not dispute injury, it was thus accepted that the appellant had in fact suffered injury between 1 March 2010 and 17 October 2023.

2. The appellant says that what flows from this is that the injury was suffered before the employer commenced any of the processes set out in s 11A of the 1987 Act. The appellant says that while the s 11A process may have made the condition worse, referencing my decision in Martsoukos v Secretary, Department of Education,[83] it had not wholly or predominantly caused the appellant’s psychological injury. In short, the appellant says the injury predated the commencement of the s 11A process with respect to discipline.

   [83] [2024] NSWPICPD 85 (Martsoukos).

3. The appellant says that the Senior Member found that the appellant started suffering significant psychological symptoms towards the end of 2022.[84] The appellant says that the “discipline” relied on by the respondent did not commence until February 2023.

   [84] Citing reasons [190] and [286].

4. The respondent says that the Commission is not bound by strict pleadings. The reference to the 1 March 2010 date is self-evidently a reference to the appellant’s first day of work.

5. The respondent says: “The fact the respondent at the arbitration withdrew any dispute in relation to injury does not amount to some broader admission by the respondent that such injury commenced from 1 March 2010.”[85] This is contrasted to the appellant’s case that stated her symptoms started in February 2021.[86]

   [85] Respondent’s submissions on appeal 5 May 2025, [21].

   [86] Respondent’s submissions on appeal 5 May 2025, [22].

6. The respondent then submitted the following:

   “23. The [appellant’s] submissions on this ground from AS [6] to [10] then appear to amount to an attack on the finding made by the Member on the first limb of the s 11A defence. The Member’s reasoning on that issue is set out from [reasons] [279]–[296]. Given the one isolated clinical reference on 6 July 2021 to psychological distress (that did not touch on the [appellant’s] employment with the respondent in any case) and the absence of any other treating practitioner reports that predated March 2023, the Member was principally dealing with a contest between the evidence of Dr Fernando and Dr Anand.

   24.    The high point of the [appellant’s] case on this issue was a supplementary report from Dr Anand dated 10 January 2025 in which Dr Anand found as follows:

   ‘In my opinion, Ms Georges' injury was not due to reasonable action taken by Barnardos Australia as noting the timeline, Ms Georges was diagnosed with adjustment disorder with depression, anxiety on 06 July 2021, well before Barnardos Australia implemented their COVID-19 vaccination policy in February 2022. This suggest that the psychological injury was not initially caused by the employer's vaccination policy.’

   25.    As the Member correctly reasoned from [reasons] [289]–[291], Dr Anand’s first report says nothing of a diagnosis on 6 July 2021. If the view expressed by Dr Anand in his supplementary report was due to him having reviewed clinical records (a matter that is not clear given they are not referred to in the documentation he states he reviewed at page 2 of the [appellant’s] late documents), that would have been an error. As the Member correctly found, there is no basis to conclude that the [appellant] was diagnosed with any psychological condition on 6 July 2021 based on the isolated clinical report.

   26.    The reasoning for Dr Anand’s conclusion is otherwise not exposed. This appears to have caused the Member to have doubt as to the accuracy of Dr Anand’s opinion. In those circumstances, the Member was correct to prefer other evidence on the issue, including the opinion of Dr Fernando.

   27.    Contrary to the [appellant’s] submission at AS [8]–[9], the fact Dr Fernando found that the [appellant] began feeling psychologically distressed towards the end of 2022 does not undermine the conclusion that the disciplinary process that commenced in early 2023 was at least the predominant cause of the [appellant’s] injury.

   28. A defence under s 11A can be made out even if there are some stressors that commence before the disciplinary action commences, otherwise the concept of ‘predominantly’ would have no work to do. The Member’s findings on that issue were carefully reasoned and the [appellant’s] submissions from AS [6] to [10] on this ground are an attempt to re-litigate adverse findings made against the [appellant] without identifying any real error.”

Consideration

1. The appellant says that she had suffered personal injury in terms of a psychiatric injury before any disciplinary process had commenced, alleging that the gradual onset of her psychiatric injury started on her first day of employment on 1 March 2010. The appellant further states that as “injury” was not put in issue by the respondent, that this constitutes an admission that the injury as pleaded in ARD was accepted by the respondent.

2. For the following reasons, I do not accept this submission. Firstly, the appellant has not taken me to any evidence which suggests or shows in any probative sense that the appellant had suffered injury from the commencement of her employment. From my review of the material there is no evidence of any psychiatric issue before a clinical note from the Warrawong Medical Centre[87] citing an “anxiety issue” on 6 July 2021.[88] I have read the appellant’s statements.[89] Nowhere does the appellant attribute her condition to any work related conduct or events prior to the advent of the vaccine mandate let alone any issues from March 2010. Indeed, in her statement dated 14 March 2024 the appellant directly attributes her psychological injury to the respondent’s vaccination requirement.[90] The claim form signed by the appellant dated 30 April 2023 puts the injury date in August 2021.[91] Likewise the icare report of injury form also signed by the appellant says the injury occurred “whenever the vaccine mandates came in”.[92] Dr Anand, a consultant psychiatrist retained to provide a medico-legal report for the appellant, noted that the only earlier issues from a psychiatric perspective were brief post-partum ‘blues’ following the births of her children.[93] No history of any issue with work from 2010 was recorded. I would remark that for the Commission to make findings the material must be “satisfactory, in the probative sense …”.[94] I do not therefore accept that the appellant suffered any psychological injury starting in 2010 as is pleaded.

   [87] Reply, pp 90–118.

   [88] Reply, p 99.

   [89] ARD, pp 12–21.

   [90] ARD, p 12, [9].

   [91] ARD, p 118.

   [92] ARD, p 123.

   [93] ARD, p 3.

   [94] See Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282, [2], per Allsop P.

3. Next I deal with the appellant’s submission that by virtue of the admission of injury by the respondent, that there was an acceptance of the matter as pleaded. Firstly, I do not accept that there was any admission by the respondent that the injury as pleaded by the appellant was accepted. Counsel for the respondent submitted that “I can confirm that the respondent doesn’t put in issue the question of injury …”.[95] Nowhere in her submissions before the Senior Member did the appellant make any submission that the acceptance of injury constituted the admission now asserted. Secondly, cases are decided on evidence and not pleadings.[96] The evidence did not support any submission that injury of gradual onset commenced in 2010. In any event the Commission is not bound by strict pleadings.[97] There is nothing in this aspect of the argument in Ground Three.

   [95] T 1.41–2.1.

   [96] Banque Commerciale SA (In Liquidation) v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279, 296–7, per Dawson J.

   [97] Tray Fit Pty Limited v Cairney [2015] NSWWCCPD 2, [41].

4. The real contest in Ground Three relates to the appellant’s assertion that the appellant:

   “attended her general practitioner Dr Khadka on 6 July 2021 ([reasons] para 167) who records that the Appellant has an ‘anxiety issue’ – previously seen counsellor – no thoughts of self-harm – mental health care plan to be considered’. Thus the Appellant was suffering some (albeit minor) symptoms of her conceded injury as early as July 2021.”[98]

   [98] Appellant’s submissions 1 April 2025, Ground 3, [6].

5. The appellant then argues that the Senior Member accepted that the appellant started suffering significant symptoms towards the end of 2022.[99] Pausing here, I think the appellant is referring to reasons [191] and not [190] in this paragraph.

   [99] Citing reasons [190] and [286] at appellant’s submissions 1 April 2025, Ground 3, [7].

6. The appellant alleges that the process of “discipline” relied on by the respondent did not commence until February 2023, which post-dated the appellant suffering injury, relying upon my decision in Martsoukos and the Court of Appeal’s decision in Secretary, Department of Education v Dawking[100].[101]

   [100] [2024] NSWCA 4.

   [101] Appellant’s submissions 1 April 2025, Ground 3, [8]–[9].

7. The Senior Member dealt with the evidence relating to this issue at reasons [283]–[293]. In summary, the Senior Member was not persuaded that the 6 July 2021 clinical note made any reference of the then presenting symptoms being related to any issue at work.[102] Was this a correct factual conclusion for the Senior Member to draw? The clinical note appears at page 99 of the Reply. It reads as follows:

   [102] Reasons, [283].

   “Tuesday July 6 2021

   …

   Actions:

   Letter Created – re. MEDICAL CERTIFICATE to .

   …

   anxiety issue. struggling with mask. makes her heart race. previously seen counsellor. no thoughts of self harm.

   kids with her who suffer too from anxiety.

   no thoughts of self harm.

   looking after kids.

   on maternity leave.

   child has not had vaccine. She says she is still doing research on it.

   MHCP >

   review in 4 weeks.”

8. In my opinion, the Senior Member’s remark at reasons [283] about the clinical note is completely accurate. There is no error in how the Senior Member treated this entry.

9. This entry is also an unsatisfactory basis for Dr Anand’s later opinion of 10 January 2025 where he states, “In my opinion, Ms Georges’ injury was not due to reasonable action taken by Barnados Australia as noting the timeline, Ms Georges was diagnosed with adjustment disorder with depression, anxiety on 06 July 2021, well before Barnados Australia implemented their COVID-19 vaccination policy in February 2022.”[103] Firstly, Dr Anand’s opinion appears to make an assumption, unsupported by any path of reasoning, that the condition described in the 6 July 2021 note was work related. There is no evidentiary basis for that assumption arising from a plain reading of the clinical note. Secondly, the note does not record a diagnosis of “adjustment disorder with depression, anxiety”, as is apparent from the extract (above). The note records an “anxiety issue” only, with no attribution of its origin. The Senior Member found Dr Anand’s supplementary report to be “unconvincing and of little assistance”.[104] I agree with this statement. The clinical note is an entirely unsatisfactory basis for the opinion expressed by Dr Anand in his 10 January 2025 report. In any event the opinion expressed by the doctor in the 10 January 2025 report is not supported by any path of reasoning.

   [103] Application to Lodge Additional Documents 20 January 2025, p 2.

   [104] Reasons, [288].

10. This leaves the appellant’s general assertion that the appellant had suffered injury before any discipline had commenced. This is really the major assertion made in this ground.[105]

    [105] Appellant’s submissions 2 April 2025, Ground Three, [6]–[10].

11. Before commencing this examination, I set out the principles to be considered. In Heggie, Sackville AJA said a broad view had to be taken to the expression in s 11A “action with respect to discipline”. The psychological injury must be wholly or predominantly caused by this action, which action the employer must prove was reasonable.[106]

    [106] Heggie, [59].

12. The argument that the injury predated any action with respect to discipline was correctly articulated by the Senior Member at reasons [265]–[267]. The Senior Member noted that the description of injury commenced “from 2010, ‘but really from 2021’ to 17 October 2023, during which time the [appellant] received correspondence about the requirement to be double vaccinated.”[107] This reflects what was put to the Senior Member by the appellant.[108] This later description about the injury from 2021 to 2023 fairly encapsulates how the appellant put her case. The Senior Member also, quite correctly, had regard to the remarks of Deputy President Snell in Hamad at [88] which discussed the need for medical evidence to substantiate causation in particular cases.

    [107] Reasons, [265].

    [108] T 38.3–10.

13. During 2021, the evidence is that the appellant was on maternity leave. During 2021 the respondent developed the policy and provided it to staff, including the appellant. The policy became operative on 8 December 2021.[109] The policy made clear, in paragraph 3 entitled “Scope”, that non compliance with the policy may lead to disciplinary action including termination of employment. The policy did have scope for an exemption to be applied for, but the evidence is that the appellant did not avail herself of this possible avenue.

    [109] Reply, p 50, [14].

14. The appellant in her Worker’s Injury Claim Form[110] says that she suffered psychological injuries due the vaccination mandate and attributes a date of injury of 27 August 2021.[111] I would remark that this form was signed by the appellant on 30 April 2023.[112] The appellant in her statement dated 30 April 2024[113] says that she gave notice to her employer on 27 August 2021, citing the Workers Injury Claim Form. Clearly this statement is mistaken as the form was not signed until 30 April 2023.

    [110] ARD, p 115.

    [111] ARD, p 118.

    [112] ARD, p 121.

    [113] ARD, p 17, [4].

15. The appellant refers to receiving the vaccination emails during 2021 while she was on maternity leave[114] and states that as she was against being vaccinated, she applied for extra time off and that she felt “quite depressed”.[115] The appellant later says, in her statement dated 15 November 2024, that “it 25 Oct 2022 [sic] when I was contacted by Barnardos regarding my impending return to work in March 2023 that my anxiety and depression had elevated to the point I did not think I could work. I first consulted Dr Khadkha regarding my anxiety and depression on 02/03/2023.”[116]

    [114] ARD, p 12, [4].

    [115] ARD, p 12, [5].

    [116] ARD, p 23, [5]–[6].

16. The appellant continues:

    “21.   In February 2023, I had discussions with Centre Manager Maria Corsiglia about my intended return to work in March 2023. I was surprised that Barnardos was still maintaining that I had to be vaccinated when most other employers had relaxed their requirements. I started having all of the symptoms set out in paragraph 18 of my statement of 14/03/2024.

    22.    These symptoms were made worse when I received a letter from Barnardos of 27/02/2023 giving me a formal direction to comply with their Covid Policy. As set out above, I consulted Dr Khalda on 02/03/2023 and continued to consult that doctor to date together with the psychologist Liz [Sheppard]. I feel I have been incapacitated for work from 06/03/2023.

    23.    On 14/04/2023, Barnardos sent me another letter appointing a meeting on 26/04/2023 with Maria Corsiglia and Lynda Sinnott, Program Manager. I was told I may be disciplined and my employment terminated. This increased my symptoms of anxiety and depression.

    …

    26.    I do not feel that I have been fit for any employment since 06/03/2023.”[117]

    [117] ARD, pp 26–27.

17. Clinical Psychologist Liz Sheppard saw the appellant on 11 May 2023.[118] Ms Sheppard was of the view that the appellant “does meet criteria for an adjustment disorder with anxiety and depressed mood …”[119] but did not posit any view about when this condition came about. This is not a criticism of Ms Sheppard, a review of the report reveals she was concerned about treatment.

    [118] ARD, p 189.

    [119] ARD, p 193.

18. I now turn to Dr Fernando’s report of 1 September 2023, a psychiatrist qualified by the respondent.[120] The doctor takes a history that “Rebecca reported she started feeling psychologically distressed towards the end of 2022 when they started sending letters informing her about her return-to-work plan and the need to comply with the vaccination mandate.”[121] Dr Fernando then diagnoses the appellant as suffering from “an adjustment disorder with anxiety and depressive symptoms as per DSM 5 criteria.”[122] The doctor is then asked and answers a series of questions about the question of causation,[123] stating that the “company’s COVID vaccine mandate policy implementation appears to have been a substantial contributing factor to her psychological injury”.[124] Later in the same answer the doctor states, “I note that on the 14^th April 2023, she received a non-compliance with vaccination letter which she appears to have perceived as a termination notice. The time correlation is suggestive that this appear[s] to be one the main factors [sic] contributing to her psychological distress (substantial work related factor).” The Senior Member recounted this extract at reasons [204].

    [120] ARD, p 195.

    [121] ARD, p 197.

    [122] ARD, p 202.

    [123] ARD, pp 206–207, question and answers 9 (b)(i) and (ii), 10(a), (b) and (c).

    [124] ARD, p 205 at 9(b).

19. In my view the Senior Member was correct to dismiss the appellant’s submission that her psychological injury pre-dated the respondent’s action with respect to discipline. The only evidence of a medical kind the appellant points to is Dr Khadka’s entry dated 6 July 2021, which is an unsatisfactory basis for this submission as I have discussed above. By the time the appellant consults Dr Khadka on 02 March 2023 regarding her anxiety and depression, the appellant had been in contact with the respondent about her return to work and had received the letter dated 27 February 2023[125] which was entitled “Formal Direction to Comply with Vaccination Policy”. I would remark that the appellant had by this time long possessed the policy and which clearly provided that non-compliance without gaining an exemption meant disciplinary action. This fact is confirmed shortly thereafter in the letter dated 14 April 2023[126] entitled “Non-Compliance with Vaccination Policy - Individual Risk Assessment Consultation”. This action on behalf of the respondent corresponds with the appellant’s own evidence about her attendance with Dr Khadka on 02 March 2023 and Dr Fernando’s opinion on this issue that I have extracted above. There is no relevant medical evidence before this time which suggests that an injury had been suffered.

    [125] ARD, p 148.

    [126] ARD, p 150.

1. The appellant relies upon my decision in Martsoukos. For the following reasons, that decision may be comfortably distinguished from the facts in this matter. In Martsoukos, it was common ground that that the worker’s injury in that matter was caused by receipt of two emails from the worker’s employer dated 27 August and 2 September 2021.[127] I then went to on to examine the nature of the emails and whether they possessed the necessary disciplinary charter. I found that they did not.[128] This being the case, when the disciplinary action commenced at a date well after the dates of the two emails, the worker had already suffered her compensable injury.

   [127] Martsoukos, [52].

   [128] Martsoukos, [52]–[64].

2. That is to be contrasted to this matter. It is apparent that the respondent did not need to enforce the vaccination mandate on the appellant while she was absent on extended maternity leave and that was the unchallenged evidence.[129] It was only once the appellant’s return to work was imminent in February 2023 that the need for the appellant to comply with the policy became necessary. Dr Fernando is the only doctor who has considered this issue. For the reasons I have set out above, the Senior Member was correct to afford Dr Anand’s opinion little weight.

   [129] See letter dated 27 February 2023, ARD, pp 148–149.

3. The appellant has failed to establish error. Having reviewed the evidence and the Senior Member’s findings, I agree with the Senior Member’s decision on this issue.

4. Ground Three is dismissed.

As to Ground Four

1. The appellant alleges that the policy was “substantially unchanged between December 2021 and February 2023, the Respondent failed to adduce any evidence that it had actually complied with its own Policy.”[130]

   [130] Appellant’s submissions 2 April 2025, Ground Four, [1].

2. The appellant continues:

   “Therefore, the Public Health Order applicable to the Respondent’s own Covid 19 policy was no longer applicable after 13/05/2022. There was no evidence adduced by the Respondent (perhaps through its CEO Ms Cheers or one of the other employees) that any consideration was given by the Respondent to the withdrawal of the PHO.

   It is submitted that the Respondent by its own policy was obliged to take into account changes to the Public Health Orders. Failure to do was not reasonable action on its behalf regarding actions taken pursuant to the Policy regarding discipline.”[131]

   [131] Appellant’s submissions 2 April 2025, Ground Four, [3]–[4].

3. As a result, the appellant submits the Senior Member made an error in accepting the respondent’s s 11A defence.

4. In reply the respondent argues as follows:

   “29.   The [appellant] appears to allege there was no evidence that any consideration had been given by the respondent to change its policies following the withdrawal of relevant Public Health Orders.

   30.    The factual allegation underpinning such argument is incorrect. The [appellant’s] own argument contends that the relevant Public Health Orders were not extended beyond 13 May 2022 (a matter which should have, in any event, presumably been proven by the inclusion of the Public Health Orders themselves rather than the [appellant’s] statement evidence on the issue).

   31.    The Policy was amended on 30 June 2022 (see page 50 of the Reply) with amendments that included the following [respondent’s emphasis]:

   Formal policy review commenced in March 2022 in line with all applicable laws and guidance from the Centres for Disease Control and Prevention and local health authorities. Updates specifically relate to Barnardos position on booster requirements, changes in PHO’s and privacy policies on Individual Health Identifiers (IHI) as well as position for visitors.”

   32.    The Policy was therefore amended specifically to take into account changes in the Public Health Orders. The submission at AS [3] (page 7) that: ‘there was no evidence adduced by the Respondent … that any consideration was given by the Respondent to the withdrawal of the PHO’ cannot be accepted.

   33.    The statement from Ms Dolan from paragraphs [32] to [38] also explains why it is not as straightforward as simply repealing the Policy on expiry of the relevant Public Health Orders.

   34.    In any case, as submitted at paragraph 16 above, the Member did not find the repeal of the Public Health Orders as determinative of the reasonableness issue. The [appellant] has advanced no reason as to why the Member fell into error in arriving at that conclusion.”

Consideration

1. The appellant does not in terms specify the particular finding or passage of the decision where the asserted error is said to lie. The gravamen of the complaint in this ground is that the respondent’s vaccination policy obliged it to take into account changes in Public Health Orders and it failed to so, thus rendering its action with respect to discipline not reasonable.

2. The Senior Member dealt with the respondent’s actions and whether they were reasonable at reasons [297]–[325]. Relevantly, the appellant put to the Senior Member that while the requirement to be vaccinated may have been reasonable in 2021, the situation had changed by 2023.[132] It was put that the policy should have changed because conditions had changed.[133]

   [132] T 34–35.

   [133] T 36.5–10.

3. The Senior Member found the following:

   “301. I do not regard the withdrawal of the Public Health Orders as determinative in considering whether the respondent acted reasonably.

   302. As the respondent submitted, the fact that Public Health Orders may have been extinguished does not abrogate the right of an employer to make its own judgment and assessment of the risk it is prepared to accept in the environment in which it operates.

   303. As Geraghty J said in Irwin, the test of ‘reasonableness’ must weigh the rights of the employees against the object of the employment.”

4. This is the crux of the issue in dispute in this ground. The appellant has not shown why this finding was in error. I would also note that the policy on its face says that it is informed by applicable laws and Government directives.[134]

   [134] Reply, p 41, [5].

5. In terms of the submission that there is no evidence the respondent failed to take into account changes in Public Health Orders, this submission is incorrect. As submitted by the respondent, the policy itself notes that it was reviewed in March 2022 and again in February 2023.[135] Additionally Ms Dolan states that the policy “had been reviewed in line with changes in the latest information on COVID as more information became available.”[136] Ms Dolan also states that the respondent’s approach was to tailor the policy across the organisation.[137]

   [135] Reply, pp 50–51, [14].

   [136] Reply, p 15, [33].

   [137] Reply, p 15, [34].

6. There is nothing in this ground. The Senior Member, in a carefully reasoned decision, has assessed the reasonableness of the respondent’s actions and found that they were reasonable. A consideration of the evidence reveals that this finding was correct on the evidence. The appellant’s assertion of error in this ground relies on a submission which does not correctly reflect the evidence.

7. Ground Four is dismissed.

As to Ground Five

1. Ground Five is a second complaint about the Senior Member’s finding in favour of the reasonableness of the respondent’s actions. This ground relates to the respondent’s Grievance Procedure. The appellant asserts that:

   “2.     In response to the letter of 27 February 2023 (sent via email on 28 February 2023 (see Reply page 62) the Appellant had expressed her view in her email of 2 March 2023 (Reply page 62) which was the necessary written step in the Grievance Procedure asking why she was no allowed to return to work (?).

   3.      There was no evidence adduced by the Respondent that it carried out any of its obligations under its own Grievance Procedure. It is submitted the Respondent did not follow its own policy in regard to grievances and therefore its actions in disciplining the Appellant were not reasonable actions. This caused further aggravation of the Appellant’s disease and eventually led to the termination of her employment in October 2023.

   4.      The Appellant was left in the position of not understanding why the Respondent had not changed its policy regarding Covid 19, had not taken into account the change in the Public Health Orders, and had not dealt with her grievance according to its own policies, all of which led to her accepted disease injury.”

2. The appellant relies upon clause 2.2.2 of the respondent’s Grievance Procedure which deals with the investigation of a grievance, as it appears that no such investigation has been carried out.

3. The respondent says that this matter was never argued before the Senior Member and that the appellant is bound by the manner in which the case was conducted.[138]

   [138] Respondent’s submissions on appeal 5 May 2025, [36].

Consideration

1. I have read the transcript of the appellant’s submissions before the Senior Member. No submission about the Grievance Procedure was made nor was any submission put of a failure to comply with the said procedure (and in particular clause 2.2.2 of it) so as to render the respondent’s actions not reasonable. The Senior Member cannot be in error for failing to deal with an argument that was not put.[139]

   [139] Bell.

2. In any event, this ground misunderstands how the Grievance Procedure works. The Grievance Procedure appears at Reply p 79 and in the following pages. It provides for a three-step procedure for staff and volunteers to raise grievances.[140] The investigation provision, clause 2.2.2 relied upon by the appellant, is part of step 2, which is described as the “Formal Procedure”. I have read the appellant’s email dated 2 March 2023[141] which is relied upon in this ground. At no place in this email does the appellant invoke the Grievance Procedure. Even if one were to assume that the email had this effect, this would only constitute the first step of the procedure being “Local Resolution”.[142] The investigation stage only arises at the second step and there is no evidence that the second or “formal” stage of the Grievance Procedure had been initiated.

   [140] Reply, p 81.

   [141] Reply, p 62.

   [142] Reply, p 81, [2.1].

3. Not only is the reliance on the Grievance Procedure misconceived, it was also never argued before the Senior Member.

4. Ground Five is dismissed.

DECISION

1. The Senior Member, in a carefully considered decision, found that the respondent employer had established its defence under s 11A of the 1987 Act.[143] I entirely concur with her reasoning and finding of facts. The evidence is that in response to COVID-19 and the Government requirements around vaccination, the respondent as a responsible employer consulted with its staff (including the appellant) about the development of its vaccination policy. The policy in its terms contemplated circumstances where a staff member may be unvaccinated (risk assessment and/or granting an exemption). The policy was also reviewed twice in light of developing circumstances. The appellant did not engage with her employer, the respondent, in the terms set forth in the policy for those choosing to be unvaccinated. The reasons relied upon by the respondent for maintaining the vaccination requirement after the withdrawal of the Public Health Orders was found by the Senior Member to be reasonable and this finding has not been challenged on appeal.

   [143] Reasons, [326].

2. As a consequence, this appeal must fail.

3. The Certificate of Determination dated 6 March 2025 is confirmed.

Judge Phillips
PRESIDENT

1 September 2025